Baker and Pickard

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAKER & PICKARD

[2014] FCCA 1859

Catchwords:
FAMILY LAW – Parenting – relocation.

Legislation:

Family Law Act 1975, ss.4(1), 60B, 60CA, 60CC, 61DA, 65DAA, 65DAB, 69ZN(4), 69ZX

Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, Schedule 1, Part 2, Items 44 – 48

Goode v Goode [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296
MRR & GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC ¶93-424

Applicant:

MR BAKER

Respondent:

MS PICKARD

File Number:

PAC 2400 of 2011

Judgment of:

Judge Halligan

Hearing dates:

26, 27 May 2014, 4 August 2014

Date of Last Submission:

4 August 2014

Delivered at:

Parramatta

Delivered on:

29 August 2014

REPRESENTATION

Solicitors for the Applicant:

Mr Cunningham

Solicitors for the Respondent:

Respondent Mother In Person

Solicitors for the Independent Children's Lawyer:

Ms Hafey

ORDERS

All prior parenting orders in relation to the children X born on (omitted) 2001 and Y born on (omitted) 2002 are discharged.
Ms Pickard and Mr Baker, the children’s parents, shall have equal shared parental responsibility for the children.
The children shall live with the mother.
The mother is restrained from changing the children’s place of residence to a place more than 75 kilometres from the (omitted) Central Business District.
The children shall spend time with the father-
(a)Each alternate weekend during school terms, from after school Friday, or after school Thursday if Friday is a public holiday, to before school Monday, or before school Tuesday if Monday is a public holiday, the father to collect the children from and deliver the children to their respective schools at the commencement and conclusion of his time;
(b)For one week during the school holidays at the end of Terms 1, 2 and 3 each year, from 6pm on the first Sunday of those holidays until 6pm on the second Sunday of those holidays, changeovers to occur at McDonald’s, (omitted);
(c)
For two weeks during the Christmas school holidays, from

12 noon on Boxing Day 2014 until 12 noon on the 14^th day thereafter and each alternate year thereafter, and from 12 noon Christmas Eve 2015 until 12 noon on the 14^th day thereafter and each alternate year thereafter, changeovers to occur at McDonald’s, (omitted); and
(d)Otherwise as agreed by the parents in writing, including SMS message or email.
If the children’s alternate weekend time with the father does not fall on the Father's Day weekend, the children shall spend time with the father on that weekend in lieu of the following weekend, changeovers to occur at McDonald’s, (omitted).
If the children’s alternate weekend time with the father falls on the Mother's Day weekend, the children shall spend time with the father on the following weekend in lieu of the Mother's Day weekend, changeovers to occur at McDonald’s, (omitted).
Each parent shall facilitate the children communicating with the other parent by telephone, SMS, email and Skype (if available) when the children are in his or her care.
Each parent shall keep the other informed of any medical issues concerning the children and shall provide any necessary authorities to enable the other parent to liaise directly with the children’s treating medical practitioners.
Each parent shall keep the other informed of a current residential address, contact telephone number and an email address which can be used to communicate information about the children.
Each parent shall consult with the other parent about the participation of either of the children in extra-curricular and sporting activities which may take place during the other parent’s time with the children, and following enrolment of either of the children in an extra-curricular or sporting activity the parent enrolling the child shall take all reasonable steps to ensure that the enrolled child is able to participate fully in the enrolled activity when the child is with him or her.
Each of the parents is restrained from-
(a)discussing these proceedings or the issues in them in the presence or hearing of the children or either of them;
(b)allowing any other person to discuss these proceedings or the issues in them in the presence or hearing of the children or either of them;
(c)denigrating the other parent or members of the other parent’s extended family or household in the presence or hearing of the children or either of them;
(d)allowing any other person to denigrate the other parent or members of the other parent’s extended family or household in the presence or hearing of the children or either of them.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DUBBO

PAC 2400 of 2011

MR BAKER

Applicant

And

MS PICKARD

Respondent

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings under Part VII of the Family Law Act 1975 concerning the parenting arrangements for X, who has just turned 13, and Y who is 11.
At the commencement of the hearing the applicant father sought that provided the mother remained living near him-
a)prior parenting orders be discharged;
b)the parents have equal shared parental responsibility for the children;
c)the children live with the mother when not living with him; and
d)the children live with him each alternate weekend during school terms from after school Friday, or if on a long weekend that includes the preceding Friday, from after school Thursday, to before school Monday, or if on a long weekend that includes the Monday, to before school Monday, and for half of all school holidays, with specific provisions for sharing time at Christmas and Easter and to ensure the children are with the mother on Mothers’ Day and the father on Fathers’ Day.
However, if the mother moved beyond a defined geographic area, the father proposed that the children live with him when not with the mother, and live with the mother for half school holidays subject to specific provisions for sharing time at Christmas and Easter.
During final submissions, the father for the first time also sought that the children spend two consecutive nights a fortnight during the week in school terms with him if they remained living locally.
If the court found that the children should live with the mother in (omitted), then the father sought to spend time with them for half of all school holidays with changeovers to occur in (omitted), and on the fifth weekend of each school term with the father to collect the children from and return the children to school, that is, with changeovers at school in (omitted).
The mother sought that current parenting orders, made by Bathurst Local Court on 9 May 2006, be varied to permit her to relocate with the children to (omitted), and that the children live with her and spend time with the father for effectively the whole of the autumn, winter and spring school holidays and the second half of the summer (Christmas) school holidays with changeovers in (omitted), together with two nights per school term at the father's option with changeovers in (omitted).
The mother did not indicate what orders she wanted if the court was not satisfied the children should live with her in (omitted).
Both parties also proposed other orders that appeared not to raise matters of significant controversy.
The Independent Children's Lawyer proposed that all prior parenting orders in relation to the children be discharged, that the parents have equal shared parental responsibility for the children, that the children live with the mother in the area she presently lives in, and that the children spend time with the father on alternate weekends during school terms from after school Friday to before school Monday, and for half of the school holidays at the end of Terms 1, 2 and 3 and for two weeks during the Christmas school holidays. The Independent Children's Lawyer opposed the children living with the mother in (omitted), but did not propose any specific geographic area within which the children should live.
While at various times in the proceedings reference was made to this being a relocation case, and reference was made to the court permitting the mother to relocate the children to (omitted), the issue is what parenting arrangement is best for these children. The mother's preferred option is living with her in (omitted). The father's preferred option is that the children live with the mother in the (omitted) area, but that if the mother moved out of that area, the next best option was that the children live with him.
I understand the mother's position to be that if the court was not satisfied it was best for the children to live with her in (omitted), then she would not herself move there. It was clear that she wished the children to remain in her primary care.
Thus, the issue for determination is whether it is better for the children to live with the mother in (omitted) or with the mother in the (omitted) area.

Background

The father is aged 42 (born (omitted) 1972) and the mother is aged 39 (born (omitted) 1975). The parents commenced cohabitation in (omitted) 1996, married on (omitted) 2000, finally separated in about August or September 2003, and were divorced in 2006.
X was born on (omitted) 2001 and Y was born on (omitted) 2002.
The father was previously in a relationship, and two children were members of his then household, A (aged about 22) and B (aged about 20). Although the father consistently referred to both A and B as his daughters, A is not his biological child. She is his step-daughter. The father asserted that he had a strong and close relationship with both A and B, that after he separated from their mother they lived with him and their mother in a shared care arrangement, and that there was a close relationship between the subject children and both A and B. The mother however asserted that in the time she had known the father, from 1996, she had “never heard” of A “living” with him at any time, and she asserted that A had “no relationship” with X and Y. The mother's contention that there is “no relationship” between A is incorrect, as amply demonstrated by the unchallenged Family Report. Both children referred to A as their sister. Regardless of that controversy, as a step-sister of the children A is their relative for the purposes of Part VII (see Family Law Act 1975, s.4(1), definition of “relative”).
Consent parenting orders made by the Bathurst Local Court on 9 May 2006 provide for the parents to have equal shared parental responsibility and for the children to live with the mother and to spend time with the father as agreed, and failing agreement, on alternate weekends, from 9.30 am Saturday to 5 pm Sunday until the commencement of 2008, and then from 8 pm Friday to 5 pm Sunday, subject to a provision that “to allow for light and weather restrictions a hand over time of 4 pm Sundays can apply for the months of May through to August”. The orders also provide that when the children attend winter sport commitments the mother will deliver the children to the father at (omitted) McDonald's one and a half hours after completion of their sport. These orders also provided for the father to spend time with the children for two periods of five days and four nights in each of the 2007 and 2008 calendar years, and from 2009 for half of all school holidays. These orders also required each party to give the other at least six weeks written notice if intending to relocate “from the (omitted)/(omitted) area”.
At the time these orders were made, the mother was living in (omitted). Hence the provision about an earlier end to the father's weekend time in the winter months and the changeovers in (omitted) one and a half hours after the children finish weekend winter sport commitments. The mother only lived in (omitted) for about six months, and then returned to live in the (omitted) area in close proximity to the father. However, she consistently declined the father's requests to increase his weekend time and to alter the changeover venue and time when the children played winter sports, necessitating both parents and the children to travel from (omitted) to (omitted) for changeover and then for both parents and the children to travel back to (omitted).
In late May 2011, the mother relocated with the children to (omitted) despite the father's objection to her doing so. On 31 May 2011 the father instituted these proceedings seeking the children’s return to the (omitted) area and other parenting orders.
On 28 June 2011, interim orders were made in these proceedings requiring the mother to return the children to the (omitted) area by no later than the commencement of Term 3, 2011, that they then attend the school they had previously attended, that children spend the first half of the coming winter school holidays with the father, and that the father's weekend time with the children resume on the first weekend of Term 3. These orders also provided that otherwise the 2006 orders were to apply.

Credit of the witnesses

The witnesses were each of the parties and the Family Consultant who authored the Family Report. The Family Consultant was not required for cross-examination.
I was concerned that both of the parties at times gave unsatisfactory evidence in cross-examination.

The father

A significant part of the father's case was that the mother had not facilitated his relationship with the children by, inter alia, not making the children available to spend time with him when they should have. One instance he gave of this was an occasion when he said the mother told him X was attending a hockey carnival her team was playing in and that she would not make X available to spend time with him, even though X was injured and could not play in her team. In cross-examination, when it was put to the father that on the preceding Friday the mother told him about the carnival and he agreed that X could attend instead of spending time with him, the father said he was told X was to participate in the carnival and only learned later that X was injured and unable to play. The inference from this answer is that he did agree to X attending the carnival, but on the mother falsely representing to him that the child was to play with her team.
When it was put to the father that his evidence in chief was that he had been advised of X’s injury prior to the carnival, he accepted that his evidence in chief was correct. The upshot was that he knew in advance that X was injured, and he did not deny agreeing to the child attending the carnival.
As a further example of the mother seeking to exclude him from the children’s activities, the father said in cross-examination that he was aware X played soccer and karate. He said he had never attended X’s karate, and asserted he had never been told when she attends her karate class. However, he then conceded that he had spoken to X about her karate and X had told him when and where she attends this activity. He also conceded that the mother had advised him in writing of the time and place of X’s karate.
His explanation for both these instances of incorrect evidence was that his memory failed him. However, both these matters go to a fundamental aspect of his case, that the mother does not facilitate his involvement with the children and actively seeks to prevent it, which in turn was a principal reason for his opposition to the children relocating. He asserted that based on the mother’s past alleged failure to facilitate his time and involvement with the children, the mother could not be relied on to facilitate the significantly less frequent time he could have with the children if they relocated, and thus he would lose his relationship with the children if they moved away. Hence, these issues as to the reliability of the father's evidence are of particular significance in his case.
While I am not satisfied that the father deliberately set out to fabricate his evidence on these matters, these issues with his evidence nonetheless raise questions about the reliability of his evidence generally where he is relying on his unaided recollection.

The mother

The Family Consultant stated in her Family Report that the mother told her that a paediatrician at (omitted) Hospital had diagnosed Y with “high functioning autism” and that a psychologist had assessed him as having “ADHD”. In cross-examination, the mother denied having said this to the Family Consultant. She said she told the Family Consultant that there had been no diagnosis. Yet she did not seek to cross-examine the Family Consultant to challenge this or any other part of her Family Report.
The father said that at a meeting with a paediatrician that they both attended in November 2013, he raised the mother's reported statement to the Family Consultant with the paediatrician, and the paediatrician said there had been no such diagnosis, to which he said the mother replied that she did not say there had been a diagnosis, but that a friend told her Y had these conditions. In cross-examination the mother denied having said a friend told her Y had these conditions at the consultation with the paediatrician. She said she was relying on what teachers’ reports and school counsellors’ reports had said, and that she wanted these matters considered by the child’s medical specialist.
When questioned about the teachers’ and counsellors’ reports she was referring to, the mother said they were written reports. She then said the written reports from the teachers were sent directly to the paediatrician and she did not have a copy of them. When asked how she knew what was in reports sent directly to the paediatrician, she said the teacher and the school counsellor told her what was in them. She then said she had read the reports in the meeting with the teacher and school counsellor. When it was put to the mother that both the school and the school counsellor had been subpoenaed to produce relevant documents and that no such reports were in the records produced, the mother said she could not explain this. She admitted that despite sending the father an email about problems Y was having at school, she had never made any mention in that email of the possibility Y may have autism or ADHD.
The mother's evidence about this issue appeared to evolve over the course of cross-examination about it. While it is possible the Family Consultant misunderstood what the mother said about autism and ADHD, it seems unlikely given the quite specific terms of what the Family Consultant reported the mother said – a paediatrician had diagnosed high functioning autism and a psychologist had assessed him as having ADHD. The specific reference to a paediatrician and a psychologist is difficult to reconcile with the mother's assertion she told the Family Consultant no diagnosis had been made.
But the difficulties with the mother's evidence do not end there. The way her evidence as to what she suggested she learned from the teacher and school counsellor and the source of that information – seeing reports that went directly to the paediatrician, an interview with the teacher and school counsellor, then being shown the written reports by the teacher and school counsellor – raise serious questions about the truth of the mother's evidence on this point.
I am not satisfied that the mother was truthful in her evidence on this topic, and this raises some question about the reliability of her evidence more generally.

Conclusions as to credit

In the result, I am satisfied there are grounds for approaching the evidence of both parties with some caution, although I am not satisfied that the credit of either was completely destroyed.

The evidence

It must be acknowledged at the outset, and in my view it is significant in identifying the relevant issues in this matter, that each party conceded at the commencement of the hearing that the other is a good parent. Neither parent attached any qualifications or exceptions to their concession. This is not a case where either party has raised any allegations about substance abuse, mental health issues or any other matter suggesting any significant parenting deficit in the other parent.

The mother alleged that the father had been violent to her before separation, but gave no evidence of any incident of either physical or verbal abuse. She said that immediately after the parents separated in 2003, she obtained an AVO against the father. She said she did so because the father assaulted her and threatened to kill himself and the children to punish her. The father said the application for an AVO was refused, no AVO issued against him, and he denied assaulting the mother or threatening to kill himself or the children. No AVO was put into evidence.
These allegations by the mother are very serious. The court would not make findings of assault or a threat to kill the children without clear and credible evidence of what occurred and when. The mother gave no such evidence. I am not satisfied on the very limited evidence in the mother's case that the father assaulted her or threatened to kill himself or the children. The mother's evidence is insufficient to raise family violence as an issue in these proceedings.
Despite the concessions each is a good parent, each parent in their evidence sought to criticise the other in their interactions with each other as parents of the children. Neither parent in evidence in chief acknowledged the strengths of the other as a parent and what the other parent could positively offer to the children, and neither in their evidence in chief made the concession so readily made at the commencement of the hearing. This is an unfortunate feature frequently encountered in parenting proceedings, where there is often an exclusive concentration in evidence in chief on negative matters about the other parent.
In consequence, inter alia, of the concessions each party made at the commencement that the other was a good parent, I was not satisfied that the affidavits of the supporting witnesses in each party’s case would assist me in deciding the matter, and I disallowed them consistent with the principle set out in s.69ZN(4) and pursuant to the powers conferred by s.69ZX. That reduced the number of lay witnesses from seven to two.

Mother's aborted relocation with the children May 2011

As alluded to, the mother relocated with the children to (omitted) in 2011 over the father's objection, and was subsequently ordered to return the children to the (omitted) area.
In the first affidavit sworn by the father in these proceedings in support of an order that the children not relocate, the father said that on 7 May 2011, the mother told him she was moving to (omitted). He did not suggest the mother told him when she intended to move, and he did not suggest he had any indication from the mother that she intended to relocate before that day.
In her first affidavit in these proceedings, the mother said that she advised the father on 17 April 2011 that she was thinking of moving to (omitted) but did not have a definite date for the move. She said she told the father she was giving him as much notice as possible and had written advice she wanted to give him. She said the father declined the offer of written advice and said “Do whatever you like”.
The mother said that on 7 May 2011 she told the father that she had received an offer of employment in (omitted) to commence in early June, and she would need to move on 28 May 2011. She said she offered the father nine weeks with the children each year during the school holidays, and the father said he would think about it. She said she asked the father to give her a written response including any suggestions for seeing the children, to which she said the father replied “No, you just do it”. She said the father then advised her he had tickets for the children to see “(omitted)” in June, and the mother asked him to advise her of the dates and she would attempt to organise to bring the children down so he could take them to the show.
The father then filed an affidavit (his second) in reply to the mother's first affidavit, in which he challenged parts of her evidence. However, the only part of the mother's evidence dealing with the parents’ conversations on 17 April 2011 and 7 May 2011 about the mother relocating that he disputed was the assertion that she had offered him written advice of her intention to relocate. The father denied that the mother attempted to give him a letter on 17 April 2011. In later affidavits the father said that he had conversations with the children from the beginning of May 2011 in which they told him they did not want to relocate, and he conceded that in the conversation with the mother on 7 May 2011 she advised him she intended moving on

28 May 2011. There was no issue that the mother referred again to the impending move in a conversation with him on 14 May 2011. There was no issue that the father never objected to the children relocating in any conversation about the relocation between the parents.
I am satisfied that the father knew from mid April 2011 that the mother was wanting to relocate with the children to (omitted) in the near future, that the relocation was raised in conversation between the parents on 17 April 2011, 7 May 2011 and 14 May 2011, and the father at no time indicated to the mother in any of those conversations that he opposed the move. The first notice the mother had that the father objected to the children moving away was when she received a letter from the father's solicitors, dated 13 May 2011, in the week of 16 May 2011.
The father said he did not tell the mother on 7 or 14 May 2011 that he objected to the relocation because the parents met at the children’s sport and he did not want the children exposed to an argument between the parents. He gave no explanation why he did not register any opposition when the mother spoke to him about it on 17 April 2011. Nor did he give an explanation why he did not register opposition to the move in a way that did not risk exposing the children to parental conflict, for example by SMS message, email, letter or phone call.
I accept the mother's unchallenged and uncontradicted evidence that the father gave responses to the mother on 17 April 2011 and 7 May 2011 that were at least indicative of indifference to, if not acquiescence in, the mother's proposals. Based on those responses, the mother terminated her employment and made arrangements to move. It was not until she had terminated her employment and the arrangements for the move were well progressed that she for the first time learned from a solicitor’s letter that the father objected to the relocation. Ultimately, she proceeded with the relocation over the father's belated strong objections.
What occurred in relation to the relocation is significant in my view in the context of criticisms that were made of the mother on behalf of the father and by the Independent Children's Lawyer for not consulting or informing the father about matters relating to the children. The mother agreed that she had not kept the father informed of some matters, and sought to excuse that by saying that over the years, she has regularly sought to raise and discuss matters about the children with the father and he has shown indifference or has simply ignored her communications.
The father said he does not communicate with the mother because of the high level of conflict between the parents, and because he is wary of being subjected to contrived allegations of violence or abuse.
What occurred in relation to the relocation in 2011 in my view neatly illustrates the dysfunctional communication between the parents, and is an example of how that can adversely impact on the children. On the occasions that the mother does seek to raise matters concerning the children with the father, he will not engage in discussion with her. I am satisfied that he in effect fobs the mother off to avoid any actual discussion with her about the children. I am satisfied this has been the pattern of the parents’ interaction for many years. In those, circumstances, it is perhaps understandable, although it may not be best for the children, that the mother on occasions has simply given up trying to engage the father in discussion about the children.
In April and May 2011, the dysfunctional communications between the parents resulted in the father not telling the mother he objected to the children relocating when she attempted to discuss the matter with him, instead avoiding the issue, in circumstances where I am satisfied the mother reasonably interpreted his response as at best agreement to the move or at worst indifference to it. The mother then acted to her, and ultimately the children’s, detriment, by putting in train arrangements for the move, including resigning her employment. When she belatedly received objection to the move from the father's solicitors, she nonetheless proceeded with the move, and was ultimately ordered by the court to return the children to the (omitted) area.
In all of this, the children have been the innocent victims of their parents’ highly conflicted and dysfunctional parental relationship. The episode of the aborted relocation has served to even further intensify the conflict, animosity and distrust between the parents, to which the children have been exposed now for many years.

Father's time with the children after 2006 orders

There is no issue that the father has generally spent time with the children in accordance with the 2006 orders, although there have been occasions when he has not done so. The father said the mother on occasions prevented him spending time with the children when he should have, which the mother denied. The mother said the father on occasions told her he could not have the children when he should have, which the father denied.
An example of this controversy is the 2010/2011 Christmas school holidays. In mid 2010, the parties agreed that the father would take the children on an overseas holiday in his time during the next Christmas holidays. The father said they agreed he would take the children to (country omitted). The mother said they agreed he would take them to (country omitted). Passports were obtained for the children. The mother said that later in the year the father told her he was intending to take the children to (country omitted), not (country omitted), and she objected because of safety concerns. The father attended the mother's home in early January 2011 to collect the children, the father said the trip to (country omitted) was all arranged, the mother maintained her objection to the children going to (country omitted), based she said on information contained in a travel advisory she read on the relevant Government web site, and ultimately she refused to allow the children to go with the father.
Another example is the incident when X went to support her team at a hockey carnival, to which I have referred when dealing with the parents’ credit.
The father also complained that the mother has not kept him informed of significant matters affecting the children, academically, medically and socially. The mother conceded that she had not informed the father in a timely manner about some matters, and in some cases, for example the information about X’s karate referred to when dealing with the parties’ credit, the father's assertions were incorrect.
When Y was suspended from school the mother advised the father in writing what she said occurred, and what she had done and proposed to do to address the issue. She advised the father she had met with the school Principal and the school counsellor and would follow-up to ensure the issue was being appropriately addressed. The father attended a meeting with the Principal to discuss the issue, but took no further action other than to request a written statement from the Principal about what had occurred to seek to contradict what the mother said had occurred. The father gave no evidence of speaking to Y about what occurred, he gave no evidence of speaking to the school counsellor, he gave no evidence of speaking to the child’s teacher. Yet the father complained that the mother was preventing him being involved in addressing Y’s needs.
The father complained that the mother did not respond to his requests for copies of the children’s school reports, although he gave no evidence of when he made any such request. He gave no evidence of seeking copies of the children’s school reports directly from the school.
The father was critical of the mother for not earlier realising there was a problem with Y not completing his set homework, and not effectively addressing the problem when she became aware of the problem. The problem was clearly flagged in Y's Semester 1 2013 school report, a copy of which the father said he received.
If the mother can be criticised for failing to provide the father with copies of school reports, the father can be criticised for not seeking them directly from the school. If the mother can be criticised for not realising there was an issue with non-completion of Y’s homework earlier, so can the father, as he regularly had the children with him and could have discussed the children’s school progress and taken an interest in their homework, just like the mother could. If the mother can be criticised for not effectively addressing Y’s non-completion of set home work, so can the father, as he knew there was a problem yet did nothing about it.
The impression created by these matters, and the father's great reluctance to seek to have the children spend any mid-week time with him during school terms if they are living locally, is of a father who seeks to only spend recreational and sporting time with the children. He said he and the children “regularly” go camping, motorbike riding, water skiing, swimming, ten-pin bowling, to the movies, to one of the children’s half-sister’s touch football competitions, and on holiday to the NSW (omitted) from time to time. He gave no evidence of showing an interest in the children’s scholastic progress during his time with the children. The evidence created an impression of a father who does not wish to become involved in the more mundane aspects of child rearing but who expects the mother alone to attend to those matters, and who is prepared to criticise the mother for any perceived failings in relation to matters for which he is equally responsible and in relation to which there is much he could do, with or without the mother's cooperation, but does not do.
Ultimately, bearing in mind the picture that emerged from the circumstances surrounding the mother's aborted relocation and my findings as to the parents’ credit, I am unable to resolve many of the factual disputes around the instances in the evidence when the children did not spend time with the father in accordance with the 2006 orders.
However, the evidence about these matters further illustrates the difficulty in these parents successfully negotiating arrangements for their children. I am satisfied that much of their evidence is coloured by their highly partisan perceptions about their interactions, and that their high levels of mutual distrust and animosity mean that their perceptions and interpretations of their interactions are unlikely to represent an accurate objective description of what occurred.
The father said he paid child support as assessed. The mother said that the father was assessed to pay her $400 per month but only paid $200.
The father has worked as a self-employed (omitted) at all relevant times. The father said he could not relocate to (omitted) because of family ties in the area of (omitted) where he lives, and a small business he operates in the area, which he said he could not relocate to (omitted). The father further complained of the costs of attempting to spend time with the children if they moved to (omitted), which he described as “prohibitive” with the impact it would have on his ability to conduct his small business. However, he gave no evidence as to the costs of spending time with the children if they lived on (omitted), he gave no evidence as to his financial circumstances, and he gave no evidence to show that spending time with the children would impact on his ability to conduct his business.

The parties’ proposals

The father

The father's proposals have been set out at the beginning of this judgment.
In relation to the father’s proposal that if the mother did not remain within 75 kilometres of (omitted), then the children should live with him and spend time with the mother during school holidays, the father said that he could be the children’s primary carer with the assistance of the children’s paternal grandmother and his eldest daughter. He said being self-employed, he had some flexibility with his working hours and could usually deliver the children to and collect them from school, and if he was unavailable to do so, the paternal grandmother or his daughter could do so.
The father said the paternal grandmother and her partner and the children’s half-sister and step sister live in the (omitted) area, and that the children enjoy a close relationship with “the paternal grandparents” and their sisters, and spend time with them.
The father said that the children’s maternal grandfather and maternal step grandmother, a maternal great aunt and a maternal great uncle live in (omitted). He said one of the children’s maternal uncles lives in (omitted) and another in the (omitted) region, either in (omitted) or (omitted). He said the children enjoy a close relationship with “the maternal grandparents”. He did not suggest that if the mother moved away and the children lived with him that he would ensure the children saw the members of their extended maternal family living locally.
I raised at the beginning of the hearing the effect of s.65DAA under the father's application for an equal shared parental responsibility order, and commented on the fact that the orders he sought were neither equal time nor substantial and significant time. Despite this, the father's position at the commencement of final submissions remained unchanged.
During final submissions on behalf of the father, I pressed his solicitor to indicate unequivocally whether the father submitted that either or both equal time and substantial and significant time were in the children’s best interests and reasonably practical.
It was submitted on behalf of the father that if the children remained in the (omitted) area, equal time was not reasonably practical because of the father's work commitments and that substantial and significant time was both in the children’s best interests and reasonably practical. Even then, it was only when I pressed the father's solicitor as to why, if substantial and significant time was both in the children’s best interests and reasonably practical, the father was not seeking such an order that he received instructions from the father that the father would accept one mid-week night. When I asked exactly order, if any, the father sought for substantial and significant time, for the first time in the proceedings the father sought an order for substantial and significant time. He sought two consecutive mid-week nights each fortnight during school terms, in addition to the time he was already seeking.

The mother

The mother's proposals have been set out at the beginning of this judgment.
The mother and the children live in a home near (omitted) that the mother jointly owns with Mr S. The mother and the two children live in that home with Mr S and his 16 year old daughter, who on the mother's evidence appears to be displaying serious rebellious and oppositional behaviour towards her father. The mother and Mr S were formerly in a relationship. The father asserted the mother remains in a relationship with Mr S. The mother denies this.
The father had no objection to Mr S living in the same home as the children. His issue was with the mother's alleged dishonesty about her current relationship with Mr S. I am unable on the evidence to find that the mother and Mr S remain in a romantic relationship. As the father conceded, this matter is otherwise irrelevant.

The evidence of the Family Consultant

The evidence of the Family Consultant in her Family Report is unchallenged and I accept it.
The mother stated to the Family Consultant that she did not know what impact a move back to (omitted) would have on the children.
The Family Consultant was of the opinion that if the children move to (omitted), the children would benefit from a long weekend with him mid term, and that if the father was unable to travel to (omitted) to do so, the children would be old enough to fly as unaccompanied minors to Sydney. However, I note that both children expressed a preparedness to do so only after travelling accompanied by a parent on some occasions, that the father had made no enquiries as to the cost of air travel, and the mother said air travel was too expensive for her to pay for.
If the children remain in the (omitted) area, the Family Consultant was of the opinion that due to the level of parental conflict and the children’s exposure to it, changeovers should occur at school, and the children should spend from after school Friday to before school Monday with the father on weekends they are to spend with him, provided he was available to collect the children from and return the children to school, was available to spend the whole of the weekend with the children, and took the children to their weekend sporting and school commitments that occurred while the children are with him.

The applicable law

The proceedings come under Part VII of the Family Law Act 1975, being proceedings for parenting orders. As the proceedings commenced before 7 June 2012, most of the amendments to the Family Law Act effected by Schedule 1 of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 that commenced on that date do not apply to these proceedings, and in most respects, the Family Law Act as in force on 6 June 2012 continues to apply to these proceedings (see Schedule 1, Part 2, Items 44 – 48 of the amending Act).
The Court may make such parenting order as it sees fit, subject to ss.61DA (presumption of equal shared parental responsibility) and 65DAB (parenting plans) (s.65D). There have been no parenting plans about these children, so s.65DAB is not relevant.
Section 60B sets out the objects and principles of Part VII. In deciding what parenting order to make, the children’s best interests are the paramount consideration (s.60CA). Section 60CC indicates how the court determines the children's best interests.
The synthesis of ss.60B and 60CC in the decision making process is explained by the Full Court of the Family Court of Australia in Goode v Goode [2006] FamCA 1346 at [10], (2006) 36 Fam LR 422 at 428, (2006) FLC 93-296 at 80,888-9, as follows:
“10. Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration (as they did prior to the amending Act – see B v B: Family Law Reform Act 1995 (1997) FLC ¶92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.”
When making a parenting order, the court must apply a rebuttable presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child (s.61DA(1)). However, the court does not have to apply that presumption if it is satisfied there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in abuse of the child, or of another child who was a member of the abuser’s family, or has engaged in family violence (s.61DA(2)). The presumption in favour of equal shared parental responsibility may be rebutted by evidence that satisfies the court that an equal shared parental responsibility order would not be in the child’s best interests (s.61DA(4)).
If the court is to make an equal shared parental responsibility order, the court must first consider the child spending equal time with each parent, and if such an order is not to be made, the court must next consider the child spending substantial and significant time with each parent (s.65DAA, and see MRR & GR, [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC ¶93-424). In relation to each of these options, which the court must consider sequentially, not concurrently, the court must consider whether such an arrangement would be in the child's best interests (S.65DAA(1)(a) and (2)(c)) and then consider whether such an arrangement is reasonably practicable (s.65DAA(1)(b), (2)(d) and (5)). If so satisfied on both these matters, the court must consider making such an order (s.65DAA(1)(c) and (2)(e)).

Assessment of primary considerations (s.60CC(2))

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

These children can benefit greatly from having meaningful relationships with both their parents. The problem for these children is the stress the children are exposed to in passing between their parents, because of their exposure to and acute awareness of the conflict between the parents.

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

I am not satisfied that the evidence raises any protective concerns for these children, other than the need to shield them from the parental conflict, which I am satisfied has been emotionally and psychologically harmful to the children.

Assessment of additional considerations (s.60CC(3))

(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

Both children told the Family Consultant that they wanted to move with the mother to (omitted), but that they wished to spend more time with their father than school holiday time. The way that wish was expressed suggests to me that one weekend in each term in (omitted) is less than the children want. While both children made their wish for some weekend time with the father conditional on it being possible, they both seemed to want that time to be spent with the father in (omitted), not in (omitted).
I accept the opinion of the Family Consultant that because of X’s chronological age, and her apparent level of maturity and intelligence, considerable weight should be given to her views, but that because of Y’s apparent immaturity and developmental delay little weight should be given to his views.

(b) The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

I accept the evidence of the Family Consultant that both children have a very good relationship with the mother, who appeared to provide very good day to day care of the children.
I accept the evidence of the Family Consultant that both children have a good relationship with the father and that he is important to them. I accept the evidence of the Family Consultant that the children spoke more positively of their relationship with their father than the mother described, and that the mother appears to somewhat minimise the importance of the father to the children.
I also accept the evidence of the Family Consultant that due to the established nature of the children's relationships with the father and the children’s ages and stages of development, it is likely those relationships would be maintained if the children moved to (omitted), but that if the children moved away, it would be important for the children to maintain regular telephone and Skype contact with the father once or twice a week, and see him whenever practicable. I note that the father has only telephoned to speak to the children twice in 11 years, despite the fact the children each have a mobile phone and the father knows their numbers.
The Family Consultant’s opinion about the children’s relationships with their father being maintainable if they moved to (omitted) is dependent on the children spending appropriate time with the father in addition to the telephone and Skype communication referred to. Whether the court can be satisfied the children will spend appropriate time with the father if they move to (omitted) in my view is the crucial issue in this case.
I accept the evidence of the Family Consultant that the children have good relationships with both A and B as half-siblings, even though A is not a blood relative of the children. However, given the age differences between the children and the older girls, their relationships may be appropriately maintained with less frequent contact. I am satisfied that the mother minimises the significance of the children’s relationships with A even more than she minimises their relationships with the father.
I accept the evidence of the Family Consultant that the children have a good relationship with the paternal grandmother, who with B attended the interviews with the Family Consultant. I accept the evidence of the Family Consultant that the children’s relationship with their paternal grandmother is such that the children seeing the paternal grandmother only periodically would be unlikely to detrimentally affect it.

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

I am not satisfied that the mother fully appreciates the importance to the children of their relationship with their father. I am not satisfied that she has consistently facilitated and encouraged that relationship.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

This consideration in my mind is the most important in this case.
The father expressed concern that if the children moved with the mother to (omitted), she would not facilitate his time with the children. I share that concern.
However, the mother should not bear sole responsibility for the problems that have arisen in the children spending time and communicating with the father, or for the difficulties I see in the children maintaining their relationship with their father if they were to move away. On occasions the father has not spent time with the children when he could have. He has only twice in eleven years sought to telephone them. And responsibility for the ongoing high levels of conflict between the parents that have caused difficulties in the children maintaining time with the father as they should must be shared by both parents.
I am satisfied that the conflictual relationship between these parents, for which both parents share responsibility, has been a real impediment to the children spending time with the father, and I am not satisfied this will improve if the mother moves with the children to (omitted). If the children move with the mother as she seeks, I am concerned that with the much longer intervals between times the children can spend with the father, any missed occasions of time the children should spend with the father will be much more significant, and have a much more significant impact on the children’s ongoing relationship with him. While a missed weekend while the children live close to the father may mean a period of four weeks between the children seeing the father, a missed occasion when the children are in (omitted) could result in the children not seeing their father for nearly six months unless, under the mother's proposals, he comes to (omitted) for a weekend mid term. But in (omitted) the children will of necessity not be spending time with the father in his home, the time will be quite limited, and will be unlikely to provide parent/child interaction for sufficient time to be particularly significant in maintaining the relationship between the father and the children.
If the children move to (omitted) and problems arise with the father's time in the way I am satisfied it is likely to, I am satisfied it will also adversely impact on the children's relationships with the paternal grandmother as well as with A and B.

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

If the children move to (omitted), there are obvious practical difficulties and expense in the children spending regular time with the father. I am not satisfied either party has fully explored the costs of the various options for the children to travel between (omitted) and (omitted).
I am concerned that the mother's apparently generous offer to undertake the travel to bring the children to (omitted) to see the father during school holidays and to take them back at the end of his time has not been properly considered by the mother, and that she has offered this in an effort to make her proposal more attractive. In cross-examination, she began referring to her uncle and aunt or her brother either undertaking the travel or accompanying her on these trips, something not mentioned in her evidence in chief as part of her proposal. The mother spoke of seeking employment, yet her proposals did not seem to factor in the possibility employment may prevent her undertaking both legs of each trip for the children to see their father, even though she proposed changeovers on weekends.

(f) The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

I am satisfied both parents can adequately meet the children’s needs, subject to my observations about the mother's failure to properly appreciate and promote the children’s relationship with their father, and my observations about the father's failure to take steps available to him independently of the mother's cooperation or consent to address Y’s educational and behavioural issues.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

There are no matters relevant under this consideration not otherwise dealt with.

(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right

This consideration is not relevant.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

I have already noted that the mother has at times not facilitated the children's relationship with their father as she should, and that the mother minimises the importance of the children’s relationship with their father. I have also already noted the father's failure to take steps open to him independently of the mother's cooperation to address Y’s particular needs. Both these matters reflect adversely on the parents respectively in relation to their attitude to their parental responsibilities.
There is a factual issue, which I cannot resolve on the evidence before me, as to whether the father is paying the full rate of assessed child support, or only half the assessed rate. Neither party produced a statement from Child Support as to the amount the father is in fact paying.

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

I am not satisfied there is evidence sufficient to prove any family violence.

(k) Any family violence order that applies to the child or a member of the child’s family, if the order is a final order or the making of the order was contested by a person

There are no current relevant family violence orders.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

In relation to the children’s live with and spend time with arrangements, I am satisfied it would be better for these children to make an order less likely to lead to further proceedings, and I am satisfied that an order that the children live with the mother in her current area is less likely to lead to further proceedings than an order that they live with the mother in (omitted). I am satisfied that under the latter scenario, difficulties in the children spending time with the father are likely to have far more serious consequences for maintaining the children’s relationship with the father because of the less frequent opportunity for the children to spend time with him, and are more likely to result in further proceedings than difficulties in the children’s time with the father under the former scenario, where the children will have many more opportunities to spend time with him and difficulties can be more readily overcome where the travel times between the parents are much less.
On the other hand, for reasons that I will shortly set out, I am satisfied that in relation to parental responsibility, it would not be preferable to make the order less likely to lead to further litigation.

(m) Any other fact or circumstance that the court thinks is relevant

I am not satisfied there are any other relevant matters not otherwise addressed in these reasons.

Section 60CC(4) and (4A)

I am satisfied that the mother has not always facilitated the father's time and communication with the children, that the mother has not always kept the father informed of significant matters concerning the children, including in relation to their health and education, and that the father has generally sought to spend time and communicate with the children and to be involved in decisions about their upbringing. However, I am also satisfied that the father has not taken all reasonable steps available to him to seek to address Y’s educational and behavioural issues when he became aware of them, nor has he sought to obtain the children’s school reports from the school when, as he asserts, the mother failed to provide copies to him. I am satisfied that the father has tended to seek only involvement in the children’s recreational and sporting activities on weekends and school holidays, and has tended until recently to leave the more mundane aspects of child rearing, such as educational matters, to the mother, making his criticisms of the mother in relation to the recent problems Y has encountered rather hypocritical.
As already mentioned, I am unable to resolve the controversy as to whether the father is paying the full rate of assessed child support.

Discussion and decision

Parental responsibility

The father and the Independent Children's Lawyer proposed that the parents have equal shared parental responsibility. The mother sought sole parental responsibility.
The Independent Children's Lawyer submitted that while the lack of communication and the high level of conflict between the parents would make the exercise of equal shared parental responsibility problematic, a sole parental responsibility order in the mother's favour may empower the mother to minimise the father's involvement with the children and could harm the relationship between the father and the children. She submitted that on balance, the potential adverse consequences for the children of a sole parental responsibility order were more serious than the potential adverse consequences for the children of an equal shared parental responsibility order.

I accept the submissions by the Independent Children's Lawyer. The Family Consultant was of the opinion that the mother tended to minimise the importance of the father to the children. I accept that opinion. While the mother complained that the father has failed to take an interest or to be involved in decision making about the children when she has sought his opinion in the past, the evidence is that when given the relevant information recently, the father has sought to be involved in attending medical appointments in relation to Y, and in fact it was the mother who failed to attend and bring Y to a recent appointment. The father rebooked that appointment and advised the mother of the new appointment date, and he attended when the mother brought Y to the rescheduled appointment.
I am satisfied that it will be difficult for these parents to exercise equal shared parental responsibility. Under an equal shared parental responsibility order, decisions about major long-term issues in relation to the child must be made jointly by the persons having shared parental responsibility (s.65DAB(2)), and before making such a decision, the persons having shared parental responsibility must consult with each other in relation to the decision and must make a genuine effort to come to a joint decision about the issue (s.65DAB(3)). If those sharing parental responsibility cannot agree on a joint decision, then no decision can be made and the issue would need to be litigated in court.
Where parents have poor or no communication, as here, or where parents’ communication is marked by conflict and dispute, as here, it is clear that the exercise of shared parental responsibility would be problematic. I am satisfied there is a real risk that these parents will not be able to make joint decisions about some major long-term issues concerning the children, and hence I am satisfied that an equal shared parental responsibility order is more likely than a sole parental responsibility order to lead to further proceedings. Some decisions about major long-term issues may be time-sensitive, and the litigation process may not be able to provide a timely decision for the children. In this regard, it is relevant that Y will commence high school next year, and the parents under an equal shared parental responsibility order will need to agree on the high school Y is to attend. The evidence does not suggest they have explicitly agreed on the high school he is to attend, whether he moves or not.
However, where the mother I am satisfied has in the past failed to keep the father informed of significant matters concerning the children and has not consulted the father or otherwise sought to involve him in decision making about the children, and where the Family Consultant was of the opinion that the mother tended to minimise the importance of the father to the children, I am concerned that a sole parental responsibility order in the mother's favour will empower the mother to keep significant information about the children from the father, and to significantly limit the extent to which the father is involved in the children’s upbringing. I am satisfied that this will risk stifling the development of the children’s relationship with their father, and will not be in the children’s best interests.
I am therefore satisfied that on balance, an equal shared parental responsibility order will better serve the children’s interests than a sole parental responsibility order in the mother's favour, in that I am satisfied the potential detriment to the children of a sole parental responsibility order is greater than the potential detriment of an equal shared parental responsibility order.

An equal time or substantial and significant time arrangement

If the children live with the mother in (omitted), neither an equal time arrangement nor a substantial and significant time arrangement would be reasonably practical, as these are school age children.
It was submitted on behalf of the father that if the children remained living in the (omitted) area, the father’s work commitments meant he was unable to care for the children for half the time and hence an equal time arrangement was not reasonably practicable. The Independent Children's Lawyer supported that submission.
The father is a self employed (omitted). As such, he has some flexibility in his working hours. These are school age children. The mother works, but must limit her hours because of her child care obligations. I accept that if the father reduced his working hours to care for the children during the school week, he would likely have a reduced income. But that is the situation the mother is in, and it is not suggested it is not reasonably practical for her to have the children the majority of the time.
The father made much in his case of the extended supportive family he has in his local area, and in fact sought an order that the children live with him for the majority of the time if the mother did not remain living in the (omitted) area. He failed to explain why, if that were so, he could not make appropriate arrangements for the care of the children under an equal time arrangement with little or no impact on his total overall hours of work.
I therefore reject the submission that an equal time arrangement is not reasonably practical because of the father's work commitments.
In determining whether equal time or substantial and significant time would be reasonably practical, the court must consider, inter alia, the parents’ current and future capacity to implement such a care arrangement and to communicate with each other and resolve difficulties that might arise in implementing the arrangement (s.65DAA(5)(b) and (c)). It was submitted by the Independent Children's Lawyer that due to the high level of parental conflict and the parents’ inability to communicate with each other, they would be unable to implement a substantial and significant time arrangement and would be unable to resolve issues that might arise under such an arrangement.
I accept this submission. The parties’ level of conflict is high, and the children have been exposed to it to the extent that, according to the mother, if she is walking down the street with the children in the local shopping centre and the children see the father coming, they seek to go into a shop to try to avoid their parents meeting. It is an indictment on both parents that their children are too frightened and/or embarrassed to be seen in public with both their parents for fear of open displays of parental conflict. The exposure of the children to the parental conflict is emotionally and psychologically abusive of the children, and both parents share responsibility for this.
I am satisfied that if the children had to move between the parents’ homes during the school week, the parents would be incapable of sensibly and cooperatively addressing the problem if one of the children needed an item that was in the other parent’s home. I am satisfied that if this arose, as it would be likely to, the children would be forced to negotiate the mine field of conflict between the two parents to try to get the item they needed, and would simply be at risk of further emotional and psychological abuse.
These concerns apply equally in determining reasonable practicality and the children’s best interests, and apply equally to an equal time arrangement and a substantial and significant time arrangement. I am therefore satisfied that neither an equal time arrangement nor a substantial and significant time arrangement would be in the children’s best interests or reasonably practical.

Live with arrangements

As mentioned, the options for the live with arrangements for these children are that they live with the mother in (omitted) or they live with the mother in the (omitted) area.
The mother argued that living in (omitted) will mean she has greater family support, from her aunt and uncle and a brother who live in (omitted). She said her aunt and uncle have offered to accommodate her and children until she can secure her own accommodation, and have offered to assist her in child care when needed.
However, if the children move to (omitted) they will move away from the father, from the paternal grandparents, from their half-sister and step sister, and from the maternal grandfather and maternal step grandmother, albeit the evidence does not suggest that the maternal grandfather and maternal step grandmother provide any significant assistance to the mother in the care of the children. I accept the opinion of the Family Consultant that due to the children’s ages and levels of maturity and the nature of the children’s relationships with the father, the paternal grandparents and the children’s sisters, a move away is unlikely to adversely affect the children’s relationships with these people, provided the children spend time with the father when they should. And this in my view is the fatal weakness in the mother's proposals.
The level of conflict between these parents is high and their communication highly conflictual. They have little or no ability to cooperatively negotiate parenting arrangements with each other. Whether one parent or the other bears greater responsibility for this state of affairs I cannot determine on the evidence. But in my view that is irrelevant. Whoever bears greater responsibility, if either does, the consequence is that I have serious doubts that the spend time arrangements will work smoothly where ever these children live, and that there is a significant risk that the children will miss some occasions of time they should spend with the father as a result of the parents’ inability to negotiate respectfully and constructively about parenting arrangements.
I am satisfied that with the much less frequent time the children could spend with the father if they lived in (omitted), the consequences of missed time are potentially far more serious for the maintenance of the children's relationship with the father than if the children remain living in the (omitted) area. If the parents live in relatively close geographic proximity, I am satisfied that difficulties that may arise in effecting changeover arrangements for the children may be more easily overcome. And in any event, one missed occasion of time with the father will result in a much shorter gap between times the children see their father if the children are living in relatively close geographic proximity to him.
Despite the children’s views in favour of living in (omitted), and the risk that frustrating those views may engender some resentment of the father in the children for having prevented the move, I am satisfied that it will better promote the children's interests if they live with the mother in the (omitted) area.

Spend time with and communication arrangements

The Independent Children's Lawyer submitted that it would be in the children’s best interests to spend time with the father on alternate weekends during school terms from after school Friday to before school Monday, for one week of the school holidays at the end of Terms 1, 2 and 3 each year, for two weeks during the Christmas holidays, and from 9am to 6pm on Father’s Day, provided that if the father's time falls on the Mother's Day weekend, he return he children to the mother at 9am on Mother's Day. The Independent Children's Lawyer also proposed that each parent facilitate communication via telephone, email and Skype (if available) between the children and the other parent whenever the children are in their care.
If the children were to live in the (omitted) area with the mother, the father sought that his alternate weekend time with the children commence after school Thursday if the Friday was a public holiday, and end before school Tuesday if the Monday was a public holiday. He sought half of all school holidays, specific time at Christmas, and proposed that if his time fell on the Mother's Day weekend, it be postponed to the following weekend, and if Father's Day fell on a weekend the children would not otherwise spend with him, that he have the children that weekend in lieu of the following weekend.
If the court found that the children should live with the mother in the (omitted) area, the mother had no major objection to the father's time as proposed by the Independent Children's Lawyer, other than the time of commencement and conclusion of the school holiday time, 10 am on Mondays, which she said was impractical for her because of her work commitments. She proposed that the father's school holiday time begin and end at 8.30 am on Monday or at 6pm on Sunday. Otherwise, the mother objected to the Independent Children's Lawyer’s proposal that changeovers that did not occur at school occur at the (omitted) Centre, because she believed it was not a location likely to have other people present consistently at changeover times. She preferred McDonald’s at (omitted) instead, with which the father agreed.
I am satisfied that spending time with the father during school terms on alternate weekends from after school Friday, or Thursday if the Friday is a public holiday, to before school Monday, or Tuesday if the Monday is a public holiday, and for one week during the shorter school holidays and two consecutive weeks during the Christmas school holidays is in the children’s best interests, as providing an appropriate opportunity for the children to spend regular time with the father so they can continue to develop, and benefit from, a meaningful relationship with him. It will ensure that the need for the parents to meet for the children to pass between them is minimised, and thus will minimise the risk of the children being further exposed to open displays of parental conflict.
In relation to Father's Day and Mother's Day, I am satisfied the father's proposal is preferable to that of the Independent Children's Lawyer, as it will obviate the need for the parents to meet for the children to pass between them for those special weekends.
In relation to Christmas, the Independent Children's Lawyer proposed that the father's block holiday time during the Christmas holidays commence at noon on Boxing Day or noon on Christmas Eve on alternating years. The father sought that he have half of the Christmas holidays, alternating between the first and second half, with the children to spend time with him from 3pm Christmas Eve to 2.30 pm Christmas Day when the children are with him for the second half of the holidays, and with the mother for the same time when the children are with him for the first half of the Christmas holidays.
I am satisfied that the Independent Children's Lawyer’s proposal for Christmas time and the Christmas school holidays is preferable as it will minimise the need for the parents to meet for the children to pass between the parents during the Christmas holiday period. I am satisfied this is necessary to minimise the risk of the children being further exposed to open displays of the parental conflict.
The father also sought specific arrangements for Easter time. He sought that the children spend time with him from the conclusion of school on the day before Good Friday until the commencement of school on the day after Easter Monday in alternate years. The difficulty with this proposal is to reconcile it with his proposal that he have the children for the second half of the end of Term 1 school holidays each year. In some years Easter falls during the end of Term 1 school holidays, and in some years it does not. When it does, it may fall on the first weekend, the middle weekend or the last weekend. If Easter fell on the first weekend of the end of Term 1 school holidays in a year covered by the father's proposal for Easter, he would have the children in effect for the whole of the school holidays, because the commencement of school after Easter Monday in that scenario would be at the conclusion of the end of Term 1 school holidays.
Ultimately, I am not satisfied it would be in the children’s best interests to make specific provision for the children to spend time with the father at Easter time, due to the need to avoid undue complexity in the parenting arrangements to minimise points of conflict between the parents, and also due to the need to reduce the necessity for the children to pass directly between the parents to a minimum to reduce the risk of their exposure to open displays of the parental conflict.
As to the changeover venue when the parents must meet, I am satisfied McDonald's (omitted) is an appropriate venue.
Otherwise, I do not understand there to be any controversy as to the orders proposed by the Independent Children's Lawyer if the children are to live with the mother in the (omitted) area.

I certify that the preceding one hundred and forty-seven (147) paragraphs are a true copy of the reasons for judgment of Judge Halligan

Associate:

Date: 29 August 2014

[2014] FCCA 1859

29 August 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies