Banders & Haddon

[2021] FCCA 2018

FEDERAL CIRCUIT COURT OF AUSTRALIA

Banders & Haddon [2021] FCCA 2018

File number(s):

DGC 2365 of 2020

Judgment of:

JUDGE BLAKE

Date of judgment:

26 August 2021

Catchwords:

FAMILY LAW – interim parenting dispute – Mother proposing to relocate to two hours from current residence to live with new partner – Father not opposing relocation rather seeking children live with him and remain enrolled at current school – Mother proposing increased school holiday time in lieu of Wednesday night time with Father – Mother primary carer of children – younger child having significant medical needs - best interests of children to remain in Mothers primary care and be enrolled in schools close to the Mother’s new residence

Legislation:

Family Law Act 1975 (Cth), ss 60CA, 60CC(2A), 60CC(3), 65DAA(3)

Cases cited:

Goode & Goode [2006] FamCA 1346

Morgan v Miles [2007] FamCA 1230

Rollins v Van Hummell [2016] FamCA 916

Number of paragraphs:

71

Date of hearing:

26 & 27 July 2021

Place:

Dandenong

Counsel for the Applicant:

Mr Allen

Solicitor for the Applicant:

Knight Family Lawyers

Advocate for the Respondent:

Mr Ng

Solicitor for the Respondent:

Pentana Stanton Lawyers

ORDERS

DGC 2365 of 2020

BETWEEN:

MR BANDERS

Applicant

AND:

MS HADDON

Respondent

ORDER MADE BY:	JUDGE BLAKE
DATE OF ORDER:	27 JULY 2021

THE COURT ORDERS THAT:

1.The matter remain listed for Final Hearing on 10 March 2022 at 10am for an estimated time of two days at the Federal Circuit Court of Australia in Dandenong.

2.The Mother be at liberty to relocate to Town B with the children, X born in 2012 (‘X’) and Y born in 2017 (‘Y’) (collectively, ‘the children’).

3.The Mother be at liberty to enrol X and Y into Town C Primary School and D Kindergarten, Town C respectively.

4.Orders 2 and 3 become operative at the end of the Victorian School Term three on 17 September 2021.

5.The location of all changeovers will be the E Restaurant at Suburb F Shopping Centre, or such other location agreed to by the parents in writing.

6.Pursuant to Rule 13.04 of the Federal Circuit Court Rules 2001, interim parenting orders are made by consent in accordance with the attached Minutes of proposed orders and placed on the Court file.

AND THE COURT NOTES THAT:

7.The parties may request written reasons for judgment by contacting the Chambers of Judge Blake within 21 days of the date of this order.

ENGROSSED MINUTE

THE COURT ORDERS BY CONSENT THAT:

1.The children live with the Mother.

2.The children spend time and communicate with the Father as follows:

(a)In week one (commencing 6 August 2021) from 5:00pm Friday until 5:00pm Sunday.

(b)In week two, at the election of the Father either:

i.By telephone/facetime from 5:00pm until 6:00pm Wednesday; or

ii.In person from 5:00pm until 6:30pm Wednesday.

(c)For half of all school holidays on a week about basis with the Father to spend time with X and Y on the first week of the holidays.

(d)If not already in the care of the Father, from 11.00am on Christmas Day until 1.00pm on Boxing Day.

3.The Father will inform the Mother of his election as to the nature of the time he spends with X and Y under paragraph 2(b) twenty-four hours before the time is to commence.

4.The Mother will provide privacy to X and Y for their telephone time with the Father under paragraph 2(b)(i).

5.If X and Y are not already in the care of the Mother, X and Y will be in the care of the Mother from 4.00pm on Christmas Eve until 11.00am on Christmas Day.

6.For the purposes of calculating X and Y’s school holiday time with each parent:

6.1The term school holidays are deemed to commence at the conclusion of school on the last day of the school term and conclude at the commencement of school on the      first day of the next school term.

6.2 The Christmas school holidays are deemed to commence at the conclusion of school        on the last day of the school term and conclude at the commencement of school on the first day of the next school term and exclude the 24th, 25th and 26th December.

7.The Parents are restrained from discussing the Court proceedings with or in the presence or hearing of X and Y or disclosing to X and Y any Court documentation or allowing any other person to do so.

8.The Parents are restrained from denigrating each other to or in the presence or hearing of X and Y or allowing any other person to do.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE BLAKE:

1. The matter before the Court arises from an Application in a Case filed by the Father on 26 May 2021.  It concerns the parenting arrangements for X born in 2012 and Y born in 2017. 

2. The principal issue in dispute is whether the Mother is permitted to relocate to Town B. Town B is approximately two hours travelling time from the Father’s residence.

3. On 27 July 2021, after hearing from the parties, I issued orders that, among other things, permitted the Mother to reside with the children in Town B.  Given other hearings and the state of my list on that day, I did not provide reasons for my orders but indicated to the parties that they could seek written reasons within 21 days from the date of the orders.  On 19 August 2021, the Father requested written reasons.  What follows are my reasons for the orders I made on 27 July 2021.

   BACKGROUND FACTS

4. The following facts are not in dispute.

5. The Father was born in 1989.  The Mother was born in 1992.  They commenced a relationship in 2011.

6. X was born in 2012.

7. Y was born in 2017. Y has significant health needs. The Family Consultant that conducted the 11F Report noted that she has a diagnosis of focal epilepsy, facial nerve palsy, speech delay and has a ‘fold’ in her brain, that she is currently  medicated to assist with reducing seizures and that she receives ongoing treatment via a Neurological specialist at the Royal Children’s Hospital.

8. The parties separated in January 2018.  In 2019, the father commenced a new relationship with Ms G.  The Mother is presently in a relationship with Mr H. Mr H lives in Town B.

9. The Mother presently lives in Suburb J. The Father presently lives in Town K. The travel time between the two residences is approximately 15 – 20 minutes. If the Mother moved to Town B, the distance between the two residences would increase to approximately 2 hours.

10. The present parenting arrangements are contained in orders made by consent on 17 November 2020 by Senior Registrar Heuer.  Under those orders, the children spend time with their Father as follows.  In week one, on the weekend from 4pm Friday until 7:30pm Sunday.  In week two, from 4:30pm until 7:30pm on a Wednesday.  The current orders do not make any provision for the Father to spend any holiday time or special occasion time with the children.

11. There are mutual allegations of family violence. There are not any intervention orders in place between the parties.

    THE ISSUES IN DISPUTE

12. The principal issues in dispute are as follows:

    (a)Whether the Mother has liberty to relocate with the children to Town B;

    (b)If the Mother is given liberty to relocate to Town B, whether the residency of the children should be changed so that they live with the Father and spend time with the Mother;

    (c)If the Mother is given liberty to relocate with the children to Town B, what time the children should spend with the Father.

13. There is not any dispute between the parties that parental responsibility should continue to be shared between them.

    APPLICABLE PRINCIPLES

14. Cases such as the present one which involve the application by a parent to relocate to another area with children are amongst the most difficult cases that this Court is required to determine. Whilst matters such as the present may be described as a ‘relocation case’, there is in fact no such thing and it is not a separate category of case. At the end of the day, it is first and foremost a parenting case, and guidance on how to resolve it is to be taken having regard to the Family Law Act 1975 (Cth) (‘Act’) and authority. 

15. In Morgan v Miles [2007] FamCA 1230, Boland J gave detailed consideration to how a Court should approach the making a parenting orders where the relocation of a parent is imminent or has occurred. I have had regard to the comments of Boland J, particularly in paragraphs [55] and [72] – [88]. Further, in Rollins v Van Hummell [2016] FamCA 916 (“Rollins”) at [2]- [13], Gill J usefully summarised the principles to be applied, and the approaches available to a Court, in a case such as the present.

16. The present matter concerns the making of interim orders. The Full Court in Goode & Goode [2006] FamCA 1346 set out at paragraphs [81]-[82] the approach to be adopted in interim parenting matters. The Full Court emphasised that the legislative pathway must be followed. Among other things, the Court noted that it is necessary to identify the parties competing proposals, the issues in dispute, and the agreed or uncontested facts, before turning to apply the law.

17. The Full Court recognised that interim cases can be difficult as there are often conflicting facts, little helpful evidence and disputes between parties as to what constitutes the best interests of the children. The Court cannot determine factual issues in dispute in an interim hearing. 

18. In determining interim parenting matters, section 60CA of the Act provides that I must regard the best interests of the children as being the paramount consideration. In determining the best interests of the children there are two primary considerations and several additional considerations to take into account. The two primary considerations are:

    (a)The benefit to the children of having a meaningful relationship with both parents; and

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

19. I am required pursuant to section 60CC(2A) of the Act to give greater weight to the second of those two primary considerations, being the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

20. There are then the additional considerations that the Court is required to take into account. These are set out in section 60CC(3) of the Act.

    EVIDENCE

    The 11F Report

21. A report was prepared for the Court pursuant to section 11F of the Act.

22. In respect of the observations of the children, the Family Consultant stated as follows:

    17.Y (4 years old) has a diagnosis of focal epilepsy, facial nerve palsy, speech delay and has a ‘fold’ in her brain. She is currently is medicated to assist with reducing seizures and receives ongoing treatment via Neurological specialist at the Royal Children’s Hospital. Y is also engaged with a Paediatrician in Town L and there is current investigation into possible Oppositional Defiance Disorder (ODD) and Attention Deficit Hyperactivity Disorder (ADHD). Y has a NDIS package, in involved with an Occupational Therapist via EACH and additionally is reported to be on the waitlist for speech therapy in the Suburb J area.

    18.Y was not interviewed due to her age however she was briefly observed on MS Teams at the commencement of Ms Haddon’s interview. She appeared inquisitive, humorous and bubbly. Ms Haddon and Mr Banders shared a very similar description and experience of Y’s personality and presentation, describing her a strong willed, funny, joyous, full of energy, smart and cheeky girl. Both parties displayed a sense of warmth and joy when describing Y. However there were differences in their experiences of Y’s behavioural profile and corresponding needs, with Ms Haddon indicating more challenging behaviours as opposed to Mr Banders who reported not seeing this profile or the same needs during his spend time.

    19.X (8 years old) is currently engaged with medical services at Region M Children’s Hospital with potential investigation into Autism Spectrum Disorder (ASD) and, as Ms Haddon reported, X struggles at times with sensory overload. 

    20.Mr Banders described X as an “adorable”, “loving”, “friendly” and “smart” child who speaks with an unusual accent. Ms Haddon was similar in her representation of X and stated she was “easy going”, “bubbly”, “caring” and “active” child, however she also advised there had been challenges with remote learning along the way and that she had experienced bullying due to her speech.

    21.At interview X presented as extremely chatty, open, friendly and easily engaged with the writer. She spoke with a distinct and unusual accent which gave her an air of sophistication or maturity. She spoke of both school and family, and overall she appeared as a generally resilient child who could navigate the world with some confidence. She commented she had lots of friends and found it easy make new ones as sometimes you ‘grew apart’ from them and then she would “replace them with someone better”.

    22.X described both the paternal and maternal family and households with a similar sense of satisfaction, naming activities she enjoyed engaging in and it appeared she had a positive sense of connection with both her parents, their partners, and step-siblings. 

    23.On the topic of moving to Town B, which X was aware of, she commented that it would “okay or alright” and she was “actually kind of positive about it”. But she had been a little worried about her father views and reactions to this, as he “did ask lots of questions” and she was worried about saying “yes” to moving.

    24.X spoke about memories of conflict between her parents which was inclusive of “yelling”, telling "me, N and Y to S up”, witnessing when her father “pushed mum on the hill”, and he “came to my house and tried to take me”. It appeared she associated these memories with sometimes having “funny”, “scared” or “strange” feelings in her tummy about spend time with her father. However, X also used mature language references to describe some of these feelings such as “I’m still traumatised about the past” and “he (her father) has anger issues”, which indicates she has been exposed to, aware of and potentially included in some adult conversations and is at minimum aware of a certain level of complexity relating to the co-parenting relationship.

    25.She stated that her wish was her Mother and siblings “to be a great big happy family” with Mr H and his children”.

23. In respect of the issues which the Family Consultant identified, the Family consultant stated as follows

    26.Ms Haddon reported X and Y have a very positive relationship with their new stepsiblings, O (12 years) and P (11 years), as well as a supportive relationship with their stepfather, Mr H and his extended family. Ms Haddon reports she has a positive relationship with Mr H’s former partner, the mother of his children, which if correct will support their emotional and psychological development.

    27.Mr Banders reported X and Y also have a very positive relationship with their stepsisters, Q (8 years) and R (4 years) and consider themselves all sisters. It was also reported their stepmother, Ms G has a very good relationship with Mr Banders’s children which was echoed by Mr Banders who stated that she considers Ms G to be a very good role model and influence and is happy she in the girls life. Whilst Mr Banders questioned the validity of Ms Haddon’s sentiments, it is positive to see some level of good will and connection between the households and this hopefully allows for positive relationships to develop in the future.

    28.Whilst it appeared X did have an overall positive relationship with her father, she also described having a “funny” or “strange” feeling in her tummy about spend time and this indicated she was conscious of issues surrounding this and in some way attempting to manage the impact of this internally.

    If relocation to Town B was granted

    29.The children have a well established relationship with their father and have been attending spend time on a regular basis for some time now, given their age and stage it would be reasonable to predict this connection could continue to be fostered and maintained via spend time and other means of communication (phone, video chat, letters and drawings etc).

    30.There appears to be no adverse impact to the medical care needs of either Y or X if the siblings relocated to Town B. In fact it appears that services can be transferred into Royal Children’s Hospital or services in the Town B area potentially streamlining this process. 

    31.There would require to be a change in enrolment for both X and Y, at primary school and day-care respectively however neither of these appear to be necessarily dramatic or problematic moves. Ms Haddon has investigated available options in the area, and whilst is it acknowledged Mr Banders feels he has been denied to opportunity to be involved in the decision making process pertaining to these options, this does not preclude him from being involved in these facilities and receiving feedback and updates around his children’s educational progress into the future. 

    32.There could be an impact on the spend time arrangements between X, Y and Mr Banders due to the added distance. It appears feasible that alternate weekend spend time (from Friday afternoon to Sunday afternoon) could remain in place, however the current Wednesday night dinner may poses logistical complications.

    Alternate weekends

    -Ms Haddon has offered flexibility in regards to the changeover location of spend time, suggesting either Suburb S or Suburb F Shopping centre.

    -Additionally she has offered to pick up X and Y from Town K at the conclusion of weekend spend time.

    -If this was to occur there would likely be some level of change required to the changeover times as the current 730pm time would be too late and thus this would result in Mr Banders effectively having a shorter period of spend time.

    Wednesday Dinner

    -Ms Haddon proposes this arrangement remains in place at Mr Banders’s discretion, however given time of this event it would be likely Mr Banders would require to be responsible for the travel component of this.

    -Mr Banders has expressed concern with this arrangement being feasible to achieve as well as this time could not include Ms G and her children.

    -Ms Haddon has proposed additional spend time to occur in the holiday period to compensate if the Wednesday dinners were not achievable.

    -         Additionally this could be converted to a video call event or similar.

    33.Mr Banders expressed concerns his relationship and capacity to be available to his children would be negatively impacted if the relocation was granted and additionally he was doubtful Ms Haddon would be able to abide by the Orders and facilitate flexibility as he evidenced current examples of the arrangement not working.

    34.If relocation was not granted this could adversely impact on Ms Haddon’s relationship with Mr H developing and her current self-reported positive outlook on life and parenting capacity.

    If additional spend time was granted to Mr Banders

    35.The children would have an opportunity to continue to develop and foster closer relationship with Mr Banders, Ms G and her children in this household.

    36.There would be limited changes required to their educational or medical services.

1. The Family Consultant also stated the following in respect of future directions:

   38.      The issue of parental responsibility be reserved.

   39.      The children to remain living with Ms Haddon.

   40.If the Court granted leave for Ms Haddon and the children to relocate to Town B the following is recommended

   -Alternate weekend spend time to remain in place, with Mr Banders picking the children up for the commencement and Ms Haddon at the conclusion of spend time.

   -Change over locations to include the following options as agreed between the parties, Town B, Suburb S, Suburb F and Town K.

   -Wednesday dinner to remain in place, with the possibility of converting to a video call.

   -Additional time to be provided to Mr Banders during school holidays or other available days such as public holidays to allow X and Y to engage in activities and leisure with Mr Banders.

   41.Pending a decision being provided by the Court in relation to the issue for relocation, it is recommended that the current spend-time arrangements remain in place to minimise disruption of the children’s routines.

   42.The Court may find it useful to seek relevant information from Victoria Police and Department of Fairness, Families and Housing in relation to Mr H and Ms G and any potential risk posed to the children if they resided in this setting.

   43.The Court may find it useful to obtain verified feedback at to Mr Banders’s attempts and intentions to complete Men’s Behaviour Change program as well as “Parenting after Separation’.

   44.The Court may find it useful to obtain verified feedback at to Ms Haddon’s attempts and intentions to complete “Parenting after Separation’ program.

   45.The Court may find it useful to subpoena any records and information pertaining to the children’s medical needs, assessments and treatment plans.

   46.The Court may find it useful to subpoena any records and information pertaining to Ms Haddon’s engagement in Family Violence services.

   47.Mr Banders should be permitted to be added to Y’s birth certificate with Ms Haddon to actively endorse this to occur, unless there is information the writer does not have access to with would indicate a significant risk to do so.

   48.Should the matter remain in litigation the Court may find it beneficial to order a Family Report.

2. I have given close consideration to the observations and opinions of the Family Consultant in relation to this matter.

   The Reports from the Department of Families, Fairness and Housing (‘DFFH’)

3. The Court has received three reports from DFFH (or its predecessor Department).

4. In its report of July 2020, the Department noted a high level of parental acrimony and within that context, physical violence by the Father stating that ‘during investigation it was assessed that both parents engaged in verbal family violence against each other, that historically there was physical violence perpetrated by [the Father]’.  The Department also noted that ‘it was ascertained that the children were not inherently fearful of [the Father] himself, rather the conflict in family violence between himself and [the Mother] during their contact.  The concerns were substantiated based on the likelihood of harm, with [the Father] listed as a person responsible for harm’.  Finally, the Department noted that ‘whilst it is imperative that children’s health and care needs are met, it is also imperative that the children are not impacted by the parental acrimony.  The children need a safe and caring environment.  There is no indication that this cannot be provided at either parent’s home’.

5. On 3 January 2021, the Department provided a further report.  The Department noted historical concerns, but concluded that ‘child protection history was reviewed and it was assessed that there is no information to suggest X and Y are at immediate risk of harm in the care of [the Mother] all [the Father]’

6. Its most recent report received in July 2021, DFFH noted:

   (a)there have been 13 previous child protection reports for the children in the period 2018 to 2021 of which one progressed to investigation and assessment phase and another progressed to protective intervention;

   (b)concerns highlight that the children have experienced significant trauma as a result of repeated exposure to family violence perpetrated by the Father toward the Mother;

   (c)Further concerns related to a range of matters including custody, X self-harming, inappropriate discipline by Ms Haddon and Mr Banders, an acrimonious parental relationship, and the children’s poor hygiene;

   (d)it interviewed X on 30 April 2021 and ‘X highlighted that she enjoys when [the Father] takes them on adventures.  X raised concerns in relation to historical family violence perpetrated by [the Father] towards [the Mother], X also raised concerns in relation to current verbal violence perpetrated by [the Father] towards his current partner… Which she disclosed made her feel scared when the [Father] yells because it reminds her of the time she was exposed to family violence between [the Father] and [the Mother].  X advised the time when [the Mother] made her feel uncomfortable and embarrassed during conversations regarding puberty.  However, she disclosed no protective concerns regarding [the Mother]’.

   (e)The Mother did not raise any protective concerns regarding the children having contact with the Father;

   (f)that ‘Child Protection are making an assessment based solely on what has been provided.  Whilst Child Protection acknowledge [the Father’s] concerns as per the affidavit, X has identified no protective concerns regarding the [Mother].  X did raise concerns regarding family violence perpetrated by the [Father] to his partner… Any decisions regarding contact made against the children’s wishes may be highly traumatising’.

   The evidence of the Father

7. The Father filed four affidavits in the lead up to the hearing on 25 May 2021, 10 June 2021 and, two affidavits filed on 16 July 2021 (one from Ms G). The Father also sought to rely on an affidavit dated 26 July 2021, on day 2 of the hearing, which I did not permit for reasons given on the transcript.  In his affidavit of 25 May 2021, he deposed to various concerns he held about the mother’s parenting.  In his affidavit of 10 June 2021, he deposed to concerns he had about X’s non-attendance at school while in the Mother’s care; other concerns he holds about the mother and her parenting of the children; of his belief that the Mother had already moved to Town B; that the Mother fails to inform him of medical appointments for the children; that he and his partner have not screamed or had heated arguments in front of children. In his affidavit of 16 July 2021, he provided updated material and responded to the Mother’s affidavit.

   The Mother’s evidence

8. The Mother filed an affidavit sworn on 1 July 2021.  In it, she deposes to a range of matters including that she would live with her partner at his property in Town B (the property being owned by the partner and the partner’s father); the medical needs of the children and their attendances at various hospitals including the Royal Children’s Hospital; that there is a waitlist of around one year for speech pathology services in Suburb J, however the wait time is only two weeks in Town B; that she regards Town C Primary School as a school that would be able to provide specific assistance to Y; that she suffers from depression and anxiety and moving to be with her partner would be of assistance with that; that she has a chance of obtaining employment in Town B; that while the Father pays child support, he does not pay any the fees associated with school or day care and she pays all of the medical, education and clothing expenses for the children.  She also raised concerns in respect of the Father’s parenting of the children.

   THE PARTIES CONTENTIONS AND PROPOSALS

9. The Father opposed the Mother’s relocation to Town B.  His submissions were, among other things, as follows:

   (a)The Mother wishes to move to Town B primarily because she wants to live with Mr H and while that is understandable, any specific benefits to the children are limited;

   (b)his capacity to be available for the children, and his relationship with them, would be negatively affected if relocation were permitted;

   (c)he was doubtful that the Mother would comply with any orders or be flexible;

   (d)he is seeking at trial a shared care arrangement;

   (e)the Mother has not placed sufficient evidence before the Court in order for the Court to determine the issue of the Mother’s relocation. For example, there is no evidence of Mr H’s views, his attitude to the children and the benefits it is alleged will flow to the Mother from her relationship with him;

   (f)the evidence from the Mother is not clear as to when her current lease in Suburb J ends; and

   (g)the Mother had moved to Town B in breach of Court orders.

10. The Father does not seek to restrain the Mother from moving to Town B. Rather, he sought orders, inter alia, that restrained the children from being removed from their current education facility.  He also sought orders that in the event the Mother relocates to Town B, that the children reside with him and spend time with the Mother.

11. The Mother submitted, inter alia, that:

    (a)She is, and has been, the primary carer of the children;

    (b)as the primary carer, she has been responsible for attending to Y’s health needs, while the Father has not been involved;

    (c)she is the one that has undertaken all of the travel to the Royal Children’s Hospital and living in Town B would reduce travel time to the Hospital;

    (d)she would be living in a residence owned by her partner (jointly with his father).  Her financial burden would be reduced as a result of this benefit.  Further, there is a farm on the property and the children would benefit from the open space;

    (e)not allowing her to move to live with her partner would potentially be detrimental to her mental health and well-being.  She has support in Town B;

    (f)the children would continue to enjoy a meaningful relationship with their Father and the effect of her proposal (notwithstanding the Father would likely lose Wednesday nights) is that he would not suffer a reduction in time with the children, though the burden of changeover given the distance between the parties would be increased;  and

    (g)she has another child, N, who is being bullied at school and the move would give her a fresh start.

12. The Mother sought orders that inter alia, she be at liberty to relocate to Town B with the children, and that she be at liberty to enrol the children at schools and early learning centres in Town C. She proposed that the children continue to see the Father each alternative weekend as contemplated by the existing orders.  The Mother accepted that the Wednesday evenings in the alternate week may be problematic if she moved to Town B with the children, but she indicated she was willing to commit to those evenings if the Father wanted to retain it.  She also proposed that if she moved to Town B with the children and Wednesday evening time was  no longer viable, the Father be given extra time with the children by way of spending time with them for half of all school holidays.

    THE BEST INTERESTS OF X AND Y

13. Each party has made allegations against the other in relation to their parenting of the children and the risks posed by that parenting.  It is not possible to resolve these or other competing allegations between the parties in an interim hearing. 

14. There is some independent evidence before the Court in relation to risks to the children from the Father.  That evidence arises from the 11F Report and from the DFFH reports.  I note that the Father denies that he is a risk to the children.  The risks identified do not reach such a level that the Mother opposes the children spending time with the Father.  In fact, she enters the hearing on one view proposing an arrangement that is more generous to the Father in terms of the amount of overnight time he spends with the children on an annual basis.

15. While the matters contained within the 11F Report and the DFFH report do not carry any great weight when considering whether the Father’s time with the children should be incrementally increased, they are factors that I give greater weight to in the context of the Father’s position that if the Mother moves to Town B, the children live with him.  I note that X in particular not only recalls the Father’s behaviour toward the Mother, but experiences physical sensations when spending time with him, notwithstanding her overall positive relationship.  I would be concerned about X’s welfare if an order were made for her and Y to live with the Father.

16. Perhaps the most significant issue in this case is the extent to which the Father’s ability to maintain a meaningful relationship with the children would be prejudiced if an order were made permitting the Mother to live in Town B with the children.  When the circumstances of this case, and the parties competing proposals are examined, the following becomes apparent.

17. First, the proposal by the Mother involves her moving to Town B, some two hours travelling time away from the Father.  That is obviously a change that will impose an additional burden on the children and parents.  It is not, however, an insurmountable burden to the children spending regular time with the Father.  This is not a case where one party is moving so far away (for example, interstate or overseas) such as to seriously disrupt the spend time arrangements with the non-resident parent.

18. Second, when the parties proposals are compared, it is not at all clear that the Father will lose any ability to spend time with the children when compared to what he enjoys under the existing parenting arrangements and orders.  The Mother is prepared to make the effort to ensure the Father sees the children on Wednesdays if he chooses, but acknowledges that that might be difficult.  It is not altogether clear on the evidence that the Father will always not be able to see the children on Wednesdays, though I accept it might be difficult for him to do so.

19. Third, to the extent that the Father may suffer any reduction in the time he spends with the children because he is unable to see them on alternate Wednesday evenings, the Mother has put forward a proposal that he spend half of all school holidays with the children.  The Father does not currently spend any regular or court ordered time with the children on school holidays.  The Mother’s proposal, in my view, will give to the Father an opportunity to develop a meaningful relationship with both of his children that he does not presently enjoy. 

20. Finally, I note that the Family Consultant at paragraph [30] of her report was of the view that the children’s relationship with their Father could continue to be fostered. 

21. The Mother’s proposal may not be what the Father wants.  It is difficult, however, to accept any proposition that the proposal by the Mother would detrimentally affect the children having a meaningful relationship with their Father. 

22. In considering this issue, it is also necessary to evaluate the Father’s proposal that the children come to live with him, and what that would mean for their relationship with their Mother.  Under the Father’s proposal, the children would be removed from their primary carer.  From spending 12 nights per fortnight with her, they would spend 2 nights per fortnight with her.  There is a real risk that in that circumstance, the children’s relationship with their Mother would be seriously altered and that the mother’s ability to maintain a meaningful relationship with the children would be seriously prejudiced.

23. X expressed the view to the Family Consultant that she wanted her Mother and siblings to be a ‘big happy family’ with Mr H and his children.  I give little weight to this view given X’s age.  As I have noted above, I have given some weight to the observations X made to the Family Consultant and DFFH regarding her interactions and experiences with her Father.  There is a distinction to be drawn between views expressed by children as to where they wish to live and children’s recollection of their experiences, or their descriptions of physical unease in the presence of a party.

24. The Family Consultant recorded that the children have positive relationships with their parents and their stepsiblings.  The Mother’s proposal would allow the children to develop a closer relationship with Mr H’s children, whom she says they have a good relationship with.  It seems likely that if the Mother were to live with Mr H, the children’s relationships with Mr H’s children would be given greater opportunity to flourish.

25. The Father contended that under his proposal, the children would be given the opportunity to develop relationships with the children of his new partner.  I accept that it is likely that those relationships would be given the opportunity to flourish if the children lived with the Father.  Equally, however, it is to be observed that if the children were to move to Town B with their mother, the children’s relationships with the Father’s step siblings would not suffer.  They would continue to have the same time together that they presently enjoy (Wednesday evening excepted), because their time with their Father is not altered and on one view, as I have noted, is enhanced.

26. The issue of whether the Father has participated in making decisions about the medical treatment of the children is a matter of some contest.  The Mother says he has not participated and does not assist in terms of taking the children to appointments or paying the costs of such professionals.  The Father contended that the Mother had not included him in the making of appointments.  It is difficult to resolve this issue given the interim nature of the hearing.  Orders have been made previously for the Mother to authorise the Father to discuss Y’s medical treatment with Y’s treating practitioners, and I reiterated to the Mother during the hearing that it is important that she does so.  This matter is not influential one way or the other.

27. The Mother contended that the father did not contribute for medical, schooling and other expenses.  He Father contended that he paid child support.  This is not a matter that overly influences the issues before me one way or the other.

28. The evidence before the Court is that the Father has taken advantage of the existing orders to spend time with the children and develop a relationship with them and I accept that he has done so.

29. An issue that is of significance is the likely effect of any change in circumstances on the children.  One potential benefit of the move for the children is that on the evidence from the Mother, who has primarily been responsible for their medical issues and treatment, Y will have access to a speech pathologist sooner if she lives in Town B. That is a matter I give some weight to.

30. The relocation by the Mother to Town B will see the children enrolled in new schools or childcare centres. The evidence before the Court as to how well the children are settled in the present home, school and community environments is not altogether clear. As I have noted, the parties have made various allegations against each other in relation to lack of parenting, or care for, the children. Those competing contentions cannot be resolved in the context of the present hearing. The best evidence as to how settled the children might be is to be inferred from the section 11F Report. That Report paints a picture of two children who have positive relationships with each parent, and appear to be happy given the observations of the Family Consultant. One assumes, given the observations of the Family Consultant, that the children are settled in their present environment.

1. If one assumes for present purposes that the children are settled, the question that arises is what effect the parties competing proposals might have on the children. It seems to me that on any view, each of the parties proposals will result in significant change for the children. If the children live in Town B with their mother, they will be moving to a new area. They will need to make new friends and connections in the community and at school. They will need to adapt to the rhythms of the new school. They will be living on a permanent basis with two stepsiblings whom it seems they have previously spent little time with. I expect all of that will be a significant change, though I draw some comfort from the observations of the Family Consultant that X was generally resilient, could navigate the world with some confidence and that she found it easy to make new friends. If the children moved to live with their Father, they will retain their friends and connections in the community and at school. There will be no need to adapt to the rhythms of a new school, or to make new friends. They will, however, have to get used to living without their Mother who has been the primary carer. On any view that is a very significant change. It becomes an even more significant change in circumstances where the material suggests the Mother has been primarily responsible for attending to the children’s particular medical needs. A change of residence is not recommended by the Family Consultant who has suggested the children continue living with the Mother. The children would also face the challenge of moving into their Father’s home on a permanent basis and adapting to the rhythms in that home. When the proposals of each of the parties are weighed up, I am inclined to the view that while the children will likely experience significant disruption whatever occurs, the disruption may well be greater if they are forced to live apart from their Mother.

2. Each party will experience practical difficulty and expense under the proposals they have put forward. There will be increased travel time and increased cost associated with the travel. The Father’s counsel sought to make much of the fact that the increased travel time is a significant detriment to the children given their ages. That might be so, but it is the outcome on both parties proposals. As I said at the outset, the Father is not seeking to restrain the Mother from moving to Town B. Accordingly, this factor does not influence matters one way or the other. One area where travel time seems likely to be reduced is the children’s travel time to the Royal Children’s Hospital. That is a factor I give some weight to, given the apparent needs of the children.

3. Finally, there is a need to consider the capacity of each parent to provide for the needs of children.  To some extent, I have addressed this issue earlier.  What seems almost beyond dispute, given the state of the evidence, is the following.  First, these children have particular medical needs.   Second, the Mother has been the primary carer.  Third, for whatever reason and without criticising the Father, it is the mother that has been primarily responsible for attending not only to the children’s day-to-day needs, but also to the particular medical needs.  Fourth, the Mother has deposed to suffering from anxiety and depression. 

4. The move by the Mother to live with her partner will enable her to draw on him for support.  That is a matter of some significance.  The children rely and have relied on their mother as their primary carer and some weight needs to be given to ensuring that the Mother is healthy and best able to care for the children. The Family Consultant at paragraph [34] of the Report noted this matter. These matters tend to weigh in favour of the Mothers proposal.

5. As I have noted, the Father made a number of other submissions and it is appropriate to consider each of them.

6. A primary submission made by the Father was that the Mother had not placed sufficient evidence before the Court in order for the Court to determine the issue of the Mother’s relocation. For example, it was submitted there is no evidence of Mr H’s views, his attitude to the children and the benefits it is alleged will flow to the Mother from her relationship with him. In respect of these matters, I agree that it would have been desirable to have evidence from Mr H about his views. However, the following needs to be borne in mind. First, the Mother has placed evidence before the Court about the relationship with Mr H which I have considered, in particular, in respect of her mental health and the support she expects to derive. Second, the Father’s contentions suggest there may be an onus on the Mother to prove the benefits of relocation. There is no onus on the Mother in a case such as this. The matter falls to be determined by reference to what is in the children’s best interests. Third, as noted in Rollins, the Court should not be drawn into the merits of the substantive case, but should look to matters such as the proposals of the parties to determine the issue. That is what I have endeavoured to do.

7. The Father also submitted that the benefits to the children of moving to Town B, including asserted financial benefits, were limited or that there was no evidence about them.  Among other things, it was submitted that there was no evidence about how secure the Mothers accommodation with Mr H was.  In considering this matter, I have not placed any weight on what the Mother asserts to be the financial benefits of a move to Town B. Having said that, I do not regard the Father’s submission as being overly helpful.  The question is not whether I can make findings that there are benefits to the children from moving to Town B.  Rather, what the Court is required to do is to evaluate the proposals in light of the evidence in circumstances, and arrive at a decision based upon the children’s best interests.

8. The Father also submitted that the Mother had already moved to Town B in breach of court orders.  I considered the Father’s evidence in respect of this.  Ultimately, I regarded the Father’s evidence on this issue as being largely speculative.  He did not place before the Court any direct and uncontradicted evidence that the Mother had in fact moved to Town B prior to the hearing on the matter.

9. Finally, the Father contended that granting the orders sought by the Mother now would deprive him of his ability to seek an equal shared care arrangement at the final hearing, which is what he seeks in his Amended Application filed 10 February 2021.  Presumably what the Father is saying is that the Court should require the parties to live near enough to each other on an interim basis, so that the Father’s position at trial is not prejudiced.

10. This is a curious submission.   The Father himself has not proposed moving to live in the Town B area.  Presumably therefore, the submission is advanced on the basis that the Mother should remain living in the Suburb J area to enable him to pursue orders for shared care.  It should be remembered, however, that the Father has not sought an order restraining the Mother from moving to Town B.  His position in this hearing was that the Mother was free to move, but the children should remain at the schools and commenced living with him.

11. Ultimately, it may be the case that a shared care arrangement will not work if the Mother moves to Town B with the children and the Father remains in Town K. Whether that is ultimately the case, however, will depend upon all of the evidence at trial.  Further, it is not beyond the realms of possibility that each of the parties may change their position prior to trial.  The Father, by reference to the position he put before this Court, already appears to be taking a position that is different from the position outlined in his Amended Application.  It is also not unusual for parties to alter their positions as matters get closer to trial.  For all of these reasons, I do not regard the Father’s submission as persuasive. 

12. In light of what I have set out above, in my view, it is in the children’s best interests that they continue to live with their Mother in Town B.  In my view, the Mother should be given liberty to move to Town B with the children.  In light of those conclusions, is also appropriate for orders to be made for X and Y to be enrolled in Town C Primary School and D Kindergarten at Town C respectively.  In my view, these orders should become operative from Term 3. That is a natural break in the children’s schooling.  It will also give them time to say goodbye to friends at school and in the community and to obtain a sense of closure.  That will not happen if the orders become effective immediately, which is what the Mother urged me to do.

13. Given that parental responsibility is to be shared between the parties on an interim basis, I am required to consider whether it is in the children’s best interest that they spend equal time with each of the parents.  I note that neither party sought such an order. The inference to be drawn from that is that the parties themselves regard it as unworkable, at least as matters presently stand.  I am inclined to the view that it is not reasonably practicable on the basis of the evidence currently before me to order that the children spend equal time with each parent.  Matters may change after a trial however as things presently stand, I decline to make any order for equal time.

14. It is then necessary to consider making an order for the children to spend substantial and significant time with the Father. The Father did not seek an order to this effect. There is no evidence before me that would enable me, at this time, to draw a conclusion that it is reasonably practicable for the Father to spend substantial and significant time with the children. For that reason, I declined to make any order for the Father to spend substantial and significant time with the children as defined in section 65DAA(3) of the Act.

15. The Father currently does not spend school holiday time with the children.  The Mother has proposed orders for the Father to spend time with the children for half of all school holidays on a week about basis.  The Father has agreed to those orders being made.  I regard it as appropriate, and in the children’s best interests, for me to make that order.

16. The Father sought an order that the children spend one week home schooling with him in the event of the further lockdowns. I declined to make such an order because it is not in the best interests of the children. The Father has not had previous experience of home schooling the children and the idea of moving the children for one week is likely to be more disruptive to them.

17. Finally, there was a dispute about the time and location for changeover.   In my view, the E Restaurant at Suburb F Shopping Centre is an appropriate changeover location.  It is halfway between the parties.  The restaurant may well provide a convenient location for the children to enjoy a meal given the times for changeover if lockdowns permit. While X has Auskick on a Friday night which she would miss, I observe that the football season is almost at an end so the impact is not likely to be great on her, particularly having regard to when the order to live in Town B becomes effective. 

18. I have stepped back to consider these orders in light of all of my reasons.  I am satisfied that they are in the best interests of children and I make them as interim orders of the Court pending further order.

I certify that the preceding seventy one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.

Associate:  

Dated:       26 August 2021