BELLINI & BELLINI

[2018] FCCA 3581

FEDERAL CIRCUIT COURT OF AUSTRALIA

BELLINI & BELLINI [2018] FCCA 3581

Catchwords:
FAMILY LAW – Parenting – unilateral relocation inter-state by mother – child recovery – interim hearing – very young children – breastfeeding – impractical to return to father.

Legislation:

Family Law Act 1975 (Cth), ss.60C, 60CA, 60CC, 60DA, 61DA, 62B, 64B, 65AA, 65D, 65DA

Cases cited:

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346

Marvel & Marvel (2010) 240 FLR 367; [2010] FamCAFC 101

Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520

Morgan & Miles (2007) 312 FLR 114; [2007] FamCA 1230

MRR & GR (2010) 240 CLR 461; [2010] HCA 4

U v U (2002) 211 CLR 238; [2002] HCA 36

Applicant: MR BELLINI

Respondent: MS BELLINI

File Number: SYC 5728 of 2018

Judgment of: Judge Bruce Smith

Hearing date: 5 October 2018

Date of Last Submission: 5 October 2018

Delivered at: Sydney

Delivered on: 16 October 2018,

REPRESENTATION

Solicitors for the Applicant: Clinch Long Woodbridge Lawyers

Solicitors for the Respondent: Thomson Family Lawyers

THE COURT ORDERS THAT:

1. The application to have the children, [X] born [date] 2016 and [Y] born [date] 2017, returned from Perth to Sydney is dismissed.

2. The application for a recovery order is dismissed.

3. The parents are to have equal shared parental responsibility for the children.

4. The children are to live with the mother.

5. The father is to have video contact with the children on Wednesday, Friday and Sunday of each week, such time to occur at 10am in the time-zone where the children are residing or as otherwise agreed.

6. Both parties have liberty to apply to chambers for a variation of Order 5.

7. The matter is listed for mention at 2pm on Friday 19 October 2018.

8. Both parties have liberty to attend by telephone on the next occasion.

THE COURT NOTES THAT:

A.Interim orders about what time the father is to spend with the children will be made on the next occasion.

B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5728 of 2018

MR BELLINI

Applicant

And

MS BELLINI

Respondent

REASONS FOR JUDGMENT

1. This is an oral judgment in respect of an interim application for parenting orders, pursuant to Part 7 of the Family Law Act 1975 (Cth) (“the Act”), which came before the court on 5 October of this year. I have formed the view that it is more appropriate to provide oral reasons in a short form now, pursuant to s.69ZL “Short form reasons for decisions relating to interim parenting orders” than to wait until I have a judgment writing week or settlement when I might be able to provide fuller written reasons.

2. The essential issues in the case relate to whether or not the court should require the children, the subject of these proceedings, who are [X], approximately 2 ½ years old and [Y], who is just 10 months old, to be returned to the Sydney metropolitan region from their current location in Perth, where they are now living with their mother. 

3. The mother is approximately 35 years of age.  The application is brought by the father, who is approximately 31 years of age, seeking to have the children returned to Sydney, whether or not the mother chooses to return, as this is their prior location of residence and the mother has unilaterally relocated with the children from Sydney to Perth without his consent.

4. Without wishing to omit any critical aspects of the case, on the one hand we have the father’s argument that this has been a unilateral location to a part of Australia so remote that time and expense mean that he will have no real relationship with the children if they remain there, noting that at 10 months and 2 ½ years telephone and Skype – although a possibility – are not particularly good ways to allow attachments to be maintained.  In that respect, the father relies upon the line of authority and principle as set out in Morgan & Miles (2007) 312 FLR 114; [2007] FamCA 1230 by Boland J at [88] where she said:

   It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation:  A Report to the Attorney-General prepared by the Family Law Council, and etcetera, make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the types of cases in which the child’s present stability must be extremely relevant on an interim basis.  It further appears to me the comments of Warnick J in C & S remain apt and relevant to determination of these cases.

5. At the heart of the father’s application was an argument that on this interim basis, the orders should be made returning the children to their prior location so that the matter was not effectively determined on an interim basis, in effect by allowing the children to stay where they are, and defeating the proper determination of the case at a final hearing.

6. The mother’s case meets that argument on two bases.  The first is that the allegations of domestic or family violence made against the father mean that it would be inappropriate to return the children to him, or to make orders for the return of the children which might leave the mother reasonably feeling compelled to return to Sydney to care for them and so exposed to family violence.  Secondly, there was a strong case for the mother put on the basis of the line of MRR & GR (2010) 240 CLR 461; [2010] HCA 4 and similar cases which say that when considering orders to be made the court must look at the reasonable practicalities of the matter, and in this respect the mother’s case is that the parties between them cannot afford for her and the children to relocate to Sydney and for the father to live elsewhere and that it is clear that they cannot live as one family unit together in the one location.

7. There was a large volume of evidence put before the court, which I had the opportunity to read before hearing the application and which I have had an opportunity to review again in more detail afterwards. 

8. The broad outline is that the parents met in about 2011, began dating in about 2012 and married on [date] 2014, at which stage they commenced cohabiting.  They lived for the first 18 months of their married life within the paternal grandparents’ house, which is not far from the matrimonial home.  The mother became pregnant with [X] in 2015, and [X] was born in [date] 2016, making him 2 ½ years old.  Up to that point in time, the mother had worked but she ceased to work at about that time because of her newborn child.

9. The evidence suggests, on both sides, that difficulties emerged relatively early after the birth of [X], in terms of the relationship between the parents.  The mother has made allegations that the father disciplined [X] harshly, including by slapping [X] in the face and, more recently, by speaking to him very harshly and in particular by threatening him on 19 August 2018; that is threatening to slap him until he bled.

10. Going back in time a moment, the parties commenced a form of marriage counselling in mid-2017 which had about approximately eight sessions.  However, that counselling did not manage to resolve their problems. 

11. The mother says that the father denied her access to a vehicle for a period of months before [X]’s birth.  The father says that was just a consequence of the family’s financial position.  The mother says that, when the maternal grandparents visited from Perth, where the mother comes from and which explains her choice of location for the unilateral relocation, that the father would not spend time with the maternal grandparents and I was also taken to other materials, including extensive text messages, between various witnesses relating to the decline of the relationship, including allegations by the mother of different forms of family violence in different degrees against the father.  I should note that, except in respect of one matter which I will come to and his comments to [X] on 19 August of this year, there is a general denial by the father of family violence against either the children or the mother.  Indeed, the father has in his own case raised concerns that the mother shoved him and that the mother locks [X] in his room.  The mother says that that latter act is what the father does.  The father says the mother strikes [X] with a spoon and the mother denies that. 

12. So we have competing, contested allegations of acts which constitute domestic or family violence both in respect of the children – each parent against the child or children and in respect of each other.  This makes the determination in this matter more difficult and I will come shortly to the question of what latitude the court has to make any findings in respect of contested fact on this kind of application.

13. In [date] 2017 [Y] was born.  He is between 10 and 11 months old.  The marital conflict continued. 

14. In about [date] 2018 the mother and children visited Perth to spend time with the mother’s extended family, including the maternal grandmother and the maternal grandmother’s partner.  There is an issue about whether or not the mother was involved in some kind of dispute with them and whether there was family violence against her at that visit.  The mother denies that.  The father raises that as a risk factor potentially for the children staying in Perth.

15. In 2018 the mother sought some medical attention for anxiety and depression which she says related to the breakdown of the relationship, including family violence. 

16. There are also issues around the father’s knives being in a display cabinet, and apparently he is a [hobby omitted].  More concerning, there was a concern about the father’s guns.  Now, on the day in which the parties ceased their cohabitation it appears that the father, who had a gun licence, was taking action to remove his gun cabinet and guns from the home.  As I understand the father’s case, that was in part to try and lessen any concerns about the presence of guns in the home, given the escalating difficulties between the parents.  The mother was concerned, and I am not sure if it was just a general concern about the guns or his involvement with the guns at that time.  Nevertheless, that matter concerned me significantly and I note that, at the hearing of the interim application, I raised with the father’s counsel the fact that I was told that the father had handed the guns to police but the Child Inclusive Memorandum of 2 October 2018 recorded the father as saying that:

    The father said that he has relocated his four firearms to the home of his parents.

17. That inconsistency concerned me in the context of competing allegations of family violence.  On that basis I directed that the father to file further affidavit evidence in relation to the location of the guns as I wished to test the question of whether what I was told from the bar table was correct or not.  I note that I have been provided with an affidavit of Sheree Housego, solicitor, affirmed on 9 October 2018, which relevantly annexes a letter from Constable Mr J of Suburb A Police Station dated 6 October 2018 and addressed to the Magistrates Court of Western Australia advising that, in view of the family violence restraining order made on 5 September 2018, 4 guns were seized, being two full guns and two air rifles and also the firearms licence, and stating that those weapons were still being held at Suburb A Police Station.

18. On that basis of that letter, I am satisfied that I was properly informed of the situation from the bar table and that the question of the father’s access to guns as a potential threat or risk issue has been dealt with.  So I put that to one side, as there is no suggestion, as I understand it, that the mother was threatened at any stage with the guns.  All that was stated was that the father seemed to be seeking to remove the guns from the household, for reasons that weren’t clear to the mother.

19. I now go back a little.  Matters reached a head, it appears, on about 19 August 2018 when the mother says that, during the bathing of [X], the father said that he would “smack you in the fucking mouth and make you bleed” to [X].  In the Child Inclusive Conference Memorandum of 2 October 2018, this issue was raised.  And, I quote:

    The father agreed with the allegation by the mother that he told [X] that he would “smack him and make him bleed”, but said that this is an expression that in the [nationality omitted] language is not as extreme as it sounds in English.

20. Now, during the course of argument, the issue of translations was discussed and, indeed, many English expressions do not translate well at all into other languages, noting that the Australian use of the word “bloody”, when translated literally into other languages, makes little sense and may be offensive and violent.  However, the point was made, of course, that the expression was not said in the [nationality omitted] language, it was said in the English language, which is the language [X] speaks and to a 2 ½ year old child that is very violent and aggressive language.  Indeed, it is difficult to not agree with that.  It is very unfortunate.  For the mother it was said that this act of family violence, which is conceded, by itself would displace the presumption of equal shared parental responsibility, and there is some force in that argument, although that of course does not entirely dispose of the question when we get to it.

21. As a consequence of that which had gone before and also the events of 19 August, it seems that that was a breaking point for the relationship.  The mother’s case is that there was a separation on a final basis on that day, although she stayed at the matrimonial home for a few more days. 

22. On 23 August 2018, the mother says she attended an education centre and disclosed the family violence, resulting in a mandatory report to the Department of Family and Community Services.  It’s alleged by the mother that on 24 August 2018, [Y] was subjected to a paternity test by the father using a home DNA testing kit.  The father disagrees with that.  The father says that he was merely testing for ancestry purposes.

23. The mother says that she contacted her mother – the maternal grandmother – and informed her about the verbal and physical abuse towards [X].  In effect the mother determined that she would leave the matrimonial home on 25 August 2018 and take the children with her. 

24. The mother’s case is that the choice of Perth, as a destination for relocation, was not because it was far away from the father and was not because it was intended to make it difficult for him to see the children but was merely as a matter of practicality that this is where her relatives live, this is where she is from and her parents are the people that she can, in a practical sense, go to and stay with at no cost and people are there to provide her with a social family security network.

25. There is also a disputed set of facts about the circumstances in which the mother left the premises on 25 August 2018.  The mother was driving a car with the two children in it.  The mother’s case is that one of the father’s relatives attempted to prevent the mother and children from leaving the matrimonial home by blocking the driveway with her car.  As a consequence, the mother’s car hit the paternal relative’s car – it was his sister – causing some damage.  The father’s case is that the mother was driving recklessly and struck another vehicle, indicating her lack of concern for the safety of the children in the vehicle. 

26. Photographs and other documents relating to the damage were tendered.  I note as an aside, that the analysis of impact damage and the forces experienced in a vehicle and the biomechanical likelihood of injury is a complex area and that without expert assistance there is not much I can draw from it.  Nor, I note, as I will get to later, where there are these kind of contested facts and the evidence has not been tested, is it possible for me to make any findings about precisely what happened, other than to say that, whilst the mother and children were in the car, a collision occurred.  Fortunately, there’s no evidence to suggest that anyone was injured.

27. The mother travelled with the children to Perth where she obtained the family violence restraining order from two Justices of the Peace sitting as the Magistrates Court of Western Australia.  A copy of the transcript has been provided to me and there was some argument about whether there were inconsistencies in the history given at that time around what happened when she left and the car accident and other matters.  I will note that, to the extent to which there are allegations of family violence contained in that transcript, it was an ex parte application.  The father was not represented and none of the evidence was, as far as I can tell, tested.  The learned Justices of the Peace, as they were entitled to do in the circumstances, accepted the mother’s evidence at face value and proceeded on that basis.

28. There is no criticism at all of the approach that was taken.  However, that material does no more than provide a prior consistent statement, only one month earlier, of the mother’s evidence in her affidavits before me.  In those circumstances, no additional weight can be given to the mother’s case by reason of the order having been granted when there was no testing of the evidence and no findings made in an ex parte application.  The transcript of the Perth proceedings and the FVRO are exhibit MA.

29. Now, I will just note that the principles that govern the determination of this interim application are well settled. The orders that are being sought, by both parties, are interim parenting orders. They are parenting orders as defined in Part 7 of the Act – see s.64B and the court’s power to make such orders and s.65D. The powers are subject to the rebuttable presumption of equal shared parental responsibility in s.61DA and it is important to keep in mind that the court’s obligation on this application is to have as its paramount consideration the best interests of these two children – and I note ss.60CA and 65AA.

30. The best interests are to be determined by reference to s.60CC, given the objects and principles in s.60B which reflects the material in s.60CC. There are, of course, two primary considerations. The first is to protect the children from physical or psychological harm or from being subjected or exposed to abuse, neglect or family violence. And that is, of course, by reason of s.60CC(2A) the foremost of these two considerations, and the second is to recognise the benefit to the children of meaningful relationships with both parents.

31. These twin pillars, as described in Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520, are what must guide the court in this parenting application. I should note that, whilst the parties and the court have been noting that this is a form of interim relocation case, it’s quite clear that relocation cases are merely a specific application of the general principles that apply to interim parenting applications and, although they are more complex because of the factual matrix, what her Honour Justice Boland said in Morgan & Miles generally applies. I have already referred to the statement at [88] which the father relied upon, but her Honour at [72] to [80] set out the matters the court will consider, and noted that the child’s best interests remain paramount but not the sole consideration; that a parent wishing to move does not need to demonstrate compelling reasons but a judicial officer must consider all proposals and may themselves be required to raise proposals in the child’s best interests; and that the child’s best interests must be weighed and balanced with the right of the relocating parent’s freedom of movement.

1. In particular, there is no legislative mandate to consider different criteria in interim parenting applications involving relocation to final application, and that was at [82]. So the principles that the court must consider are those as set out in the legislation and as articulated and explained for trial courts in Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346 and the subsequent cases.

2. Now, I start with the question of equal shared parental responsibility and that presumption does not apply if there are reasonable grounds to believe a parent of the child has engaged in abuse of the child or another child of the parent’s family or in family violence, as defined in s.60DA(2), and that is of course consistent with the primary consideration of protecting the children from any harm, as noted above.

3. The presumption also applies in an interim hearing unless the court considers it would not be appropriate for it to apply, and I note s.61DA(3), and of course it is a rebuttable presumption. I start with that and I note that the courts have also pointed out that one of the great difficulties faced in these application, as noted in Marvel & Marvel (2010) 240 FLR 367; [2010] FamCAFC 101 and in Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36, is that the evidence has not been tested. I have before me competing allegations by the parents of acts that would constitute family violence. Despite the affidavits of different people who have been put before the court, in the absence of cross-examination or other extrinsic material, all that can be done is, citing Marvel, to make orders that are:

   A necessary but temporary measure until all the evidence can be tested, evaluated and weighed in a final hearing.

4. I note that a conservative approach is to be adopted and any factual findings to be made at an interim hearing should be “couched with great circumspection”.

5. I also note what was said in Banks & Banks, that, in effect, at [48]:

   It will be the issues that are joined that will dictate which section 60CC factors are relevant.  By their nature, interim parenting proceedings should be confined to those issues which in the best interests of the child require a determination prior to a proper determination at a trial.

   It is important to stress here that the requirement to consider each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion.

6. Now, in terms of the specific factors, I think that I am required to make a findings based upon the father’s concession that he told [X] that he would smack him and make him bleed if he wasn’t behaving properly, that he did commit at least one act of family violence.  Of course, that doesn’t necessarily dispose of the question of equal shared parental responsibility, given that the father makes allegations against the mother, and the fact that she has not conceded them does not mean that the allegations have not been made or that on an interim basis they can be ignored.  The court will be very reluctant to provide either parent with sole parental responsibility at this stage, and on that basis it seems to me most appropriate on an interim basis, and until further final hearing, unless someone has an opportunity to fully test the materials, that the court should make an order that there be equal shared parental responsibility.

7. I note the s.60CC(3) factors to be considered. I should also say at this stage that, except for that one event, it is not open to me, I do not believe, to find that there has been acts of family violence of other kinds by either parent. Given the totality of the evidence, at present, I am not satisfied to the requisite standard that either parent poses an actual risk to either child, nor am I satisfied at the moment that either parent would be an unacceptable risk to either child. I say that noting that I do have some concerns about the father’s statement to [X], and that I do not treat that lightly but that, in terms of the child being with the father, my concern does not go so far as to persuade me that he is an unacceptable risk, and all of this of course is subject to the caveat that this is an interim hearing on very limited evidence and all the court can do is the best that it can do.

8. In terms of the s.60CC(3) questions, the children’s wishes are not relevant as they are too young. Although the mother says that the father has had minimal involvement with the children, he was their father living with them and I would have expected him to have the usual extent of involvement. Indeed, the allegation relating to 19 August arose during family bath time. I note that the Child Inclusive Memorandum did identify some hesitancy, particularly by [X], with the father, but that may have been as a consequence of the break for six weeks and the dislocation and possibly as the father has, it appears, changed his appearance. But the report did not suggest that [X] was scared or frightened or running away from him, so I do not necessarily see that as being a factor, so I accept at the moment that the relationship of the child or children with each parent is reasonable and normal.

9. In terms of the willingness of each of the child’s parents to facilitate and encourage a close continuing relationship between the child and the other parent, I do have some concerns about the mother’s willingness to do this, given her views about the father.  Of course, it is difficult for me to know whether those views are reasonable or not, since I cannot make findings of fact.  I have noted that her decision to move to Perth appears to be related to that being the only realistic option for her if she is to relocate, rather than merely seeking to put the continent between them.

10. The s.60CC(3)(d) factor is the likely effect of any change in the children’s circumstances, including separation from either parent, or other people. Obviously it is deeply concerning that the children are in Perth and, if they remain there, the reality is they are going to have a very limited relationship with their father and that applies on the interim basis as well as upon any final decision. The practical difficulty and expense of the children spending time with and communicating with a parent will obviously mean, if the children are in Perth, that the father will have difficulty having a relationship with them. Of course, if the children return to Sydney without the mother, then the mother is going to have the same difficulty.

11. In terms of the capacity of each parent to provide for the needs of the children, including emotional and intellectual needs, at the moment I am not satisfied that both parents do not have that capacity and I say that having in mind the concession made about the statement to [X] that the father would hit him till he bleeds.  Regarding the subsection (g) factor, there may be a concern about the children learning about the [nationality omitted] culture, although the mother says that she will facilitate that.  The subsection (h) factor, protecting the children, obviously is a significant part of the mother’s case; but, as I have noted, it also appears to be part of the father’s case.  The attitude of the parents to the children and to the responsibility of parenthood, that all, again, comes down to the question of family violence and, in the absence of an ability to make other findings about that, there is little that I can say about that.

12. The subsection (j) factor, any family violence involving the child or children and the orders in place, I think I have dealt with previously.  And orders least likely to lead to the institution of further proceedings, well, frankly I do not think any order I make is going to resolve these proceedings.  If the children come back from Perth to Sydney with or without the mother, there will be further proceedings and if they stay in Perth with the mother there will be further proceedings.

13. It seems to me that, given the limited capacity to make findings of fact, there are, as I said at the start, these two competing questions.  One is the desire of the courts not to have people make unilateral relocation decisions, and for that to be dealt with on a final basis rather than on an interim basis, and I think there is a great deal of weight in that submission, and the only reason I would not make such an order requiring the children to return from Perth was if I was satisfied that there was a significant risk of family violence or violence to the children, or if I considered it to be impractical.  So, having said that, I will move to what seemed to be the issues which still require consideration.

14. I have said with respect to the family violence that I am concerned about the verbal statement by the father, but that it, by itself, is not sufficient to make me think that he is an unacceptable risk to the children or a risk to the children in terms of other behaviours. 

15. The second question, which seems to be very relevant, is the MRR & GR question, or the question of the practicality.  This is where the father’s case did seem to have some real difficulties.  I refer to the father’s second affidavit, affirmed on 4 October 2018, and in particular his evidence from paragraphs 25 to 30.  Those paragraphs which assume by inference that the mother will return to Sydney if the children do, say in effect what I understand the father’s proposal to be, which is that, the father is content with the mother residing in the former matrimonial home, or alternate accommodation.

16. The mother’s proposal is that she remain in Perth with the children living with her relatives and providing such access to the father as he can afford to obtain, as well as Skype or other access, whilst the matter proceeds to a final hearing.  Now, given that the mother has a 2 ½ and a 10 month old and she is living on $400 a week, other alternative accommodation does not seem realistic. 

17. Given the father, as I understand the evidence, and it’s a bit unclear, earns somewhere between $50,000 and $65,000 per annum, it does not seem to me that he would be in a position to live in the family home and pay for her to have alternative accommodation. 

18. The father says he would be willing to have the mother live with the children in the former matrimonial home.  He says he has contacted the bank the mortgage is with and the evidence is that there is a hardship halt on the mortgage repayments until 28 December this year.  However, the matrimonial home is being or is to be marketed for sale.  The father says he is content for the mother to reside at the property for a short period on an exclusive basis, save when he would need to do work there to maximise the sale price.  He also says however that, if “as neither of us can continue to afford the mortgage, if the property were not to sell in a couple of months, I don’t think I could continue to afford my living costs elsewhere as well as payment of the mortgage.”  Yet it seems to me inconceivable that the parties could live together, given the allegations that have been made. 

19. After costs it is expected that the net equity available to the parties between them will be approximately $550,000 in funds, at least that is on the father’s case.  And he says “upon settlement of that there will be funds available for each of us to meet our rehousing costs.”  But it is not clear that the property is already on the market yet.  It is also not clear when it is likely that will occur.  If it cannot be sold by December, then it is not clear where the father will live.  So it seems to me that there are real practical difficulties with the father’s proposal for the children to return and the mother to return with them.

20. I then move to the other alternative, which is that the children are ordered to return and the mother makes a decision, which she would be entitled to make, that she elects not to return.  But then we are faced with the difficulty that the father works five days a week.  He has Mondays and Tuesdays off.  He’s earning $50,000 to $65,000 a year and has to pay the mortgage.  Even if you could get a 10 month old into child care, the costs of two children in child care would eat his salary and so, as I understand his case, his parents would be looking after the children.  But the evidence before me, which wasn’t contested, as I understand it, is that the younger of the children is still breastfeeding.  And, again, if [Y] is still breastfeeding, I think to suggest that he should be instantly weaned for the purpose of being transferred to Sydney so he could spend most of his time with his paternal grandparents is one which is not in his best interests, nor one which is practical and realistic.

21. For the reasons I’ve given, although my usual course and preference would be not to allow a unilateral relocation to continue if the children could be safely and practically returned to their normal place of residence, particularly if they are school-aged children and are losing school, which these are not, it just seems to me that the father’s proposals, when compared with the mother’s proposals, as required by the principles in Goode & Goode, and the legislative scheme that is set out there, are not practicable and so not in their best interests.

22. It is not in their best interests to be in Sydney with their mother, with insecure accommodation, accommodation which they will not have at the family home once it is sold.  I am not sure what the percentage allocations between the parents will be but housing is not cheap in Sydney and someone who is a single mother with two children and no income other than Centrelink, even if she has a couple of hundred thousand dollars, may find that purchasing a new premises is expensive and may consider that spending her capital for short-term housing is not wise.  It seems to me that it would not be in the best interests of the children to be returned to Sydney to live primarily with their grandparents, given that their father needs to work.  And, in particular, weaning a 10 month old baby in those circumstances just strikes me as being something which would require very special circumstances to make it in the children’s best interests.

23. So for the reasons I have given, the orders I propose to make and will publish are to dismiss the application to have the children returned from Perth to Sydney.  As I have said, I dismiss the application for a recovery order – I am not sure if that is still pressed in the circumstances.  I am going to make orders for equal shared parental responsibility.  I am going to make an order that the children live with the mother and I wish to make orders to allow for the greatest possible contact between the children and the father.  I am very concerned that their right to know him is unfortunately significantly impaired by the decision just made and the fact that the parties are living in different parts of Australia.  I note, as was raised in U v U (2002) 211 CLR 238; [2002] HCA 36 that at some stage it may be that the father thinks it is appropriate to relocate to Perth and if he does that, of course, then the court would need to consider arrangements. Obviously equal time and shared care is out of the question here because of the distance. I think, although FaceTime or video time isn’t as good as in-person time, there is some evidence that it is better than nothing and that it may allow the children to maintain a familiarity with the father, and the paternal family. And on that basis I’m going to order that the father is to have video contact with the children on Wednesday, Friday and Sunday of each week,

24. Given these reasons I note that the parties are to see if they can reach an agreement about time with the father.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge B. Smith

Date: 5 December 2018