Baldwin and Baldwin

[2010] FMCAfam 1524

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BALDWIN & BALDWIN [2010] FMCAfam 1524

FAMILY LAW – Parenting – relocation sought by wife – consideration of applicable principles – ESPR sought by both parents and appropriate orders for the Father to spend significant and substantial time with the children.

Family Law Act 1975, ss.60B(1)(a) & (2), 60CA, 60CC (2) & (3), 61DA (4), 65DAA(1), (2), (3) & (5), 68F(2)

Pitken v Hendry (2008) FamCA 186
Taylor & Barker [2007] Fam CA 1246
Sampson & Hartnett (No.10) [2007] FamCA 1365
Goldrick & Goldrick [2007] FamCA 1260
Goode & Goode [2006] FLC 93-286
Secretary, Department of Health and Community Services v. JMB & SMB (1992) 175 CLR 218 at 270-2
CDJ & VAJ (1998) 197 CLR 172 at 219
AIF v AMS (1999) 24 FamLR 756
U v U (2002) 211 CLR 238
MRR & GR [2010] HCA4 (3 March 2010)

Applicant: MR BALDWIN

Respondent: MS BALDWIN

File Number: BRC 11763 of 2009

Judgment of: Coker FM

Hearing date: 15 July 2010

Date of Last Submission: 15 July 2010

Delivered at: Brisbane

Delivered on: 16 July 2010

REPRESENTATION

Counsel for the Applicant: Ms Carmody

Solicitors for the Applicant: Parker Family Law

Counsel for the Respondent: Mr Alexander

Solicitors for the Respondent: Granite Belt Law

1. That except as otherwise stated, the Father and the Mother are to have equal shared parental responsibility for the major long term issues of the children [X] born [in] 2005 and [Y] born [in] 2007 and [Z] born [in] 2008 (“the children”) including but not limited to:-

   (a)a child’s education (both current and future);

   (b)a child’s religious and cultural upbringing;

   (c)a child’s health;

   (d)a child’s name;

   (e)changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with each parent.

2. That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:-

   (a)They shall inform the other parent about the decision to be made;

   (b)They shall consult with each other on terms that they agree;

   (c)They shall make a genuine effort to come to a joint decision.

3. That notwithstanding the provisions of Order 1:

   (a)the Mother shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with her;

   (b)the Father shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.

4. That the children live with the Mother.

5. That the children spend time with the Father at all reasonable times as agreed between the parties but failing agreement as follows:-

   (a)Whilst the Father lives in the Brisbane metropolitan area and the Mother in the [S] area:-

   (i)on each weekend that the Father does not have to work (rostered [omitted] and recreational leave on weekends) from 5.00pm Friday until Sunday at 4.00pm, on the proviso that the Father have no more than three (3) weekends with the children in every five (5) week block and not more than two (2) in a row, with changeover to take place at the [omitted] Service Station at [A];

   (ii)the Father may elect to spend time with the children on weekdays that the Father is not working, with such time to take place in [S], with the Father to provide the Mother seven (7) days written notice of his intention to spend time with the children;

   (iii)by telephone at all reasonable times, but no more than once daily, with the Father to initiate the call to the Mother’s mobile and for the Mother to facilitate the children speaking with the Father;

   (iv)   for the second half of the June/July school holidays;

   (v)the Father will provide to the Mother a copy of his work roster and thereafter provide any subsequent roster as soon as is practicable and will give three (3) days notice of any recreational leave granted on weekends.

   (b)In the event that the Father is living in the same locality as the Mother:-

   (i)the children spend substantial and significant time with the Father in accordance with his work roster for up to twelve (12) nights in each twenty-eight (28) day period, provided that the children do not spend more than three (3) nights in any one (1) week (in a Monday to Monday period) with the Father;

   (ii)the Father is to communicate his roster to the Mother as soon as possible and advise of any changes to the roster forthwith.

6. That whilst the Father continues to live in the Brisbane metropolitan area, changeovers occur at [A] and otherwise the Father is to collect the children from their day-care centre or school if possible or alternatively from the Mother’s residence at the commencement of visits and the Mother is to collect the children from the Father’s residence at the conclusion of time spent, unless the Father is able to return the children to school or day-care or unless otherwise agreed in writing between the parties.

7. That the Mother forthwith commence psychotherapy with a psychologist in the [S] area for treatment of Post Traumatic Stress Disorder, and in particular her fears of safety and cognition of abuse potential.

8. That pursuant to s.121 of the Family Law Act 1975, the Mother provide a copy of the Family Report of Mr C dated 14 June 2010 to her psychologist.

9. That each parent communicate with the other parent respectfully with the use of a communication book which is to travel between the households with the children and otherwise the parties can communicate in cases of urgency via email, text message or other appropriate means.

10. That the Mother and Father shall:-

    (a)keep the other parent informed at all times of their residential address and landline contact telephone number;

    (b)keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children;

    (c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children.  This Order authorises any treating medical practitioner to release the children’s medical information to the other parent.

11. That the parents authorise, by this Order, the schools or day care centres attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at that parent’s cost).

12. That the Mother comply with any and all recommendations concerning medication or treatment as may be issued by her treating general practitioner or psychologist.

13. That the Mother and Father are hereby restrained and an injunction issue restraining the Mother and Father from denigrating the other parent to or in the presence of the children or allowing the children to remain in the presence of any person acting in such a manner.

14. That the outstanding property proceedings in this matter be adjourned to 9:30am on 25 August 2010 for mention in the Federal Magistrates Court of Australia at Brisbane.

15. That unless final agreement is reached between the parties in relation to property proceedings, the Father file and serve a reply to the Mother’s Response seeking property orders by no later than 4:00pm on 18 August 2010.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 11763 of 2009

MR BALDWIN

Applicant

And

MS BALDWIN

Respondent

REASONS FOR JUDGMENT

1. These proceedings relate to issues with regard to the parenting of three young children:  [X], born [in] 2005, therefore five years of age;  [Y], born [in] 2007, therefore three years of age;  and [Z], born [in] 2008, and therefore not yet quite two years of age.

2. The children are the children of the relationship between Mr Baldwin, whom I shall refer to as “the father,” and Ms Baldwin, now known as [Ms Laine], whom I shall refer to as “the mother.”

3. The parties were in a relationship, it appears agreed, for a period of about five years or so.  They commenced to reside together in or about May of 2004.  They married [in] 2004, and finally separated on 19 July 2009. 

4. The applications that are before the court are what might normally be referred to as a relocation case.  The fact is that the father, in his application filed on 24 December 2009, sought orders with regard to the children living with him, but then went on to propose that there should be equal shared parental responsibility, and sought a restraint to be placed upon the mother such that she not be able to relocate with the children to the [S] area, and that the children are to reside within a

   
   

   40 kilometre radius of [R].  It was also then proposed by the father that there should be specific arrangements in relation to the mother spending time with the children, including five nights in each 14, as well as then those specific arrangements that are so often put in place with regard to the children’s birthdays, special days such as Mother’s Day, Father’s Day, school holidays and the like.

5. The father’s proposals in relation to this matter then went on to detail arrangements with regard to the means by which communication could and should be effected between the parents, as well as the provision of information as to residential addresses, telephone numbers, the educational or caring organisations that the children attend, as well as medical information including, the father specifically sought, orders with regard to the provision of information as to the mother’s treating psychiatrist, and the provision by the mother to the father of an authority to enable the psychiatrist to speak to him and to release information in respect of the mother’s capacity to care for the children.

6. The father has more specifically clarified his position in relation to this matter in the case outline document, which was filed on 24 June 2010.  There the father detailed more specifically what was proposed, and in particular had varied his position from one where it was suggested that the children should live with him and spend time with the mother, to a situation where the children should live with the mother, but that there should still be equal shared parental responsibility and, because of the orders sought by him with regard to the mother being at least in the same proximity as him at [R], that he would be able to spend, according to the fixed roster which is currently in place, a period of 15 out of each 35 nights with the children.

7. The orders that were proposed by the father provided with some considerable particularity the times that the children were to be in his care, so as to take into consideration specifically the arrangements with regard to his fixed roster.  The orders again provided some particularity in relation to alternative arrangements with regard to the time otherwise to be spent, and the provision of information with regard to educational or caring organisations, as well as medical information, but went on to repeat the concerns that the father had with regard to the mother’s mental health, and therefore his capacity to both correspond with and to discuss with her medical practitioner or practitioners, information about treatment. 

8. Additionally, the father detailed specifically an order which reflected a recommendation contained within the family report, which was relied upon in relation to this matter.  Order 6 of the proposed orders was to the effect that the mother would forthwith commence psychotherapy with a psychologist in the [S] area for treatment for post-traumatic stress disorder, in particular her fears relating to the safety and cognition of abuse potential, and that a copy of the report of Mr C be released to the said psychologist.

9. The father’s proposals were specifically provided on the basis of his capacity to continue his employment with the [omitted] at the [R] [workplace], being an organisation or a [workplace] large enough to have the fixed roster arrangement, upon which evidence was given in relation to this matter.

10. The mother’s response in relation to the proceedings was only filed on 17 June 2010.  The response detailed the mother’s proposals in relation to this matter, and basically went on to detail what she suggested was in the best interests of the children.  First and foremost, it was proposed the previous orders and parenting plan should be discharged, and that there should be equal shared parental responsibility for major long-term issues in relation to the decisions to be made with regard to the care of the children.

11. The mother then went on to propose that the children should live with the mother and the father as agreed between the parents, but failing agreement went on to particularise what the proposal was in relation to the time to be spent by the father with the children, should the father be in Brisbane, but that the mother were able to continue to live in the [S] area where she currently lives, and where, it would appear from evidence, she moved on or about 2 December 2009.

12. The mother’s proposals in relation to such time to be spent by the father were for there to be more stringently fixed arrangements in relation to time to be spent, including alternate weekends from 5 pm Friday until 4 pm Sunday each alternate weekend, and for there to be school holiday opportunities, upon which there would also be fixed arrangements with regard to the first or second half of the holidays.

13. The mother proposed, that in addition, the father should be able to spend time with the children in [S] on any of his rostered days off during the week that the father may arrange, provided however, that seven days’ notice was given in relation to such an opportunity being taken by the father. 

14. Orders were proposed in relation to special days and special occasions, including Christmas Day, though I note specifically that the mother’s proposal in that regard was that the children spend time with their parents by telephone on Christmas Day.  In that respect, it appears clear that that is a reflection of the mother’s concern, which was expressed in 2009, about travel with the children, particularly for long distances, during such occasions as Christmas Day and matters of that nature. 

15. The mother also particularised arrangements in relation to the Father’s Day weekend as well as Mother’s Day, and sought that there should be specific arrangements in relation to telephone communication such that there were arrangements in place for the children to communicate with the parent with whom they were not living at any particular time, and any time that the children or a child might reasonably request, and that each of the parents were to ensure that the children were available to receive telephone calls, and to arrange for the children to telephone the other parent on the occasions of time to be spent.

16. The mother went on then to detail proposals in relation to collection and delivery of the children, and suggested that if, as she proposed, she was to reside in [S] and the father was to continue in Brisbane, then that the handover point should be at [A] at a mid-point, which apparently was the subject of agreement in orders previously made on 19 April 2010.

17. The mother’s proposals also then went on to detail arrangements in respect of dispute resolution prior to proceedings coming back before the court, and then, under a final heading of incidentals, went on to detail certain other specifics that the mother sought.  The first of those related to the father being responsible for the payment of the cost of private health insurance for the children, and interestingly, as it did not appear to be the subject of any argument in relation to this matter, that the children’s surname be changed to the hyphenated name Laine-Baldwin. 

18. Additionally, it was sought that the father agree to attend anger management classes within two weeks of the date of these orders, and that the father complete a parenting course within two weeks of the date of these orders, and to provide evidence to the mother of his enrolment in such courses.  There are no orders sought by the mother in relation to similar considerations by her, and I will make some comments in respect of those particular aspects of the matter during these reasons.

19. In the case outline that was filed, of course, only a matter of some four weeks after the response was filed, the mother’s proposals in relation to arrangements with the children had changed little.  It was certainly still the case that the mother proposed that there should be equal shared parental responsibility, that the children should live with her in [S], that there should be fixed or specific arrangements in relation to the children spending time with the father whilst he was in Brisbane, and that there be particularised arrangements in relation to school holidays, special days, and the like.  Dispute resolution was also detailed, as were those other matters to which I have referred.

20. There was no information provided in respect of what might have been considered appropriate in relation to alternatives, it being clear that at least one possibility being specifically addressed in the family report, and also addressed by the father in evidence before the court, was the possibility of him obtaining a transfer within the [employer omitted], so as to have employment much closer to where the mother might be living, and in fact, as I understand his evidence, indicating that he would seek to accommodate himself, if that were to occur, in the [S] area so that he would be immediately available for a far more significant role and involvement in the children’s lives.

21. When raising that specific issue with the legal representatives for the mother, the indication given was that the mother’s position in relation to this matter was that there should still be a continuation of the alternate weekend arrangements, perhaps with some additional time, in what might be called the off-week or other week, but that the mother still proposed that there should be a far more significant time spent with her than with the father, even if they were, for example, to reside in close proximity one to the other.

22. Of course, in relation to matters with regard to the parenting of children, as is almost invariably the case, the most significant evidence that falls in relation to any determination is that which comes from the parties themselves.  They are the two persons most closely or intimately involved in the decisions to be made with regard to the children, and of course, in a reversal of that type of consideration, they are clearly the two most important people in the children’s lives.  Their involvement, therefore, in the children’s lives, and their capacity to be involved, and to have a meaningful relationship with the children, is of particular significance.

23. But that is not to say that there are other considerations that must be looked at, and in this regard I note that the maternal grandmother, as well as both the paternal grandmother and paternal grandfather, filed affidavits in relation to this matter.  Not a great deal turned upon the evidence that they gave in relation to the proceedings, but it would be remiss of me not to comment in relation to the evidence of each of those parties.

24. I turn firstly to the evidence of Mrs B, the paternal grandmother.  The reason that I refer firstly to her is that Mrs B’s affidavit of 21 June 2010 was generally accepted in relation to the proceedings, and in fact the paternal grandmother was not required for cross-examination in relation to these matters.  I am satisfied of course that that flowed from the fact that certain of the evidence that was given by Mr B senior in relation to this matter was a reflection of what he and his wife’s position would be in relation to the matter, but I note also that there was no challenge to the evidence given by the paternal grandmother as to matters in relation to the involvement of both parents significantly in the parenting of these children, and her observations with regard to concerns, in respect of the mother’s behaviours.  I accept, without any further need for comment, the matters that are contained within the affidavit of Mrs B and, if you like, as a final comment in relation to same, accept unconditionally that she is a loving, caring, generous and involved grandparent who of course would have nothing but the best interests and the welfare of her grandchildren at heart, and that she would in every possible way, be involved both in the support and care of the children, as and when that might be necessary.

1. Similarly, I have before me the affidavit of Mr B, the paternal grandfather.  Mr B was required for cross-examination, though his evidence did not go far in relation to this matter.  What Mr B senior was called upon to comment about was, particularly, issues in relation to rostering within the [employer omitted], it being clear that Mr B had had a lengthy career in the [employer omitted], and certainly was able to provide significant information in relation to the practices that were followed.  Mr Baldwin was a [occupation omitted], and in fact was based at the same [workplace] as the father, the [R] [workplace].

2. Mr B senior gave evidence in relation to this matter which again was, if you like, reflective of the fact that just as was his wife, he had been very involved in the children’s lives, that he was very supportive of the father, but I thought not in any way overly critical of the relationship that he had with the mother, or of her relationship with the children.  In fact, the distinct impression that I gained from Mr B senior was that his primary concern was for the children, but that there was also a real and genuine concern for the health and wellbeing of the mother. 

3. He detailed in his material observations of the children’s parenting by both of the parents, and he was virtually unchallenged in relation to such matters.  He also detailed the concerns that he had for the mother and her mental health, and again was unchallenged in relation to such issues.

4. I note that both Mr and Mrs B senior made comments about the shared arrangements, and the capacity of both parents to provide for the children, and in particular, in paragraphs 12 through 14 of the affidavit of Mr B senior, the following was said:

   12.  Due to the nature of their respective jobs, Mr Baldwin and Ms Baldwin regularly worked opposite hours, and one would be caring for the children on their own while the other was at work.  This occurred more often for Ms Baldwin due to the part-time nature of her work.

   13.  All the children’s physical needs were provided for by both parents.  They both took on the roles of bathing, feeding, changing nappies, dressing them and comforting them.  They were both devoted parents.  Ms Baldwin prepared the majority of meals.  She dressed the children well and took pride in her children.

5. It then goes on:

   14.  Ms B and I on many occasions visited their home when Mr Baldwin was caring for the children while Ms Baldwin was at work.  The household ran just as smoothly as when she was there.  He has always been a very hands-on father, and did all that was required for the children.  He interacted with his children in a patient, caring and responsible way.  He also carried out various domestic chores while Ms Baldwin was at work. 

6. As I say, Mr Baldwin was unchallenged in relation to his evidence, and I accept categorically that his statements in relation to the observations of both parents’ involvement in relation to this matter were accurate reflections of the behaviours and the capacities of both parents.

7. Again, it was not the subject of any cross-examination in relation to the matter, but it would be remiss of me to not make reference to the comments made by Mr B Senior in his affidavit of 20 June 2010 relating to what is headed, Complaints Made to [workplace omitted] Ethical Standards [department].  Mr B makes reference to the fact that:

   On 19 July 2009, the date of separation, Ms Baldwin, (the mother of course,) made a complaint to the [workplace omitted] Ethical Standards [department] that I had engaged in - - -

   It says “appropriate,” but I assume it means “inappropriate” –

   sexual conduct toward her at [omitted], after attending my niece’s wedding. 

   It then goes on to also refer to a further complaint of 4 September 2009 in relation to his involvement in her removal from the home on 19 July 2009.

8. Mr B makes those comments, I think, in order to be full and frank in relation to this matter, and annexes to his affidavit a copy of correspondence received from Mr M of the Ethical Standards [department] in relation to their inquiry, and in particular the fact that:

   I am satisfied on the basis of the inquiries and all the available information that there is no evidence of [employer] misconduct or breach of discipline committed by you in respect of these complaints. Accordingly, I consider the complaints unsubstantiated.

9. It was not a matter that was addressed in relation to these proceedings, but I thought it important that they be commented upon, firstly because I would have no hesitation whatsoever in finding that there were no such instances of inappropriate behaviours on the part of Mr B.  If anything, it troubles me that such complaints were made, and they may of course be more a reflection of the mother’s own mental state at the time that such complaints were made, rather than of any action taken by Mr B senior.

10. But it is reflective also of the very significant quality of the evidence that was given by Mr B senior in relation to this matter, because he says such positive things about the mother in relation to her parenting, her care for the children, and her capacity to care for the children.  What is clear from the affidavit is that Mr B senior is a man of, I would consider, high ethical standards, and very good character, and the comments that he makes within his affidavit do him enormous credit, and he should be commended in relation to such matters.

11. I turn now to the evidence which was also called from Ms L, the maternal grandmother.  Ms L provides similar comments in relation to the support provided by her for the children.  It is clear that she is supportive of her daughter, and is aware of concerns with regard to the mother and her mental capacity.  She is, however, unfortunately in no way so generous as Mr and Mrs B senior are with regard to comments about the father.  She says, for example, in paragraph 10 of her affidavit:

    On a number of occasions I have witnessed the applicant dragging [X] or [Y] by one arm to the bedroom for time out after they did not do what he had told them to do.  Their feet were barely touching the floor.

12. Though she was not challenged in relation to such matters, I do not accept that that is in any way a reflection of the father’s treatment of these children.  If anything, I gain the distinct impression, and will comment a little later in relation to it, that he is a caring, devoted, loving and properly-involved father in every respect, and that where comments of that nature are made by the maternal grandmother, they are an exaggeration, if not, in fact, untrue. 

13. It troubled me that that was the case in relation to the matter, and it also troubled me, of course, that there were comments made by the maternal grandmother in paragraph 13 of her affidavit, again unchallenged but which raised some concerns.  The maternal grandmother says:

    Other concerns I have about the applicant’s treatment of the children is his practice of holding them by the feet and letting them fall backwards with no support for their necks, and he and his father “plonking” them on the bed.  This involves holding them up in the air and throwing them onto the bed.  I felt sick when I saw the applicant’s father do this to [Y].

14. With respect, there is not a skerrick of evidence that would suggest that there was any harm caused to the children.  More particularly, there is not a skerrick of evidence to suggest that Ms L senior might have in any way raised a suggestion as to the inappropriateness of such actions, if they were to have occurred.  I would find that if they did occur, that they were normal, proper, parental and grandparental exchange and interaction with children, and in no way reflected in any respect adversely to the parenting or grandparenting involved in relation to these children. 

15. If anything, I would find unfortunately that they were exaggerations, in no way leading to any assistance in respect of this matter.  As I say, my assessment of the grandfather has already been indicated, and my assessment of the father is that he would in no way ever take steps which would be in any way detrimental to the children’s best interests.  The exaggeration, therefore, that arises in relation to this matter is something that gave rise to some concern as to the complete veracity of the evidence that was given by Ms L senior, in relation to this matter.

16. The one point that was challenged, specifically in relation to the evidence of Ms L, related to the comment made within paragraph 14 of the affidavit by Ms L in these terms:

    The respondent is able to cope well with looking after the children, with only minimal help from her support group in [S], which includes her parents, sister, and brother-in-law, and several friends.  In the past, she has had difficulty making friends however, she has quickly settled in at [S] and made some excellent supportive friends.  This is having a positive effect on the respondent’s confidence and wellbeing, which in turn has a positive effect on the children.

17. The maternal grandmother was challenged in relation to her family’s involvement in the care of the children and assistance of the mother, because of those statements.  I must say with respect, that I thought that line of questioning did not assist me in relation to the matter.  I am far more of the view, and thought that it was clear from the evidence of

    
    

    Ms L, that the comments about the mother being able to cope well were exactly that, a statement of fact, and that she was able to look after the children with only minimal help from her support group. 

18. The more important consideration is of course that there is a support group in place involving the mother’s parents, her sister, brother-in-law, and family, and whilst there may not have been regular call or need for assistance to be provided, the important consideration is that such support is available.  It was at the nub of the mother’s case in relation to this matter that there was not support available for her in [N], when living separate and apart from the father.

19. I was generally impressed by Ms L in relation to her evidence in this matter, notwithstanding the concerns that I have with regard to, I thought, exaggerations as to any criticism in relation to the father’s capacity to provide for or to parent the children.  Certainly, however, I have no doubt whatsoever as to the availability of the maternal grandmother and extended family, as well as support group, to provide assistance as and when necessary or sought on the part of the mother, rather than to be intimately involved on a day-to-day basis in the care of the children. 

20. I have no doubt that Ms L, as would Mr and Mrs B, would be available if called upon to provide assistance for their respective children and grandchildren, as and when that might be necessary.

21. In this matter I also had the opportunity of considering an extensive family report prepared under the hand of Mr C, a psychologist.  That report, prepared pursuant to an order of 19 April 2010 by Slack FM, was dated 14 June 2010 and was admitted by me as an exhibit in these proceedings.

22. Before turning to that report, however, I should also note that in answer to a subpoena Dr D was called.  Dr D is a consultant psychiatrist, and more specifically is the psychiatrist who has, and continues to have, involvement in the treatment of the mother.  It is clear that the mother, over a period of 20 years or more, has had episodes where her mental health had been the subject of concern.  It is also clear that the only expert evidence in relation to this matter is that of Dr D, and that Dr D was of the view that the mother, though having had an episode in the second half, or more particularly, the latter part of 2009, was in good health. 

23. Dr D, in a report dated 1 March 2010, again which was provided in relation to these proceedings and admitted as an exhibit in relation to the matter, was satisfied that as at 18 January 2010, when she had last seen her prior to the preparation of the report, though it is noted that she had seen her thereafter, indicated that the mother was:

    … free of depressive symptoms and was very positive about her future.

24. Dr D goes on:

    She denied any suicidal or homicidal ideation.  She continues to be committed to looking after her three children, taking on the responsibility quite seriously.

25. Dr D then concludes her report by saying:

    I now see her every three months, as she is very stable, and feel the situation will continue for some time to come. 

26. Dr D was asked whether she was able to give a guarantee that the mother would be at any time in the future, free of mental health concerns, and of course, quite properly and quite professionally, she was unable to give such an assurance.  But of course, there is nothing to say that that would not be the case in relation to any other parent in any situation, and matters of mental health or physical wellbeing are issues which need to be addressed from time to time. 

27. I am satisfied, at least at this time, that the mother is receiving appropriate mental health support and care, and that, more particularly, the mother is now able to utilise both such mental health carers and providers as necessary, that she has some insight, albeit with difficulties on occasions, into issues as to her mental health, and that she has the additional support, as I have already commented, of family and friends in the [S] area.  I was assisted by the evidence of Dr D in relation to this matter.

28. I turn now to the report of Mr C in relation to this matter.  I must say that I found the report of particular assistance in a number of respects.  In that regard, I note particularly the comments made by Mr C under the heading Observations contained within his report of 14 June 2010.  Mr C says at paragraphs 29 through 32 the following:

    On arriving, the children were pleased to see their mother and demonstrated a positive effect.  The children moved equally between their mother and father, and did not show signs of fear, anxiety, apprehension or distress.  The children maintained close proximity to their paternal grandparents and maternal grandmother.  The children selected books on display, and Ms L senior and Mrs B were observed on separate occasions reading to the children. 

    Ms L senior and Mr and Mrs B were observed in brief, polite conversation.  [Y] and [Z] made bids for their father’s attention and he responded promptly and appropriately.  [X] made bids for her mother’s attention and she responded promptly and appropriately.  Mr Baldwin and Ms Laine made some communication, and did not demonstrate animosity to each other.  At the conclusion of interviews the children left with their mother and maternal grandmother.  They made appropriate farewells and

    
    

    Mr Baldwin assisted Ms Laine putting the children in the car. 

29. I was, as I say, most assisted in relation to this matter by the report of Mr C.  Those statements, however, assisted me enormously in relation to consideration, as must occur a little later in these reasons with regard to the issue of equal shared parental responsibility.  From what Mr C observed, and I must say from what I observed of the parties, particularly when they were in the witness box, I gained the distinct impression that whilst unfortunately their relationship may have broken down, their ultimate obligation in respect of ensuring that the best interests of their children were met, and that their care for those children supported and complemented each other, was something that did both enormous credit.  It also comforted me, of course, in relation to any considerations that might arise with regard to the appropriateness of orders with regard to equal shared parental responsibility.

30. Mr C also went on, under the heading Proposals, to make comments in paragraphs 43 and 44 which were again of enormous assistance in relation to the determination of this matter.  Paragraphs 43 and 44 are in these terms:

    Ms Laine proposed for her and the children to remain living in [S] and for Mr Baldwin to have alternate weekend time with the children, half the school holidays, except for Christmas, where she and Mr Baldwin have the children alternate weeks.  Ms Laine stated in respect of an alternative of her returning to Brisbane – she stated:  “If I had to return, I’d fall apart to start with.  I don’t have support in Brisbane.  I have friends in [S].  They are like family.”  Ms Laine agreed that she has no prior history or peer relationships in [S] before moving there in January 2010.  In respect to equal shared parental responsibility, Ms Laine stated:  “I’d like him to keep paying their private health.”  Schooling:  “It was my decision.  We only bought a house in [N] because I wanted the kids to go to a [N] school.”    Ms Laine stated that the advantage of her proposal is, “I feel safe.  The kids will be happy because I’m happy.  I can care for them better, and the children are established in daycare, and they see lots of wildlife.”  Ms Laine could not see any disadvantages other than as the children mature and wish to seek part-time employment. These opportunities are minimal in [S].

31. Paragraph 44 is in these terms:

    Mr Baldwin asserted that he wishes for Ms Laine to return to the [B] district.  He asserted that the advantage to him is that if Ms Laine returns to the Brisbane [B] district, and he remains employed at the [R] [workplace], then he would be able to organise to have 15 nights out of 35 with the children.  He alleged this would not be the case if he accepted an alternate proposal, such as seeking a transfer within the [employer omitted] and locating to [S]. 

    He believed that his time then with the children would be dictated by his roster in [S], which he believed was less predictive than that of [R].  However, Mr Baldwin maintained what appeared to be a balanced perspective.  He took into consideration Ms Laine’s distress, perhaps of relocating to [B].  He stated:  “[Ms Laine] would not be happy if she moves back, which is going to affect the children.”  He went on to assert that this could affect Ms Laine’s parenting of the children, could deteriorate her mood, and consequently she might “bag me in front of the kids.” 

    Mr Baldwin stated that the advantage of his proposal of Ms Laine returning to [B] would be that the children could maintain a regular routine and he could be actively involved in their schooling.  He agreed that if he moved to [S], the same could occur.

32. I was assisted in relation to those matters, because it provided some insight into both the positions of the mother and the father.  I will comment obviously further in relation to the evidence of the mother and the father, but I should say that I have been on few occasions as impressed with a father and his determination to be realistic, to be involved, and to be empathetic of both the children and his former partner, as is the father in these proceedings.  His recognition of the mother’s distress at relocating, and the possible consequences or effects of that, does him enormous credit.  He is a man whom I have the highest regard for, and I must say that I gained the distinct impression that he would in every respect ensure that his children were to the forefront, and that their best interests were met on all occasions.

33. The report, and the comments, particularly in paragraph 43 of the report, also provided some insight in relation to the mother.  It provided similar insights to those which were provided with respect to the father, though not necessarily as beneficial to the mother as were the comments that I had made regarding him.  The mother clearly had insight into the fact that there were difficulties that she experienced, because perhaps, of her at least perceived isolation in [B], and the lack of support.  It similarly highlighted of the fact that the mother had insight into her difficulties in the past, and that there was a real prospect of such difficulties reoccurring if she were to be required to return to the location that she had previously been in. 

1. I must say, however, that it was a little troubling that the mother’s perception of the best interests and advantages to the children failed to take into any consideration, it would seem, the limited opportunities that the father would have in relation to the children. 

2. The mother comments, when speaking about the advantages of her proposals, about her feeling safe, the children being happy because she was happy, and that she could care for them better, that they were established and they would see lots of wildlife.  The omission, of course, was to recognise that there were also disadvantages, a huge one in this instance, being the disadvantage that arose from her lack of appreciation of the father’s more acute involvement in the children’s lives, and also the limitations that therefore arose with regard to the children’s interaction with their paternal grandparents.

3. Mr C, at the conclusion of his most helpful report, details a number of recommendations.  In particular he says that he recommends that the children live with their mother in [S]. He recommends that Mr Baldwin have time with the children consistent with the orders made on 19 April 2010, and he went on, at paragraph 129, specifically to make this recommendation:

   I recommend that should Mr Baldwin apply for and obtain a transfer to [S] in the interim period, then his time with the children be amended in accordance with his newly established roster.  It might be that under such circumstance, a brief mention would be warranted and changes in time formalised. 

4. Quite clearly, Mr C addressed issues with regard to continued separation between the parents, with the father being in Brisbane and the mother being in [S], or both parents being in the [S] locality, but by inference did not recommend the proposed transfer back by the mother from [S] to Brisbane, no doubt because of the repeated concerns which he made reference to, in respect of the effect upon the mother of any return to Brisbane.

5. I was most assisted by the comprehensive and appropriate report prepared by Mr C in relation to this matter.

6. I turn now, as I indicated of course would be necessary, to the evidence which was given by both the mother and the father.  Neither parent was cross-examined at any real length in relation to this matter, but of course I have before me the evidence of each of the parents given, briefly in relation to the proceedings, as well as their written evidence in relation to the matter. 

7. I do not intend at any real length to go through that evidence.  I have no doubt as to each parent’s capacity to provide in every proper physical respect for the needs of the children.  I have no doubt as to each parent’s love for the children, and having seen them and read the report of Mr C in relation to this matter, more importantly than that even I have no doubt as to the children’s love for their parents. 

8. If they were of an age where they could perhaps more properly and fully express their wishes, one would think, like as so often is the case, that their primary wish would be for their parents to be together so that they could enjoy the benefits of both parents in their lives, to as full an extent as possible. 

9. My only comments, therefore, additional to those already made through these reasons in relation to the father, relate to the comments that arose from the cross-examination of the father with regard to the possibilities of a move to [S].  The father had properly considered that.  He addressed it in his discussions with Mr C and they were referred to, as I have already noted, in the proposals that were put forward.  The father, however, was further cross-examined in relation to such matters, and in particular it was noted that if the children were to remain in [S] and the father were to remain in [R], that he would still travel. 

10. I have no doubt that the father would involve himself in every respect, as he has properly done to the extent enabled by the mother, to be involved in the children’s lives.  I have no doubt that the father would be in every respect true to his word, and in every respect involved as he could be in the children’s lives, being mindful of the fact that some

    
    

    300 or more kilometres would be between him in [R] and the children in [S]. 

11. I was enormously impressed with the father.  I was, as I indicated before, finding myself in a situation where, insofar as I could assess, the father had in every respect acted in an appropriate manner, had taken appropriate caring and compassionate steps in relation to the mother when she was ill, and had not in any way sought to denigrate her, or to derogate her. 

12. His final, if you like, variation of his proposals in relation to this matter, such that he did not any longer seek specifically that the children live with him, but that he have rather significant and substantial time with the children, does him enormous credit. It reflects his child focus in relation to these children, and the determination that the best interests of the children would override even what he might desperately wish in relation to his close involvement with the children.  I cannot speak more highly of the father, and of his determination to be a proper and fully-involved parent in the lives of these children.

13. I turn, then, to the mother, and to her evidence.  I am mindful, obviously, as I have already indicated, of her love for the children and their clear and observed love for her.  I have no doubt as to her capacity to provide for the needs of the children, and I am also of course mindful of the concerns that have arisen over time with regard to the mother’s mental health. 

14. No doubt, the disclosures that have finally now come to light in relation to issues of her sexual abuse as a child are matters that have been affecting her throughout her life, and they are matters that must be taken into consideration and dealt with compassionately by any court considering arrangements in relation to proceedings, and in particular arrangements with regard to the parenting of children.

15. But I must say that I was also troubled by some of the evidence that was given by the mother in relation to this matter.  For example, the mother seemed almost offhanded in relation to the father’s involvement in the children’s lives.  In that regard, the mother made, I thought, a rather flippant comment about the father’s involvement with the children’s lives because “he was only involved when he was there.”  A more, with respect, nonsensical comment could not have been imagined because of course the mother failed to take into consideration that she also, as indicated in all of the material, was involved in employment, and therefore she was not involved in the care and parenting of the children when she was not there. 

16. A far more appropriate and insightful commentary in relation to the matter was that both parents were good parents, both parents involved themselves in every aspect that they were able, and provided all the time that they could, in relation to the parenting of the children.  For the mother to be critical of the father because he was working a lot of overtime failed to recognise that that overtime provided for all of the material benefits that were inherent in the lifestyle of the mother, the father, and the children, and it did the mother little credit to be critical of the father in that respect.

17. Similarly, I was troubled by the mother’s attitude in relation to certain issues with regard to shared parenting and equal shared parental responsibility.  The mother again seems to have decided what was best for her, in light of what she said she considered to be in the best interests of the children, but failed to in any respect take into consideration issues with regard to the father’s important role in the children’s lives, and the harm and detriment to be caused to the children as a result of significant separation from the father.

18. In that regard, it was clear that at the time that the mother left, she did not consult with the father.  I commented during the evidence and submissions in relation to this matter that it is easy to be wise with hindsight, and that perhaps both parents could have chosen more appropriate ways to deal with issues in relation to the financial difficulties that were arising with regard to two households being paid for, etcetera.

19. The father no doubt has some regrets as to the actions that were taken, perhaps unknown to him, by the bank in simply indicating that other arrangements would have to be made for the mother to make rental payments in relation to the property, and that is a matter which is of at least some limited concern.  But the mother’s unilateral act in relation to removal of herself and the children, establishment in [S] and a failure to communicate with the father in relation to such issues is, I think, of greater concern. 

20. The mother acted in a manner which no doubt she considered to be child-focussed, but which also quite clearly, I would assess, stemmed from a determination on the part of the mother that she had to make provision for herself and her interests ahead of the interests of the father and the children’s interests in a meaningful relationship with their father.

21. Similarly, whilst both parents propose that there should be equal shared parental responsibility, I gained the distinct impression that, to use the vernacular, the mother was prepared to, “talk the talk”, but not so inclined to, “walk the walk”.  In that regard, for example, when questioned in cross-examination about arrangements made with respect to extracurricular activities, the mother was quick to indicate that the children, or at least the older children, had been enrolled in various extracurricular activities, and commented about swimming and ballet for the two girls, but acknowledged that she had not discussed such issues with the father. 

22. I gained the impression that whilst the mother realised the importance of the father in the children’s lives, she was not quickly aligned or attuned to the real need to ensure that before any such decisions of that nature are made, that there needs to be proper exchange and consideration of the position of both parents, rather than what might or might not be a convenient move to be taken on the part of the mother.

23. I do not doubt that there can be communication.  I do not doubt that there can be proper consultation and discussion in relation to arrangements with respect to the future parenting of the children.  But the comment that I would make in that regard, is that the mother needs to be far more aligned to a recognition that she does not make every decision in relation to these children without consultation with the father, and that to fail to do so, is a failure of her to meet the responsibilities that exist in relation to the children.

24. Those comments lead me to the matter that I must say troubles me most of all in relation to the evidence in this matter. I accept unconditionally the statements made by the father with regard to the difficulties that he has had on occasion in gaining the opportunity to spend extra time with the children.  The mother’s reliance upon the orders of 19 April 2010 with regard to the giving of seven days’ notice is simply not child-focussed.  It is a technical stance, and it is one that does the mother no credit whatsoever in relation to assisting me with regard to a determination of what might be the most appropriate arrangement to be put in place with regard to these children. 

25. The position and stance of the mother with regard to the father suddenly, because of his work, having additional opportunities to spend time with the children, and simply being fobbed off, because either seven days’ notice was not given, or that she had made other plans, or that the children had other obligations, fails to recognise that whatever those other plans might have been, or whatever those other obligations might be with regard to the children and friends and other issues, is of far less significance than the importance to these children, and to their development as proper, well-adjusted young people and young adults in time, as a result of their meaningful relationship with their father.

26. I can already indicate that I intend to significantly modify any orders with regard to time that might be notified by the father in relation to additional opportunities to spend time with the children, so as to ensure that there is a recognition of the far more significant and important role of the father in the children’s lives than of other arrangements that might necessarily be made with regard to these children.

27. As I say, there were certain issues that troubled me in relation to the mother, but I am also of course mindful of the fact that she has, for a significant time now, had primary responsibility in relation to the care of the children, that that has occurred, and that, notwithstanding perhaps a less than appropriate recognition of the importance of additional time with the father, there has been no diminution in the relationship between the children and their father, and that it still remains strong, as was observed by Mr C and commented upon in his report.

28. I turn now to the matters of the law.  In that regard I was referred, understandably, to a considerable number of cases addressing issues in respect of the law, and in particular note the most helpful commentary by Murphy J in the decision of Pitken v Hendry (2008) FamCA 186. At paragraph 7 onward of that decision, Murphy J sets out under the heading, “Relocation Cases” Generally, a commentary about the steps that should be taken in relation to a determination with regard to relocation. Murphy J said:

    7.The term “relocation case” is a convenient descriptor in wide use for cases where the living arrangements for a child proposed by one parent involves a significant geographic separation from the other parent.  As a description, the term is convenient. 

    8.However, there are, in truth, no sub-categories of parenting case; each such case requires a determination of the child’s best interests specific to that child and the specific circumstances of the proposed parenting by his or her parents.  

    9.That in turn requires interpreting the Act (specifically Part VII of the Family Law Act 1975) which confers the power to make parenting orders and dictates the process by which any such decision is arrived at. The task of discerning the proper meaning of the legislation is not an exercise in semantics or sophistry. The nature of what the Act requires of a court is central to the court’s role and power.

    10.The effect of the 2006 amendments in cases such as the present has, to one extent or another, been the subject of judicial consideration, in particular, recently by the Full Court of this Court. (Taylor & Barker [2007] Fam CA 1246; Sampson & Hartnett (No.10) [2007] FamCA 1365; Goldrick & Goldrick [2007] FamCA 1260). In Goode & Goode [2006] FLC 93-286, the Full Court examined the amendments more generally, albeit in the context of interim orders and not in a “relocation case”.

    11.Two clear tenets of legislative intent (relevantly) emerge.  First, it is intended that both parents of children should have an ongoing role in the co-parenting, or co-nurturing, of their children that is of value to the children.  Secondly, that tenet, and the interference by a court in co-nurturing by parents, should, in all cases, be governed by a determination of best interests specific to that child and that child’s particular circumstances.

    12.The Act makes it abundantly clear – and reminds the court numerous times in different places – that the essential exercise in making parenting orders is to arrive at ultimate findings directed to the specific children’s best interests. Findings as to best interests underpin each of the specific matters to which the court is directed by the Act. (See, eg: s 60B(1)(a); 60CA; s 61DA(4); ss 65DAA (1)(a); 65DAA(2)(c) and Note 1 to each of the latter two sections). And, by way of corollary, the assessment of best interests is to be conducted within the statutory objective of maximizing parental involvement consistent with that assessment.

    13.Whilst not constituting a separate category of parenting case, those principles can be seen to be thrown into sharp focus where one party would have a child live with him or her and the geographic separation of parents means that significant periods of time will separate face to face co-parenting opportunities.  But, consistent with long-standing authority, including from the High Court (see the cases discussed in Taylor & Barker), and, in my view, consistent with a reading of Part VII as a whole, it seems to me that the issue of relocation ought not be determined separately from other issues relevant to a determination of best interests in a parenting case.

    14.As the heading to s 60CC indicates, the section determines how a court is to determine what is in a child’s best interests. The mandatory considerations (s 60CC) are, like their predecessors (s 68F(2)), not objective standards. (See, eg. Secretary, Department of Health and Community Services v. JMB & SMB (1992) 175 CLR 218 at 270-2). The s 60CC considerations are signposts or touchstones within which the broad enquiry as to best interests must be conducted. That it remains a broad enquiry is evident from the section itself (s 60CC(3)(m)).

    15.Ascertaining best interests by reference to those mandatory signposts must embrace the fact that: “[i]t is a mistake to think that there is always one right answer to the question of what the best interests of a child require … [b]est interests are values not facts” (CDJ & VAJ (1998) 197 CLR 172 at 219).

    16.In the current context, values necessarily intrude because, as is frequently the case in “relocation cases”, this dispute is between, as I find, decent, loving, caring parents who are, generally, well motivated in properly prioritizing their children’s best interests, but who are caught on the horns of a delicate dilemma and there is an assertion by each of rights or freedoms to which each is entitled.

    17.It is perfectly consistent with a parent’s rights in this democracy that they have not only what has been referred to as a “freedom to move”, but also a freedom to make choices about how they should re-structure their lives upon the breakdown of a relationship with their fellow parent.  It follows, consistent with those rights, that one parent ought not have a “veto” over the rights of the other parent by reason of the circumstance that they have children together and once had a relationship that produced those children.

    18.Yet, parenthood not only brings with it a miscellany of rights, duties, responsibilities and difficulties; it also brings with it, for loving and caring parents – and for the children - great joy and satisfaction from the regular involvement in their children’s trials and tribulations, successes and failures.  It is perfectly consistent with a loving parent’s rights in this democracy that they should seek to have the, as it were, freedom, to have that regular involvement and to experience those joys and dramas as their children grow day by day and year by year.  It also follows, consistent with those rights, that, equally, the other parent ought not have a “veto” over those rights.

    19.When parents can’t agree, the court’s assessment of best interests is the measure of the extent to which those legitimate rights and freedoms must give way. (See AIF v AMS (1999) 24 FamLR 756; U v U (2002) 211 CLR 238).

    20.A “relocation case” takes its place as, and falls to be determined as, a parenting case in which the fact-finding (and, perhaps, value-finding) exercise leads, as in any other parenting case, to a conclusion about these specific children’s best interests. The enquiry remains the same as in any other parenting case (what orders are in the best interests of the children) but involves a specific, and acute, issue. 

    21.The inquiry as to best interests in a “relocation case”, as in all parenting cases, is the starting point.  The determination of orders best meeting the children’s best interests in a “relocation case” is, as in all parenting cases, also the end point.

    22.“Best interests” – and, thus, the findings of fact (and values) which underpin it - is also a servant to many masters within Part VII.  The Act prescribes but one method for determining best interests and that is the making of findings in respect of the matters specified in s 60CC.   Those findings, then, find their way into a number of different aspects of the decision in respect of parenting orders including, for example, parental responsibility and quantities of time.

    23.Importantly, the reference in earlier authorities to ascertaining and assessing the parties’ “proposals” is not to be seen as a reference to some legal term of art or arcane legal requirement.  The parties’ proposals are – no more and no less – the manifestation of these particular parents expressing, in practical terms, their “solution”, or their best attempts at resolving, the dilemma posed by their legitimate desires, rights and freedoms.

    24.In other words, the parties’ proposals (or some alternative proposal which the court considers to be more appropriate) are integral to, and form part of the court’s findings as to best interests.

1. More particularly, after addressing many other of the considerations that must be done, Murphy J then provides, under the heading Summary of Applicable Principles, an outline of what matters must be looked at by any court determining issues with regard to the parenting of children.  I note that they are in these terms as set out in paragraph 43 of the decision:

   Consistent with my understanding of the authorities to which I have earlier referred, including those post-reform Act for court decisions specifically addressing “relocation cases” and by reason of my views just discussed (which I consider to be consistent with those authorities) I proceed to determine this matter applying the following principles.

2. Murphy J then sets out a number of dot points, all of which are of assistance in relation to a determination.  They are in these terms:

   ·    A “relocation case” is not a specific sub-category of parenting case and no principles specific to such cases apply.  Such cases are simply cases in which parenting orders are sought in particular factual circumstances;

   ·    A relocation case falls to be determined like any other parenting case: the fact-finding (or value-finding) exercise required by section 60CC is directed toward ultimate findings about best interests.  Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time.

   ·    Relocation cases, like all parenting cases, involve a determination of best interests as the measure by which legitimate rights and freedoms of the parties must give way to the rights and interests of the children;

   ·    In that way, best interests is the paramount, but not the sole, consideration whatever be the nature of the order informed by findings as to best interests.  That includes orders relating to parental responsibility and the rebuttal of the presumption in favour of equal shared parental responsibility in particular;

   ·    All parenting cases require precise proposals by the parties (including, if thought appropriate, alternative proposals).  The proposals are (or should be) the expression of each party’s assessment of their children’s best interests.  “Relocation cases” are no different.

   ·    The issue of relocation (and, necessarily, the parties’ proposals in respect of same) should not be considered separately from the issue of best interests.  In truth, the proposals, including potential relocation, form part of the factual permutations within which best interests must be considered and findings made.

   ·    The court is not bound by the parties’ proposals.  Where the evidence points to an alternative being in the best interests of the children, orders should be crafted by the court accordingly;

   ·    Findings in respect of the relevant section 60CC considerations, and an ultimate analysis and balancing of those findings should, when applicable, take account of the prospect of equal or substantial and significant time, whether because section 65DAA mandates it or because either is a proposal of the parties or looms as a potential order;

   ·    Findings relevant to section 65DAA, if applicable, can and often more appropriately should be made as part of the section 60CC exercise, because, although requiring a specific process, any section 65DAA considerations are founded ultimately in findings as to best interests;

   ·    Findings necessary to underpin an ultimate finding of “reasonable practicability” (section 65DAA(5)) can be, and often more appropriately are, conducted as part of the section 60CC exercise.  Any specificity inherent in those section 65DAA(5) factors which do not overlap with section 60CC considerations can often readily be accommodated within the section 60CC exercise … As best interests governs the section 65DAA exercise, it is often convenient and appropriate to consider any matters directly relevant to section 65DAA(5) within the overall assessment of best interests.  Of course, those findings, must be applied as the section 65DAA process requires;

   ·    The abrogation or curtailment of parental responsibility with respect to long term issues involves a serious interference with fundamental rights and that is a factor which ought often be taken into account in assessing whether the best interests require the rebuttal of the presumption.  Obviously, that right must give way where the best interests of the children require it.  Equally, the court may need to craft orders for parental responsibility where the children’s best interests require it.

3. Murphy J has set out at length and comprehensively the various matters which must be considered in relation to these proceedings, and in particular with regard to consideration of any orders which are to address the best interests and the welfare of children.  Of course, Pitken v Hendry was a decision made by his Honour in 2008.  The subsequent decision of the High Court in MRR & GR [2010] HCA4 (3 March 2010) indicates that whilst his Honour is perhaps correct in saying that there can be an overlap between the considerations that arise pursuant to provisions of section 60CC and those matters which must be considered pursuant to the provisions of 65DAA(5), the fact is that they are not, as was suggested by his Honour, considerations which could “readily be accommodated within the section 60CC exercise.” 

4. What is clear is that they must be considered as separate and apart, though perhaps in some instances a repeat consideration of matters which have arisen pursuant to the provisions of section 60CC.

5. Obviously, there is a statutory pathway to be followed in relation to a determination of arrangements with regard to the parenting of children.  I am mindful of the objects of the Act, as set out in section 60B.  The objects are set out in subsection (1) and the principles underlying the objects are set out in subsection (2) of section 60B.  They are in these terms:

   (1)[Object of Part] The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interest of the child; and

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

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

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

   (2)[Principles underlying object] The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

6. Section 60CC, and in particular subsections (2) and (3) relating to what are termed the primary considerations and additional considerations are then required also to be considered.  Before turning to those issues, however, it is important that I should note two other matters clearly required to be considered.

7. The first is the overriding consideration of the child’s best interests being the paramount consideration in making any parenting order.  Section 60CA is only two lines in length, and yet it is of enormous significance in relation to any determination.  Section 60CA is in these terms:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

8. Consideration must of course also be given to the presumption that arises pursuant to the provisions of section 61DA of the Family Law Act. Section 61DA, headed Presumption of Equal Shared Parental Responsibility When Making Parenting Orders relates to the fact that, pursuant to subsection (1):

   When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

9. That presumption can be rebutted in certain circumstances, the most common of those relating to issues of violence within a relationship or in the presence of children, but there is also a general catch-all that is provided pursuant to the provisions of section 61DA(4), which is in these terms:

   The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child [or children] for the child’s parents to have equal shared parental responsibility for the child.

10. It is important that there be notation given by any court of those requirements.  The presumption of equal shared parental responsibility is commented upon by Murphy J in Pitken v Hendry.  It is a fundamental issue to be looked at by any court in relation to a determination.  Here, of course, both parents propose that there should be equal shared parental responsibility. I must say that I agree wholeheartedly that that is the appropriate course to follow because it is in the best interests of these children.

11. I have already commented upon some concerns that I had with regard to the mother’s recognition of the importance of such matters, and as I have already commented it is a matter that the mother must address in relation to this matter.  To fail to do so, and to fail to recognise the absolute importance and significance of the father’s involvement in the decision-making process with regard to the children, is a failure to recognise her responsibilities as a parent putting the children’s best interests and welfare to the forefront.

12. I am satisfied, particularly as the father noted, that whilst there are some difficulties he and the mother can work together, and I have no doubt as to the father’s determination in that respect, and also do not doubt that the mother, particularly, one would hope, being mindful of the comments made in relation to this matter, will ensure that decisions that are to be made with regard to these children are made jointly, and for the best interests of the children, with both parents properly consulting and considering the viewpoint and perspective of the other parent.

13. There are no issues of domestic violence of any nature in relation to this matter, and I am satisfied categorically that the only proper and appropriate course is for there to be equal shared parental responsibility.  I intend to make such an order in relation to this matter.

14. Having made that order, I am also of course mindful, particularly, of the provisions of section 65DAA, and the need to ensure that when orders are made with regard to equal shared parental responsibility, that proper consideration is then given to issues with regard to the time to be spent by each parent with the children.  What is specifically set out in the provisions of section 65DAA is that if there is to be orders as I have indicated will be the case with regard to equal shared parental responsibility, then the court is required to consider the child or children spending equal time, or substantial and significant time, with each parent in certain circumstances.

15. There has been much comment in relation to those matters, and to how such issues could occur.  It is, as I have already indicated, to the father’s credit that he does not any longer press for orders to be made with regard to the children living with him, and in fact does not press for equal time, but rather significant and substantial time, in the children’s lives.  If it were to be the case that the children would be in closer proximity to him at [R], then he says that according to the fixed roster he has, it would be for 15 days out of 35 or, to break it down to a weekly arrangement, three in each seven days, though there may be some considerable fluctuation rather than to simply say that it would be three days in each seven.

16. Substantial and significant time is, therefore, what is proposed by the father and, at least on the face of it, is proposed by the mother, though the limitations that she details in her response material do not accord with what might be considered to be the definition of substantial and significant time.

17. In that regard I am mindful of the provisions of section 65DAA(3), headed Substantial and Significant Time.  The section is in these terms:

    (3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

    (a)the time the child spends with the parent includes both:

    (i)     days that fall on weekends and holidays; and

    (ii)    days that do not fall on weekends or holidays; and

    (b)the time the child spends with the parent allows the parent to be involved in:

    (i)     the child’s daily routine; and

    (ii)    occasions and events that are of particular significance to the child; and

    (c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

18. In other words, it involves, although not equal time, involvement in every aspect of a child’s life, their academic or school life, their extracurricular, sporting and cultural life, and in particular it involves each parent being involved in the children’s other activities, including, of course, therefore, for example, ensuring that they are the parent who takes a child to parties, who takes a child to the doctor, who takes a child to any other activity that might necessarily be required.  And more specifically, of course, sees that the child should also be involved in those activities and particular arrangements, which are of significance to the parent.  In other words, matters that may not necessarily accord with a birthday or a Father’s Day or Mother’s Day, but involves those special occasions that arise from time to time such as family weddings, christenings, and matters of that nature. 

19. In other words, it is the child’s right to a complete understanding of the life of each parent that must be considered in relation to such matters.  That is not what is proposed by the mother in relation to this matter, but it is what clearly must occur, because it is what is clearly in the best interests of these children.

20. The court must also of course look at what is reasonably practicable in relation to equal time and, although it is not sought here, the alternative of reasonable practicability of significant and substantial time.  There are difficulties in that regard if the circumstances as they currently exist were to continue, because of course, particularly with the oldest child, [X], now having commenced school, times that might be available for the father to spend time with the children may not accord with [X]’s availability because of her attendance at school.

21. If the parents were in the same locality, it might be a very different consideration because, of course, it would ensure that there were opportunities for the father in particular, to be more involved in those additional and extracurricular-type activities, as well as to be more thoroughly and fully involved in educational determinations and considerations. 

22. I will turn to section 65DAA(5) headed, Determining Reasonable Practicability in due course, but first intend to consider those matters which arise pursuant to the considerations which are set out in section 60CC.  Subsection (2), headed Primary Considerations has only two points, but they are clearly what the legislature considered to be the most significant matters in relation to a determination.  The first of those is to consider:

    (a)the benefit to the child [or children] of having a meaningful relationship with both of the child’s parents;

23. Both parents say that they recognise that, and I accept that that is clearly in the best interests of these children.  It is clear that there are difficulties that arise in relation to that matter, and it is an unfortunate consequence of a nation as large as ours that, where people travel for the purposes of work, for the purposes of family support, or for the purposes of a different lifestyle or a change, are matters which give rise then to difficulties in relation to each parent’s continued significant or substantial involvement in a child’s life, because of the tyranny of distance. 

24. But it is a matter that can properly be dealt with, and in that regard I am mindful of the many decisions which have referred to the fact that a meaningful relationship is not necessarily equal time, but rather consideration of issues which might more accurately be referred to as involvement in a child’s life, taking into consideration matters such as their value in the time of the child, and the significance of the relationship, whether it is of equal time or simply of significant time.

25. Fortunately in this case, as I have already commented, issues which also arise pursuant to primary consideration, being section 60CC(2)(b):

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

    are not matters that trouble me.  There is certainly not even a sense of an issue of domestic violence in relation to this matter, and I categorically find that that is not an issue which has been of any relevance whatsoever in relation to the proceedings.

26. There is, if you like, a concern that must arise in relation to the best interests of the children in relation to their psychological wellbeing, arising from issues with regard to the mother’s mental health, and therefore unfortunately, as occurred in the past, their involvement in unfortunate incidents such as the mother locking herself in the house, or in a bedroom with one or other of the children, which must have some detrimental effect upon the children.  But I am comforted in that regard by the expert evidence of Dr D, and also the fact that the mother now has what she considers to be greater support in relation to arrangements with regard to providing assistance to her as and when that might be necessary. 

27. In any event, I note that there was a very specific recommendation by Mr C as to the mother taking steps with regard to obtaining psychotherapy.  Unfortunately, that does not appear to have occurred as yet, but I can indicate at this time that it is intended that there be an order that the mother forthwith take steps with regard to the commencement of psychotherapy with a psychologist, so as to address issues in relation to post-traumatic stress disorder, and in particular her fears for the safety of both herself and of the children, and to deal with issues of cognition of abuse potential, and so as to ensure that there is a full grasp of those concerns, that the report of Mr C be released to the psychologist. 

28. Having noted that, however, I do not see that there is a real risk at this time in relation to the psychological wellbeing of the children and, one would hope, that with proper care, therapy and involvement of friends and supporters, that it would not be a matter that would arise to any real or substantial extent.

29. I turn then, of course, to section 60CC(3), the additional considerations that must be looked at in relation to this matter.  Those matters needs to be considered at least to the degree that they are relevant in relation to the determination of these proceedings, and I have already commented at length in relation to many of them during the reasons.  Subsection (a) relates to:

    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

1. In this instance, as I understand the evidence, no specific statements are made by any of the children, and that is understandable in light of their tender years, but it is also clear that when one looks at the nature of the relationship that the children have with each of their parents, and with other persons, including particularly their grandparents, that there is a desire on the part of the children, not necessarily for their parents to be back together, though that would perhaps be a most earnest wish, but rather an assurance that their right to a meaningful relationship with all of those persons so important and significant in their life would occur.

2. The relationship that these children have with their mother and their father, and with their grandparents, and no doubt others significant in their lives, is a significant consideration, one that does both of the parents credit because it is not something that has in any way reduced, as a result of the move by the mother to [S] in early December 2009, and it is something that must continue to be fostered and developed.  That is in fact a specific consideration that arises pursuant to the provisions of section 60CC(3)(c), and requires the court to give consideration to:

   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.

3. It has occurred, albeit I think with some difficulties experienced on the mother’s behalf, but I clearly have indicated that I accept that there can be a fostering of a relationship by the children with each of their parents, and that with significant and substantial involvement by both parents in the children’s lives, that that is something that will continue to occur.

4. Subsection (d) is a very significant consideration in relation to this matter, because it requires the court to give consideration to:

   the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)     either of his or her parents; or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

5. It is a relevant consideration in relation to this matter because of the fact that however it may have come about, eight months has passed with the mother living in [S].  It is a consideration that must be looked at, and whilst an established status quo or a settled environment is by no means determinative of what arrangements might properly be put into effect, it must be balanced against the notation by Mr C of the fact that the mother appreciates that there would be difficulties for her in any move back to the [R] or [B] area, and that it may have a significant impact upon her capacity to parent.

6. The father, as I have already commented, to his very great credit, in fact noted that in his discussions with Mr C, and therefore the effect on the changes in the children’s circumstances, including removal from a place where they are now, for whatever reason, settled to a place, albeit known to them but in which their mother would not be as settled, as comfortable, and therefore one would think as available to meet their needs, is a factor which must weigh heavily in relation to this matter.

7. Subsection (e) is also a significant consideration because it requires consideration to be given to the practical difficulties 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.

8. The fact is that there has been regular contact between the father and the children and the mother and the children, but it has come with a price.  That is of course the significant travel that is required in relation to moves between [R] and [S], and also no doubt is reflected in issues of expense and the costs associated with spending time. 

9. The more obvious arrangement which would be beneficial would be for each parent to live closer together, and both the mother and the father have recognised that there may be a basis for that to occur, either by the mother’s return to Brisbane or by the father’s seeking alternative arrangements in relation to his career with [omitted], such that he is able to live perhaps even in [S] and to foster and further his career at one of the other stations in closer proximity to [S].

10. The fact is that there is a difficulty with regard to the children spending time with the father whilst the current circumstances continue, and that difficulty can only increase, particularly now that [X] has commenced school, and that therefore, whilst there would be times available for the father to spend time with all of the children, it would be impossible for that to include [X] if it were to fall during school days.  It is a factor which is obviously of influence in relation to this matter, though of course not determinative.

11. Subsection (f) relates to the capacity of each of the parents and other persons to provide for the needs of the children, including their emotional and intellectual needs.  I must say that I am often of the view that that should be read in conjunction with subsection (i), which relates to the attitude to the child or children, and to the responsibilities of parenthood demonstrated by each of the child’s parents.  In that regard I have no doubt as to both parents’ absolute capacity to provide for the children’s intellectual needs.  They are both intelligent people.  They both recognise the importance of education for the children, and would no doubt take every proper step to ensure that the children’s educational needs are met, and that their schooling would be appropriate for those needs.

12. I have no doubt generally also that their emotional needs will be met, though as I have commented, there is, at least peripherally, a concern held by me as to the mother’s intent to fully recognise the importance to the children of the father spending time with them over and above other considerations.  In any event, as I have indicated, I intend to put in place orders which will more accurately reflect that significance that should properly be placed with regard to the children.

13. Similarly, the attitude to the children and to the responsibilities of parenthood are generally very strong and very appropriate on the part of both parents.  There are, however, concerns that arise and are held by me in relation to the mother.  The unilateral nature of her move might have come about because of her concerns as to ensuring that the children’s best interests were met, but it failed in any way to appreciate the children’s right to a meaningful relationship with their father, and the children’s right to have their father significantly involved in their life.

14. The responsibilities of parenthood do encapsulate everything that must be decided in relation to children, and it includes sometimes a recognition by parents that their wishes, hopes and expectations must come second to the best interests and the welfare of the children.  I expect that both parents are far more now aligned with that expectation in relation to the children, and I accept that both have a proper and responsible approach to parenting and to ensuring that the best interests of the children are met.

15. Fortunately, it is not necessary, as I have indicated, to address issues in relation to family violence, the existence of family violence orders, or matters that might arise in relation to the households of either of the parties.  The fact is that there is much of a positive nature in relation to this matter, though of course, as is always the case with any family grouping, there can be, in hindsight, hopes that parties might have acted in different or more appropriate ways.

16. Subsection (m) is a final catch-all provision.  Section 60CC(3)(m) is in these terms:

    any other fact or circumstance that the court thinks is relevant.

17. It would be remiss of me not to more specifically note the concerns that were expressed by Mr C in relation to the effects upon the mother of her being required to return to [B], and therefore to a place that at least she perceives would be without the support that is available to her, should it be necessary, in [S]. 

18. The father, as I have commented already, to his enormous credit, has acknowledged that as a significant factor in relation to this matter, and it is a matter that does weigh heavily in relation to my determination of these proceedings.

19. Perhaps, as is obvious from those final comments but I would hope from the many comments that have already been made in relation to this matter that the parents being in the same locality would be of enormous benefit to the children, and that the father’s initial proposal in relation to this matter, though there is of course the fall-back proposal of a possible obtaining by him of employment elsewhere, is not one that I am enamoured of.  The fact is that there are concerns that are held with regard to the mother’s capacity to provide for the care and supervision of the children and, in light of the father’s own recognition that the mother would have at least slightly a more significant day-to-day involvement in the children’s lives, is a factor that must be taken into consideration.

20. I turn, as I must then, back to those considerations that must be looked at pursuant to the provisions of section 65DAA(5).  Section 65DAA(5) is in these terms:

    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:

    (a)     how far apart the parents live from each other; and

    (b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

    (c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

    (d)the impact that an arrangement of that kind would have on the child; and

    (e)     such other matters as the court considers relevant.

21. Obviously there are difficulties therefore, at least at this time, with regard to considerations of the parties’ distance apart.  It was attempted to be addressed by the parties in the orders that were made by consent on 19 April 2010, in that provision was made for:

    the father to spend time with the children on each weekend that the father does not have to work, with regard to his rostered [omitted] and recreational leave, on weekends from 5 pm Friday until Sundays at 4 pm.

22. It was also sought that there should be opportunities for the father to spend additional time with the children, provided he could give seven days’ notice of any recreational leave.  There were, as I have already indicated, however, real concerns and difficulties that arise in that regard, particularly now that the oldest of the three children, [X], has commenced some educational requirements.  It could be easily and more appropriately dealt with if the father were in the same locality, and as I have already indicated, to his very great credit he has noted that there are real prospects of him being able to be in the same locality, albeit with more difficult rostering arrangements which would not provide constancy and consistency.  The distance between the parents is an issue at the moment.  It may not be an issue in the future. 

23. Obviously, consideration must be given to the parties’ capacity to implement arrangements for the children spending time of a substantial and significant nature with each of the parents, and I have no doubt that that can occur.  There are some difficulties in that respect, but in that regard I note also that the father in particular recognised that whilst there were some difficulties, he and the mother were able to work through them to ensure that the best interests of the children were to the forefront.  In any event, as I have indicated, I am already very much of the view that equal shared parental responsibility is an appropriate course to follow in relation to this matter.

24. Consideration must also be given to the parents’ current and future capacity to communicate with each other and to resolve difficulties that might arise in implementing an arrangement of that kind and, again, whilst there have been problems, I am satisfied that they can properly be dealt with by the parents, and in particular where orders are made which provide for a recognition of less time being required to be given in respect of notification, and more appropriate recognition of the importance of the father’s time with the children over and above other considerations, would mean that there could be a proper arrangement put in place which would recognise those matters which must be considered with regard to practicability arising pursuant to the provisions of section 65DAA(5).

25. Subsection (d), requiring a consideration of the impact of that arrangement upon the children, is not in my view a matter which gives rise to concern in respect of this matter.  These children are already spending, as best they can, substantial and significant time with their father, and if he were able to be in the same locality, and I accept that the father would take such actions if he were at all able to do so then there would be even greater opportunities for the father to spend time with the children.

26. Being mindful, therefore, of all of those matters to which I have referred in relation to section 61DA, section 60CC(2) and (3) and section 65DAA, and in particular subsections (1), (2) and (5), I am of the view that the appropriate and proper orders, so as to ensure that as required the best interests of the children are to the forefront and the paramount consideration in relation to this matter, that orders should be made generally in these terms.

ORDERS DELIVERED

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Coker FM

Date:  4 October 2011