Andalis & Andalis
[2023] FedCFamC1F 597
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Andalis & Andalis [2023] FedCFamC1F 597
File number(s): NCC 3980 of 2020 Judgment of: SMITH J Date of judgment: 19 July 2023 Catchwords: FAMILY LAW – CHILDREN – where father engaged in family violence consequent on alcohol use – where mother engaged in a campaign against father with police and employer - where mother seeks to relocate 8 hours away for family support – where father has addressed drinking – where eldest child refuses contact with father - where father seeks three younger children live with him - where conflict has decreased – where mother will facilitate meaningful relationship post relocation – where no presumption of equal shared parental responsibility: Held mother to exercise sole parental responsibility with an obligation to consult – all children to live with mother – three youngest children to spend time mid term and half holidays with father – consequential orders. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Part VII, ss 60CA, 60CC, 65AA
Cases cited: Carlson & Fluvium[2012] FamCA 32 Division: Division 1 First Instance Number of paragraphs: 191 Date of hearing: 27 January 2023 – 1 February 2023 Place: Newcastle Counsel for the Applicant: Mr O’Reilly Solicitor for the Applicant: Delaney Roberts Family Lawyers Counsel for the Respondent: Mr Duane Solicitor for the Respondent: Burke Mead Lawyers Counsel for the Independent Children's Lawyer: Mr Zmood Solicitor for the Independent Children's Lawyer: Legal Aid NSW
Table of Corrections 1 August 2023 In paragraph 96 the word “which” has been removed from the end of the paragraph. ORDERS
NCC 3980 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ANDALIS
Applicant
AND: MS ANDALIS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SMITH J
DATE OF ORDER:
19 JULY 2023
THE COURT ORDERS THAT:
1.Ms Andalis born 1979 (the Mother) shall have sole parental responsibility for W born 2007, X born 2008, Y born 2010, and Z born 2016, (jointly "the children"), subject to the following:
(a)Prior to exercising parental responsibility pursuant to this Order, the Mother shall provide written notice to Mr Andalis born 1976 (the Father) of any decision that she may make at least 21 days prior to making the decision.
(i)If there is an urgent decision to be made which the mother did not have sufficient notice of the Mother shall notify the Father in writing of the decision that she may make and explain the urgency and provide a timeframe for him to provide input appropriate to the urgency of the decision.
(ii)Consider any written input the father provides prior to making any decision.
(b)Within 14 days of exercising parental responsibility pursuant to this Order the mother shall provide to the father written notice of her decision and actions.
2.Each parent shall be responsible for day-to-day decision making for a child when a child is in their care.
3.The children shall live with the Mother.
4.The Mother is permitted forthwith to relocate with the children to the Town D area of NSW.
W
5.W shall spend time with and communicate with the father in accordance with W’s wishes.
6.The Father shall be permitted to send W a letter, card, present and/or photograph on special occasions such as Easter, Christmas and W’s birthday.
7.If W wishes to spend time with the father at the same time as X, Y and Z the same arrangements for travel and change-overs shall apply to W as set out in these orders for X, Y and Z.
X, Y, Z
Live with the mother
8.X, Y and Z shall live with the Mother.
Spend time with the father post relocation
9.X, Y and Z shall spend time with the Father as agreed between the Mother and the Father in writing, and prior to relocation to Town D in accordance with the current orders, and after relocation to Town D and failing agreement as follows:
School term
10.During each school term, commencing from term 4 of 2023, X, Y and Z shall spend time with the father in City B for one weekend.
11.The parties may agree the weekend, and failing agreement the father shall determine the weekend by notifying the mother at least 90 days prior to the day on which the time is to commence. In relation to term 4 of 2023 only the Father is to notify the weekend by 1 September 2023.
12.X, Y and Z will fly return from the Town D area to the City B area.
13.The Father will book and pay for the flights in the first instance.
14.The Mother will reimburse the Father for half of the flight costs within 14 days of receipt of a copy of the booking information and fare schedule establishing payment.
15.The Father is to nominate a bank account for re-imbursement.
16.X, Y and Z shall fly to City B after school on the last school day before the weekend, and the flight shall be booked so that they do not miss school and so that, so far as possible, they arrive at City B no later than 9pm.
17.X, Y and Z shall fly to the Town D area on the last day before school so that they arrive at the Town D area no later than 9pm.
18.The father may nominate a weekend which includes a long weekend where there is no school on days on one or either side of the Saturday and Sunday.
School holidays
19.X, Y and Z shall spend half of each of the four school holiday periods with each parent.
20.X, Y and Z shall spend the first half of each school holiday with the Mother in odd numbered years, and the first half of each school holiday with the Father in even numbered years. They shall spend the second half of each school holidays with the other parent.
21.For the purpose of these Orders the school holidays are deemed to commence on the first day after the last school day for all of X, Y and Z, and to end on the last day for before school commences for any of X, Y and Z.
22.In calculating the mid-point of the long holiday period the last and first days of school shall be excluded, and if there is no mid-point day then the parent with who they are spending the second half of the holidays shall have the extra day.
23.For the purpose of these orders during the short school holiday:
(a)In odd numbered years
(i)The children’s change-over to the father will occur at 2pm on the second Saturday and the children’s change-over back to the mother will occur at 2pm on the last day of the holiday.
(b)In even numbered years:
(i)The children’s change-over to the father will occur at 2pm on the first day of the holidays and the children’s change-over back to the mother will occur at 2pm on the second Sunday of the holiday.
24.For the purpose of these orders during the long school holiday:
(a)In odd numbered years
(i)The children’s change-over to the father will occur at 2pm on the day which is the mid-point of the holiday, and
(ii)the children’s change-over back to the mother will occur at 2pm on the last day of the holiday.
(b)In even numbered years:
(i)The children’s change-over to the father will occur at 2pm on the first day of the holidays, and the children’s change-over back to the mother will occur at 2pm on the mid point of the holiday.
Flying all the way
25.The parties may jointly elect to fly the girls between Town D and City B.
26.In this case the same arrangements for the purchase and payment for tickets shall apply as for school term flights, except that they shall fly on the morning of the first day of the school holidays rather than after school.
Flying part of the way
27.One party may elect to fly and the other to drive X, Y and Z.
28.In that case change-overs shall be at J Airport.
29.The party who is flying X, Y and Z shall be responsible for booking and paying for the flights to get them to or from J Airport.
30.In that case the flights are to be booked to arrive and or depart as close to 2pm as possible.
Driving the whole way
31.If both parties are driving the change-over shall occur at McDonalds Suburb K
:.
Communicate with a parent
32.Each parent be at liberty to communicate with X, Y and/or Z by telephone and/or video chat on each Monday and Thursday between 5.00pm and 5.30pm when the child is not in that parent’s care.
33.Each parent be at liberty to communicate with X, Y and/or Z by telephone and/or video chat on special occasions including the child’s Birthday, each parents’ birthday, Christmas Day, Easter Sunday, Mother’s Day and Father’s day between 5.00pm and 5.30pm when the child is not in that parent’s care.
34.The parent who has care of the child shall do all things necessary to facilitate such communication.
35.X, Y and/or Z may further communicate with either parent by telephone or video as they wish, and if they request to speak with the parent they are not with the parent they are with will do all reasonable things to facilitate the making of such telephone calls or video calls if facilitation is required.
36.During any such communication, the parent who has care of the child shall ensure the child has privacy during communication with the other parent.
Parental communication
37.The parents shall communicate in relation to all matters concerning the children by a Parenting Application which the Mother may nominate.
38.If the Mother does not nominate a Parenting Application the parties shall communicate by text except in urgent circumstances when they may communicate by telephone.
Keep informed
39.The parents shall keep one another informed at all times of:
(a)A current mobile telephone number and email which will be checked at least daily and used for communication, and will advise the other parent of a change in such details within 24 hours of such change occurring;
(b)the names, addresses and contact details of all medical and allied health practitioners whom a child attends;
(c)any medical problems or illnesses suffered by the child while in their respective care;
(d)any medication that has been prescribed for a child;
(e)any social, school or religious functions which a child is to attend;
(f)particulars of the other person or who may reside in the residence with the child from time to time;
(g)any medical, psychological, allied health, social work, counselling or similar appointments as soon as practicable after being booked, and any attendance upon any hospital or medical practice other practitioner, excluding only for minor day to day ailments;
Medical
40.The Mother and Father are to sign any authorities or other documents (if any) as may be required to authorise any medical or other treater or counsellor or specialist or other professional upon whom the child/ren attend to speak with both parents, and to forward to the other party, at that parties expense, copies of any medical reports.
41.A copy of these orders may be given to any such practitioner or practice and also serves as an authority.
42.Each parent shall be at liberty to attend any medical or other similar appointment in relation to X, Y and/or Z.
School and extra-curricular
43.The Mother and Father are to sign any authorities or other documents (if any) as may be required to authorise any school a child may attend from time to time to forward directly to both parents copies of all of each child’s school reports and merit cards, and to copy to both parents any written material pertaining to each child’s academic and extra-curricular activities, with each party bearing half of any additional cost.
44.A copy of these Orders may be given to any school, or organization, and also serves as an authority.
45.Both parents shall be at liberty to attend any school event, including teacher parent nights, to which parents are invited in relation to X, Y and/or Z.
46.Both parents shall be at liberty to attend any extra-curricular or sporting or similar events for a child, including regular sporting fixtures, to which parents are invited in relation to X, Y and/or Z.
Restraints - general
47.Each parent is restrained from:
(a)Denigrating the other parent, the other parent's family or a person with whom the other parent has a relationship with, in the presence or hearing of a child, or permitting a child to remain in the presence or hearing of any other person denigrating the other parent, the parent's family or any person with whom the other parent is in a relationship with, with the parent's knowledge or in their presence;
(b)Discussing the proceedings or any allegations raised in these proceedings with the child or permitting any other person to do so with their knowledge or in their presence;
(c)Communicating any information intended for the other parent through the child; and
(d)Causing the child to be a medium in any way to adult members between the mother and the father or between the mother and the father and any other person.
Restraints - alcohol
48.That the father is restrained from consuming alcohol whilst the children are in his care or for a period of 48 hours prior to the children coming into his care.
International Travel
49.Should either the mother or the father wish to travel outside the Commonwealth of Australia with the children they will, at least 6 months
daysprior to the intended departure date, write to the other parent requesting consent for the children to travel outside the Commonwealth of Australia, including the following details:(a)Proposed departure and return dates with such dates not to exceed three weeks in totality (including travel time to and from the destination) and the time not to involve a child missing school;
(b)Flight details, including airline(s), copy of forward and return flight details;
(c)An itinerary of where the children will be staying and name(s) of any other person(s) attending;
(d)Contact details for all accommodation;
(e)Proof of travel insurance with medical and medivac cover for the children;
(f)A proposal for make up time;
and upon the provision of such information the other parent shall thereafter consent to such travel arrangements, provided that the Department of Foreign Affairs and Trade does not advise against travel to such destination and provided the Commonwealth of Australia maintains a High Commission in such Country.
Passport
50.Pursuant to section 11(1)(b) of the Australian Passports Act 2005 the mother be permitted to obtain passports for the children without the consent of the father.
51.The mother shall hold the children’s passport to be released to the father upon compliance these orders and the children’s passport to be returned by the father to the mother at the first changeover of the children upon the children’s return to Australia.
THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 1 August 2023
Smith J:
INTRODUCTION
These proceedings are primarily about which of their parents W born 2007 (16) (year 10), X born 2008 (15) (year 9), Y born 2010 (13) (year 7), and Z born 2016 (7) (year 1) should live with, whether or not parental responsibility should be equally shared, and whether or not their mother should be allowed to relocate with them from their current long-term home in City B about 8 hours away to Town D if they all live with her. I will refer to all four children jointly as “the children”, and adopting the language used at Trial to the younger three children as “the girls”.
The applicant father is Mr Andalis born 1976 (46 years). The respondent mother is Ms Andalis born 1979 (43 years). An Independent Children’s Lawyer (‘ICL’) was appointed to represent the children.
The issues, including what time the children should spend with and what communication they should have with the parent they do not live with, are parenting orders to be determined pursuant to Part VII of the Family Law Act 1975 (Cth) (‘the Act’).
For reasons set out below, I find that it is in the children’s best interests for all of them to live together with the mother, for the mother to exercise sole parental responsibility with an obligation to consult, and for the mother and the children to be able to relocate. I find that it is in the children’s best interests to spend time and communicate with the father on a regular basis broadly consistent with the proposal of the ICL.
THE FAMILY
The parents
The father is employed on a full-time basis as a public servant at F Employer.[1] F Employer is approximately 40km and 35 minutes’ drive from City B. He presently lives alone in a 3 bedroom home situated on the family’s small rural property in Town L,[2] a 20 minute drive to F Employer and a 50 minute drive to City B. Post separation the father pursued a relationship with Ms M who is employed by F Employer.[3] Ms M has two young girls, aged about 5 and 6.[4] She does not live with the father and had not met the children at the time of Trial.[5] She was not a witness.
[1] Father’s Trial Affidavit at [39].
[2] Expert Report at [29] and [81].
[3] Father’s Trial Affidavit at [357].
[4] Father’s Trial Affidavit at [357].
[5] Father’s Trial Affidavit at [357].
The mother was a public servant at G Employer, where she was filling a vacancy prior to Trial.[6].
[6] Expert Report at [128].
The mother presently lives with the children in City B where they attend I School.[7] The mother has not re-partnered.
[7] Mother’s Trial Affidavit at [113].
The parental relationship has been affected by high levels of conflict, in the context of the mother’s allegations that the relationship ended due to the father engaging in excessive alcohol use leading to family violence, and the father’s counter claim that post separation the mother engaged in a campaign of malicious complaints against him to police and to their mutual department of employment.
Fortunately, by the Trial the parental relationship, though not good, had improved to the point where neither party alleges that the other party poses an unacceptable risk of harm and proposes that the children spend significant unsupervised time with the parent they do not live with.
The children
A Family Consultant, Ms N, prepared a Child Inclusive Conference Memorandum (‘CIC’) from interviews conducted in January 2021 (Ex ICL 1). A single expert, Ms P, (‘the expert’) prepared a report in the proceedings dated 12 November 2021 (‘the Expert Report’) (Ex ICL 2). The ICL provided a statement of the children’s views dated 25 January 2023 at the end of the Trial (Ex ICL 3).
The expert summarised the children’s situation as follows:[8]
There are 4 children who have competing needs. All of the children are doing it tough at the moment and they need their parents to put aside their differences and to work together in order to ensure that their needs are prioritised over and above the adults’ wishes.
[8] Expert Report at [233].
W
W (16) has Autism Spectrum Disorder (ASD) and has an NDIS treatment package managed by a multi-disciplinary team.[9] He is medicated for his anxiety and managed by his paediatrician Dr Q.[10] W chooses not to see a psychologist at present but does participate in a program for autism.[11] That program involves the mother meeting with a therapist weekly to obtain resources and support to assist W.[12] The expert observed W’s presentation to be “very anxious” and said he struggled with social skills.[13] The expert considered W’s presentation was consistent with his diagnosis of ASD.[14] Both parties acknowledged in oral evidence that W’s ASD impacts W’s needs and was relevant to the impact of their high conflict separation on him.
[9] Expert Report at [46].
[10] Expert Report at [46].
[11] Expert Report at [46].
[12] Expert Report at [46].
[13] Expert Report at [144].
[14] Expert Report at [145].
W’s relationship with the father is damaged. W told Ms N in January 2021 that he had:[15]
“mixed feelings” about his father, he said his father was not nice to him and that he cannot trust his father.
[15] CIC at [31].
Ms N further recorded that:[16]
[W] said he does not want to spend time with his father, he said his father has done terrible things and he said he is scared that his father will get angry at him for not attending on the last two visits. [W] described feeing nervous and stressed when he saw his father recently at changeover.
[16] CIC at [34].
That was in the context of W’s description to Ms N of the father’s excessive alcohol use and consequential family violence towards the mother, him, and the girls.[17] W gave histories of being yelled at by the father, of witnessing acts of aggression towards the mother and to X in particular, and of being scared of his father’s behaviours.[18]
[17] CIC at [31]-[34].
[18] CIC at [32]-[33]; Expert Report at [150].
W has consistently expressed the view that he wants to live with the mother, and either not spend any time with the father or to spend time with him only according to his wishes.[19] He also wants to be allowed to move to Town D.[20] W explained his reasons for these decisions to the expert by reference to the verbal and physical abuse perpetrated by the father.[21]
[19] Expert Report at [150]; CIC at [34]; ICL letter dated 25 January 2023 exhibit ICL (‘ICL3’).
[20] CIC at [34]; Expert report at [150]; ICL3
[21] CIC at [31]-[34]; Expert Report at [150].
The expert spoke to Mr R and Ms S, the Principal and Deputy at I School, about the children.[22] They described W’s interactions with teachers and other students as becoming “quite negative” and his presentation as “obviously angry”.[23] They described W as “a boy who is in a world of pain” and whom was telling people that he wanted to move back to Region C because, as the expert records, “that is where people actually like him”.[24]
[22] Expert Report at [219]-[220]; [224]
[23] Expert Report at [219].
[24] Expert Report at [219].
Taking into account his age and strongly expressed views, which view I accept for reasons detailed elsewhere is based on W’s experience of the father’s family violence, the parents, the ICL, and the single expert all agree that W should live with the mother and that she should exercise sole parental responsibility with an obligation to consult the father on major issues. They also agree that W should spend time and communicate with the father only according to W’s wishes.
The father’s oral evidence was that 29 September 2020 was the last time he spent time with W.[25] He said he had waved to W at change overs but generally received no response.[26] He said W had not spoken with him by phone or text and that he did not know W’s current number. The father accepted that it was not an option to have W live with him. He also accepted that an order that time and communication be according to W’s wishes means that W is unlikely to spend any time or have any communication with him. He said that he hoped over time W would change his mind.[27] In response to a question as to whether W was likely to live with the mother until she dies, the father said “I hope not”, but that he suspected W would need to live with her for quite some time given his level of needs.
[25] See also the Father’s Trial Affidavit at [124].
[26] See also the Expert Report at [68].
[27] See also the Father’s Trial Affidavit at [126].
I agree with the joint proposal which is consistent with the expert’s opinion. I find that at the moment W is unlikely to spend any time with or have any communication with the father of his own volition. I also find that orders requiring W to spend time with or communicate with the father at this point in time will be both ineffective, given W’s age and strongly held views, and also counter-productive in the sense that it may re-inforce W’s resistance and work against the chance of a softening of W’s stance and the possibility a future relationship between W and the father. There is no benefit to W in having the father exercise parental responsibility, but I agree that the mother should consult prior to exercising parental responsibility on major long term issues. I will make these orders.
The ICL also proposed that the father be permitted to send W “a letter, card, present and/or photograph on special occasions such as Easter, Christmas and the child’s Birthday”.[28] The mother did not consent to, but did not make submissions opposing that proposal in closing submissions. I will also make these orders.
[28] MFI18 [5].
X
X (15) has complex needs.[29] She has struggled with sleep issues since she was a baby and takes medication.[30] She also has long term medical issues which are being medically managed.[31] She sees a dietician for assistance with her health issues.[32] There are suggestions in the lay evidence that she has an eating disorder but there is no diagnosis. There is some dispute between the parties as to whether the medical issue is of physically or psychological origin. For present purposes that does not need to be resolved. Both parents told the expert that X engages in obsessive-compulsive behaviours, has elevated levels of anxiety, increasingly refuses to attend school[33] and has experienced a significant decline in her social skills, now rarely interacting with her peers.[34] X also often initiates arguments with her siblings and may become physically aggressive towards them, which may be relevant to Y’s views considered elsewhere.[35] X has been referred to a psychologist to assist with her anxiety and emotional dysregulation. X’s paediatrician commenced her on a low dose of an antidepressant, however that was ceased at the father’s request while he sought further information.[36] The parents agree that X is struggling, and it is clear from the evidence that meeting X’s needs takes up a significant portion of the mother’s time and energy.
[29] Expert Report at [47].
[30] Expert Report at [47].
[31] Expert Report at [47].
[32] Expert Report at [47].
[33] Expert Report at [47], [216]-[217].
[34] Expert Report at [47].
[35] Expert Report at [47].
[36] Father’s Trial Affidavit at [198].
When speaking with Ms N, X presented as nervous and “described her father as short tempered and said he is easily angered and yells”.[37] X told the expert that she felt the father “treats her differently and she feels ‘different’ to her younger sisters”.[38] In the CIC interviews, both W and Y specifically told Ms N that, as Ms N interpreted it, X was “treated poorly by” the father,[39] with W identifying X and the mother as being regularly yelled at by the father[40] and Y saying that the father “got angry at [X] every morning”.[41]
[37] CIC at [26].
[38] Expert Report at [166].
[39] CIC at [44].
[40] CIC at [33].
[41] CIC at [23].
X has consistently stated that she wants to live with the mother, who she has a close relationship with. She told the expert the interim arrangements that were in place involved “too much time with Dad”[42] and her final view was that she wanted to spend time with the father for half school holidays and to speak with him once per week at a set time, and at other times as agreed between herself the father.[43] She also wanted to be able to relocate to Town D.[44] X told the expert that she liked the school, people, and beaches of Region C, and her aunty Ms T with whom she got on really well.[45] I will address Ms T and Mr U and the support they can provide elsewhere.
[42] Expert Report at [162].
[43] ICL3
[44] ICL 3; Expert [163].
[45] Expert Report at [163].
Despite the clear issues in X’s relationship with the father and her perception, supported as true by her siblings’ reports, that the father treats her particularly poorly, X still does want to spend time with the father. Indeed, Mr U told the expert that he overheard X asking W why he could not forgive the father.[46] While W said he could not forgive the father, the fact that X asked W that question is further evidence that the relationship between X and the father remains viable. It also suggests that the mother, who has been X’s primary carer throughout, has not been working to undermine that relationship despite the father’s concerns.
[46] Expert Report at [211].
The effect of the mother’s evidence was that X’s high needs placed a significant strain on her and that she does not have adequate support in City B, whether due to her own actions or otherwise. It is clear from the evidence that even getting X to go to school can be a major undertaking.
Y
While Y does not have the level of needs of W or X, she was referred to a short term intervention program for assistance with low mood, heightened anxiety and attention difficulties at school.[47] After 12 sessions of Cognitive Behavioural Therapy, she commenced seeing a counsellor at the V Centre in City B.[48] Her problems appear to be situational to the present conflict and the difficulties the mother faces in caring for W and X and Z, and the subsequent difficulties in finding time for Y.
[47] Expert Report at [48].
[48] Expert Report at [48].
When speaking with Ms N, Y presented as confident and well-spoken and was “unsure about whether she would like to live in [City B] or remain in [Town D]”.[49] She told Ms N that “her father used to get drunk and she described his behaviour as ‘not nice’”.[50] “She said he was more ‘easily upset’, would become red in the face and she said he yelled more in a deeper voice”.[51] “[Y] said that her father cannot control himself when he is not calm and she said this made her feel nervous and made her hands shake”.[52] “[Y] described these times as ‘a little bit scary’ and she said her father got angry at [X] every morning”.[53] She said that post separation he had changed and drank non-alcoholic beers when they were together. She said she felt “safe with both her parents and she said she loves both her parents”.[54] This history is significant as Y appears aligned with the father and noting the father’s submissions that the children’s histories have been tainted by the mother’s involvement.
[49] CIC at [20].
[50] CIC at [23].
[51] CIC at [23].
[52] CIC at [23].
[53] CIC at [23].
[54] CIC at [24].
Y told the expert her views on where to live was “a bit tricky because while she didn’t mind [Region C], she had really missed her (sic) seeing her father when they were living there”.[55] Unlike her older siblings, Y had lots of friends and limited absences from I School.[56] Y told the expert that living in Town D did not give her enough time with the father and thought it would be “a bit more fair” to have an equal time arrangement.[57] She said that such an arrangement would also work well for Z but acknowledged that W and X probably wouldn’t like the idea.[58]
[55] Expert Report [170].
[56] Expert Report at [222].
[57] Expert Report [170].
[58] Expert Report at [170].
She said to the expert that she “like[s] the same things as her father and that they enjoy [doing outdoor activities] together”.[59] The expert thought that in addition to Y’s interest in “fairness”, which is a common concern for children of her age, that Y “appears to be singled out” by the father “for special treatment as a result of their common interests and the fact that they get along well” and that “[Y] is also very aware that she is treated differently to the others and that they resent her for it”.[60] The expert considered that Y might also align herself with her father having seen what life was like for W and X who did not get along with him.
[59] Expert Report at [171].
[60] Expert Report [175]-[176].
Z
Z’s presentation to Ms N was talkative, excitable and comfortable. Z was receiving counselling aimed at building resilience and to assist to adjusting to the parental separation.[61] Z told Ms N that “her mother cannot live with her father because her father “drinks alcohol” and “gets a bit silly” when drinking.[62] The father suggests that this is evidence of the mother coaching Z, but it may be her experiences expressed through her age or it may be that she overheard her siblings discussing it. Z told the expert that she knew she was there to discuss who she wanted to live with as “she had also overheard her siblings discussing it”.[63] Z appeared to be doing well at school.
[61] Expert Report at [49].
[62] CIC at [40].
[63] Expert Report at [152].
Z told the expert she liked spending time with each parent, and that “doesn’t have any worries in either household apart from when [X] and [W] fight”.[64] She said, “[X] makes most of the trouble”.[65] Z wanted her parents to reconcile,[66] which was age appropriate. Z told the ICL that she “wants to go to [Region C] with her mum, but does not want ‘to leave her dad behind’ (noting her age (6 years old), she did not articulate the point further)”.[67]
[64] Expert Report at [154].
[65] Expert Report at [154].
[66] Expert Report at [156].
[67] ICL 3.
The expert considered that given her age, Z was ill-equipped to present a view and that this is for the Court.[68] I agree.
[68] Expert Report at [158].
THE TRIAL
This matter was heard over 27, 30, 31 January and 1 February 2023. Each party and the ICL were legally represented, including by counsel. Each party was required to prepare and submit electronic Court Books.
The father provided a Court book (part 1) of 211 pdf pages (MFI 1) and an amended Court book part 2 of pdf pages (MFI 2). He relied on the:
(a)Amended Initiating Application filed 30 November 2022;
(b)Notice of Risk field 29 October 2022;
(c)Trial affidavit filed 21 December 2022, which was read without objection;
(d)Trial affidavit of (his sister) Ms AA, filed 21 December 2022, which was read without objection.
(e)Case outline filed 25 January 2023 (MFI 3)
(f)Notice of objections to the mother’s affidavits (MFI 10).
The mother provided a Court book (part 1) of 161 pdf pages (MFI 4). She relied on the:
(a)Further Amended Response filed 30 November 2022,
(b)Notice of Risk filed 26 November 2020,
(c)Trial Affidavit filed 10 January 2023, which was read subject to objections,
(d)Affidavit of (her brother) Mr U filed 21 December 2022,
(e)Affidavit of (her sister-in-law) Ms T filed 21 December 2022;
(f)Outline of case documents filed 25 January 2023 (MFI 5)
The ICL provided a Court book (part 1) of 69 pdf pages (MFI 6) with the expert reports and a Court book (part 2) of 327 pdf pages, including subpoenaed documents (MFI 7). The ICL relied on the:
(a)Outline of Case document filed 24 January 2023 (MFI 8);
(b)Child Inclusive Memorandum to Court dated 20 January 2021(‘CIC’) prepared by Family Consultant Ms N (Ex ICL1)
(c)Single Expert Report prepared by Ms P (‘the expert’) dated 12 November 2021 (Ex ICL 2).
(d)A letter dated 25 January 2023 setting out the children’s current views (Ex ICL 3).
The various Court books included documentary material from which items were tendered. Exhibits will be referred to as appropriate.
The father, Ms AA, the mother, Mr U, Ms T, and the expert were required for cross examination and gave oral evidence.
On the first day of Trial, 27 January 2023, the mother advised the Court that she had applied for and secured a transfer with her employing department and was scheduled to commence full-time employment at BB Employer that day.[69] The mother has advised that she had purchased a property in an undisclosed location near Town D.[70] The property was let as a holiday rental.[71] The mother denied in oral evidence that these actions were related to, or intended to impact upon, the Court’s consideration of her contested relocation application in these proceedings. Whilst this fanciful denial did not assist the mother’s credibility, the determination of the proceedings does not depend upon it.
[69] See also the Mother’s Trial Affidavit at [130].
[70] Mother’s Trial Affidavit at [38].
[71] Mother’s Trial Affidavit at [40].
BACKGROUND
The parents commenced cohabitation in either 2003 or 2004, were married in 2005, and moved to live in City B in 2008 where, in 2012, they acquired the former matrimonial home and a property.[72]
[72] Mother’s Trial Affidavit at [134], [139], [142]; Father’s Trial Affidavit at [3].
In August 2020, the mother unilaterally removed the children from the former matrimonial home.[73] The mother says she left because the father engaged in coercive and controlling behaviours, and in particular because he regularly consumed alcohol to the point where he then engaged in family violence within the meaning of s 4AB of the Family Law Act 1975 (Cth) (‘the Act’).[74]
[73] Mother’s Trial Affidavit at [171]; Father’s Trial Affidavit at [5], [305].
[74] For example, the Mother’s Trial Affidavit at [152].
The father owned multiple licenced weapons.[75] While the weapons were owned in the context of the family’s rural location and their use in farming operations, and while they were appropriately stored in a safe in a cupboard in the bedroom of the former matrimonial home, the presence of weapons in the home and the mother’s concerns about them added a layer of complexity to the issue of family violence.
[75] Father’s Trial Affidavit at [289], [302].
On leaving, the mother sought help from CC Services before staying with family members in Sydney and Town DD.[76] She eventually relocated with the children to the Town D area where she has family.[77] She rented a house, commenced working as a ‘full-time temporary’ employee and enrolled the children in EE School.[78]
[76] Mother’s Trial Affidavit at [23], [186].
[77] Mother’s Trial Affidavit at [23].
[78] Mother’s Trial Affidavit at [24]-[26]; The Expert Report at [5].
The mother arranged a visit between the children and the father at Town FF on 29 September 2020.[79]
[79] Father’s Trial Affidavit at [49].
Neither parent initially considered the marriage over.[80] The mother’s evidence was her hopes for reconciliation were conditional on the father addressing what she saw as his underlying alcohol problem. That evidence is consistent with the clinical notes of the mother’s telephone consultation with the parties’ mutual treating general practitioner Dr GG of September 2020.[81]
[80] Father’s Trial Affidavit at [6].
[81] Exhibit 7; MFI7 [13]-[15].
In about late October or November 2020, the mother became aware that the father was pursuing a relationship with Ms M. Thoughts of reconciliation evaporated and the marital relationship quickly ended.
The father commenced these proceedings on 29 October 2020 by Initiating Application, seeking orders for the return of children to the City B area and also property orders. By her Response filed 26 November 2020, the mother sought orders permitting her to relocate to Town D.
On 9 December 2020, there were interim orders for the children to spend time with the father in two blocks in December 2020 and January 2021.
From about February 2020 the mother pursued complaints against the father with police and with their department of employment (‘the Department’).[82] The mother said she was compelled to allow the children to be interviewed. I do not accept that evidence. The mother then sought access to the Department’s findings for use in her relocation application but was unable to access them. The father says these complaints were baseless and maliciously made for the purposes of litigation, and that the mother intentionally involved the children in the matrimonial dispute with the objective to alienate them from him. The expert expressed considerable concern over the mother’s actions in facilitating the children being interviewed.[83]
[82] Expert Report at [31], [61] and [121]; Mother’s Trial Affidavit at [183]-[188]; Father’s Trial Affidavit at [36].
[83] Expert Report at [34].
On 20 December 2020, there was a changeover which went very poorly. W refused to spend time with the father in accordance with the orders, however the girls did.[84]
[84] Father’s Trial Affidavit at [58].
The mother raised concerns with the father over his continued possession of weapons.[85] The father voluntarily surrendered his weapons to NSW Police.[86] On 16 December 2020, the father gave an Undertaking to the Court that he would not cause or permit any weapons to be on the property whilst the children were in his care, nor would he make an attempt to recover the surrendered weapons.[87] That undertaking continues to the present.
[85] Father’s Trial Affidavit at [47], Annexure A.
[86] Father’s Trial Affidavit at [295]-[296].
[87] Father’s Trial Affidavit at [48].
A Child Inclusive Conference took place on 19 January 2021.
Following an interim hearing on 25 January 2021, Interim Orders were made on 29 January 2021 for equal shared parental responsibility and requiring the mother to relocate the children back to the City B Area. These Interim Orders provided for the children to spend time with the father each alternate weekend, approximately half of the children’s school holiday time and for change overs. Given the allegations around alcohol and weapons, the father was restrained by injunction from consuming alcohol or operating a weapon at any time whilst the children were in his care and was bound by his ongoing undertaking not to seek to recover the surrendered weapons.
The mother unsuccessfully sought a stay of these interim orders pending Appeal. She terminated her employment and returned with the children to the City B area in February 2021.[88] The children returned to I School.[89]
[88] Mother’s Trial Affidavit at [16].
[89] Mother’s Trial Affidavit at [113].
On 11 March 2021, the Court ordered the appointment of the ICL.
On 6 May 2022, consent orders were entered resolving the property proceedings.
On 19 May 2021, the mother’s Appeal was dismissed with costs.
On 5 July 2022, consent orders were made altering the time allocated for the children to spend with the parents during the holiday period of Term 2 and Term 3 of 2022.
THE CIRCUMSTANCES OF THE SEPARATION
The mother’s evidence was that from about 2019, the father increased his alcohol consumption and that with this behaviour he would yell at her and the children and ignore her for days.[90] She said this behaviour became worse over time.[91] She said that the more alcohol he consumed the worse his yelling would become and that this yelling became aggressive.[92] She said the children would hide in their rooms to stay away from him.[93] She said he would storm into the children’s rooms when angry and if he heard one of them crying that he would ask them why they were crying, which made the situation worse.[94]
[90] Mother’s Trial Affidavit at [152].
[91] Mother’s Trial Affidavit at [152].
[92] Mother’s Trial Affidavit at [153].
[93] Mother’s Trial Affidavit at [153].
[94] Mother’s Trial Affidavit at [161]-[162].
The mother advised the expert that the father had shown “vast improvements, especially in relation to his drinking” post separation,[95] but in cross examination she maintained her evidence that he had had an alcohol use issue leading to the behaviours described.
[95] Expert Report at [243].
The husband addressed the mother’s assertions about his mental health and use of alcohol in his affidavit,[96] and in addition to addressing his current alcohol use said that “I have never been charged with any alcohol related offences. I deny that I have a problem with alcohol”.[97] The father also relied upon a negative hair follicle test of February 2022.[98] He maintained in his oral evidence that he did not and had not had an alcohol use problem.
[96] Father’s Trial Affidavit at [303]-[313].
[97] Father’s Trial Affidavit at [313].
[98] Father’s Trial Affidavit [311], Annexure AA.
The mother’s evidence was that the situation came to a head in August 2020.
In August 2020, the mother said that the father returned from attending a local sports game with friends and was abusive to her and to X.[99] She said they argued and the father walked down the hall and picked up a baby gate, used to keep X’s dog off their hardwood floors, which he threw outside.[100] She said that W was worried and amongst other abuse the father said to W “[W], piss of (sic) you cunt”.[101] The mother maintained her version of events in cross examination.
[99] Mother’s Trial Affidavit [156]-[160].
[100] Mother’s Trial Affidavit at [163].
[101] Mother’s Trial Affidavit at [167].
The father’s evidence was that after he arrived home on that evening, though not intoxicated, there was an argument about what the mother described as “your drinking habits”.[102] He said during the course of the argument he tripped on a baby gate and “removed the baby gate from the hallway” took it to the back door and “frisbeed the gate out on the back grass”.[103] He said the children were not present.[104]
[102] Father’s Trial Affidavit at [32].
[103] Father’s Trial Affidavit at [32].
[104] Father’s Trial Affidavit at [32].
In oral evidence the father agreed that he and the mother increased arguing towards the end of the relationship, and that that they argued about his alcohol consumption, but did not agree that this suggested his drinking was at a “problematic level”. He was not able to offer an explanation for why, if he did not have a drinking problem and was not inebriated or acting inappropriately, the mother argued with him about his drinking. He initially denied that when drinking he would be become loud, short tempered, and shout at the mother or children, but, when pressed, said both parties may have raised their voices and accepted that he sometimes yelled at the children. He sought portray his behaviour in “frisbeeing” a baby gate he tripped over onto the back lawn as a reasonable response to his trip and not something affected by alcohol.
When asked in cross examination whether or not he had said to W words to the effect of “piss off you cunt” he initially prevaricated, saying he could not remember as it was two and a half years ago. Only later, when pressed on the issue, did he deny saying this to W.
It was common ground that the atmosphere in the house in August 2020 was tense.
Later in August 2020, the father was engaged in killing livestock for personal consumption with one of his friends.[105] The mother says that they were drinking. She said that she “had been feeling unsafe because [Mr Andalis] and I had been arguing more frequently”.[106]
[105] Mother’s Trial Affidavit at [172].
[106] Mother’s Trial Affidavit at [174].
She said that he “glared at” her in a way that made her “feel like he was extremely angry with me” when he came into the house to change over weapons.[107] She said later that night he was red in the face, slamming doors and banging things and she felt that he was angry at her which made her feel “very scared and anxious”.[108] The next morning, the mother made a report to NSW Police, which she did not feel was taken seriously, then took the children and left the former matrimonial property saying she felt fearful for her safety and for the safety of the children.[109]
[107] Mother’s Trial Affidavit at [175].
[108] Mother’s Trial Affidavit at [177].
[109] Mother’s Trial Affidavit at [171], [184].
The mother maintained in cross examination that the father’s behaviour with the weapons in this incident was threatening and that she acted reasonably in removing herself and the children from a dangerous situation.
The father denied that he had acted in a threatening manner, and maintained that position throughout detailed cross examination. He did not dispute the basic facts as asserted by the mother in relation to the use of weapons and that they were present in the bedroom while he was putting them away. He accepted, as recorded by Dr GG below, that he looked at the mother while doing this. He denied any subjective intent to harm or to intimidate or threaten her.
The parties shared a general practitioner, Dr GG. The father consulted Dr GG in August 2020.[110] The notes recorded, amongst other things Dr GG’s summary that:[111]
“wife alleged glanced at her hold two [weapons] which is true as was putting [weapons] away after [killing livestock]; not sleeping, has made effectors (sic) to reduce drinking, but went out a fortnight ago […] and had 6-8 drinks…”
[110] Father’s Trial Affidavit at [306].
[111] Exhibit 7.
When being questioned about his discussion with Dr GG, the father, though denying excessive alcohol consumption, volunteered that Dr GG had said to him words to the effect of “look at what you’ve lost” through drinking. The father then said that Dr GG, his long term GP, had said this to him despite it not being true because Dr GG had believed the mother’s complaints, and not because of anything Dr GG knew about him. That is in the context where the father’s post separation consultation with Dr GG, in which the father told Dr GG he had made efforts to reduce his drinking, was the day before the mother’s teleconference with Dr GG.[112]
[112] Expert Report at [10]; Exhibit 7.
The mother spoke with Dr GG by telephone in September 2020. His notes recorded, amongst other things, that:[113]
[113] Exhibit 7.
husband yelling and swearing at times and this occurred [in August]
walked past me with a [weapon] with a glance; not talking at me over a week
alleges he is controlling; especially when drinking
is drinking 12 beers a day all of this year
after [that occurrence] did not drink for 3-4 days
partents collect cans and have collected $980 in 9 months, 10 cents a can plus home brew 9800 cans in 9 months between him and mate 13.6 cans a day
husband in complete denial about drinking
year 12 student drank alcohol at shows
always drinks and when uses [weapons]
has [accessories] for [weapons] at home
feels in control, very strong, want go home
presents well normal mood,
has weighed the pros and cons of making a decision
threw a baby gate out of house with force [in August]
august [W] wet himself due to anxiety, and worries about father
yelling at son precipates [W’s] distress and urinary incontinence
[Ms Andalis] gave consent to advise husband drinking is non negotiable.
(As per the original)
The mother’s history to Dr GG was broadly consistent with the mother’s evidence as to the father’s drinking, his behaviours, their impact on W, and as to her reasons for leaving and taking the children in August 2020. The history was given at a time when the mother was contemplating a reconciliation and wanted to return to the home. She sought to use Dr GG as a conduit to convey to the father that his drinking was non-negotiable if there was to be reconciliation.
It was put to the mother, by reference to Dr GG’s notes of September 2020, that her allegations of family violence were overstated, noting she felt “in control, very strong, want to go home”. She denied that. Her evidence was that she wanted to reconcile but that it was dependent on the father admitting and addressing his alcohol use and behavioural issues.
The father relied upon CDT testing in October 2020[114] and also liver function tests, which showed no physical signs of alcohol abuse, as evidence to support his case that he did not have an issue with alcohol and had not behaved in the manner described by the mother.
[114] Expert Report at [15]
DID THE FATHER ENGAGE IN EXCESSIVE ALCOHOL USE AND FAMILY VIOLENCE?
I am comfortably satisfied, noting the relevant evidentiary standard in s 140(2) Evidence Act 1995 (Cth), that the father engaged in excessive alcohol consumption and consequently acted towards the mother and the children, and in particular W and X, in the manner described by the mother.
The mother’s evidence on this topic was internally consistent and was consistent with the contemporaneous records of Dr GG’s interviews with the parties. It is also consistent with the histories given by the three older children. I do not accept that the children’s histories are the result of coaching by the mother. The three older children’s histories were consistent across time and broadly consistent across the children. I place particular weight on Y’s history of the father’s drinking and behaviours given she is more aligned with him, and wishes to live with him. I do not give any weight to Z’s statements given her age and the possibility that they reflect what she has heard from her siblings.
The father’s evidence on this topic, and in particular his oral evidence, was unpersuasive. The fact that he and the mother were, on his evidence, arguing about his alcohol consumption, his decision to raise the issue of his alcohol consumption with Dr GG immediately post separation and to tell Dr GG he was making efforts to reduce his drinking, and his evidence that Dr GG said to him “look at what you’ve lost” through drinking are all factors which weigh against the father’s evidence that he had not had a drinking problem, and consequentially had not engaged in low level family violence of shouting at and being aggressive and controlling towards the mother and the children.
The father’s evidence that his behaviour with the baby gate was not witnessed by the children, noting W described it to Ms N, and that it was a reasonable response not affected by drinking was not credible.[115] The father’s initial inability to address whether or not he told W “piss off you cunt” was surprising, given he would be expected to know whether or not that is how he spoke to his son, and his subsequent denial were not persuasive.
[115] CIC at 33.
I note that the CDT testing and liver function tests were undertaken some time post separation, and more importantly that it is the father’s behaviours when drinking rather than the scientific assessment of what constitutes excessive drinking that is the issue.
I note I have given no weight to the evidence of Ms T and Mr U on this topic, including through the Expert Report, nor to the fact that, as the father conceded, he was ejected from HH Venue in 2005 as per the COPS event of that date.[116] Further, I give no weight to the fact the father was a home brewer. I note that Ms AA, when asked whether the father drank to excess, at first asked what was meant by “excess” and continued to say “not since August 2020”; however, given the lack of specificity in her evidence, I do not give that weight in coming to my conclusion.
[116] Exhibit ICL4 (‘ICL’).
On the positive side, and without excusing in any way the father’s behaviours when drinking or their impacts on the mother and children, the expert reported that:[117]
… The father reports that he has greatly reduced his alcohol consumption and is willing to learn more about family violence. He seeks to rebuild trust and communication with the mother and hopes to coparent with her one day.
[117] Expert Report at [242].
The expert further reported that:[118]
The mother told the report writer that she had seen “vast improvements, especially in relation to his drinking” and believes that the father “has the capacity to improve”. She described [Mr Andalis] as having “some great qualities” and saw many benefits to him having an ongoing relationship with the children. Her current proposal is for the children to spend time with the father for half of each school holiday period, as well as at other times by arrangement. She proposes to rebuild trust and to improve communication by sharing parenting information and by sharing responsibility for important decision making.
[118] Expert Report at [243].
This was a very positive statement by the mother acknowledging the father’s efforts to address the issues that existed between them.
Y also told Ms N about the improvements she noted in her father with his cessation of drinking whilst the children were with him.[119]
[119] CIC at [22]-[23].
While I find that the father had an issue with excessive alcohol use, which lead him to engage in family violence, I also find that he has worked to address the issue and, consistent with the proposals of the ICL and mother, does not pose an unacceptable risk to the children so long as he does not drink while they are in his presence. The father’s prior behaviours justify the restraint on his drinking when the children are with him proposed by the mother.
The issue of the events in August 2020 are more complex.
The expert identified the circumstances as “incredibly tense” noting that:[120]“[t]hese events took place in a small rural community after an extended period of drought, nationwide bushfires and in the context of a global pandemic”[121] and in the context of the stresses also imposed by W’s autism and X’s issues. The expert accepted the mother’s actions were genuinely motivated by fear but stated that “[i]t is possible that she misread the father's intentions or overestimated the risk to herself and the children”.[122]
[120] Expert Report at [230].
[121] Expert Report at [230].
[122] Expert Report at [229].
I considered the mother and the father to both be subjectively honest in the evidence they gave concerning these events.
Weighing the parties evidence, and noting the relevant evidentiary standard, while I accept that the mother honestly felt fear in the context of the overall situation and the father’s aggressive behaviours when drinking, I find that that the father did not intend to intimidate or threaten the mother with the weapons which he was using for livestock.
I do not consider that the father’s use of weapons in farming operations poses a risk to the children. Further, Y in particular has an interest in farming and rural activities and may wish to be taught safe weapon operation in the context of a farming and rural lifestyle by her father. On this basis, I do not consider the restraint on the father’s use of weapons when the children are with him is necessary in addition to the restraint I will impose on his drinking.
There was an issue raised throughout the proceedings concerning the father’s “attitude towards women and towards parenting” with particular reference to his attendance at a dance competition.[123] The father’s oral evidence was that he sat at the front of the auditorium when his family was performing to support them but not otherwise, as he was troubled by what he considered the sexualised presentation of young girls and women. The manner in which young girls are dressed and presented in such performances may be a matter on which reasonable minds differ. There was also evidence that his attitudes may have impacted Y because she prefers not to wear a bikini as it was “too revealing” in the context that the father encouraged Y in wearing camouflage and in pursuing another sport.[124] This was all raised in the context of allegations of coercive and controlling behaviour. I am not satisfied that the father’s attitudes to women, including to appropriate dress, have been shown to be outside the mainstream nor that they pose any risk to the girls.
[123] Expert Report at [85], [116], [139], and [242].
[124] Expert Report at [209].
There was also an issue concerning the father’s mental health given a comment made by Ms T to the expert.
DID THE MOTHER ENGAGE IN A CAMPAIGN OF MALICIOUS COMPLAINTS?
I am comfortably satisfied, noting the relevant evidentiary standard in s 140(2) Evidence Act 1995 (Cth), that the mother engaged in a campaign of complaints against the father after she found out he was pursuing a relationship with Ms M, and that whilst the factual underpinnings of the complaints may have had some veracity, her making and prosecution of the complaints was motivated by anger and a desire to obtain evidence to assist her in these proceedings.
The circumstances surrounding the mother’s complaint to their employing department and her consent to the Department officer interviewing W, X, and Z, but not Y, as contained in the subpoenas are not in contest and are detailed by the expert.[125] As noted elsewhere I do not accept the mother’s statements[126] that she was “compelled to take them to be interviewed” and that as a parent she could not have declined to allow the children to be interviewed. The expert expressed “great concern” over these circumstances.[127] I hold the same concerns over the mother’s lack of child focus and involvement of the children when pursuing this complaint to hurt the husband’s employment and career.
[125] Expert Report at [31]-[34].
[126] Expert Report at [122]
[127] Expert Report at [34].
The mother was cross examined on this topic at length, and her explanation that she was a mandatory reporter, who only chose to report post-separation and, indeed, after finding out that the father was not interested in reconciliation but was pursuing another woman, was not credible.
The mother showed very poor judgment by having the children interviewed about the father’s behaviours by people who may not have had the appropriate training. This prioritised her needs over theirs.
Her involvement of the police in certain matters, beyond the family circumstances, was also clearly motivated by her anger at the husband, and again her explanations lacked any plausibility.
I substantially accept the father’s case on this issue, but noting Justice Kent’s comments in Carlson & Fluvium[2012] FamCA 32 at [168] about inflaming conflicts, I do not consider it necessary or appropriate to go into any greater detail here.
Nevertheless, the fact X and Z still seek a relationship with the father, even in the context of her evidence supported by her siblings as to the father’s particularly poor treatment of her, and the fact that Y wants to live with the father rather than the mother, together with the totality of the evidence, persuades me that whatever may have happened in the immediate aftermath of the mother finding out the father was pursuing another relationship, the mother has not continued to engage in an attempt to align the children with her against the father.
Further, for similar reasons, I am not persuaded that the mother will not support a relationship between the children and the father, nor that a move to Town D will result in the mother acting differently or seeking to impair the children’s relationship with the father moving forward.
In his affidavit, the father said that while he did not agree with the mother’s approach to the separation, and had concerns about the way the children had been involved in the dispute:[128]
I believe that [Ms Andalis] remains a dedicated mother to them. I'm sure that in [Ms Andalis’] mind she is doing what she believes is best for the children, however I do not agree that this is the reality.
[128] Father’s Affidavit at [11].
That is a positive statement by the father. He was entitled to be very concerned and upset at the mother’s conduct, but appears to have accepted that he also played a significant role in creating the circumstances to which she reacted in this way.
This position, together with his obvious efforts to reduce his drinking and address his behaviours, persuades me that the father has been able to stand back from the dispute and take a more child-focussed view over time, contributing to my view that the father has adequately addressed his drinking and associated behavioural problems.
WHAT FAMILY SUPPORT IS AVAILABLE?
The father gave evidence that his sister, Ms AA, would provide him with support if the girls live with him. The mother’s evidence was her brother and sister-in-law Mr U and Ms T would provide her with support in Town D and that she needs that level of help to work and care for four children, two of who have high needs for medical reasons, one because of her young age, and to be able to provide for Y too.
Ms AA
The father’s sister, Ms AA, spoke to the expert,[129] swore or affirmed an affidavit and gave short oral evidence.
[129] Expert Report at [186]-[196].
Ms AA lives in Sydney with her husband and has four children, who were aged between 4 years and 16 years when she spoke with the expert in November 2021.[130] I accept she had a close relationship with the children and with W in particular.
[130] Expert Report at [186].
She was at the change-over in 2020 that went poorly. She was criticised for turning up without notifying the mother she would be there; however, I do not think her intentions were bad, nor that she should be criticised for not understanding how fraught the co-parenting relationship was at that time. Her evidence was supportive of the father’s good character and his relationship with the girls.
In her oral evidence, Ms AA said that if the father were successful in having the girls live with him that her own obligations meant she could not assist during the week, but she would assist during school holidays and on some weekends. I note that even during school holidays Ms AA’s capacity to assist would still depend on her own family obligations.
Ms AA presented as a decent person seeking to assist in a difficult situation. I accept Ms AA would genuinely like to support the father in parenting the children, and in particular the girls, if they live with him. I accept that she will do what she can to assist the father. However, her own obligations with four school age children and a husband living in Sydney mean that the amount of practical support she can provide, even during school holidays, is necessarily very limited.
Mr U and Ms T
The expert interviewed Mr U and Ms T together.[131] They live in the Town D area where they moved due to COVID-19 and a desire for a change. They have four children between them from prior relationships and a fifth child KK (16) who attends EE School.[132] One of Ms T’s sons, Mr JJ, has a child, LL, who is at EE School and in year one.[133]
[131] Expert Report at [197].
[132] Mother’s Trial Affidavit at [53]; Mr U’s Affidavit at [23]; Ms T’s Affidavit at [27].
[133] Mother’s Trial Affidavit at [55]-[57].
Mr U also swore an affidavit and gave short oral evidence. It is clear from Mr U’s statements to the expert that he takes a partisan position in supporting the mother and has a very poor view of the father.[134] He expressed concern about W’s well-being in particular, and said that he thought W did better when living locally.[135] He is a consultant and works full-time from home.[136] Due to his work, he mainly works from about 2:00 pm-12:00 am, which aligns with European business hours. [137] He said he would be “quite happy to help with getting [W], [X], [Y], and [Z] to and from school or to and from appointments …” and that his job flexibility permitted this. He also said he is happy to have the children stay overnight.[138]
[134] Expert Report at [198].
[135] Expert Report at [210].
[136] Mr U’s Affidavit at [21].
[137] Mr U’s Affidavit at [24].
[138] Mr U’s Affidavit at [24]-[25].
In his oral evidence, he accepted that his relationship with the father had been strained and was “zero” now. He denied that he encouraged the mother to move to Town D but said that the difficulties the mother has encountered has strengthened their relationship. His evidence indicated he was familiar with and understood the significant needs of both W and X in particular. He said that he is willing to attend and help as required, including staying to get X to school and with other matters which may involve a significant commitment of time.
While Mr U’s partisan attitude against the father does concern me, it is not surprising given the findings I have made and reflects his acceptance of what he has heard from the mother and the children. I do not think he is likely to pose an impediment to the children’s maintenance of a relationship with the father, and I accept that he is both willing and able to provide the mother with significant practical assistance on a day to day basis in meeting the children’s needs, including, for example, staying with X until she can be coaxed to school so that the other children can go or be taken regardless of her behaviours. In this regard, I note Mr U’s evidence and also X’s comments to the Expert about her close relationship with Ms T.[139]
[139] Expert Report at [163].
Ms T spoke with the expert, provided an affidavit in similar terms to Mr U’s, and gave very brief oral evidence. She works part time and gave evidence that she also has the time, and is willing, to assist the mother with caring for the children.[140] I accept that evidence. Ms T gave lay evidence of the availability of medical services in the local area, and there is no evidence or reason to believe the availability of appropriate services for W and X will be less in Town D than in City B.
[140] Ms T’s Affidavit at [35]-[37].
I find that Mr U and Ms T are ready, willing and able to provide the mother with significant practical assistance in undertaking the everyday tasks necessary to parent the children. They are aware of W’s and X’s high needs, and I find are capable of assisting the mother to care for them, as well as for Y and for Z.
The additional capacity of two adult relatives, who have raised their own children and live approximately 10 minutes from the mother’s property in Town D, would provide a significant benefit to the mother and to the children.
SEPARATING THE CHILDREN
Given that W will live with the mother while the father proposes the girls live with him, and that X and Y expressed different views, there is an issue whether the girls should be separated from W, or whether the girls should be separated across the two households.
The expert’s view was that the children should all live together with the mother, despite Y’s views. She said that “any orders made should apply equally to all of the children”[141] and emphasised the importance of the long term sibling relationships. She maintained that view in oral evidence.
[141] Expert Report at [176].
In cross examination, the mother maintained that she was best placed to care for X, noting X’s high needs, Y despite her views, and Z who is still very young and who is still relatively dependent on the mother. The mother accepted that Y might eventually self-place with the father despite any Court orders. The mother said she would not relocate if any of the children lived with the father.
When cross examined on separating the children, the father’s answers were premised on the children living in City B regardless of which parent they lived with. He did not give evidence, nor ultimately make any proposal, addressing the possibility of the mother being permitted to relocate. It was in this context that it was put to the father that he knows his proposal for the girls to live with him is unworkable and that what he was really seeking to do was to stop the mother from relocating from City B with the children. The father said that while he wanted all of the children to remain in City B, where they would have access to both parents, even if the mother remains in City B he believes the girls will be better off living with him because of the better structure he can provide. His evidence was that he believed many of X’s issues arose from the mother’s inability to provide structure.
The father agreed in oral evidence that W needed consistency as a consequence of his ASD, but did not accept the girls living with him would be detrimental to W or to the sibling relationships. He conceded that not living with the girls would be “a very big change” for W, but said that given W’s age and the four days a fortnight they would live together on his proposal that W would handle this change. The father accepted the girls might “possibly” find being separated from W difficult, but did not agree that not living with W would impact the relationships between W and the girls, because W sits on his computer all day long and only interacts sporadically with the girls. He also said to the fact that in about two years’ time W is going to have to “face the world”, although conceded that W’s ASD meant that he may not leave home in that period and may live with the mother for a longer time due to his ASD.
The expert stated in her report and oral evidence that the mother best placed to deal with X’s complex needs and that it was inevitable X would live with the mother. [142] The father accepted in oral evidence that there were some issues the mother was better able to deal with, particularly given X’s age, gender and her self-care issues and that X did not want to live with him, and given her age, issues, and previously demonstrated resistance might self-place with the mother despite any Court orders. He nevertheless maintained that X would be better off living with him because he could provide her with structure, which he did not believe the mother was providing and which he considered would better address her episodic school refusal and other behavioural issues.
[142] Expert Report at [235].
The expert considered Y should live with the mother, despite her views, to maintain the long term sibling relationships. The father accepted that the girls might “possibly” find being separated from each other, unpleasant, although the father said that X spends a lot of time sleeping and isolating by herself so the impact on the relationship may not be too great on X. The father said he did not believe Y would be upset if separated from W or X but might have “some concerns” if separated from Z, but that they would still have regular time in the mother’s home on his proposal. He said he thought Y might self-place if her views were not respected.
The father’s evidence was that the parents were equal primary care givers and attachments and that despite her young age, Z’s best interests would also be served by living with him.
RELOCATION
The mother’s evidence was that she has no support network in City B, is socially isolated there in part as a consequence of people being aware of the marital breakdown and the small nature of City B. Her evidence was that W’s ASD, X’s high needs, Z’s needs due to her age, Y’s developmentally normal needs, and the need to work to support the family mean that she will struggle to cope in City B. On the other hand, in Town D she has Ms T and Mr U who have good relationships with the children and who have the time and willingness to provide a high level of assistance.
In cross examination the father said that he had not given any specific thought to whether he might relocate to the Town D area to be near the children should the Court determine that they live with the mother and that a relocation was in their best interests. He gave a variety of reasons why it would not be practicable for him to move including his ownership of a property in City B. None of the reasons he gave were compelling. Over time there would be expected to be relevant jobs in the Town D area. He could sell and buy in that area, although there would be transaction costs involved. He did not suggest that his nascent relationship was an impediment.
The father’s evidence and submissions were to the effect that any social isolation the mother experiences in City B is, to a large extent, the consequences of her own actions including in running a campaign against him in a small town. That did not address the reality of the factual situation that the mother is not supported in City B. I also note that the kind of support W and X in particular need, and which the mother needs in dealing with their behaviours, is not the type that even most good friends would be willing and able to provide over years.
FINAL PROPOSALS
At the conclusion of the expert’s evidence, and prior to closing oral submissions, the ICL provided a written statement of proposed orders.[143] I note I have dealt with W elsewhere.
[143] ICL Proposed Orders MFI 18.
The ICL’s proposal in relation to the girls was for the girls to live with the mother, who would have sole responsibility for them with an obligation to consult, and for the mother and children to be permitted to relocate to the Town D area.
The ICL proposed that the girls spend time with the father for one weekend during each school term and for half of each school holidays, with changeovers at J Airport. A parent would be at liberty to communicate with the girls by phone or video when the girls were not with them between 5:00 and 5:30 pm on each Monday and Thursday, and on special occasions, including each child or parent’s birthday, Christmas day, Easter Sunday, and Mother’s and Father’s Day. Each parent will be obliged to facilitate telephone conversations or video chats as requested. Given the girls’ ages this would apply primarily to Z. The girls will be given privacy during communication. As the father has not been using a video platform, he can seek to use video and the mother would be required to nominate a platform. The parties have agreed to use a parenting application, save in an emergency when they may communicate by text.
There would be a standard non-denigration order and a restraint on discussing the proceedings or on using the children to pass messages. Each of the parents would keep the other informed of contact details, medical problems or illnesses, medication prescribed, any social, school, or religious function and particulars of any other person who may reside with the children, noting that the status of the father’s new relationship and when his girlfriend may become involved with the children was not clear at trial. Each party would inform the other of any specialist medical appointments or allied health appointments and they would be permitted to attend. The ICL proposed the attendance would be “at the sole discretion of any such consultant”. I do not consider it appropriate to place that burden on, nor to delegate that decision to, a medical practitioner. There is no reason these parents cannot both attend such an appointment. Each parent will have access to all school and medical records.
The father’s proposal[144] up to closing oral submissions was that he have sole parental responsibility for the girls with an obligation to consult, and for the girls to live with him. In closing oral submissions, the father modified his position on parental responsibility to firstly propose sole parental responsibility to the parent the girls were living with, and then finally proposed that there should be equal shared parental responsibility regardless of who the girls live with.
[144] Annexed “A” to Father’s case outline MFI 3.
The father proposed that the mother be “restrained from relocating the residence of [W] and/or the children from the [City B] Local Government Area”. The father’s proposal was predicated on the basis that the mother would be restrained from relocating. He elected not to make submissions on the time the girls should spend with him if the mother was permitted to relocate with them.
He proposed that the girls spend time with the mother as agreed and failing agreement from 3:00 pm or the conclusion of school on Thursday until 9:00 am or the commencement of school on Monday during term time, for half school holidays and for each parent’s and each girl’s birthday and Mother’s and Father’s Day. He proposed the changeovers, other than from school, occur at the Suburb MM McDonalds.
Each parent would be required to keep the other informed of their residential address and contact details and to inform the other about emergencies and health issues, and details of doctors’ and other appointments and would be authorised to receive information and documents about the children from healthcare providers and schools. Each parent would be at liberty to attend any significant school events, extracurricular or sporting activities. Standard non-denigration orders were proposed. A mandatory pre-court mediation order was proposed.
Under the mother’s proposal[145] the girls would live with the mother and she would have sole parental responsibility for them. The mother and the children would be permitted to relocate to Region C of New South Wales, and in particular to the Town D area.
[145] Further Amended response to Initiating Application filed 30 November 2022
The girls would spend the weekend following the fifth week of school from Friday 7:00 pm until 3:00 pm, presumably on the Sunday, with the father, with change over at McDonald’s Suburb NN. Additionally, the girls would spend seven nights in the term one holiday, nine nights in the terms two and three holidays and two weeks in the summer holidays with the father. The school holiday changeover would occur at J Airport with each party responsible for the process and cost of getting to that point. The decision on driving or flying would be up to each parent. The mother proposed that if the children were not flying the change-over would be would be at McDonald’s Suburb K.
The girls would communicate with the parent they were not with each Monday and Thursday, birthdays, Father’s Day, Mother’s Day, Christmas, Easter Sunday and as is reasonably requested.
Under the mother’s proposal, the father would be restrained from consuming alcohol while the children are in his care and or for a period of 48 hours prior to the children coming into his care, and to continue to engage with a counsellor at PP Counselling for as long as recommended by that counsellor, and to undertake all programs and courses recommended. She also sought an ongoing restraint from having any weapons in his possession, or from making an application for weapon licences or collecting weapons. There would be a non-denigration order. The father would be required to provide each girl with their own bed and not allow the girls to co‑sleep with him. Obligations as to notification of emergencies, and on medications, with an obligation on the father to ensure medications were taken. The father would be informed of the name of the children’s school, with each party be entitled to have access to all materials and the father at liberty to “to virtually attend parent teacher interviews”. Each party would be at liberty to travel outside the Commonwealth Australia with the girls, contingent on a notice and consent basis and with the mother to hold the children’s passports.
BEST INTERESTS OF THE CHILD
The paramount consideration when making parenting orders is the best interests of the child (ss 60CA, 65AA) by reference to the factors set out in s 60CC. The two primary considerations, in order of weight, are firstly the need to protect the child from physical or psychological harm, from being subjected or exposed to abuse, neglect or family violence, and the benefits to a child of having a meaningful relationship with both parents.
Consistent with the implicit premise in each proposal, there was no submission of unacceptable risk in either household. There is a history of family violence by the father, which posed a risk to the children. The evidence indicates and I find that the father has adequately addressed his drinking problem, which was the major driver of his family violence behaviours. I am satisfied that the orders I make do not expose any person to an unacceptable risk of family violence.
W has a meaningful relationship with the mother but not the father. Given his age, his experience of the father, and the compounding factor of his ASD, I am satisfied that the consent orders provide the best opportunity for W and the father to re-establish a meaningful relationship is through the proposed consent orders.
I am satisfied that each of the girls has a meaningful relationship with both parents and that it is in the girls’ best interests to maintain those meaningful relationships. I also find that the mother is not seeking to alienate the children from the father nor promoting non-compliance with Court orders. In relation to the issue with X’s compliance with orders to spend time with the father I find that was a result of issues specific to X and not a consequence of the mother failing to promote X’s relationship with the father. I am satisfied that while the relocation to Town D will reduce the amount of time the girls spend with the father the orders I make mean that the long term meaningful relationships will continue.
I have set out the views of the children. Given their ages and the reasonableness of their views given their experiences of the father’s family violence I give significant weight to W’s and X’s views. I give weight to Y’s views and they will be taken into account, but note that she is still relatively young and that, on balance, I do not consider her best interests are met by making orders for Y in accordance with her views. I give little weight to Z’s views given her age.
The children all have a good relationship with the mother. W’s relationship with the father is fractured.
X’s relationship with the mother is strong. Her relationship with the father has been strained but continues despite his treatment of her and her many issues. The fact that X was trying to persuade W to forgive the father is a good sign for that relationship. However, given X’s age, her many personal issues and the relationship history with the father, in which I find that the father treated X particularly poorly, I consider requiring X to live with the father contrary to her views is likely to be highly counter-productive as there is a real possibility that X will resent the father and that the relationship will degrade. There is also a risk that X will self-place with the mother, potentially leading to further litigation, although the father did indicate he was unlikely to litigate to compel X to live with him if she self-placed.
Y has a good relationship with the mother and the father. She is more closely aligned with the father but the reasons for that are not clear. The evidence does not suggest that her alignment with the father is indicative of any issues in her relationship with the mother. Y will doubtless be unhappy with the order requiring her to live with the mother and in Town D away from the father. The additional support from Ms T and Mr U, particularly around W’s and X’s needs, may reduce some of the stresses in the mother’s household which may have contributed to Y’s preference to live with the father.
There is a real prospect that sometime in the next year or two Y will self-place with the father despite these orders and so these orders involve a risk of further litigation. I will structure the orders to try to accommodate Y’s views so far as possible, as recommended by the expert, by indicating that the parties may agree to Y spending additional holiday time alone with the father. I do not think it appropriate to try and formulate specific orders about that at this time.
Z has good relationships with both parents and appears to be the least affected by the parental conflict. I am satisfied she will not be adversely impacted by the change of circumstances to reside in Town D.
Each parent has participated in making decisions about major long-term issues in relation to the children, spending time with and communicating with the child to the extent possible.
Each parent has generally fulfilled their obligations to maintain the children.
The girls’ ability to spend time with the father will be reduced by the change of circumstances involved in the relocation. However, the mother and the children will receive considerable assistance from Ms T and Mr U, which will be a significant benefit to the children. On balance, W’s and X’s school performance and attendance issues are likely to reduce with the opportunity to attend the school of their choice. Y and Z both have good school attendance and performance and that is unlikely to be adversely impacted by the change. All of the children will need to find new social circles. Y and Z are likely to be most affected by that, however, they are both well socialised and should be able to create new social circles without too great an issue arising.
There is a degree of practical difficulty in the girls spending time with the father in City B given the driving distances or flight costs involved. Communication will not be impacted. The distances involved are not uncommon and the girls, including Z, are old enough that their established meaningful relationship with the father will be able to be maintained through the combination of the time I will order and the ability to communicate electronically including by video.
The father’s discharge of his responsibilities as a parent was adversely affected by alcohol use and his engaging in family violence, as was the mother’s by her decision to involve the children in her campaign against the father. Nevertheless, I find that both parents have moved on and addressed these issues. I am satisfied that the mother and the father both now have a focus on the children and on their responsibilities as parents and both have the capacity to provide for the children’s physical, emotional and intellectual needs and that Ms T and Mr U have the capacity to provide assistance to the children in these areas by supporting them and the mother in Town D.
I have addressed the children’s and parents’ maturity, sex, lifestyles and backgrounds and the characteristics of the children I consider relevant. The children are not of Aboriginal or Torres Strait Islander descent.
PARENTAL RESPONSIBILITY
Parental responsibility for W is agreed. Given my findings that the father engaged in family violence the presumption in favour of equal shared parental responsibility does not apply.
The father ultimately submitted that there should be equal shared responsibility for the girls regardless of which parent they lived with or in what location. The ICL and mother both proposed sole parental responsibility to the mother.
While the ICL proposed an obligation to consult be imposed on the mother in relation to decisions concerning W no such obligation was included in the ICL’s proposal for the girls. That may have been an oversight. No reason was advanced in submissions for the distinction.
While the parties have both moved forward, the ongoing level of distrust between them means that communication is not particularly good. On balance I am not persuaded that the parents will be able to communicate and work together sufficiently well to effectively share parental responsibility in a way which will meet the girls’ needs in a timely fashion. In particular I am concerned that possible disagreements about X’s medical care.
On that basis I find that it is not in the girls’ best interests for the parties to have equal shared parental responsibility. The ICL and mother proposed sole responsibility to the mother on the basis that the girls would be living with her. I consider that to be in the girls’ best interests.
For the avoidance of doubt each parent will be at liberty to make day to day decisions concerning the children when they are in their care.
SUMMARY AND ORDERS
The position with W is as stated.
I find it is in the girls’ best interests to live with the mother. I accept the expert’s opinion that it is inevitable that X should and will live with the mother and that Z’s age and the mother’s role as her long term primary carer make it in Z’s best interests to live with the mother. I find that despite Y’s views it is in Y’s best interests to remain living with her siblings and the mother.
In relation to Y I make that order acknowledging there is a real risk that Y will eventually self‑place contrary to these orders, and that this may lead to further litigation. I will not make orders for additional holiday time with the father for Y as was canvassed in submissions, but note that as she progresses through high school if she seeks to spend more time with the father the parties should consider allowing her to spend some additional holiday time with the father, including alone, subject to the practicalities of transporting the girls to change overs at different times.
I will make an order that the girls live with the mother.
The expert supported the relocation as being in the children’s best interests, particularly having regard to the demands on the mother in caring for these four children. The expert was of the view that the additional capacity to assist the mother and children provided by Ms T and Mr U supported the relocation. I accept that opinion and reach the same conclusion.
I also accept the father’s submission that if the Court found that the mother would not support the father’s relationships with the girls, or that if there was a risk that the girl’s meaningful relationships with the father would be impaired by a relocation, then allowing a relocation would not be in the girls’ best interests.
On balance I find that the mother will encourage and enforce compliance with the orders and will facilitate a meaningful relationship between the girls and the father. The fact that the girls still have that meaningful relationship, despite living with the mother and despite the ongoing conflict in these proceedings, supports that finding as does the mother’s oral evidence.
I note that I took the mother’s proposal for only two weeks of the long holiday to be spent with the father into account, together with certain other aspects of the mother’s proposal which seemed directed at limiting the father’s interactions with the girls, when considering whether the mother would in fact support the relationship. I accept the mother’s oral evidence that the situation between the parties has improved and that she does and will support the girl’s relationship with the father. On that basis to the extent that some aspects of the mother’s proposal of November 2022 appear inconsistent with that outcome I will not make the orders the mother proposes.
I find that allowing the relocation will not impair the girls’ meaningful relationships with the father. I find that the girls will benefit significantly from the care and assistance Ms T and Mr U can provide to them and the mother. The parties cited the leading authorities on relocation and I have considered them. I and satisfied and find that the mother should be permitted to relocate with the children to the Town D area. I will make that order.
I have set out my views concerning parental responsibility. While the relationship has improved sufficiently to allow the relocation without impairing the girls’ meaningful relationship with the father, it is not so good that it is in the girls’ best interests that parental responsibility be equally shared.
I will make an order that the mother exercise sole parental responsibility with an obligation to consult with the father prior to making a decision concerning any major long term issues, except where there is urgency such as might occur in a medical emergency, then to take his views into consideration and then to inform the father of any decisions and actions. For the avoidance of doubt I will include an order that each parent shall be responsible for making day-to-day decisions when a child is in their care.
The distance between Town D and City B necessarily means that the girls will spend less time with the father than if they remained in City B. I have taken that into account in forming the view that they will be able to maintain a meaningful relationship with the father despite the relocation. I note that the distances mean that even if equal shared responsibility did apply neither equal time nor substantial and significant time would be practicable.
The father did not make any proposals for time taking into account the possibility that relocation would be allowed.
In relation to the mid-term weekend proposed by the ICL, which is important for consistency, it is unrealistic to have a weekend commencing at 3pm or after school on a Friday and finishing at 3pm on a Sunday if the change-over is done through driving. That would involve the children travelling to City B until late Friday night and leaving City B early Sunday morning. They would spend nominal time with the father during which they would be tired, and they might come to dread the experience because it will be all travel and no time with the father. That would be counter-productive.
While change-overs by driving will work for school holiday periods, the only realistic way the mid-term time can occur is for the children to fly, and I consider that time essential to maintain the girls’ meaningful relationship with the father and so to permitting the relocation.
The parties both work as teachers and did not lead evidence of financial capacity constraints on change-overs, which are a necessary consequence of the mother’s proposal to relocate and of her submissions that through appropriate time with the father the girls’ meaningful relationship can be maintained.
Accordingly, in relation to the mid-term weekend which will start from term 4 this year assuming a relocation prior to the commencement of term 4, I will order that the children are to fly to City B on the last school day before the weekend and to return to Town D on the afternoon of the last day before school, but so that they do not arrive at either end after 9pm.
The father is to nominate the weekend well in advance so the girls, as well as the mother, are able to organise their activities and affairs, although for Term 4 of 2023 he can have until 1 September 2023. The father is to book and pay for the airfares and the mother to reimburse him for half. I note that the earlier the father picks dates and books the flights the cheaper they are likely to be. I will permit the father to select a long weekend to maximise the girls’ opportunity to spend time with him mid-term.
In relation to the school holidays I will order that the girls spend half of each school holiday with each parent, alternating the first and second halves.
The proposal for change over by potentially driving is feasible when dealing with holiday periods. Accordingly, I will order that each party be responsible for delivering the girls to a change-over at J Airport or Suburb K McDonalds depending on whether or not one party or the other is flying the girls for their portion of the trip.
While I consider it would be in the children’s interests for the father to also spend time with the girls in their new location and to learn about their lives in Town D no such proposal was properly put to me. Accordingly, I will not order an additional weekend during the school term in Town D. If the father did want to the opportunity to travel down and spend an additional weekend with the girls I would hope that the mother would accommodate such a request, consistent with her evidence of intending to promote the girls’ relationships with the father on which I have based my decision regarding relocation. If that occurs change-overs should be outside EE School, as proposed by the ICL if any change-overs are to occur in Town D.
I will make orders for communication by the girls with a parent and for communication between the parents broadly in line with the ICL’s proposal, as well as orders as to keeping informed, access to school and medical information, and general non-denigration restraints which were proposed.
Given the mother’s case in support of the relocation I will make orders that the father be permitted to attend any of the girls’ medical appointments or school functions which parents usually attend. I note that includes by video given his location.
I will make the mother’s proposed restraint on the father consuming alcohol given the history, but not on his possession of weapons as I do not accept that he poses a risk of intentional physical harm to the children.
There is no suggestion that either party is a flight risk. I will make the mother’s proposed international travel and passport orders.
If there is an application as to costs, including by the ICL, it should be made pursuant to the Rules.
I certify that the preceding one hundred and ninety-one (191) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 19 July 2023