Blair & Blair

FAMILY COURT OF AUSTRALIA

BLAIR & BLAIR

[2007] FamCA 253

FAMILY LAW - CHILDREN - With whom a child lives - Best interests of child

APPLICANT:

Mr Blair

RESPONDENT:

Mr Blair

FILE NUMBER:

SYF

3585

2006

DATE DELIVERED:

23 February 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Justice Le Poer Trench

HEARING DATE:

22 and 23 January 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Gillies

SOLICITOR FOR THE APPLICANT:

Mr Tiyce

SOLICITOR FOR THE RESPONDENT:

Mr Brown

Orders

The parents have equal shared parental responsibility for the children a daughter born in March 1998 and a son born in October 1999.
The children live with father as follows:
(a) until the end of first school term in 2007:
(i)each alternate week from the conclusion of school on Friday to the commencement of school on the following Tuesday. First period of time to commence 23rd February 2007.
(ii)each alternate Monday from after school until the commencement of school on Tuesday. First period to commence on the 5th day of March 2007.
(b)As from the commencement of the 2^nd school term in 2007 the children are to spend an additional night per fortnight with their father during school term. The additional night is to be Tuesday night to follow the Monday in the week where the children have spent the weekend in their mother’s care.
(c)As from the commencement of the 3^rd school term in 2007 the children are to spend an additional night with their father each fortnight. The night is to be Wednesday night in the week following the weekend they spend with their mother.
(d)For half of all school holidays. The precise times to be agreed to by the parties.
The parties are to ensure that the children spend Mother’s Day with the mother and Father’s Day with the father. They are also to ensure that each parent spends time with the children on each child’s birthday.
The parents are to ensure that the children spend time with each of the parents at Christmas time in a fair and equitable manner.
The parties may agree to additional time for the children to spend with each of them for special family occasions.
The parties are to make arrangements to share equally in the travel required to move the children from one residence to another.

Neither party is to enrol either chid in any extra-curricular activity without first obtaining the consent of the other to such activity and reaching agreement as to the financial contribution of each party to that activity. If the parties do agree to a particular activity for the children then each is to ensure that during the time the children are in that parties care that the children are taken to participate in that activity.
Neither party is to change the residence of the children without first giving two months written notice of their intention so to do to the other party.
Neither party is to change the children’s school without first having the consent of the other in writing.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3585 of 2006

Mr Blair

Applicant

And

Mrs Blair

Respondent

REASONS FOR JUDGMENT

Introduction

The mother proposes for the children a daughter aged 8 (date of birth in March 1998) and a son aged 7 (date of birth in October 1999) that they move with her to live in North Queensland. They would there take up residence with the mother’s partner Mr W. Thereafter she proposes the father would spend time with the children in school holidays and by telephone or at such other times as he could travel to North Queensland.
The father opposes those orders and seeks orders which increase the time which the children currently spend with him from five nights per fortnight to seven nights per fortnight.
The mother is quite clear in her resolve not to go to Queensland without the children. If she is not permitted to relocate the children with her to Queensland then she proposes to remain in Sydney and proposes the current level of time the children spend with their father continues. She is opposed to any increase in the time the children presently spend with their father.

Background facts

The mother was born in July 1978 and the father in August 1978.
The father had been a member of the armed services until about September 2005. The parties met in about February 1997 and thereafter formed a relationship. They married in July 1997.
In 2001 the father was deployed to Timor for between six and seven months.
In late 2001 the father was posted to W, Victoria and the family moved there with him. The family moved back to Sydney in 2002 as a result of the father successfully applying for a compassionate posting. He says this arose because of the distress of the mother missing her family who lived in Sydney. The mother says she was not told that it was a compassionate posting.
The parties had turmoil in their relationship at least in the latter stages. The mother has alleged that there were many acts of violence perpetrated against her by the father. The father has predominantly denied the acts of personal violence however admits that he has been involved in many arguments with the mother. I will deal with these allegations as part of the reasons.
In April 2005 the mother commenced a relationship with Mr W. In July 2005 the mother and the children commenced living with Mr W.
In January 2006 the father obtained employment with L Co and later with R C at P, New South Wales where he currently works.
In about August 2005 the father commenced a relationship with Ms E. He commenced residing with her in about January 2006. Ms E has two children J aged eight and Z aged five.
Following separation there was disagreement between the parties and the mother alleges abusive behaviour on the part of the father.
Between separation and early 2006 the father spent limited time with the children. He had some overnight periods with the children but not many. From early 2006 the father commenced having regular and frequent overnight time with the children. The current arrangement is that the children spend five nights per fortnight with their father and half of the school holidays.
The mother's partner Mr W has two children. They are Y who was born in October 1998 and is eight years of age and R who was born in October 2003 and is three years of age. During 2006 Mr W had very little time with his children. This is a matter which will be discussed later in these reasons.
The father currently pays child support at the rate of $702 per month.
The father's current work with R Co at P involves him working from Monday to Saturday. His hours of work are from 7.00 am to about 4.30 pm. When the children are staying with the father and they are required to be dropped off at school Ms E cares for them before school and delivers them to school. If the father is required to collect the children from school he collects them if he is available otherwise he needs to rely on Ms E.
The father currently lives with Ms E at S and the mother lives at W. The property occupied by the mother belongs to or is rented by the Department of Defence and is available to the mother at a below market rental because of Mr W’s membership of the Defence services. Should Mr W elect to take a house in North Queensland, where he is presently posted, the property at W would no longer be available for occupation by the mother or at least not available at the current rental being paid by the mother.
The mother currently works for T Co, Monday to Friday from 7.30 am to 4.30 pm. Because she had told her employer that she was moving to Queensland her employment will shortly terminate.
The children have only attended one school namely W Public School.
The mother has family living in the Sydney area. Her mother gave evidence on her behalf during the hearing before me. Her father lives at X and her mother resides in the Sydney area. She also has aunts, uncles and cousins in the Sydney area.
The father says that after separation he became aware of the mother's relationship with Mr W. At the time he said to her in a phone conversation "you're a cheating slut and you're not taking my kids to another A. J. Dickheads house". The mother replied "well, it's going to happen so live with it".
Shortly after separation the father asked the mother for a 50/50 shared residence. The mother did not agree to this but did agree to the children spending time with the father each alternate weekend together with each Monday and Tuesday.
Notwithstanding the agreement for the children to spend time with the father he did not avail himself of that time because he says he was experiencing emotional difficulties and pain from a back condition. The father was still in the defence forces at that stage and sought the assistance of a psychiatrist or psychologist. He met with a person who was an army officer and a psychologist or psychiatrist. (approximately three times per week from August to the start of October 2005).
Commencing in about mid 2005 the father saw the children each Monday night from after school until 9.00 pm. There were times when the father did not see the children regularly. In July 2005 the father made arrangements for the daughter to commence attending dancing classes at S.
During the 2005 period on one occasion the father advised the mother he could not see the children because his home had been ram raided.
The father says one of the reasons he did not have the children stay with him overnight in 2005 was that he did not have proper facilities where he was living to accommodate the children. He was living at A at the time sharing with others. The children had a small number of overnights with him during 2005.
In January 2006 the father moved into the residence of his partner Ms E at S. In January 2006 the father commenced having the children stay over each Monday night and each alternate weekend. He also had them stay for half the school holidays. In late January or early February 2006 the father was seeing the children alternate weekends from Friday until Monday evening. The father requested the mother to extend it to Tuesday school time because he said he was very tired driving the children home on Monday evenings. The mother says having considered the children's safety issues she agreed to this proposal.
There is no issue in this case that each parent will provide appropriate accommodation for the children.
In August 2006 the mother advised the father that Mr W, her partner, would be posted to North Queensland. At that time the mother was residing with Mr W at W in a property leased for Mr W by the Department of Defence. She told the father she proposed to accompany Mr W with the children to North Queensland. The father said he would oppose the move and go to court if necessary. Shortly after that conversation the father received a telephone call from Mr W in which he said "this is fucking ridiculous you're never going to get custody ‑ you're the dad, dad's don't get custody I've been through it myself. If you go to a fucking lawyer we'll make sure we hit you up for fucking everything. You won't be seeing the kids until this goes to court".
On 3 August 2006 the father attended upon his solicitor and caused a letter to be sent to the mother. The letter outlined the father's opposition to the mother's move to Queensland. On 4 August 2006 the mother rang both the father and his solicitor. She was obviously upset by the father's opposition to the move. Notwithstanding she had never met the father's solicitor she rang him and a file note recorded by the solicitor illustrates her upset. The file note is annexed to the father's affidavit. The mother in her cross‑examination admitted to phoning the father and threatening to "hit him up for his superannuation". She also admitted phoning the father's solicitor.
On 4 August 2006 the father received a message from Mr W on his voicemail. Mr W admits the content of the call and says he regrets the call. The message was as follows "looks like you won champ so what we're pushing for [the mother] to do is to backdate all the child support assessment payments she's going for your super and she's going to be pushing for one weekend a fortnight and also to let you know that she's going to fight the Sydney metropolitan area restriction, guaranteed she's going to move out to Broken Hill or somewhere like that and she's going to be fighting for residential as well. I don't know what to say this is fucking ridiculous so I hope you're happy guaranteed that you won and the kids won't leave the State but I don't think [the mother] is going to want to stay in Sydney after what you've done to her. I'm going to [North Queensland] and I can't stop that. I'm married separated and you've ruined our relationship so I hope you're happy. Bye".
During the marriage the father was a member of the a bike club. The father alleges that the parties socialised in circles involving the members of the club. The mother appears to deny this allegation at least inferentially in her affidavit material in that she says she was completely opposed to the father's membership of the club. In August 2005 the father left the club.

Credit

Each of the parties and the witnesses who gave evidence in the case before me gave their evidence in what I consider to be a straightforward and honest manner. There was nothing about the presentation of any witness in the witness box or the content of their evidence which alerted me to the prospect of them being deliberately untruthful. Where it has been necessary for me to make findings of fact in circumstances where each of the parties have given different versions of the evidence in respect of particular event or events I have had to prefer one version or another based on my overall assessment of the totality of the evidence of that particular witness and my assessment of probabilities relating to the particular fact dispute.

The evidence of the Family Consultant

The Family Consultant, Ms B, prepared a report dated 12 December 2006. She also gave oral evidence in the case. The matters of particular note to me in the Family Report are as follows.
The Family Consultant found that the mother presented as a personable, positive woman who acknowledged the difficulty of hoping that she and the children will be able to joint Mr W in Queensland in January while complying with the court’s direction not to discuss the issue with the children. She noted that the mother seems upset and bitter about the father's denial that he was ever violent towards her. She claimed that the father had made "death stares" at her across the table during an earlier appearance in court. The consultant noted that the mother acknowledged that a move to Queensland would initially be difficult for the children because they would miss their father. She believed however that they would adjust as long as they knew they would see him during school holidays.
The Family Consultant spoke to the father's partner, Ms E (titled Ms A in the Family Report). The Family Consultant noted that Ms E raised a number of practical difficulties about the mother's proposed move such as New South Wales and Queensland having school holidays at different times.
The Family Consultant spoke with the mother's partner Mr W. She noted that he is disappointed and annoyed that the issue of the move to Queensland was not resolved through mediation. Mr W told the Family Consultant that it was "pointless putting in a retention" which puts him on restricted service because he knows that the army is against this unless there are compassionate grounds such as a dying relative or disabled child. This arose because the father had raised the prospect of Mr W avoiding a posting to North Queensland by asking the army to allow him to stay in a job in Sydney on compassionate grounds. Mr W told the Family Consultant that if the mother and children remained living in Sydney and he in North Queensland the army would provide four free return flights a year for him to visit Sydney to be with the mother and the children.
In relation to the children the Family Consultant noted that the children were observed to have positive, affectionate, relationships with each of their parents. They responded warmly to their parents’ new partners. They interacted easily with Ms E’s two children. She also noted that the children's school reports suggest that they both had a more settled year at school during 2006 than in 2005. She said the daughter presented as an animated positive child who seemed aware of the reasons she was at court. She told the Family Consultant she had been thinking in her bedroom about a solution "where we can be all together". In relation to the move to Queensland the daughter was not sure about going there at first. She thought it would be a nice place to go because she could visit the beach. Her mother had told her "I'd get to be a beach babe". The daughter said "my dad will get upset. My dad will start crying. [Ms E] will, [Z] will and [J] will". She said "I'd feel bad because my dad loves me too much and he doesn't want me to leave".
The Family Consultant observed from the conversation with the daughter that the children had been exposed to the conflict and violence between their parents. The daughter spoke of her father "hitting my mum in the wall". She also thought that she had seen a couple of bruises on her mother.
The Family Consultant observed that the son presented as a cheeky but reserved boy with a distracted air about him. She said sometimes his answers to questions did not make sense and he seemed to be either evading a question or not to understand it. He had said he wanted do go to North Queensland because of the things that will be there such as "Luna Park". He expressed excitement about the idea of going to school near the barracks in North Queensland. The son also acknowledged that he'll miss his father. He said "we will still see dad only four times a week" (he meant a year). The son also told the Family Consultant he likes his father picking him up from school. He said he could ring his father on the telephone and talk to him.
Under the heading “Evaluation” the Family Consultant noted that the children experienced their father's intense anger towards their mother particularly in the period around separation. She noted that the improvement in the children's school reports in 2006 and the absence of any current behavioural problems is a reflection on the children's resilient personalities and the quality of the parenting they have received. She thought that both parents were willing and able to facilitate and encourage close and ongoing relationships between the children and the other parent.
The Family Consultant concluded that the children have positive, affectionate and enduring relationships with their parents. She believed that both children have the developmental capacity to independently bring their father’s memory to the forefronts of their minds and take steps to initiate communication with him. She thought the daughter, and to a less consistent extent, the son expressed a desire to move to North Queensland, but it appears that both parents have impressed on the children their own feelings about this prospect. In those circumstances she thought the children's views were considered to be tainted with the perceptions of their parents and as a consequence ought not to be given significant weight.
She concluded that the extent to which the children could have a meaningful relationship with their father, it would be a lessened by a move. She said the nature of the relationship will change to more of a holiday one. They can be expected to miss the friends they have made at school and at their extra curricular activities (such as dance classes). She thought the son appeared to be more vulnerable to change than the daughter and his behaviour and performance at school may deteriorate. If they move to Queensland the children will both have to make yet more adjustments when they have just begun to settle down after a year of upheaval.

The Family Consultant said the most compelling negative factor for the children if they are not permitted to move to Queensland is the impact on the mother's relationship with Mr W. If the mother were to remain in Sydney and her relationship with Mr W did not endure the stressors of living a long distance apart, the children would be faced with the prospect of another change in their accommodation (as the mother would presumably no longer be eligible for army subsidised housing) and their mother's distress. The Family Consultant thought that the impact of this on the children would be considerable. The mother may also be resentful towards the father which may have an impact on the parenting relationship.
On the other hand the Family Consultant said that if the children are permitted to move to North Queensland the mother may be buffeted from the effects of the father's “ongoing aggressive interaction” with her because they live a long distance apart. This may have a positive impact on the children. The father however may find it difficult to accept an order which allows the children to move away from him and his manner with the mother may become more abrasive. I should add that the evidence does not disclose “ongoing aggression” by the father towards the mother during 2006. I can only assume that the Family Consultant was referring to the possibility of this based on the father’s past conduct.
Finally the consultant says that the advantages and disadvantages for the children in each of the proposals are finely balanced. She thought a significant consideration is the ability of the mother to facilitate an ongoing relationship between the children and the father which will ensure that both parents continue to have a meaningful involvement in the children's lives. On balance the Family Consultant recommended that the children be permitted to relocate to Queensland with the mother and have extended holiday time with the father.

In her oral evidence Ms B was asked questions by both counsel. In relation to the mother's assertion that the children were describing violence exhibited by the father towards his partner Ms E the Family Consultant was asked whether there was any evidence in her interviewing the children that suggested they had witnessed any such behaviour. She replied no. The Family Consultant said that she had asked both the father and Ms E together whether there was any violence in their relationship and they had said no. In relation to the children's wishes I asked the Family Consultant whether she thought an eight year old child could conceptualise the impact on him or her of moving a lengthy distance from their father. The Family Consultant said she thought not and she said she thought the son had little understanding of what the move would involve for him. She said that if the children move to Queensland with their mother she would expect there to be a little awkwardness in the relationship between the children and the father at the commencement of each school holiday period but that the children would quickly get back into their normal relationship.
I then asked the Family Consultant a question about the ability of these children to maintain their relationship with their father if they were to move to Queensland and only have face to face time with their father during school holiday times. The Family Consultant thought that the daughter would be able to maintain her relationship with her father. She said she could maintain a mental picture of her father. She was unable to be certain about this and she was less certain about the son. She agreed that the son would have more difficulty maintaining a relationship with his father if it was by telephone. This was said in the context of the children only having face to face time with their father during school holidays together with supplementary telephone time.
The consultant said that in order for the relationship between the children and their father to be maintained it would be necessary for the mother to assist them. This would involve her speaking of the father in a positive way and likewise Mr W. If the mother was unable to maintain a positive emotional environment for the children in relation to their father the Family Consultant said it would cause anxiety and confusion for them. If the children do go to North Queensland the Family Consultant recommended more than half school holidays for the children to spend with their father.
In response to questions from the mother's counsel the Family Consultant agreed that given the role Mr W has played in the children's lives over the last 18 months for him to live in Queensland and their mother to live in Sydney would be a major change for the children. The Family Consultant said she thought the emotional burden on the mother of the relationship with Mr W changing would have a direct impact on the children. In relation to the change of children's schooling the Family Consultant said the primary thing which determines how children do in school is the nature of their relationship with their mother and father.

Issues of Fact

The following matters appeared to emerge as issues of fact. Some of these matters are matters specifically referred to under section 60CC.
1.What was the nature of any violence between the parties during their marriage and following it?
2.What is the nature of the relationship between the father and Ms E? Has the father exhibited any violence towards Ms E?
3.What is the nature of the relationship between the mother and Mr W?
4.If the mother is permitted to relocate the children's residence to Queensland, what will be the impact upon the children's relationship with their father? What role will Mr W play in supporting the children's relationship with their father?
5.What impact will a move to Queensland have on the children's schooling?
6.What is the nature of the relationship between the children and each parent? Is there a significant difference in parenting styles?

Determination of Issues of Fact

1. What was the nature of any violence between the parties during the marriage and following

The mother's allegations in respect of violence are set out in her affidavit commencing at paragraph four on page seven. The allegations are in essence as follows:
1.Early in the marriage during an argument the father pushed the mother into the bedroom door and punched a number of holes in the door next to the mother's head.
2.On one occasion he held a machete to the mother's throat.
3.On one occasion when her sister was present, the father pinned the mother to the bed restraining her.
4.In late 2004 the father pushed the mother into a corner of the kitchen and threatened her by saying if you ever leave me I'll kill you and your family.
5.Close to the point of separation the father discovered a phone bill which he said illustrated the mother was telephoning numbers which belonged to men. The mother says that the father confronted her about this and she said she was telephoning friends. The mother then says the father came at her and punched her in the upper arms, upper legs and around the head. He then, apparently in her presence, made a phone call to a motor bike club member and asked for someone to "take care of her". The mother said she sustained bruises.
6.Following that incident the mother says she was assaulted by the father on a number of occasions. The only particulars given of these assaults are firstly an occasion when the mother returned home and she alleges she was thrown against the wall by the father. She said he hit her with the back of his hand across her mouth leaving her with a fat lip. Later that day she alleges he pushed her against a wall and was spitting and screaming in her face "you are a no good slut. The kids would be better off if you were dead".
7.The mother alleges that thereafter she received a phone call at work telling her to get home if she ever wanted to see her kids again. Come home straight away and confess to cheating on me or else you'll never see your children again. I have plane tickets to send them where you'll never find them".
8.Following the mother leaving the parties’ house in April 2005 she took the children and went to live with her mother. She said that thereafter the father called the children every night around 7.30 pm. She said that at those times when he spoke to her he would say "if I catch you with any men I'll slit their throats and yours".
9.The mother says that following the separation she saw the father drive by the canteen located in front of her place of work. On 16 May 2005 the mother was in her car driving along a public road when she saw the father going in the opposite direction on his motor bike. She stopped and the father stopped also and returned to where she was parked. She alleges he said to her “where were you last night where were you the night before that". She said he grabbed her hair and pulled her head out through the open driver’s side window of the car. She said he then swung a fist through the window at her head. She ducked to avoid getting hit and he started screaming. He pulled the keys out of the ignition of her car. He then sped off on his bike. She waited a few seconds and then drove back to work. The mother reported this matter to the police. The father was charged in relation to the incident. The mother returned the motor vehicle she was driving to the father which left her with no car. The charges against the father were later heard and dismissed.
10.The mother alleges the children have told her that the father is violent towards his partner Ms E.

The father in his affidavit and in his oral evidence has denied most of the mother's allegations against him. He does admit there was an incident where the mother was yelling at him and was, to use his words, "in my face and invading my space" and he held out his hand to prevent her entering the room he was in and then closed the door. He then punched a hole in the back of that door. This seems to be the same incident that the mother referred to as occurring early in the marriage.
The father denies that he has a criminal record. The father denies that he ever physically assaulted the mother.
Each of the parties was cross‑examined about their allegations and denials in relation to violence between them. I have no doubt that the father was under considerable strain and stress at about the time of the separation. I have no doubt that he was very distressed at the thought he had of the mother being unfaithful to him. I make no judgement as to whether she was or was not at that time. I accept the mother's evidence where she alleges that the father pushed her and restrained her. I also accept her evidence that the father made threats to her as outlined in her evidence. I also accept that the mother was "manhandled" roughly by the father on an occasion and suffered bruising. I do not find that she was punched by the father. I do not accept that the mother had a machete held to her throat by the father.
Given my overall findings in respect of this issue I conclude that violence was exhibited by the father against the mother and I also accept that the children were aware of fighting between the parents. I think it probable that the children heard altercations between their parents. It is probable that the children saw their father “handle” their mother. I do not accept that the children were otherwise exposed to the violence between their parents. I accept each party used profanities whilst arguing and that the children probably heard some of those. I accept the father’s evidence that the mother was aggressive towards him as he alleges.

2. What is the nature of the relationship between the father and Ms E, his partner? Has the father exhibited any violence toward Ms E?

The evidence of the mother includes statements made to her by the children, inferentially alleging that the father has exhibited violence towards his partner Ms E in the sight or hearing of the children. The father in his evidence denies that he has been violent to Ms E.
Ms E gave evidence in the proceedings both by the filing of an affidavit and orally. In her oral evidence she was asked about the nature of any violence exhibited towards her by the father. Ms E was most emphatic and convincing in her evidence when she said that she would not tolerate any instance of violence being exhibited to her by the father. In the event of any such violence being exhibited towards her she would immediately end the relationship with the father. I accept her evidence and therefore conclude that the statements by the children to their mother probably have emanated from the emotional environment in the mother's household. It appears to be a facet of the mother's interaction with the children that she has discussed aspects of the dispute between she and the father with them. This is a matter which was touched on in the Family Report and which I will return to at a later time.

3. What is the nature of the relationship between the mother and
Mr W?

This question is particularly important for the children. The children have developed a good and close relationship with Mr W and they would understand the importance of Mr W in their mother's life. It would be of concern to the court that the relationship is a good and sound one and likely to endure as a long term relationship. The relationship also needs to withstand the pressures of potential ongoing conflict between the mother and the father in relation to the children and also the potential overseas posting of Mr W.
The relationship between the mother and Mr W is asserted to be a good and strong relationship by the mother and the objective evidence before the court which is presented by the Family Consultant raises no real concerns about the nature of the relationship.
Mr W has been residing with the mother and supporting her both emotionally and financially since early 2005. He resided in the same house as the mother and the children from the commencement of the de facto relationship between he and the mother in 2005 until the end of 2006 when he moved to North Queensland. His evidence suggests that he is very committed to the relationship and will use his best endeavours to ensure that it is a long term relationship.
I find therefore that the relationship between the mother and Mr W appears to be a good and stable relationship and is likely to endure well into the future.
I need to consider under this heading the possibility of the relationship between the mother and Mr W enduring a separation which would arise if the children were not able to live in Queensland with their mother. The mother in her evidence, on my summation, said that she was not interested in a long distance relationship. Mr W on the other hand was not suggesting that in his evidence. He said that the defence forces would pay for him to travel to Sydney four times per year. The wife would also, subject to available financial resources, be able to travel to North Queensland during school holidays. It seems that Mr W and the mother could potentially spend face to face time with each other on eight occasions each year.
I also need to consider the fact that Mr W may well be posted overseas for a period of six months during which there could be no face to face contact.
Another matter I need to consider in relation to this case is the possibility of Mr W being posted to another part of Australia following his posting to North Queensland. The father has said that when he received a posting to Victoria and the parties moved there the mother was very unhappy and said she missed her family who were principally living in the Sydney region. I do accept that the mother did say these things to the father and potentially she may feel isolated from her wider family in the future. In fairness to the mother though it seems this “missing her family” came at a time of unhappiness and conflict within the marriage and it may be different for the mother if she is living in a harmonies relationship with Mr W.
On balance I think it is probable that the relationship between Mr W and the mother would endure the mother not residing in Queensland. Mr W’s evidence showed a commitment to the relationship irrespective of whether the mother lives in Queensland or Sydney. I am sure that the mother and Mr W would try every avenue to ensure their relationship lasted through a period of separation. Notwithstanding what I have said later in these reasons about Mr W placing his army career ahead of other priorities in his life, I think after a period of time in North Queensland and particularly after a posting overseas if that came his way, he would explore with the army, in a sensitive way, the prospect of a posting to Sydney or nearby.

4. If the mother is permitted to relocate the children's residence to Queensland what will be the impact upon the children's relationship with their father? What role will Mr W play in supporting the children's relationship with their father?

I propose to deal with this issue of fact as part of considering the section 60CC.

5. What impact will a move to Queensland have on the children's schooling?

Some questions were asked by the father's counsel of the mother about the transfer of the children from the New South Wales schooling system to the Queensland schooling system. I was left with the impression that the mother had a limited idea of the level of work the children would face in their school together with the particular form/class they may commence in. It was suggested by the father's counsel that it was unlikely that the children would go into the particular classes the mother was proposing.
From my part I can see no real disadvantage to the children of moving from one education system to another other than that of disruption. Given the nature of the relationship between the children and their mother I think it is probable that with her support the children would manage reasonably well a change of school if that has to be. The father raised concerns about the son’s special educational needs and whether the facilities which are currently available to assist him at W public school would be available in a public school in Queensland. There is no evidence to suggest that similar facilities would not be available for the son in the Queensland education system as in the New South Wales education system. If the facilities were not available through the son’s school it is probable that they would be available through other community sources and I am confident that the mother would be able to access those facilities to assist the son with his education.

6. What is the nature of the relationship between the children and each parent? Is there a significant difference in parenting styles?

I will deal with this matter under section 60CC considerations.

Section 60CC (3) Additional Considerations

The considerations required under section 60CC need to be considered in the light of section 60B of the Act. I will bear those objects in mind as I consider section 60CC.

(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

I have reviewed the evidence of the Family Consultant in respect of the children's expressed views and I agree with her conclusion that little weight can be given to the expression of views by the subject children. It is clear that the children's mother has sold them a glowing vision of life in North Queensland. It also seems the children are very aware of their father's distress if they move to Queensland.

(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)

I accept the evidence of the Family Consultant that the children have good and close relationships with each of their parents and with each of their parent’s new partners. I also accept the children have a good and close relationship with Ms E’s children. There appears to be no real issue between the parties about this matter. There does not appear to be any difference of moment in the parenting styles of the parents. There was nothing noted by the Family Consultant as coming from the children which suggested they were aware of any such differences.

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

The Family Consultant thought each of the parents were willing and able to facilitate and encourage close and ongoing relationships between the children and the other parent. If the mother is to relocate to Queensland then the emotional environment which she will create in her household for the children will impact upon the children's ability to be able to maintain a good and ongoing and developing relationship with their father. In this respect I conclude that the mother has already shown her willingness to facilitate the relationship between the children and their father notwithstanding her own circumstance of having suffered the father's violence. If permitted to move to Queensland then it is reasonable to conclude that the mother will be content and happy about that fact and consequently better predisposed towards the father generally. The mother may even have some sympathy for the father in his circumstances of being separated from his children over a long distance and for significant periods of time.
It is of concern to me that the children appear to have detected a degree of antipathy towards the father in their mother’s household last year. This has manifested itself in the children reporting to their mother that their father has been violent towards Ms E, a fact which I have concluded is improbable. It is possible that the children’s information provided to the Family Consultant about violence between their parents comes to some extent from their mother’s information to them. The Family Consultant had concerns that each of the parents had over involved the children in the dispute between them. It also seems probable that the children have been aware of the opposition of their father to the mothers and Mr W plan to move the children to Queensland. Given the level of anger displayed by the mother and Mr W to the father’s opposition to their move when it was first announced in August 2006, I think it is improbable that the children would not have been aware of their mother’s and Mr W’s feelings about the father at that time.
I do have a concern about the impact of Mr W on the emotional environment in the mother's household if it were in North Queensland. To date, it appears he has left entirely to the mother the question of the amount of time and the circumstances in which the children are with their father. Mr W however, does not appear to hold as a priority the necessity for himself to have a regular and close relationship with his own children. Mr W has two children, Y who is aged eight and R who aged three. The evidence suggests that during 2005 and 2006 the effort exhibited by Mr W to spend time with his children was dismal. His reason stated in oral evidence for not seeing the children during 2006 at any regular interval, or with any frequency, suggests to me that his children have very little priority in his life. Indeed all the evidence seems to point to Mr W being a selfish man who is driven by his own needs and a particular zest to advance through the ranks of the defence forces. He appears unprepared to make any request of the defence forces in relation to his personal life which could be an impediment to the advancement of his career in the army. He said he would not make an application for transfer to Sydney on compassionate grounds if the mother was unable to join him in Queensland.
With such a view pervading the household in which the children will traditionally live, if they live in Queensland, I hold real concerns about his commitment to the ongoing relationship between the children and their father. With the mother in North Queensland she will need the financial support of Mr W, at least in the short term, to assist in funding airfares for the children to be able to spend time with their father during school holidays. The mother may have employment in Queensland with her former employer T Co, however, I have not been provided with details as to the income she will earn. I have not been provided with details of the income she receives at the moment or that which might reasonably be expected in Queensland. She gave evidence in her affidavit at paragraph 5.9 that she currently pays $230 per fortnight as rent for the house she occupies. This is a subsidised rental. She said she could not afford a rental of $320 per week. This gives me some idea of her available resources to fund airfares from North Queensland to Sydney. I know the amount she receives as Child Support. The mother annexed to her affidavit some indicative airfares for the travel from North Queensland to Sydney return. The cheapest selection would cost $560 return. The mother proposes each party pay one half of the air fares for school holiday time the children spend with their father. Mr W’s income is $42,000 per annum from salary and $10,000 as a service allowance. If Mr W places little importance on the children spending that time with their father then it seems likely he would prioritise his spending in accordance with his own priorities in life and therefore money for travel for the children from North Queensland to Sydney to spend time with their father would be low on his priority. Added to this there is the intention of Mr W to fund travel for his own children to spend time with him in Queensland. His evidence leads to the conclusion that he has an immediate plan for his son to travel to North Queensland to spend time with him and he anticipates that in the not too distant future his daughter would also travel to North Queensland.
The father provided details of his income. He earns $1,550 after deduction of tax per fortnight. He pays from that $320 per fortnight Child Support, (he said this will increase if the children live in Queensland with their mother) $150 per fortnight car loan repayment, $140 per fortnight for fuel $150 per fortnight reduction of legal fees and another $250 per fortnight on solicitor fees. It seems he has little left to meet his ordinary living expenses. This will improve when he has paid off his legal fees. I have no detail of when that may be. He said that he would be unable to afford air fares for himself to travel to North Queensland to see the children. I was unable to obtain a real sense of the financial circumstances of Ms E the father’s partner. She said she thought she averaged about $450 per week from her teaching and she received $130 per week for Child Support. She had enough money to pay her mortgage and feed her family.
I conclude therefore that the capacity of the parties to fund time for the children to be with their father will probably be limited to school holiday times. If the mothers income reduces below its current level whilst living in Queensland then it seems she will have little capacity to fund airfares for the children without assistance from Mr W. Mr W will also have to bear the cost of bringing his children to North Queensland for holidays. It appears he is hopeful that his son will travel to spend time with him during school holidays and perhaps later his daughter. There is the prospect that on some occasion the father would be faced with the choice of paying all of the cost of airfares for the children or not have them travel to Sydney to spend time with him.

(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

To consider this subsection I really need to consider what a parental relationship is. The father’s counsel says that the “parental relationship” between the children and their father will be damaged by the combination of the move to North Queensland and the small amount of face to face time the children will be able to have with their father if they live in Queensland given the distance involved, the cost of travel between the parents homes and the relatively meagre disposable income available to the parents once they have met their ordinary living costs.
In the decision of Alvaro and Alvaro (unreported) delivered by me on
22 April 2004 I referred to some words in a report prepared for the Court by
Dr Lennings, Psychologist. In exploring the concept of parental relationship he said there is a distinction to be drawn between “the parental role” and “the parental relationship”. He said the “parental role” was “the means by which core values and behaviours are exchanged, and influence applied”. “Parental relationship” he said was “the closeness or attachment between the children and the parent”. These distinctions are, in my opinion, very important. As will be seen later, the preservation of the parental relationship is of particular importance in the consideration of relocation cases. The preservation of the parental role is important but not crucial. It is important because it seems the ongoing parental relationship is dependent on some exposure to the “parental role”. Such a proposition has logical connection but may not be so in every case. In nearly every relocation case, one would expect there would have to be some change in the parental role for both parties, but especially so for the contact parent, who is usually the parent left behind.
I have already referred to the evidence of the Family Consultant as given in this case. Recalling one part of the Report the Consultant had said in paragraph 29 that “Both children have the developmental capability to independently bring their father’s memory to the forefront of their minds”. In her oral evidence I asked the Family Consultant for her view on whether the children will be able to maintain their parental relationship with their father given the proposed distance between their residences and the mother’s proposal for face to face and telephone contact between the father and the children. She said that she thought the crucial element in maintaining the parental relationship between the father and the children is the mother’s ability to do her part in keeping the relationship alive. In this respect I took her to be referring to the mother maintaining a positive emotional environment so far as the children’s relationship with the father is concerned. It would, I believe, involve her speaking to the children frequently about their father and having photos of him on display at least in the children’s rooms. The mother would need to be able to speak to the children in positive terms about their father. So would her partner Mr W.
The Family Consultant further said that in relation to the daughter she would be able to say what she wanted with respect to her time with her father and to pursue her mother if her need for time with the father was not being met. The consultant was not so sure that the son would be able to do this. She said to a certain extent the children are a package (that is they will both go for time with their father at the same time) and sometimes the daughter appears to speak for the son but she was not really an advocate for him. The Family Consultant said the children would suffer anxiety and confusion if the mother and/or Mr W were openly negative about the father in the children’s presence.
The Family Consultant thought that the son would experience difficulty maintaining his relationship with his father by telephone. This was in the context of the telephone time with the father being additional to the face to face school holiday time.
In this family there does not appear to be available facilities such as visual internet conferencing.
The ability for Mr W to be intemperate in relation to the father can be seen in his admission that he made the phone call set out in the father’s evidence in paragraph 56 of his affidavit. The mother was questioned about the presence of the children at the time the phone call was made. I was not convinced by her evidence that the children did not hear what Mr W said to their father. I also conclude it would be difficult for a person, as angry as Mr W must have been at the time he made the phone call to the father, as referred to earlier, to hide his displeasure with the children’s father from them.
I should note here that the Family Consultant said she thought Mr W presented as resentful about the father not agreeing to the mother taking the children to North Queensland.
On balance I reach the conclusion it is probable that the son’s parental relationship with his father would be damaged if he was to see his father only four occasions per year for face to face time sharing. The principal reasons for this decision are (a) the lack of frequency with which it is likely he will see his father; (b) it is likely that telephone contact with his father will sufficiently supplement the face to face time with his father in order to maintain his relationship at its current state; (c) the likelihood of his receiving some negative messages in his mother’s household towards the father if there is further conflict at any time (the potential for which I judge to be moderate).

(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

In this case this is a real issue. The cost of air travel for the children will be a real burden on the combined financial resources of the parties. I have dealt with the cost of travel and the parties’ resources earlier in these reasons.

(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

The evidence supports a conclusion that each of the parties has the capacity to provide for the needs of the children. Each of the parents’ capacities are called into question however, in different ways, based upon the evidence before me. The father’s capacity was called into question in 2005 following the separation. During this time he was unable or perhaps unwilling to provide appropriate facilities to spend time with his children when they needed him most. He put his own needs ahead of the children’s probably as a result of feeling hurt by the circumstances surrounding the break up of the marriage, as he perceived them. It further seems likely the father was clinically depressed following the separation. Thankfully he reformed himself and his health improved during late 2005 or early 2006. He has thereafter given his children the highest of priority in his life.
The mother for her part has, on her own evidence, been quite unfair with the children in discussing the potential move to Queensland. In her affidavit at paragraph 5.2 the mother sets out what she said to the children about her move to Queensland. In that conversation she quite unfairly portrayed to the children that she was going to North Queensland with or without them. This was never, on the evidence, an option for the mother. The case she runs before me is that if the children are unable to live in Queensland with her she would not move without them. The prospect presented to the children of having the care and nurture from their mother removed from them must have been a terrifying thought and the mother must have known that. The question was posed that way to suit her own ends rather than to serve the best interests of the children. This type of action calls into question the capacity of the mother.
The evidence of the Family Consultant is that she had concerns about the mother over involving the children in the Court proceedings between the parties. There is evidence in the mothers own affidavit and in the interviews between the children and the Family Consultant, as evidenced in the Family Report, which lead me to the conclusion that the concerns of the Family Consultant are well founded. I do have some sympathy for the mother and the position she found herself in post separation and during 2005 where she received very little support from the father in the care of the children until early 2006. During this time I think it would have been difficult for her not to, at least inadvertently, over involve the children in the parental disputes.

(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

The children are aged 8 (nine next month) and 7. The daughter appears to have a level of maturity at least commensurate with her age. The son has reading difficulties and has received special assistance at school. His level of maturity appears to be possibly below his biological years. His father described him to the Family Consultant as very quiet and reserved. The mother described him as very quiet and subdued sometimes when with his sister. The Family Consultant thought the son presented as somewhat distracted. She said sometimes his answers to questions did not make sense. The son as a male child can reasonably be expected to want to spend more time with his father as he grows in years and maturity. The daughter as a female child can reasonably be expected to seek out her mother’s time and assistance as she grows and matures. In both parents’ households there are new partners. Each child will have the opportunity for male and female adult interaction however this could not in this case be seen as equivalent to a parent child relationship.

(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

This is not relevant to this case.

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

As referred to earlier each of the parents is now seen to be actively involved in the children’s lives and to be responsible parents.

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

I have made my findings in relation to violence perpetrated on the mother by the father.

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

There are no current family violence orders.

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

In this case it would be in the children’s interests to finalise the court proceedings between their parents.

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

A matter of concern to me is the prospect that if the mother joins Mr W in North Queensland there will come a point in time, perhaps in a few years (his affidavit says possibly 4 to 6 years), when Mr W will be posted to another place in Australia. That could mean further disruption for the children. Moves such as those may prove disruptive in relation to schooling and friendship bonds.
I should also consider the prospect of the father moving to North Queensland. The father was not asked about this matter in the trial and he gave no evidence in his affidavit about the possibility of moving himself to Queensland. It is not part of his proposal to move to North Queensland if the mother and children moved there. The father would seem to be unable or unwilling to move to Queensland with the children. His partner Ms E has two children who spend time with their father on weekends. She has a business which she has established in close proximity to her residence. The father does not have the prospect of a job to go to in North Queensland unlike the mother. In the circumstances it seems unlikely that the father will move to North Queensland if the children move there.
There are no other matters requiring consideration at this point.

Section 60CC(4) The extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent

I have already set out under subsection (3) of section 60CC my criticism of the father for the failure on his part to involve himself in the care of his children during 2005 following the separation. I reiterate those criticisms here. There is no finding to be made under this heading which has not been dealt with by me earlier in these reasons.

Section 60CC(4A)

In relation to this sub-section I have had regard to events that have happened and circumstances which have existed since the separation of the parties. The matters relevant to this consideration are set out earlier in these reasons.

Primary Considerations under Section 60CC(2)

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

In relocation cases, as I have said earlier, it is important that the “parental relationship” can be preserved. The parental relationship as described by
Dr L is “the closeness or attachment between the children and the parent”. In Alvaro and Alvaro I considered what might be seen as the core ingredients of the parental relationship from the child’s perspective. In that case I was considering the mother’s application to relocate the children from N.S.W. to S.A. I thought some of those core components would include:-
“In this case I would think they would include the following:-
(a)    That the children know their father loves them, is interested in them and that they are very important to him.
(b)    That the children trust their father.
(c)     That the children have a sense of comfort, security and warmth which can be felt by them when they are in their father’s company;
(d)    That the relationship includes a tactile aspect, which is reserved for him
There may be more and less obvious aspects to the relationship however they may not fall into the category of being “core or fundamental” to the particular “parental relationship” in each case.”
The extent or strengths of the core aspects of the child’s relationship with the parent I think is frequently described as “attachment” as referred to in the quote above referred to from Dr L.
Considering Primary Consideration (a) of section 60CC(2) above set out, the first thing to note is the somewhat unusual wording. In context it must mean that the trial judge is required to consider for each of the children the subject of the litigation, whether it is in that child’s best interest to have a meaningful relationship with each parent.
What is meant by the words “meaningful relationship”? There is no definition in the Act to assist Judges understand this term. Applying an ordinary English meaning to the words it must mean more than a “relationship”. The word “relationship” in the “Oxford Dictionary” (Concise) has a number of definitions, the most apposite being “connection or association” or “an emotional association between two people.” What then makes a relationship meaningful? Again the Concise Oxford Dictionary defines meaningful as “full of meaning; significant.” One could chase down the meaning of words indefinitely for example the word “significant” is defined by the shorter Oxford Dictionary to mean: "1. having a meaning; indicative.
2 having an unstated or secret meaning; suggestive. 3 noteworthy; important; consequential.”
The term “meaningful relationship” may potentially refer to the time the parents can spend exercising their relationship with their children. It could refer to the quality of the parental relationship or to both those aspects. It could be considered from the child’s point of view or alternately from the parents point of view. In the absence of any limiting suggestion in the section I think the best approach is to give the term all its possible relevant meanings and interpret it broadly rather than narrowly.
One sensible approach, in relocation cases, might be to treat the words as meaning the children should be able to spend sufficient time (if equal shared time is not appropriate or feasible in the circumstance) so as to ensure the parental relationship is not damaged.
In this case it is demonstrably beneficial for the children to have a “meaningful relationship” with each parent where that term embraces all of its possible meanings. The children have a good and close relationship with each of their parents. They have been spending five nights per fortnight in the care of their father together with half of school holidays. The father is involved in all aspects of the children’s life as indeed is the mother. By any definition I believe the father in the current arrangement and circumstances has a meaningful relationship with the children. He spends significant time with the children (as defined in the Act) and he is assessed by the Family Reporter to have a good and close relationship with them. As the children appear to be thriving in the current arrangement it is assessed by me to be beneficial to the children.

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

In this case it seems probable that the children were exposed to the violence exhibited by the father to the mother at some level. They probably heard some of the loud arguments which are said to have taken place between the parties. There seems little prospect of the children being exposed to further family violence. It was part of the mother’s case that the children were exposed to violence between the father and his partner Ms E. I have accepted the evidence of both the father and Ms E that no such family violence has taken place. Otherwise there is no evidence to suggest the children have been exposed to physical or psychological harm nor to abuse or neglect.
I am required by section 60CA of the Act in deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration.
Section 61DA requires the Court when making a parenting order to apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) provides that the presumption does not apply where there are reasonable grounds to believe that a parent has engaged in family violence. There is such a ground in this case.
Notwithstanding that the presumption does not apply it is still open to the Court, as I see it, to make an order for equal shared parental responsibility.
In this case each of the parties has submitted that it is appropriate to make an order for equal shared parental responsibility. I agree with that submission. The parties since the commencement of 2006 appear to have been able to communicate appropriately with each other about the children. They have also been able to attend public functions together for the benefit of their children. Apart from my finding of violence by the father towards the mother it seems to me the parties now have a proper relationship from which to jointly be responsible for their children’s future.
Having determined that it is appropriate to make an order for equal shared parental responsibility I am required under section 65DAA(1) of the Act to consider whether the children spending equal time with each parent would be in the children’s best interests. I am also required to consider whether the children spending equal time with each of the parents is reasonably practical.
Before considering these matters and others under that section I need to look at the case law which has flowed from the High Court and the Full Court dealing with the complexities of relocation cases and the guidelines which have been formulated to assist trial judges in these cases.

Relevant Law

The principles to be applied in relocation cases are enunciated in A-v-A Relocation Approach (2000) FLC ¶93-035 and H-v-L (2000) FLC ¶93-036. In A-v-A (supra) the Full Court noted the leading authority for the determination of a parenting case where the proposal of one of the parties seeks to relocate the residence of a child is AMS -v-AIF; AIF-v-AMS (1999) FLC ¶92-852. The Full Court noted that the High Court's finding that "relocation cases are but a particular example of proceedings under Part VII".
The Full Court held the following binding principles of law flowed from the decision in AIF-v-AMS; AMS-v-AIF (supra) when a parenting case involved a proposal to relocate the residence of a child:
·the welfare or best interests of the child under the relevant legislation, remains the paramount consideration but not the sole consideration
·a court cannot require an applicant for the child's relocation to demonstrate compelling reasons for the relocation of a child's residence "contrary to the proposition that the welfare of the child would be better promoted by" maintenance of the existing circumstances.
At the conclusion of its decision in A-v-A (supra) the Full Court set out, in addition to the two above binding principles, the following guidelines to be applied in relocation cases:
·A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be permitted.
·The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child’s best interests.
·It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (1) of that subsection.
·The object and principles of s.60B provide guidance to a court’s obligation to consider the matters in s.68F(2) that arise in the context of the particular case.
The Full Court in the case of D and SV (2003) FLC ¶93-137 revisited the question of relocation and looked at what changes might be expected to the “parental relationship” with the non resident parent if the relocation was not prevented.
In D and SV the Full Court set out how the principles to be applied in

re-location cases have emerged. It seems to me that the distillation of those principles gives rise to the following:
(a)The guidelines set out in A v A; Relocation approach (2000) FLC
¶93-035 should be followed;
(b)The Court should not be restricted in its orders to those orders sought by the parties. If there are other orders which cater to the best interests of the children then, subject to the rules of procedural fairness, the Court should make such orders. See U and U (2002) FLC 93-112.
(c)Where the undisputed residence parent wishes to move the question to be answered is whether in all the circumstances it is appropriate to restrain him or her from being able to choose the children’s place of residence.
(d)In most relocation cases it is inevitable that the quantity and nature of contact with the non residence parent will change. As a result the “parental role” changes. The very important matter for the Court to consider is whether the nature, frequency and duration of contact which could be expected to occur following the proposed re-location is adequate to ensure the “core values” or “fundamentals” of the “parental relationship” are maintained. With some children the quantity and frequency (more particularly the reduction in quantity and frequency) of contact with the non residential parent will as a result of the relocation, be such that because of the developmental stage of the child or the particular make up of the child, the parental relationship will be damaged, perhaps irreparably .
(e)There may be other reasons why the Court would grant or refuse the injunction against the resident parent.
As referred to earlier the “parental role” is best described, “the means by which core values and behaviours are exchanged, and influence applied”. The “Parental relationship” is “the closeness or attachment between the children and the parent”.
In a decision handed down on the 14^th February 2007 Federal Magistrate Altobelli (formerly Professor of Law) considered in depth the impact of the Family Law Amendment (Shared Parenting Responsibility) Act 2006 on relocation cases. I here incorporate paragraphs 43 to 57 of his judgement M & K [2007] FMCA Fam 26:
“To complete this overview of the applicable law in the context of a parenting case that might result in relocation, it is necessary to consider a key concept found in the Act. In s 60B(1)(a), there is reference to the concept of “meaningful involvement”. In s 60CC(2)(a) the first of the primary considerations, there is reference to the concept of “meaningful relationship.” The concepts are probably the same in substance. In each case there is a strong link between the best interests of a child on the one hand, and meaningful involvement and meaningful relationship on the other hand. It may well be that absent abuse and violence, in order to rebut the presumption under s 61DA(4) some consideration needs to be given as to how a relocation impacts on meaningful involvement and meaningful relationship as these concepts are so clearly linked to the best interests of a child. In other words s 61DA(4) takes one back to s 60CC(2) with its emphasis on meaningful relationship. So what do these terms mean?
Parkinson discusses this in his article at pp184-185:
Section 60CC clearly indicates that the court should so exercise its discretion in relation to post-separation parenting arrangements that meaningful relationship between parents and children are maintained, in the absence of violence or abuse. A child will almost always benefit from a meaningful relationship with both parents in the absence of violence, abuse, or very high conflict. Where there is ongoing violence or intractable conflict, the interests of the child may best be served by restricting the contact with the non-resident parent or preventing it entirely. As a general rule, then, the primary considerations reflect the findings of a very large body of social science research on parenting after separation.
Having said this, 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.[1]
[1] Parkinson P. “Decision-making about the best interests of the child: the impact of the two tiers” (2006) 20 AJFL 179
It is also instructive to set out a footnote to the above passage:
On what constitutes a meaningful relationship see P Amato and J Gilbreth, “Non-resident Fathers and Children’s Well-being: a Meta-analysis”, (1999) 61 J Marriage & Fam 557. In a meta-analysis of 63 prior studies on parent-child visitation, Amato and Gilbreth confirmed that frequency of contact in itself does not appear to be associated with better outcomes for children. However, emotional closeness, and in particular, authoritative parenting, is highly beneficial to children. Authoritative parenting included helping with homework, talking about problems, providing emotional support to children, praising children’s accomplishments, and disciplining children for misbehaviour. The researchers concluded that “how often fathers see children is less important than what fathers do when they are with their children” (at 569). On authoritative parenting, see D Baumrind, ‘Authoritarian v Authoritative Control’ (1968) 3 Adolescence 255. The term refers to a style of parenting which is neither authoritarian nor permissive.[2]
[2] Ibid
It is interesting in the present context to note that the social science research emphasises emotional closeness and authoritative parenting more than frequency of contact, in terms of better outcomes for children. Arguably though, without frequent time between non-resident parents and their children, the emotional closeness and authoritative parenting cannot be developed. There are certainly shades of what the social scientists call “emotional closeness and authoritative parenting” in the definition of substantial and significant time in s 65DAA(3).
In C & G [2006] Fam CA 994 (6 October 2006) Bennett J considered the meaning of the benefit of a meaningful relationship. At paragraph 48 of Her Honour’s judgment she identified two possible interpretations. On one interpretation the benefit to the child of having a meaningful relationship with both of the child’s parents is taken as a given. On another interpretation, however, the court must evaluate the nature and quality of the relationship to establish whether any benefit or meaningful relationship exists. Bennett J preferred the second interpretation. I respectfully agree with Bennett J, for the reasons she states in her judgment. I add one observation in this regard – on my reading of the social science research, no assumption is made about benefits of meaningful relationships, though there is a strong inclination towards the existence of this in most cases. As Parkinson states: “A child will almost always benefit from a meaningful relationship with both parents.”[3]
[3] Ibid
Brown FM considered the meaning of “meaningful” in the context of s 60CC(2) in P & P [2006] FMCA Fam 518 at paragraphs 256-258:
In the context of section 60CC(2)(a), the use of the word “meaningful” by the legislature is interesting. The ordinary definition of “meaning” and “meaningful”, when it is attached to an idea or some object, is denoting of the significance or importance of that idea or object. It seems clear that the court is only to consider whether a relationship is “meaningful”, to the child concerned, after it has assessed the benefit or advantage such a relationship will bestow on the child concerned. Accordingly, it seems clear that the legislature intends the court to consider the significance of the child concerned having a relationship with both his or her parents in a positive or beneficial sense.
The practical underpinning of how a relationship for a child with one or either of his or her parents is to be rendered “meaningful”, in the context of a parenting order, is provided by section 65DA. The emphasis is on time, but not merely on the extent of that time, but rather on its quality and the manner of its utilisation with the child or children concerned. In this context, the court is to consider the parent concerned spending time that falls on weekends; holidays; weekdays; and perhaps most importantly, time that allows that parent to be involved in the child’s daily routine and occasions of particular significance, both to parent and child.
The rationale of section 65DAA is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flows from them being exposed to their parents in a variety of settings. These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting; as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in more mundane situations. In this way, the child is likely to have a more balanced and so richer relationship with the parents concerned.
His Honour correctly links the concept of “meaningful” to s 65DAA, and points out both the quantitative and qualitative aspects of it. I will add my own observations about the concept of meaningful involvement or meaningful relationship. It is a multi-faceted concept, spanning more than one dimension. For example, as Brown FM correctly points out, it is both quantitative and qualitative in nature. The concept is not a “one size fits all” concept. What is “meaningful” to a baby, toddler, school-age child and teenager may, indeed probably will, be different in each case. The concept needs to not only take into account the capacity, developmentally and otherwise, of a child to receive the benefits of meaningful relationships and involvement, but the capacity of a parent to actually provide the same as well. Accordingly, the concept also takes into account the history and quality of the relationship between parent and child, and the quality of parenting. The past and present are often the only reliable indicators of the future.
Relocation cases raise all of these issues. These are difficult cases to decide. Brown FM in P & P [2006] FMCA Fam 518 succinctly describes some of these difficulties when he said at paragraph 21 “there is no satisfactory outcome in this case. The various options available cannot be manipulated like the surface of a Rubik’s Cube to reach a perfect result.” He goes on to say:
If I make the orders the father wishes, T will continue to see him regularly, but the mother will be unhappy and frustrated at this outcome. She is likely to feel bitterly disposed towards Mr P. Her level of frustration and unhappiness may have implications for her future psychological health and her capacity to parent T to the full extent of her potential.
If I make the orders the mother wishes, T will loose the opportunity to have regular interaction with his father, because he will be living far away from him and the father will be upset and sad at the separation. In addition, arrangements for T to spend time with his father are likely to be limited and difficult. The parties’ currently disastrous financial situation will stand in the way of T being able to spend frequent periods of time with his father. There may well be difficulties in T maintaining a relationship with his father, through the telephone or other electronic means, given his level of language skills. As a result of these factors, T may feel that his father is not an integral part of his life and, as a result, the paternal relationship between T and his father may not be as warm and spontaneous, as it might otherwise have been.
Regardless of the outcome in this case, one or other of the parties will feel hard done by. In either case, the consequences of the problem and its resolution may well be a source of continuing bitterness between the parties, one of whom will almost certainly feel harshly treated. I say this at the outset because I think it right to acknowledge and express my regret for the inevitable distress the resolution of this problem will bring, whatever the outcome. I hope that the parents will each cope with the situation as well as possible, so that the difficulties for T will be minimised and his relationships with each of his parents maintained, as well as the circumstances permit.
Relocation cases are invariably very difficult for all concerned, involving as they do two competing and irreconcilable claims of right. These claims of right arise when the parents of a child have separated and for legitimate reasons wish to take different directions as to where they will live in future. On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual, separate from the other parent concerned. On the other hand, it is the right of a child to maintain a meaningful relationship with both his or her parents, in the now changed circumstances of his or her parents’ separation.[4]
[4] P & P [2006] FMCA Fam 518 at 21.
Many of these difficulties are present in this case. A closing thought in this overview of the law post 1 July 2006 deals with the role of the freedom of movement consideration in relocation cases. Is it time to reconsider the significance of freedom of movement after the Shared Parental Responsibility amendments to the Act?
Brown FM articulates the freedom of movement argument, and the dilemma it creates in relocation cases, in these terms at paragraph 13 in P & P:
Australia is a free and democratic society which prizes the rights of its citizens to live where and how they choose. At the same time, children have a right to maintain and develop relationships, within their families, which are likely to be significant to them, both in the short and long term.[5]
[5] P & P [2006] FMCA Fam 518 at 13.
The fourth general proposition enunciated by Kirby J in AMS v AIF relates to freedom of movement. It states:
Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.[6]
[6] (2002) FLC 93-112
It is important to note that Kirby J described freedom of movement not as a right, but rather a “freedom” to which society attaches high importance. Be that as it may, Kirby J reminds us that relocation cases are to be decided by reference to the “touchstone” being “the welfare or best interests of the child and not, as such, the wishes and interests of parents.” It seems that if there is to be a hierarchy of considerations in determining relocation cases, in that hierarchy notions of freedom of movement must be subsumed to the best interests of the child. The Full Court in A v A[7] expressly acknowledged this when it states at p 87 552 that “the ultimate issue is the best interests of the child and to the extent that the freedom of movement impinges upon those interests then it must give way.”
[7] A v A: Relocation Approach (2000) FLC 93-035
In U & U,[8] the majority judgment again addresses the freedom of movement issue, at pp 89 090-1. In the majority judgment their Honours observed as follows:
[8] U and U (2002) FLC 93-112
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… ‘Contact’ with both parents is desirable and important. So too is the presence of a ‘stress-free environment’ for the child, to the extent of course, that it is possible for it to exist in a fractured emotional relationship. It is unlikely that many of such situations will admit of perfect solutions.… The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.”[9]

It may be unfortunate, perhaps, that the majority described freedom of mobility as a right, thus creating the expectation in some litigants that it is a right that can be enforced by the courts exercising jurisdiction under the Family Law Act. It clearly is not an enforceable right in this context. But, as the High Court again clearly articulates, whatever the status to be given to freedom of movement – “it must defer to the expressed paramount consideration.”
It is possible that in some cases the notion of freedom of movement on the one hand, and the paramount considerations of the child’s best interest on the other hand, have been put in the metaphorical balance which occurs as judgment is being exercised in these very difficult cases. If that is the case there must be serious concern about putting such different notions “in the balance.” It is more akin to comparing apples to oranges, than apples to apples. Indeed, there is no comparison because the High Court and the Full Court have repeatedly stated that the notion of freedom of movement defers to the paramount consideration of the best interests of a child. There is a place for considering freedom of movement in the difficult exercise of judgment that occurs in relocation cases. However, the consideration is not a weighty one. Far more weight must be attributed to the expressly articulated considerations referred to in s 60CC, than to the unarticulated interest of the parent’s’ freedom of mobility that has somehow crept into the Part VII exercise of judgment. If the legislature had intended to somehow elevate parental mobility to an equivalent status with the existing considerations in s 60CC it could have done so. Clearly the post 1 July 2006 amendments do not. Some may regard this as harsh and disappointing. Some might say that it disregards the clear statistics indicating that the Australian population as a highly mobile one.[10] Nonetheless, the Family Law Act is silent about a parent’s freedom of movement. Indeed, arguably the Act imposes a fetter that did not exist before 1 July 2006 by saying that shared parental responsibility carries with it the obligation to make decisions jointly, and to consult and make a genuine effort to come to a joint decision, in relation to major long-term issues: s 65DAC. The definition of major long-term issues in s 4(1) includes issues about changing the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

The High Court identified in AMS v AIF and AIF v AMS[11] that parenthood has always had an impact on the wishes and mobility of parents. It is not just freedom of mobility that is affected by parenthood – many other personal freedoms are likewise affected. Family law in its broad sense already recognises that parenthood carries with it responsibilities irrespective of the nature of the relationship between the parents of the child. For example there are obligations to financially provide for the children. Howsoever one might have perceived a person’s freedom to deal with their finances as they wish before parenthood, once they become a parent it is an unquestionable incident of parenthood that that very same freedom is not just curtailed, but converted into a legal obligation. Can’t the same be said for freedom of mobility? In any event, to describe it as a “freedom” is, in my opinion, highly problematic. The emotive use of the word itself tends to assert a certain superiority and precedence over other obligations in a context where there is no objective basis for it. It would be equally emotive and problematic to reconceptualise the notion of freedom of movement into the freedom to disrupt the relationship between child and parent. And that is one reason why contemporary Australian family law asserts the primacy of the best interests of the child, even in parenting cases where the proposal of one of the parties involved relocation.”
[9] U & U (supra) at 89,090-1
[10] See, for example, “Discussion Paper on Relocation” (Family Law Council, February 2006) at paragraphs 1.1-1.3 and the April 2006 HILDA survey “Families, Incomes and Jobs: A statistical report of the HILDA survey” which is discussed briefly in the Editorial in (2006) 20 AJFL 113-114.
[11] [1999] HCA 26

It seems to me that FM Altobelli clearly outlines the complexities now being faced by trial Judges. It is necessary to integrate into a reasonably well understood line of authority flowing from the Full Court of the Family Court of Australia relating to re-location cases the amendments to the Act which became effective in July 2006.
I have highlighted in the above set out quotation FM Altobelli’s attempt at defining “meaningful relationship” as used in section 60CC(2)(a). It seems to me that the discussion surrounding the meaning of the words is a good one and I agree with his interpretation.

Considering the guidelines development by the Full Court

(a)The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child’s best interests.

The Mother’s Proposal

The mother’s proposal is that she and the children will reside in Queensland with Mr W. Mr W is now there having taken up his posting at the end of last year.
The mother proposes that the children will spend time with their father during school holidays, for half of public holidays where the holidays do not fall in school holidays or are attached to weekends and by telephone. She also proposes the father will communicate with the children via mail and webcam. The telephone time is to be at all reasonable times. She also proposes that the father have time with the children if he is able to travel to North Queensland.
The mother says that the cost of the transport for the children is to be shared equally by the parties.
The advantages and disadvantages to the children of this proposal
I here set out in dot point the advantages which I can identify from the evidence:
·The children will live with the parent who has been their primary carer throughout most of their lives.
·The mother will be living in a domestic relationship with her chosen partner Mr W.
·The mother should be expected to be happy and contented about living in Queensland with Mr W.
·If the mother still carries concern for her personal safety in coming into contact with the father then she is likely to feel more secure living a considerable distance from him.
·The mother knows some defence forces families who have moved to North Queensland and will therefore have some community support.
·The children know some other children who have moved to North Queensland.
·The children will probably be able to spend time with their father in his home four times a year during school holidays.
The disadvantages to the children of the mother’s proposals are identified as follows:
·The children will not see their father as frequently as they do now. Not only is the frequency important here but also the range of week days (school days) as well as weekend time. This gives the children the opportunity to have their father experience their school day activities, homework, friendships, extracurricular activities and sporting participation. This type of involvement by a parent in all aspects of a child’s life has impact on the connectivity between child and parent and at the very least provides an opportunity for the child to be able to talk to the parent about a significantly increased range of topics because the child knows the parent understands who is being discussed and/or the physical environment about which the child might wish to talk.
·There is risk that the son’s parental relationship with his father will be damaged. To a lesser extent the same risk is present for the daughter. One question to be determined later by me is the extent of that risk.
·The children’s father will be very distressed by not being able to see them frequently and be a more functional part of their lives. The father has already experienced depression of some form following the breakdown of the marriage. This is referred to in the Family Report however there is no medical evidence to confirm clinical depression as a diagnosis. The father said that he received treatment from an army medical officer (or similar) which he understood to be either a psychiatrist or psychologist. His evidence suggests that he received quite intensive treatment.
·The children will need to change schools. The father highlights this because, in particular, the son has had reading difficulties and has received the benefit of a special reading program within his school. Both children have connection with the school and its environment and appear happy and contented with the school as indeed are the parents.
·The children have established extra curricular activities. In particular the daughter participates in dancing.
·The children have friends at school and where they live with each of the parents.
·As identified by the Family Consultant, the move will mean both children have to make yet more adjustments when they have just begun to settle down after a year of upheaval.
·The children have developed a good relationship with Ms E’s children and will not see them as frequently if living in Queensland.
·The children will experience lengthy travel arrangements to pass from their mother’s care to that of the father and likewise on return to the mother.
·The children’s time with their father may be diminished below that proposed by the mother if the parties’ financial circumstances do not stretch to afford the airfares necessary to implement the mother’s proposal.

The father’s proposal

The father’s proposal is that the children would remain living where they are. They would have their care shared between the parents. Basically the current arrangement would stay in place with the exception that the children would have one additional overnight stay each week with their father. During school term the children would spend seven nights per fortnight with their father. This would be an equal shared time arrangement for the children. Ms E would assist the father in caring for the children and she would be required to supervise the children for about 10-14 hours per week because of the father’s work commitments. I should add at this stage that if the mother continues to work, which she anticipates she will, she will probably at some future time require assistance to care for the children before or after school.
The advantages and disadvantages to the children of this proposal
I here set out in dot point the advantages which I can identify from the evidence:
·The children would be able to share equal time with each parent.
·The children would have each parent participating in every aspect of their lives.
·The children will remain at their present school and retain their friendships and connections in a school which both parents seem happy with.
·The children will be able to progress their relationship with Ms E and her children. Ms E’s children will probably become step siblings of the children if they are not already.
·The children will be able to continue their extracurricular activities with the groups they participated in last year.
The disadvantages to the children of the father’s proposals are identified as follows:
·The mother would stay in Sydney and not join Mr W in Queensland. She will be very unhappy about that circumstance. This may then affect her parenting capacity.
·The children have not experienced living with their father for shared equal time. They may find the separation from their mother for that additional day each week difficult to adjust to at first.
·The increased time will place additional burden on Ms E in caring for the children. She will be required to play a significant part in the care of the children and in their transport.
·Mr W will not be a full time member of the mother’s household a circumstance the children have grown used to. It is anticipated they will miss his company.

·The mother may have to leave the accommodation she and the children have lived in since about 2005 and this is likely to be disruptive for the children. This possibility exists because the accommodation occupied by the mother and the children is rented by the defence forces and is available at a subsidised rent to Mr W. He has said in his oral evidence that if the mother was not able to move to Queensland then he would ensure she is able to live in the house. The mother had said in her oral evidence she would not wish to continue to reside in the house as Mr W will need a house to reside in when his children visit him in Queensland.
·Mr W’s attitude to the father may become more negative because of the impact these proceedings will have on his plans for a relationship with the mother.
·The relationship between the mother and the father may become more strained because of the mother’s unhappiness caused by her inability to move to Queensland.
·The mother has given up her employment in Sydney and will need to find other employment. Until that happens there is likely to be an impact upon the lifestyle being offered for the children in the mother’s household.

The mother’s alternative proposal

If the mother is unable to move to Queensland she proposes that the current arrangement for the care of the children continue. She does not propose any additional time for the children with their father at this time.

The advantages and disadvantages to the children of this proposal

The advantages and disadvantages are likely to be similar to those detailed in relation to the father’s proposals above. There will however be likely to be some further matters to be considered. I here set out those matters:
·The mother may be less adversely affected by being restricted to residing in Sydney contrary to her wish to live in North Queensland.
·The children will continue in a pattern which has proven to work well for them.
·The father will no doubt be unhappy about the restriction in time and have difficulty in understanding why the children can’t share equal time with him.

The Court should not be restricted in its orders to those orders sought by the parties. If there are other orders which cater to the best interests of the children then, subject to the rules of procedural fairness, the Court should make such orders. See U and U (2002) FLC ¶93-112 Bolitho v Cohen (2005) FLC ¶93-224.

I am required to consider whether there would be any other order which could be made other than selecting one of the party’s proposals and making orders pursuant to that proposal.
This heading calls for a consideration firstly of section 65DAA(1) of the Act. I am required in this case because I propose to make an order for the parents to have equal shared parental responsibility for the children, to consider whether the children spending equal time with each of the parents would be in their best interests. I am also required to consider whether equal time would be reasonably practical. If it is I am to consider making such an order.
If I decide it is not in the children’s best interests to make an order for equal shared time with each parent I am to consider whether the children spending substantial and significant time with each parent would be in their best interests. I am also to consider whether such an order would be practical and if it is consider making such order.
Substantial and significant time is defined in subsection 3 of 65DAA.
In determining that an order is “Reasonably Practical” I must consider the matters set out in sub section (5) of section 65DAA.
In this case I conclude it would not at this time be in the children’s best interests to have shared equal time with each parent, however, I conclude it will be in the children’s best interests at a future time for this to happen. Because of the practical aspects of implementing an order for shared equal time if the mother is living in Queensland it is not appropriate to consider an order to that effect unless the father moves his residence to Queensland. Should he live in Queensland then I would see it as in the children’s best interests to live with the parents on an equal shared time basis after a graduating introduction.
If the mother does not take the children with her to live in Queensland then I conclude it is in the children’s best interests to move to an equal shared time but not immediately. I conclude it would be better for the children to have orders which increase the time they spend with their father by one night at the end of the first school term and by another night at the end of the second school term. This should give the children and mother an opportunity to gradually adjust to the increase of time they spend with their father to a point where they will spend equal shared time. Weighing up all the matters referred to by me in these reasons I conclude that the balance falls in favour of an equal shared time for the children to spend with their parents.
In relation to section 65DAA(5) I find that:
(a)If the mother lives in Queensland then the parties will live a very great distance apart. If she remains living in her current accommodation then the parties live in close proximity to each other. Presently the children are able to attend the same school from each parent’s house without any hardship.
(b)If the mother lives in Queensland the parties will not be able to have an arrangement which sees the children living equal time with each without unacceptable disruption for the children. The only possibility would be year about. That would mean the children changing schools each year where the different States currently have different curriculums and different holidays. This would be too disruptive in my opinion. If the mother remains living in her current accommodation in Sydney then it is practical for the children to share equal time with the parents.
(c)The parents’ capacity to communicate is reasonable and improving. I am confident they would be able to discuss and agree on arrangements for the children in the event of any difficulties arising for the children from the shared time arrangement. I doubt if either party would find it easy to agree to a lessening of time they each spend with the children.
(d)The impact of an immediate equal shared time arrangement for the children has been discussed by me earlier in these reasons. It seems to me that if there is to be equal shared time it should occur on a gradual basis over the space of a couple of school terms.
To the extent that it is necessary to consider other alternatives to the orders proposed by the parties the only area I can think of possible alternate orders is to increase the time the children spend with their father during school holidays if they were to live in Queensland. This was a matter recommended by the Family Consultant. I could order that the children spend all or almost all of their school holidays with their father. Such an order does carry a down side for the children in that it would not give them any holiday time with their mother as canvassed under this heading. I could order the mother to provide the children to spend time with the father in Sydney for a long weekend in the middle of each school term however that would necessarily involve additional cost for the parties and I am concerned it would put excessive demand on their budgets and potentially not occur. Additionally it would mean time out of school for the children. It would, no doubt, be tiring for the children to be involved in the lengthy travel involved.

If the children live in Queensland with their mother I am unable to think of other orders (in addition to those proposed by the mother) which might be in the children’s best interests and viable.

Where the undisputed residence parent wishes to move the question to be answered is whether in all the circumstances it is appropriate to restrain him or her from being able to choose the children’s place of residence.

The children in this case have had the majority of their primary care come from their mother during their lives to date. That is not to say the father has not played an important and significant part in their lives. He has embraced his responsibility as a father during 2006 to a point where it really is difficult to clearly describe the mother as the “undisputed resident parent”. I have found that in this case it is appropriate for the parents to have equal shared parental responsibility for the children and for them to have equal shared time with the children, albeit gradually increasing from the current arrangement by one additional night per fortnight to the father at the conclusion of school term one this year and another additional night per fortnight at the end of term two this year. At such time the children will be living in an equal shared time arrangement between their parents. In such circumstances I would have to conclude that within six months there will not be an “undisputed resident parent” if there be one now.
If there is not or shortly would not be such a parent then it seems to me that this consideration cannot be given great weight or importance. Were it not appropriate from the children’s perspective to make an order for equal shared time then the situation would be different.

Any other reason the Court might have to restrain the resident parenting re-locating the children’s physical residence.

There is no other matter which needs to be canvassed under this heading.

Conclusion

Drawing all the abovementioned matters together I have concluded it would not be in the children’s best interests to move to Queensland. Were the children older their might be a different conclusion to draw.
The decision is not easy to reach and the balance in favour of the children not moving to Queensland with their mother is a fine one. The down side of the decision for the children is the impact upon their mother of the decision. It will mean as, discussed earlier, that she will not in the near future be able to live on a full time basis with Mr W. There are other disadvantages for the children as outlined in these reasons.
The decision will, in my view, permit the children to have a “meaningful relationship” with each of their parents as envisaged by the words of the Family Law Act discussed in these reasons. If I am in error in relation to the meaning of the words “meaningful relationship” as used in the Act then I trust that in due course the Full Court will have an opportunity to consider the words either in this case or another and provide some assistance to trial judges.
I propose to make orders which will see the children gradually increase their time with their father to one of equal shared time. I consider in this case that will be in their best interests. Given the nature of the relationship between the children and their parents and given the parents adequate and comparatively similar parenting capacities and styles the children should benefit from such an arrangement.
In relation to the disadvantages identified by me as flowing to the children if the mother was not permitted to take them to Queensland with her and required to stay in Sydney and live equal time with each parent I consider the following to be relevant.
(a)Mr W is committed to the continuation of his relationship with the mother whether she lives with him in Queensland or not. He receives 4 free trips to Sydney each year as part of his employment. Subject to resources the mother would be able to spend time with him in Queensland during school holiday times when the children are with their father. She may also be able to have the children travel to Queensland with her on some occasions.
(b)I am sure the children will quickly adapt to spending additional time with their father, Ms E and her children. The additional time with their father may well shield them from the consequences of the mother’s disappointment in not being able to move to Queensland.
(c)Having seen Ms E in Court and heard her evidence I think she is a very capable person. I have little doubt she will be able to take on the additional responsibility that the orders of the Court will impose on her.
(d)If the present accommodation ceased to be available to the mother I accept she may have to move to an area where the rental would be affordable. I do not have a concern that the mother may not be able to find affordable rental reasonably proximate to the father’s accommodation and thereby continue to be able to have the children attend a school agreed to by the parties and sufficiently close to each residence to allow for the continued shared equal time. In one of the messages left by Mr W on the father’s telephone (and admitted by Mr W) there was a threat that the mother might remain in NSW but move her residence a considerable distance from the father’s residence. I would caution the mother against such a course of action.
(e)The mother has given up her employment. It seems that the mother had indicated her intention to move to Queensland at the time that her contract was the subject of review. The mother has been an apparently valued employee. Her evidence is that her employer had offered to assist in obtaining employment for the mother in Queensland. In such circumstances it must be reasonably predictable that the mother will be able to find other alternate employment in the near future.
(f)The mother’s relationship with the father has been a beneficial relationship for the sake of the children at least during 2006. Each parent has made it possible for the children to have them both present at functions such as concerts and sporting events. The parents are to be congratulated in being able to do this. If the mother now takes the view that her inability to move to Queensland is all the fault of the father would be wrong. The reason for her inability to take the children to Queensland is multifaceted and it was wrong of the mother to think it was her right to take the children with her irrespective of the father’s wishes, if she held such a view. Perhaps she was influenced by Mr W stated view about these matters as appears in the telephone message left by him for the father.
In reaching my decision in this matter I consider the potential for the parental relationship between the son and his father to be damaged given his age, developmental stage and the number of times each year that the he will probably be able to have face to face time with his father is too high. To a lesser extent, because of the reasons stated by the Family Consultant, I hold concerns for the continued undamaged parental relationship between the daughter and her father. If the parental relationship is damaged then in my opinion the children will not be having a meaningful relationship with their father. They will be having something less than that. They may well still have a relationship with him, however, it could not be called “meaningful” within the meaning of that word as used in Part VII in the amended Act.
Weighing up the competing proposals of the parties it seems to me that the children have more to gain from the father’s proposals than those of the mother. Further, it appears to me, that the disadvantages of the mother’s proposals, as identified in these reasons, would be far reaching and destructive to the children’s development if they came to fruition. I conclude that the disadvantages in the mother’s proposals are potentially more damaging to the children than the disadvantages of the father’s proposals.
I propose to order that each party not change the residential address of the children without first giving two months notice in writing to the other parent. I also propose to order that the parents not change the children’s school unless they agree jointly upon the school the children should thereafter attend. These are orders which are sought by the father. Both these orders are seen as necessary precautions given that the mother in this case had decided to change both the children’s residential address and school without the consent of the father. Such a move must be seen as a breach of the requirements of joint responsibility for the long term care of the children and certainly contrary to an order for joint shared care and parental responsibility.
I propose to make orders to require the parties to agree on extra curricular activities for the children and the sharing of cost for same. I also propose to make broad orders requiring the parents to ensure their children spend time with each of them on the children’s birthdays and at Christmas. The children should, within reason be able to participate in other special family events.
The combination of all the orders made by me are assessed by me to be in the best interests of the children at this time.

I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate:

Date: 23 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as BLAIR & BLAIR

[2007] FamCA 253

23 February 2007

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