BEENEY & JENNER

[2013] FCCA 1937

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEENEY & JENNER [2013] FCCA 1937

Catchwords:
FAMILY LAW – Interim relocation – relocation of a parent – where mother lives in Melbourne – where father lives in Sydney – where father proposes the mother relocate to Sydney with the children – where father does not propose that the children live with him.

Legislation:

Family Law Act 1975, ss.4(1), 60C, 60CA, 60CC, 61C, 61DA, 61DB, 65DAA, 65DAC, 65DAE

B & O & M [2005] FMCAfam 379
Ember & Assadi [2013] FamCAFC 107
Goode & Goode [2006] FamCA 1346
M & K [2007] FMCAfam 26
Morgan v Miles (2007) FamCA 1230
Newlands & Newlands [2007] FamCA 168
R & R: Children’s Wishes (2000) FLC 93-000
Re K (1994) FLC 92-461
Sampson v Hartnett (No.10) (2008) 38 Fam LR 315

Applicant: MR BEENEY

Respondent: MS JENNER

File Number: SYC 4601 of 2013

Judgment of: Judge Kemp

Hearing date: 12 November 2013

Date of Last Submission: 12 November 2013

Delivered at: Sydney

Orders made: 20 November 2013

Reasons Delivered on: 21 November 2013

REPRESENTATION

Solicitors for the Applicant: Ms Godden of Granger Godden Lawyers

Respondent: Self-represented

THE COURT ORDERS AS MADE ON 20 NOVEMBER 2013 AND PENDING FURTHER ORDER:

1. The children X born (omitted) 2009 (“X”) and Y born (omitted) 2012 (“Y”) (“the children”) live with the mother in Melbourne.

2. The children spend time with the father on alternate weekends or on such weekends as are specified by the father on 14 days written notice to the mother provided that such time is no more frequent than alternate weekends, or as otherwise agreed in writing, as follows:

X

(a)With X from 4.00pm 21 November 2013 until 4.00pm 22 November 2013;

(b)With X from 8.00am Saturday until 4.00pm Sunday commencing 23 November 2013;

Y

(c)For a period of 3 months from the date of these orders:

(i)From 8.00am to 11.00am Saturday and 2.00pm to 4.00pm Sunday.

(d)For a 3 month period from the end of the 3 month period in order (2)(c):

(i)From 8.00am Saturday to 2.00pm Saturday and 2.00pm to 4.00pm Sunday.

(e)As and from the end of the 3 month period in order (2)(d):

(i)From 8.00am Saturday to 4.00pm Saturday and 2.00pm to 4.00pm Sunday.

1. These proceedings be transferred to the Melbourne registry of this Court, to be listed for mention on 17 February 2014 at 9.45am.

2. An Independent Children’s Lawyer be appointed for the children and the Legal Aid Commission of Victoria is requested to implement that representation. 

3. The parties to provide to the said Commission all documents thus far filed in these proceedings by that party, together with all existing orders and copies of any relevant reports.

4. Leave is granted to the Independent Children’s Lawyer to issue more than 5 subpoenas.

THE COURT ORDERS ON 21 NOVEMBER 2013 THE FOLLOWING:

1. That the words “in Melbourne” be inserted after the word “father” and before the words “on alternate” where appearing in order 2 made on 20 November 2013, as referred to above.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4601 of 2013

MR BEENEY

Applicant

And

MS JENNER

Respondent

REASONS FOR JUDGMENT

Introduction

1. The father commenced these proceedings by way of Initiating Application filed 12 August 2013.

2. The father seeks various interim parenting orders, as now updated by a minute of proposed order, being Exhibit “A”, as follows:

   1.   That the place of residence for X, born (omitted) 2009 (“X”) and Y, born (omitted) 2012 (“Y”) (“the children”) be relocated to Sydney.

   2.   That the children live with the mother.

   3.   That upon the children’s relocation to Sydney, they shall spend time with the father on alternate weekends from Friday, 6.00pm until Monday, 8.00am, and on special occasions.

   4.   That until the children’s relocation to Sydney, the children shall spend time with the father, as follows:

   a.From 3.00pm, 21 November to 9.00am, 24 November 2013.

   b.From 9.00am, 7 December to 1.00pm, 8 December 2013.

   c.From 9.00am, 20 December to 25 December 2013 (Christmas).

   d.From 9.00am, 4 January to 1.00pm, 8 January 2014.

   e.From 9.00am, 25 January to 1.00pm, 27 January 2014.

   5.   That the mother cause the children’s principal place of residence to be relocated to the Sydney metropolitan area within 11 weeks of the date of these orders.

   6.   That the father bear the expense of the mother’s rental bond to reaccommodate her and the children in Sydney for accommodation at similar cost to the mother’s current rental.

   7.   That order 8(e) of the consent orders made on 6 September 2013 be discharged.  [The terms of this order are set out in paragraph 17 below.]

3. The mother, in her Response filed 24 September 2013, seeks her own interim parenting orders, as now updated in a minute of proposed order being Exhibit “1”, as follows:

   1.   That the children’s principal place of residence be relocated to Melbourne.

   2.   That the children live with the mother.

   3.   That the children spend time with the father on alternate weekends, as follows:

   a.X from 9.00am, Saturday until 4.00pm, Sunday.

   b.Y from 9.00am to 11.00am, Saturday, and 2.00pm to 4.00pm, Sunday.

   4.   The children’s time with the father is conditional upon the time occurring in Melbourne and the father meeting the cost of same.

4. In oral submissions, the mother suggested an amendment to her proposed order to extend the time with X from 8.00am Saturday to 4.00pm Sunday and with Y from 8.00am to 11.00am, Saturday and 2.00pm to 4.00pm, Sunday, with an expansion in the father’s time within a period of 6 months from 8.00am to 4.00pm on Saturday as well.

5. The father relies on the following documents:

   a)His affidavit sworn 22 October 2013 and filed on 23 October 2013.

   b)His affidavit sworn on 11 November 2013 and filed on that day.

   c)His financial statement sworn 12 November 2013 and filed in Court that day.

6. The mother relies on the following documents:

   a)Her affidavit sworn 19 September 2013 and filed on 24 September 2013

   b)Her financial statement sworn on 19 September 2013 and filed on 24 September 2013.

7. Ms Godden solicitor appears for the father.  The mother appeared self-represented by telephone from Melbourne. 

8. The background facts are as follows:

   a)The father was born on (omitted) 1969 and is 44 years of age.  The father’s occupation is a (omitted).  The father lives at (omitted) Sydney with his new partner.

   b)The father’s partner, Ms K, is also a (omitted).

   c)The mother was born on (omitted) 1975 and is 38 years of age.

   d)The mother’s occupation is home duties.

   e)The mother resides at (omitted) Melbourne, Victoria.

   f)The parties commenced to live together in March 2009 (on the father’s version) and July 2008 (on the mother’s version) and separated in January 2011, resuming cohabitation in May 2011 and then finally separating in July/August 2011 (on the father’s version) or December 2011 (on the mother’s version). 

   g)There are 2 children of the parties’ relationship, namely X, aged 3 years and 11 months and Y, aged 1 year and 3 months.

   h)The father’s parents live in (omitted) Sydney, New South Wales. 

   i)The father says the mother’s family reside in Western Australia.

   j)The father says that he has worked full-time since finishing school in 1986. 

   k)The father says that the mother has not worked since shortly after conceiving X, and has been a full-time carer for both children since their births.

   l)The father has a child of a previous relationship, namely A, (“A”) born (omitted) 2005, currently aged 8 years, and that child lives with the father on a week-about basis.

   m)The father lives with Ms K and her son, aged 6 years.

   n)In July/August 2010, the parties moved to the (omitted), Queensland, which necessitated the father being then unable to spend week-about time in Sydney with A. 

   o)In January 2011, the parties separated and the father relocated to Brisbane.

   p)In March 2011, the mother had eye surgery and stayed overnight with X at the father’s then residence in Brisbane.

   q)In July 2011, the mother and X moved to Brisbane as the parties had sought reconciliation.  The father said that this lasted until about July/August 2011 and the mother says that this was the case until December 2011. 

   r)In August 2011, the mother and X moved to a separate residence in Brisbane.  The father said that he spent 3 times per week with X with an overnight stay once per week. 

   s)In December 2011, the mother moved with X to (omitted) Queensland, to be close to her brother and sister who then resided there.  The mother says that this move was with the father’s agreement.  The father disputes that.  The father at that time was living in Brisbane.

   t)In July 2012, the father moved from Brisbane to Sydney and the mother remained living in (omitted) Queensland.

   u)On (omitted) 2012, Y was born.

   v)The father’s evidence was that he flew to (omitted) Queensland approximately every 6 weeks and spent time, being a couple of days visiting the mother and the children.  The father says that at that time there were no night times with Y as he was being breastfed by the mother.  The parties maintained Skype contact on Wednesday and Sunday, the father said for approximately 40 minutes at a time.

   w)On 10 August 2013, the mother moved herself and the children to Melbourne. 

9. The father’s Initiating Application filed on 12 August 2013 initially sought interim orders that the mother be restrained from relocating the children’s principal place of residence outside either the (omitted) Queensland or the Sydney metropolitan area.

10. The father says that at the time of filing his application, he had only very recently learned that the mother proposed to move to Melbourne as a result of attending in August 2013, at the invitation of the mother Y’s first birthday at (omitted) Queensland.  The father says he learned of this from a male friend of the mother and not from the mother herself.  The mother says that she, in fact, told the father in an email dated 21 May 2013 and that the father had responded in an email to her on 22 May 2013 to the effect that:

    There is no connection in Melbourne so you can go and the boys can come here.  You can easily come to Sydney and I can make that happen.

11. The father says, however, that shortly after his above email, the mother had spoken to him and had confirmed that she was going to stay in (omitted).  That is, he was content for her to remain in Queensland while he remained in Sydney.  Weight is attached to that position.

12. A Notice of Child Abuse, Family Violence, or Risk of Family Violence was filed on 12 August 2013 by the father, which refers in paragraph 14 to a number of asserted acts or omissions alleged by the father to constitute family violence, including:

    a)The mother threatened to self-harm and kill herself;

    b)The mother hit him on a number of occasions in the presence of the children;

    c)The mother bit him violently on his arm in the presence of the children;

    d)The mother punched him in the face on a number of occasions in the presence of the children;

    e)The mother picked up and smashed his laptop in his presence;

    f)The mother reversed her car while he was halfway inside it saying goodbye to X, pushing him and nearly knocking him to the ground;

    Ms Godden confirmed that given that the father’s position was for the children to continue to live with the mother in Sydney, those matters of asserted family violence did not, otherwise, impact on the Court’s decision referable to the current application. The Court accepts that position.

13. The Court notes that the mother’s affidavit material concedes that she did indeed smash the screen of the father’s laptop computer and that she had bitten the father.  She says that, on both occasions, she had been provoked by the father’s behaviour; the first, in accessing a dating website on his computer and the second in preventing her from leaving a room.

14. The father says that while the parties were together he was engaged with the children in caring for them, both before and after his work.  It seems common that the father has worked constantly and reasonably long hours as a (omitted) in various forms of (duties omitted) and that the mother had the predominant care for both children, certainly this is so as Y was born on (omitted) 2012, being either shortly after or around the time of the parties’ separation which at least on the father’s case, occurred in July/August 2012.

15. The Court accepts that the father has had, since July/August 2012 limited time with X, and even more limited time with Y.  This has been as a result no doubt of a combination of factors, including the location of the parents and the children’s ages and stage of development.

16. The father initially raised concerns about the paternity of Y.  Subsequently, testing was carried out and that testing confirmed that the father was the biological father of Y.  That was noted by the Court on 23 October 2013. 

17. The Court has made interim orders on 6 September 2013 and further orders by consent on 23 October 2013.  Those orders provided, inter alia, as follows:

    On 6 September 2013:

    1.Omitted.

    2.Omitted.

    3.Omitted.

    4.Omitted.

    5.That the children live with the mother.

    6.That the father spend time with the children in Victoria, as follows:

    a.With X every alternate weekend commencing 7 September 2013 from 9.00am, Saturday until 4.00pm, Sunday.

    b.With Y every alternate weekend commencing 7 September 2013 from 9.00am until 11.00am on Saturdays and from 2.00pm until 4.00pm on Sundays.

    7.That for the purposes of the above order, changeover was to occur at McDonald's (omitted) next to (omitted).

    8.That for the purposes of the above order, the father shall:

    a.Be in substantial attendance.

    b.Secure accommodation for himself and the children.

    c.Encourage X to nap between 12.00pm and 1.00pm.

    d.Feed Y only the food provided by the mother unless the mother does not provide sufficient food for him.

    e.Bear his expenses of spending time with the children.

    9.That the children communicate with the father by Skype and telephone, if Skype is unavailable, every Wednesday at 5.00pm and every alternate Sunday at 3.00pm commencing 15 September 2013.

    10.That for the purposes of the above order, the mother do all acts and things to facilitate the children’s communication with the father and will not terminate the Skype until the children are ready.

    On 23 October 2013:

    1.Omitted.

    2.Omitted.

    3.That the parties have equal shared parental responsibility for the children.

    4.That the parties be restrained from or allowing any third party denigrating the other or members of the other parties’ family within the hearing range of the children.

    5.The parties immediately notify the other of any serious illness or injury affecting the children and authorise any medical practitioner upon whom the children may attend from time to time to communicate with the other in respect of the children’s medical conditions and/or requirements and treatments.

    6.The mother retain the children’s passports and neither parent travel with the children internationally without the prior written agreement of the parties.

18. The father says that the mother invited himself, his partner and A to (omitted) in the period 2 August to 6 August 2013 to spend time with the children at around about the time of Y’s first birthday.  The father said that on 3 August, the mother delivered both boys to the father, his partner and A and they spent a good time together.

19. On 4 August 2013, the father said he spent further time with X and had a good time.

20. On 5 August 2013, the father said that he spent time with X but not Y.  The father said, and the mother conceded, that he had spent no time with Y on (omitted) August 2013, being Y’s actual birthday.  The father said that on 5 August 2013, the mother would not let X spend another night with him and threatened to call the police, dragging X out of the spa at the father’s accommodation, which had upset the child.

21. The father says that the mother has been submitting the children to unnecessary medical examination and treatments and administering medication to X, without a prescription.  The father further says that Y has attended children’s hospitals in Melbourne being (omitted) Hospital on 2 or 3 September 2013 and 9 October 2013, and the (omitted) Hospital on 11 October 2013, at times when the hospital discharge documents indicate that the child was not, at those times, unwell.  No discharge documents have been put before the Court as it would appear that those were the subject of a subpoena issued to the (omitted) Medical Centre which had received copies of the hospital notes but that the subpoena was not yet returnable.

22. The mother says that the father has selectively referred to in the discharge documents and that Y had been hydrated during the period of his hospitalisation. 

23. The father also referred to X fracturing his finger and seeking details from the mother without, he said, a response. 

24. The mother says that between May and August 2011, the father assaulted her on 2 occasions.  That he went out drinking and socialising and returned home drunk.  This was prior to both parties’ asserted separation date and the mother does not now say that this impacts on the parties’ current competing parenting applications.

25. The mother says that after her sister and brother left (omitted), Queensland, as she had no support there, she decided to move to Melbourne to be close to friends and cousins and to obtain some part-time employment, given, she said, that there were better opportunities in Melbourne than in (omitted) Queensland to do so.

26. The mother says that the father’s child support payments were neither consistent nor reliable.  It appears common ground that the father is facing a garnishee order from the Child Support Agency in respect of unpaid child support.  Some weight is attached to that agreed position.

27. The mother says that she has no family support in Sydney.  She says that she doesn’t wish to live in Sydney and that it is too expensive.  Further, the mother says that in fact, her move to Melbourne makes it easier for the father to spend time with the children, given that it is a shorter flight, being approximately one and a half hours, than that which existed between Sydney and (omitted) Queensland, namely 3 hours and that there are more flights available between Sydney and Melbourne which could be obtained at a cheaper rate.

28. The mother has obtained rental accommodation in Melbourne at the rate of $510.00 per week.  The father says that the mother is able to find equivalent accommodation in Sydney, including in the (omitted) district, despite her assertion to the contrary.

29. The father in his proposed minute, says that he will bear the expense of the mother’s rental bond to reaccommodate her and the children in Sydney for accommodation at a similar cost to the mother’s current rental.  He does not, however, go any further to assist her financially.

30. The mother says that she has been the children’s primary carer and that appears consistent with the father’s work history.  The mother says that the father has prioritised his work, although she agreed that she had called upon him to assist her with the children, but said that he had refused.  The father disputes that and says that he provided assistance to the mother in caring for the children to the detriment of his employment. 

1. The mother agreed that the father had spent overnight time with X in August 2013.  The mother said that X had had bedwetting problems and was emotional both before and after visiting the father.  The mother said that the father had thoughts of committing suicide in about March/April 2012 and said that she had been concerned as to his then state of mind as she then understood he had been stood down from his employment for sexual harassment.

2. The mother says that since separation, the father has spent limited time with the children and she details that time in paragraph 34 of her affidavit.  Those time periods being:

   a)In (omitted) 2012 in (omitted) Queensland for X’s birthday.

   b)In December 2012 just before Christmas.

   c)In January 2013 when Y was treated at (omitted) Hospital in Sydney.

   d)In March 2013 on Y’s christening in (omitted) Queensland.

   e)Over the ANZAC Day weekend in 2013 at (omitted) Queensland.

   f)At the time of Y’s first birthday in (omitted) 2013.

3. The mother, in paragraph 37 of her affidavit, refers to a number of issues concerning Y’s health, including that he suffers from an allergy to dairy food, has had eczema and was flown to (omitted) Hospital for an ultrasound.

4. The mother said that post-separation, the father had sought to resume relations with her which had put her under stress and that he had sought to prevent her from leaving with X.  Further, the mother says that she has called the police in relation to the father.  The mother says that the father had tracked her through a location application on X’s iPad and that he had sent inappropriate emails alleging that she was an unfit mother and that she would be “screwed” in these proceedings.

5. The mother also refers to issues concerning Skype communication for the children in that she said that when the Skype camera was operated in the father’s bedroom she observed a woman and on one occasion, a naked woman in the background.

6. The mother raises concerns about the father’s parents and his sister in their capacity to assist the father in caring for the children.  These concerns are disputed by the father.  The mother raises concerns about the father’s insight into child caring matters, as set out in paragraph 46 of her affidavit, including not appropriately supervising the children, being frustrated and agitated when left alone with them, paying little attention to the mother in relation to the explanation of Y’s medical issues and not taking Y’s health issues seriously enough.

7. The mother seeks a transfer of the proceedings to the Melbourne registry of this Court.  Ms Godden, appropriately, conceded that if the children were to remain living with the mother in Melbourne, then the matter would require the appointment of an Independent Children’s Lawyer which should occur in Melbourne and that the mother would otherwise, potentially be entitled to Legal Aid in Victoria and that a transfer in those circumstances should be effected.  

8. Of course, if the father’s application was to succeed, then the Independent Children’s Lawyer could be appointed in Sydney as the mother would be required to relocate the children to Sydney.

9. The father has raised concerns that the mother would seek to move from Victoria to Western Australia where she may have other family members.  The mother says that she has no intent to move from Victoria.

10. The mother says that she is committed to the children having a close and loving relationship with the father and spending time with him.  Weight is attached to that.

11. The mother says that she currently receives about $756.00 per week made up of $350.00 parenting allowance, $106.00 Family Tax and Family Tax B allowance and $300.00 child support payments, which she says have been irregular and not consistently made from month to month.  The mother pays $510.00 per week in rent, has a motor vehicle costing $11.00 registration and has other expenditure of $1,131.00.  Her expenditure greatly exceeds that of her income.

12. The mother sets out the breakdown of her other expenditure in Part 10 of her financial statement, which includes some $300.00 for food;  $50.00 for household supplies; $50.00 for gas/electricity/utilities;  $24.00 for telephone;  $100.00 for car, petrol and maintenance;  $75.00 for clothing and shoes;  $40.00 for children’s activities;  $280.00 for child minding;  $40.00 for medical, dental and optical;  $20.00 for entertainment and hobbies;  $20.00 chemist/pharmaceutical;  $10.00 cleaning;  $40.00 hairdressing and toiletries;  $33.00 nappies for Y;  $5.00 wipes, powder and bath soap; and $44.00 for eczema cream, nappy liner, special shampoo and conditioner, totalling $1,131.00.

13. The father’s position is that he currently earns some $2,295.00 per week from his employment.  He does not disclose any income from his partner, Ms K, in Part E of his financial statement.  His expenses, he says, total $3,546.00 per week, being tax $652.00;  rent $720.00, motor vehicle insurance $28.00;  motor vehicle registration $14.00;  loan repayments on his car loan $107.00;  credit card payments $200.00;  child support for the children $421.00;  and total other expenditure of $1,404.00. 

14. The $1,404.00 is made up of food $300.00;  household supplies $28.00;  electricity $20.00;  telephone $42.00;  car, petrol and maintenance $60.00;  fares/car parking $15.00;  clothing and shoes $70.00;  children’s activities $50.00;  medical, dental and optical $75.00;  entertainment and hobbies of $220.00 (the mother says this is excessive);  education expenses including fees and levies $58.00 (the mother also says this is excessive);  chemist and pharmaceutical $15.00;  repairs, furnishing, appliances $10.00;  dry cleaning $15.00;  books and magazines $10.00;  gifts $50.00;  hairdressing and toiletries $20.00;  and other necessary commitments of $346.00, travel costs of seeing the children. 

15. The father says that has he had to access a motor vehicle through his employment which enables him to use that car including petrol, to drive to and from Melbourne.  He says that he could not afford to fly to Melbourne to spend time with the children.  The father says that he plans to cease employment in early 2014 and work as a (omitted) and that he has undertaken the (studies omitted) course in June 2013 and that in February 2014 he proposes to cease his employment.

16. The father says that when that employment ceases, he will not have use of the car and will not be able to afford to travel to Melbourne to spend time with the children.  He says that the costs of spending time with the children in Melbourne are currently in the order of $1,500.00 per month. There is no specific evidence of this before the Court.

17. The father says that his partner and he would have to meet the costs of flying himself, his partner and A and his partner’s son to Melbourne.  He says that he and his partner, as they are both (occupation omitted), could only fly before and after work on a Sunday night/Monday morning and Friday nights during peak periods, which would be the most expensive flight times.  He says in total, the cost of spending time with the children will cost his partner and him approximately $5,000.00 per month and that they cannot afford to meet that expense and as a result, he would not be able to spend regular time with the children if the mother was permitted to remain living in Melbourne.

18. The father says that he is seeking a departure order in relation to child support on the basis of the high costs of travel.  That matter is not currently before the Court and is a matter which the Court understands he is taking up with the Child Support Agency.

19. Further, the father says that there are practical problems with driving the 10 hour distance to Melbourne.  He says that he and his partner usually travel through the night, sharing the driving and sleeping in the car, arriving in Melbourne in the morning before spending time with the children and then leaving for Sydney at 4.00pm Sunday.  He says that they arrive home at approximately 2.00am on Monday and have to wake in the morning at 6.00am for work.  The father says that this routine is unsustainable.

20. Further, the father says that he has not felt comfortable in bringing A and his partner’s son on these frequent long drives, particularly when they have school on the Monday.  So, as a result, they do not bring them most of the time.  He says that this is disappointing in that the children cannot spend time with them.

21. The father seeks further Skype communication time.  However, he does not particularise that in his minute of proposed order.

The Law

1. The Full Court in Goode & Goode [2006] FamCA 1346 set out a number of procedural steps to be followed on an interim application, namely:

   “(a)  Identifying the competing proposals of the parties;

   (b)    Identifying the issues in dispute;

   (c)     Identifying any agreed or uncontested relevant facts;

   (d)    considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)     deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f)     if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)    if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;

   (h)    if equal time is found not to be in the child’s best interests, considering  making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;

   (i)     if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of  consideration of one or more of the matters in s.60CC;

   (j)     if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and

   (k)     even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”

2. The Court, as stated, hears this matter on an interim hearing basis, as the parties have confirmed there is urgency in obtaining relief.

3. The Court’s determination, therefore, is based only on a study of the documents before it, including affidavits read, documents tendered and the submissions of the parties’ legal representatives.  There is no provision at the interim hearing stage for a more extensive hearing where evidence can be tested in cross-examination and where the Court can make findings of fact after testing credibility and truthfulness.

Proposals

1. The parties seek the various competing orders set out above.

Issues

1. The essential issues in dispute the subject of determination are:-

   a)Where the mother should live with the children;

   b)Whether the mother should be ordered to relocate with the children to live in Sydney.

   c)Time to be spent with the children and the practicability of such time.

Presumption of equal shared parental responsibility

1. Section 61DA(1) of the Act creates a presumption, which the Court must apply before it makes any parenting order in respect of a child (and this is the case whether or not a party has sought a specific order for equal shared parental responsibility). By virtue of this section, it is presumed that it is in the best interests of the child concerned that his or her parents have “equal shared parental responsibility” for the child.

2. The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s.61DA(2) of the Act) or in the case of an interim hearing, the court considers it inappropriate (s.61DA(3) of the Act) or the presumption may be rebutted by evidence which satisfies the Court that it would not be in the interests of the child for his/her parents to have such equal, shared parental responsibility (s.61DA(4) of the Act).

3. The Court notes that this interim decision may be disregarded, if a different decision is to be made at the final hearing pursuant to s.61DB of the Act.

4. As the Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 states, unless displaced by Court order, the parties’ parental responsibility may be exercised either jointly or severally. See s.61C of the Act. The effect of an order for equal shared parental responsibility is to require the parents not to reach a joint decision but to consult one another and make a genuine effort to reach agreement about major long-term issues in relation to the children (s.65DAC of the Act). This consultation is not required to be face to face and may still occur in circumstances where the parties are in high conflict provided there is a willingness and an ability to communicate.

5. The phrase “major long-term issues” is defined in s.4(1) of the Act as follows:

   “major long-term issues”, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

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

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

   (c)  the child’s health; and

   (d)  the child’s name; and

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

   To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long term issue in relation to the child. However, the decision will involve a major long term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.    [Original emphasis]

6. If the issue is not a “major long-term issue” then consultation is unnecessary and parents may act unilaterally (s.65DAE of the Act).

7. Some aspects of parental responsibility may be allocated to one parent to exercise, but if this is done the other aspects of parental responsibility may be exercised jointly or independently and the way in which it is exercised should be provided for in any orders. See Newlands & Newlands [2007] FamCA 168.

8. On 23 October 2013, the Court, by consent, made an order for the parties to have equal shared parental responsibility for the children.

9. Further, under s.60CC(5) of the Act, the Court is not required to have regard to any or all of the matters set out in sub-section (2) or (3), when the Court is considering whether to make an order with the consent of all of the parties to the proceedings.

Time to spend

1. The making of an order for equal shared parental responsibility is, however not of itself determinative of the amount of time that a child is to spend with his/her parents, but goes to the parent’s decision making responsibilities. It does, however, trigger the operation of s.65DAA (1) of the Act.

2. If the presumption is applied, certain matters follow by virtue of s.65DAA of the Act and the Court must positively consider whether orders should be made which result in the child concerned spending either “equal time” or “substantial and significant time” or some other time with both his/her parents.

3. Substantial and significant time is defined in s.65DAA(3) of the Act as:

   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.

4. To determine what time orders should be made, the Court must look to the best interests of the children and whether the actual spending of such time is reasonably practicable.

5. Given that the mother is currently residing in Melbourne with the children, it is not reasonably practicable for there to be equal time or substantial and significant time.  That could only occur if the mother was to relocate the children to Sydney. In that regard, the Court further questions whether such a time arrangement would be developmentally appropriate given the ages of the children, particularly Y. There is insufficient evidence before the Court to answer that question.

6. The Court asked the mother whether she was prepared to relocate to the Sydney area.  She declined to do so.  She had made no enquiries concerning her options in being able to do so, both as to her accommodation and where she would be able to afford to live.

7. Prior to the commencement of these proceedings, the children were living with the mother at (omitted) Queensland and the father had already moved to Sydney.  The father had moved to Sydney in July 2012, and the mother had been with the children in (omitted) Queensland for just over a year.  The mother says that she has not lived in Sydney since 2010.  That is certainly prior to the birth of Y. Weight is attached to that.

8. It is a rare occasion for the Court to order a parent to move children in circumstances where, if that parent elected not to move, the other parent does not propose that the children live with him or her.  In the circumstances of this matter, the father’s proposal is that for the children to continue to live with the mother in Sydney.  He does not propose that the children live with him. In effect, his proposal is to force the mother, herself to move. Weight is attached to that in support of the mother’s proposal.  Given the age of the children and the relationship that the father has had with them, the history of the parties since separation and the mother’s primary care of the children, the Court would not likely disturb an arrangement which saw the children continue to live with the mother certainly on an interim hearing basis.

9. Although the Court does have the power to order the relocation of a parent, rather than a child, such orders are only made in rare circumstances. The Court is not satisfied that this is one of those cases.

10. In Sampson v Hartnett (No.10) (2008) 38 Fam LR 315 the Full Court of the Family Court of Australia concluded that:

    “…there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare, because:

    (i)the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and

    (ii)In a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent’s choosing.”

    The prospect of ordering a parent to relocate and in effect “parent” in a situation not of that parent’s choosing, legitimately gives rise to concerns, particularly in respect of enforcement. What if the parent, in response to such an order, simply hands the child to the other parent, perhaps in circumstances such as in the instant case, where for whatever reason, there is not a well-established relationship between the child and the other parent? Will the primary parent be punished? The fact that such vexing questions arise does not mean that the power does not exist and may be rightly exercised at times. Enforcement is discretionary and may be rare in the situation exemplified. On the other hand, enforcement may be appropriate if a primary parent ordered to relocate, simply did not do so.

1. Recently, in Ember & Assadi [2013] FamCAFC 107 the Full Court of the Family Court of Australia heard the argument that even if s.65D and s.68B of the Act do provide that power to order a parent to relocate, it was argued that these sections “should be read down to conform to The Australian Constitution in relation to issues of freedom of movement between States”. The Court went on to note that:

The fact is of course that the High Court has considered the impact of s 92 of the Constitution in the context of relocation interstate, and on the basis that the impediment to freedom of movement is reasonably necessary to carry out the objects of Part VII of the Act the result has been not to read down the relevant sections of the Act, but to highlight that freedom of movement is an important factor to take into account (eg, see AMS v AIF (1999) 199 CLR 160).

As was said by Kirby J in AMS v AIF at paragraph 191:

… Parents enjoy as much freedom as is compatible with their obligations with regard to the child.

And further, Gummow and Callinan JJ said this in U & U (2002) 211 CLR 238 at para 89:

… whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent.

1. Y has never lived in Sydney and X has only lived in Sydney for approximately the first 6 months of his life. The children have lived in Brisbane, (omitted) and now Melbourne.  The father does not now propose the children be returned to (omitted).  The father concedes that he has had limited time with X post-separation and indeed has had no overnight time with Y, given Y’s age and his birth after the parties’ separation.  The mother’s position is that the father’s time needs to be built up, she says, in a measured way.  In submissions, the mother said that she would need to seek some expertise in relation to how that is to be achieved.  There is nothing before the Court relevant to that issue.  The mother was agreeable to increase the father’s day time with Y, given his early waking hours and sought that that would increase to a full day to enable it to be consistent with X’s time on a Saturday.

2. The Court, at this point in time, would not make orders as set out in the father’s proposal which would see both children spending substantial overnight time with the father, when there was simply no evidence before the Court referrable to the children’s needs and, in particular, given Y’s age and having spent no overnight time with the father to date.  Ms Godden submitted that, given the mother is expending money on day care, that that time with the children could otherwise be spent with the father.  That, however, on the mother’s material did not include overnight time with Y.

3. The Court was concerned at the mother’s failure to provide any time for the father with Y on his birthday.  The mother gave some explanation as to dealing with X’s issues, but conceded that the father had not had any time, not even a half an hour, although she said that he had not asked for that sort of time.

4. The Court was further critical of the exchange set out in the father’s affidavit material concerning his requests for further time and the mother’s response being, “This is irrelevant as the boys live in Melbourne”; “Sorry I would like to stick to the Court orders” and “You have my response.”  When these matters were put to the mother, she did not dispute that they were her responses but said that the father was well aware of her position concerning an expansion of time.  She further said that she had set out that position to him in some detail.  However, that was not provided in her affidavit and the Court was left with a concern about the mother being able to facilitate an expansion of the children’s time with the father.  Certainly, the mother submitted that she needed Court orders for that purpose.

5. Justice Boland in Morgan v Miles (2007) FamCA 1230 in reviewing the relevant legislation held, on considering an appeal from an interim parenting order made on a relocation case, that the following earlier “core principles” remain valid. These principles were as stated by her Honour:

   “1.that the child’s best interests remain the paramount but not sole consideration;

   2.that a parent wishing to move does not need to demonstrate “compelling” reasons;

   3.that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and

   4.the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement.”

   Her Honour stated that the Act requires a careful exercise of a structured discretion (there being no applicable presumption) to determine the appropriate order. Further, the Court must when evaluating the competing proposals of the parties in relation to any relocation, noting that neither party bears an onus, have regard to the whole of the evidence relevant to the best interests of the child (see B & O & M [2005] FMCAfam 379 (Brown FM, as he then was)).

6. Justice Boland made it clear, that if a parenting order for equal shared parental responsibility had already been made prior to any application to relocate, the parties have a primary duty under s.65DAC of the Act to determine jointly (through a process of consultation and genuine effort to reach agreement) if the proposed living arrangements for the child would make it significantly more difficult for that child to then spend time with the parent not relocating. The operation of this section, her Honour finds, “would preclude a unilateral move by one parent without notice and consultation with the other parent”. This is particularly so, as her Honour finds:

   “Section 60I requires parents, if no exclusionary factors such as abuse, family violence, or urgency apply, whether there is an order under s.61C, or s.61B is operative, to make a genuine effort to resolve the dispute with a family dispute resolution practitioner.”

7. The mother acknowledged that she had not investigated the possibility of a move to Sydney, but there is no requirement for the mother to justify her move to and her intent to stay in Melbourne. Similarly, there is no requirement for the father to justify his move to Sydney and his intent to stay there. It would be easier for the children to maintain meaningful relationships with each parent if they were both to reside in the same city.  However, neither parent has proposed to give up his or her preferred city to help the children maintain that relationship with the other parent.

8. In reality, although the father in some way points the finger at the mother, he himself also “relocated” away from the children. The father first relocated from the (omitted) Queensland to Brisbane away from the mother and the child X in about January 2011. The mother moved to Brisbane with the child in an attempt to reconcile in July 2011. In December 2011 the mother moved with the child from Brisbane to (omitted) Queensland. In July 2012, the father moved from Brisbane to Sydney (further away from the mother and the child X, and indeed approximately one month before Y was born) and then in August 2013 the mother relocated with the children to Melbourne.  Both parties have moved a number of times. It must be noted that the mother’s residence in Melbourne is somewhat geographically closer to the father than if she had remained in (omitted) Queensland.

9. Although the father brought the application very promptly (at least on his evidence) after he found out of the mother’s planned move to Melbourne, it must also be noted that when the mother did move to Melbourne there were no orders as to parental responsibility or live with/spend time in place.

10. The father raises the issue of the costs of flights and travel expenses to Melbourne.  However, the father has elected to have himself, his child, A, the father’s partner and her child all travel to Melbourne on occasions.  Although it is beneficial for the children to at least have an ongoing relationship with the other people in the father’s household, the Court accepts that this is not something that necessarily has to take place every alternate weekend.  The costs of a single return air ticket and accommodation would, therefore, likely be substantially lower than the father’s present estimates of his costs of travel as incurred to date.

11. Further, although the costs of the said travel are substantial, the mother submits that they are likely to be similar if the mother had remained in (omitted) Queensland, or indeed in Brisbane, where the parties last lived together.

Principles to be applied and procedure to be followed

1. The best interests of the children remain the paramount consideration; s.60CA of the Act.

2. The best interests of the child are to be determined by an examination of the factors as set out in s.60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act, as follows:

   (1) The “objects”…are to ensure that the best interests of children are met by:

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

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

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

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

   (2) The “principles” … are … :

   (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 been 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 a right to enjoy the culture with other people who share that culture).

   (3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)  to maintain a connection with that culture; and

   (b)  to have the support, opportunity and encouragement necessary:

   (i)  to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

   (ii)  to develop a positive appreciation of that culture.

   (4)   In relation to proceedings commenced after 7 June 2012, an additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

   Note: The text of the Convention is set out in Australian Treaty Series 1991 No.4 ([1991] ATS 4).  In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the website ( considerations

   1. In order to determine the children’s best interests, the Court must have regard to the “primary considerations” under s.60CC(2) of the Act which are:

      a)the benefit to the children of having a meaningful relationship with both of their 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.

   2. In applying the considerations set out in the subsection (2), the Court is to give greater weight to the consideration referred to in paragraph 90(b) above. See s.60CC(2A) of the Act.

   3. The Court cannot order that the parties and the children have a meaningful relationship. In M & K [2007] FMCAfam 26 [at para 44], Altobelli FM (as he then was) quoted from Professor Parkinson’s article “Decision-making about the best interests of the child: the impact of the two tiers” (2006) 20 AJFL 179 as follows:

      “… courts cannot by order, create meaningful relationships  between parents and children; they can only create or maintain the circumstances that make meaningful relationships possible. In an individual case, the evidence may indicate that the child will not in fact benefit from such a relationship with both parents, or that such a benefit is incapable of realisation in the circumstances of the case”.

   4. The Court finds that the primary consideration referred to in s.60CC(2)(a) of the Act is supportive of the position that as much time as possible with both parents is in the children’s best interests. The Court accepts that the children have a meaningful relationship with the mother and, that the father’s relationship has been affected by the geography of the mother being in (omitted) Queensland with the children, the father’s move to Sydney and then the mother’s move with the children to Melbourne, with the father having not spent substantial time with X and having spent very limited time with Y, given his age and the date the parties separated.

   5. The primary consideration referred to in s.60CC(2)(b) of the Act is largely inapplicable for the purposes of the application before the Court, given the parties’ competing parenting proposals. However, matters raised by both parties support the appointment of an Independent Children’s Lawyer.

   Additional considerations

   1. The Court must have regard to each of the ‘additional considerations’ under s.60CC(3) of the Act separately, which are set out below:

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

   1. In R & R: Children’s Wishes (2000) FLC 93-000, the Full Court of the Family Court of Australia said:-

      “There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive syntheses on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.”

   2. Considering the age and maturity level of the children, the Court simply notes and accepts that their views were not sought nor expected.

   (b)    the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child);

   1. The mother’s evidence was that she has been the children’s primary carer since their birth and this is not largely disputed by the father, given his employment history. Significant weight is attached to that.

   2. The mother has been caring for the children almost exclusively since the parties’ separation.

   3. The father has spent overnight time with X but only limited day time with Y.  The children have been separated at such times.

   4. There is nothing before the Court to assess the position of Y spending overnight time with the father and the potential effect of that on the child.  This is a matter which requires some further investigation and the Court will be assisted by the intervention of the Independent Children’s Lawyer in that regard.

   (c)     the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

   (i) to participate in making decisions about major long-term issues in relation to the child; and

   (ii) to spend time with the child; and

   (iii) to communicate with the child;

   1. The father is critical of the mother’s recent move to Melbourne but the Court notes that the father moved to Sydney in July 2012 when the mother and X were living in (omitted), Queensland and the mother was due to give birth to Y approximately one month later.  The father says that the mother’s move to (omitted) Queensland had not been agreed to.  The mother disputed that.  The father, however, took no steps to commence proceedings in December 2011 when she made that move and the father at that time, had remained living in Brisbane. Weight is attached to that.

   2. The father agreed that the mother had invited him to attend Y’s birthday in (omitted) Queensland in (omitted) 2013.  That invitation evidences a willingness of the mother to involve the father with Y and the father took up that opportunity of being so involved, albeit the father says that he did not at that stage, end up spending any time with Y on his actual birthday.

   (ca)  the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

   1. The mother’s evidence was that the father was not regular and consistent with making his obligated child support payments.  It appeared common ground that the father was currently facing a garnishee order with respect to outstanding child support.

   (d)    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;

   1. If the mother continues to reside in Melbourne with the children there will be no current change in their circumstances.  If the mother was required to relocate the children’s residence to Sydney, there would be changes for them in their residence and day care provider.

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

   1. The father’s evidence as set out at paragraphs 46 and 47 raises practical difficulty and expense issues for him in continuing the travel to Victoria in order to spend time with the children.  The mother’s financial position did not appear to be able to assist in that process.  The Court is of the view that given those issues there should be some latitude to the father in spending weekend time by providing 14 days written notice to the mother provided that, at this point in time, the frequency of such time is no more than alternate weekends.

   2. As a matter of practicality, the father’s time will need to occur in Melbourne, Victoria and the Court’s orders made 20 November 2013, as set out at the commencement of these reasons will be varied to include the words “in Melbourne” after the word “father” and before the words “on alternate” where appearing in order 2, as set out above. 

   (f) the capacity of: (i)     each of the child's parents; and (ii)    any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;

   1. The mother’s evidence was that she was able to provide for the children’s physical needs.  The mother did not appear to fully consider how their emotional need to maintain contact with the father could be fostered other than through the father making all of the efforts to effect the same by travelling to Victoria.  Given the current ages of the children and her financial position, as asserted, that poses some real issues.

   2. The father’s proposal did not provide for the children to live with him.  More than likely this was because the father had given due regard to not separating the children from the mother and, at least at this stage of their lives, their primary attachment figure and that given the age of Y and the fact that he has not at any time spent any significant time with the father, that it was in the best interests of both children that they remain living with the mother.

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

1. Y is still sleeping during the course of the day.  Y has spent no overnight time with the father.  There is no assessment as to any impact on the child of an expansion into overnight time.  In these circumstances, the father’s proposal for significant overnight time cannot be accepted at this interim hearing stage.

2. The mother raises health issues with respect to Y.  The father currently disputes those matters.  There is no independent evidence available relevant to those matters.  This further supports the appointment of an Independent Children’s Lawyer.

3. There are no other matters relevant to the Court’s determination with respect to the children under this factor.

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

1. These factors do not apply to these children.

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

1. The mother has expressed in paragraph 40 above a willingness to encourage a close and loving relationship between the father and the children.  The Court was, however, concerned by the mother’s position as asserted in paragraph 79 and 80 above referable to the need for Court orders to effect the same.

2. The Court was further concerned by the father’s decision to potentially give up his employment and, therefore, the use of the motor vehicle which to date has permitted him to travel to Melbourne for the purposes of spending time with the children.

(j)     any family violence involving the child or a member of the child's family;

1. This factor does not largely apply to these children given the parents’ current competing applications.  Nevertheless, there are matters raised which would benefit from the appointment of an Independent Children’s Lawyer to further assist the Court.

(k)     If a family violence order applies, or has applied, (be it final, interim, contested or consented to) to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following:

1. the nature of the order;

2. the circumstances in which the order was made;

3. any evidence admitted in proceedings for the order;

4. any findings made by the court in, or in proceedings for, the order;

5. any other relevant matter;

1. This factor does not apply to these children.

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

1. The Court finds that, as this is an interim hearing, this factor must be assessed in this light.

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

1. The Court finds there are no other facts or circumstances relevant.

Matters in s.60CC(4) & (4A) of the Act

1. As and from 7 June 2012, s.60CC(4) and (4A) of the Act have been repealed.

Reasonably practicability of ‘spending time’

1. The Court in determining the reasonable practicability of the child spending time with the parents pursuant to s.65DAA(1) of the Act, must have regard to the following matters set out in s.65DAA(5) of the Act:

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

1. The mother currently lives in Melbourne, Victoria.

2. The father currently lives in Sydney, New South Wales.

3. The father says that the travelling time between his residence and the mother’s residence is in the order of 10 hours by road with 2 drivers driving non-stop.  By air transport (not including travel to and from the airport) the travelling time would be in the order of one and half hours.

(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

1. The Court has had regard to the parties’ financial circumstances in being able to continue to implement a spend time regime between Sydney and Melbourne.  The father is in employment and his income far exceeds that of the mother.  Although the father’s expenses must be taken into account, he at least at this stage, has the greater potential to be able to implement any travelling regime to effect spend time arrangements.

(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

1. The parties’ geographic separation since December 2011 has not, otherwise, impacted on their ability to communicate and resolve difficulties at least up until the mother’s move to Melbourne with the children in August 2013.

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

1. The children have been geographically separated from the father since at least December 2011 when the mother and the children moved to (omitted) Queensland.

(e) such other matters as the Court considers relevant

1. There do not appear to be any other matters.

Procedural orders

1. The Court is of the view for the reasons stated above that there are sufficient Re K (1994) FLC 92-461 factors for the appointment of an Independent Children’s Lawyer to represent the interests of the children and will so order.

2. The Court is also of the view that given the orders that it makes the proceedings should be transferred to the Melbourne Registry and listed at such a time so as to enable the appointment of an Independent Children’s Lawyer to be effected.

3. The Court is of the view that the father’s application to have the mother relocate the children, on an interim basis, cannot succeed. In those terms, the children should continue to live with the mother in Melbourne, Victoria and spend time with the father.

4. The Court is of the view that the father should spend time with X on his birthday, (omitted) 2013 in terms of the order made above.

5. The Court is also of the view that the father’s commencement of time in accordance with these orders should occur on the weekend of 23 November 2013, given that the Court understands he will be travelling to Melbourne to spend time with X in any event. The time orders provide for a graduated expansion in the father’s time with Y to enable full day time to occur on a Saturday, from about 6 months from the date of these orders. This time will largely coincide with X’s time with the father. The father will also spend Sunday with X and a consistent period of 2 hours with Y on a Sunday, concluding at the same time as X’s time with the father.

6. The Court is satisfied, on the balance, that the orders set out above at the commencement of these reasons are in the children’s best interests and accordingly, will so order.

I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Judge Kemp

Date: 21 November 2013