Bryans & Franks-Bryans

FAMILY COURT OF AUSTRALIA

BRYANS & FRANKS-BRYANS

[2007] FamCA 377

FAMILY LAW – CHILDREN - With whom a child lives - Relocation- Consideration of Family Law Amendment (Shared Parental Responsibility) Act 2006 and principles to be applied to relocation - Best interests of the children - Consideration of views expressed by the children - Children exposed to conflict between the parties and between the wife and the husband’s partner - Effect of relocation on the children who are well settled - Practical difficulty and expense of the children spending time with the non-relocating party given the age of the children and distance they would be required to travel - Impact of the wife’s mental health on her capacity to care for the children.

FAMILY LAW – CHILDREN - Parental responsibility - Presumption of equal shared parental responsibility.

Family Law Act 1975 (Cth)
Family Law (Shared Parental Responsibility) Act 2006

AMS v AIF : AIF v AMS (1999) FLC 92-858
A v A : RELOCATION APPROACH (2000) FLC 92-035
H v L (2000) FLC 93-036
U v U (2002) FLC 93-112
BOLITHO and COHEN (2005) FLC 93-224:

APPLICANT:

Mr Bryans

RESPONDENT:

Ms Franks-Bryans

FILE NUMBER:

ADF

1888

2004

DATE DELIVERED:

30 April 2007

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

20 – 23 November 2006

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McGinn

SOLICITOR FOR THE APPLICANT:

Alderman Redman

COUNSEL FOR THE RESPONDENT:

Mr Pickhaver

SOLICITOR FOR THE RESPONDENT:

Jane Ekin-Smith

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Strickland delivered this day will for all publication and reporting purposes be referred to as Bryans and Franks-Bryans.

Orders

That the husband and the wife have the equal shared parental responsibility for the children of the marriage a daughter born in November 1995 and a son born in September 1999.
That SAVE AND EXCEPT during the Christmas school holiday period the said children live with the husband from the conclusion of school on Friday 11 May 2007 until the conclusion of school on the following Friday and during the same times in each alternate week thereafter PROVIDED THAT during all school holiday periods SAVE AND EXCEPT during the Christmas school holidays the handovers take place at 4:00pm on each Friday with the party with whom the said children have been living or his or her nominee delivering the said children to the residence of the other party.
That SAVE AND EXCEPT during the Christmas school holiday period the said children live with the wife from the conclusion of school on Friday 4 May 2007 until the conclusion of school on the following Friday and during the same times in each alternate week thereafter PROVIDED THAT during all school holiday periods SAVE AND EXCEPT during the Christmas school holidays the handovers take place at 4:00pm on each Friday with the party with whom the said children have been living or his or her nominee delivering the said children to the residence of the other party.
That during the Christmas school holiday period in each year the said children live with each party for one half of such holiday period with the handovers to take place at the residence of the party with whom the children are commencing to live.
That the times the said children live with each of the parties shall be subject to the following special arrangements:
(a) For the Christmas period:
(i)In 2007/2008 and in each alternate year thereafter the said children live with the wife from 12 noon on 24 December until 12 noon on 28 December and with the husband from 12 noon on 28 December until 12 noon on New Year’s Day;
(ii)In 2008/2009 and in each alternate year thereafter the said children live with the husband from 12 noon on 24 December until 12 noon on 28 December and with the wife from 12 noon on 28 December until 12 noon on New Year’s Day;
(b)On each child’s birthday the said children live with the party with whom they are not living at the time for a period of 3 hours at times to be agreed;
(c)In the event that the said children are living with the wife at the time, the said children live with the husband from 9:00am to 5:00pm on Father’s Day in each year;
(d)In the event that the said children are living with the husband at the time, the said children live with the wife from 9:00am to 5:00pm on Mother’s Day in each year.
That between 7:00pm and 8:00pm on the Wednesday of each week the party with whom the children are not living at the time is at liberty to speak to the said children on the telephone and the other party do facilitate this telephone communication.
That in the event that one or other of the said children is hospitalised, the party with whom that child is living at the time immediately notify the other party and that other party is at liberty to visit the said child daily during such hospitalisation period.
That in the event one or other of the said children suffers a serious illness or injury, then the party with whom that child is living at the time immediately notify the other party and provide details of the treating doctor or like professional.
That BY CONSENT each party be restrained and an injunction is granted restraining each of them from denigrating or abusing the other party or from permitting any other person to do so.
That pursuant to Section 62B and Section 65DA of the Family Law Act the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.
That all applications be dismissed and removed from the active pending cases list.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1888 of 2004

Mr Bryans

Applicant

And

Ms Franks-Bryans

Respondent

REASONS FOR JUDGMENT

Introduction

I have before me for determination competing applications for parenting orders in relation to the children a daughter, born in November 1995, and a son, born in September 1999.
The husband filed an Application for Final Orders on 6 December 2004 in which he sought parenting and financial orders, and on 19 July 2006 the husband filed an Amended Application for Final Orders in which he sought parenting orders.
At trial the husband sought the following orders:
3.1That the father and mother have equal shared parental responsibility for the children of the marriage a daughter born on in November 1995 and a son born on in September 1999 (hereinafter referred to as “the children”).
3.2That to enable each party to share in decisions relating to the health of the children, that during times that the children are living with or spending time with each of the parties, the other is to be notified:-
3.2.1in the case of an emergency, immediately;
3.2.2in the case of illness or injury that does not constitute an emergency, within 2 hours of the injury or illness occurring.
3.3That if the mother lives within 25 kilometres of U:-
3.3.1the children shall live with the mother:-
3.3.1.1in week one from the conclusion of school on Wednesday until 9:00am the following Sunday;
3.3.1.2in week two from the conclusion of school on Wednesday until the conclusion of school on Friday;
3.3.1.3for the second week of the April, July and September school holiday periods and for the second half of the Christmas school holidays.
3.4That if the mother lives more than 25 kilometres from U:-
3.4.1the children shall live with the mother:-
3.4.1.1for the whole of each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday, provided the mother ensures that the children attend their sporting activities and other activities in U during those weekends and that she does not take the children a distance greater than 50 kilometres from U during the contact on more than one weekend per month;
3.4.1.2for the second week of the April, July and September school holiday periods and for the second half on the Christmas school holidays.
3.5The children shall live with the father at all other times.
3.6That the children’s school term time with the father and the mother be suspended as from 9:00am on the first Saturday of each school holiday period until 9:00am on the first day of the next school term.
3.7That the times the children live with and spend time with each of the parties shall be subject to the following special days:
3.7.1for Christmas:
3.7.1.1in 2006 and each alternate year thereafter the said children live with the father from 12 noon 24 December 2006 until 12 noon 28 December 2006 and with the mother from 12 noon 28 December 2006 until 12 noon New Year’s Day;
3.7.1.2in 2007 and each alternate year thereafter the said children live with the mother from 12 noon 24 December 2006 until 12 noon 28 December 2006 and with the father from 12 noon 28 December 2006 until 12 noon New Year’s Day.
3.8On the said children’s birthday the day is to be spent with the parent with whom the child lives.
3.9That in the event that the said children are living with the mother on Father’s Day, that the said children live with the father from 9:00am to 5:00pm on Father’s Day.
3.10That in the event that the said children are living with the father on Mother’s Day, that the said children live with the mother from 9:00am to 5:00pm on Mother’s Day.
3.11That all handovers occur at the U School or in the event of a non-school day all handovers shall occur at the M Park, U, where the father or his nominee are at liberty to attend.
The wife filed a Form 1A Response on 5 January 2005 seeking final orders, and she filed an amended Form 1A Response on 25 October 2006.
At trial the wife sought the following orders:
5.1That the children do live with the mother
5.2That the mother be permitted to change the principal place of residence to the metropolitan area of Adelaide, South Australia
5.3That the mother to give and the father to spend time with the children as follows:
5.3.1on the fourth weekend of each month at U from Friday evening until Sunday evening such travel to be by car, or alternatively by bus or plane to P;
5.3.2on additional weekends during the month in Adelaide from Friday evening to Sunday evening as may be agreed between the parties;
5.3.3for 10 days during the April and October school holidays and for all of the July school holidays;
5.3.4for half of the Christmas school holidays at times to be agreed but if no agreement then for the first half of the 2006/2007 school holidays and each alternate year thereafter and for the second half of the 2007/2008 Christmas school holidays and each alternate year thereafter;
5.3.5reasonable telephone contact.
5.4That the costs of travel between Adelaide and U or P be borne equally by the parties.
5.5That in the event the court does not grant the mother’s application for relocation with the children to Adelaide and directs that the children remain in U then the mother proposes that the children spend time with their father as follows:
5.5.1each alternate fortnight during the school term time from Friday at the conclusion of school until the following Friday at the commencement of school;
5.5.2for the first week of short school holiday periods;
5.5.3for one half of special occasions access times may be agreed between the parties;
5.5.4at such further or other times as may be agreed between the parties.
5.6That an injunction be granted restraining the parties from denigrating or abusing the other partner or from permitting any other person to do so.

Factual Background

The wife was born in November 1965 and is now aged 41 years.
The husband was born in June 1970 and is now aged 36 years.
In March 1995 the parties commenced cohabitation.
In September 1995 the parties moved to A.
In November 1995 the parties’ first child a daughter was born and she is now aged 11 years.
From 1997 to 1999 the parties lived at N, then at B.
In July 1999 the parties moved to U.
The husband is a trained chef and during the period of the parties’ relationship he worked in various restaurants in the towns where they lived.
In September 1999, the parties’ second child, a son, was born and he is now aged 7 years.
In November 2000 the parties married.
In late 2000 the wife returned to work initially on a part time basis, and from February 2001 to October 2003 on a full time basis.
In mid 2001 the husband resigned his full time employment in P to be more available for the children.
The parties purchased a 10 acre property in U in early 2004.
The wife is a recovering alcoholic. She has not consumed alcohol since 8 October 2003. She commenced counselling at that time and was discharged as an ongoing client in April 2004.
In May 2004 the parties separated. The husband commenced living at the H where he was employed, but then he moved to rental accommodation in U.
From approximately April to October 2004 the parties attended mediation at Centacare in P.
On 24 September 2004 the parties entered into a “Memorandum of Understanding” in relation to the children. The terms of the agreement were as follows:
22.1The children will reside with the wife four nights per week and the husband 3 nights per week.
22.2The husband have full contact on a flexible arrangement more generally set forth as follows:
22.2.1every fourth weekend of the month from Friday night to Monday morning.
22.3Husband have contact on Sunday, Tuesday and Wednesday nights of each week any change subject to 24 hours notice and is negotiable between the wife and husband while within the care of the husband.
22.4All grandparents to have access to all children with at east 24 hours notice and to remain flexible whilst in the care of the husband.
22.5Birthdays of the children will be shared equally with each parent on the day unless the wife and husband agree with prior arrangements.
22.6The children are to spend the birthday period with each parent whose birthday it is.
22.7Christmas period 24 December 2004 to 30 December 2004 is to be by negotiation, with an opposite turn around per annum starting with the husband for Christmas 2004 alternating each year.
22.8Presents are to be limited to the retail value of $50.00 for each parent.
22.9In case of injury or serious illness the responsible parent will notify the other parent immediately within reasonable time.
22.10Both parents are responsible to advise the other parent of important dates in relation to the children’s activities.
In October 2004 the husband’s parents moved to U.
On 14 October 2004 the wife obtained a Domestic Violence Restraining Order from the P Magistrates Court against the husband restraining him from approaching or contacting the wife.
On 22 November 2004 the Domestic Violence Restraining Order was varied to only operate for 12 months and to remove the specific reference to the former matrimonial home.
In November 2004, the parties’ daughter was diagnosed with long sight and prescribed glasses.
On 6 December 2004 the husband filed a Form 1 Application seeking final orders in relation to the children and property settlement. The husband also filed a Form 2 Application seeking interim parenting and financial orders.
On 5 January 2005 Murray J ordered that the terms of the Parenting Agreement entered into by the parties continue during the period of adjournment until 1 May 2005 and that a Family Report be prepared.
On 1 March 2005, Judicial Registrar Forbes ordered by consent that the husband have contact with the children from 9:00am Sunday until school on Monday, after school Tuesday until school on Thursday and for 7 continuous days during the husband’s leave on no more than 4 occasions in 2005, provided the husband give the wife 14 days written notice of his intention and personally supervise the children for a substantial period of the contact time, and that for each 7 day period the husband has, the wife have equal consecutive time during school holidays. The husband also to have contact every 4^th weekend from after school Friday until school on Monday.
On 11 May 2005 the Family Report was provided by Dr A. She recommended as follows:
“79.It is respectfully recommended that [the mother] be permitted to relocate to Adelaide with the children [daughter] and [son].
80.It is recommended that following relocation, the children [daughter] and [son] begin alternate weekend contact with their father as negotiated between the parties, taking into account the distance to be travelled and the late hours that the children might be required to travel. If the parties, including the children, find the travel too onerous on an alternate weekend basis, then by mutual agreement the contact could be on a monthly basis or as otherwise agreed.
81.It is further recommended that the children share time with each parent during any school or other holidays. It is recommended that any travelling for contact be shared between the parents either by private vehicle or by public transport.
82.It is recommended that an updated family report is undertaken in twelve months time to ascertain the wellbeing of the children, the progress and circumstances of contact with their father and the progress and circumstances of the children’s primary residence with their mother.”
On 2 June 2005 a consent order for property settlement was made.
In July 2005, the husband commenced residing in a defacto relationship with Ms M, a teacher at the U School.
On 14 October 2005 the Domestic Violence Restraining Order expired.
On 21 October 2005 the wife reached a formal agreement with the school Principal regarding her attendance at the school. Subsequent letters of agreement were also signed by the school Principal and the wife on 6 December 2005, 17 February 2006 and 21 June 2006. The wife has breached these agreements.
On 27 October 2005 an incident occurred at the local supermarket. The husband and Ms M assert the wife physically prevented Ms M from leaving the store.
On 2 November 2005 Ms M obtained a Domestic Violence Restraining Order against the wife.
On 5 April 2006 an order was made for a further Family Report to be prepared.
In July 2006 the husband’s parents moved from U to W.
On 31 July 2006 Dr A provided her second Family Report. Her recommendations were as follows:
“58.It is therefore, respectfully recommended that [the daughter] and [the son] remain living within close proximity to [U] with their mother […] from Wednesday to Friday in the first week and from Wednesday to Sunday in the second week. The children would live with their father for the remainder of the time.
59.It is further respectfully recommended that in the instance [the mother] chooses to live in Adelaide or another place that is a long distance from [U], that the children remain living in [U] with their father and [Ms M] and that they spend time with their mother on a regular basis. If at all possible, taking into account the distances involved, the children should spend time with their mother on at least alternative weekends.
60.It is further recommended that in the instance that [the mother] chooses to live away from the children and not to maintain regular contact with them, that the children are given every opportunity to spend time with their mother. This might occur during the school holidays or at other times as mutually agreed between the parties. It is recommended that in the instance that [the father] and [Ms M] give an undertaking to the Court to facilitate to the best of their ability the children spending time with their mother on a flexible yet mutually agreed basis.”

In November 2006 a divorce order was made.

The current circumstances of the parties
The husband

At the time of the hearing the husband was living with his partner Ms M and her child L in a house property owned by Ms M, but they were about to move into a larger home purchased by her. That home is in U, it is a four bedroom stone home on a double block, and it is situated 500 metres to one kilometre from the school attended by the children. When the children spend time with the husband they will each have their own bedroom at this home.
The husband has retained the former matrimonial home at U and he rents it out.
The husband and Ms M have been living together in a defacto relationship since July 2005. They became engaged in October 2006 and they plan to marry in October 2007.
Ms M’s child, L is 5 years of age and she spends time with her father who lives in P on a regular and frequent basis.
The arrangements that have been in place for some time now entail the children spending time with the husband from 9:00am Sunday to the commencement of school on Monday, from after school on Tuesday until the commencement of school on Thursday, and on each fourth weekend from the conclusion of school on the Friday until the commencement of school on the Monday morning, and for one half of each school holiday period. These arrangements were put in place by order made on 1 March 2005 to fit in with the husband’s work as a chef. However, he is no longer in that employment.
The husband has been employed as an account manager with F since mid 2005. Their main regional office is in P. The husband travels between P, O and U visiting retail outlets five days per week. He works a 38 hour week and occasionally works overtime. His salary is $38,000.00 per annum plus bonuses.
The husband is also a trained and experienced chef.
The children attend U School where they are in Years 6 and 2 respectively. L also attends this school and Ms M is a teacher there.
The husband is available to take the children to school on the mornings when they are spending time with him, but sometimes they walk or go with Ms M. The children return home with Ms M and remain in her care until the husband arrives home from work between 5:30pm and 6:30pm.
Both children appear to be doing well at school and they have a number of friends there. The daughter’s best friend is H who lives on a farm outside U.
The husband’s parents lived in U for approximately two years until they recently moved to a property close to W which is approximately 50 kilometres from U.
The children’s general health is good although the daughter wears glasses and suffers from eczema and dry skin, and the son requires hearing aids.
In December 2005 the wife requested that both children be seen at CAMHS, but they were not able to be seen until April 2006. CAMHS then assessed both children as “low risk clients” with any difficulties with their behaviour being caused by the ongoing parental conflict and poor parental communication. Their file was closed in June 2006.
Both children attend karate lessons in P and they have the opportunity to engage in other activities in U and in P. The daughter enjoys horse riding and she has a horse which is agisted. The husband’s parents take the children to the karate lessons each Thursday.
The husband pays child support to the wife for the two children.
The husband is president of the U School Council, the governing council of the school attended by the children.

The wife

The wife lives in rented Housing Trust accommodation in U. That home provides suitable accommodation and facilities for the children.
The wife is a recovering alcoholic. On 8 October 2003 she ceased drinking alcohol and she commenced counselling at P. She was discharged as a client in April 2004.
The wife has also had difficulties with her mental health. She has been treated for depression for a number of years and in February 2002 she commenced a course of anti-depressants. In early 2006 she was thought to be suffering from Bi-polar Disorder but in August 2006 she was diagnosed with a border-line personality disorder. She continues to take medication daily, namely Aropax and Lithium Carbonate, and a mental health nurse from P visits her regularly.
The wife has casual employment as a cleaner but her primary source of income is Centrelink benefits.
The wife has undertaken a number of voluntary positions at the school attended by the children, but the evidence is unclear as to whether this is continuing.
The wife has had very little to do with her own family over the years. However, she has recently re-established her relationship with her mother who was and remains an alcoholic. She lives in G and is now 86 years of age. The wife also has an aunt who is 72 years of age and lives in D she has a sister who is 62 years of age and lives in L, and that sister has children and grandchildren of her own. Finally there is the wife’s cousin who lives in R. She now keeps in contact with these relatives by telephone and the occasional visit. Only her cousin though has travelled to U to stay with her and the children.

The issues in dispute

The primary issue is with whom and where the children are to live. The husband wants the children to remain in U living with the wife from Wednesday to Sunday in one week, from Wednesday to Friday the next week, and during one half of all school holidays, and living with him for the balance of the time. The wife wants the children to live with her in Adelaide and spend time with the husband in U each fourth weekend, in Adelaide on such other weekends as may be agreed, for ten days during the April and October school holidays, for all of the July school holidays, and for one half of the Christmas school holidays.
In the context of this primary dispute the following issues have emerged:
64.1The ongoing conflict between the parents, their failure to properly communicate with each other, and the effect of this on the children.
64.2The impact of the husband’s partner being a teacher at the U School, and the animosity that the wife exhibits towards her. This has led to restrictions being placed by the school on when the wife can attend there and where she can be. There is also a restraining order in place between the wife and Ms M, and at the time of the trial there was a pending assault charge against the wife.
64.3The view of the daughter as to where she wants to live and why. The daughter has informed the Family Consultant that she wants things to stay as they are and she has allowed the consultant to tell her mother this in her presence. Previously she had been telling her mother that she would like to live in Adelaide with her. The wife says that the Family Consultant has misinterpreted the views expressed by the daughter and in fact she cannot be taken as expressing a preference as to where she wants to live.
64.4The wife’s mental health. The husband has questioned the impact of the wife’s disorder on her ability to care for the children. The wife denies that it has any effect and she says that it is under control.
64.5The wife says that she is unable to live in U any more. She says that she is socially isolated, she has no support and she has no privacy. She says that in Adelaide she would have the support of her family and friends and she would be better able to cope with life in general. She says that the children would benefit significantly from moving to Adelaide with her. She says that in Adelaide they will have greater opportunities than in U. The husband denies that there is a need for the wife to move from U. He says that her proposals to relocate are “vague and uncertain” and in any event there is no need for the children to move. They will have to make substantial adjustments if they relocate. They have lived all their lives in the country and principally in U. They are stable and secure in the familiar environment of U and they are progressing well at school and generally.
64.6The impact on the children’s relationship with the husband if they relocate to Adelaide.
64.7The wife suggests that the children do not have a close relationship with Ms M. The husband and Ms M deny this.
64.8The wife suggests that the husband and Ms M have failed to support her relationship with the children and indeed that they have attempted to undermine the same. The husband and Ms M deny this. For their part, the husband and Ms M suggest that the wife has done everything in her power to prevent the children forming a relationship with Ms M.

The principles to be applied

This case involves the prospect of the children relocating to Adelaide from U. Although Adelaide is only 360 kilometres away or four hours by road, the proposed relocation is a significant issue in determining with whom the children should live.
Prior to the commencement of the Family Law (Shared Parental Responsibility) Act 2006 on 1 July 2006 the approach to determining a case involving the proposed relocation of a child’s residence had been settled by the High Court in AMS v AIF : AIF v AMS (1999) FLC 92-858 and the subsequent Full Court decisions of A v A : RELOCATION APPROACH (2000) FLC 92-035 and H v L (2000) FLC 93-036. There had been a more recent High Court case, namely U v U (2002) FLC 93-112, but that case did not alter the basic principles to be applied; what it did do was ameliorate the strict approach set out in A v A (supra). As was said by the Full Court in BOLITHO and COHEN (2005) FLC 93-224:
“72.We discern that the decision in U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.”
The High Court did stress though that the Court is not confined to a choice between the proposals of the parties. The objective is to achieve what is in the child’s best interests, but those interests may not be best served by what the parties put forward as appropriate arrangements for where the child will live and what time the child will spend with the parties. In that event all options that are open on the evidence need to be considered.
It is clear that there can be no dissection of the case into discreet issues, namely a primary issue as to with whom the children should live and a further or separate issue as to whether the relocation should be permitted (AMS v AIF : AIF v AMS, supra, per Gaudron J p.86,032). Further, the welfare or best interests of the child remains the paramount consideration but it is not the sole consideration. For example, the “legitimate interests and desires of the parent cannot be ignored” (AMS v AIF : AIF v AMS, supra, per Kirby J p.86,041). Moreover, a Court cannot require the applicant to demonstrate “compelling reasons” for the relocation of a child’s residence “contrary to the proposition that the welfare of the child would be better promoted by” maintenance of the existing circumstances (AMS v AIF : AIF v AMS, supra, per Gleeson CJ, McHugh and Gummow JJ p.86,027).
In A v A : RELOCATION APPROACH (supra) the Full Court set out in summary form the relevant principles to be applied as follows (p.87,551-87,553);
"In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:
·    The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.
·    A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances:
·    It is necessary for a court to evaluate each of the proposals advanced by the parties.
·    A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be 'permitted'."
·    The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.
·    It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection.
·    The object and principles of s60B provide guidance to a court's obligation to consider the matters in s68F(2) that arise in the context of the particular case.
·    It is to be expected that reasons for decision will display three stages of analysis and:
1.A court will identify the relevant competing proposals;
2.For each relevant s68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s60B;
·    As one, but only one, of the matters considered under s68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.
·    The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
·    Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.
3.On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.
·    The process of evaluating the proposals must have regard to the following issues:
a)None of the parties bears an onus:
·    In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.

b) The importance of a party's right to freedom of movement:
·    In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s92 of the Constitution, where applicable.
·    In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.
c)   Matters of weight should be explained:
·    In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.
·    In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court."

To return to U v U for a moment, I stress that it was the strict application of this three stage process which the High Court doubted. Gummow and Callinan JJ said this, at p.89,089:
“We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. Whether the Court is obliged, or will be able in every case to treat each of the three steps as discreet and in the suggested order may be another question. But the Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s.68F and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child’s best interests.”
In my view the changes brought about by the Family Law (Shared Parental Responsibility) Act do not alter the approach to be taken to these cases. The assessment of the competing proposals of the parties must still be carried out by reference to Part VII of the Family Law Act. However, the objects, the principles, and the factors to be taken into account in determining what is in the child’s best interests have changed, and there is a presumption that needs to be addressed, and these changes may very well affect the outcome in individual cases.
Turning then to Part VII as amended. Firstly, there are the objects of the provisions relating to children, namely:
(a)to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children; and
(b)to protect the children from physical or psychological harm; and
(c)to ensure that children receive adequate and proper parenting to help them achieve their full potential; and
(d)to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. (Section 60B(1))
Secondly, the basic principles underlying those objects are that except where it would be contrary to a child’s best interests:
(a)children have the right to know and be cared for by both parents; and
(b)children have the right to spend time on a regular basis with and communicate on a regular basis with both their parents and other people significant to their care, welfare and development; and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture. (Section 60B(2))
Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the Court in relation to that child, the Court must in determining whether to make orders regard the best interests of the child as the paramount consideration. (Section 60CA)
Under the provisions of Section 60CC, in determining what is in the best interests of the child, the Court must consider the following matters so far as they might be relevant in each particular case, that is:
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. (Section 60CC(2))
Additional considerations
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant. (Section 60CC(3))

The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other parent in fulfilling his or her parental responsibilities. (Section 60CC(4))
Each of the parents of a child has parental responsibility for the child subject to any order of the Court. (Section 61C)
Under the provisions of Section 61DA(1) when making a parenting order the Court must 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. However, this presumption does not apply in certain circumstances, namely if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence. (Section 61DA(2))
Further the presumption may be rebutted by evidence that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. (Section 61DA(4))
If the Court is to make an order that the parents of the child are to have equal shared parental responsibility for the child the Court must consider whether the child spending equal time with each of the parents would be in the best interests of the child. (Section 65DAA(1))
If the Court does not make an order for the child to spend equal time with each of the parents the Court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child. (Section 65DAA(2))

The proposals of the parties
The husband

The husband’s primary position is that the children remain in U and in each fortnight they live 8 nights with him and 6 nights with the wife. However, that is on the basis of the wife residing within 25 kilometres of U. If she lives outside that radius then the husband proposes that the children live with him in U and spend each alternate weekend with the wife provided that she does not take the children more than 50 kilometres away on more than one weekend per month. In either case the children spend half school holidays with each party and handovers occur in U.
As an alternative to the wife remaining in U or its environs the husband suggests that the wife could move to P which is 40 kilometres from U.
The husband proposes that the children continue to attend the U School up to and including Year 12. Thereafter for their tertiary education he says that there are TAFE campuses at P and X and the University of South Australia has a campus at X. But the children or either of them will be able to choose to go elsewhere for their tertiary education.
There are 250 to 300 students at U School and approximately 20 teachers. There are a wide range of subject choices and there is internet access at both the school and the public library. There are many excursions and activities that the school provides for its students.
U has a population of approximately 1,300 people. It is 360 kilometres from Adelaide or four hours by road. Public transport by bus is available but both parties agree that the children are too young to travel this way by themselves.
The husband says that he is settled in U and he has no intention of moving. He says the cost of moving would be prohibitive. He and his fiancée own real estate there, and his fiancée is employed full time at the school. His principal place of employment is in P but he travels regularly between P, O and U. He says that U provides a lifestyle and environment that assists the children and allows them to progress and develop appropriately. The son was born in U and the daughter has spent most of her life there. They have established strong friendships in U and the daughter is able to pursue her love of horse riding.
The husband’s parents now live in W but they are available to provide the husband with any support and assistance that he needs in raising the children, as they have done in the past.

The wife

The wife’s primary position is to relocate to Adelaide with the children.
She has contacted a real estate agent about rental accommodation in the S and Y area and she has looked on the internet, but she has not done anything more. She first proposed relocating in 2004 when she formed a relationship with a Mr B who lived in S, but that relationship has long since ended. At that time she inspected some properties in the area.
She has suggested that initially she may stay with her friends, the Gs, in the Adelaide Hills whilst she finds accommodation and looks for employment. In relation to the latter she now proposes to work part time around school hours. Previously she intended to study and then work full time, but she says she cannot do that given the state of her physical and mental health. In any event she has made no enquiries about work that might be available.
In relation to the children’s education the wife does not yet have any particular school in mind. In 2004 she had some information from F School. She has spoken to staff at Z School and she has spoken to the former Principal of the U School. She says that she needs to find a school that can meet the needs of the son, and there is one in K that she knows of. However, she has not yet attended any school to ascertain its suitability for the children.
The wife proposes that the children spend time with the husband on the fourth weekend of each month and on such additional weekends in Adelaide as may be agreed, for 10 days during the April and October school holidays, for all the July school holidays, and for one half of the Christmas school holidays. She also says that there should be “reasonable telephone contact”.
The wife proposes that the costs of travel between Adelaide and U be borne equally by the parties. In her affidavit she suggested that the parties meet at a half way point, but in her outline of case all she says is that the travel should be by motor vehicle, bus or plane to P. She does not say who is to travel with the children and she concedes in her evidence that they are too young to travel alone on the bus.
The wife says that she can no longer live in U. She sees relocation as the solution to the difficulties she has with the husband. She is unhappy, the employment opportunities are limited, she is socially isolated, she has no support, she lacks privacy, and there are no activities that she can engage in. In Adelaide she says that she will have the support of her family and friends, she will be able to obtain employment, and there are better prospects for the children in all areas of their lives. She says that the children will easily adjust to a move to Adelaide and they will be able to see their friends in U when they spend time with the husband. She sees that her parenting capacity, her wellbeing and her life choices will be constrained if she cannot relocate to Adelaide with the children.
The wife says that the husband could relocate to Adelaide as well. He is a qualified chef and he would easily obtain work. If he did that the wife would propose that the children live with each parent fortnight and fortnight about.
The wife rejects the notion of moving to P. She says that the crime rate is high, there are too many welfare recipients and there are no employment prospects for her or the children as they grow up. Indeed, she says that she would prefer to live in U rather than P.
The wife says that if the children are not permitted to relocate with her to Adelaide then she will stay in U and she would propose a fortnight and fortnight about arrangement.

The evidence

The husband was represented by Mr McGinn. He relied on his affidavit filed on 21 July 2006. He gave evidence and was cross examined.
The husband called two witnesses, namely his partner Ms M who filed an affidavit on 21 July 2006 and his mother who filed an affidavit on 19 July 2006. Both of these witnesses gave evidence and were cross examined.
The wife was represented by Mr Pickhaver. She relied on her affidavits filed on 5 January 2005, 21 February 2005 and 30 June 2006. She gave evidence and was cross examined.
The wife called two witnesses, namely her friend Mr G who filed an affidavit on 28 June 2006 and a retired school teacher Ms C who filed an affidavit on 18 August 2006. Both of these witnesses gave evidence and were cross examined. Ms C gave her evidence via a telephone link.
Pursuant to orders made in this court Dr A, Family Consultant prepared two family reports dated respectively 11 May 2005 and 31 July 2006. Both of these reports were before the court and at the request of the parties Dr A was called as a witness by the court allowing each party to cross examine her.
The husband gave his evidence reasonably well but from his manner and presentation it is obvious that he is as much the cause of the ongoing conflict between the parties as the wife is. Unlike in the initial stages of the separation though when he appeared to take no responsibility for the conflict with his wife, he was now prepared to acknowledge his part in that conflict. However, I gained the impression that he was still quite prepared to continue the fight. He still seems to have little appreciation of the wife’s circumstances in U and he has clearly gone out of his way to bring up anything even remotely negative about her. One prime example of this is his oral evidence that the children told him that the wife had been at the local hotel and placed a bet on the Melbourne Cup for them, and that he had also seen the wife at that hotel on one other occasion. When cross examined about why he raised this he said that he was not concerned about these things and he was just answering questions. However, I find that this was a disingenuous answer and that he deliberately raised it hoping that it would put the wife in a bad light given her history of alcoholism. Another example is the complaint that the husband makes that the clothes the wife sends with the children are often dirty. The daughter herself told Dr A that she was “saddened” that her father and Ms M should raise this when she does not think that the clothes are dirty at all.
The husband’s negative campaign against the wife is also readily apparent from what he has written in the communications book. However, this cannot continue, and the husband needs to be supportive of the wife’s relationship with the children and of her role in their lives.
I need not say much about the evidence of the husband’s mother. Understandably she is very supportive of the husband and the orders that he seeks. She confirmed the valuable role that she and her husband have played to date in assisting the parties and caring for the children when required. I reject the claim by the wife that the maternal grandmother and her husband have attempted to undermine the children’s relationship with her. The wife needs to understand and appreciate the love the children have for their paternal grandparents and be thankful for the assistance that they have given in the past and will inevitably provide in the future, wherever the children may be.
I was not impressed with the evidence of the wife or her presentation. It is difficult to explain but in terms of the latter, a paragraph from the report of the psychiatrist whom she saw in August 2006 perhaps best describes her. The psychiatrist said this:
“Examination revealed a woman slightly extroverted in manner and rushed and somewhat rambling in her speech, but there was no actual pressure or disinhibition and she could stop and reflect when pushed. There was no other disorder of thought form or content. Despite a superficially pleasant manner her affect overall struck me as lacking depth and it was only in the closing minutes, in response to some specific exploration that we were able to touch on genuine sadness. Even this she tended to joke about.”
In giving evidence the wife was facetious, condescending and shallow in many of her answers, but I proceed on the basis that this may be attributable to her borderline personality disorder. However, of real concern is her failure to follow up on psychotherapy as recommended by the psychiatrist.
I find that she is emotionally vulnerable, and she needs support. She readily admits to “crashing” as she describes it from time to time. In these circumstances it is vital that the mental health nurse is able to continue to see her on a regular basis and that she keeps up her medication.
Of significant concern to me though, and which perhaps cannot be explained away by her disorder, is her tendency to exaggerate her evidence, and on occasion to lie, or at the very least be deceitful. In this regard I highlight the following from the wife’s evidence:
109.1In examination in chief the wife described the Gs as the children’s “pseudo-family” yet in cross examination she agreed that the children had only met the Gs once in the last six months and that was the first time that the children had met the G children.
109.2The wife failed to include anything at all in her affidavit of evidence in chief in relation to her mental health, or to the referral to a psychiatrist, or to the increase in her medication. At one stage in her evidence she even denied that she suffers from mood swings despite conceding previously that a purpose of the medication she was taking was to control her mood swings.
109.3The wife categorically denied having any social life, yet when cross examined it became apparent that she engages in many activities in U and in P both with the children and by herself.
109.4The wife obtained a Domestic Violence Restraining Order against the husband on 14 October 2004 on the basis of allegations that in August 2003 the husband had raped her when she was intoxicated, that the husband increased his drinking after she stopped her drinking, that she saw him slap the daughter across the face with his open hand and that following separation he had attended uninvited and unannounced at the former matrimonial home and had harassed her. The husband denies these allegations.
I do not believe the wife in relation to the allegations that the husband raped her and that he slapped the daughter, and it is telling that these allegations did not feature in the wife’s case beyond the commencement of the proceedings.
109.5In paragraph 67 of her affidavit of evidence in chief the wife paints a picture of the daughter being withdrawn, unhappy and “nervy”, and she attributes the latter to the husband and his partner’s “strict regime of discipline”. However, in cross examination she did not include this in her reasons why she thought this of the daughter, and she was clearly caught out. Moreover, I find that she was attempting to mislead the court in her description of the daughter. The objective and independent evidence simply does not bear out her assessment. Dr A and the author of her school report (Exhibit H3) say otherwise. Similarly, the wife’s description of the son in paragraph 71 of her affidavit of evidence in chief was totally at odds with Dr A’s assessment and what was written in his school report (Exhibit H3).
109.6When the proceedings commenced in late 2004/early 2005 the wife was wanting to relocate with the children. Her reasons were in order to pursue her relationship with Mr B, to undertake studies at an Adelaide University, and to be closer to her family and friends. Subsequently she also expressed the view that education and employment prospects would be better in Adelaide. However, importantly, she did not suggest that a reason was unhappiness on her part in living in U, or that she was socially isolated. I find that these only became her reasons when she was not able to relocate initially. However, as the authorities emphasize the wife does not need to establish compelling reasons for relocating, and I bear this in mind when determining what is in the best interests of these children.
109.7In her affidavit material and in her outline of case the wife denied that she had breached the agreements with the school. However in cross examination she eventually conceded that she had in fact breached these agreements.
The evidence of Mr G was un-controversial. He and his wife are friends of the wife and I accept that they are prepared and able to assist her in relocating to Adelaide with the children if that is permitted.
Ms C gave her evidence by telelink and she was clearly distracted by her sister being unwell. When she was teaching at U area school she observed the daughter to change from her usual outgoing self and become withdrawn, and with the son she noticed that the opposite occurred. I accept that she made these observations but I do not accept her attempt to suggest that the changes were as a result of the husband’s conduct and that she “never” observed the children like this in the wife’s company. I consider that any changes to the behaviour of the children were caused by the fact of the separation and the ongoing conflict between the parties.
Dr A is an experienced Family Consultant with significant qualifications in social work, and her report and oral evidence have assisted me greatly in this case.
She first saw the parties, the children and the paternal grandparents in April 2005, and in her report of 11 May 2005 she recommended that the wife be permitted to relocate to Adelaide with the children. That recommendation was premised on a comparison of the nature of the relationship between the children and each of their parents, the prima facie acceptance of allegations made by the wife about violence, the recent reliance of the husband on support from his parents, the possibility of the husband relocating to Adelaide as well, comments by the children, and an assessment of the impact upon the children of the available options.
However, after again seeing the parties, the children, and the paternal grandparents in July 2006, Dr A in her report dated 31 July 2006 recommended that the children remain living within close proximity of U. Her reasons for this are best explained by reference to her evaluation in her report which I set out in full as follows:
“50.It appears that [the children] are currently being subjected to psychological harm in that they are exposed to ongoing high level conflict between their mother, and their father and [Ms M]. [The children] have articulated their fear and trepidation when they are in the presence of their fighting parents, when they acknowledge that their parents cannot speak on the phone, and when they realise the only form of parental communication is either hostile or through notes. [The son], particularly, has also expressed his confusion over living in two houses through the week on non-consecutive days.
51.[The mother] has suggested the children are suffering from the ongoing conflict. Each of the three parenting adults responsible for [the children] have acknowledged in different ways that the children have and do experience emotional and psychological detriment from the ongoing conflict. Each of the three adults with whom [the children] live, and upon whom the children rely for love, acceptance, nurture and support, agree that in some ways the meaningful relationships the children have with each parent are being compromised. Not one of the adults could propose a future for the children wherein the adult relationships could be improved to the extent that the children might enjoy experiencing their parents acting civilly, courteously and peacefully.
52.These children have expressed their love for both their mother and father, and their liking of [Ms M]. [The daughter] has expressed her desire to stay in [U] so that she can still enjoy both of her parents, her relationship with [Ms M], her school friends, her pets including her horse and the lifestyle to which she has become familiar. [The son] did not appear to be able to comprehend or visualise a life other than what he is experiencing now. [The daughter] expressed her potential unhappiness in the instance that her mother relocated to Adelaide without her and [the son].
53.It appears difficult to progress an outcome for these children in terms of with whom they live and with whom they spend time without one or the other of (sic) parties, particularly the subject children, being disadvantaged. The following options respectfully and compassionately take into account the disadvantages that may present to [the mother] and indeed, to the children.
Option 1
54.The first and preferred option is that [the mother] lives within close proximity to [U] and that the children live with her from Wednesday to Friday one week and in the alternative week the children live with her from Wednesday to Sunday evening. This option advantages the children in that they can remain living with their father and [Ms M] on a regular basis on consecutive days that may assist [the son] to settle into a routine that he can manage more easily. This option provides advantage to the children in that they can remain closely attached to all of their caregivers, particularly their mother, and to their friends and established place of living.
55.A disadvantage to the children of this option may be that [the mother] cannot find suitable accommodation, employment and social outlets within close proximity to [U]. The disadvantages may include ongoing parental inability to build a non-conflicted workable parenting relationship that benefits the children. They may also include implications for the children if [the mother] perceives that this option limits her life choices to remaining in a place of living not of her choosing and where she feels extremely pressured and unhappy. The additional implications for the children may be that [the mother] sees no real alternative but to move elsewhere by herself, leaving the children in [U] and seeing them on a less regular basis.
Option 2
56.When considering [the mother’s] proposal that the children relocate with her to Adelaide the disadvantages for the children appear to be substantial. This second and least preferred option means that the children would face upheaval from regular and frequent contact with their father and [Ms M], (sic) In addition they may be separated from country town living, their pets, grandparents and established schooling and friends. Another disadvantage that may arise from this option is that [the mother] may not be in a position to immediately find accommodation that would allow the children to make just one geographical move and just one change of schools.
57.This option may well require the children to travel between Adelaide and [U] on a regular basis to enable time being spent with their father and [Ms M]. The further critical disadvantage to this option is that [the daughter] has indicated her preference to remain in [U] so that she can live, for the most part, the way she always has with those she loves. The advantages with this option appear to be that the children would have the opportunity to maintain their close and loving relationship with their mother. This option might well also provide relief for the children, and their parents, from ongoing conflict.”

In cross examination she explained her reasons for changing her recommendation. She said that it was not only because of what the daughter said to her but there were the comments by the son about being confused, there was the fact of the husband being in a stable and settled relationship with his partner, there was the fact that U was now the husband’s permanent place of residence, and in general terms the advantages of the children remaining in U outweighed the disadvantages. Dr A conceded that neither option would necessarily overcome the problems created by the ongoing conflict between the parties, but at least in U the children are able to relate to a familiar environment and that will better enable them to deal with that conflict.

Section 60CC of the Family Law Act

I now turn to the factors that I must take into account in determining what is in the best interests of the children. (Section 60CC(2) and (3))

The Primary considerations

(a) the benefit to the children of having a meaningful relationship with both of the children’s parents;

There is no doubt that in this case the children will benefit from having a meaningful relationship with both of their parents. Currently they do enjoy the benefits of such a relationship but given the proposals of each party the issue is to provide a result which recognises the importance of having a meaningful relationship and which attempts to provide the children with the benefits of the same.
The phrase “meaningful relationship” is not defined in the Act, but some guidance is provided by the objects in Section 60B. One object is to ensure that the best interests of the children are met by:
“(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;” (Section 60B(1)(a))
Then there are the principles underlying the objects and one such principle is that except where it is or would be contrary to a child’s best interests,
“(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);” (Section 60B(2)(b))
It has been said that the objects and principles in Section 60B guide the interpretation of Section 60CC and for that matter Section 60CA. Now that may be the case, but the bests interests of the child are still the paramount consideration and that is quite apparent from the wording for example of Section 60B(1)(a) and Section 60B(2)(b).
Section 60CC(1)(a) clearly operates at the level of general principle, and is a reminder to the court of the importance of the benefits to a child of having a meaningful relationship with each parent. It requires the court to take those benefits into account but leaves the additional considerations in Section 60CC to determine whether those benefits can be achieved in each individual case consistent with the best interests of the child involved.

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

The wife has made allegations of violence against the husband but I do not accept the truth of the more serious of these allegations, namely that of rape and of hitting the daughter. However, I do accept that following separation the husband attended at the former matrimonial home at all hours uninvited and unannounced and harassed the wife causing her distress and frightening the children. Fortunately this behaviour ceased once a Domestic Violence Restraining Order was put in place, and although that order has now expired there has not been any repeat of that behaviour. I consider that it was a consequence of the separation and it occurred whilst emotions were still running high. That is not an excuse for the husband’s actions but it provides an explanation for the same. Importantly I find that there is no longer any need to protect the children from such conduct. To repeat, it has not happened again and there is no suggestion that it will reoccur in the future.
However, there are still two issues of concern under this heading. Firstly there is the behaviour of the wife towards the husband’s partner and the exposure of the children to that behaviour. The wife may have been justified in objecting to the son being placed in Ms M’s class so soon after the separation but that alone does not provide an excuse for how the wife has conducted herself, and she should be ashamed, particularly given the distress that she has caused the children as a result. She says that she has been harassed and victimised by Ms M, that Ms Mhas made false claims to the Principal of the school to prevent her from attending, that Ms M has attempted to alienate her from the children, and that Ms M has attempted to undermine her relationship with them. However, I reject these claims. It is the wife who has harassed Ms M, and the Domestic Violence Restraining Order that Ms M has obtained was well justified even though it has not yet been confirmed. In the meantime though that order will provide some protection for the children from being exposed to the appalling behaviour of the wife towards Ms M.
The wife just has to accept that Ms M is the husband’s new partner and as such she will have an important role in the lives of the children. She cannot continue to make the children feel guilty about having a relationship with Ms M.
The second issue is the impact on the children of the ongoing conflict and the lack of communication between their parents. The parents appear to acknowledge that this is happening and that it is detrimental to the children’s wellbeing but they both pay lip service to the need to bring a halt to their own behaviour. Sadly Dr A reported that, “not one of the adults could propose a future for the children wherein the adult relationships could be improved to the extent that the children might enjoy experiencing their parents acting civilly, courteously and peacefully”.
There is an obvious need to protect the children from the psychological harm they are suffering, but it will take the parents themselves to change their attitudes to each other to achieve that. In the circumstances, I need to make the orders that will provide the children with as much protection as possible from the effects of their parents’ behaviour. Dr A’s recommendation in this regard is to allow them to hold onto the things that they are familiar with.

The additional considerations

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

This is an important consideration in this case. Although the son was ambivalent in the views that he expressed to Dr A about where he wanted to live, the daughter indicated that she “would like it to stay as it is”. Dr A interpreted this as meaning that she wants to remain in U and share her life with both of her parents. Indeed, this was confirmed when the daughter agreed to Dr A telling her mother in her presence of her views. Dr A reports that the wife became “distraught following receipt of [the daughter’s] views regarding relocation”. Up until then the wife was under the impression that the daughter in particular would say that she would like to relocate to Adelaide, and the wife had said this to Dr A early in her interview with her.
The wife’s counsel submitted that the daughter’s expression of her views should not be seen as a wish to stay in U but rather as not wanting to choose and being neutral. He pointed to what both children had said to Dr A when she prepared her first report, the circumstance that the daughter had said to Dr A during the interview for the second report that she would probably change her mind (about not relocating) if her best friend H went away, that the daughter expressed concern if her mother moved to Adelaide without her and the son, and that neither child has much appreciation of the alternatives to living in U. The wife’s counsel also suggested that the children’s views were coloured by having just returned from a houseboat trip with their father.
As to the latter circumstance, although it cannot be entirely dismissed as a factor, like Dr A, I do not consider that either child’s views can be explained away by that recent positive experience with their father. I consider that both children have given a lot of thought to what they want and that the daughter genuinely wants to stay in U with both parents and that the son genuinely cannot decide. With the daughter, like Dr A I do not accept that she was saying that she did not want to choose. The issues that she raised when discussing this with Dr A indicates the depth of her thoughts about what she wants to do. Clearly her view was affected by the presence or otherwise of her best friend but I have no doubt that what she was saying to Dr A is that she does not want to move to Adelaide with her mother. That that is her view is also seen by her willingness for Dr A to tell her mother that in her presence.
In terms of both children’s appreciation of what Adelaide can offer compared to U, I have no doubt that the wife has discussed that with the children over time. I also have no doubt that any view expressed by either child to the wife previously about moving to Adelaide has been a view expressed on the basis of knowing what the wife wanted to hear and not wanting to upset her.
As for what the children told Dr A in 2005, there is no doubt that neither wanted to choose. The daughter did say some things that indicated she thought “it would be good to live in Adelaide” but in fact what she said demonstrated that the wife had been discussing with the children how they would have “lots of fun” in Adelaide and that they would be able to play with their mother and her then partner. It is telling that the daughter spoke of how “it would be easy to get a job and easy to get to uni”, namely precisely what the wife wanted to do herself!

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

The evidence indicates that both children have close and loving relationships with each parent, and neither party suggests otherwise.
The wife queries the children’s relationship with Ms M, but I find that they have a close relationship with her as well. The wife has a view that Ms M is attempting to displace her “in the affections of the children”, but I reject this claim. Indeed, I find that in the face of some appalling behaviour by the wife towards her Ms M has still supported the relationship between the children and their mother. She has also been able to establish and maintain a good relationship with the children despite the wife exposing the children to her views about Ms M.
I find that the children have a good relationship with Ms M’s daughter, L. Despite the children telling Dr A that she can sometimes be annoying, she clearly has an important role in their lives. They attend the same school and they play and carry on just like brother and sisters. The children also have established a good rapport with other members of Ms M’s family. They live in Adelaide and see the children on a monthly basis.
The children have a close and loving relationship with the husband’s parents. They have been directly involved in their care in the past and they continue to do everything they can to support the children and ensure that they have the best chance to succeed in life.
Unfortunately the children do not have the same close relationship with members of the wife’s extended family. For example, for a long time the wife’s mother had nothing to do with the wife and it has only been recently that they have patched up their differences. As a result the children only have a limited relationship with their maternal grandmother.
With other relatives of the wife, namely her sister, her aunt, and her cousin, they all live in Adelaide and the children have had little contact with them. However, the wife would propose to involve them in the children’s lives more than she has done in the past if she is able to relocate to Adelaide with the children.
I must say though that this was another area where the wife exaggerated her evidence and she was prepared to say whatever she felt would advance her case. I find that she exaggerated the past involvement of her relatives in the lives of the children and she was not entirely truthful about the reasons for that or why that would change in the future.
(c) the willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent;
Although each parent claimed that they supported and encouraged a close and continuing relationship between the children and the other parent, I find that in fact neither parent has lived up to this claim. Each has been entirely negative about the other, they have each fuelled the conflict between them, neither appears to be prepared to put aside their differences in the interests of the children, neither appear to be willing to communicate effectively, even in the interests of the children, both seem to be engrossed in their own positions, and neither is prepared to stand up and take responsibility for protecting their children from the conflict that they have created. They both should be ashamed of themselves.
The significance of these findings is that it is now a case of trying to find what is referred to in the literature as the least detrimental alternative. As Dr A says in her report:
“It appears difficult to progress an outcome for these children in terms of with whom they live and with whom they spend time without one or the other of (sic) parties, particularly the subject children, being disadvantaged.”
And, as she said in her oral evidence, none of the available options will overcome the problems created by the conflict between the parties in the absence of parental ability to negotiate any compromise, and therefore it will be best for the children to be able to hold on to familiar things, for example, by staying in U.
(d) the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:
(i)either of their parents; or
(ii)any other child, or other person (including any grandparent or other relative of the children), with whom they have been living;
This is an important factor in this case. To move to Adelaide to live with their mother will bring about significant changes in the children’s lives. Not only will they have to adjust to a new environment, a new home, a new school, and making new friends, but they will have to adjust to not seeing their father as often as they do now, the travel that will be involved in spending time with their father, not seeing their paternal grandparents as often as they do now, the “loss” of their friends in U, and the “loss” of their pets.
The wife suggests that the children will eventually adjust to the changes required and they will benefit from better facilities and the greater “range of opportunities” available to them in Adelaide. She also suggests that a distinct advantage of relocating will be the reduction in tensions between the parties and the lessening of the exposure of the children to the conflict between them. Although she did not say it directly, impliedly the wife is also saying that she will be happier living in Adelaide and that will impact positively on the children.
Although there was previously some suggestion that the husband might move to Adelaide if the children relocated, that is no longer the case and thus I proceed on the basis that he would remain in U.
It is probably correct to say that the children will adjust to change over time, but there are no guarantees of that, and there is also no telling what effect those changes will have on them. In any event the ultimate question is whether it is in their best interests to have to make these changes at all in the context of with whom they should live.
The wife presented no evidence other than her own general statements of how life in Adelaide will be “better” for the children in terms of facilities, opportunities, lifestyle and the like. Thus I am not prepared to find that “city life” will provide more advantages and benefits for the children than “country life”. Indeed, the evidence is quite clear that the facilities in U are perfectly adequate to cater for the health, education and lifestyle needs of the children.
Next, I do not accept that a move to Adelaide will lessen the conflict between the parties. They will still need to communicate and work together in raising their children, particularly on the basis that they will at the very least each have parental responsibility regardless of where the children live (Section 61C). It is not a change of location that is required, but a change of attitude by both parties, and there is no indication that that will happen in the immediate future, again, regardless of where they live.
As to the wife’s “happiness”, I am not satisfied that that is a real issue for the wife. I have already commented on how the wife did not directly raise it in her affidavit material, and I have also commented on the wife’s presentation and I consider that she is not entirely genuine about this aspect of her case.
One of the most important considerations under this heading is the effect on the relationship between the children and their father of the children relocating to Adelaide and living primarily with their mother. Typically the wife has given scant consideration to this. I find that on the basis that the conflict between the parties will continue, and on the further basis that the wife has shown little inclination to support or encourage the relationship between the children and their father, that such a change of circumstance is likely to have a negative impact on the relationship between the children and their father. They need his physical presence in their lives on a continuous basis. This is apart from the immediate effect of uprooting the children from their settled, familiar and comfortable existence in U.
On the other hand, if the children remain in U, it seems it is imperative to change their current living arrangements. These arrangements were put in place to suit the husband’s work commitments, but the husband is no longer in the same employment. Importantly though there is the recent circumstance of that arrangement causing confusion for the son. The problem is obvious, and it is the frequent changes in where the children are living. It astounds me that the parties have not acted themselves to overcome this problem, but it is another example of their conflict and their inability to properly address the emotional needs of the children. The solution is simple, namely, the children spending longer with each parent and reducing the number of handovers.
Even now though the parties cannot agree on how long the children should be with each parent if they remain in U. The husband adopts the recommendations of Dr A in her report, but the wife proposes that the children spend alternate fortnights with each party. Her only reason for this is because she says she knows another family which has this arrangement and it works for them. Clearly that cannot be a basis for imposing such an arrangement on this family, and it certainly does not find any favour with me on the basis of the evidence I have heard. Either it should be as Dr A recommends or alternatively week and week about to ensure that the children have the continuity that they need with each parent. A fortnight is far too long to spend away from either the wife or the husband.
(e) the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis;

This is highly relevant in the context of the orders sought by the wife. If the children are permitted to relocate with the wife to Adelaide the distance between U and Adelaide will create difficulties in the children travelling to and from U for the purposes of spending time with the husband. U is four hours by road from Adelaide and until the children are old enough to travel by bus between Adelaide and U or by air between Adelaide and P by themselves the parties will have to transport the children by motor vehicle. That will impact on the time that the children can spend with the husband given they will be attending school in Adelaide and they will have sporting and other activities there on the weekends. The children will also have to spend a good deal of time travelling between Adelaide and U.
One option to lessen the impact on the children of all this is for the parties to share the travelling, but that still leaves many of the practical difficulties in place.
The husband suggests quite correctly that the practical difficulties could be overcome with the wife herself say moving to P, but the wife is not interested in that option.
However, even more important than the practical difficulties is the effect on the relationship between the children and the husband of the wife and children relocating to Adelaide. I have already found that there will be a negative impact on that relationship if such a relocation occurs.
(f) the capacity of:
(i) each of the children’s parents; and
(ii)any other person (including any grandparent or other relative of the children);
to provide for the needs of the children, including emotional and intellectual needs;
I find that both parties can capably provide for the physical needs of the children. The husband has made allegations about the wife’s care including that she sends the children to him with dirty clothing, but I reject these allegations and find them to be totally unjustified.
The husband has attempted to suggest that the wife is still drinking alcohol and that she gambles. I confirm though that I reject these allegations and I find the husband had no legitimate basis for making them. It was nothing more than an outrageous attempt to cast doubt on the wife’s ability to care for the children.
I do have concerns though about the wife’s mental health and how that impacts on or may impact on her capacity to care for the children. The wife has a borderline personality disorder and she suffers from depression. There was concern that she had a Bi-polar Disorder but that has now been discounted.
The wife experiences mood swings. According to Dr D, Psychiatrist, “there are periods of wellbeing lasting at most 10 days followed by periods of despondency, usually in response to environmental triggers and typically lasting only a few days” (Exhibit H9). She takes medication for her condition.
There is no direct evidence of how the wife’s mental illness impacts on her capacity to care for the children, but my general concern is heightened by her failure to disclose the state of her mental health in her affidavit, or to Dr A, or to this court. The extent of her illness was only established through documents subpoenaed by the husband and through cross examination of the wife. However, I am prepared to give her the benefit of the doubt and proceed on the basis that her medication controls her illness and at this stage there are no difficulties with her physical care of the children.
In the past, although the wife was primary caregiver to the children for most of the time, and I reject the husband’s claim otherwise, there were occasions when the husband took over their primary care and when the husband’s parents did so as well. This was particularly the case when the wife was drinking heavily prior to September/October 2003, and during the periods when the wife was working; indeed at one point the husband changed his employment and his hours of employment to be more available to care for the children. With the parents, they primarily helped out when both the husband and the wife were working full time, but they also assisted when the wife was not attending to the needs of the children as a result of her drinking habits. At the time the wife displayed little interest in the care of the children or the home and she was often absent for lengthy periods of time. Even when she was home she would spend a lot of time in bed hung over and the husband and/or his parents would do the housework and look after the children. However, the wife stopped drinking in October 2003, she is now only working on a casual basis, and subject to keeping her depression and mood swings under control she should have little difficulty in providing care for the children on a day to day basis.
In relation to the children’s intellectual needs, both children are doing well at school and both parents should be able to take credit for supporting and encouraging the children in their school work. The wife though has made it difficult for them with her appalling behaviour both at the school and generally towards Ms M. There is no excuse for this, but it is pleasing that the children have been able to put this aside and get on with their school work. The wife of course can take no credit for that.
With the children’s emotional needs I find that neither party has been demonstrating the capacity to meet those needs appropriately. I confirm that there is ongoing conflict between the parties and they are unable to communicate with each other. They each acknowledge that their conflict impacts on the children, but they continue to expose the children to the same. They are each engrossed in their own positions and they look to criticize the other of them at every turn. No genuine attempt has been made by either of them to protect the children from the detrimental effects of their own conduct.
The wife took the children to the CAMHS for counselling for what she perceived as their unsettled behaviour, but she apparently had no concept that the problems the children and in particular the daughter were having were a reaction entirely to the ongoing parental conflict, as found by CAMHS.
I also repeat my findings that neither parent has shown any inclination to support or encourage the other parties’ relationship with the children.
In these circumstances, I have serious concerns about the impact on the emotional and psychological health of the children in having to deal with their parents’ conflict.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant;
The only issues here relate to the background of the wife and the lifestyle of the husband. For the wife’s part there is her alcoholism which clearly caused disruption and distress in the household and impacted on the care of the children. She has also suffered and continues to suffer from mental health difficulties, but to repeat, there is no evidence that this has impacted directly on the children to this point. Perhaps though it has shaped her outlook and views, and to that extent it is relevant and can explain some of her conduct and indeed her presentation to this court.
In relation to the husband, the history of this matter is very much about the husband pursuing his preference to live and work in the country, and the wife sacrificing her career and her preferences to follow him. At times she has had to put up with less than ideal living conditions, isolation, and lack of support and assistance. However, I note that that cannot be said about the time that the parties have spent in U.

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

This is not a relevant factor here.
(i) the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents;
At different times each parent has demonstrated positive and negative attitudes towards the children and to the responsibilities of parenthood. Unfortunately though there are more examples of a negative attitude than a positive one, and overall each party has performed poorly. This has to be a symptom and a consequence of the ongoing conflict between the parties, their lack of communication, and their inability to put aside their differences and work together in the interests of their children. As Dr A said in paragraph 12 of her report of 31 July 2006:
“12.Issues of concern identified during this assessment are that [the children] appear to be exposed to considerable conflict during their daily lives. They appear to experience psychological harm by being exposed to ongoing conflict between their parents and between their mother and [Ms M]. The conflict occurs in their immediate wider and school communities, when their parents accidentally meet. Conflict has allegedly occurred when contact has occurred between [Ms M], who is a teacher at the children’s school, and [the mother] when she is attending school functions and activities…”
Both of the parties have failed to shield the children from exposure to their conflict, and there is ample evidence of this from the children themselves. For example the daughter relayed to Dr A when she was interviewed for the purposes of the first report that “she was very sad when they (her parents) were fighting and they would have to go into the lounge or their bedrooms and shut the door”. Again, when interviewed for the purposes of the second report, the daughter said it is a “bit scary when they don’t all like each other, they will never forgive each other, and they won’t get back together again, they get angry at each other”.
The parties use a communications book but it is apparent from a perusal of what each party writes in that book (Exhibit H8) that they use it as a vehicle and an opportunity to “have a go” at each other rather than as a medium for conveying information about the daily needs of the children. They each try to outdo the other in sarcasm and condescension, and they fail to tell the other of issues that are important for them to know. For example, the wife did not tell the husband that she was taking the children to CAMHS for counselling, and the husband did not tell the wife that he was taking the son to the doctor in relation to his hearing difficulties and that he was subsequently referred to a specialist.
Particular examples of the husband’s attitude are as follows:
172.1On a positive note, and as referred to already, at times during cohabitation the wife was unable to attend to the needs of the children because of her drinking habits and her consequent disinterest in her family and her home. The husband rearranged his work schedule and took on the responsibility of caring for the children and attending to household tasks at these times, albeit for some of that time he had to rely on his parents. In a similar vein, when the wife took on full time employment the husband willingly rearranged his schedule and his work commitments in order to attend to the needs of the children and to the household tasks when the wife was working.
172.2The husband is a strict disciplinarian and in the past he has not been concerned about physically disciplining the children or about yelling and shouting at them. However, to his credit he says that he has learnt from Ms M new behaviour management techniques and he now adopts a “time out” approach to discipline.
172.3A bi-product of the conflict between the parents has been the preparedness of the husband to question the children about their mother and to tell them of his concerns about her behaviour. However, to involve the children in the conflict and adult issues in this way is to completely overlook their interests and in particular their emotional needs.
172.4The husband has made it difficult for the wife to maintain regular telephone communication with the children. For example, if the children are doing something when the wife telephones the husband sometimes does not permit her to speak to them. He also sometimes refuses to let them return her telephone calls.
In a similar vein, at times, the husband has refused to be flexible with contact arrangements. For example, because the wife asked him to look after the children during the September/October 2004 school holidays he initially refused to let her see the children after she returned from Adelaide. Eventually he relented, but by then the damage had been done. Another example is the husband’s refusal to consider last minute changes to arrangements suggested by the wife.
172.5It is common ground that the parties are unable to communicate with each other. For the husband’s part, when he telephones the wife he only does so to tell her something and hangs up when she starts to speak. This appears to be an example of the husband’s general attitude to the wife. In other words he makes no attempt to cooperate or negotiate with her. He puts his position and his views and will not listen to what the wife wants to say. He asserts that he does this because the wife starts shouting and arguing with him. I accept that she probably does this, and that is a problem in itself, but it is still no excuse for not communicating when the interests of the children are at stake.
Fortunately though there are some signs of a shift in approach and in recent times the parties have been able to agree the time the children will spend with each of them during school holidays.
172.6The husband also takes no responsibility for the inability of the parties to communicate. Dr A reports him as saying to her that the difficulty in achieving a “good working relationship” is because the wife “cannot communicate”. Certainly, the wife is not prepared to communicate properly in the interests of the children, but nor is the husband. The sooner he recognises this and takes responsibility for his own actions the sooner a solution can be found. The wife, of course, will need to do the same.
172.7As I have already referred to, the husband conducted himself inappropriately following separation when he harassed the wife and attended unannounced and uninvited at the former matrimonial home, and then when he moved back in forcing the wife to obtain a Domestic Violence Restraining Order against him. This conduct clearly impacted on the safety and wellbeing of the children and was thoughtless on the part of the husband.
172.8The husband demonstrated a lack of insight as to the impact on the son of being placed in Ms M’s class at school, and particularly given the wife’s opposition to it. The husband says he could see no disadvantages of the son remaining in her class and he fully supported it continuing. Ultimately though the correct decision was made and the Principal removed the son from that class.
172.9The husband has made it difficult for the wife in U by both publicly and privately denigrating her. This clearly has had a flow on effect to the children.
172.10The husband has refused to return the children to the wife’s home after they have spent time with him and he insists on the handover taking place at a playground. There appears to be no good reason for this, and it merely serves to further impress upon the children the conflict between their parents.
172.11To repeat, the husband has little or no appreciation of how the conflict between he and the wife impacts on the children. For example, as reported to Dr A the children spoke of being “saddened” when the husband and Ms M complained about the state of their clothing that the wife supplies. It is clear from their comments though that there is in fact nothing to complain about. Again, once the husband found out that the wife had taken the children to CAMHS, he spent time with the counsellor complaining of the conduct of the wife implying that she was the cause of the children’s difficult behaviour. It is clear from Exhibit H4 that the counsellor had to then spend time with the husband (as with the wife) discussing common childhood behavioural issues following parental separation and providing strategies to manage these issues.
172.12To also repeat, following separation the parties reached agreement about the time the children would spend with the husband and it was structured around his work commitments. However, in recent times that arrangement has become disruptive to the children and has even caused confusion in the son’s mind as to when he is to spend time with each parent. Nevertheless, despite a change in his employment the husband made no attempt to change this arrangement and it has continued. In cross examination he conceded that if he had been thinking of the children he would have actively pursued a change, but the fact of the matter is he did not, and not even following this concession in open court.
With the wife, it is apparent that the same or similar comments can be made about her attitude as I have made about the husband’s, but I highlight the following further examples:
173.1The wife has let her hostility towards the husband impact directly on the children. For example on 25 June 2005 there was an incident outside a supermarket when the wife asked the son to come to her for a cuddle. The husband said to the son that he could go to his mother but he did not have to. The child went to his mother and in his presence she said to the husband, “if the child wants a cuddle then fucking let him”. Of course, the husband must also accept some responsibility for this given the inappropriateness of saying to the son that he did not have to go to his mother. That clearly placed the child in an invidious situation.
173.2The wife’s reaction to the presence of Ms M in the lives of the children and as the husband’s new partner has been appalling, and in behaving as badly as she has she has lost sight of the needs of her children. For example, she has followed, harassed and abused Ms M to such an extent that the wife is the subject of a Domestic Violence Restraining Order and an assault charge, and she is restricted in when and where she can be at the school. Incidents have occurred both at the school including in the classroom and at various places in the township, and more often than not the children have been present. As a result the children became upset and exhibited disturbed behaviours. However, the wife has had little or no appreciation that she has been a large contributor to this behaviour evidenced by the fact that she took the children off to CAMHS to only be told that the children’s behaviour was a reaction to the separation and the conflict that they are exposed to!
173.3The wife has not confined her abusive and intimidating behaviour to Ms M. She has also done the same to the husband’s parents including when they have been collecting the children from school. Again the children have witnessed this and are disturbed by it.
The final and most telling comment about the respective attitudes of the parents comes from Dr A. To repeat, she said this in her evaluation:
“51.[The mother] has suggested the children are suffering from the ongoing conflict. Each of the three parenting adults responsible for [the children] have acknowledged in different ways that the children have and do experience emotional and psychological detriment from the ongoing conflict. Each of the three adults with whom [the children] live, and upon whom the children rely for love, acceptance, nurture and support, agree that in some ways the meaningful relationships the children have with each parent are being compromised. Not one the adults could propose a future for the children wherein the adults relationships could be improved to the extent that the children might enjoy experiencing their parents acting civilly, courteously and peacefully.”
This is a sad indictment of the parents and their attitudes and does not auger well for the future.
(j) any family violence involving the children a member of the children’s family;

I addressed this issue when considering the primary considerations and I do not need to repeat what I said there.
(k) any family violence order that applies to the children or a member of the children’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
There have been two Domestic Violence Restraining Orders in this case, the first being against the husband and the second against the wife. With the first, that arose out of the husband’s behaviour following the separation but it has long since expired and there has been no repeat of that behaviour by the husband. Thus, I do not consider the restraining order to be of any direct relevance now.
With the second, that is the restraining order obtained by Ms M against the wife. However, that is not yet a final order and the wife is contesting the making of the same. Thus it is not able to be taken into account under this heading.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children;
Each party submits that the order he or she seeks will dispense with the need for further litigation. However, I do not agree with either submission. No matter what order is made, as long as the parties maintain their conflict, the likelihood of further litigation will remain. Thus it is in the hands of the parties themselves to act in the best interests of their children.

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

Each party raised issues under this heading but I consider that they are misguided. They are all matters that have been considered already and I do not propose to say anything further about them.

Section 60CC(4)

As referred to above, pursuant to Section 60CC(4) of the Act the court must consider the extent to which each party has fulfilled or failed to fulfill his or her responsibility as a parent. I have considered this important issue when addressing Section 60CC(3)(c) and (i) of the Act, but in relation to some specific matters I make the following comments:
180.1There has not yet been the opportunity for the parties to participate in making decisions about major long term issues such as education, religion and cultural upbringing, but each party has certainly failed to fully inform and involve the other of them in all of the important issues in relation to the health of the children. For example, the wife failed to tell the husband that she was taking the children to CAMHS for counselling, but fortunately the husband subsequently became aware of this from the children and he was able to participate in the process.
For the husband’s part, he did not inform the wife of what was happening with the son’s hearing difficulties until after he had been fitted with hearing aids. Prior to this the husband had taken him to the General Practitioner and then to a specialist in Adelaide without telling the wife.
These are not just examples of a lack of communication between the parties but a failure to appreciate the role of both parents in the lives of the children.
180.2To repeat, the husband has failed to always facilitate the wife communicating by telephone with the children and there have been occasions when he has not permitted the wife to see the children when there should have been no impediment to this occurring apart from the inflexible attitude of the husband.
180.3On a positive note though the husband has taken every opportunity that he has been offered to spend time and communicate with the children.
180.4Finally, it is noteworthy that both parties have fulfilled their respective obligations to maintain the children. There has been no issue raised about the child support the husband now pays, and although the wife suggested in evidence that she had asked the husband to pay some school fees and he had refused, the husband denied any knowledge of this, and I accept his evidence in this regard.

Parental responsibility

The husband seeks an order that the parties have the equal shared parental responsibility for the children, but the wife did not seek any order about parental responsibility.
Of course, regardless of what the wife wants, pursuant to Section 61DA of the Act prima facie the court is obliged to apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility for the children. The presumption does not apply though in certain circumstances, and it can be rebutted. In this case there is no basis for not applying the presumption, and despite the convoluted submissions of the wife’s counsel I do not consider that there is any evidence that satisfies me that it would not be in the best interests of the children for the parents to have equal shared parental responsibility for them. Thus I propose to make an order that the parties have equal shared parental responsibility for the children.
On that basis I am required under Section 65DAA of the Act to consider whether the children spending equal time with each of the parents or spending substantial and significant time with each of the parents would be in the best interests of the children, and if either is, I am required to make orders accordingly.
If the children are permitted to relocate to Adelaide with the wife then there can be no doubt on the evidence that the children spending equal time with the parents is not reasonably practicable, and nor would it be reasonably practical for the children to spend substantial and significant time with the husband as defined in Section 65DAA(3). However, it would be possible to construct an order that provided for the children to spend close to substantial and significant time with the husband.
On the other hand, if relocation is not permitted and both parties and their children remain living in U and its environs then I consider it would be in the best interests of the children to spend equal time with each parent. There is of course an ongoing conflict between the parents and they cannot communicate properly but this is not a case where those usually insurmountable difficulties should prevent there being equal time. The wife’s alternative proposal calls for it, and although the husband’s proposal provides for the children to live with him 8 nights out of every 14, I do not understand that he necessarily opposes equal time. Indeed, he just adopted Dr A’s recommendations, and Dr A herself has said in evidence that equal time would be appropriate. The children, and particularly the son, need to have a continuous period with each parent, and once these proceedings are over, and the dust has settled, I sincerely trust that the parents will be able to put aside their differences and work together in raising their children. However, even if they cannot, there are still sufficient advantages to the children having equal time with each parent.

Conclusion

Having regard to the evidence, the submissions of the parties and the principles relevant to my determination, and including in particular the objects and principles set out in Section 60B of the Act, I find that it is in the best interests of the children that they spend time equally with their parents in U and its environs. Specifically, the children should spend alternate weeks with each parent save and except during the Christmas school holidays in each year when they should spend one half of that school holiday period with each parent. It is also in their best interests for the parents to equally share the parental responsibility for each child and for there to be telephone communication between the children and the parent with whom they are not spending time.
The children are well settled in U, the son was born there and the daughter has spent most of her life there, they are doing well at school, they have firm friendships in the town, they live in comfortable and familiar surroundings, they have their pets and the daughter has her horse. The daughter, whose views should be seriously taken into account, wants to remain in U, but understandably the son who is still only 8 years of age is ambivalent and does not want to choose. Clearly both children love each of their parents and they want to see them on a frequent and regular basis. That can really only be achieved at an appropriate level if the parties and the children remain in U.
The wife suggests that the children will have better opportunities if they live in Adelaide, but there is no evidence of that. There is also no evidence that the facilities and opportunities in U are lacking or that the children’s needs cannot be met there.
In reality I find that the proposed relocation is more about the wife’s needs than the children’s needs. She says that she is unhappy in U, that she is socially isolated, that there are limited employment opportunities, and that she is without support from family and friends. However, she did not present any alleged impact on the children of her unhappiness as a reason for relocating, and in any event I have found that her life in U is not entirely as she makes out. It must be remembered how this all started, namely, in 2004 the wife had formed a relationship with Mr B who lived in Adelaide, and the wife wanted to move there to further her relationship with him, she wanted to pursue studies and then take up work again, and she wanted to see more of her family and friends. The children were somewhat incidental to what the wife wanted to do with her life at the time. Now, Mr B is no longer on the scene but the wife still wants to relocate. However, her proposals are vague and uncertain, and I do not necessarily accept that she will have the support of her family. She really has no idea what she will do for accommodation or where the children would go to school, or indeed what she will do herself. She says that she just wants to leave U.
It could be said that the wife wants to escape the ongoing conflict with the husband, but I do not accept that that is the case either. The wife is the cause of the conflict as much as the husband is and they both continue to fuel it. It may be that the wife’s mental health is an issue, but although she suffers from mood swings and depression it seems that she is able to control it with medication and lead a normal life.
In any event, my decision has to be about what is best for the children, and not what is best for the adults. For the children to move to Adelaide they would be unnecessarily uprooted from their comfortable and familiar existence in U, and they would not have as meaningful a relationship with their father as they would if they remained in U. In U they still have to deal with the ongoing conflict between their parents, but as Dr A says, they can better deal with that in a familiar environment.
They would need to make many adjustments to their lives if they relocated to Adelaide, and although they may achieve that eventually, the question has to be asked, why do they need to at all?
Under Section 60B(1) of the Act an object of the Part is to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives, under Section 60B(2) a principle underlying the objects of the Part is that when it is not contrary to the child’s best interests children have a right to spend time on a regular basis with, and communicate on a regular basis with, both of their parents, and under Section 60CC a primary consideration in determining the best interests of the child is the benefits of the child having a meaningful relationship with both of the child’s parents.
It is imperative that these objects, principles and considerations be given appropriate weight, and in this case that entails the children remaining in U with both of their parents.

I certify that the preceding
194 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 30^th day of April 2007.

……………………………………….
Associate

[2007] FamCA 377

30 April 2007

Key Legal Topics

Areas of Law

Family Law