Alford and Clayton

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALFORD & CLAYTON

[2014] FCCA 1148

Catchwords:
FAMILY LAW – Parenting – relocation of two young children aged 4 and 2 years old – unilateral relocation by the mother – interim orders providing the children live with the father – effect of further change on the children – capacity of each of the parents to attend to children’s needs – onerous travel on either party’s proposal – father’s alternative proposal of children living primarily with the mother should she agree to again relocate herself to Northern Tasmania.

Legislation:

Family Law Act 1975

Evidence Act 1994

Champness & Hanson [2009] FamCA FC 96
Hall & Hall (1979) FLC 90-713
Hepburn & Noble (2010) FLC 93-438
Makita (Australia) Proprietary Limited v Sprowles (2001) 52 NSWLR 705
McCall & Clark (2009) FLC 93-405
MRR v GR (2010) 240 CLR 461
Paskandy & Paskandy (1999) FLC 92-878
Taylor & Barker (2007) FLC 93-345

Applicant:

MR ALFORD

Respondent:

MS CLAYTON

File Number:

HBC 924 of 2013

Judgment of:

Judge McGuire

Hearing dates:

27 – 29 May 2014

Date of Last Submission:

29 May 2014

Delivered at:

Melbourne

Delivered on:

11 July 2014

REPRESENTATION

Counsel for the Applicant:

Ms Mooney

Solicitors for the Applicant:

Bartletts Barristers & Solicitors

Counsel for the Respondent:

Ms Rofe

Solicitors for the Respondent:

Wallace Wilkinson & Webster

ORDERS

That all extant orders in respect of the children X born (omitted) 2010 (aged 4 years) (“X”) and Y born (omitted) 2012 (aged 23 months) (“Y”) be discharged.
That the applicant father, Mr Alford and the Respondent mother, Ms Clayton, have equal shared parental responsibility for X and Y.
That X & Y live with the Father.
That X & Y spend time and communicate with the Mother as follows:
(a)Until the start of the 2015 school year, for a block period of one week (seven nights) every three weeks, to commence in a week in which the Father is working day shift;
(b)That for the purposes of the time that the children spend with the Mother referred to in Order 4 (a) above the one week block period shall commence and conclude on a Sunday;
(c)From the commencement of school in term 1 2015:
(i)For the duration of each school first, second and third term gazetted school holiday period with the children returned to the Father in accordance with the changeover provisions in Order 6 herein by 1.00pm on the Saturday prior to school recommencing; and
(ii)For two weekends in (omitted) per school term.
(d)On Y’s birthday in 2014 for such period as may be agreed between the parents.
(e)On the children’s birthdays in 2015 and each year thereafter:
(i)On the weekend immediately following the child’s birthday if the child’s birthday falls on a school day from Friday at 6.30pm until Sunday at 4.00pm or alternatively;
(ii)On the child’s birthday from 6.30pm the day before the child’s birthday until 4.00pm on the child’s birthday in the event that the child’s birthday falls on a weekend or public holiday.
(f)In the summer school holidays in 2014/2015 and each alternate year thereafter from 4.00pm on Christmas Eve until 4.00pm on 28 December and thereafter for two non-consecutive 7 day block periods during the Christmas/Summer school holidays with the children as agreed between the parties as to the precise weeks and failing agreement then at the election of the mother;
(g)In the summer school holidays in 2015/2016 and each alternate year thereafter from 28^th of December from 4.00pm until 4.00pm on New Year’s Day and thereafter for two non-consecutive 7 day block periods during the Christmas/Summer school holidays with the children as agreed between the parties as to precise weeks and failing agreement then at the election of the father.
(h)Should Easter not coincide with the children’s term holidays then At Easter time in 2015 and each alternate year thereafter from 1.00pm Easter Sunday until 1.00pm Easter Tuesday; and at Easter time in 2016 and each alternate year thereafter from 1.00pm Good Friday until 1.00pm Easter Sunday;
(i)By telephone and any other media at any reasonable time and the father to assist and make the children available to communicate with the mother and that reasonable communication with the children likewise be available to the father and the children during any periods that the children are in the mother’s care.
(j)At such other times and variations of the above as can be agreed between the parties in writing or email.
Despite any other provisions herein, the children spend Mother’s Day with the Mother and Father’s Day with the Father between the hours of 9:00am and 7:00pm provided that the parent exercising such time give the other parent not less than fourteen days prior notice in writing or email of that parent’s intention to exercise such time.
That changeovers shall occur at the Maternal Grandparents’ residence in (omitted) unless agreed otherwise by the parents in writing or email.
Provided that should the mother, within 3 calendar months of the date of these orders, relocate to live permanently in (omitted) or closer to (omitted) then X and Y live with the mother.
That should X and Y live with the mother then they spend time and communicate with the father as follows:
(a)Each second weekend between Friday at 5.00pm and Sunday at 5.00pm with the changeovers to occur at (omitted) in Tasmania or otherwise agreed between the parties in writing.
(b)For one half of the Tasmanian school holidays and on special days as agreed between the parents provided in any event that the children spend Christmas 2014 and in each alternate year thereafter with the father between 4.00pm on 28 December and 4.00pm on 1 January in 2015 and Christmas 2015 and in alternate year thereafter between 4.00pm on Christmas Eve until 4.00pm 28 December or otherwise as agreed between the parents in writing.
(c)By telephone or other media at any reasonable time and the mother assist and make the children available to communicate with the father and that reasonable communication with the children be available to the mother and the children during any periods that the children are in the father’s care.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HOBART

HBC 924 of 2013

MR ALFORD

Applicant

And

MS CLAYTON

Respondent

REASONS FOR JUDGMENT

These proceedings concern two children, namely X, born (omitted) 2010 (aged four years) and Y, born (omitted) 2012 (aged 22 months).
In December 2013 the mother moved to (omitted), south of Hobart, with the children. She did so unilaterally. She now wants an order of the Court that X and Y be permitted to live with her at (omitted).
On 7 February 2014 the father obtained an interim order in his favour, which sees the children living with him at (omitted) in far north-western Tasmania. He opposes the mother’s application to relocate the children.
The travelling time by car between (omitted) and (omitted) is conservatively about six hours and closer to seven hours by bus.
The applicant father seeks orders in the following terms:
a)That he and the mother have equal shared parental responsibility for X and Y;
b)That the children live with him;
c)That the children spend time and communicate with the mother as follows:
i)Until the start of the 2015 school year, for periods of one week in every three week cycle and so as to coincide with his day shift in his employment with (employer omitted) at (omitted).
ii)From the commencement of term 1 in 2015, then for two weekends in each term such to take place in (omitted) at the maternal grandparents’ home and for the majority, if not all, of the school term holidays together with two seven day periods in the summer holidays;
iii)Time on special days.
d)The father proposes that changeovers occur in (omitted).
The mother also argues for equal shared parental responsibility.
The mother proposes that the children spend one week with the father and two weeks with her in a cycle until X commences school in February 2015. Together with a period of 7 days on four occasions throughout the year, provided that the father gives at least 28 days notice and that such time does not coincide with special occasions.
As from the commencement of the next school year she seeks orders whereby that the children spend each third weekend with the father (presumably in (omitted)) between Friday evening and Sunday evening, extending to the Monday in the event of a non-school day or public holiday and for one half of school holidays and time on special occasions.
The mother also proposes that changeovers take place in (omitted).
The father is 38 years of age. He is employed as a (omitted) at a (employer omitted). He works a three weekly rotation of two weeks of day shifts and one week of night shifts. His day shifts start at 4.45 am and end at 1.30 pm although he regularly takes overtime up until about 4 pm. Night shift runs from 9.40 pm until 6 am.
The father is in a relationship with Ms S and has been since about August 2013. They do not live together although she spends four or five nights per week with Mr Alford. She otherwise lives with her parents. She is employed at the same (employer omitted) as the father but has regular hours starting at 6 am.
Ms S, her mother and/or her sister all assist the father in getting the children to day care in the morning.
The children currently go to two different childcare centres. One opens at 6 am and the other at 7 am. When on day shift, Mr Alford relies on Ms M or her family to get the children up and to deposit them at the childcare centre. They enjoy breakfast at the centre.
Mr Alford has no other family connections in the (omitted) area.
The mother is 30 years old. She is originally from (omitted) and her family continue to live in that region.
Since August 2013 the mother has been in a relationship with Mr S. He lives at (omitted) which is a suburb of Hobart but on the other side of the city to (omitted). He continues to live under the same roof as his former partner who is the mother of his daughter, Z (aged six years). The mother claims Mr A to be Z’s primary carer.
The mother has an employment contract as a (omitted) with (employer omitted) in Hobart city. She has, however, been off work without pay from late February or early March citing some health problems. She intends to return to this employment. She has otherwise been in receipt of Centrelink benefits and her rental obligation in (omitted) is subsidised as to one half by Mr A.
The parents commenced a relationship in South Australia in December 2008. In March 2010 they moved to (omitted) and X was born on (omitted) 2010.
The mother says that the parties separated approximately one month before X’s birth being in (omitted) 2010. Despite that claimed separation, the mother moved with the father to (omitted) in the far north-west of Tasmania in September 2011. They later moved into (omitted) together and have lived together in a number of properties in that town. Further, and despite this scenario and the mother’s claim as to the date of separation, Y was born to the parents on (omitted) 2012.
Little turns on whether or not these parents separated in 2010 or later within the context of the dispute now before me. It is agreed that they remained living under the one roof and hence the children had the benefit of both their parents in their home until August 2013 when the father took up his own accommodation but still in (omitted). It was in this month that each of the parents acknowledge commencing their new and current relationships.
The mother obtained work with (employer omitted) in (omitted) which obligated her about 20 hours per fortnight, including some shifts on weekdays and one on weekends. The father cared for the children each second weekend and would regularly come to the mother’s home to look after the children there whilst she was at work. Neither party saw the need to validate these arrangements by Court orders.
In the latter half of 2013 the mother raised with the father her desire to move with the children to Hobart. He did not give his consent. There was some mediation on the issue which was unsuccessful.
On 14 December 2013 the mother unilaterally relocated with the children to Hobart. She and X and Y initially took up residence for some weeks with Mr A, his former partner and their daughter. She later obtained her own accommodation in (omitted).
The mother did not seek the sanction of the court for her move by bringing an application. This task was left to the father who initiated the proceedings on 23 December 2013 seeking the return of the children to (omitted).
The father spent a number of weeks with the children and with the consent of the mother prior to his recovery order/interim application being heard by Judge Baker on 7 February 2014. He had also cared for the children during times in late 2013 when the mother had travelled to Hobart to pursue her employment and accommodation arrangements.
On 7 February 2014 and after a defended hearing, interim orders were made for X and Y to live with the father in (omitted) and spend time with the mother each third weekend from the Friday until the following Tuesday, together with some special days. Her Honour made an order for a Family Report.

The Father’s Case

The father says that the children’s best interests are served by living with him. He argues that he has a support network through his partner, Ms S, and her family which has operated without evidence of any negative effect on the children. He says that he can provide relative stability and routine for these children who have suffered some trauma by reason of their mother unilaterally removing them from (omitted) in December last year. He says that this action is indicative of the mother’s lack of insight into the children’s needs and her tendency to prioritise her own needs over those of the children.
Significantly, the father says that he can and will encourage and facilitate the children’s relationship with their mother as evidenced by the submission of his counsel after the completion of the evidence to the effect that he would concede that the children live mainly with the mother provided that she moves to (omitted) or closer to (omitted). This concession fits with his argument that the mother’s proposal offers unsustainable and impractical travel for these young children between (omitted) and (omitted).
Despite the alternative option that the husband instructed his counsel to put in final submissions, he maintains that should the mother reject that proposal then the children’s best interests are served by them living with him.
The mother did reject the father’s alternative proposal. Nevertheless, the parties were made aware that such an option remains open to me given that I am not required simply to choose between the options put by the parties but am able to formulate my own proposal for the children’s living arrangements if I consider those to be in the best interests of X and Y.
The father’s argument also references his concerns as to the mother’s health given a previous diagnosis of postnatal depression and her tendency towards “unhappiness” in various previous locations. He says that he has concerns about the lack of consistent or reliable support for the mother in Hobart whereas her own mother and family live in (omitted) and he has support from Ms S and her family in (omitted).
The father raises some concerns in respect of the mother’s previous gambling tendencies although that issue was wisely not pursued with any vigour.

The Mother’s Case

The mother says that she has been the “primary” carer for the children based on she being a stay-at-home mother for much of their formative years whilst the father pursued employment. She says that the children have exhibited some behavioural problems including X bed‑wetting and urges me to link these difficulties with the children’s removal from her as their major carer. Ms J argues that she offers the children a more consistent routine where, although she will also use child carers, they will only be during the relatively short periods of her shifts with (employer omitted) and she would not need to enlist early morning and multiple assistance as does the father.
The mother says that she is happier since she has moved to Hobart and I am asked to infer that this will have a positive impact on her parenting.
The mother raised historical allegations of family violence within the broad definition of that term in the Family Law Act1975 (“the Act”). The Family Reporter relayed the mother’s version of history in this regard. Wisely, given the state of the evidence, neither party urged me to place any weight pursuant to section 60CC(2)(b) on this factor. Nevertheless, it is proper that these reasons note that the mother had previously obtained an intervention order against the father. He was also charged with assault but those police charges were later dismissed. The Family Reporter properly noted that any issues of violence between these parties was, at most, situational within the context of their separation. There is no evidence of violence being perpetrated upon either of the children.

The Evidence

The mother relied on her trial affidavit filed 17 May 2014. She adduced evidence from Mr A and her mother, Ms J.
The father’s trial affidavit was filed 16 May 2014. He adduced evidence from his partner, Ms S, and from her mother, Ms M.
All witnesses were cross-examined with Ms M attending by telephone.

The Family Report

The court was provided with a Family Report dated 8 April 2014 and prepared by a family consultant based in (omitted), Ms H. Ms H has social work qualifications. She conducted interviews and observations with the parties and the children and each party’s new partner on 25 March 2014.
Ms H recommended that the parents have equal shared parental responsibility for X and Y and that the children live with their mother in (omitted). She recommended that the children spend time with their father each fourth week from 5 pm Friday until 5 pm Tuesday until X commences school (which is agreed to be in February 2015) and then the children see their father each third weekend from 7 pm Friday until 5 pm Sunday as well as on special days and that school holiday time be shared. Until X commences school next year, Ms H proposes that the father have “holiday time with the children up to six days and five nights on four occasions through the year.” She proposes telephone contact between the children and their father three times per week.
Ms H was vigorously cross-examined by counsel for each of the parties as to the accuracy of her observations. More significantly, she was challenged as to the following:
a)her methodology;
b)her preparedness to conclude or speculate outside her field of expertise as a social worker;
c)her reliance upon unpublished social theory articles and particularly within an environment of current critical debate on the relevant social theory; and
d)her tendency to arrive at assumptions or conclusions without apparent nexus to her observations or to the material provided to her.
Counsel for the mother, not surprisingly, urged the Court to adopt the recommendations of the Family Reporter and, by implication, to accept the report as authoritative and weighty. Counsel for the father, on the other hand, considered making an application for the report to be struck out in its entirety, given numerous complaints in respect of the issues set out above. That application was not pursued although counsel urged the Court to place minimal or nil weight on the conclusions and recommendations of the Family Reporter.

Family reports are by their nature prima facie important pieces of evidence. They are prepared by individuals with particular qualifications, experience and expertise. They are ordered so as to assist the court and the parties in having the benefit of a learned and objective observation and opinion in respect of their children’s issues. They serve a second important purpose in providing the Court with particular expertise, usually in the social and behavioural sciences, which judges ordinarily would not hold. Such significance is enshrined in section 79 of the Evidence Act 1995 which provides, as an exception to general inadmissibility of opinion evidence (despite the inclusion of section 69ZT of the Family Law Act):
(1) if a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
(2) To avoid doubt, and without limiting subsection (1):
(a) a reference in that subsection to a specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse); and
(b) a reference in that section to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following:
(i) the development and behaviour of children generally;
(ii) the development and behaviour or children who have been victims of sexual offences, or offences similar to sexual offences.
During the process of this Family Report being read into evidence, I inquired of the counsel for each of the parties as to whether they challenged the qualifications of Ms H. They did not. During the course of her cross-examination she indicated experience of some 20 years.
Given her challenge as to the conclusions of the Family Reporter, counsel for the father, not surprisingly, referred me to the well-known and leading authority of Makita (Australia) Proprietary Limited v Sprowles[1] and the judgment of Heydon JA (as he then was) as follows:
If evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’ expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the Court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v the Queen (1999) 197 CLR 414 (at 428 [41]), on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise.
[1] (2001) 52 NSWLR 705
The proper consideration and treatment of Family Report evidence was summarised as long ago as 1979 by the Full Court in Hall and Hall[2] in the following terms:
(a) There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the Court or that the Judge is abdicating his responsibilities. In Wood (1976) FLC 90-098 at p.75447: Harris and Harris (1977) FLC 90-276: (1977) 29 FLR 285.
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the Court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor 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 counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
(g) It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.
(h) Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation.
[2] (1979) FLC 90-713
Ms H’s methodology appeared to be consistent with usual practice of interviews of the parties, other relevant adults, and observations of the children with the parents.
I harbour some concerns, however, as to Ms H’s apparent reliance on unpublished social theory on page 19 of her report, and referenced at paragraph 56 as follows:
Using the suggested table for determining post-separation overnight care of children between zero and 48 months, as X and Y fall into this range, it would appear that lower frequency overnights (1-4 per month) are indicated in this particular family circumstance for the following reasons:
·The children are seen to be safe in the care of each parent.
·The children have established a trusting relationship with their parents.
·The children are beginning to be soothed and comforted by their father when their mother is not present.
·Y has medical needs (ear/hearing issues) that Ms J expressed more awareness of and has a greater ability to meet.
·X has exhibited intense upset indicating emotional distress.
·Y has exhibited unsettled, clingy and overtly attention-seeking behaviour creating concern about his emotional state.
·Both parents value the children’s relationship with the other parent, but Ms J gave greater expression and awareness of this.
·The parents do not live in a manageable commute from each other.
Some of the factual conclusions and observations above are undoubtedly true, such as “the parents not living in a manageable commute from each other”. Others, however, do not sit comfortably with the evidence and such as “the children are beginning to be soothed and comforted by their father when their mother is not present”. There is no nexus to such a conclusion obvious from either the text of Ms H’s report or the evidence before me. That is, I have no evidence that the children have not previously been, or been able “to be soothed and comforted by their father…” such as they are now “beginning” to do so. To the contrary, the evidence is that these children have had the benefit of both of their parents in the household for their formative years. Further, they have now lived with their father since early February 2014. As such, the premise for Ms H’s conclusion is not evident in the evidence.
Similarly, at paragraphs 44 and 45 of her report, Ms H references an observation of X becoming upset or “extremely distressed” upon leaving a doll in her mother’s car. Ms H moves from this observation to the following conclusion:
It is considered X’s response to missing a previously loved doll is possibly representative of X’s sense of sadness and loss at leaving her mother. The doll was located at Ms J’s home the weekend gone and it was from there the child decided to take it with her to her father’s home. It is not a stretch to think it could well have been seen to be at least a memento if not representative of her mother. The extremeness of X’s uncontrolled wailing and sobbing is an indication of the very real and painful emotions X is experiencing at parting from her mother. She is not a secure and happy child.
Ms H has qualifications in social work but is not a psychologist or psychiatrist. To her credit, in cross-examination she conceded that there may be any number of other rationale for X’s behaviour other than only drawing the psychological connection between a mislaid doll and separation anxiety from the mother. Put simply, I am not satisfied that Ms H has the qualifications to draw such conclusions or that such a conclusion necessarily follows the premise. The difficulty with this logic is that it has the capacity to contaminate the reporter’s thought process leading to conclusions and recommendations without any evident evaluation of the evidence and tends to devalue the forensic effect of the report itself.
I share the concerns of counsel for the father in respect of other aspects of the report. For example, Ms H concludes that “Ms J expressed more awareness of and has a greater ability to meet” Y’s medical needs. The evidence before me is that Y required grommets and that the father attended to this process. I can find no evidence either in the text of the report or other evidence of the father lacking “awareness” or neglecting this child’s medical needs. When pressed, Ms H conceded that she reached her conclusion on the basis of the mother voluntarily mentioning the subject during interviews whereas the father did not. I agree with counsel that the simple fact of the father failing to raise an issue does not equate to neglect or lack of awareness. For instance, he may have viewed the particular issue to be resolved and not worthy of mention. I am again troubled by the logical process of deduction followed by Ms H. My concerns are compounded by her admission in cross-examination that she may have been inconsistent in her interview process in not offering the same questions to each of the parties so as to elicit their responses. To my mind, inconsistency in the interview process can lead to unsound or unreliable responses or conclusions.
Finally, I am of the view that Ms H’s report suffers by the reliance on particular social theory, some of which seems unpublished and therefore untested by peer review. It was put to Ms H by both counsel and myself that there is current vigorous debate between social theorists in the children’s family law field. She agreed that she was aware of the debate but maintained that her cited social theory provided “a lens” for her consideration and conclusions. I respectfully suggest that her apparent reliance upon such particular social theory in the light of such volatile professional debate is unsafe and leaves her prone to bald and unreliable conclusions as evidenced by her comment at paragraph 59 of the family report as follows:
It is accepted that children thrive more and developmentally mature with greater ease if their emotional, social and needs are met. This occurs best when they are living with both their parents. When parents separate, this occurs best when they reside primarily with the parent with whom they have spent the most time and who has met their needs more often. This is especially the case for infants and very young children. They have a unique developmental vulnerability at this stage of life and this is acknowledged by most who offer a view on the topic.
For X and Y, the parent that best meets their needs at this stage in their life is their mother. This view is based on the greater amount of parental care Ms J has offered both children in the first months of life up until February 2014. It is fortified by the fact she can presently offer them a greater amount of direct parental care than they are currently receiving from their father. Further, she offers a continuity of care into the future and that is not dependent on other caregivers assisting her. Mr Alford is highly dependent on Ms M and if this relationship were to falter, his ability to care adequately for his children is placed in jeopardy.
I make the following observations in respect of the preceding paragraph.
There is no evidence before me that the relationship between Mr Alford and Ms M is other than a committed one. Neither was challenged as to the durability of that relationship. There is no suggestion in the family report of any pending separation between Mr Alford and Ms M.
The evidence suggests that X and Y have had the benefit of both parents in their home until August 2013 and have since spent considerable, regular and frequent time with each parent. Indeed, any “primary” role has since early February 2014 rested with the father and their contact with the mother has been infrequent by reason of her move to southern Tasmania;
No expert (or other) evidence was adduced (or available to Ms H) to demonstrate any negative impact on the children of the father’s care of them or his arrangements for their early morning care.
Ms H’s use of phrases such as “it is accepted…” and “…this is acknowledged by most who offer a view on the topic…” is of little assistance in providing me with the support of any settled social theory on the issues that I must consider in determining these children’s living arrangements and their best interests.
Having considered this family report carefully as to its content, methodology, conclusions and recommendations, together with having had the benefit of Ms H’s cross-examination, I am not satisfied that her recommendations are based on sound logical deduction, uncontroversial social theory, or a methodology consistent with her particular qualifications. Whilst some of the empirical evidence from the observations of Ms H remain of assistance and relevant to me, I cannot place any, or any considerable, weight on her conclusions and recommendations.

The Witnesses

I consider that both parents gave their evidence in a candid and honest fashion. The mother was prepared to acknowledge her error in the unilateral relocation and the impact it has had on her children. She acknowledged that her affidavit was lacking in explanation as to why she has not spent more time with the children since the interim orders, particularly given the fact that we now know that she has not been engaged in her employment over the recent months. Her tendency to blame the father in this respect was unconvincing. Overall, I found her to be an honest witness albeit with many of her responses showing the understandable conundrum facing her between her love of the children and her desire to move on with her personal life.
The father was also a good and honest witness. He appeared at times rigid in his viewpoints generally and in respect of the children’s relationship with both he and the mother. He did not impress as a person who might be readily adaptable or flexible. His responses were generally child-focused.
The supportive witnesses for each of the parties were generally impressive. Both Ms S and Ms M showed their support and commitment to the father’s care of his children and any speculative criticism as to the durability of relationships is unjustified. Similarly, Mr A and the maternal grandmother, Ms J, were both impressive in their support and commitment to the mother and to the children. Whilst the current domestic circumstances of each of the father and the mother are perhaps unusual, any concerns in this regard are mitigated by the support that each can enlist both actually and emotionally.

The Law

Part VII of the Act provides the legislative base for parenting orders. Notably, there is no specific reference to the notion of “relocation” in the Act. Rather, the court must, as in all parenting matters, determine orders that are in the best interests of the children and reasonably practicable in their operation. It follows that where there is a dispute between parents as to the living arrangements for their children then a proposal by one parent to relocate children illuminates many of the considerations that a court must reference in determining those best interests. For instance, a relocation will normally present a substantial change for children in the nature of their relationships with each of their parents. One parent might assume the total day-to-day care role for the children whilst the children’s time with the remaining parent might be limited to school holidays or less frequent weekends. Relocations often introduce practical issues of travel and the expense for children to maintain relationships with the remaining parent. Matters involving relocation emphasise the two limbs of consideration for the court being a consideration of children’s best interests but also the reasonable practicality of proposals and statutory options for their care.[3]
[3] MRR v GR (2010) 240 CLR 461
In determining children’s best interests the court is obliged to reference a number of factors set out in section 60CC of the Act. The framework for that pragmatic consideration is provided in section 60B which sets out the objects and principles of the part of the legislation as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

The court’s consideration and determination of the children’s best interests follows a statutory course from a presumption provided in the Act[4] that parents have equal shared parental responsibility for their children. “Parent responsibility” is defined[5] as “…all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” Parental responsibility usually manifests in long-term decisions for children rather than those affecting their day-to-day lives.
[4] section 61DA(1) of the Act
[5] Section 61B of the Act
The presumption does not apply if there are reasonable grounds for the court to find that a parent of a child (or a person who lives with a parent of a child) has engaged in abuse of the child, or another child in that home, or in family violence. Alternatively, the presumption is rebutted by evidence satisfying a court that it would not be in the best interests of the children for the parents to exercise equal shared parental responsibility.
In the matter now before me, and despite some references to family violence, the parents agree that there should be an order for equal shared parental responsibility. In discussions with counsel, and considering the state of the prima face evidence, no issues of family violence were prosecuted with any vigour.
Significantly, if there is an order for equal shared parental responsibility then the court is obliged to consider specific options as to the children’s parenting. Firstly, the court must consider whether the children’s best interests are served by them spending equal time between their parents and such a regime is reasonably practicably. The significance in matters involving relocation of children is clear. The geographical constraints will usually render equal time between parents impracticable. If the answer to either of the questions above is in the negative then the court must move to consider whether the children spending substantial and significant time between their parents is both in their best interests and reasonably practicable.
For the purposes of section (2), a child will be taken to spend substantial and significant time with a parent only if:
a)the time the child spend with the parent includes both:
i)days that fall on weekends and holidays; and
ii)days that do not fall on weekends or holidays; and
b)the time the child spends with the parent allows the parent to be involved in:
i)the child’s daily routine; and
ii)occasions and events that are of particular significance to the child; and
c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The mother’s commitment to live some considerable distance from the father effectively removes any possibility of a regime of “substantial and significant time” for these children between their parents and again highlights the difficulties in the court’s consideration where factors of geography and travel logistics impact on those statutory considerations of equal time and substantial and significant time. The father says that he will not contemplate a move for himself closer to the mother.
The nature of the consideration for the court, being children’s best interests, implies that there is no presumption against the relocation of children, nor is such a relocation prohibited. It follows that a proposal to relocate children is simply one amongst many considerations for the court in ultimately determining the children’s best interests. As such, it is not proper for the court to separate the issues of, firstly, with whom a parent should live and then, secondly and separately, whether a relocation should be “permitted”.[6]
[6] Paskandy & Paskandy (1999) FLC 92-878 [86456] , and Taylor & Barker [2007] FLC 93-345
Various superior courts have assisted trial judges in attempting to extract a list of principles relevant to matters involving the relocation of children. [7]. Those guiding principles include the following:
a)that children’s best interests remain the paramount but not the sole consideration of the court and such interests must be considered within the context of section 65DAA of the Act (reasonable practicability);
b)a parent wishing to relocate with children does not need to demonstrate “compelling” reasons for doing so and in this sense neither party carries an onus of proof to convince the court either for or against the proposed relocation;
c)the court must consider the proposals of each of the parties and the advantages and disadvantages of each proposal but may also formulate proposals itself in the children’s best interests;
d)the children’s best interests must be weighed and balanced with the “right” of an adult of freedom of movement but that a parent’s freedom of movement must ultimately defer to the best interests of the children.
[7] Hepburn & Noble 2010) FLC 93-438, Taylor & Barker (ibid) and McCall & Clark (2009) FLC 93-405)
The fundamental legislative premise in all children’s matters is that it is the best interests of the children which is the paramount consideration of the court.[8]

Children’s Best Interests – Section 60CC factors

[8] section 60CA of the Act

Primary Considerations

Section 60CC(2)(a) – The benefit to the children of having a meaningful relationship with both of the children’s parents

The evidence of both parties and of the family reporter is that these children have a bonded relationship with each parent. This is not surprising given that the circumstances of both parents being regular features in the children’s home until relatively recently. X and Y are still young children. The task for the court, therefore, is to determine orders which assist and benefit them in a prospective manner in maintaining those meaningful relationships with both mother and father. Expert opinion and common sense suggests that young children best maintain their relationships by frequency of contact. The proposals of these parties and of the family reporter give rise for concern in this regard. The logistics of travel suggest that frequency of contact between the children and one of their parents will be problematic with a likely impact on the development of the children’s emotional attachments to one of the parents. Such a problem would be alleviated by the parents agreeing to live within closer proximity at least during the children’s formative years. Each was cross-examined as to the possibility of moving closer to the other parent. Each declined. Again, however, I note the alternative proposal of the father which would have the mother living in (omitted) which is only some two and a half hours from (omitted) rather than the six/seven hours of travel between (omitted) and (omitted).
Nevertheless, and whilst the consideration of the children’s meaningful relationships is “primary” consideration for the court, it is just one among many and assumes no determinative status.[9]

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

[9] Champness & Hanson [2009] FAMCA FC 96

References to some historical family violence feature in the mother’s affidavit and in her comments to the family reporter. The mother has an intervention order in her favour. The father was charged with an assault but that charge was dismissed in the local court. In light of the proposals of these parties and their historical relationship, issues of family violence were not pursued vigorously before me. I agree with the family reporter that any instances of family violence were perhaps situational within the context of these parties separating, living together under the one roof, and each moving on to new relationships. Whilst recent amendments to the Act stipulate that I am to place “greater weight” on matters of family violence, the historical references in this matter carry no weight in my determination. I do note, however, that the mother claims to have left (omitted) because of her “unhappiness”, although I find no evidentiary connection with her claims of family violence.

Additional Considerations

Section 60CC(3)(a) - Any views expressed by the children and factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views.

X and Y are pre-school aged children. They are not able to rationalise any views or preferences as to their living arrangements.

Section 60CC(3)(b) - The nature of the relationship of the children with each of their parents and other persons (including any grandparent or other relative of the children).

The evidence satisfies me that these children have a developed and successful relationship with each of their parents. At least until December 2013 X and Y had the benefit of both the parents as regular fixtures in their lives. There is now evidence of some behavioural problems with each of the children. The parties acknowledge that X suffers from bed-wetting. They agree that Y shows some aggression towards his sister. I cannot be satisfied as to the connections attempted to be made in respect of this issue by the family reporter. I can only say that these children have by reason of their mother’s unilateral relocation been separated from one or other of their parents. Some confusion, anxiety or behavioural difficulty may not be unusual or unexpected.
Matters involving the relocation of the children will necessarily impact on the nature of their relationships with their parents. The parent with whom they live will assume a greater role in their day-to-day care. Conversely, the other parent may not be able to participate in important and spontaneous events in the children’s lives, their schooling, and extracurricular activities. The characteristics of “substantial and significant time” will not be available. Opportunities for flexibility and easy movement between homes will be lost.
If children relocate away from a parent then their relationship with that parent will often be brought into conflict with other important relationships and extracurricular activities in their lives as they settle into their new schools and social groupings. All of these factors have the potential to impact on the nature of children’s relationships with their parents.

Section 60CC(3)(c) - The extent to which each of the children’s parents has taken, or failed to take, the opportunity to participate in making decisions about long-term issues in relation to the children and to spend time with the children and to communicate with the children.

The mother moved to southern Tasmania in December 2013. The interim orders returned the children to their father in early February 2014. The mother’s time in the interim has been limited to visits each three weeks provided in her Honour’s interim orders. It is now apparent, however, (but not from her trial affidavit) that the mother has not been working yet has not taken the opportunity to spend more time in (omitted) or in (omitted) in order to see the children. Her deflection of the blame in this regard to the father is unconvincing in light of her lack of requests although I do share her observations as to the father’s generally rigid personality. That rigidity (perhaps evidenced in both parents) is best seen in what ordinarily should be easy telephone communication between the children and the mother. It is true that the mother has an intervention order with the father as the respondent. Both parties, however, are represented by solicitors and the intervention order clearly allows an exception for agreed or court ordered “contact”. These parents, however, have taken the cumbersome and impractical option of telephone calls being relayed through Ms M who must pass on the anticipated call and arrangements. The relevance is that a relocation for children will necessitate some greater effort by the parents moving forward to ensure contact between the children and the other parent through various media. Each of these parents will need to show a greater insight and capacity in this regard into the future whether the children be living in (omitted) with the father or in (omitted) with the mother.

Section 60CC(3)(ca) - The extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parents’ obligations to maintain the children.

Neither of these parents is wealthy. It is clear that they faced financial struggles in their family unit and have continued to do so since their separation. The mother is critical of the father’s contributions financially following separation. Similarly, the father criticised the mother for some inclination towards gambling. On consideration of the evidence, I am satisfied that both these parents have contributed to the financial support of the children, either directly or indirectly and that there is insufficient evidence to justify either complaint.

Section 60CC(3)(d) - The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parents of any other child, or other person (including grandparent or other relative of the children), with whom they have been living.

Significant change has already been visited upon these children by reason of their mother’s unilateral relocation with them in December 2013. In so doing she puts distance between them and one of their parents. Such a change now appears entrenched on either party’s proposal. If they live with the mother then they will need to travel some 6-7 hours each way to visit their father. If they live with their father then they will need to travel to be with their mother. The opportunity for relationships involving equal time and substantial and significant time between their parents will be lost. Relationships will be maintained by travel on infrequent weekends and during school holidays. That travel will necessarily be onerous for the children and the parents and expensive for the parents given their limited finances.

Section 60CC(3)(e) - The practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially effect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

The practical logistics of these children travelling between (omitted) and Hobart and the financial and personal circumstances of these parents will inevitably have an effect on these children’s relations with one or other of their parents. The mother does not yet have a driver’s licence although she is the owner of an un-roadworthy motor car. She relies on her partner to assist with the travel or alternatively uses bus transport. Whilst the parties admirably agree that they could meet at a halfway junction for changeovers, the fact remains that, on the current proposals, these children will be obliged to endure up to about 14 hours travel by road for any weekend visit. The cost–benefit for the children of such an exercise is dubious. The sustainability of such an arrangement, even given the best intentions of these parents, is equally dubious.

Section 60CC(3)(f) - The capacity of each of the children’s parents and any other person to provide for the needs of the children, including emotional and intellectual needs.

The mother grounds much of her argument on this consideration. She says that she has been the “primary” parent for these children by reason of quantity of time spent with them. During most of the parties’ relationship she was a homemaker whilst the father went to work. Whilst this may be factually correct, circumstances for these children are chronologically unusual. They have spent the last five months in the care of their father and very limited time with the mother. Five months is a significant period in the life of 22 month old Y.
The father’s capacity is attacked by the mother in respect of him having to use day carers from early in the morning and in providing inconsistency of day carers as well as requiring the assistance of various members of the Ms M family. The mother would also use day carers but only within the context of her part time employment and where the children would not be delivered to the carer until 10 am. On the face of it, the mother’s proposal would appear preferable. Nevertheless, any alleged “incapacity” of the father to care for the children in the early mornings must be seen against the fact that he has admirable, consistent and successful support in (omitted) which allows him to maintain his full time employment which provides financially for the children. His early morning starts also allow him afternoon time with the children. I have no evidence before me of sufficient probity or nexus to convince me that the father’s unusual arrangements have had any negative effect on these children.
Whilst it can be argued that the father has an established and valuable support network in (omitted), it can equally be argued that the mother suffers from a relative lack of support in (omitted). It is true that she has a relationship with Mr A and that he provides financial and actual assistance to her. He, however, continues to live with his former partner and their daughter and some distance from the mother’s home. She is only a recent resident of (omitted). She has no family members or other established relationships in the region. She does have some cousins in Hobart who she says could render assistance. They did not provide evidence in these proceedings.
The mother says that she is happier in Hobart and that her parenting capacity is consequently enhanced. “Happiness” is however a relative and fluid concept and I have no professional evidence to confirm that the parenting capacity of this mother is positively impacted by her “personal happiness”.
In the witness box, the mother readily conceded that Mr Alford is a “good dad”. Similarly, by reason of his alternative option that the mother be the major carer for the children should she move to northern Tasmania, I infer that the father concedes Ms J to be a good and adequate mother.
On the evidence before me, I am satisfied that each of these parents have the capacity to attend to their children’s needs. My concern with the mother relates only to her lack of insight and prioritising of her needs over those of the children in unilaterally relocating them.

Section 60CC(3)(g) - The maturity, sex, lifestyle and background (including lifestyle, culture, traditions) of the children and any of the children’s parents, and any other characteristic of the children that the court thinks relevant.

The relevance of this consideration is the young ages of these children. Successful relationships for them depend on frequency and ease of contact with each of their parents. The mother’s relocation has impacted negatively in this regard.

Section 60CC(3)(h) - if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

This consideration is not relevant.

Section 60CC(3)(i) - The attitude of the children, and the responsibilities of parenthood demonstrated by each of the children’s parents

The mother criticises the father in her affidavit material in respect of his financial support and, particularly, during the period that they were separated but living under the same roof. The mother says that she was primarily responsible for the financial support of the children. It is clear that the father continued to work whilst the mother received a Centrelink benefit. They each contributed to the rent. The father had an ongoing commitment for a motor vehicle which I do not find to be unreasonable. I am not satisfied on the evidence that the father neglected his financial responsibilities for these children. Similarly, I am not satisfied that the mother’s occasional visits to poker machine venues equates to financial irresponsibility as implied by the father in his material.

The mother acknowledged her regrets as to her unilateral move to Hobart and the negative impact this has had on her children. Despite this new-found insight, she steadfastly rejects any invitations to return to northern Tasmania so as to alleviate these very same difficulties continuing into the future. She is, of course, an adult who has the right to freedom of movement and is capable of making decisions in respect of her own life. The relevance is her ability to prioritise her own wishes and desires with her acknowledged needs of these very young children.

Section 60CC(3)(j) - Any family violence involving the children or members of the children’s family and any family violence orders

This issue has been dealt with above. The effect of the family violence order obtained by the mother has essentially been to make telephone communications cumbersome, impracticable and to remove any opportunity for spontaneity and flexibility. To their credit, both parties apparently now acknowledge the need to be less rigid and more accommodating in this regard.

Section 60CC(3)(l) - Whether it would be preferable to make the order that will be least likely to lead to the institution of further proceedings in relation to the children.

The nature of Family Law orders is that they are prospective. Whilst the court makes orders in the best interests of the children based on current evidence, it is inevitable that there will be changes in the circumstances of the parents and the children moving forward. Nevertheless, it beholds the court to consider the parents’ current circumstances and personalities in determining those orders. This father is established in (omitted). There is no indication that he intends to move. He has continuing employment. He has a relationship with Ms M. He has the support and acceptance of her extended family. My observations of him were of settled, calm and stable demeanour and of a man content with his lot. My observations of the mother differed to a degree. Mr A’s evidence suggested that his relationship with the mother was perhaps confined to weekends. I did not glean the same level of commitment yet reached in this relationship as that between the father and Ms M. The mother’s work and personal circumstances do not seem so settled as those of the father. Undoubtedly, the resources and abilities of these parents and the children will be tested by either parent’s proposal to maintain the children’s relationship with the other parent. These are all matters which will test the durability of any orders I make.

Findings and conclusions

I am satisfied that these young children have developed attached relationships with each of their parents. Given the very young ages of the children, the mother’s unilateral relocation put their relationships with their father in jeopardy. Her lack of insight and prioritisation at the time is concerning. The interim orders made by her Honour in February 2014 have similarly jeopardised the mother’s own relationship with her children by reason of the mother deciding to remain living in Southern Tasmania.
I am satisfied that the proposals and logistics of these children travelling between their parents, should the mother remain in Hobart, is onerous and potentially unsustainable.
I am satisfied, and the mother concedes, that relocation of the children to Hobart in December 2013 was unilateral and (as she also concedes) has had a negative impact on these children and their relationships.
Whilst the mother need not show compelling reasons to relocate her children from their settled home in (omitted) to Hobart, she must, in my view, show reasons of sufficient probity. She says that she moved to (omitted) herself for reasons of happiness, employment, and to pursue her relationship with Mr A. Ironically, I am asked to infer that her relationship with Mr A requires them to be in close proximity whilst the mother acknowledges that her unilateral relocation impacted negatively on her children’s relationships with their father by imposing the very same distance constraints. It is open for me, therefore, to find that this mother prioritised her own interests and relationships over those of her children. Similarly, the mother’s employment does not satisfy me as a weighty reason for such a move. Indeed, she has not been taking up her employment since early March. She has experience in that type of employment in other parts of Tasmania and the employment in Hobart is part-time only. Thirdly, the mother claims that she is “happier” in Hobart. Whilst this may be the case for her subjectively, I have no evidence in proper form that her happiness provides a positive impact on her parenting capacity or, conversely, her previously unhappy demeanour impacted negatively on her parenting. I have no psychological evidence. I do not have evidence that “happiness” was a factor in a number of her previous moves of towns and residence which only gives me cause for concern as to the longevity of her current living and domestic arrangements.
I am satisfied that each of these parents have the capacity to attend to the children’s physical needs. I am not persuaded that the father’s unusual care arrangements for the children in the early mornings is contrary to their interests and, particularly, given his strong network of support.
Implementing the mother’s proposal, by reason of her Honour’s interim orders, would involve yet another significant change in the lives of these young children. They have spent from early February 2014 living with their father. They had consistent, frequent and regular time with him until mid-December 2013. Any hiatus in that regularity of time caused by the mother’s move to (omitted) was mitigated by block periods of time together between December and February. Consequently, I remain concerned as to any further impact on these young children by being removed again from their father and in the community they lived in until their unilateral removal.
On a balance of all of these considerations I am satisfied that on the options provided to me by these parents, the children’s best interests are served by them remaining living with their father in (omitted). The onerous nature of travel between (omitted) and (omitted) convinces me that the father’s proposal for time for X and Y with their mother is in their interests. His proposal maximises the children’s time with the mother in term holidays and provides three periods of return travel in the summer holidays. However my orders will also allow the mother the opportunity to travel herself to (omitted) to enjoy more frequent time with the children. Importantly, however, I find some merit in the altruistic alternative proposal put by the father should the mother see fit to relocate herself to (omitted) or closer proximity to (omitted). Despite her rejection of this proposal during counsel’s final submissions, I think it proper that the mother be given the opportunity to dwell further on the positive benefits for her children of such a proposal. As such, should the mother agree to relocate to (omitted) within a three month period of the making of these orders then I am satisfied in all of the circumstances that the children live primarily with her but then enjoy regular alternate weekend and holiday time with their father.
I am not satisfied that the presumption of equal shared parental responsibility has been rebutted as being contrary to the children’s best interests. I am not satisfied that there is evidence of family violence of sufficient probity before me such that the presumption should not apply. Both parties seek an order for equal shared parental responsibility for X and Y. I will make that order.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 11 July 2014

[2014] FCCA 1148

11 July 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction