BODILSON & GILBERT

[2018] FCCA 401

FEDERAL CIRCUIT COURT OF AUSTRALIA

BODILSON & GILBERT [2018] FCCA 401

Catchwords:
FAMILY LAW – Interim parenting – relocation – final orders in 2017 for equal shared parental responsibility – mother moved to Queensland with children in face of father’s opposition to such relocation – father sought order for children’s return to vicinity of previous residence.

Legislation:

Family Law Act 1975, ss.60CC, 61DA, 65DAA, 65DAC, 106A

Cases cited:

Goode v Goode (2007) 36 FamLR 422

Keats & Keats [2016] FamCAFC 156

Malcolm & Munro (2011) FLC 93-460
Morgan & Miles (2007) FLC 93-343

Marvel & Marvel [2010] FamCAFC 101

Applicant: MR BODILSON

Respondent: MS GILBERT

File Number: PAC 1787 of 2015

Judgment of: Judge Obradovic

Hearing date: 14 February 2018

Date of Last Submission: 14 February 2018

Delivered at: Parramatta

Delivered on: 28 February 2018

REPRESENTATION

Appearing for the Applicant: Ms Shuttleworth

Solicitors for the Applicant: McLachlan Thorpe Partners

Appearing for the Respondent: In person

PENDING FURTHER ORDER

1. The mother shall within 72 hours of the making of these orders cause the return of the children [X] born (omitted) 2008, [Y] born (omitted) 2009 and [Z] born (omitted) 2012 to the father.

2. Orders 2 and subset 3 and 4 of the Final Parenting Orders made 27 February 2017 be suspended.

3. Pending the mother providing evidence to the father that she has secured accommodation within New South Wales suitable to house the children, the children shall live with the father and spend time with the mother within New South Wales as agreed in writing or failing agreement as follows:

   (a)Each third weekend from 9am to 5pm Saturday and from 9am to 5pm the immediately following Sunday, with the mother to collect the children from the father at the commencement of her time, and return the children to the father at the conclusion of her time.

4. In the event that the mother provides evidence to the father that she has secured accommodation in New South Wales suitable to house the children, that the children live with the mother and spend time with the father as agreed in writing and failing agreement as follows:

   (a)From after school each alternate Thursday at 3.15pm until 9am before school on the following Monday;

   (b)For the first half of the term 1, 2, 3 and Christmas school holidays in even numbered years, and the second half of the term 1, 2, 3 and Christmas school holidays in odd numbered years;

   (c)For the purpose of order 4(b) the school holidays commence the day immediately after the last day of school for the term and all changeovers will take place at 9am;

   (d)From 6pm on Easter Thursday until 6pm on Easter Saturday in even numbered years and each alternate year thereafter; and

   (e)From 6pm on Easter Saturday until 6pm on Easter Monday in odd numbered years and each alternate year thereafter.

5. For the purpose of changeover on a school day the father shall pick up the children from the children’s school at the beginning of his time and deliver the children to their school at the conclusion of his time.

6. For the purpose of changeover on a non-school day changeover shall occur at (location omitted) at the nominated times.  

7. The mother is restrained from removing the children from within New South Wales without the written consent of the father.

8. The mother is restrained from discussing any aspect of these proceedings including her proposed relocation with the children, or within the hearing or presence of the children.

9. Both parties are restrained from changing the children’s school enrolment from (omitted) Primary School, and both parties are to do all things and sign all documents necessary to ensure the children’s continuing enrolment at that school.  

10. List the matter for directions at 11.30am on 1 June 2018.

11. The father’s costs of an incidental to the Application in a Case filed 12 January 2018 are reserved.

THE COURT NOTES THAT:

A.In the event that the mother fails to comply with order 1 above then a Recovery Order may issue for the return of the children to the father’s care.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1787 of 2015

MR BODILSON

Applicant

And

MS GILBERT

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are interim parenting proceedings for the return of the children from Queensland to New South Wales. While it is unusual and more often than not inappropriate to make findings of fact at an interim hearing stage, the circumstances of this matter are such that a number of factual findings are irresistible.

2. Final parenting orders were made in this matter on 27 February 2017 (“Final Orders”), concerning the children:

   a)[X] born (omitted) 2008;

   b)[Y] born (omitted) 2009; and

   c)[Z] born (omitted) 2012.

3. The Final Orders provided for the parents to have equal shared parental responsibility, for the children live with the mother and spend time with the father each alternate week from after school on Thursday to before school on the following Monday. The children, pursuant to the Final Orders, were also to spend time with the father for one half of all school holidays.

4. On 8 January 2018 the mother relocated with the children to Brisbane, Queensland. An urgent application as filed by the father seeking orders for the return of the children to Sydney, New South Wales. Even though the father’s application which was filed on 12 January 2018 sought for the matter to be listed at short notice the first listing of that application was on 14 February 2018, when the Court heard the application.

5. It is important to understand the chronology of the parenting proceedings in order to fully appreciate the circumstances in which the mother made the unilateral decision and surreptitiously moved with the children to Queensland.

6. The Final Orders were made in respect of parenting proceedings which were commenced on 21 April 2015 in the Family Court of Australia. The first return date of the father’s then Initiating Application was 10 August 2015. It is clear from the Court file that the mother had from the commencement of those proceedings made her intention of moving to Queensland with the children known to the father and to the Court. The father has at all times opposed such relocation.

7. After the transfer of the matter to the Federal Circuit Court and when the matter was first listed before Judge Harman on 13 October 2015, an order for a Family Report was made, with the proposed relocation being front and centre of the issues before the Court. Also on that date, interim orders were made by consent for the children to spend time with the father from after school on Thursday to before school on Monday each alternate week, half of the short school holidays and a block period during the Christmas school holidays. At the time of the making of these Orders the children were 6, 5 and 3.

8. The Family Report was released on 30 August 2016. Mr B, who interviewed the parties and the two older children said as follows:

   Both [X] and [Y] express a preference to spend more time with their father than they do currently. Their wish to spend equal time with both parents does not appear to be primarily the result of their need to be fair to both parents or of coaching by Mr Bodilson. Rather, it seems to stem from their attachment to their father and the enjoyment they derive from his involvement in their lives. The sheer tyranny of distance resulting from their move to Brisbane would limit the frequency with which they could spend time with their father. Ms Gilbert's proposal that they could continue to spend alternate weekends with him is very likely impracticable in the long term, particularly if Mr Bodilson begins another relationship. It is noted that Ms Gilbert proposes a generous holiday arrangement for the children to be with their father. However, her insistence that he take time of work when the children are with him is unrealistic in light of his current work commitment.

9. The children have been spending consistent time with the father pursuant to Court orders since October 2015, which continued in the same manner after the making of the Final Orders and until the mother unilaterally relocated with the children to Queensland on 8 January 2018.

10. On 8 November 2017 the mother filed an Initiating Application seeking orders as follows:

    a)Final orders sought:

    1.   That the mother be granted full Parental Responsibility.

    2.   That the mother be granted permission to relocate to her home town of Brisbane QLD with her partner and the three (3) children.

    b)Interim Orders

    1.   That the mother be permitted to relocate back to her home town of Brisbane QLD for the birth of her child, accompanied by her partner and three children.

11. On 4 December 2017, pursuant to s.106A of the Act, Registrar Bartlett signed a school enrolment form for [Z] to attend (omitted) Primary School[1], the same school which [X] and [Y] had attended since their schooling commenced.

    [1] In Sydney

12. That Initiating Application was first returnable on 14 February 2018.

13. The father filed his Response on 12 January 2018, seeking both interim and final orders for the dismissal of the mother’s application and costs.

14. The mother gave birth to her fourth child, whose father is the mother’s current partner Mr M, on 20 January 2018. At interim hearing the mother submitted to the Court that:

    a)Mr M has been unemployed since May 2017 and he was unsuccessful in finding suitable employment in Sydney;

    b)Mr M was offered a job in Brisbane which he started in January 2018. It was not a job which he applied for but a job which his father offered him;

    c)Mr M had lived in Sydney his whole life prior to the move to Brisbane.

15. The mother currently lives with Mr M and her four children, with her extended family in Brisbane. She deposes that prior to the move their financial situation had become extremely strained and forced them to end their lease early due to financial hardship. The mother is silent on when she terminated her lease. She is also silent on the detail of her income and expenditure, making her assertion about financial hardship difficult to understand and give weight to.

16. Certainly as at the date of swearing her Affidavit on 8 November 2017, the mother deposed to living in rental accommodation in Sydney. It is clear from that Affidavit that she wanted to move to Brisbane by the end of December 2017 - before the birth of her child and so she could “finalise school enrolment forms”. The mother was seeking the Court’s “permission to be allowed to relocate to Brisbane with the children.”

17. As at the date of the interim hearing the children have not spent any time with the father since 1 January 2018. They were due to spend time with the father for the second half of the Christmas school holidays just gone[2], namely from early to late January 2018. They did not do so because the mother refused it. Instead she moved over 900 kilometres to a different State with the children.

    [2] Being the second half of the school holidays in odd numbered years, 2017 being an odd numbered year and the school holidays at the conclusion of the fourth school term being the Christmas school holidays.

18. The mother’s texts to the father surrounding the debacle around the 2017/2018 Christmas school holidays are telling of her lack of insight into the children’s relationships with the father and also of putting her own needs above those of the children. The father’s tone in the text messages is at times inappropriate:

    Father: Christmas holiday 2017. Confirming you have the first half this year. 15^th December (las [sic] day of school your weekend away) until 7^th January. I have then from 7^th January until they commence school.

    Mother:  Incorrect. Court Order states you have the first half.

    Father: We alternate Christmas. I had the children last year! And I had them NYE. This year it’s YOUR Xmas and nye. …

    Mother: Sorry, you were talking about the holidays. Yes of course I get them for Xmas this year but you get the first half of the holidays and I get the second half cos I have organised family break around that. Thank you. And New Years, sorry.

    Father: That’s (sic) doesn’t make senses (sic). What I’ve written is correct! First half you which covers Xmas and nye, second half me. I’m not having the kids some days, giving your(sic) Xmas and having them back then handing over again [emoji]take it or leave it. I’m done with your constant efforts to be difficult.

    Mother: I’m not being difficult and you don’t have the luxury of choice, neither do I. We both adhere to the orders and this is what I have done and organised my break from work (which was hard to get) and time with the family around. It’s very easy and simple.

19. The mother said in her Affidavit filed in November 2017 that she was “unable to work” because she was expecting her fourth child at the beginning of February yet her text message to the father noted above refers to her having to obtain time off work. The mother also insists that the parties have to “adhere to the orders”. She was and remains clearly aware that there are Final Orders in place. The fact that the mother seems to misinterpret the orders for her own benefit is a different matter.

20. In the face of the Final Orders, the mother’s unilateral move has made compliance with orders impossible, such that not only do the children no longer spend time with the father in accordance with those orders, but they have not spent any time with the father for approximately six weeks.

The Law

1. The Court, in determining this application, has to consider what orders are in the children’s best interest. In determining what is in the children’s best interest, the Court must consider the matters set out in section 60CC of the Family Law Act1975. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interest of the children. In applying the primary considerations, the Court is to give greater weight to the considerations set out in paragraph 60CC(2)(b). In addition, in considering what order to make, the Court must, to the extent that it is possible to do so, ensure that the order does not expose a person to an unacceptable risk of family violence. The Act does not mandate the discussion of considerations under section 60CC in any particular order, and it is well recognised that additional considerations may outweigh the primary considerations.

2. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests. In the interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.

3. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provides for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the children’s best interest and reasonably practicable, then the Court must consider the children spending substantial and significant time with the parents.

4. Section 65DAA is expressed in imperative terms. The Full Court in Goode & Goode[3] mandated that this legislative approach must be followed in all parenting cases and, in particular, set out the procedural steps to be followed on an interim application noting that in interim proceedings, there may be little uncontested evidence to enable more than a limited consideration of these matters to take place. 

   [3] (2007) 36 FamLR 422, (2006) FLC 93-286

5. In Marvel & Marvel[4], the Full Court made the following obiter comments. 

   As has frequently been emphasised, interim parenting proceedings and orders made as a consequence are a necessary, but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders.  Decisions judicial officers have to make in interim proceedings are difficult, and often, for very good reason, a conservative approach or one which is likely to avoid harm to a child is adopted.  This is often to the understandable distress of a party who may not achieve the outcome he or she desires or thinks to be in the children’s best interests.  Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at final hearing… 

   [4] [2010] FamCAFC 101 at [120]

6. In Keats & Keats[5], the Full Court held in respect of the conduct of interim proceedings:

   …that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on the children in the event that a controversial assertion is acted upon or rejected.

   [5] [2016] FamCAFC 156 at [9]

7. Relevantly to the current application, in Morgan & Miles[6], Boland J made a number of very important and appropriate, to this instance, both obiter comments and matters which were subject of the ratio of that case in relation to what are frequently termed interim relocation applications.  Starting at paragraph 55, her Honour stated as follows:

   On one reading of the submissions, it assumes a “right” to relocate.  There is nothing in the legislation which provides that a parent who has an existing order which provides that a child spends fifty per cent or more of his or her time with that parent has a unilateral right to move the child (on the basis that this is in the child’s best interest).  While such a move may, after the exploring of all relevant factors, be found to be in the child’s best interests, those interests can only be determined by examination of the relevant factors in the structure exercise of discretion required by the legislature.  It is illogical to suggest it is appropriate for an unauthorised unilateral move to occur and that a court’s discretion in determining a child’s best interest including time to be spent with the other parent be inappropriately fettered by a move which has already occurred.

   [6] Subsequently approved in a number of full court authorities including Malcolm & Munroe[6]

8. Next at paragraph 66, her Honour noted as follows:

   The effect of an order which provides for shared parental responsibility is to require parents to jointly make a decision about a major long-term issue for the child.  Major long-term issues include matters such as the child’s education, religious and cultural upbringing, health and name and “changes to the child’s living arrangements that make it significantly more difficult for a child to spend time with a parent” (s.4(1)).(Emphasis added).

1. Her Honour further noted at paragraph 72 that:

   There can be no dispute that in determining a case where one party which research indicates is invariably the mother,… wishes to relocate a court in making a parenting order generally about who the child will live with or with whom the child shall spend time with.  The Act does not treat “relocation” cases as a special category of parenting orders.  In that respect the amendments to the Act which were made at that time has affected no change to the law. 

1. At paragraph 73, her Honour said:

   It is also undisputed that in determining a parenting case where one parent wishes to relocate, the child’s best interests remain the paramount, but not [the] sole consideration.

1. At paragraph 74, her Honour went on to say:

   The Act does not contain any presumption against a parenting order which involves relocation nor any presumption in favour of a parent with whom a child lives predominantly at the time of the application to obtain such an order.  The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made. 

1. At paragraph 75, her Honour said:

   It is clear that if a parenting order for equal shared parental responsibility has been made prior to any parenting application involving a relocation, the parties have a primary duty under s 65DAC to determine jointly if the proposed living arrangements for a child would make it significantly more difficult for that child to spend time with the “left behind” parent. 

1. At paragraph 79, her Honour set out the matters which the Court is to consider in circumstances where the parent with whom the children live proposes to relocate. In those circumstances, her Honour suggested that the Court must be satisfied that the parties have:

   …unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute; make orders having regard to the child’s best interest as the paramount, but not the sole consideration; be guided in its determination by the objects and principles underpinning the legislation.  This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child. 

   If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child that the parties have equal shared parental responsibility for a child. 

   In making an order for equal shared parental responsibility have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.

   When dealing with an application involving an intrastate, interstate or an international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects of parental responsibility if it is impractical for the parties to equally share parental responsibility and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.

   Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposal of the parties and the proposal found by the judicial officer to be in the child’s best interests make such order which may provide:

   that the child lives with the parent who wishes to relocate and spend time with and communicate with the other parent,

   that the child live with the non-relocating parent and spend time with and communicate with the other parent,

   that the child lives equally with the parents in the existing locale and lives with one parent and spend substantial and significant time with the other parent in the existing locale,

   the non-relocating parent move to the venue chosen by the relocating parent and the child live equally with the parents or lives with one parent, spends time with the other parent. 

   Because each case presents different facts and issues for determination, no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing laws should provide general guidance. 

2. Her Honour then went on to say in paragraph 87 that:

   As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant. 

3. Her Honour then went on to say at paragraph 88:

   It appears to me that the very the very difficult issues in cases involving a relocation which difficulties are highlighted in the cases and referred to by the Family Law Counsel in its 2006 report Relocation: a report to the Attorney General prepared by the Family Law Counsel, make it highly desirable that except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the types of cases in which the child’s present stability may be extremely relevant on an interim basis. 

1. Her Honour further went on to say at paragraph 91 that:

   It is not the distance, per se, that should be the determinative criteria.  In many cases what is relevant is the consequences of the move or the proposed move.  The issues to be determined may be quite different for example, for an infant or a toddler … older children, or for economically impoverished families... Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non relocating parent particularly if the child has a history of living predominantly with a relocating parent, and spending time with the other parent where, with alternative arrangements, the child’s relationship with a non relocating parent can be maintained and fostered.

Relevant Considerations

1. By its very nature, an interim hearing is a curtailed hearing.  Evidence is limited, and the matter is decided on the papers.  The chronology in this matter, which was referred to at the beginning of these Reasons, is important. 

2. Neither party seeks any orders with respect to parental responsibility on an interim basis. Indeed there is already an order for the parties to have equal shared parental responsibility as contained in the Final Orders. Until such time as that order is discharged, the obligations on the parents pursuant to s65DAC remain.

3. The mother has moved the children’s residence in the full knowledge that the father objected to the move and in the face of the orders for equal shared parental responsibility made on 27 February 2017.  She did so notwithstanding her own impeding application to this Court to be permitted to do so in the knowledge that the Court had yet to determine the matter and that any such move would have a significant impact on the children, including their ability to spend time with the father.

4. Importantly, she moved the children in the face of a restraint not to move more than 25km from the father’s residence[7], that restraint being contained in the Final Orders.

   [7] As at the time of the Final Orders

5. The children are still relatively young.  They have lived in Sydney for the majority of their combined lives. [X] is almost 10 years old, [Y] is nine years old and [Z] is five years old. They have not been able to express their views to an independent person such as a Family Consultant. Whatever weight the Court might ultimately accord to their views is a matter for another day, but, in any event, they ought to have been offered the opportunity by the mother of providing whatever views they might have had prior to her making the decision to move their residence and affect their time with the father in this significant manner.

6. The likely effect of any change in the children’s circumstances either way is going to be significant, and what the Court is persuaded to do is to restore the status quo which was in place prior to 8 January 2018, at least to the extent that it can be so restored, such that any relocation proposal, that is, a proposal for the children’s residence to be moved to a distance of some 900 kilometres away from their previous residence, can be a matter which is appropriately assessed by the Court, particularly noting that there may be a Rice v Asplund threshold issue for the mother to overcome. 

7. What the mother has attempted to do, it appears from the evidence, is to pre-empt the Court’s decision. Even as early as May 2017, the mother was sending to the father text messages which clearly stated that she was determined to move to Queensland:

   “… And ps!  The relocation is still happening. Just wait. J”

8. While there may be some practical difficulty in the orders which the father seeks, that is a matter which the Court, does not consider to be of such weight that it would tip the scale in the mother’s favour.

9. It is highly unlikely, given the mother’s case, that in the interim period at least and unless the father travels to Brisbane or pays for the children to travel to Sydney, that that the children would spend any meaningful time with him if they remain living in Brisbane. Furthermore, such time would necessarily be restricted to occasional weekend time and school holiday time, practically it could not include any afternoons after school unless the father stopped working full time (or had significant accommodations by his employer) or the children missed out on school.

10. Likewise, if an order is made for the children to be returned to Sydney, but the mother is unable or unwilling to herself do so, then the children would be in a position where they will be living with the father until at least such time as the final determination in this matter is made.

11. The Court considers that the important relationship which the children have been able to enjoy with their father post-separation, particularly given their ages, may be detrimentally affected by the mother’s unilateral move, because it prevents the children from having their father engaged in their after school activities, their extracurricular activities, and indeed it will put the children in circumstances where they will have to travel significant distances of time to spend weekends with their father if such time was to occur in Sydney.  The after school time which the Final Orders provide for are certainly rendered nugatory by the mother’s unilateral relocation of the children’s residence.

12. It is a finding of this Court, based on the evidence before it, that in the interim period the father will likely facilitate and encourage the children’s relationship with the mother should they live with him, while it is unlikely that the mother would do so if the children were to live with her in Queensland. This finding is based upon the following:

    a)The mother’s failure to facilitate time between the children and the father during the second half of the Christmas school holidays at the conclusion of the fourth school term in 2017[8];

    b)The mother’s failure to facilitate any face to face time between the children and the father since she relocated their residence to Queensland;

    c)The lack of any orders sought by the mother in either her Initiating Application or Response to an Application in a Case in respect of the children spending time with the father[9];

    d)The lack of any proposal for the mother to pay for the children to travel to New South Wales to spend time with the father;

    e)The mother’s unilateral decision to relocate the children’s residence to Queensland – in the face of the existing restraint and continued opposition by the father to such relocation and in the face of the order for equal shared parental responsibility; and

    f)The mother’s unilateral decision to enrol the children in a Queensland primary school – in the face of the father’s opposition and in the face of the order for equal shared parental responsibility.

    [8] These are the first end of year school holidays since the making of the Final Orders

    [9] The mother’s affidavit contains what could loosely be termed a proposal for the children to spend time with the father – it is the mother’s proposal that the children spend time with the father every third weekend from 6pm Friday to 6pm Sunday and the whole of the three shorter school holidays and half the Christmas school break.

13. Much of the evidence in the mother’s case concerns matters which pre-date the Final Orders and which were known by her prior to the Court making the Final Orders at the parties’ invitation. The mother submits to the Court that she suffers high levels of anxiety as a result of having to remain in Sydney. There is limited evidence about such matters, and certainly no expert evidence. In any event, these are largely not new matters but rather matters the mother was raising as relevant prior to the Final Orders.

14. A return of the children to New South Wales would see them returned to an environment with which they are familiar, including the school which [X] and [Y] have attended since kindergarten. The argument raised by the mother that the children are settled in their environment is given only very minimal weight. The children have been in their current environment for a very limited time and only consequent upon the mother’s unilateral decision to relocate their residence and change their schools.

15. The mother has given birth to her fourth child very recently. She argues that the relationship between the children and the baby would be detrimentally affected if they were to live with the father. The mother is the person responsible for taking the steps which she has taken. While her personal circumstances have changed by the birth of her fourth child, and the children might have an attachment to their baby sibling, such an attachment cannot take precedence over the subject children’s attachment to their father.

16. The mother also submits that she cannot take the baby away from Mr M, the baby’s father, and therefore the Court ought not make the orders sought by the father. The baby’s attachment to Mr M is not the subject of any evidence nor is there any evidence which would suggest that Mr M wold not return to Sydney with the mother and the children, if the mother and the children returned.

17. The mother has demonstrated a poor attitude towards her responsibilities of parenthood by failing to ensure her continued compliance with Final Orders and her failure to facilitate time between the children and the father pursuant to those orders.

18. The absence of any discussion of a particular section 60CC factor or any particular matter referred to by Boland J in Morgan & Miles does not reflect any failure to consider it. Rather, it is reflective of the Court’s assessment that such factors either have limited relevance in the circumstances of this case or the Court has simply not had the time to address each and every one of them in detail in the oral reasons. But certainly the Court’s mind was turned to each relevant section 60CC factor and each of the considerations raised by Boland J in Morgan & Miles.

Conclusion

1. For all of those reasons orders as set out at the forefront of the reasons are made.

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

Date: 28 February 2018