ALDREDGE & KENNARD

[2020] FCCA 2866

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALDREDGE & KENNARD [2020] FCCA 2866

Catchwords:
FAMILY LAW – Parenting – dispute over live with orders – where the mother seeks that the children live with her in Town B and spend time with the father – where the father seeks children live on the Region C and spend equal time with each parent – evidence of report writer – position of the Independent Children’s Lawyer – orders in the children’s best interests.

Legislation:

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

Federal Circuit Court Rules 2001 (Cth), r.15.09

Cases cited:

Re F: Litigants in Person Guidelines [2001] FamCA 348

Albert & Plowman [2020] FamCAFC 23

Goode & Goode (2006) FLC 93-286

MRR v GR (2010) 240 CLR 461

Sayer & Radcliffe & Anor (2012) 48 Fam LR 298

Adamson & Adamson (2014) FLC 93-622

Zahawi & Rayne [2016] FamCAFC 90

Franklyn & Franklyn [2019] FamCAFC 256

Gosai & Gosai [2020] FamCAFC 176

Mazorski & Albright [2007] FamCA 520

Sigley & Evor [2011] FamCAFC 22

Jurchenko & Foster [2014] FamCAFC 127

McCall v Clark (2009) FLC 93-405

Hepburn & Noble (2010) FLC 93-438

Applicant: MS ALDREDGE

Respondent: MR KENNARD

File Number: MLC 561 of 2020

Judgment of: Judge O'Sullivan

Hearing dates:

14, 15 and 16 September 2020

(via Microsoft teams)

Date of Last Submission: 16 September 2020

Delivered at: By telephone

Delivered on: 22 October 2020

REPRESENTATION

Counsel for the Applicant: Ms. Paterson

Solicitors for the Applicant: Semmens Hatch & Anderson

Counsel for the Respondent: Self-Represented

Solicitors for the Respondent: Self-Represented

Counsel for the Independent Children's Lawyer: Ms. Damon

Solicitors for the Independent Children's Lawyer: Talko Nicholas Family Law Pty Ltd

ORDERS

THE COURT ORDERS BY CONSENT THAT:

1. All previous orders be discharged.

2. The parties have equal shared parental responsibility for the children of the relationship namely, X born in 2011, Y born in 2006 and Z born in 2004 (“the children”).

THE COURT ORDERS THAT:

1. The children return to the Region C in Queensland on or before 26 December 2020 and the parties shall forthwith enrol the children at the schools they were attending whilst they were living in Queensland.

2. The child Z live with and spend time with each party in accordance with her wishes.

3. The children, Y and Z return to Town D and if it is required by the Queensland Government as a result of the Covid-19 pandemic that they must spend 14 days in quarantine in a hotel in Queensland, the parties do all acts and things required to ensure that the father enter quarantine with the children, and the father be solely responsible for any cost associated with the quarantine period for himself and the children who enter quarantine with him.

4. Until such time as the mother returns to Town D the children Y and Z live with the father and spend time and communicate with the mother as follows:

   (a)by telephone or any electronic means each Monday, Wednesday and Friday evening from 6pm with the mother to initiate the call, and in addition at any reasonable time the children wish to communicate with her.;

   (b)for ten days in each of the Queensland gazetted first, second and third term holidays on dates to be agreement in writing between the parties, and failing agreement for the first ten days of the holiday period;

   (c)for 21 days during the Queensland gazetted long summer holiday period on dates to be agreement in writing between the parties and failing agreement as follows:

   (i)     the first half in 2021/22 and each alternate year thereafter; and

   (ii)the second half in 2022/23 and each alternate year thereafter.

   (d)upon the mother giving the father not less than 14 days’ notice in writing of her intention to travel to Queensland during Queensland gazetted school term periods, as follows:

   (i)     for a maximum of 14 consecutive days in any block period;

   (ii)during such time the mother ensure that the children attend school and any of their usual extra-curricular activities.

   (e)at such further times as may be agreed upon in writing between the parties.

5. For the purposes of the spend time periods referred to in order 6 hereof:

   (a)the school term and long summer holiday periods commence at midday on the first day of the holiday period and concludes at 6pm on the day prior to the next school term commencing;

   (b)the midpoint of the holiday period is 6pm on the 14th or 21st day, as the case may be, or as otherwise agreed between the parties in writing having regard to flights they can obtain for the children;

   (c)the parties be equally responsible for the cost of flights for the children to spend time with the mother during the said holiday period, with the father to pay for airfares and any transfers associated with the children travelling from Melbourne Tullamarine airport to the Region C, and the mother to pay for airfares and any transfers associated with the children travelling from the Region C to Melbourne Tullamarine airport;

   (d)each party provide the other with the flight details and booking reference numbers not less than ten days prior to the scheduled flights.

6. Upon the mother returning to the Region C and obtaining suitable accommodation, the children Y and Z live with each party on a week about basis with changeover to occur at the children’s schools each Monday at the commencement of school or 9am if Monday is a non-school day, with the commencement time to be the first Monday immediately after the mother having obtained the said accommodation.

7. Upon the mother returning to the Region C pursuant to order 8, the children spend half of each Queensland gazetted school holiday period with each party, at such times as may be agreed between the parties in writing but failing agreement as follows:

   (a)in even numbered years, the first half with the father and the second half with the mother;

   (b)in odd numbered years, the second half with the father and the first half with the mother.

8. For special occasions, the children spend time with each party as follows:

   (a)on Mother’s Day, from 5:00pm the evening prior to Mother’s Day until 5:00pm on Mother’s Day, if the children are not already in the mother’s care;

   (b)on Father’s Day, from 5:00pm the evening prior to Father’s Day until 5:00pm on Father’s Day, if the children are not already in the father’s care;

   (c)on the mother’s birthday, from 5:00pm the evening prior to the birthday, until the commencement of school the following morning if the birthday falls on a school day and if the birthday falls on a non-school day from 9:00am on the mother’s birthday until 9:00am (or the commencement of school the following day) if the children are not already in the care of the mother;

   (d)on the father’s birthday, from 5:00pm the evening prior to the birthday, until the commencement of school the following morning if the birthday falls on a school day and if the birthday falls on a non-school day from 9:00am on the father’s birthday until 9:00am (or the commencement of school the following day) if the children are not already in the care of the father.;

   (e)on each of the children’s birthdays, from 5:00pm the evening prior to the birthday until the commencement of school on the birthday if the birthday falls on a school day and if the birthday falls on a non-school day from 9:00am on the birthday until 2:00pm (or the commencement of school the following day) with the party who the child is not ordinarily in the care of on that day.

THE COURT ORDERS BY CONSENT THAT:

1. Each party who has care of the children forthwith notify the other party of any significant illness or injury suffered by the children, such notification to include the nature of the illness/injury, the details of any treatment received or medication prescribed by medical practitioners and the identity and contact details of the treating health professional and authorise the other party to communicate with such professional if necessary.

2. Each party keep the other informed of any medical or health practitioner who is treating the children, including but not limited to general medical practitioner, dentists, counsellor and medical specialists and that each party be at liberty to liaise directly with such practitioners and these orders shall act as authority for such liaison.

3. Each of the parties provide the other with their contact address, telephone numbers and change in such address or telephone number as soon as practicable, and no later than three days after such change.

4. Both parties be at liberty to liaise directly with the school attended by the children to obtain information about their progress at school and to seek copies of notices, newsletters, reports, photographs and other information normally provided to parents in relation to children.

5. Both parties be permitted to attend/participate in school or extra-curricular activities, functions and/or events normally attended by parents including but not limited to parent teacher interviews and sporting events.

6. Order 1 of the interim orders dated 15 May 2020 (the order appointing the Independent Children’s Lawyer) be discharged.

7. Certify pursuant to rule 21.15 of the Federal Circuit Court Rules2001 that this matter reasonably required the employment of advocates.

8. All extant applications be otherwise dismissed.

9. Pursuant to s.65DA(s) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follows if a person contravenes these orders and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 561 of 2020

MS ALDREDGE

Applicant

And

MR KENNARD

Respondent

REASONS FOR JUDGMENT

Introduction

1. In submissions, at the end of the final hearing in these proceedings, Counsel for the Independent Children’s Lawyer said “if COVID-19 has taught us anything it is that there is no substitute for the presence of someone you love, who you can touch and see.”

2. These proceedings concern the issue of where the children, Z born 2004, Y born in 2006 and Z born in 2011 (“the children”) should live.

3. Ms Aldredge (“the mother”) is the applicant and Mr Kennard (“the father”) is the respondent. The mother, who is now living in Town B, Victoria, says that the children should live with her. The father, who lives on the Region C in Queensland, (where the children lived with both parties until 2019) says the children should live there.

4. This dispute between the parties falls to be determined under the provisions of Part VII of the Family Law Act1975 (Cth) (“the Act”) in the midst of a year when the lives of everybody involved have been disrupted and not just because of the impact of COVID-19.

5. The Court is required to consider and weigh the various proposals and determine what is in the best interests of the children. The mother’s desire to live in Town B (with the children) is of course part of that assessment. However, for the reasons set out below, in my view, the children’s best interests are not met by them living in Town B, but are more likely to be met by them living on the Region C.

Background

1. The mother in 36 years old and the father is 38 years old. The parties commenced a relationship in 2002. The parties commenced living together in the Region E area in early 2004. Z was born in 2004. Y was born in 2006.

2. It appears there was a trial separation in late 2010 and the parties then reconciled in early 2011 after which the youngest child, Z was born in 2011. By the end of 2011 the parties had separated again, after which the children lived with the mother and spent time with the father.

3. In 2014, it appears a decision was made that the parties would move to make a “fresh start” with the children on the Region C. However, three months after that move, the mother had to find her own separate accommodation and the children then lived with her and spent five nights a fortnight with the father.

4. In 2015, the father had a justice of the peace sign a document (which he and the mother had already signed) setting out that he would pay the mother $50.00 each week by way of financial support.

5. In 2016, the children began spending equal time with the mother and the father. This arrangement continued until August 2019. Shortly thereafter, when the mother (after her discussions with the father over her plan to return to Victoria with the children had reached an impasse) left the Region C for Town B. The children remained in the father’s full time care until the end of 2019.

6. Arrangements were made (and return flights were booked) for the children to spend time with the mother in Town B over the December 2019 holidays. In early 2020, the mother took all the children with her to the airport in Victoria (where they were to meet and return with the paternal grandmother to the Region C).

7. Ultimately, only the eldest child did so (and only for a brief period) before returning again to Town B.

8. By that time, the mother had taken steps to enrol all the children in schools in the Town B area and had already made the application which commenced these proceedings.

9. Since being with the mother in Town B, the children (apart from a brief period in Term 1) have been attending schools remotely, unable to participate in extra-curricular activities or school sporting activities due to the impact of State government directives and the lockdowns imposed to deal with the COVID-19 pandemic.

10. Whilst Z (who both parents agree should make her own decision about her living arrangements) has been participating in training for a career in hairdressing it is not controversial this could be pursued in either Queensland or Victoria.

11. Finally, it appears that apart from spending time with him during the Term 2 school holidays on the Region C (pursuant to interim orders made on 12 June 2020) the children have only been able to communicate with and spend time with the father electronically since January 2020.

12. The mother filed her application for parenting orders on 20 January 2020 before the onset of the COVID-19 pandemic. The application was given a first return date of 21 April 2020. The father did not file a response until 26 March 2020. Immediately after doing so, the father’s solicitor, at that time, requested that the matter be listed urgently so that the father could pursue an order for the children to be returned to the Region C on an interim basis.

13. The matter was listed for telephone hearing on 3 April 2020. Both the mother and the father were represented and there were interim parenting orders made for amongst other orders, the preparation of a private family report.

14. The proceedings returned to Court on 15 May 2020.  Again, both parties were represented and orders were made for inter alia the appointment of an Independent Children’s Lawyer and the matter was fixed for an interim hearing via Microsoft Teams on 11 June 2020.

15. The private family report was undertaken electronically in late April 2020 and completed in early May 2020.  The Independent Children’s Lawyer was requested to speak with the children in person and obtain reports from the schools they had and were attending before the Court determined the interim dispute.

16. When the matter came before the Court on 11 June 2020, all parties were represented. The interim hearing was, in substance, in relation to the interim application of the father.  The interim order sought in his response, which was not filed until some months after the children had been, on his case, over held in Victoria was not for a recovery order as such, but that the Court order on an interim basis that the children’s residence be returned to the Region C.

17. At the conclusion of that interim hearing, and after indicating that the proceedings would be expedited for an urgent final hearing for two days on 14 September 2020, the matter was stood over to the following day.

18. When the matter returned to Court on 12 June 2020, again via Microsoft Teams, for the reasons given ex tempore that day there were interim orders made that provided for the parties to have equal shared parental responsibility, Z to decide her own living arrangements (which had been agreed), the younger children to live with the mother and spend time with the father during the Term 2 school holidays on the Region C.

19. Following the interim hearing, the children flew to the Region C and spent time with the father between 27 June and 12 July 2020. By all accounts, that time provided the children with an opportunity for a holiday break including at Town F for four nights of fishing and swimming before retuning again to Victoria.

20. Since then, the children have been able to communicate with the father electronically and he has continued to facilitate Z’s access to a Head Space counsellor.

21. Sadly, like the rest of Victoria the children’s lives have been subject to the progress along a road map to deal with COVID-19 where each of the landmark dates are contingent upon a 14 days average being achieved.

The final hearing

1. The parties largely complied with the orders made for the final hearing. However, on 4 September 2020, the father’s solicitor’ filed a notice of withdrawal leaving the father unrepresented.

2. The final hearing, which began on 14 September 2020, was conducted via Microsoft Teams. The mother was represented by Ms Paterson of Counsel, the father appeared in person and Ms Damon appeared on behalf of the Independent Children’s Lawyer.

3. Whilst the mother filed her affidavit late, the father acknowledged that he was not taken by surprise (given it was largely an updated version of the affidavit that the mother relied on at the interim hearing) and he did not object to her being able to rely on it in the interests of the final hearing being able to proceed as fixed.

4. After the Court was satisfied that the father had had the opportunity to get legal advice the Court explained to him the manner in which the final hearing would proceed, the order of calling witnesses, the right to cross-examine witnesses and the relevant sections of Part VII of the Act (consistent with the principles set out by the Full Court in Re F: Litigants in Person Guidelines [2001] FamCA 348).

5. The parties then called their evidence over the course of 14, 15 and 16 September 2020. At the close of the evidence on 16 September 2020, each of the parties had an opportunity to tender minutes of proposed final orders (and make submissions) in light of the evidence as it transpired during the final hearing.  The Court then reserved its judgment.

Material relied on

1. The mother filed a case outline on 11 September 2020.[1] Counsel for the mother told the Court that her client relied on the following:

   ·    initiating application filed on 20 January 2020;

   ·    mother’s affidavit filed on 4 September 2020 (Exhibit A2);

   ·    child support assessment dated 2 September 2020 (Exhibit A3);

   ·    affidavit of Ms G (the mother’s manager) filed on 10 June 2020 (Exhibit A4);

   ·    document regarding weekly payments dated 14 September 2015 Exhibit A5);

   ·    child support assessments dated July 2011 to July 2013 (Exhibit A6);

   ·    text messages between the mother and the father (Exhibit A7); and

   ·    Queensland government restrictions document dated 13 September 2020 (Exhibit A8).

   [1] The mother’s solicitors had referred to an overseas authority in her case outline: see Re TC and JC (Children: Relocation) [2013] EWHC 292. Counsel for the mother accepted at the beginning of the final hearing that the specific questions posed in that authority do not entirely accord with the principles to applied in Australia: see Babcock & Waddell [2019] FamCAFC 129 at paragraph [124]

2. The father had filed an outline of case on 10 September 2020. The father relied on the following:

   ·    response filed 26 March 2020;

   ·    father’s affidavit filed on 1 September 2020 (Exhibit R2);

   ·    affidavit of Ms H (the father’s partner) filed on 31 August 2020 (Exhibit R3); and

   ·    affidavit of Ms J filed 3 June 2020 (Exhibit R4).

1. Counsel for the Independent Children’s Lawyer told the Court that her instructor relied on the case outline filed on 10 September 2020 and:

   ·    student enrolment information form for Z (Exhibit ICL2);

   ·    student enrolment information form for Y (Exhibit ICL3);

   ·    student enrolment information form for Z (Exhibit ICL4);

   ·    minute of orders, 15 September 2020 (agreed orders) (Exhibit ICL 5);

   ·    family report prepared by Mr K filed on 19 May 2020 (Exhibit ICL 6); and

   ·    amended minute of orders, 16 September 2020 (Exhibit ICL 7).

Initial competing proposals of the parties

The mother

1. The mother’s proposal at the beginning of the final hearing was for the parties to have equal shared parental responsibility, to “be permitted to relocate the children’s residence to Town B” and for them to spend time with the father in school holidays. In the alternative, the mother proposed that upon her returning to the Region C, the children live with each parent week about (see Exhibit A1).

The father

1. The father’s proposal, consistent with his opposition to the children being permitted to live in Town B, was essentially the reverse of the mother’s position (see Exhibit R1).

The Independent Children’s Lawyer

1. The Independent Children’s Lawyer told the Court that, subject to the testing of the evidence, it was in the children’s best interests to live on the Region C and there should be orders consistent with the father’s primary position in that event (see Exhibit ICL1).

The Report

1. As set out earlier, an order had been made pursuant to rule 15.09 of the Federal Circuit Court Rules 2001 for the preparation of a private family report which was filed under affidavit on 19 May 2020 (“the Report”). The Report set out, under the heading “Background” and what was said to be “Current arrangements” at paragraphs [1] to [11].

2. The Report then turned to the “Applications and proposals” at paragraphs [12] to [13]. After this the Report went on to set out the “Issues in Dispute” at paragraph [14].

3. The Report, under the headings “Children and Their Relationships, addressed the report writer’s interviews with each of the children, at paragraphs [33] to [42].

4. The Report under the heading “Evaluation” recorded the following at paragraphs [43] to [73]:

   “43.Mr Kennard and Ms Aldredge present as loving and caring parents who cannot agree where the children will live. Ms Aldredge has effectively already relocated and the children are with her in Town B. Mr Kennard is opposed to such a course of action and wants them to return to Town D.

   44.Given a parental separation, children stand to benefit when both parents are amicable towards each other, overt conflict is kept to a minimum and the children are sheltered from this, the parents communicate effectively and trust each other’s judgement, the parents reside in geographical proximity to each other thus enabling the children to readily access both as well as enabling the children to have their social networks close at hand. Such a scenario is severely compromised when one parent seeks orders to relocate. Given such a situation, reconciling the needs of the parents with those of the children is not an easy task. Relocation disputes are very difficult as there are no readily “good” outcomes available, compromise solutions impossible and losses for all concerned inevitable.

45.It is heartening to note that since the separation in 2014, all arrangements regarding the children were implemented without recourse to litigation and by agreement. It would also seem that each parent made the children available to the other consistently and in keeping with all agreements reached. Furthermore. Intervention Orders were not required. All this attests to a cordial, functional and generally relatively cooperative parental relationship.

46.Following the separation, arrangements for the care of children rapidly progressed to a shared care regime. It is sometimes the case that an equal time, shared care arrangement suits both parents, their lifestyle, work commitments, social life etc. In addition, this kind of arrangement also enables children to have a sound and meaningful relationship with both parents, particularly if a measure of cooperation and civility is available.  In other words, all stood to benefit from such a regime being implemented.

47.In this Counsellor’s experience, relocation matters by large involve a parent applying for orders to move elsewhere. In this case, the Court is presented with a situation where Ms Aldredge has pre-empted such a decision. It is somewhat perplexing that Mr Kennard did not pursue orders for the immediate return of the children.  It is a harsh reality of cases of this nature that one parent will be bitterly disappointed by any decision the Court makes.

48.The parents had different perceptions of what would occur in January 2020 after the children had gone to spend time with Ms Aldredge in Victoria. Namely, whether the children would return to Mr Kennard in Town D, as had been supposedly agreed to, or remain in Victoria, as by then the parents were living in different states. The parents provide tangled accounts as to what had been discussed and agreed to. The weight and significance to be given to such discussions, intentions or to any previous agreement reached is a matter for the Court. 

49.The parents provide arguments for and against a relocation. In the case of Ms Aldredge, she maintains she had limited emotional and practical support available locally. She argues she had only limited emotional and practical supports available in Town D, that her financial resources were strained and that a return to Town B enabled her to readily access the support of her extended family, well-paid employment and less costly accommodation. In this Counsellor’s experience, it is more commonly the case in relocation matters for family violence, chronic and severe conflict, mental health considerations or a need to pursue and progress a new relationship to be identified as factors justifying/warranting a parent’s relocation. These elements are not present in this matter.

50.Mr Kennard opposes Ms Aldredge’s relocation maintaining instead that he had been a very significant part of the children’s lives for some years and that a relocation will have a major impact on the quality of the relationship he enjoys with the children as he will not be able to remain an active and involved presence in their lives thus entailing a significant loss for both him and them.

51.Ms Aldredge saw her condition as a single parent of three children with limited supports available locally as in part motivating her to return to Town B, where she has more family supports available. (Having said this, one wondered how much support her extended family actually provides in comparison to the support provided by Mr Kennard when effectively he had had the care of the children 7 nights out of 14 for two years. It is being suggested that, given such a scenario, Mr Kennard was providing Ms Aldredge with considerable, consistent and regular respite from the responsibilities of parenthood. Whilst the maternal grandparents may provide practical and emotional support, one must wonder whether this is as extensive as the emotional and practical support provided by Mr Kennard when the family lived in Town D.  Furthermore, given the social isolation requirements imposed over the last few months, the practical assistance they have been able to provide would have been limited.

52.Having said this, it may well be the case that Ms Aldredge was anxious about her circumstances and that her isolation from family supports, coupled with financial strain combined were having an unexpressed/unarticulated impact on her. One wonders whether such anxieties were affecting her capacity to appropriately meet many of the children’s needs.

53.Ms Aldredge wants to live in Victoria with the children. Mr Kennard wants them to live in Queensland. Allegedly both parents have endeavoured to influence and sway the children to adopt their particular points of view as to where they will live. The possibility that this has occurred cannot be excluded. The children are old enough to be well aware of the positions of their respective parents and of the outcome each prefers. The children are struggling to maintain a functional and loving relationship with both without incurring the anger one or the other by choosing to live in one town rather than another.

54.The children report being told by Ms Aldredge that, if they really wanted to, they could return to Town D. Ms Aldredge indicated to this Counsellor that she would do this if the children were unhappy in Town B and wanted to return to Town D. It is less clear what she would do if only one or two of them wanted to do so. Such a position is not easy to reconcile with her claim that living in Town D was a struggle financially, that she was socially isolated and unsupported and that these had been significant motivators in her decision to move in the first place. Consequently, even if the children do want to return to Town D, it is difficult to believe that Ms Aldredge would act on this and return there with them.

55.It needs to be noted that Mr Kennard had had the children for a substantial amount of time prior to their return to Town B.  He was not just a “weekend” parent but his time with them had progressed from five nights in a two-week cycle to an equal time arrangement in mid-2016 and this continued until mid-2019 when Ms Aldredge returned to Town B.  And from about July 2019, the children were in his sole care until December 2019. Consequently, when Ms Aldredge removed the children from the area, this would have entailed possible feelings of grief and loss as their capacity to access Mr Kennard, a known and loved parent who  took  a considerable amount of interest in them and had an established relationship with them was  significantly reduced.

56.As a result of the arrangements that had been put in place, one can surmise with some confidence that the children would have found the significant decrease in their capacity to readily and consistently access Mr Kennard distressing and painful. Although they speak positively about life in Town B, relocation will have entailed a significant disruption for them as they left an attractive, liked and familiar environment, involving a change of school, loss of connection with staff and students in that setting,  with a view to returning to Town B, admittedly another known but less familiar environment.

57.Ms Aldredge’s relocation comes at a cost to the children and to Mr Kennard as their relationship is impacted as their capacity to relate is significantly reduced. Ms Aldredge clearly stated that her social and financial circumstances will improve by a relocation. She did not suggest this will have ‘a flow on effect’ on the children but this may well follow. Despite the benefits and advantages Ms Aldredge identifies as stemming from a successful relocation application, there will be drawbacks as a relocation will impact on the relationship the children enjoy with Mr Kennard. Orders requiring the children return to Town D will also entail costs by way of yet again another dislocation, disruption and loss for the children.

58.As a way of preserving the Mr Kennard/children relationship, Ms Aldredge proposes that they could spend a substantial portion of the midterm school holidays with Mr Kennard in Town D, three consecutive weeks with him during the summer holidays also in Town D, and he could see the children whenever able to travel to Town B. She also proposes regular teleconferencing between Mr Kennard and Ms Aldredge as an additional way of maintaining their relationship.

59.The reduction in the amount of time the children spend with Mr Kennard and its consequent impact on their relationship needs to be balanced against the likelihood that Ms Aldredge’s emotional well-being and general functioning will improve if able to remain in Town B where she  feels less isolated,  able to access family and other supports and where she has greater financial security. (As Ms Aldredge’s financial security appears to have been a significant issue and motivator to move, she may feel more inclined to remain in Town D were Mr Kennard to make a realistic financial contribution by way of Child Support or similar. However, this is a matter for the parents.)

60.If ordered to return to Town D, and this is clear option available  to the Court, the children will be returning to a known, liked and familiar environment which includes their schools, neighbourhood and some previously established friendship networks, not to mention being reunited with Mr Kennard and with his partner, Ms H. (In addition, given such an outcome, Ms Aldredge has indicated a preparedness to follow the children to Town D and thus be available to them as well.)

61.The parents have made the equal time. shared care arrangement work. No suggestion has been made that either Ms Aldredge or Mr Kennard have endeavoured to thwart the children’s relationship with the other. To their credit, each has made the children available regularly and consistently in keeping with any agreements reached by readying, preparing and supporting them to spend time with the other paren. As a result of this, the children have been able to develop and maintain a solid and meaningful relationship with both parents. Hence, based on past behaviour and should the children remained in Town B, one can predict that, given sufficient funds, Ms Aldredge will continue to make the children available to Mr Kennard as she has done in the past,

62.A positive factor working in favour of the children, given a relocation, is that they have an established, developed and sound relationship with Mr Kennard. They are all at an age where they can maintain an image of Mr Kennard in their mind so that when reunited with him, he will not come to them a stranger but as a known, loved, and familiar figure. more so if the relationship is supported via teleconferencing.

63.Given the geography, the children’s relationship with Mr Kennard can be supported and maintained by regular teleconferences and both parents are in favour of this. While this can be a handy tool, it can also be problematic logistically and ultimately, one cannot hug a computer. Arrangements implementable given the distance involved between the two households are generally far from ideal as accommodating and somehow reconciling the competing needs of all involved is not an easy matter.

64.Ms Aldredge’s proposal as a way of supporting and maintaining the children/Mr Kennard relationship has some merit. Mr Kennard could also see the children whenever he travels to Town B so as to spend time with his family. The time Ms Aldredge proposes the children spend with Mr Kennard is in excess of the four weeks recreation leave normally available to Mr Kennard. Nonetheless, he was confident that accommodations could be made, and suitable arrangements could be put in place for the care of the children notwithstanding he might be at work at such times.

65.If able to avail himself of what Ms Aldredge is proposing, Mr Kennard could have direct face to face contact with the children four times per year and perhaps more if he travels to Town B.  There seems to be sufficient goodwill, trust, sound communication and capacity to plan as to implement such arrangements successfully. Given the extent of the agreements reached on child issues in the past, these elements are present in this relationship. In other words, Mr Kennard and Ms Aldredge seem to generally have had a capacity to put arrangements in place that are in the interest of the children. This aside, one would be troubled were it to be the case that Mr Kennard endeavours to persuade the children to remain with him in Town D when they first travel there. Such a possibility cannot be completely excluded.

66.Having said this, one is mindful that any decision made by the Court will impact on how the parents relate, and on the nature of their relationship. If orders are made for the children to be returned to Town D, Ms Aldredge’s resentment of Mr Kennard will increase as she will hold him responsible for her predicament. The converse also applies as Mr Kennard will hold Ms Aldredge responsible for the difficulties he is likely to encounter in maintaining and sustaining a relationship with their children.

67.The relationship the children enjoy with Ms Aldredge has intensified as they have lived primarily with her since January. Orders for them to return to Mr Kennard’s care will entail yet again disruption, loss and grief and for Z possibly confusion as well. Through no fault of their own, they have already experienced significant change, displacement and loss. One wonders whether further change loss and disruption is in their interest. It is however worth noting that given the Covid-19 pandemic, it is difficult to argue that the children are settled in their schools. They haven’t had the opportunity to form school-based friendship networks, teachers or to embed themselves in the school environment in general. Consequently, it is difficult to argue that a potential loss of the school environment is a matter warranting consideration.  Furthermore, given the reasons outlined above, the children will very likely cope with orders requiring their return to Town D, more so as Ms Aldredge has indicated her intention to follow them should such orders be made.

68.An unavoidable reality of interstate relocations is that the future financial capacity of one, or both parents, to travel so as to preserve the children’s relationship with the other parent is unknown, impossible to predict and not easy to enforce.

69.Despite the avowed good intentions of Ms Aldredge to make the children available to Mr Kennard, coupled with Mr Kennard’s determination to maintain a relationship with them, the impediments and barriers to maintaining a solid/secure relationship with the children across three states are likely to become increasingly more difficult to surmount with the passage of time. One would be concerned if, once travel restrictions are lifted, Mr Kennard’s contact with the children falls short of what is being proposed. Were this to be the case, there is a likelihood that the Mr Kennard/children relationship will be negatively impacted, if not eroded. 

70.Given the above considerations, there are some doubts in this Counsellor’s mind as to whether the children’s welfare will be advanced by remaining in Town B. However, and ultimately, the vexed issue of Ms Aldredge’s relocation, namely whether the children remain in Town B with her or are returned to Mr Kennard’s care Town D is a matter for the Court.

71.Mr Kennard voiced concerns about whether Ms Aldredge was been sufficiently attentive to the educational needs of the children. One suspects that, in light of the school closures due to the current pandemic, some children are likely struggle with remote learning and underperform as the structures, constraints and supports the school environment provides become no longer available. If Mr Kennard remains concerned about this, the Court may be assisted by information being obtained from the schools as to the children’s engagement, participation, homework tasks completed, progress being made etc.  Having said this, Mr Kennard may well have also struggled to adequately supervise and ensure all three children attend to their educational requirements had they been in his care whilst at work during the last few months. However, this is conjecture. (Should Mr Kennard have ongoing concerns about the quality of care Ms Aldredge provides for the children, he has the option of contacting protective workers at the Department of Human Services who are required to investigate.)

72.The children require both Mr Kennard and Ms Aldredge to cooperatively parent them as to their educational, developmental and other needs. Consequently, the parents need to learn how to deal more directly with each other for the sake of the emotional wellbeing of the children. Having said this, one is very mindful that a decision enabling Ms Aldredge to relocate will impact on how Mr Kennard relates with her, as will any decision made to prevent the relocation will impact on how Ms Aldredge relates with him.  Acceding to the proposal of one parent will result in disappointment, bitterness and anger which will in turn impact on the future parental relationship. Regretfully, this is a common and unavoidable consequence in relocation matters.

73.It is most unfortunate that communication between Mr Kennard and Ms Aldredge can be problematic and inconsistent. Given the many decisions that need making, it is the children who usually pay the price when parents find effective communication difficult. It seems desirable for Mr Kennard and Ms Aldredge to participate in the Parenting Orders Program (POP) so as to redress this situation and assist them re-focus on the needs of their children. Orders will be needed to support this.”

1. Finally, under the heading “Recommendations” at paragraphs [74] to [78] the Report provided:

   “74.Based on information gathered from the parties and held in the documents supplied and in the absence of any evidence to the contrary, then this Counsellor recommends that:

   75.should a decision be made for the children to remain in Town B with Ms Aldredge, that arrangements be made reflecting Ms Aldredge’s proposal as the amount of time the children will spend with Mr Kennard;

   76.should a decision be made for children to be returned to Mr Kennard’s care in Town D, that arrangements be made reflecting Mr Kennard’s proposal as the amount of time the children will spend with Ms Aldredge;

   77.should a decision be made for the children to be returned to Mr Kennard’s care in Town D, the consideration be given to a restoration of an equal time, shared care regime as was the case previously;

   78.orders be made for Mr Kennard and Ms Aldredge to participate in the Parenting Orders Program (POP).”

Evidence at the final hearing

1. I watched the mother give evidence during the final hearing and I accept that it would have been a difficult process for her. The mother’s demeanour as a witness was noteworthy. In the main she gave her evidence in a careful manner with a flat affect and was clearly alive to the need to ensure her evidence was consistent with the final outcome that she sought. Overall, her answers to questions in cross examination left the impression that she was more of a functional parent than one who had her finger on the emotional pulse of her children.

2. The father was unrepresented at the final hearing but managed the Court process well. He was calm and organised. During the course of his evidence he was polite and patient and impressed with an evident grasp of, and focus on, the children’s needs. The only area where he struggled was when pressed on financial issues. I watched the father’s distress during the course of his evidence in cross examination as he despaired as to what would become of the children’s relationship with him. I have no doubt that those tears were genuine.

3. It has not been possible to include every aspect of the evidence at the final hearing. However, just because I have not mentioned something in these reasons does not mean that I have not considered it, and I have taken all of the evidence into account.

The mother’s evidence

1. The mother gave evidence and was cross examined. The mother adopted her affidavit affirmed on 4 September 2020 (which in most part supplemented an earlier version relied on at the interim hearing).

2. In answer to questions from the father in cross examination the mother said she was “always in contact” with the children when she left them unsupervised whilst at work as a tradesperson at the Employer L in Town B. The mother agreed with the proposition put to her by the father that the children’s schooling (via remote learning this year in Town B) was unsupervised.

3. The mother accepted the claim put to her in cross examination by the father that the children had been “well looked after” when living in Queensland.

4. When asked by the father why he had not been put down as a contact person (when the mother enrolled all three children in school at Town B) the mother’s answer was not directly responsive.

5. Tellingly, in response to a question from the father in cross examination about why he had not received pictures or updates on what the children had been doing, the mother said that the children have not had the best year and her response was to the effect that (due to lockdowns) there had been nothing [for the children] to do in Town B.

6. In response to questions from Counsel for the Independent Children’s Lawyer in cross examination the mother made plain that she felt she had no option late in 2019 but to relocate. Counsel for the Independent Children’s Lawyer challenged the mother’s claim that there had been an agreement for her to relocate with the children and the mother said she “decided” there had been an agreement.

7. When confronted with the documentary evidence showing that she had enrolled the children in school (around the time she filed her application) the mother was reluctant to acknowledge the timing was more than coincidental. When asked by Counsel for the Independent Children’s Lawyer why she had not included the father as a contact in the enrolment forms the mother’s desultory response was she “did not think”.

8. In response to questions from Counsel for the Independent Children’s Lawyer the mother admitted that she only told the father that the youngest children were not being returned to Queensland on the day that they were due to do so. The mother admitted that prior to this, no one knew but her and that she had gone through what Counsel for the Independent Children’s Lawyer described as a “charade” of taking the children to the airport.

9. When challenged in the course of cross examination by Counsel for the Independent Children’s Lawyer about her claims why the children did not return, the mother grudgingly admitted it was she who had decided that the youngest children were not returning to the Region C.

10. The mother was asked questions about whether she thought the children had been “sad” or “conflicted” about not returning but her answers made plain that she did not appear to understand that it was possible that they were.

11. Counsel for the Independent Children’s Lawyer obtained admissions from the mother in cross examination that she had always regarded herself as a “single parent” even when the children were spending equal time with both their parents as they had done so for years up until the last quarter of 2019.

12. In response to the questions from Counsel for the Independent Children’s Lawyer in cross examination the mother gave evidence that when she returned home after working in Town B, the youngest children were in bed. The mother said her family (from whom there was no evidence) did not help with the children very often.

13. When asked what she had done to promote the children’s relationship with the father (while they were in Town B) the mother’s response was that she paid their [the children’s] phone bill.

14. In response to questions in reply, the mother gave evidence about how she handled the return of schoolwork for Z and that she did not know what her income would be as a result of the proposed changes to Job Keeper to employees at the Employer L.

15. The mother also gave evidence about a recent child support assessment and that she had not received child support (as such from the father). The mother also gave evidence about what she said the difference in the cost of living was between Town B and the Region C.

Ms G’s evidence

1. The mother also relied on the affidavit of Ms G who is now the manager at the Employer L where the mother has worked since the beginning of the year.

2. Ms G gave evidence and was cross examined. Ms G adopted the affidavit she had sworn on 10 June 2020.

3. Ms G’s evidence was that a previous manager had employed the mother and an executive committee makes the decisions regarding employment at the Employer L. Ms G’s evidence was that she “just did not know” what the situation would be in relation to the mother’s employment at the Employer L when Job Keeper support was reduced or withdrawn and/or lockdown restrictions were changed.

The father’s evidence

1. The father relied on his affidavit filed 1 September 2020. The father gave evidence and was cross examined.

2. In answer to questions in cross examination the father said he had been promoted to supervisor at Employer M in Town D on the Region C in August 2019. When asked about the September 2020 child support assessment he said that he had not received it, his income was now $82,000.00 per annum and he had, since the beginning of this year, been living with his new partner (Ms H) in a four bedroom house for which he was going to be paying $570.00 per week in rent.

3. The father was also questioned in some detail about the living expenses he had and how they were shared in his household since he began living with his new partner.

4. During the course of his evidence in cross examination, the father was taken to the details of the proposed orders in the event that the children were to be either permitted to remain living in Town B or returned to live on the Region C. The father’s evidence in response established broad agreement between he and the mother on arrangements for the children (should either eventuality transpire as well as agreement on a number of other issues). This agreement was ultimately reflected in their respective final proposals at Appendix A and B.

5. The father was also taken, in the course of cross examination to recent advice published by the Queensland Government regarding border controls, quarantine restrictions and other public health directives. The father was questioned about who should be responsible for the cost (set out in those documents) associated with the children undertaking quarantine in the event it was ordered that they were to be returned to live on the Region C. The father’s evidence was that he would quarantine with the children but he believed that the cost should be shared between the parties. Whilst the father acknowledged the income disparity between himself and the mother, but he still said the cost should be shared as “she [the mother] left”.

6. The father was questioned in some detail about financial and child support matters. The father admitted that the mother had told him in 2019 that she was “struggling” financially. The father said that whilst the mother said this, he did not believe that it was necessarily the case. The father said this was so as the children were spending equal time with him (during which he met their costs) and he also paid the school fees and other incidentals including as, and when, requested by the mother (who, he claimed, also had some financial support from her parents).

7. The father was also questioned about his ability to provide care for the children if they were returned to the Region C and he made plain that he could now change his hours of work to do so.

8. On what had been a disputed issue between the parties (at least until the close of evidence), the father’s evidence in cross examination was unequivocal that he had not agreed to the children moving with the mother to Town B. The father acknowledged that there had been many discussions with the mother in 2019. However (and consistent with the thread of text messages exchanged between them as set out in Exhibit A7), the father was unequivocal that he had never agreed to the children moving from the Region C to live in Town B.

9. The father was questioned in cross examination by Counsel for the mother about whether it was possible for him to move to the Town B area. The father’s evidence made clear that given the period of time he had lived on the Region C and invested in establishing a financially secure and sustainable life there it would not be possible for him to move to Town B.

10. The father’s evidence in response to questions from Counsel for the Independent Children’s Lawyer demonstrated that he (unlike the mother) was able to understand that the children (during discussions they each said they had with the children) would not have wanted to have disappointed that parent and may have tailored their responses accordingly.

11. Moreover, the father’s evidence in response to questions from Counsel for the Independent Children’s Lawyer demonstrated beyond dispute how involved he had been with the children in their day to day lives when they lived on the Region C and how well the parties had worked together as functional (but separated) parents during that time.

12. Furthermore, the father’s evidence made clear how much consideration he had given to arrangements should the children return to the Region C and demonstrated a commendable degree of insight on his part as to how that could be effected in a child focussed manner as well as the impact their absence had had on him throughout the course of this year.

The father’s partner’s evidence

1. The father also relied on the affidavit of his partner, Ms H filed on 31 August 2020.

2. Ms H was called to give evidence and was cross examined. Ms H adopted her affidavit and was an unimpeachable witness. I have no hesitation in accepting her evidence. Her answers in cross examination demonstrated that she had a real grasp of the emotional issues affecting the children and each of the parents.

3. Ms H’s evidence in cross examination also demonstrated her willingness and palpable ability to be able to support the father parenting the children should they be ordered to return to the Region C.

The paternal grandmother’s evidence

1. Finally, the father also relied on the affidavit of his mother, Ms J filed on 3 June 2020.

2. Ms J was called to give evidence and was cross examined. Ms J adopted her affidavit.

3. Ms J, in response to questions in cross examination by Counsel for the mother, confirmed that it remained her family’s plan to move to the Region C (however, that this was on hold given that her own elderly father remained isolated due to COVID-19 in a nursing home in Town N).

4. Ms J gave evidence about her attempts to organise additional time with her grandchildren since they had been in Victoria and her interactions with the mother when trying to do so.

5. Ms J’s evidence left the clear impression that she had disapproved of the mother’s actions in bringing the children to Town B and that she believed that the children had been adversely affected by the experience (including the impact of the extended COVID-19 lockdown). The paternal grandmother’s evidence was to the effect that, at least in her estimation, the children were not the same the children they had been and they had been adversely affected as a result of what had happened this year.

6. In response to questions from Counsel for the Independent Children’s Lawyer, the paternal grandmother gave evidence about what transpired at the airport in January 2020, when the children were due to return to the Region C. Ms J’s evidence made clear how upsetting what occurred had been for those involved.

The report writer’s evidence

1. The report writer was called to give evidence and was cross examined. The report writer adopted his affidavit (and the Report annexed to it) filed on 19 May 2020 and his qualifications and basis for his opinion/s was not controversial.

2. The report writer confirmed that he had read the affidavit material which had been filed by the parties for the purposes of the final hearing and was aware of the arrangements the parties had agreed on in the event the children were to live in either Town B or on the Region C.

3. In response to questions from Counsel for the mother, the report writer’s evidence was that in the event that the children were to return to the Region C, he believed (notwithstanding the uncertainty regarding quarantine arrangements) that it was more likely to be in the children’s best interests for there to be a definite date for this to happen. The report writer’s evidence was that he agreed (given the change and disruptions that the children have already endured this year) it was better that they finish the school year in Town B before doing so.

4. The report writer reiterated the position set out in the Report back in May 2020 that (notwithstanding his understanding of the parties agreement on Z making her own call on where she lived) it was his preference for all the children to be together as much as possible. It was the report writer’s evidence that this meant that the geographic proximity of the parents was an important consideration to take into account in this regard.

5. The report writer was asked questions by Counsel for the mother in light of the evidence before the Court about the parties’ respective financial circumstances, and made clear that his view was that it was “incumbent” on the father to meet his financial responsibilities “to the children”.

6. The report writer acknowledged the proposition put to him that the mother’s financial circumstances were likely to be more difficult if (she and) the children were to return to the Region C. Notwithstanding this, the report writer’s evidence was that it was in the children’s best interest for them to be able to “readily access both parents” and at present this could not happen.

7. In response to questions from Counsel for the Independent Children’s Lawyer the report writer agreed that given the COVID-19 lockdown (and remote learning) the children had endured in Victoria it was easier for them to transition back to school on the Region C as it was a familiar area with established friendship groups.

8. The report writer agreed a “firm date” for the children to return to the Region C was preferred as it would give them (and all involved) a “sense of closure” and the father could facilitate any quarantine period.

9. The report writer accepted the proposition that the mother’s financial position should she (as she indicated she would if it was decided the children should live there) return to the Region C would “be tough” unless the father provided more assistance. However, the report writer reiterated (by reference to the Report) that he had real “doubts” about the children’s welfare were they to remain in Town B.

10. Given the evidence of the report writer before the Court, it is timely to recall that it was noted in Albert & Plowman [2020] FamCAFC 23:

    “…

    19.Single experts, either by court appointment or consensual engagement by the parties, are called as witnesses because their qualifications and experience equip them to provide opinion evidence to the Court which is relevant to the determination of the issues in dispute. But they are just witnesses. Their expert opinion evidence is not necessarily decisive of the dispute. Judicial power to decide the legal dispute rests in the hands of the trial judge, not the expert witness.

    20.Additionally, expert witnesses are not witnesses of fact, except as to matters that they directly saw or heard, including for example, that which occurs during interviews they conduct. They express opinions by applying their qualifications and experience to certain factual assumptions. Their opinions can only ever be as reliable as the facts upon which they are premised. If, at trial, the facts assumed by the expert to be true are either not proven or are proven to be incorrect, then the opinion evidence will necessarily be compromised. Moreover, expert witnesses usually breach their remit if they are drawn into and express an opinion about the underlying factual conflict.

    21.As was observed in this jurisdiction long ago (see Hall and Hall (1979) FLC 90-713 at 78,819):

    “… There is no magic in a [single expert report]. A Judge is not bound to accept it and there should never be any suggestion that the [expert] is usurping the role of the court or that the Judge is abdicating his responsibilities…

    …

    While the [single expert]’s views will normally have weight with the court because of his expertise and experience, the [expert] does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the [single expert]…”

    (References omitted)

    22.Those observations have been successively endorsed by the Full Court (see Carpenter & Lunn (2008) FLC 93-377 at [226]-[227]; Friscioni & Friscioni [2010] FamCAFC 108 at [96]-[97]; Bostoi & Bostoi [2011] FamCAFC 132 at [40]-[44]; Whipp & Richards (2012) 257 FLR 395 at [101]), but more importantly by the High Court of Australia, which confirmed a court hearing a dispute under Part VII of the Act is not bound to accept or reject the whole or any part of the evidence given by an expert witness (U v U (2002) 211 CLR 238 at 261).”

1. The Court bears in mind what the authorities have had to say about the weight the Court can and should place on any recommendations such as those made by the report writer in this case. Each of the parties in this matter had an opportunity to cross-examine the report writer. It is for the Court to decide what is in the children’s best interests. In doing so, it is necessary to bear in mind the evidence of the report writer, including giving appropriate weight to his evidence, which I accept, and his recommendations.

Final competing proposals of the parties

1. By the close of the evidence, the parties were able to agree on a number of orders which were in three categories:

   a)irrespective of where the children live;

   b)in the event that the children were permitted to live in Town B; and

   c)in the event that the children were to live on the Region C.

2. These agreements were shaped by the fact (and the parties evidence before the Court) that the mother made it clear, in the event that the children were not permitted to live in Town B, she would return to the Region C and the father’s evidence (which was not challenged) that he could not move.

Final submissions

The mother’s position

1. In closing Counsel for the mother told the Court that in light of the evidence her client’s final primary position was as set out at Appendix A.  This had been drafted with assistance of Counsel for the Independent Children’s Lawyer and reflected each parties’ final primary and alternative positions on the orders that should be made (see Exhibit ICL7).

2. Counsel for the mother rehearsed the evidence before the Court on the historical and current financial circumstances of each party and identified those historical matters which it was said had been established as a result.

3. Counsel for the mother reiterated the reasons her client gave for why she had decided to move to Town B and conceded that the evidence established there had been no agreement for the children to leave the Region C and that the father had made his position in that regard clear at that time.

4. Counsel for the mother noted that the evidence demonstrated that the parents had, throughout the period leading up to her clients move, been able to communicate effectively “about mundane matters of parenting” and this “bodes well for shared care” in the future if it was decided the children should live on the Region C.

5. Counsel for the mother asked the Court to find that the father’s evidence on financial issues “unconvincing” and that he had at no stage made any proposal to assist the mother financially.

6. Finally, the Counsel for the mother asked the Court, in the event that the children were to return to the Region C to live, to find given the parties financial circumstances, that the father was better placed to meet the immediate cost of the quarantine. Counsel for the mother did not qualify or resile from the position conveyed to the Court that her client could also return to the Region C, at or around the same time or shortly thereafter as the children, in the event the Court found (consistent with the position of the Independent Children’s Lawyer) it was in the best interests of the children to live on the Region C.

The father’s position

1. In closing, the father confirmed that in light of the evidence, the final orders he sought were as set out in Appendix B.  As was the case with the mother this had been drafted with assistance of Counsel for the Independent Children’s Lawyer and reflected each parties’ final primary and alternative positions on the orders that should be made (see Exhibit A7).

2. The father told the Court that he wanted “the kids back” on the Region C so he could “be in their life and to support them”.

3. Finally, the father reiterated that his position was he had not agreed to the children’s residence being relocated and he wanted to again “be as big a part of their lives as he had been”.

The Independent Children’s Lawyer’s position

1. Counsel for the Independent Children’s Lawyer told the Court that at the close of the evidence it was her instructor’s position that it was in the children’s best interests that they (return to) live on the Region C.

2. Subject to two matters, Counsel for the Independent Children’s Lawyer told the Court that her client supported the primary position of the father at Appendix B as final orders more likely to be in the children’s best interests and that the parents should share the costs of any quarantine period required.

3. Counsel for the Independent Children’s Lawyer submitted that final orders in those terms were more likely to provide the children with the opportunity to have the chance to have a meaningful relationship with both parents. Indeed, Counsel for the Independent Children’s Lawyer told the Court that, in her instructor’s assessment, it was “the only chance” to give the children that opportunity.

4. Counsel for the Independent Children’s Lawyer noted that this case did not have the “hallmarks” of the usual relocation dispute. This was because there were no allegations of risk or neglect, the children had been spending equal time with both their parents until late 2019 and the evidence was that the parents had worked well together.

5. Counsel for the Independent Children’s Lawyer submitted that the evidence was that the father in this case was not a “sometimes father” and when a decision is made (and whilst there may be seen to be a “winner” and a “loser”) the parents will, sooner rather than later, be able to return to parenting co-operatively and functionally in the children’s bests interests.

6. Counsel for the Independent Children’s Lawyer submitted that if (the) COVID-19 (lockdown) had taught us anything it is that there is no substitute for the presence of someone you love to touch and see and these children needed that and (the physical presence of) their father in their lives again.

7. Counsel for the Independent Children’s Lawyer noted that the relocation of the children to Town B had come at a cost (to them) and whilst financial circumstances were a significant consideration, the mother had had it within her means to have made a child support application before the move to Town B (but did not do so). Counsel for the Independent Children’s Lawyer did not resile from acknowledging that the mother’s financial circumstances will be difficult if the children are returned to the Region C area.  However, it was submitted that this could not be allowed to overwhelm the totality of the other factors that told against anything other than the children living on the Region C and that such an arrangement was more powerfully in the children’s best interests.

8. Counsel for the Independent Children’s Lawyer rehearsed the evidence at the final hearing that it was submitted made clear that the mother had not been the primary carer for a significant period of time before the beginning of 2020 and told the Court that the mother’s actions before and since her move, raised real concerns about the value she placed on the father’s role (in the children’s lives).

9. Counsel for the Independent Children’s Lawyer submitted that the evidence about the mother’s unilateral actions in enrolling he children in schools in Town B indicated that she saw her role as “more important”. It was submitted that there were questions about the mother’s insight into the emotional and psychological needs of the children and the evidence was that the mother had failed to appreciate the inherently conflicted position she had placed the children in when she told the children to tell the father what she said they had told her. It was submitted that all of this reflected poorly on the mother’s understanding of the emotional needs of (and the impact of her actions on) the children.

10. Counsel for the Independent Children’s Lawyer noting the “reality” of the situation in both parents households, the historical reliance on Z to care for the younger children by both parents (the concern about this by the report writer), the lack of evidence in the mother’s case about support were the children to remain living in Town B and the availability and benefit to the children of having the father “readily available” should they live on the Region C submitted orders which provided for this were more likely to be in the children’s best interests.

11. Counsel for the Independent Children’s Lawyer noting the mother’s preference to be near her extended family (pointed to the absence of evidence from any of those people before the Court) and observed that in any event, that factor should not be prioritised over the children’s relationship with the father and what was in their best interests.

12. Moreover, Counsel for the Independent Children’s Lawyer submitted that the evidence was that the children had struggled when separated from either parent and since being removed to Town B, Z had had to seek “solace” from a teacher and Z had needed counselling to cope with the situation.

13. In all the circumstances it was submitted that it was in the children’s best interests for them to be able to return to the Region C (but on 26 December 2020 so they did not have to spend Christmas in quarantine) after which they will be able to have both parents meaningfully involved in their lives and orders which provided for that on a final basis were to be preferred as more likely to be their best interests.

Approach to parenting orders

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   (d)    Error! Hyperlink reference not valid. should agree about the future Error! Hyperlink reference not valid. of their Error! Hyperlink reference not valid.; and

   (e)….”

2. Section 60CA of the Act provides that:

   “In deciding whether to make a particular Error! Hyperlink reference not valid. in relation to a Error! Hyperlink reference not valid., a Error! Hyperlink reference not valid. must regard the best Error! Hyperlink reference not valid. of the Error! Hyperlink reference not valid. as the paramount consideration.”

3. Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.

4. Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility for the child until such time as the child attains the age of 18 years unless the Court makes an order which alters that parental responsibility.

5. Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

6. Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or another child member of the parent’s family or family violence.

7. Sub-section 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

8. 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 first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. 

9. This is provided by s.65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s.65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable. Section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonable practicality’.

10. These principles have been examined in Goode & Goode (2006) FLC 93-286 and in MRR v GR (2010) 240 CLR 461. It is a settled principle that in matters where a parent wants to relocate the residence of a child, that matter is to be determined, like any other parenting matter, in accordance with the statutory provisions under Part VII of the Act (see Sayer & Radcliffe & Anor (2012) 48 Fam LR 298).

11. In Adamson & Adamson (2014) FLC 93-622 at 79, 699 at paragraphs [59]–[60] the Full Court observed:

    “The Court must be sensitive to the wishes and rights of parents to live and work wherever they desire. These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interest where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effect.”

12. The Full Court (Thackray, Murphy and Austin JJ) in Zahawi & Rayne [2016] FamCAFC 90 also said:

    “[47]All applications for parenting orders before the Court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in a competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U :

    ‘…the reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.’

    [48]“Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. …”

13. Recently in Franklyn & Franklyn [2019] FamCAFC 256 at paragraphs [27] to [28], the Full Court observed:

    “There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207–208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.

    While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223 –224, 231 –232; Sampson and Hartnett (No.10) (2007) FLC 93–350; Zanda & Zanda (2014) FLC 93–607 at [132]–[136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262 ).”

14. The parties’ competing proposals, set out at Appendices A and B identifies the issue/s in dispute. Given this, it is now necessary to turn to the consideration of the relevant section 60CC factors, given the evidence in these proceedings in the context of the principles outlined above.

Consideration of factors

1. It is fundamental to the Act that the Court regard the best interests of the children as the paramount consideration.

2. The aims and objects of the Act are to ensure that the best interests of the children is met by:

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

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

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

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

3. In determining the best interests of the children there are two primary considerations and a number of additional considerations to take into account. Having done so, the Court will consider the issue of parental responsibility in light of the foregoing discussion, and the principles set out above to determine what parenting orders should be made.

the benefit to the children in having a meaningful relationship with both of the children’s parents;

1. The parties agree that the children have and should have a meaningful relationship with both of their parents. I am satisfied that each of the parties have tried to embrace that concept historically.

2. Ordinarily it is the children’s best interests to have a meaningful relationship with both parents. The question of what is a meaningful relationship was considered by Brown J in Mazorski & Albright [2007] FamCA 520. At paragraph [26] of that judgment Her Honour concluded that a meaningful involvement is one which is important, significant and valuable to the children.

1. Each party keep the other informed of any medical or health practitioner who is treating the children, including but not limited to general medical practitioner, dentists, counsellor and medical specialists and that each party be at liberty to liaise directly with such practitioners and these orders shall act as authority for such liaison.

2. Each of the parties provide the other with their contact address and telephone numbers and for the other of any change in such address or telephone number as soon as practicable and not later than three days after such change.

3. Both parties be at liberty to liaise directly with the school attended by the children to obtain information about their progress at school and to seek copies of notices, newsletters, reports, photographs and other information normally provided to parents in relation to children.

4. Both parties be permitted to attend/participate in school or extra-curricular activities, functions and/or events normally attended by parents including but not limited to parent teacher interviews and sporting events.

5. Order 1 of the interim orders dated 15 May 2020 (the order appointing the independent children’s lawyer) be discharged

6. Pursuant to s.65DA(s) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follows if a person contravenes these orders and these particulars are included in these orders.

7. Certify pursuant to rule 21.15 of the Federal Circuit Court Rules2001 that this matter reasonably required the employment of advocates.

8. All extant applications be otherwise dismissed.

ANNEXURE A2 – Applicant mother’s alternative position

THE COURT ORDERS BY CONSENT THAT:

1. All previous orders be discharged.

Parental responsibility

1. The parties have equal shared parental responsibility for the children of the relationship namely X born in 2011, Y born in 2006 and Z born in 2004 (“the children”).

THE COURT ORDERS THAT:

Care arrangements

1. The children return to the Region C in Queensland on or before 26 December 2020 and the parties shall forthwith enrol the children at the schools they were attending whilst they were living in Queensland.

2. The child Z live with and spend time with each party in accordance with her wishes.

3. The children, Y and Z return to Town D and if it is required by the Queensland Government as a result of the Covid-19 pandemic that they must spend 14 days in quarantine in a hotel in Queensland, the parties do all acts and things required to ensure that the father enter quarantine with the children, and the father be solely responsible for any cost associated with the quarantine period for himself and the children who enter quarantine with him.

4. Until such time as the mother returns to Town D the children Y and Z live with the father and spend time and communicate with the Mother as follows:

   a)by telephone or any electronic means each Monday, Wednesday and Friday evening from 6pm with the father to initiate the call, and in addition at any reasonable time the children wish to communicate with him.

   b)for ten days in each of the Victorian gazetted first, second and third term holidays on dates to be agreement in writing between the parties, and failing agreement for the first ten days of the holiday period.

   c)for 21 days during the Victorian gazetted long summer holiday period on dates to be agreement in writing between the parties and failing agreement as follows:

   i)the first half in 2020/21 and each alternate year thereafter; and

   ii)the second half in 2021/22 and each alternate year thereafter.

   d)upon the father giving the mother not less than 14 days’ notice in writing of his intention to travel to Victoria during Victorian gazetted school term periods, as follows:

   i)for a maximum of 14 consecutive days in any block period

   ii)during such time the father ensure the children attend school and any of their usual extra-curricular activities.

   e)at such further times as may be agreed upon in writing between the parties

5. For the purposes of the spend time periods referred to in orders 5 and 6 hereof:

   a)the school term and long summer holiday periods commence at midday on the first day of the holiday period and concludes at 6pm on the day prior to the next school term commencing.

   b)the midpoint of the holiday period is 6pm on the 14th or 21st day, as the case may be, or as otherwise agreed between the parties in writing having regard to flights they can obtain for the children.

   c)the parties be equally responsible for the cost of flights for the children to spend time with the father during the said holiday period, with the father to pay for airfares and any transfers associated with the children travelling from Melbourne Tullamarine airport to the Region C, and the mother to pay for airfares and any transfers associated with the children travelling from the Region C to Melbourne Tullamarine airport.

   d)each party provide the other with the flight details and booking reference numbers not less than ten days prior to the scheduled flights.

1. Upon the mother returning to the Region C and obtaining suitable accommodation, the children Y and Z live with each party on a week about basis with changeover to occur at the children’s schools each Monday at the commencement of school or 9am if Monday is a non-school day, with the commencement time to be the first Monday immediately after the mother having obtained the said accommodation. 

2. The children spend half of each Queensland gazetted school holiday period with each party, at such times as may be agreed between the parties in writing but failing agreement as follows:

   a)in even numbered years, the first half with the father and the second half with the mother;

   b)in odd numbered years, the second half with the father and the first half with the mother.

3. For special occasions, the children spend time with each party as follows:

   a)on Mother’s Day, from 5:00pm the evening prior to Mother’s Day until 5:00pm on Mother’s Day, if the children are not already in the Mother’s care;

   b)on Father’s Day, from 5:00pm the evening prior to Father’s Day until 5:00pm on Father’s Day, if the children are not already in the father’s care;

   c)on the Mother’s birthday, from 5:00pm the evening prior to the birthday, until the commencement of school the following morning if the birthday falls on a school day and if the birthday falls on a non-school day from 9:00am on the Mother’s birthday until 9:00am (or the commencement of school the following day) if the children are not already in the care of the Mother.

   d)on the Father’s birthday, from 5:00pm the evening prior to the birthday, until the commencement of school the following morning if the birthday falls on a school day and if the birthday falls on a non-school day from 9:00am on the Father’s birthday until 9:00am (or the commencement of school the following day) if the children are not already in the care of the Father.

e)on each of the children’s birthdays, from 5:00pm the evening prior to the birthday until the commencement of school on the birthday if the birthday falls on a school day and if the birthday falls on a non-school day from 9:00am on the birthday until 2:00pm (or the commencement of school the following day) with the party who the child is not ordinarily in the care of on that day.

THE COURT ORDERS BY CONSENT THAT:

1. Each party who has care of the children forthwith notify the other party of any significant illness or injury suffered by the children, such notification to include the nature of the illness/injury, the details of any treatment received or medication prescribed by medical practitioners and the identity and contact details of the treating health professional and authorise the other party to communicate with such professional if necessary.

2. Each party keep the other informed of any medical or health practitioner who is treating the children, including but not limited to general medical practitioner, dentists, counsellor and medical specialists and that each party be at liberty to liaise directly with such practitioners and these orders shall act as authority for such liaison.

3. Each of the parties provide the other with their contact address and telephone numbers and for the other of any change in such address or telephone number as soon as practicable and not later than three days after such change.

4. Both parties be at liberty to liaise directly with the school attended by the children to obtain information about their progress at school and to seek copies of notices, newsletters, reports, photographs and other information normally provided to parents in relation to children.

5. Both parties be permitted to attend/participate in school or extra-curricular activities, functions and/or events normally attended by parents including but not limited to parent teacher interviews and sporting events.

6. Order 1 of the interim orders dated 15 May 2020 (the order appointing the Independent Children’s Lawyer) be discharged.

7. Pursuant to s.65DA(s) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follows if a person contravenes these orders and these particulars are included in these orders.

8. Certify pursuant to rule 21.15 of the Federal Circuit Court Rules 2001 that this matter reasonably required the employment of advocates.

9. All extant applications be otherwise dismissed.

ANNEXURE B

ANNEXURE B1 – Respondent father’s primary position

THE COURT ORDERS BY CONSENT THAT:

1. All previous orders be discharged.

Parental responsibility

1. The parties have equal shared parental responsibility for the children of the relationship namely X born in 2011, Y born in 2006 and Z born in 2004 (the children).

THE COURT ORDERS THAT:

Care Arrangements

1. The children return to the Region C in Queensland on or before 26 December 2020 and the parties shall forthwith enrol the children at the schools they were attending whilst they were living in Queensland.

2. The child Z live with and spend time with each party in accordance with her wishes.

3. The children, Y and Z return to Town D and if it is required by the Queensland Government as a result of the Covid-19 pandemic that they must spend 14 days in quarantine in a hotel in Queensland, the parties do all acts and things required to ensure that the father enter quarantine with the children, and both parties be solely responsible for any cost associated with the quarantine period for himself and the children who enter quarantine with him.

4. Until such time as the mother returns to Town D the children Y and Z live with the father and spend time and communicate with the Mother as follows:

   a)by telephone or any electronic means each Monday, Wednesday and Friday evening from 6pm with the father to initiate the call, and in addition at any reasonable time the children wish to communicate with him.

   b)for ten days in each of the Victorian gazetted first, second and third term holidays on dates to be agreement in writing between the parties, and failing agreement for the first ten days of the holiday period.

   c)for 21 days during the Victorian gazetted long summer holiday period on dates to be agreement in writing between the parties and failing agreement as follows:

   i)the first half in 2020/21 and each alternate year thereafter; and

   ii)the second half in 2021/22 and each alternate year thereafter.

   d)Upon the father giving the mother not less than 14 days’ notice in writing of his intention to travel to Victoria during Victorian gazetted school term periods, as follows:

   i)for a maximum of 14 consecutive days in any block period

   ii)during such time the father ensure the children attend school and any of their usual extra-curricular activities.

   e)at such further times as may be agreed upon in writing between the parties

5. For the purposes of the spend time periods referred to in orders 5 and 6 hereof:

   a)the school term and long summer holiday periods commence at midday on the first day of the holiday period and concludes at 6pm on the day prior to the next school term commencing.

   b)the midpoint of the holiday period is 6pm on the 14th or 21st day, as the case may be, or as otherwise agreed between the parties in writing having regard to flights they can obtain for the children.

   c)the parties be equally responsible for the cost of flights for the children to spend time with the father during the said holiday period, with the father to pay for airfares and any transfers associated with the children travelling from Melbourne Tullamarine airport to the Region C, and the mother to pay for airfares and any transfers associated with the children travelling from the Region C to Melbourne Tullamarine airport.

   d)each party provide the other with the flight details and booking reference numbers not less than ten days prior to the scheduled flights.

6. Upon the mother returning to the Region C and obtaining suitable accommodation, the children Y and Z live with each party on a week about basis with changeover to occur at the children’s schools each Monday at the commencement of school or 9am if Monday is a non-school day, with the commencement time to be the first Monday immediately after the mother having obtained the said accommodation. 

7. The children spend half of each Queensland gazetted school holiday period with each party, at such times as may be agreed between the parties in writing but failing agreement as follows:

   a)in even numbered years, the first half with the father and the second half with the mother;

   b)in odd numbered years, the second half with the father and the first half with the mother.

8. For special occasions, the children spend time with each party as follows:

   a)on Mother’s Day, from 5:00pm the evening prior to Mother’s Day until 5:00pm on Mother’s Day, if the children are not already in the Mother’s care;

   b)on Father’s Day, from 5:00pm the evening prior to Father’s Day until 5:00pm on Father’s Day, if the children are not already in the father’s care;

   c)on the Mother’s birthday, from 5:00pm the evening prior to the birthday, until the commencement of school the following morning if the birthday falls on a school day and if the birthday falls on a non-school day from 9:00am on the Mother’s birthday until 9:00am (or the commencement of school the following day) if the children are not already in the care of the Mother.

   d)on the Father’s birthday, from 5:00pm the evening prior to the birthday, until the commencement of school the following morning if the birthday falls on a school day and if the birthday falls on a non-school day from 9:00am on the Father’s birthday until 9:00am (or the commencement of school the following day) if the children are not already in the care of the Father.

   e)on each of the children’s birthdays, from 5:00pm the evening prior to the birthday until the commencement of school on the birthday if the birthday falls on a school day and if the birthday falls on a non-school day from 9:00am on the birthday until 2:00pm (or the commencement of school the following day) with the party who the child is not ordinarily in the care of on that day.

THE COURT ORDERS BY CONSENT:

1. Each party who has care of the children forthwith notify the other party of any significant illness or injury suffered by the children, such notification to include the nature of the illness/injury, the details of any treatment received or medication prescribed by medical practitioners and the identity and contact details of the treating health professional and authorise the other party to communicate with such professional if necessary.

2. Each party keep the other informed of any medical or health practitioner who is treating the children, including but not limited to general medical practitioner, dentists, counsellor and medical specialists and that each party be at liberty to liaise directly with such practitioners and these orders shall act as authority for such liaison.

3. Each of the parties provide the other with their contact address and telephone numbers and for the other of any change in such address or telephone number as soon as practicable and not later than three days after such change.

4. Both parties be at liberty to liaise directly with the school attended by the children to obtain information about their progress at school and to seek copies of notices, newsletters, reports, photographs and other information normally provided to parents in relation to children.

5. Both parties be permitted to attend/participate in school or extra-curricular activities, functions and/or events normally attended by parents including but not limited to parent teacher interviews and sporting events.

6. Order 1 of the interim orders dated 15 May 2020 (the order appointing the Independent Children’s Lawyer) be discharged

7. Pursuant to s.65DA(s) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follows if a person contravenes these orders and these particulars are included in these orders.

8. Certify pursuant to rule 21.15 of the Federal Circuit Court Rules 2001 that this matter reasonably required the employment of advocates.

9. All extant applications be otherwise dismissed.

ANNEXURE B2 – Respondent father’s alternative position

THE COURT ORDERS BY CONSENT THAT:

1. All previous orders be discharged.

Parental responsibility

1. The parties have equal shared parental responsibility for the children of the relationship namely X born in 2011, Y born in 2006 and Z born in 2004 (the children).

THE COURT ORDERS THAT:

Care arrangements

1. The mother be permitted to relocate the children’s residence to Town B, Victoria.

2. The children live with the mother.

3. The child Z spend time and communicate with the father in accordance with her wishes.

4. The children Y and Z spend time and communicate with the father as follows:

   a)by telephone or any electronic means each Monday, Wednesday and Friday evening from 6pm with the father to initiate the call, and in addition at any reasonable time the children wish to communicate with him.

   b)for ten days in each of the Victorian gazetted first, second and third term holidays on dates to be agreement in writing between the parties, and failing agreement for the first ten days of the holiday period.

   c)for 21 days during the Victorian gazetted long summer holiday period on dates to be agreement in writing between the parties and failing agreement as follows:

   i)the first half in 2020/21 and each alternate year thereafter; and

   ii)the second half in 2021/22 and each alternate year thereafter.

   d)upon the father giving the mother not less than 14 days’ notice in writing of his intention to travel to Victoria during Victorian gazetted school term periods, as follows:

   i)for a maximum of 14 consecutive days in any block period

   ii)during such time the father ensure the children attend school and any of their usual extra-curricular activities.

   e)at such further times as may be agreed upon in writing between the parties

5. For the purposes of the spend time periods referred to in orders 5 and 6 hereof:

   a)the school term and long summer holiday periods commence at midday on the first day of the holiday period and concludes at 6pm on the day prior to the next school term commencing.

   b)the midpoint of the holiday period is 6pm on the 14th or 21st day, as the case may be, or as otherwise agreed between the parties in writing having regard to flights they can obtain for the children.

   c)the parties be equally responsible for the cost of flights for the children to spend time with the father during the said holiday period, with the father to pay for airfares and any transfers associated with the children travelling from Melbourne Tullamarine airport to the Region C, and the mother to pay for airfares and any transfers associated with the children travelling from the Region C to Melbourne Tullamarine airport.

   d)each party provide the other with the flight details and booking reference numbers not less than ten days prior to the scheduled flights.

THE COURT ORDERS BY CONSENT THAT:

1. Each party who has care of the children forthwith notify the other party of any significant illness or injury suffered by the children, such notification to include the nature of the illness/injury, the details of any treatment received or medication prescribed by medical practitioners and the identity and contact details of the treating health professional and authorise the other party to communicate with such professional if necessary.

2. Each party keep the other informed of any medical or health practitioner who is treating the children, including but not limited to general medical practitioner, dentists, counsellor and medical specialists and that each party be at liberty to liaise directly with such practitioners and these orders shall act as authority for such liaison.

3. Each of the parties provide the other with their contact address and telephone numbers and for the other of any change in such address or telephone number as soon as practicable and not later than three days after such change.

4. Both parties be at liberty to liaise directly with the school attended by the children to obtain information about their progress at school and to seek copies of notices, newsletters, reports, photographs and other information normally provided to parents in relation to children.

5. Both parties be permitted to attend/participate in school or extra-curricular activities, functions and/or events normally attended by parents including but not limited to parent teacher interviews and sporting events.

6. Order 1 of the interim orders dated 15 May 2020 (the order appointing the Independent Children’s Lawyer) be discharged.

7. Pursuant to s.65DA(s) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follows if a person contravenes these orders and these particulars are included in these orders.

8. Certify pursuant to rule 21.15 of the Federal Circuit Court Rules2001 that this matter reasonably required the employment of advocates.

9. All extant applications be otherwise dismissed.