BRYCE & BONIG - [2010] FamCA 999

FAMILY COURT OF AUSTRALIA

BRYCE & BONIG

[2010] FamCA 999

FAMILY LAW – CHILDREN – parental responsibility – whether the presumption of equal shared parental responsibility in s 61DA has been rebutted – where there is ongoing conflict between the parties – where it is not in the best interests of the children for the parties to have equal shared parental responsibility – presumption rebutted – orders that the mother have sole parental responsibility

FAMILY LAW – CHILDREN – relocation – where the mother seeks that the children be permitted to relocate to the United Kingdom – where the mother’s partner resides in London – where the mother proposes to set aside $30,000 to fund yearly trips for the children to travel to Australia – best interests – where there is a history of domestic violence between the parties – where there are concerns that the father will not encourage and facilitate the children’s relationship with the mother – where there is a risk of the children suffering from psychological harm from being exposed to family violence – orders that the mother be permitted to relocate to the United Kingdom – orders that the children spend time with the father in Australia or the United Kingdom annually – children to communicate with the father by way of telephone, email or other similar forms of communication

Family Law Act 1975 (Cth) ss 43(1), 60B, 60CA, 60CC, 60CG, 61B, 61C, 61D, 61DA, 65AA & 65DAA

Collu & Rinaldo [2010] FamCAFC 53
Friscioni & Friscioni [2010] FamCAFC 108
Hall & Hall (1979) FLC 90-713
Harris & Harris (1977) FLC 90-276
Hepburn & Noble [2010] FamCAFC 111
M & M (1978) FLC 90-429
MRR v GR (2010) 263 ALR 368
Marvel & Marvel [2010] FamCAFC 101

APPLICANT:

Ms Bryce

RESPONDENT:

Mr Bonig

FILE NUMBER:

DNC

184

2007

DATE DELIVERED:

10 November 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Darwin

JUDGMENT OF:

Dawe J

HEARING DATE:

28-30 June 2010; 1-2 July 2010; 8-9 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Hurley

SOLICITOR FOR THE APPLICANT:

DS Family Law

COUNSEL FOR THE RESPONDENT:

Ms Giacomo

SOLICITOR FOR THE RESPONDENT:

Ward Keller

Orders

All previous parenting orders are discharged.
The mother have sole parental responsibility for the children L born on … January 1998 and W born on … June 2000.
The children live with the mother.
The mother be permitted to relocate with the children to the United Kingdom.
The children spend time with the father unless otherwise agreed in writing as follows:
(a)In Australia from the first Tuesday of the United Kingdom summer school holiday periods to the last Thursday of the United Kingdom summer school holiday periods each year commencing 2011;
(b)In Australia from the first Tuesday of the United Kingdom December/ January school holiday periods to the last Thursday of the United Kingdom December/January school holiday periods in each alternate year commencing December 2011;
(c)in the United Kingdom for two periods of up to two weeks duration on each occasion each year commencing April 2011 PROVIDED THAT the father give the mother not less than four weeks written notice of:
(i) his intention to travel to the United Kingdom;
(ii)his address and full travel itinerary for his visit to the United Kingdom; and
(iii)the dates he seeks to have the children and where they will be residing whilst with him in the United Kingdom;
(d)such further or other times as may be agreed in writing between the parties.
The mother shall pay the costs of the children travelling from the United Kingdom to Darwin and return. The mother or some other responsible adult known to the children shall accompany the children on all flights.
The mother take all necessary steps to encourage the children to communicate with the father at all reasonable times by post, webcam and email.
Each parent shall keep the other parent informed of the current telephone numbers of the other parent and any changes to the telephone numbers.
Each parent shall keep the other parent informed of their current postal and email addresses and any changes thereto.
Each parent shall ensure that the children have appropriate access to computers and internet at all reasonable times.
The mother shall do all things, sign all documents and pay all amounts as might reasonably be necessary to permit the children to communicate by telephone, email and Skype (or other similar forms of communication) at all reasonable times as the children may request and in any event encourage the children to communicate with the father in one such manner not less than once a week.
The mother shall keep the father informed of the names and addresses of any and all treating medical practitioners or allied health practitioners who may be treating the children and authorise those practitioners to provide the father with all such information relevant to the children.
The mother shall inform the father as soon as practicable of any medical condition, significant health issue or significant illness suffered by the children.
The mother shall do all things and sign all such document necessary to authorise the schools attended by the children to give the father information about the children’s educational progress and related activities and to permit the schools to supply to the father (at his cost) copies of reports, photographs, certificates and awards of the children.
The father forthwith do all things necessary and sign all necessary documents to enable the mother to obtain and thereafter maintain valid passports for each of the children.
Prior to the children travelling from Australia to the United Kingdom the mother shall place the sum of THIRTY THOUSAND DOLLARS [$30,000.00] into an interest bearing account in the name of her solicitor to remain so invested until further order (it being intended to provide security for any future order in relation to the father’s costs of enforcing any order and security for costs of the children’s travel to spend time with the father in Australia) PROVIDED THAT if no further order is made the monies and interest thereon be released to the mother on the expiration of five [5] years from this date.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 184 of 2007

MS BRYCE

Applicant

And

MR BONIG

Respondent

REASONS FOR JUDGMENT

Introduction

The mother, Ms Bryce, and the father, Mr Bonig, are the parents of two children L born in January 1998 (now aged 12) and O born in June 2000 (now aged 10).
The mother commenced proceedings seeking orders permitting her to relocate with the children to the United Kingdom. The mother also sought orders to provide for the cessation of the week on/week off arrangement for the children even if she remained in Darwin. If not permitted to relocate she sought orders which would provide for the children to live primarily with her and spend time with the father on weekends and holidays.
The father opposed the orders sought by the mother and proposed that the shared care arrangement continue. He submitted that if the Court did not continue the current arrangements then the children should live primarily with him.

Hearing

The final trial took place in Darwin commencing on 28 June 2010 and concluding on 9 July 2010 when judgment was reserved.
At the final hearing the mother was represented by Ms Hurley of counsel and the father was represented by Ms Giacomo of counsel.
The mother relied upon the affidavit evidence and oral evidence of herself and her partner, Mr S.
The father relied upon the affidavit evidence and oral evidence of himself and his partner, Ms R, his mother, the paternal grandmother, and Mr G.
The Regulation 7 Family Consultant, Mr H, prepared a report after conducting interviews and observations. His report of 23 June 2010 was before the Court. Mr H also gave oral evidence.

Main issues

As required by the relevant legislation the main issues concern the determination of the paramount consideration, namely the best interests of the children. Relevant factors included the determination of the parents willingness to encourage a close relationship between the children and the other party, the likely effect of changes in the children’s circumstances, the practical difficulty and expense if the children moved, the views of the children and the weight to be given to those views and significant issues concerning allegations of family violence.

Relevant Background and Chronology

The father was born in 1975 and is now aged 35 years.
The mother was born in 1976 and is now aged 34 years.
The parties commenced cohabitation in Darwin in March 1997 and were subsequently married in 1999.
The parties’ daughter, L was born in January 1998. She is now aged 12 years.
The parties’ son, O was born in June 2000. He is now aged 10 years.
The parties lived in Alice Springs for a short time in the early stages of their marriage but have resided in Darwin and its surrounding regions since 2002.
The parties separated in February 2005. They were subsequently divorced on 31 May 2007.
The father says that the parties’ marriage was plagued with a long history of violence which he alleges was instigated by the mother. He says that the mother’s behaviour was fuelled by excessive alcohol consumption.
The mother denies these allegations.
Following their separation, both parties resided in N, a town outside Darwin.
The father’s relationship with Ms R commenced either before or shortly after the mother and father separated.
The father and Ms R were engaged to be married with the wedding planned for October 2010.
Ms R has a daughter from a previous relationship K who was born in October 1998 and is now aged 12 years. She lives on a week about basis with each of her parents.
The father is an emergency services officer.
The father says that following the commencement of his relationship with Ms R, the mother was violent and threatening towards her. He says that on some occasions the children were present.
The father alleges that there were many incidents involving threatening and abusive behaviour by the mother towards himself and his partner. In some instances the police attended.
In May 2005, there was a serious incident in which the mother allegedly attended at the father’s home demanding to be allowed inside. She was allegedly violent and threatening towards the father’s partner. The children were present at the home. The mother was removed from the premises by the police.
Shortly after this incident, a Domestic Violence Order was made against the mother for a period of 12 months.
The mother denied the father’s allegations of violence.
In July 2006 the mother moved to Darwin. The mother says that the distance between the parties lessened the animosity between them.
On 8 December 2006 Consent Orders were made which provided that the children were to live with each parent on a week about basis. This arrangement has continued thereafter.
The mother alleges that the parties are unable to carry out their parental responsibilities co-operatively. In particular, she says that the father does not communicate with her about matters relating to the children. She says he has been provocative and difficult.
The mother commenced a relationship with her new partner, Mr S, in September 2007. He is self-employed in London.
The mother’s partner visited Darwin three or four times per year for varying lengths of time on each occasion.
In July 2008, Mr S moved to Darwin but his attempts to find appropriate employment in his field were unsuccessful. He ultimately returned to London in July 2009 but has been back to Darwin for regular visits since.
In January 2009, the father, his partner Ms R and her child K relocated from N to a property next door to the mother’s home in Darwin.
The interaction between the mother and father deteriorated.
In early 2009, the mother and Mr S decided they wanted to live together in the United Kingdom.
At this stage, the mother also wished to take the children on a four week holiday to the United Kingdom.
The mother says she organised for the parties to undertake mediation through the Family Relationship Centre to discuss her proposals for relocation and also a holiday in the United Kingdom. There was no agreement reached at the mediation.
In May 2009 the mother filed an application in the Federal Magistrates Court seeking orders allowing her to take both the children on an overseas holiday to the United Kingdom.
On the 24 July 2009, Federal Magistrate Cole made orders permitting the mother to take the children overseas from the 23 September 2009 to the 22 October 2009.
There was allegedly a serious incident of assault between the mother and father which occurred at the father’s residence on the 11 August 2009. The facts and circumstances surrounding it are in dispute.
The mother says she was there to deliver clothing to L who was at the father’s home. The father alleges that the mother was demanding that she be allowed to enter the residence. The mother says the father threw her down the stairs and spat on her. The father denies throwing her down the stairs but concedes that he did spit on her.
Soon after this incident the father and his partner moved from the home next to the mother’s home to other premises.
The father filed another Application for a Domestic Violence Order on the 13 August 2009. On the 14 August 2009, an Interim Order was made restraining the mother from having any contact with the father or his partner.
On the 25 August 2009, the mother filed an Application for a Domestic Violence Order against the father. Interim Orders were made on the 4 September 2009 restraining the father from assaulting or threatening to assault the mother.
On the 23 November 2009, a Domestic Violence Order was made against the mother in respect of the father, the father’s partner, L and O. The mother’s application was dismissed.
The mother and the children travelled to the United Kingdom from late September 2009 until October 2009.
On the 17 February 2010, the mother filed a further application seeking orders that would allow her to relocate to London with the children. The father filed his response on the 21 May 2010 in which he seeks that the mother’s application be dismissed.
The matter was transferred from the Federal Magistrates Court to the Family Court of Australia on the 6 April 2010.

Relevant Law

Section 43 (1) of the Family Law Act (1975) (“the Act”) provides:
Principles to be applied by courts
(1)The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to:
(a)the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;
(b)the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children;
(c)the need to protect the rights of children and to promote their welfare;
(ca)the need to ensure safety from family violence; and
(d)the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children.
Part VII of the Act is entitled: “Children”. The objects of the Part are set out in section 60B:
S60B - Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of 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; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(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); 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 (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(I)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii)to develop a positive appreciation of that culture.
Section 60CA provides:
Section 60CA - Child’s best interest paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC provides:
Section 60CC - How a court determines what is in a child’s best interests
Determining child’s best interests
(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)The primary considerations are:
(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 and being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3)Additional considerations are:
(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.
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)   has taken, or failed to take, the opportunity:
(i)   to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii)         to communicate with the child; and
(b)          has facilitated, or failed to facilitate, the other parent:
(i)   participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii)         communicating with the child; and
(c)     has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A)If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Consent orders
(5)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander culture
(6)For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.

Section 4 defines “family violence” as follows:
Section 4 - "family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
Section 60CG provides:
Section 60CG - Court to consider risk of family violence.
(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order:
(a)is consistent with any family violence order; and
(b)does not expose a person to an unacceptable risk of family violence.
(2)For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Division 2 of Part VII is headed “Parental Responsibility”.
Section 61B states:
Section 61B - Meaning of parental responsibility
In this Part, parental responsibility , in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Section 61C provides:
Section 61C - Each parent has parental responsibility (subject to court orders)
(1)Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1:This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
Note 2:This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
(2)Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re‑marrying.
(3)Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Note: Section 111CS may affect the attribution of parental responsibility for a child.
Section 61D provides:
Section 61D - Parenting orders and parental responsibility
(1)A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
(2)A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a)expressly provided for in the order; or
(b)necessary to give effect to the order.
Of particular importance in this matter are the provisions of section 61DA:
Section 61DA - Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, 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.
Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply 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.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court 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 65AA is headed “Child’s best interests paramount consideration in making a parenting order”. It then provides:
Section 65AA - Child's best interests paramount consideration in making a parenting order
Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 65DAA provides:
Section 65DAA - Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2)If:
(a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)     consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)                 the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note 1:Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)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 (paragraph 60CC(3)(c));
(b)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2:Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Division 12A of Part VII sets out principles for conducting child related proceedings including matters relating to evidence.
A significant decision in relation to relocation cases is the decision of the High Court of Australia in MRR v GR (2010) 263 ALR 368. In that decision the High Court specifically dealt with section 65DAA and said as follows:
“13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
14.His Honour treated the answer to the firstmentioned question, whether it was in the best interests of the child to have equal time with each parent, as determinative of whether an order should be made. His Honour did not consider, as he was obliged to do, whether it was reasonably practicable in all the circumstances. The Full Court acknowledged that his Honour "did not expressly address the issue of whether an equal time arrangement would be 'reasonably practicable'". However, the Court observed, his Honour went on to consider, at length, the matters to be considered under s 60CC in determining what arrangements are in the child's best interests. But those matters could be relevant only to the question posed by par (a) of s 65DAA(1), not the question in par (b), which required consideration of other, different matters.
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
16.Had consideration been given to the question only one conclusion could have been reached, one which did not permit the making of the order. From the time that she returned to Mount Isa to the date of the hearing the mother had been required to live in a caravan park, and live there with the child on alternate weeks. Apart from the facilities being limited, it could not be said that such an environment is usually ideal for a child. The availability of alternative accommodation did not seem likely. Rental accommodation is scarce in Mount Isa and the waiting lists for it long. The mother said that she could not afford good quality accommodation in any event and the cheaper rental properties were in "rough" areas.”
In Hepburn & Noble [2010] FamCAFC 111 (a decision delivered on 21 June 2010) the Full Court said at paragraphs 98 to 103:
“98.By this ground the father asserts that the Federal Magistrate failed to apply or properly apply the guidelines set out by the Full Court in A v A: Relocation Approach (2000) FLC 93-035.
99.At the hearing of the appeal, counsel for the father clarified that this ground was in fact quite narrow, and that the father was challenging the sufficiency of the Federal Magistrate’s reasons. Counsel for the father referred to the need to explain “matters of weight” as outlined by the Full Court in A v A: Relocation Approach (supra). The challenge to the adequacy of reasons has been discussed above in relation to grounds 1 and 9, and we do not propose to revisit that.
100.With respect to the guidelines in A v A: Relocation Approach (supra), the appropriateness of these guidelines in light of the amendments to the Act introduced in 2006 was not the subject of substantial argument before us, although at first blush this issue is raised by this ground of appeal. For our part we are concerned that this decision is still being referred to given that since then the Act has been substantially amended via the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), and there have been a number of significant decisions of the Full Court addressing the issue of relocation since those amendments commenced on 1 July 2006. We refer to decisions such as Taylor and Barker (supra), Sealey & Archer [2008] FamCAFC 142, Starr & Duggan [2009] FamCAFC 115, and McCall & Clark (supra). Of course, the Federal Magistrate here had regard to and followed the legislative path now contained in the Family Law Act as amended, but it seems to us that rather than refer to and rely on a decision of the Full Court from prior to the amendments it would have been more relevant for the Federal Magistrate to have had regard to the guidelines and principles emanating from the subsequent Full Court decisions.
101.That is not to say though that as a result the Federal Magistrate fell into appellable error. Indeed, we find that there is no merit in this ground of appeal.
Conclusion
102.No ground of appeal having been made out the father’s appeal will be dismissed.
103.Following the hearing of this appeal the High Court published its reasons for judgment in MRR v GR [2010] HCA 4. We do not consider that that decision raised any issues necessitating further submissions to be sought from the parties given the nature of the appeal and the submissions already made on behalf of the parties. The decision does however reinforce our earlier suggestion that A v A: Relocation Approach (supra) no longer reflects the law.”
On 25 March 2010 a Full Court of the Family Court of Australia delivered its decision in the matter of Collu & Rinaldo [2010] FamCAFC 53 which had been heard on 1 September 2009 and 4 March 2010. In that case the Full Court said:
“339.In considering s 65DAA of the Act there are two important matters a court must deal with first, namely:
1.whether the child spending equal or substantial and significant time with each parent is in the child’s best interests; and
2.whether the child spending equal or substantial and significant time with each parent is reasonably practicable.
340.The best interests considerations in s 60CC of the Act are therefore of importance when considering the equal or substantial and significant time requirements of s 65DAA of the Act. Also s 65DAA(5) sets out matters that the court must have regard to in determining whether it is reasonably practicable for a child to spend either equal or substantial and significant time with each parent.
341.In MRR v GR the High Court said:
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences (“if it is”) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub‑section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent (footnotes omitted).
…
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
342.In relation to the second question of reasonable practicability, in MRR v GR the High Court said:
9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents”.
343.In dealing with the various statutory provisions and in particular the matters in s 60CC it is also relevant to consider what was said in a number of cases prior to the 2005 amendments. In Maday and Maday (1985) FLC 91-636 Fogarty J, with whom Emery SJ and Murray J agreed, after referring to Gronow v Gronow, said at 80,142:
However, those principles proceed on the assumption that the trial Judge has weighed the various factors in contention in the individual case, and demonstrate that the appellate court may not in ordinary circumstances substitute its own conclusions for those of the trial Judge as to the weight to be given to the different factors of the case. It was submitted here for the appellant that his Honour had not adequately, or at all, weighed these aspects and that he had not provided proper or adequate reasons for the conclusions at which he did arrive.
It is of the essence of the exercise of the judicial function that reasons be given explaining the actual decision arrived at. That is, it is the duty of the judge to give appropriate reasons for the orders which are made, and this involves ordinarily the application of the ascertained and relevant facts to the law: see for example Pettitt v. Dunkley (1971) 1 N.S.W.L.R. 376; Grimshaw v. Dunbar (1953) 1 Q.B. 408; Gillies and Gillies (1981) FLC 91-054, and the authorities therein referred to.
The central aspect is the application of the relevant law to the established facts. It is essential that the parties understand not merely the orders which are made but the reasons which led the Court to arrive at those particular orders rather than some other orders. That is equally essential to an appellate court so that that court may properly consider any challenge to the exercise of discretion by having before it not merely the result but the reasons that have led to that result.
In a custody case it is the duty of the trial Judge to weigh against each other the various competing factors which exist in that proceeding and to determine the proceeding having regard to the significance or weight that the trial Judge attaches to those various factors. This really involves two aspects although they are obviously interrelated. Firstly the trial Judge must give adequate reasons for the conclusions at which he has arrived, and secondly those conclusions must include the identification of and evaluation of the relevant factors. Where a trial Judge does that it is then that the task of the appellant in challenging those conclusions confronts the difficulty which Gronow's case, amongst others, demonstrates. Where there are no adequate reasons in the judgment, and/or where the competing factors are not adequately evaluated the Gronow principles do not come into play. (emphasis in original)
…
374.As to the best interests requirement of s 65DAA of the Act, in our view, it is not necessary for a court to repeat all of the findings made in relation to the primary and additional considerations in s 60CC of the Act. However, at some point the best interests considerations must be considered in the context of or by reference to the requirements of 65DAA(1)(a) and 2(c) of the Act. In McCall v Clark the Full Court (Bryant CJ, Faulks DCJ and Boland J) said at 498:
In our view, it is inevitable, given the provisions of the legislation, that the exercise to be undertaken will, on its face, involve dual consideration of some matters. For example, consideration of matters under s 60CC(3)(d) (the likely effect of any change in the child’s circumstances) and matters in s 65DAA(5)(a) and (b) and s 60CC(3)(e) (practical difficulty and expense of a child spending time with a parent) and s 65DAA(5)(a), (b) and (c) involve examination of similar criteria.
In this case, in our view, the trial Judge did not consider the requirements of 65DAA(1)(a) and 2(c).
375.Then the trial Judge was required to consider 65DAA(1)(b) and (2)(d) of the Act. Section 65DAA(5) sets out matters that the Court must have regard to in determining whether it is reasonably practicable for the child to spend either equal or substantial and significant time with the parents. As Bryant CJ and Warnick J said in Sampson and Hartnett at 82,013: “The court must meet these obligations irrespective of the proposals of the parties”. Kay J said at 82,031: “The legislative requirement under section 65DAA(5) is mandatory”. The requirement to consider the matters in s 65DAA(5) is put beyond doubt by the High Court in MRR v GR.
376.The trial Judge was obliged to undertake what the High Court in MRR v GR described as a “practical assessment” of whether equal time or substantial and significant time was “feasible”. The trial Judge had to undertake an analysis of the reasonable practicability of each of the proposals of the parties and, in our view, she failed to do so. For example, if her Honour had undertaken this task then it would have revealed that the Mother was proposing an equal or substantial and significant time arrangement and there would then have been analysis of the matters in s 65DAA(5) of the Act. Of particular importance in this case would be the provisions of s 65DAA(5)(b), (c) and (d).”

In a decision of the Full Court of the Family Court of Australia delivered on 11 June 2010 Marvel & Marvel [2010] FamCAFC 101 there appears a lengthy discussion of an inter-relationship between section 65DAA and the need for an order for equal shared parental responsibility. In paragraph 81 the Full Court added emphasis to the words “has or will make an order”.
Before quoting from the High Court decision of MRR v GR (Supra) the Full Court said at paragraph 81:
“81.The High Court recently published reasons for judgment in MRR v GR (2010) 263 ALR 368. While this was a so called “relocation” case in which final parenting orders were sought, it is important to bear in mind what the High Court (French CJ, Gummow, Hayne, Kiefel and Bell JJ) said about s 65DAA if the Court has or will make an order that the child’s parents have equal shared parental responsibility (our emphasis).”
At paragraphs 87 and 88 the Full Court said:
“87.The legislative pathway to be considered since the amendments in 2006 is convoluted. It has been aptly described by Warnick J in Zabini & Zabini [2010] FamCA 10 as “a dilemma of labyrinthine complexity”. It seems to us unlikely that the legislature intended when narrow or discrete issues arise in parenting matters, such as variation of a parenting order to provide a slight increase or reduction in time spent by a child, or change in delivery and collection arrangements, that it would be necessary to have regard to s 61DA and as a consequence the triggering (or as asserted in this case the possible triggering) of the application of s 65DAA in such applications.
88.Counsel for the ICL raised with us the fact that no order for equal shared parental responsibility was made or sought. In effect, she submitted it was arguable that the presumption contained in s 61DA did not mandate the court, if it found the presumption applied, making an order that the parties have equal shared parental responsibility. Thus the argument advanced was that if no order for equal shared parental responsibility has been made, or is to be made, even though the presumption applies, then the application of s 65DAA is not triggered. In other words, counsel argued that if s 61DA(1) mandated the making of an order for equal shared parental responsibility then the section would have included the following additional words “and make an order to that effect”
At paragraph 92 the Full Court said::
“92.We are conscious that we should give a purposive interpretation to the legislation (see DC Pearce and RS Geddes, Statutory Interpretation in Australia (6^th ed, 2006) [2.5]). The interpretation of the legislation suggested by counsel for the ICL is available on the plain reading of s 61DA. It could however lead to a court effectively by-passing the requirements of s 65DAA. Regardless of whether one or both parties sought equal or substantial or significant time orders, if a court found the presumption applied, but no parenting order for equal shared parental responsibility was made, the application of s 65DAA would not be triggered, and the only requirement would be to make a parenting order which was in the best interests of the child having regard to matters in s 60CC.” (My emphasis added).
The Full Court then went on to discuss a:
“ … consideration of whether s 61DA (or some other provision of Part VII) actually requires the making of an order for equal shared parental responsibility, or implies such an order will be made, if the court finds the presumption applies or it is in a child’s best interests that the parents have equal shared parental responsibility”. (See paragraph 93)
After some paragraphs, the Court however determined at paragraph 104:
“104.As we did not have the benefit of any extensive argument before us on this topic it is inappropriate we determine this issue.”

Discussion of evidence and findings

The Mother

The mother gave oral evidence providing further information about the proposed arrangements for her employment if she was permitted to move with the children to the United Kingdom and the arrangements for the children. This included proposed schools for the children and English school holiday times. Her oral evidence also included her response to allegations in the affidavit material of the father and his partner, Ms R.
The mother admitted on occasions to participating in arguments with the father and Ms R. At times her evidence was simply that she did not recall making the alleged comments. She did however strongly deny the more serious allegations of physical assault.
During the evidence-in-chief the mother informed the Court that she would agree to place $20,000 to $30,000 into an account as a form of security to ensure that the children returned to spend time with the father if she was permitted to move with the children to the United Kingdom. She said she could get the money from either selling her unit or taking out a loan.
The mother was cross-examined by counsel for the father. She confirmed that her father had recently become ill and was having chemotherapy in Brisbane. She confirmed that her mother lived on the Sunshine Coast. During cross-examination she confirmed that she proposed that the children return to visit Australia for five weeks each year and that she would accompany them. She would spend time with her family in Australia at that time.
She was cross-examined about her financial circumstances and her ability to afford to undertake the regular travel. She was also cross-examined about the proposals for her employment in the United Kingdom and the children’s proposed school.
Much of the cross-examination dealt with the ongoing difficulties in communication and interaction between the mother and father for many years. This included cross-examination about family violence and incidents which had occurred since the parties separated.
During re-examination exhibits were tendered to support the mother’s evidence in relation to the cost of travel.

Mr S

The mother’s partner, Mr S, gave brief oral evidence-in-chief and was cross-examined. He was a convincing witness. His oral evidence supported his affidavit evidence. He was not challenged about the lack of employment and business prospects for him in Darwin, or indeed Australia. He gave convincing evidence about the responsible steps he had taken to make enquiries about suitable employment for the mother and schooling for the children.

The Father

The father was called to give evidence. He is an emergency services officer. During the first part of his examination-in-chief the father was often sobbing and had difficulty answering questions.
During his evidence in chief and cross-examination, the father some times avoided answering the questions and at other times said he could not remember. During part of his cross-examination the father also cried or was visibly upset at times in the witness box.
The father said that he had never said a “bad word” about the mother to the children. He admitted however that he had told the children that they could not have a particular holiday because their mother would not give the father the children’s passports. He did however then agree that the reason the mother had not agreed to their holiday was that the mother was relying upon the Department of Foreign Affairs and Trade recommendation that it was not safe to travel to Indonesia at the time.
The father said that he did not want any conflict with the mother and that was why he had taken out the restraining order.
The father attempted to give explanations for his behaviour on several occasions. These included his attempt to explain moving to accommodation very close to the mother’s house when there was still considerable tension between him and the mother and his decision to report the mother to the police for allegedly breaking the restraining order when they met at Woolworths Shopping Centre.
During his cross-examination the father confirmed that six of his work colleagues had attended in the Courtroom that day and four had attended the previous day.
When cross-examined about his ability to get leave he was avoidant and merely said that his leave times were not guaranteed.
For some of the cross-examination the father ceased sobbing and gave his evidence in a much more assured fashion.
The father was successfully challenged in some of his evidence, particularly his evidence about the arrangements made with the mother concerning the children and communication with the mother.
During cross-examination he confirmed that his mother and sister lived in Queensland, that he considered himself a Queenslander and that he would “move tomorrow to Queensland” if he could. He confirmed his intention was to maintain his ultimate goal to relocate to Queensland. The father was asked if he had told the Family Consultant, Mr H of his plans to relocate to Queensland or for his proposals that the children go to school in Queensland. He needed to be pressed to answer the question.
During his cross-examination the father said that every time that he and the mother have any contact there was trouble. He said that there was “conflict the whole time”. He made the statement “I should not have to suffer because she wants to move on”. He then referred to the mother as “having the capacity to have babies” seemingly to suggest that this would be one way for her to solve the problem of relocation.
During cross-examination the father admitted to smacking O. He admitted that he had slapped him hard enough to leave a red mark. He said on that occasion O had not had clothes on. He admitted that he did smack L when she was younger, but that “he doesn’t need to now”. He said that he stopped when “she was about nine” and that was “a guess”. When asked if he no longer smacked the children, he said that if they were naughty he would give them a smack. He then said that smacking was the last resort and that he used other methods such as loss of privileges or sitting them in a corner.
The father also gave evidence about a concert which L wanted to attend. He agreed that he had also decided that it was not appropriate for the children to attend the concert and miss school, but he told L that she could not go because her mother would not agree.

Ms R

The father’s partner, Ms R gave brief oral evidence in chief. She denied swearing or being verbally abusive to the mother. Under cross-examination she confirmed that in July 2009, during the Northern Territory school holidays, her daughter K and the parties’ daughter L (who were then aged 10 and 11) were left unsupervised at home. Ms R considered them to be old enough to be on their own at the time. She also confirmed that they are left alone at other times and in particular after school when they travel home by bus and are home unsupervised until such time as either the father or Ms R come home from work. She said that the father was usually able to be home by about 3.30 pm.
Her evidence confirmed that she and the father had been living together since August 2005. She is employed in the NT public service.
Ms R also confirmed that she had a negative or bad view of the mother. Her attitude towards the mother during her evidence supported this.
Ms R confirmed that she had also supported the mother being reported for an alleged breach of the restraining order due to the incident at Woolworths. She confirmed that she had made it clear to the mother that she did not want the mother to communicate with her and that she just wanted the mother to “stay away from me that’s all I want”.
Under cross-examination Ms R eventually admitted that although the children were told that they could not holiday in Bali because their mother would not give them the passports, she conceded that the mother had agreed to release the passports, but that the children were not told this.

Mr G

Mr G was cross-examined by Ms Hurley. Mr G confirmed that he had previously worked together with the father. They are now in different sections of the department but remain friends. He was not significantly challenged in any of the evidence he gave. In relation to the incidents in which he was directly involved he said he believed the information which was given to him by Ms R and not the information given to him by the mother. He denied that he had been party to any arrangement to set the mother up to get her into trouble.

The paternal grandmother

The father’s mother, the paternal grandmother, also gave evidence and was cross-examined. The father’s mother normally lives in Brisbane but has travelled widely and continues to do so. Her new partner is from New York. She has recently been travelling frequently between Australia and New York where she has an apartment. She also visited her daughter in Dubai and regularly holidays in other places, such as Bali.
The paternal grandmother said that she was afraid of the children’s mother and that the children’s mother had sworn at her. When asked if there was an order of the Court allowing her to see the children in London, she said that she would not go to see them as she did not believe the mother would obey the order.
The father’s mother was resistant to any proposal which would allow her to spend time with the children if they were in the care of the mother. She agreed that she would see the children if they were visiting the father or in the care of the father at the time.

Family Consultant’s Evidence

Mr H, Family Consultant gave evidence. He confirmed the comments the children had made, including that L was very conscious that her father would be upset if she moved with the mother to the United Kingdom. He also confirmed that L said that if she was not allowed to go to the United Kingdom she would be upset. He confirmed that L appeared to be outgoing and confident in her wishes, whilst O was more guarded. O in particular said to the Family Consultant that he should tell the Judge that he just wants the parents to work it out.
Mr H’s evidence confirmed that the children got on well with the mother’s partner, Mr S, they liked him and had a fondness for him.
When given information about the restraining orders taken out by the father and on behalf of the father’s partner and the incident at Woolworths after which the father reported the mother for an alleged breach, Mr H confirmed that this behaviour was not conducive to good communication and that even with “parallel parenting” there was a need to communicate at a fundamental level.
Mr H confirmed that he concluded from his interviews with the father that the father wanted as little to do with the mother as possible. He said that during the interviews the father was prone to overstating his case, was extremely aroused and trying to convince Mr H of his views.
Mr H confirmed that L would be very upset if her views were not accepted.
He referred to the mother as being quiet, reserved, tearful and distressed at times.
Mr H did not have an opportunity to interview the mother’s partner, Mr S.
Mr H said that L’s views appeared genuine and O’s ambivalence also appeared genuine. His evidence was that despite the distrust between the mother and father, both have allowed the children to have a relationship with the other. He confirmed that if the mother provided the proposed surety that that would provide a degree of security for the mother’s proposed arrangements.
During cross-examination Mr H confirmed that O had referred to his father as angry and had not reported that he would miss his father.
Mr H expressed concern about the physical punishment by the father of O, referring to “society’s varying views” about whether physical punishment is appropriate. He also expressed concern about the children L and K being left home alone, unsupervised during school holidays.
When cross-examined by counsel for the father about the relationship between the children and the mother’s partner, Mr S, he confirmed that the children gave the impression that Mr S had been actively involved with the children; they talked about him in a very positive tone and had a considerable fondness for him.
During the evidence, Mr H gave an explanation of his concept of parallel parenting. e gave evidence that this required a fundamental level of communication and an ability to exchange information about health and education.
Mr H gave evidence that the mother understood that it was important for the children to have an ongoing relationship with the father. His evidence was that a change to live in the United Kingdom would impact upon the children and the parents, but he expressed some difficulty in determining the balance between the positive changes and possible negative outcomes.
His evidence confirmed the strength of L’s wishes and O’s ambivalence about a proposed move.
The Family Consultant’s report recommended the children remain in Darwin and did not support the orders sought by the mother. However the Family Consultant did not have the benefit of all of the evidence presented to the Court or the significant benefit the Court had in assessing the attitude and capacity of Mr S. The Court has had a greater opportunity to test the credit of each of the parties and assess their evidence in the context of the other parties’ and witnesses’ evidence. Without being critical of the opinion or expertise of Mr H the Court has drawn conclusions about the credibility of the parties and the witnesses has formed a different conclusion about the weight to be given to the information provided by each of the parties, Ms R and Mr S.
The Full Court decision such as Hall & Hall (1979) FLC 90-713; the remarks in Harris & Harris (1977) FLC 90-276 and M & M (1978) FLC 90-429 have been approved in more recent decisions. The Family Consultant’s report is not binding upon this Court. His evidence is a part of the evidence before the Court. It is evidence which must be carefully considered.
The recent decision of the Full Court in the matter of Friscioni & Friscioni [2010] FamCAFC 108 confirms these principles.
At paragraph 10 and 11 of that judgment the Full Court said:
“10.Of course the family report process gives reporters a perspective not available to a judge, including the opportunity to speak directly to the child and observe the child interacting with parents and others who are significant to the child’s life, and their assessments are based on the body of learning related to their professional qualifications and experience. But they do not have the advantage of hearing the evidence tested or observing those involved in a different setting. Nor, usually, is it apparent that they have arrived at the outcome they recommend by taking the path imposed by the Act through the suite of provisions about the best interests, considerations, parental responsibility and time. Some of the components which underlie the best interest considerations fit well with their expertise and invariably their evidence about that is very important, but the outcome is for the court and while recommendations bout it may be helpful in some case, not the least with settlement discussions, plainly that does not prevail over the court’s responsibility to evaluate all of the evidence, including that given by the reporter, via the structure imposed by the Act and to come to an independent decision about what is best for the child in all the circumstances.
11.In this case the reporter’s evidence has been helpful but in a decision that can have no universal happy result either way, the weight of the evidence points to a different result.”

Submissions

At the conclusion of the evidence the Court received the written submissions of counsel for the father who also made brief oral submissions.
The Court then heard the submissions of counsel for the mother.
In final submissions the father maintained his application that the mother’s proceedings be dismissed and that the orders of 8 December 2006 remain in force. Counsel indicated that if the mother was permitted to relocate to the United Kingdom he would reluctantly accept the mother’s proposal of the children spending time with him, together with as much telephone, email and Skype communication with the father and the extended family as the Court could order.

The evidence of the father and his partner, Ms R, about the times when the children L and K were left alone in the house was not consistent. Their evidence about their behaviour and the behaviour of the mother which was the asserted basis for the applications for domestic violence order was not consistent.
The father conceded in cross-examination that he had told the children that the explanation for their failure to go on holiday or attend a function was because of the mother’s refusal. He agreed however in cross-examination that this was not correct.
His attitude towards smacking O and the evidence he gave about his behaviour and proposals for future behaviour was dismissive and minimised any harm to the child.
Whilst the mother’s behaviour at times clearly failed to recognise the impact the arguments between the parents would have upon the children who observed these incidents, I prefer her evidence to that of the father or Ms R.
An example of the father’s behaviour which has contributed to difficulties for the children was his lack of concern when he moved very close to the mother’s home.
The father, Ms R and the father’s mother, the paternal grandmother, gave evidence in a manner which indicated that they were strongly antagonistic towards the mother. Their evidence did not indicate any capacity to negotiate or discuss matters concerning the children with the mother. They all maintained an attitude of blame and mistrust towards the mother.
The mother’s evidence also indicated that she did not trust the father or Ms R. Her evidence indicated a strong concern that she had been, and would in the future continue to be, manipulated and controlled by the father. She was particularly concerned about his ongoing role as an emergency services officer and Ms R’s employment by the public service which she felt left her vulnerable.
Whilst the mother at times could be said to have behaved in a provocative manner and to have denigrated the father, her behaviour needs to be assessed in the particular circumstances and the background of interaction between the mother, father and other persons over a period of years.
The evidence of Mr S was straightforward and his attitude convincing.
The objects and principles of Part VII which are set out in section 60B of the Family Law Act 1975 emphasise the benefit to the children of a meaningful involvement of each of their parents in their lives and the children’s right to spend time with both of their parents and other significant people (such as grandparents and other relatives). At the same time it is necessary to ensure that children are protected from abuse.
Section 61DA requires the Court to apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility. The provisions of section 61DA(2) indicate that the presumption does not apply if there are grounds to believe that a parent of the child has engaged in abuse of the child or another child or family violence. Sub-section (4) provides:
“The presumption may be rebutted by evidence that satisfies the court 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.”
The evidence in this matter presented by both parties clearly satisfies the Court that the relationship between the mother and father is such that there is very little capacity for reasonable civil communication about the children’s needs. The evidence of Mr H was based upon his interviews with the parties and relevant persons but the evidence before the Court subsequently suggests that the level of hostility and mistrust was much greater than that assumed by Mr H.
The provisions of section 65AA and section 60CA require the Court to consider the best interests of the children as the paramount consideration when making a parenting order. This also applies to a parenting order granting sole parental responsibility or when considering an order for equal shared parental responsibility.
The provisions of section 60CC therefore apply.
In Section 60CC the Court is required to consider as primary matters:
(a)the benefit of 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 subject to, or exposed to, abuse, neglect or family violence.
The evidence establishes that the children will be able to maintain meaningful relationships with both of their parents, even if the mother and children move to the United Kingdom. The type of meaningful relationship will be different especially if the father is unwilling to travel regularly to the United Kingdom. I accept the mother’s evidence that she will arrange for the children to spend time with the father regularly by bringing them to Australia. Arrangements can also be made for the children to communicate with the father regularly by telephone, email and Skype.
The father admitted smacking O. His attitude towards physical discipline left open the possibility that in future the father would use such physical discipline. However, the evidence indicates that the greater risk to the children is one of psychological harm from being exposed to the risk of family violence between the mother and father and their parents’ hostility and inability to communicate or interact in a civil fashion.
The father’s allegations in relation to the mother’s violent and abusive behaviour were based upon incidents which occurred over a period from 2005 through to 2009. At the same time the mother asserts that the father has been provocative, abusive and has assaulted her. The mother maintained that the father has used his position to assist him in obtaining domestic violence orders for himself and for Ms R and has used the orders in his position to control and manipulate the mother.
One example of the father’s behaviour was his report to the police and request that the mother be dealt with for breaching a restraining order when the mother saw the father, Ms R and the children in Woolworths. There was no incident of any concern, however the mother remained subject to police investigation concerning the alleged breach for many months.
Having heard the evidence of the parties and their witnesses the Court prefers the evidence of the mother to that of the father.
In section 60CC the Court is required to consider the additional factors.
(a)any view 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;
L expressed a view that she strongly supported the mother’s desire to relocate with the children to London. She recently had a positive experience on holiday to Paris and London with the mother and Mr S. She had had discussions with the mother about the plans to live in London. The Family Consultant said that at L’s age her views were important, but should not be the basis upon which the decision was made.
O is younger and of different personality. He did not wish to choose between his parents when discussing the matter with the Family Consultant. He described his father as “angry”.
Both children have expressed positive views about their good relationship with the mother’s partner, Mr S.
The views of the children should also be considered in the context of the children’s exposure to the ongoing conflict between the parents.
(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);
The evidence of the parties and Mr H indicates the children have a close loving relationship with both parents. It is also conceded by the mother that the children have a close relationship with the father’s partner, Ms R and her child K.
The paternal grandmother has in the past visited the children regularly but indicated that she would not travel to England to visit them. Her relationship with the children should not be considered as significant or a determinative factor.
The father conceded that the children have a positive relationship with the mother’s partner, Mr S. The evidence of Mr H confirms that they have a positive affectionate relationship towards him. Whilst, his time with the children has been limited due to his employment obligations and distance factors, his oral evidence encouraged and supported the view that he had a good understanding of the children’s personalities and needs.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The mother gave evidence that she was willing to maintain and foster an ongoing relationship between the children and the father by bringing them regularly back to Australia and arranging for regular telephone and communication. The father called into question her sincerity in this and expressed doubts that she would comply with any arrangements. The mother’s willingness to provide funds to secure the regular travel was significant.
The father conceded under cross-examination that he told the children that the mother was to blame for their inability to attend a concert or go on holiday. He showed no remorse or ability to understand the impact his behaviour would have upon the close relationship between the children and their mother. His behaviour supported the mother’s view of him as controlling, uncooperative and not supportive of a close and continuing relationship between the mother and the children.

(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
(iii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

There is clearly likely to be some effect upon the children of a change in circumstances were they to move to the United Kingdom or (as each of the parties proposed) that the children live primarily with the one parent and only spend shorter time with the other parent.
The father gave evidence that in due course he proposed to seek to move with the children to Queensland.
The long term effects of any change in the children’s circumstances are difficult to determine. The relationship between the father and the children could be maintained but their interaction would not be as regular compared to arrangements if the children remained in Darwin.
One significant effect of any change in the children’s circumstances if they moved to the United Kingdom would be the immediate reduction of the children’s exposure to ongoing conflict and antagonism between the children’s parents. This reduction is likely to be a significant benefit for the children’s emotional and psychological development.
Whilst a move to London would change the nature of the regular time spent by the children with the father, Ms R and K, such a change is likely to bring about a significant benefit to the children improving their time with the mother and their ability to interact and form a stronger bond with the mother’s partner, Mr S.

(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;

There is obviously significant expense and some practical difficulty to arrange for the children to spend time with the father if the children move to London. This is made even more difficult by the father’s attitude to travelling to the United Kingdom and the poor relationship between the parents. The mother has however agreed to set aside funds in the form of a guarantee to ensure that the children do travel. Because the expense and distance is significant the frequency of direct contact between the father and the children would be reduced if they moved. The evidence of the expert indicates that the children would still be able to maintain their relationship with the father, but the way they did this would change.
If the children remain in Darwin the expense and practical difficulties will be very small in comparison.
With the availability of telephone, text and internet connections (email and webcam) the children would be able to maintain significant communications with the father and other persons, such as Ms R, K and the father’s extended family whether they reside in Darwin or London.
If the children were to remain in Darwin then most difficulties would be related to the ongoing poor relationship between the parents.

(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; and

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

These factors can be considered together. The evidence calls into question the father’s capacity to provide for the children’s emotional needs to the extent that he has maintained an ongoing aggressive controlling attitude to the children’s mother. To a lesser extent the same applies to Ms R.
The father and Ms R and the mother and Mr S all have a general capacity to provide for the day to day needs of the children.
The father’s capacity for and attitude to appropriate discipline and his capacity to provide and his attitude about providing appropriate supervision for the children is not as beneficial for the children as that of the mother.
(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;
Whilst the children’s social background has been primarily in Darwin, the change to the lifestyle and culture in the United Kingdom is perceived by L to be beneficial. In any event a change in lifestyle is not a significant factor in this matter.

(h)if the child is an Aboriginal child or a Torres Strait Island 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;

Not relevant to these proceedings.

(j)any family violence involving the child or a member of the child's family;
and
(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;

The family violence and Family Violence Orders which exist in this matter have been considered. The Court prefers the evidence of the mother to that of the father and his witnesses. The existence of the Family Violence Order and the steps taken by the father to report the mother for breach of the Family Violence Order and obtain an order for the benefit of Ms R indicate the poor quality of the relationship between the mother and father and the limited ability they have to communicate on almost any aspect concerning the children or their welfare.

(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;

An order that is least likely to lead to the institution of further proceedings in relation to the children is one that is likely to be of significant benefit to the children because it would release them, their parents and associated persons from the stress and the financial cost of ongoing proceedings.
The mother is prepared to make funds available to assure the father that she will comply with orders for the children to spend time with him. This is likely to discourage further proceedings.

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

The positive relationship between the children and Mr S and the support Mr S is able to provide to the mother will be significantly greater if the mother and children are able to reside with him in London. This will have an ongoing significant positive impact upon their welfare and development.
The matters discussed in sub-paragraph (4) and (4A) have already been considered in the context of the other factors under section 60CC.
Considering the matters discussed above under section 60CC the presumption of equal shared parental responsibility is rebutted on the basis that it would not be in the best interests of the children for the parents to have equal shared parental responsibility primarily because of the ongoing conflict which continues to exist and the difficulties in communication which currently exist and are likely to continue regardless of where the children and the mother reside.
The provisions of section 65DAA do not therefore apply.
Even if the provisions of section 65DAA were to apply the best interests of the children do not support an order providing for the children to spend equal time or substantial and significant time with each of the children’s parents. Whilst this has been attempted in the past the ongoing conflict has meant that the children have been caught in the middle of the hostility and conflict between their parents.
Whilst it might be reasonably practicable for the children to spend equal time or substantial and significant time with each of the parents whilst they both resided in or around the Darwin area, it would not be reasonably practicable if the mother were to move with the children to reside with Mr S in London. The criterion in subsection 65DAA (5) (b) and (c) (future capacity to implement an arrangement and current and future capacity to communicate with each other and resolve difficulties) do not support an arrangement of equal time or substantial and significant time being reasonably practical.
As previously indicated the parents have in the past had significant difficulty in their capacity to implement any arrangements and have almost no capacity to communicate with each other and resolve difficulties.
An arrangement of equal time or substantial and significant time is likely to have a significant adverse impact upon both children.

Summary and conclusion

Having carefully considered the evidence and the criteria in Part VII of the Family Law Act 1975 the Court is satisfied that it is in the best interests of the children for the mother to have sole parental responsibility for each of the children and that she be permitted to travel to live in London with the children. Orders should be made to ensure that the children have an opportunity to spend time with the father regularly in Australia and in the United Kingdom if he should travel to the United Kingdom. It should be a condition of the order that the mother place the sum of $30,000 in an interest bearing trust account in the name of her solicitors. Those funds will be available upon order of this Court to provide the father with money to pay legal costs of enforcing the orders of this Court on default by the mother and, if necessary, for the payment of the children’s travel expenses between England and Australia and return should the mother later claim to have insufficient funds to make those arrangements.

I certify that the preceding one hundred and eighty (180) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 10 November 2010.

Associate:

Date: 10 November 2010