Borrows and Borrows

[2013] FamCA 173

FAMILY COURT OF AUSTRALIA

BORROWS & BORROWS [2013] FamCA 173

FAMILY LAW – CHILDREN – Relocation – mother’s application to relocate to another state – where the children were in a shared care arrangement – where the parents had a cooperative co-parenting relationship – the Court is required to consider the best interests of the children in the context of the parents’ competing proposals – where both parties agree there should be equal shared parental responsibility – the Court is obliged to consider equal time and substantial and significant time

Family Law Act 1975 (Cth), ss 60CC, 61DA, 65DAA

MRR v GR (2010) 240 CLR 461
Muldoon & Carlyle(2012) FLC 95-513
Sayer & Radcliffe & Anor [2012] FamCAFC 209

APPLICANT: Ms Borrows

RESPONDENT: Mr Borrows

FILE NUMBER: CAC 2098 of 2009

DATE DELIVERED: 22 March 2013

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 12 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gersbach

SOLICITOR FOR THE APPLICANT: Dobinson Davey Clifford Simpson

COUNSEL FOR THE RESPONDENT: Mr Blank

SOLICITOR FOR THE RESPONDENT: Evans Family Lawyers

Orders

1. The mother’s application is dismissed.

2. The parents have equal shared parental responsibility for the children L (born on … December 2001), C (born on … January 2004) and D (born on … August 2007) (“the children”).

On the basis that the mother will remain in Canberra:

1. The children live with the mother.

2. The children spend time with the father as follows:

   (a)From 4:30pm on Tuesday until the commencement of school on Thursday;

   (b)Each alternate weekend from 4:30pm on Friday until 5:00pm on Sunday.   

AND

(c)Unless otherwise agreed, for one half of the NSW school holiday periods as agreed between the parties (but failing agreement) as follows:

(i)With the father for the first half in even-numbered years or years ending in zero, from 5:30pm on the first Friday to 4:30pm on the middle day of the holiday period; and the second half in odd-numbered years from 4:30pm on the middle day of the holiday period to 4:30pm on the last Sunday of the holiday period.

(ii)With the mother for the first half in odd-numbered years from 5:30pm on the first Friday to 4:30pm on the middle day of the holiday period; and the second half in even-numbered years (or years ending in zero) from 4:30pm on the middle day of the holiday period to 4:30pm on the last Sunday of the holiday period. 

1. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders.

2. All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

3. Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.  Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Borrows & Borrows has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 2098 of 2009

Ms Borrows

Applicant

And

Mr Borrows

Respondent

REASONS FOR JUDGMENT

Foreword  

1. This case is about the very difficult question of whether the three children of the parties, L (born in 2001) C (born in 2004) and D (born in 2007), might move to G Town in north Queensland to live with the mother and Mr E, the mother’s fiancé (soon to be husband), or whether the children should stay in Canberra.

2. The mother’s move to north Queensland was precipitated by the desire on the part of Mr E to spend more time with his son, F (born in 2002). To facilitate this, Mr E, who is a member of the defence forces, applied for a posting in G Town. There is some dispute in this matter about the parents’ approach to the mother’s relocation. However, not much turns on that point.

3. Decisions in “relocation cases” are often difficult ones to make. This was particularly so in this matter where the children had positive and loving relationships with both parents, where both parents were capable of providing for the children’s needs, and where the parents had had a co-operative and amicable relationship post-separation.

Application of each party

1. The orders sought by the mother are set out in her Minute of Orders Sought which was received by the Court on 8 March 2013. The mother seeks the following orders:

   a)The children live with the mother.

   b)The mother be “permitted to relocate the children’s permanent residence to [G Town], in the State of Queensland.”

   c)The mother and father have equal shared parental responsibility.

   d)The children spend time and communicate with the father as follows:

   i)For one half of all school holidays gazetted for the State of Queensland;

   ii)For two weekends per term in G Town on such dates to be agreed, but in default of agreement, on the third and seventh weekend of the school term from 3pm Friday to 9am Monday;

   iii)Via Skype on three occasions per week, as agreed and in default of agreement on Monday, Wednesday and Sunday at 5:30pm (Queensland time);

   iv)At all reasonable times by telephone as agreed and in default of agreement on Tuesdays, Thursdays and Saturdays at 5:30pm (Queensland time), noting that the mother will also facilitate the children telephone their father at all other reasonable times if they express a wish to do so.

   v)For other agreed periods (in G Town) outside of the Queensland school holidays and term time visits, the father the mother with 28 days written notice of his intention to spend time with the children in G Town, provided that the father ensures the children attend school.

   e)The mother shall book and pay for the children’s flights to spend holiday time with the father from G Town to Canberra two months prior to the children travelling.

   f)If flights are not available for the children to travel to spend holiday time with the father between G Town and Canberra (including return) when booking, the flights will be booked as close as possible after the date provided for in these orders.

   g)The father will book and pay for any flights that take place when the children spend time with the father pursuant to paragraph (d)(ii) and (d)(v) above.

   h)The children shall fly accompanied until they are confident to fly alone.

2. Although the orders sought by the mother stipulate a set number of times the children can Skype with the father, the mother gave oral evidence that in her view the children should be permitted to Skype with the father any time they choose.

3. The mother has indicated that if she is not “permitted” to relocate with the children to G Town she will not go to G Town but will remain living with the children in the Canberra district.  It is nevertheless clearly her preference for the children to move with her to G Town so she can live with her husband, even though this will reduce the time that the children spend with their father. 

4. In support of her application, the mother relied upon her affidavits filed on 18 October 2012 and 25 January 2013 and the affidavits of Mr E filed on the same dates.

5. The father seeks orders as set out in his Minutes of Orders Sought:[1]

   [1] Respondent Father’s Case Summary, filed on 7 March 2013, Annexure A.

   a)The parties have equal shared parental responsibility.

   b)The mother be and is hereby restrained from removing the children’s permanent residence from the ACT region without the written consent of the father or without an order of the Court.

   c)If the mother resides in the ACT region:

   i)The children live in a shared equal time arrangement with the parties during NSW school term periods. The arrangement will commence from after school on Monday and will end at the commencement of school on the following Monday.

   ii)At such other times as agreed between the parties.

   iii)For one half of the NSW school holiday periods in terms 1, 2 and 3.

   iv)For one half of the NSW Christmas school holiday periods.

   v)At such other times as agreed between the parties.

   d)If the mother resides outside the ACT region, the children live with the father and will spend time with the mother as follows:

   i)For one half of each of the NSW school holidays in terms 1, 3 and Christmas.

   ii)For the whole of the NSW term 2 school holiday period.

   iii)For two weekends in each school term period as agreed, and failing agreement, the third and sixth weekends with such time to be spent in the ACT region.

   iv)At such other times as agreed.

   e)If the children are permitted to relocate with the mother to Queensland, the father will spend time with the children in accordance with paragraph (d) above.

   f)Each parent will provide an authority to each of the childrens respective crèche/day care and treating medical practitioners authorising release of information to the other parent. Each parent is at liberty to attend events involving the children at school.

6. In support of his application, the father relied upon his affidavits filed on 14 November 2012 and 25 January 2013, the affidavit of his wife, Ms Borrows, filed on 19 November 2012, and the affidavit of Ms H filed on 25 January 2013. Counsel for the mother took objection to a large number of paragraphs in Ms H’s affidavit. Much of the contents of Ms H’s affidavit were struck out as a result of those objections.

7. In essence, there are three proposals put forward by the parties. The first is that the children relocate with the mother to G Town and spend time with the father as set out in paragraph 4(d). The second option is that the children live with the father in Canberra and spend time with the mother if she relocates to G Town with Mr E. However, the mother has indicated that if the children are to remain in Canberra, she will also remain in Canberra. The third option is that the children remain in Canberra and live in a week-about basis with each parent.

Background

1. The parents married in February 2000 and separated in late 2008/early 2009.[2]

   [2] Mother’s affidavit, filed on 18 October 2012, [1] and [3]; Father’s affidavit, filed on 14 November 2012, [2] and [4].

2. Although the parties did not separate until late 2008/early 2009, they started experiencing relationship problems in about July 2008. In November or December 2008, the mother arranged alternate sleeping arrangements and slept at her father’s home, which is located across the road from the former family home. However, the mother continued to share the house during the day with the children while the father was at work. The father asserts that he was responsible for waking the children in the morning and preparing their breakfast and lunch for the day.

3. It is not necessary for me to make finding as to who did which particular tasks for the children. Not much turns on those minute details. What is significant is that the parents agreed the mother would care for the children during the day, in particular D who was not yet of school age, while the father worked. When the father returned in the evening between 5:30pm and 6pm, the parties and the children ate dinner together. They shared the cooking, cleaning, bathing the children and getting them ready to bed. After the children were put to bed, the mother would go to her father’s home to sleep and she would return to the family home in the morning.[3]

   [3] Mother’s affidavit, filed on 18 October 2012, [2]; Father’s affidavit, filed on 14 November 2012, [10]-[13].

4. The parties continued in this routine until about August or September 2009. At this point, the father moved out of the family home and the mother moved back in so that she was no longer sleeping at her father’s home.[4] The mother was largely responsible for the financial care of the children.[5] In October 2009, the father was assessed to pay $79 child support per fortnight. The father was a student at that time and paid the mother child support in lump sums when he had the money. The parents then agreed that, rather than making periodic payments, the father would contribute towards the children’s school fees and extra-curricular activities. The father made independent contributions to the children’s clothing. The quantum of the father’s financial contributions towards the children is not clear.[6]

   [4] Mother’s affidavit, filed on 18 October 2012, [4]; Father’s affidavit, filed on 14 November 2012, [14].

   [5] Mother’s affidavit, filed on 18 October 2012, [3] and [4].

   [6] Mother’s affidavit, filed on 18 October 2012, [7]; Father’s affidavit, filed on 14 November 2012, [16]-20].

5. In September 2009 the parties attended mediation and put in place an arrangement where the children would go to the father’s home for one hour each weekday from 5pm to 6pm. The children would also spend time with the father from 4pm on Saturday to 5pm on Sunday. The father asserts he also spent time with the children “at least every second Friday night.” This arrangement remained flexible because of the father’s need to take work when he could get it (after changing career to become a massage therapist). It is to the parents’ credit that they could negotiate flexible arrangements for their children.[7]

   [7] Mother’s affidavit, filed on 18 October 2012, [5]; Father’s affidavit, filed on 14 November 2012, [15].

6. The mother has been in a relationship with Mr E since June 2009. Mr E relocated to Canberra from Perth in January 2010.[8] The mother and Mr E gradually introduced Mr E to the children and the children now have a positive relationship with him.[9] Mr E commenced living full time with the mother and the children in December 2011.[10]

   [8] Mother’s affidavit, filed on 18 October 2012, [8]; Father’s affidavit, filed on 14 November 2012, [21].

   [9] Exhibit J1, [5.16].

   [10] Mother’s affidavit, filed on 18 October 2012, [12].

7. Throughout 2010 and 2011, the children’s time with the father gradually increased[11] and, again, it is to the parents’ credit that their co-operative relationship enabled this to occur.

   [11] Mother’s affidavit, filed on 18 October 2012, [13] and [14]; Father’s affidavit, filed on 14 November 2012, [26]-[28].

8. At the beginning of 2012, the children started living in a shared-care arrangement with the parents. The children spend six nights per fortnight with the father, from 4:30pm on Tuesday until before school on Thursday and each alternate weekend from 4:30pm Friday to Sunday afternoon. The rest of the time they live with the mother.[12]

   [12] Father’s affidavit, filed on 14 November 2012, [29].

9. In about mid 2011, the mother informed the father that she and Mr E were considering relocating to G Town so that Mr E could be closer to G and deepen his relationship with him.[13] When he, Mr E, separated from F’s mother in 2007 she moved to G Town.  At the time they were living in Perth.  Subsequently, in January 2010 Mr E moved to Canberra to facilitate his spending more time with F.[14]  There is some dispute as to what the father’s initial reaction to the relocation proposal was. The father asserts he told the mother he did not wish to move to G Town.[15]

   [13] Mother’s affidavit, filed on 18 October 2012, [17]; Father’s affidavit, filed on 14 November 2012, [32].

   [14] Affidavit of Mr E, filed on 18 October 2012, [7].

   [15] Father’s affidavit, filed on 14 November 2012, [33].

10. In September or October 2011, the father spent a week in G Town with the children. The mother and Mr E were in G Town as well, but stayed in separate accommodation to the father and the children. The mother and Mr E paid the father’s costs of that G Town trip. During the trip, the father visited massage clinics and, the father says, the trip provided him with an opportunity to see whether moving to G Town would be a viable option.[16]

    [16] Mother’s affidavit, filed on 18 October 2012, [19]; Father’s affidavit, filed on 14 November 2012, [36], [39] and [40].

11. In October 2011, the parties had another conversation about moving to [G Town]. The mother’s assertion is that she informed the father “In order to plan for the move [Mr E] will need to put in an application for a posting order to [G Town] by November 2011. If it is approved and a posting to [G Town] is ordered, [Mr E] will have final notice by June 2012. After that it will be too late to change the posting”. The mother then asked the father whether he was “still happy to go ahead and plan to move in December 2012?” The father replied “Yes go ahead with the plan. But I don’t want to be blamed if it doesn’t work out.”[17]

    [17] Mother’s affidavit, filed on 18 October 2012, [23].

12. The father asserts the parties had another conversation in November 2011 about moving to G Town and that during this conversation the mother informed the father that Mr E had not received a posting to G Town. On this basis, the father allegedly said to the mother that he is still not decided whether he can move to G Town because of the “impracticalities with further education for [him] in [G Town].”[18]

    [18] Father’s affidavit, filed on 14 November 2012, [43].

13. In January 2012 the mother and Mr E became engaged and they are due to be married on 23 March 2013. Also in January 2013, the father introduced his (now) wife to the children.[19]

    [19] Mother’s affidavit, filed on 18 October 2012, [25]; Father’s affidavit, filed on 14 November 2012, [44].

14. In July 2012 Mr E was informed that he had been approved for the position of Executive Officer (Second in Command) of the G Town Base.[20] However, he will not commence this position until the end of 2013 or beginning of 2014. Until that position commences, Mr E will continue working in his current role remotely from G Town. This proposal involves working from the G Town Base and travelling to Canberra every two to four weeks for a week to complete the classified portion of his position.[21]

    [20] Affidavit of Mr E, filed on 18 October 2013, [17].

    [21] Affidavit of Mr E, filed on 18 October 2013, [15].

15. In July 2012 the father and his wife visited G Town to “investigate the suitability of work and life in [G Town]”.[22] The mother does not necessarily agree this was the precise reason why the father and his wife visited G Town.

    [22] Father’s affidavit, filed on 14 November 2012, [48].

16. In late July/early August 2012 the father informed the mother that his final decision was that he was not able to relocate to G Town because of the implications for his and his wife’s careers. He also informed the mother that he did not think it was in the best interests of the children to relocate and be separated from the father.[23]

    [23] Mother’s affidavit, filed on 18 October 2012, [36]; Father’s affidavit, filed on 14 November 2012, [52].

17. The parties attended mediation in August 2012 but were not able to reach agreement.[24] The mother commenced proceedings in the Family Court in October 2012.

    [24] Mother’s affidavit, filed on 18 October 2012, [37]; Father’s affidavit, filed on 14 November 2012, [55].

Relevant law

1. The pathway for making a determination in relocation matters has been explored in MRR v GR[25], Muldoon & Carlyle[26] and Sayer & Radcliffe & Anor[27].  The pathway was also the subject of submission from both counsel in this matter. 

   [25] (2010) 240 CLR 461.

   [26] (2012) FLC 93-513.

   [27] [2012] FamCAFC 209.

1. In Sayer & Radcliffe The Full Court said:[28]

   [28] Sayer & Radcliffe & Anor [2012] FamCAFC 209, [47].

   47. It is now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders …

   48. A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents … It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying the relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.

   [emphasis added]

   …

   51.The operation of the legislation in relocation cases has been expressly considered by the High Court in MRR v GR … an appeal from an order of a Federal Magistrate refusing to allow relocation. In joint reasons for judgment, the Court (French CJ, Gummow, Hayne, Kiefel and Bell JJ) summarised the effect of the legislation and concluded that orders for equal or substantial and significant time are to be guided by the practical feasibility of such time, not merely its desirability. Their Honours said (pages 464-465, 467):

   6.Part VII of the Act (ss 60A-70Q) concerns children. It was substantially amended in 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Section 60B(1) of the Act provides that it is an object of the Part to ensure that the best interests of children are met, inter alia, by “ensuring that [they] have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”. Section 60CA requires that a court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations necessary to be taken into account in determining what is in a child’s best interests are listed in s 60CC.

   7.Section 65D(1) provides that the Court [...] may make such a parenting order as it thinks proper, subject to the provisions of ss 61DA and 65DAB. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child. [...] Section 65DAB requires the Court to have regard to any parenting plans entered into between the parties and is not relevant in this case.

   8.Sub-section (1) of s 65DAA is headed “Equal time” and provides: “If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”

   (Emphasis added.)

   Sub-section (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the Court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the Court is obliged to:

   “(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”

   Sub-section (3) explains what is meant by the phrase “substantial and significant time”.

   9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.

   ...

   15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

2. After considering the principles enunciated in MRR v GR, the Full Court in Sayer & Radcliffe & Anor set out “the approach to applications involving relocation of a child”:[29]

   [29] Sayer & Radcliffe & Anor [2012] FamCAFC 209, [33]-[38].

   33.The core principle consistently referred to in all appellate decisions involving challenges to parenting orders (including where an order for relocation is sought) is the “paramountcy principle” found in s 60CA. That is, a court must regard the best interests of the child as the paramount, but not sole, consideration.

   …

   36.… consideration of the s 60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals. Some of the matters to be considered under s 60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s 65DAA, especially s 65DAA(5).

   …

   37.However, it is important to emphasise … that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:

   ·first make findings concerning the relevant s 60CC factors;

   ·then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and

   ·then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.

3. The Full Court in Muldoon & Carlyle stated that, in a case where a parent plainly wishes to relocate, the correct approach by the Court is not to consider whether the relocating parent should be permitted to relocate and whether that parent has compelling reasons to relocate. Rather, the correct approach is to consider whether it is better for the child to live with the relocating parent in the new location or to live with the other parent in the old location. The Full Court referred to AMS v AIF (1999) 199 CLR 160:[30]

   [30] Muldoon & Carlyle (2012) FLC 93-513, [87]-[91].

   91.Her Honour was not in error in postulating that it was not up to the court to restrain the mother from leaving O and that she was entitled to make that proposal. In doing so her Honour was following what the High Court said in AMS (supra) per Hayne J at 231-2:

   217Of course, the decision of a parent who is about to move and who seeks custody may well be affected (often it will be determined) by whether he or she will have custody of the child if that proposed move is carried out. And it is, then, not surprising that counsel for the mother told the primary judge (in effect) that if the mother’s having custody of the child depended upon her staying in Perth then she would not move to Darwin. But that does not mean that the question for the Court is whether the mother is to be permitted to move to Darwin.And it does not mean that the question is whether the mother has shown a “good” or a “compelling” reason for wanting to move.

   218To translate the question into this form – has the mother shown a good, or good enough reason for wanting to move – focuses attention upon the reasons and motives of the mother. But that is not the proper focus of the inquiry. The proper focus is which is better for the child – to be in the custody of the father (in Perth) or to be in the custody of the mother (in Darwin). That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer, from being in the mother’s custody in Darwin. …

   219The complexity and difficulty of the inquiries which must be made is increased when, as was the case here, a parent’s wish to move is expressed conditionally – I will go unless I cannot then have custody. It is more complex and difficult because there are then three competing possibilities for consideration.

   [original emphasis]

4. The case law makes it clear that the principles to be followed in determining the best parenting orders in a relocation matter are:

   a)The question of whether a parent should be permitted to relocate should not be the focus of the Court’s inquiry as to the parenting orders that would be in the children’s best interests.

   b)The Court must consider each proposal in the context of what is in the best interests of the children, by reference to s 60CC factors.

   c)If an order is made for equal shared parental responsibility, taking into account ss 60CC and 61DA, the Court must consider whether equal or substantial and significant time are in the children’s best interest based on the s 60CC findings. If an order for whether equal or substantial and significant time is in the children’s best interests, whether such an order is reasonably practicable, taking into account the matters set out in s 6DAA(5).[31]

   [31] Family Law Act 1975 (Cth), ss 65DAA(1) and (2).

5. I am guided by these principles in this matter.

Best interests of the children

1. The case law is clear that the Court should not focus on whether a parent should be “permitted” to relocate nor should it focus on whether the relocating parenting has “compelling” reasons to do so. On this basis, I make no finding about whether the father agreed for the mother to relocate and then reneged on that agreement or whether the father never, in fact, agreed to the mother relocating in the first place. Those matters do not affect my determination about what is in the best interests of the children. The relevant question is to consider what is in the best interests of the children in light of the competing proposals of the parties and I turn now to that question.

2. The three proposals are:

   a)The children live with the mother in G Town and spend time with the father who will live in Canberra;

   b)The children live with the father in Canberra and their mother lives in G Town; and

   c)The mother, if the children are required to remain in Canberra, also remains in Canberra and her soon-to-be husband lives in G Town. 

3. In this matter the mother has indicated that she will not travel to G Town without the children and hence there are realistically only two proposals for consideration and comparison.  Either the children will live in G Town with the mother and spend time with the father, or the children will remain in Canberra with the father and the mother will also be in Canberra because she has indicated she will not relocate without the children. The second option, that is the children live in Canberra with the father while the mother lives in G Town, is eliminated by the mother’s evidence that she will remain in Canberra if the Court finds that it is in the children’s best interests to remain in Canberra.

Primary considerations

Section 60CC(2)(a)

1. It is not disputed that the children currently have a meaningful relationship with each parent and benefit from doing so. The Family Consultant describes the relationship between the parents and the children as “significant relationships”[32] and records each parent describing the close relationship between the children and the other parent:[33]

   4.11[Ms Borrows] describes the father’s relationship with the children – “They have a beautiful relationship with him. They love him to bits. He is the sort of father that gets down on the floor with his children.

   …

   4.15… [The father] considers that the children have a very close relationship with him and their mother …

   [32] Exjibit J1, [5.12].

   [33] Exhibit J1, [4.11] and [4.15].

2. There is no doubt that the children would benefit from continuing to have a meaningful relationship with each parent.

3. If the children are in G Town, they will live with the mother and spend time with the father.  This may cause the relationship between the children and the father to become more “disconnected”[34] because they will have less frequent contact with the father than they currently do. The children’s ability to have a meaningful relationship with their father would be diminished to some extent by the distance that they would be living away from him.  Counsel on behalf of the mother suggested that the use of Skype, regular trips to G Town by the father and holiday trips by the children to Canberra to spend time with the father might in some way compensate for the geographical difference. 

   [34] Exhibit J1, [4.15].

4. However, this argument is substantially rebutted by the fact that Mr E was planning to move to G Town to be near his son. Mr E has had the advantages of Skype and holiday time with F, but he found this type of contact was not satisfactory, from his point of view, for the development of a meaningful relationship with his son.

5. It is understandable, therefore, that the father does not view these means of contact as sufficient to maintain a meaningful relationship with the children in this matter. It would not be regarded as an ideal implementation of the relationship between the children and the father to have it conducted at such a remove. 

6. If the children remain in Canberra, they will either continue to live with the parents in the current 8/6 arrangement or switch to living week about with each parent. Either arrangement in Canberra will enable the children to continue to have a meaningful relationship with both parents as they do now.

Section 60CC(2)(b)

1. The children are not exposed to any physical or psychological harm as the result of being subjected or exposed to family violence, child abuse or neglect.

Additional considerations

Section 60CC(3)(a)

1. The Family Consultant recorded what the children have said about their proposed move to G Town:[35]

   [35] Exhibit J1, [5.5]-[5.11].

   5.5.[L] said of [G Town] “Dad said that if I move there my eczema will be terrible but it disappeared when I was there. I liked the area … [L] contrasted this area with her current home. “Dad’s brother lives in Canberra. Our grandpa does but he is not our blood relative grandparent. It’s not tropical here. I saw the school – it’s quite nice. I’m not sure. I like my friends here. I think I’d like to go. My friends, I’d miss. I’d miss my grandpa … I’d miss my grandmother. I’d miss Dad and [Ms H]” …

   …

   5.7… [C] told the Consultant regarding the arrangements. “Mum and Dad live nearby. We have 8 days with mum and 6 days with dad. It’s pretty good. I really want to move to [G Town]. Although there is no junior rugby and I’d miss my friends”.

   …

   5.11… at the conclusion of the discussion [D] said. “I don’t want to go to [G Town]. I love [Ms H] and Dad as well and I want to see them as well. …”

2. During cross-examination, the mother’s counsel put to the Family Consultant that L’s statements indicated that she had given a balanced consideration to whether or not she would like to go to G Town and, in the end, L’s view is that she’d like to move. The Family Consultant did not accept this proposition. Her evidence was that L’s statement, “I think I’d like to go” was made in the midst of many things she said about going to G Town, including “I’d miss Dad and [Ms H].” The Family Consultant’s opinion was that L did not present as being 100 per cent certain she would like to go and contrasted her statement “I think I’d like to go” with “I’d like to go”. The Family Consultant had the benefit of speaking with L in person and I accept her evidence and her conclusion about L.

3. C is nine years old and D is five years old. I do not consider they are of sufficient maturity to fully appreciate the consequences if they were to move to G Town or if they were to stay in Canberra. I do not place much weight on their views.

4. In any event, in the end I expressed the view to counsel that, in my opinion, the views of the children were equivocal and neither counsel dissented from that proposition. 

Section 60CC(3)(b)

1. The nature of the relationship with each of the children with their respective parents is commonly accepted as being particularly good.  This is a credit to both parents who have gone out of their way to suppress their own feelings to ensure that the children feel loved and wanted by both parents.  This was the subject of appreciative acclaim from the Family Consultant and was borne out by the oral evidence of the parents in Court. 

2. The children also have good relationships with Mr E and the father’s wife. However, it is noted by the Family Consultant that the children’s relationships with the parents’ partners are not so significant that spending only “infrequent and irregular time” with either of the parents’ partners would cause the children trauma. The same applies to the children’s relationships with extended family – “being separated from them is not significant for their emotional wellbeing.”[36]

   [36] Exhibit J1, [5.16].

3. Thus, if the children live in G Town and spend less time with the father’s wife and their extended family, this will not be significantly detrimental to the children. The same applies if the children remain in Canberra and spend less time with Mr E once he moves to G Town.

4. I will explore the effect of separation from each of the parents in due course.

Section 60CC(3)(c)

1. Each of the parents has, in the past, and seeks, in the future, to take opportunities to participate in making decisions about the children and spending time with them and communicating with them.  The extent of the mother’s cooperative approach to this matter is indicated by her oral evidence in which she expressed the view that it was preferable that Skype communications with the father should be attempted each day as children of different ages vary in their willingness to participate and, if an attempt is made every day, it is likely there will be significant success on at least some days. 

Section 60CC(3)(ca)

1. Some submissions were directed to the fact that the father has made only some contributions to child support.  This arrangement was substantially a matter of agreement between the parties because, since separation, the father has, for a large part, been studying and his income is modest. The father has made independent contributions to items such as the children’s clothing.

2. But the comment, to some extent, is valid.  The father commented about how it would have been preferable for the children to have two sets of clothes to avoid their having to carry them from one place to another.  He had not (at the time of the trial) made any attempt to provide a set of clothes at his house.  The burden of financial support has fallen on the mother and in more recent times on the mother and Mr E.  The lack of financial support from the husband was not advanced as a primary criticism of the husband who has been involved in re-training and in re-establishing a career. The fact that the lack of financial support by the father was not the subject of criticism from the mother is in fact a further matter in commendation of the mother’s approach to her responsibilities as a parent. 

Section 60CC(3)(d)

1. If the children lived with the mother in G Town, this would involve substantial changes to their circumstances. The most significant change would be the separation from their father. The Family Consultant provides the following insight into the likely effect on the children if they are separated from their father:[37]

   4.4Being separated from their father, when he has been a constant presence in their lives is the factor that is going to impact the children’s well-being most in the event that they re-locate to [G Town]. It’s likely to affect each of the children differently because the relationship that they have with him is individual. The two elder children are of an age where they understand time and are less emotionally dependent on the adult carers. [D] still has an emotional dependence on her parents and does not have an understanding of time or space so she might find the move confusing and destabilising due to her reduced cognitive developmental and emotional level.

   [37] Exhibit J1, [4.4].

2. However, the Family Consultant also says “… [the children] are secure and well adjusted … with no special needs and therefore there is no reason to expect that they are not all going to adjust to a change in their situation associated with a move to [G Town].”[38] In her oral evidence, the Family Consultant stated that while the children have the skills and support to adapt well to the change, there is no guarantee that they would.

   [38] Exhibit J1, [4.3].

3. The move to G Town will involve other “usual transitions for the children to adapting to new schools, different routines, the disruptions of moving and settling in to an unfamiliar environment. Particularly, [L] would commence Year 8 of high school because the school system there would require her to be in the year ahead of the school system there.”[39] While this would be a big step for L, steps have been put in place to assist L with the transition. The prospective school in G Town assured the parents that “intensive support would be provided to [L] to ensure this transition was smooth for her and that the school was very experienced in this type of transition for families relocating from interstate.” The parents were also assured that the school would assess L beforehand before deciding which grade she would be placed in.[40] Furthermore, L’s teachers in Canberra have started helping L prepare for high school by ensuring her English and maths skills were at the necessary level in the event they move to G Town.[41]

   [39] Exhibit J1, [4.3].

   [40] Mother’s affidavit, filed on 18 October 2012, [21].

   [41] Mother’s affidavit, filed on 18 October 2012, [27].

4. If the children stayed in Canberra there would be fewer changes to the children’s circumstances. The most significant aspect of the children remaining in Canberra is the mother’s concession that she will also remain in Canberra if that is where the children live. In that situation, the children will continue in the shared care arrangement currently in place. This provides the children with stability in their living arrangements. They will also continue to attend the same schools and can maintain the friendships they currently have in Canberra.

5. However, if the children remain in Canberra they will spend less frequent time with Mr E than they do at present. Mr E has indicated that he will take the posting in G Town whatever the outcome of the Court hearing (and he is entitled to do so).[42] I accept Mr E has become part of the children’s lives and the children and he have a positive relationship. However, as discussed above, the children’s relationship with Mr E is not so significant that spending less frequent time with him would cause them trauma.

   [42] Exhibit J1, [4.19].

6. The more significant effect on the children of being separated from Mr E is the effect of his separation from the mother. The mother deposes that there will be “considerable strain on our relationship and my emotional wellbeing to live apart for at least two years.”[43]

   [43] Mother’s affidavit, filed on 25 January 2013, [5].

7. If the mother remains in Canberra and Mr E moves to G Town:[44]

   4.6… there is likely to be issues for the mother in the loss of her relationship with her partner and this will likely have an affect the children [sic] and may have a subsidiary affect [sic] on their relationship with their father as they try to come to terms with their mother’s sadness/distress.

   [44] Exhibit J1, [4.6].

8. I accept that to be away from Mr E almost immediately after their marriage will be difficult and upsetting for the mother. However, there was no expert evidence about how the mother’s grief at being separated from Mr E would impact upon her ability to parent the children or how it would affect the children. Without that evidence, it is impossible to compare whether the detriment to the children of being cared for by a grieving mother would outweigh the detriment to the children of spending significantly less time with their father. Counsel for the father questioned the Family Consultant as to whether the sense of grief the mother might feel if Mr E relocated without her is less than the grief the children would feel if they moved away from their father. The Family Consultant responded by saying it is possible that the mother’s grief would be less than the children’s. However, she could not make a decision about that and stated that, if she could, she would have made a recommendation in her report. The Family Consultant’s evidence in this regard is illustrative of how difficult this case is.

9. Without any expert evidence about how the mother’s grief might affect her parenting ability and the children, I am left with the evidence that the children would suffer a loss if they are separated from the father and the mother will be sad/distressed if she is separated from Mr E. In the end, I must decide what is in the best interests of the children.

10. Aside from the indirect emotional impact on the children if the mother remains in Canberra, there is also a financial component. If the mother were to live in Canberra and Mr E in G Town, they would, effectively, be running two separate households. They would need to pay two sets of rent and utility bills. Their evidence is that this would place greater strain on their finances and this will make it difficult for them to provide the same level of extra activities for the children as they currently do.[45]

    [45] Mother’s affidavit, filed on 25 January 2013, [9].

Section 60CC(3)(e)

1. The difficulty and expense of the children’s spending time with either parent would be significantly less in Canberra than it would be in G Town. In Canberra, the parents live relatively proximate to each other and would continue their current living arrangements which, until the issue of relocation arose, had been working well.

2. If the children moved to G Town with the mother there would be considerably more difficulty and expense to facilitate the children spending time with the father. Communication by telephone or Skype should remain relatively straight forward, but could not be the same as being able to actually see their father when they were talking to him.  The Family Consultant commented about this and expressed the view that while Skype was useful, it was no substitute for direct communication. 

3. The mother’s proposal is that she will book and pay for the children’s flights on occasions when they visit their father in the school holidays, and the father will book and pay for flights on occasions when the children spend time with him during the school term (two occasions each term). Mr E and the mother opened a joint bank account in January 2012 when they became engaged. Mr E has been the primary income earner and provider for the mother and the children.[46] I am satisfied that if the children move to G Town, the mother and Mr E would be able to pay for the children’s flights as set out in the mother’s proposed orders.

   [46] Mother’s affidavit, filed on 18 October 2013, [25].

4. The father’s income is modest. The evidence about his ability to afford to pay for flights to visit the children in G Town is scant and I make no finding in this regard.

Section 60CC(3)(f)

1. Each of the parents has demonstrated a significant capacity to provide for the children including their emotional and intellectual needs, and each of the parents’ partners has been a contributor and an effective contributor. 

2. If the children were to stay in Canberra the mother’s capacity to contribute to their financial wellbeing may be diminished because of the arrangement in maintaining two separate households, one in G Town and one in Canberra.[47] This has been discussed above.

   [47] Mother’s affidavit, filed on 25 January 2013, [7]-[9]; Affidavit of Mr E, filed on

Sections 60CC(3)(g) and (h)

1. Neither of the matters set out in these subsections is relevant.

Section 60CC(3)(i)

1. The attitude of both of the parents to the children and to their responsibilities has been exemplary.  The Family Consultant indicated that she regarded this matter as one of the hardest she has had to deal with because each of the parents had much to offer the children and had gone out of his or her way to make arrangements about the children work.  It is reasonable to include a reference to, but not to give undue weight, to the fact that the father has not contributed a great deal in child support, as mentioned above.  He has contributed, but the contributions have, overall, been relatively small. 

Section 60CC(3)(j) and (k)

1. There is no family violence in this matter and it is not a matter that has borne upon any determination I have made. 

Section 60CC(3)(l)

1. Any order made in these proceedings may need to be revisited at some point if Mr E’s arrangements about his future career should change.  However that is not a factor alone which should determine the sort of order to be made.

Section 60CC(3)(m)

1. At present the parents share the care of their children. The children live with the mother for eight days in a fortnight and live with the father for six. If the children stay in Canberra, this arrangement can continue.

2. If the mother moves with the children to G Town she will become the primary carer of the children, particularly because Mr E will be working full time. She will not have the father nearby to assist in the way that he currently does. There is no indication that the mother would not be able bear the responsibilities of being the primary carer for the children. She was their primary carer for some time before the current 8/6 arrangement came into effect. Furthermore, the mother’s evidence is that, while moving to G Town presents challenges, she would be more emotionally and psychologically equipped to meet those challenges if she has her husband by her side for support. I accept that the mother would be happy in G Town and this, combined with the loving and supportive relationship she has with the children, would likely mean that being the primary carer for the children would not be an insurmountable challenge.

3. However, the mother may feel some strain of being the primary carer if, as Mr E expressed in his oral evidence, it became necessary for him to take a travelling position in the future, which would mean he might be absent for five weeks at a time. However, Mr E would likely not be accepting a travelling position for some time because his position as an executive officer is for some two to three years and is, largely, an office job.

4. The children and the mother would also be removed from the extended family which they have in Canberra. This is not a significant factor in making my decision. The Family Consultant’s evidence was that it would not be ideal for the children to be separated from their extended family, however, they are not significant relationships in the children’s lives and the children would not suffer trauma as a result of a decrease in contact with extended family. What the children would find it most difficult to adjust to is a separation from their father who is a significant person in their lives.

5. The mother gave evidence that she is currently undertaking a course to further her career. She currently works in Canberra[48] and acknowledges that whether she is G Town or Canberra, she will continue to work in her current profession.[49] In Canberra she already has a job. While the mother is confident she will be able to obtain a position in G Town,[50] there is no guarantee that she will.

   [48] Mother’s affidavit, filed on 18 October 2012, [43].

   [49] Mother’s affidavit, filed on 18 October 2012, [46].

   [50] Mother’s affidavit, filed on 18 October 2012, [46].

Parental responsibility

1. Under the Act, I am obliged to apply a presumption that it is in the best interests of the child for the children’s parents to have equal shared parental responsibility.[51]

   [51] Family Law Act 1975 (Cth), s 61DA(1).

2. Both parents seek an order for equal shared parental responsibility and I make that order. Having considered the s 60CC factors, there is no reason for the presumption not to apply. There is no evidence of any family violence or child abuse, and the parents have always maintained an amicable and cooperative parenting relationship.

Equal or substantial and significant time

1. The Act provides that if an order for equal shared parental responsibility is made, the Court must consider whether the children spending equal time with each parent is in the best interests of the child and consider whether spending equal time with each parent is reasonably practicable.[52]

   [52] Family Law Act 1975 (Cth), s 65DAA(1).

2. In determining what is reasonably practicable, the Court must have regard to the factors set out in s 65DAA(5).

Equal time

Whether equal time is in the best interests of the children

1. It is implicit in the provisions of s 65DAA that a determination about whether equal time is in the best interests of the children involves a consideration of the matters in s 60CC. 

2. I have considered those factors above and those considerations indicate, prima facie, that an equal or near equal time arrangement is in the best interests of the children. The children have good relationships with both parents and both parents are able to cooperate to do what is best for the children. If the children remain in Canberra, there is no practical difficulty or expense in facilitating that arrangement.

3. However, there are factors to be considered under s 60CC(m) which would militate against an equal time arrangement.

4. The father sought an equal division of time but advanced no cogent reasons for a move from the existing 8/6 arrangement. 

5. The mother, on the other hand, indicated careful thought as to how the current arrangements were working and how they operate for the benefit of the children.  The father’s proposal is that the children live week-about with each parent (if the mother resides in the ACT) with changeovers to occur on Monday morning before school. The mother commented insightfully about the disadvantages to the children in changing from one household to another on the Monday morning with their clothing, musical instruments and other school gear.  The father’s response when asked about such an arrangement was less than satisfactory.  He suggested that it would help if they had a “scheme in place”. However, he did not seem to be clear as to what the scheme would be and suggested that he could drop anything that was separate off to the other home as had happened in the past between the parents. 

6. While I accept cooperation has been a hallmark of the parties’ relationship, the father’s position in relation to equal time was dictated more by some desire for equality for equality’s sake rather than any particular benefit for the children. 

7. Both parents had commented that the existing arrangements worked well and the Family Consultant endorsed their assessment.  Furthermore, the Family Consultant’s evidence was that if the children were to stay in Canberra and the mother remained with them, it would be beneficial to the children to continue the current arrangement in order to “let the dust settle”. This will enable the children and the parents to have some stability after the strain of going through the litigation process and digesting the judicial decision.

8. These factors indicate that, at this point, an equal time arrangement is not in the best interests of the children. However, I note in the past the parents have cared for their children and made decisions about their living arrangements with flexibility. This may well mean that an equal time arrangement may come about naturally as the children grow older. 

9. Since I have found that an equal time arrangement is not in the best interests of the children, there is no need to consider whether it would be reasonably practicable.

Substantial and significant time

1. If a parenting order provides that the parents are to have equal shared parental responsibility and the Court does not make an order for equal time, the court must then consider whether the children spending substantial and significant time is in the best interests of the children and whether such an arrangement is reasonably practicable. If both of those matters are answered in the affirmative, the Court must then consider making an order to provide for substantial and significant time.[53]

   [53] Family Law Act 1975 (Cth), s 65DAA(2).

2. A child will be taken to spend substantial and significant time with a parent only if:[54]

   [54] Family Law Act 1975 (Cth), s 65DAA(3).

   (a)the time the child spends with the parent includes both:

   (i)days that fall on weekends and holidays; and

   (ii)days that do not fall on weekends or holidays; and

   (b)the time the child spends with the parent allows the parent to be involved in:

   (i)the child’s daily routine; and

   (ii)occasions and events that are of particular significance to the child; and

   (c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

3. I turn first to determine which of the proposals constitute substantial and significant time.

4. The time that the children would spend with the father in accordance with the orders proposed by the mother would not constitute substantial and significant time.  The father would not have time with the children in their ordinary daily school time routine.  The only way the father could be involved in the children’s daily routine, under the mother’s proposed orders, is if he came to G Town for more than a weekend during the school term. This is dependant on the father being able to raise enough money to travel to G Town regularly and obtain accommodation in which the children could live with him during some school time.  Given the father’s evidence about his current income, this seems unlikely.

5. Orders proposed by the father are orders for equal time.

6. If the children lived in Canberra and the mother remained there as well, and the children continue in their current arrangement, that would constitute substantial and significant time.

Whether substantial and significant time is in the best interests of the children

1. I consider the following factors together with the considerations about in relation to s 60CC.

2. A substantial and significant time arrangement would enable the children to maintain the loving and significant relationships they currently have with both parents. In Canberra, the children will experience a continuity of the stable environment they are currently living in. This is true not only in terms of the living arrangements with the parents, but with maintaining relationships with friends and continuity at school.

3. If the children were to move to G Town with the mother, they would be removed from the father. The Family Consultant’s evidence was that this is a significant relationship for the children and a loss of that relationship would be the matter that impacts most upon the children in their move to G Town. While the Family Consultant also gave evidence that these children have every thing in their favour to help them adjust to the changes in moving to G Town because they are secure, supported and well-adjusted children with no special needs, there are no guarantees that they would adjust well – you cannot make those predictions.

1. One factor that may militate against a shared care arrangement is the mother’s distress at being separated from Mr E. While there is evidence that the mother would be emotionally stressed and upset if the children remained in Canberra and she remained with them, there is no expert evidence about the extent of that distress and how it might impact on the children. I am therefore unable to make a finding that the mother’s grief would adversely impact on the children such that that impact outweighs the detriment to the children of separation from their father.

2. The mother’s separation from Mr E would also impose a financial burden upon her and Mr E and, subsequently, the children may not be able to enjoy the same level of extra activities that they currently do. However, on the evidence, I am not satisfied that the children’s taking part in fewer activities is enough to militate against a substantial and significant time arrangement with each parent.

3. For these reasons, I am satisfied that a substantial and significant time arrangement would be in the best interests of the children.

Whether substantial and significant time is reasonably practicable

How far apart the parents live from each other

1. If the children were living in G Town such arrangements would not be possible as the parents would live too far apart. 

2. If both parents resided in the Canberra region, a substantial and significant time arrangement would be possible as the parents would live in close proximity to one another.

The parents’ current and future capacity to implement an arrangement for the children spending substantial and significant time

1. The evidence has overwhelmingly indicated that, historically, the parents have had a cooperative and respectful co-parenting relationship. They have also been flexible. These factors are crucial in implementing a substantial and significant time arrangement. While the parents’ relationship is currently somewhat strained by the Court proceedings, their history and their capacity to be flexible and focus on the best interests of the children indicate to me that they are capable, in the future, of continuing to implement a substantial and significant time arrangement. However, whether or not this eventuates is another question.

The parent’s current and future capacity to communicate with each other and resolve difficulties that might arise in implementing a substantial and significant time arrangement

1. My comments above are relevant to this factor and I have nothing further to add.

The impact such an arrangement would have on the children.

1. In Canberra, the children would effectively be continuing the same arrangement that has been in place since early 2012. Thus, a substantial and significant time arrangement where the children spend eight days with the mother and six with the father is not likely to have a significant impact on the children. It would, in fact, continue the stability the children currently experience.

2. If the children were living in G Town with their mother and their father was in Canberra, attempting to implement a regime of substantial and significant time would, by any common sense measure, seriously disrupt both the children’s schooling and their friendships and other extra curricular activities. 

Such other matters as the Court considers relevant

1. The question of whether an arrangement for substantial and significant time would be reasonably practicable calls into question the issue about what reasonably practicable may mean.  I have discussed above the factors set out under s 65DAA(5). 

2. But absent from the nominated subsections of that Act is the effect on the mother of her having to remain in Canberra, if this were to be the case, and be separated from her husband.  There are at least two components for this effect.  The first is the financial capacity of the mother and Mr E to support that arrangement, about which I have commented previously.  Second is the issue of how the mother believed separation from Mr E would affect her.[55]

   [55] Mother’s affidavit, filed on 25 January 2013, [3]-[7].

3. The Family Consultant commented that the mother’s separation from Mr E would diminish her capacity to parent if she were distressed by the separation.  The issue however is not simply a case of saying the mother would be unhappy if she were to remain in Canberra away from Mr E.  To establish that this would in some way make the arrangements reasonably impracticable would require some evidence that her ability to parent would be adversely affected by her state of mind and/or psychological responses.  No such evidence was available to me and while I do not doubt for a moment that the mother would be significantly unhappy about the arrangement, her exceptional parenting qualities, which have been the subject of commendation from all associated with her, may well survive her distress.  In the end I could not conclude, on the evidence available, that it must necessarily be the case that her parenting would be impaired so as to make the arrangements not reasonably practicable. 

4. I conclude that a substantial and significant time arrangement would be reasonably practicable.

Parenting orders

1. In light of the considerations I have set out in relation to the best interests of the children in the context of the competing proposals, my finding that a substantial and significant time arrangement would be in the best interests of the children and reasonably practicable, I make parenting orders that the children remain in Canberra and spend time with each parent in accordance with their current arrangement. These orders are based on the mother’s evidence that she will remain in Canberra if the children are to remain here.

School holidays

1. Although the parties’ present arrangements for the children do not appear to have specific allocations of time during school holidays, the separation of the mother and Mr E may dictate a formalised division of time during school holidays. The parties may well reach their own agreement but I will make orders (in fairly standard terms) to take account of their possible failure to agree.

Other matters

1. Considerable attention was directed to Mr E who unquestionably was the catalyst for all these proceedings by his desire to more to G Town.  I wish to place on record the fact that, in my opinion, none of the parties in this matter including the partners of the parents, has behaved unreasonably or irresponsibly.  It is reasonable for Mr E to want to spend more time with his son.  I accept, as submitted on behalf of the father, that he chose to move to Canberra not to G Town when he transferred from his previous posting in Perth.  I accept also that the very criticisms he makes of the arrangement he currently has with F are criticisms which might be applied to the arrangements that would involve these children and their father if the children were to move to G Town.  I accept that the evidence of Mr E indicates he has been a little uncertain about what he plans to do after the completion of his current posting. While Mr E indicates he would likely stay in G Town, it is unclear whether he would be able to obtain another office type job in the Navy, or accept a sea-going position in order to obtain a promotion, or resign from the Navy.  All of those matters would have a bearing upon the viability of the arrangements in G Town for the mother and the children.  Nevertheless it is not necessary for me to reach any firm conclusions about the nature of the arrangements that Mr E seeks with his son.  It is the children the subject of these proceedings whose best interests I must take into account, even if that seems unfair and excludes the best interests of F.

2. It remains open to Mr E to follow a number of different courses, none of which I concede would be regarded as satisfactory by him. 

3. For example, he may choose, as is his currently expressed intention, to move to G Town even if the mother chooses to stay in Canberra to be with the children.  That would mean that for another two years, at least, the parties would be separated. (It was remarked that this is not entirely uncommon in the armed services). Mr E might then choose, as he appeared to be able to do so, to move back to Canberra.  The consequences of his doing so, of course, would be to interrupt his direct relationship with F – an unsatisfactory result from his point of view but a more satisfactory result from the mother’s point of view.

4. He could also choose, again at the expense of his relationship with F and his career in the Navy, to cancel his posting to G Town and remain in Canberra. 

5. I accept each option has disadvantages for Mr E.

I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 22 March 2013.

Legal Associate:

Date:  22 March 2013