Byrne and Porter - [2008] FMCAfam 1254

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BYRNE & PORTER

[2008] FMCAfam 1254

FAMILY LAW – Parenting – relocation – best interests of children – consideration of competing positions and interests.

Family Law Act 1975 (Cth), ss.60CA, 60CC(2) & (3), 61DA, 65DAA

A & A relocation approach (2000) FLR 382

Applicant:

MR BYRNE

Respondent:

MS PORTER

File Number:

ROC 755 of 2007

Judgment of:

Coker FM

Hearing date:

21 October 2008

Date of Last Submission:

21 October 2008

Delivered at:

Rockhampton

Delivered on:

21 October 2008

REPRESENTATION

Counsel for the Applicant:

Mr Polley

Solicitors for the Applicant:

David Eaddy & Co

Respondent:

Ms Porter appearing on her own behalf

ORDERS

The Father and the Mother have equal shared parental responsibility for the major long term issues of the children [X] and [Y] both in 2003 including but not limited to:
(a)a child’s education (both current and future);
(b)a child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
The parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree;
(c)They shall make a genuine effort to come to a joint decision.
In the event of the Mother returning to Central Queensland and residing within a 50 kilometre proximity of the Father’s residence, the children live with the Mother and spend time with the Father at all reasonable times as agreed between the parties and in particular:
(a)from after school on Thursday to before school on Monday, or 3:00pm on Thursday to 9:00am on Monday if the children are not at school, and if there is a pupil free day or public holiday on a Monday when the children are spending time with the Father then that time be extended to before school or 9:00am on Tuesday;
(b)for one half of all school holiday periods with the Father to have the children in his care for the first half of the school holidays in even numbered years and the second half of the school holidays in odd numbered years.
In the event of the Mother not returning to Central Queensland by 4:00pm on 13 November 2008, then in that event the children live with the Father and spend time with the Mother at all reasonable times as agreed between the parties and in particular:
(a)for the whole of the end of Term 1, Term 2 and Term 3 Queensland gazetted school holiday periods commencing in 2009 and in each alternate year thereafter;
(b)for the first four weeks or the last four weeks of the Queensland Christmas school holiday period in each year commencing with the last four weeks of the school year in 2008/2009 and the first four weeks of the school year in 2009/2010 and to alternate in each year thereafter.
This Order be an authority to medical, health, and care providers of the children to release information and discuss the children’s health and other needs with the parents, and each parent to advise the other of the names and addresses of such providers and provide such further written authority as may be required from time to time.
Each party is to advise the other of any change of address or telephone number within seven days of any such change occurring.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ROCKHAMPTON

ROC 755 of 2007

MR BYRNE

Applicant

And

MS PORTER

Respondent

REASONS FOR JUDGMENT

These proceedings relate to orders sought with regard to the parenting of two young boys, [X] and [Y], both in 2003. The children are the children of the relationship between Mr Byrne, whom I shall refer to as the father, and Ms Porter, whom I shall refer to as the mother. The parties were in a relationship together for a period of about eight years commencing to reside together in or about 1999 and finally separating in May of 2007.
At that time the mother left the Commonwealth of Australia, apparently without the consent of the father, and relocated to New Zealand. Proceedings were commenced very shortly thereafter and Hague Convention matters were then dealt with, such that on 2 August 2007 a judgment was delivered which required the mother to return to the Commonwealth of Australia with the children. On 7 September 2007 the mother did so, but interestingly she did not return to the same locality in which the father was residing and which had been the area that the parents had resided at prior to separation, but rather, returned to Perth in Western Australia which, in fact, geographically is probably a greater distance away from where the father resided in Central Queensland, than was the international move to New Zealand.
Since 7 September 2007 until now, about 13 months or so, the mother has continued to reside in Western Australia and the children have continued to reside with her. During that time the father has had only very limited opportunities to have time with the children and, of course, each parent has different explanations as to why that might have been the case.
In a nutshell, it breaks down to a suggestion from the father's part that the mother has not, if you like, fostered such an opportunity for him to spend time with the children and, from the mother's perspective, the father has shown little, if any, real inclination in relation to spending time with the children, though it did occur during the Christmas/New Year period 2007/2008 and also for a matter of a few days when the father was in Western Australia as a result of injuries that had occurred in an accident, involving a child of the father’s of a previous relationship.
Following the mother's return to Australia, the father filed an application in this Court on 17 October 2007. The orders of a final nature that were sought, and this is the final hearing of the matter, were of very limited compass. They were simply in these terms:
That the children, [X], born in 2003 and [Y], born in 2003, live with the father,
and secondly,
any further or other orders as this Honourable Court determines to be in the interests of the children.
The mother filed a response on 27 November 2007 and again, in relation to the final orders that she proposed, she was succinct in the extreme. The orders that were proposed were as follows:
1. That the mother have sole parental responsibility for the children.
2. That the mother be at liberty to relocate to New Zealand with the children.
3. That the father have reasonable time with the children as agreed between the parties at the mother's expense, and
4. That the father pay the mother's costs of and incidental to the proceedings.
Fortunately both the mother and the father have elaborated upon what is proposed by them in relation to the more specific arrangements with regard to the parenting of the children. The father, in the Outline of Case, filed on 20 October 2008, details more completely the orders that are sought. They still contain a provision for the children to live with the father and now also additionally contain provisions that the father says are in the best interests of the children, including that he should have sole parental responsibility for the children.
The father proposes that the children spend time with and communicate with their mother, at such times as may be agreed between the parties and, in the alternative, and it can only be assumed that it is in the alternative of the mother still having the children in her care, then that the mother be ordered to return to the Rockhampton/Capricorn Coast area.
Alternatives are also proposed in relation to the general orders including those with regard to parental responsibility. Attached to the Outline of Case are a second list of orders that the father proposes. They are generally in these terms:
That the father and mother have equal shared parental responsibility for the care of the children. That the parents consult with each other about decisions to be made in relation to the long term arrangements with regard to the children. That the parents have equal time with the children, such that the children live with the father and the mother in a week about arrangement, and additionally, the father then proposes that each parent should advise the other in the event of any emergency affecting the health, safety or welfare of the children, as well as the orders constituting an authority to medical, health and care providers of the children, to release information and to discuss issues with regard to the children's health. Additionally, the father proposes that there should be an order that provides for the instance of each parent changing address or telephone number to notify, and be required to notify the other parent, within 24 hours of such a change.
The mother's trial affidavit sets out more completely what she says is the appropriate course to follow in relation to the arrangements with regard to the children. She says, commencing at paragraph 44 of her affidavit, the following:
Mr Byrne and I be jointly responsible for decisions concerning [Y] and [X]'s long term care, welfare and development.
Additionally she proposes that the two, she and the father, be jointly responsible for the cost of travel between New Zealand and Queensland, as she says that she will have the support of her partner, Mr H, and her parents, so that she will be able to contribute to travel expenses and to be able to afford the costs of the children's travel from New Zealand to Queensland. The mother then proposes, obviously in line with her suggestion that she should be able to relocate to New Zealand, that there should be arrangements in relation to the children spending time with the father to coincide with Christmas school holidays, as well as the other school holiday periods that would fall during the year.
She refers in paragraphs 48, 49 and 50 of her affidavit to term 1, term 2 and term 3 holidays, with one week in each of those holiday periods and also refers to the Christmas school holiday periods proposing two weeks in 2008/2009 and two weeks in 2009/2010, but at different times, so that on one occasion it would include the Christmas Day and on other occasions would occur later in the school holiday period which would then, she says, accord with the children being present for the father's birthday.
She also proposes that there should be telephone communication by the father to the boys on birthdays and special occasions and at specified times arranged between the parties, so that it was able to be ensured that the children would be home and ready to receive the calls. The mother, in fact, indicated in her evidence given in relation to this matter, that they were, if you like, simply a starting point in relation to her understanding, that she was required to detail what she might propose and she certainly indicated that she was more than willing to be far more flexible and expansive in what was proposed, in relation to time being spent by the children with their father.
She indicated, for example, that if the father sought to have the children in his care for the entirety of the Christmas school holiday period, some six weeks or so, that she would be willing and flexible in relation to discussions there and indicated, for example, that she would be willing to consider other alternatives such as five weeks or even six weeks, depending upon the circumstances, as they might exist.
I turn now to the evidence that was called in relation to the matter. There were really only two principal witnesses, as is of course almost invariably the case, the mother and the father. But both the mother and the father called their partners to give evidence in relation to the matter also. Neither the mother nor the father, however, required that the other parent's partner be called in relation to the matter, but of course reliance is placed upon the evidence that each gave.
I note, for example, in the affidavit under the hand of Ms S, the father's partner, that she comments upon the relationship that she has with the father and the developments in respect of that. More specifically, however, Ms S was able to speak about issues in relation to her observations of the children's time spent with the father during the Christmas school holiday period 2007/2008. She says in paragraphs 5 and 6 of her affidavit the following:
When [Y] and [X] came over in January 2008 they appeared to be happy to be at home. They were familiar with their belongings in their room and seemed comfortable in their surroundings. They were introduced to me and seemed quite okay with me being their new friend. In fact, climbing on my lap to have me read a story to them. They got on well with their brother [Z] as did [Z] with [Y] and [X]. They spent all their time playing with either their father, their brother [Z], myself and my son, [J]. My son [J] did not meet the twins straight away as he was at his father's. However, he came out to the house soon after.
She goes on:
[Y] and [X] took to my [J] immediately, referring to him as "[omitted]’. They got on beautifully as we all did. Whilst the boys were here we travelled to Airlie Beach for a couple of days where we experienced rain, being forced to spend a great deal of time in motel rooms from which we all survived.
She goes on:
They also had an extremely enjoyable time spending quality time together.
And she concludes:
I heard the boys on many occasions telling their father and [Z] that they wanted to come live with us so that they could be with their dad and brother.
I accept the evidence that was given by Ms S in relation to this matter. In particular, I note her observations with regard to the children's interaction with their father and their obvious very quick comfort in return to their father's care, albeit for a limited time, as well as their apparent comfort in relation to attending back at the residence that they had been living in, prior to separation in May of 2007. Ms S was not required for cross-examination in relation to the matter and as I indicated, accept her evidence in relation to the observations that she made with regard to the time that was spent by the boys, with their father.
In particular, I noted that Ms S made reference to the fact that on one occasion, when the boys were in the care of their father, that there was some mention of their mother and she reports in paragraph 10 that [X] said towards the end of their stay that he missed his mummy. She also indicated that the boys had the opportunity for frequent contact with their mother by telephone, over the period that they stayed with us and there were occasions when [Y] did not necessarily want to speak to his mother, however that was encouraged by them.
I accept that evidence in particular because, of course, it is not what is sometimes reported and recorded in this Court, which is to the effect that the boys, girls or whomever had no qualms at all in spending time with the other parent, that they never mentioned the other parent and that there was no need for there to be any arrangements made in relation to communications. It is pleasing that Ms S was frank enough in relation to the matter, for example, to disclose that [X] on one occasion, as would be perfectly understandable, indicated that he missed his mum and, more particularly, confirmed that there were arrangements made with regard to telephone communications.
I make reference to that particular point because one of the real issues between the mother and the father in relation to that particular aspect of the matter is that there has been little opportunity for the father to have telephone communication with the boys. The mother says, that that is as a result of the father's lack of attempts to communicate with them and the father says, that it is far more a circumstance of the mother not making the boys available, even on occasions, the father saying, that when he rang, the mother would indicate that they were not available and that he could hear them in the background.
The fact is, that there needs to be some specific arrangements in relation to communication by both parents with the children when the children are not in their care and it was pleasing, and it was not challenged, that what Ms S noticed in relation to the matter, was to the effect that the children were obviously facilitated in opportunities to speak with their mother.
I also had the opportunity to consider the affidavit that was filed by the mother's partner, Mr H. Mr H also gave similar evidence in relation to his observations of the children's interactions with the mother and the very positive nature of that interaction.
I accept that there are, obviously, very positive matters in relation to the mother's relationship with the children, understandably so, of course, in light of the fact that the mother's evidence, and I think generally accepted by the father, is that the mother was the party or parent primarily responsible for the care of the children, during the time that the parents were living together and, of course, subsequently after separation in May of 2007, the children have almost exclusively been in the care of the mother. It would have been a most surprising indication, if the children were not therefore closely bonded with the mother.
There are a number of comments, however, that I need to make in relation to Mr H's affidavit. The first of those is simply the confirmation that Mr H and the mother met on 17 May 2008 in Perth. The parties, being the mother and Mr H, have therefore only been in a relationship for five months. It may be that it is a relationship that will stand the test of time, all of us expect that in every relationship that we enter into. But the fact is that it is a very new relationship and it is one where there must obviously be some concerns as to the longevity of such a relationship, though I accept that the parties, Mr H and the mother, are clearly very attached to each other and very supportive of each other.
In paragraph 8, Mr H makes a comment to the effect that he accepted that the mother would never have introduced him to the children, if she had known that I was someone who was not going to be a continual part of her and her children's lives. With respect, of course, it is exactly the same concerns that I have previously expressed, in relation to the proceedings. Mr H and the mother have only been in a relationship for five months. The mother has very quickly introduced the children to Mr H and has obviously encouraged them in their relationship with

Mr H, she being obviously in a stable, she believes, relationship with Mr H.
But the fact is that it is only very new and it is interesting therefore that in that very short period of time Mr H, in paragraph 8, makes the following comment:
I have always known that Ms Porter is an excellent mother and strives to be the best mother possible.
I have no doubt that that is the case, but there is, of course, little that can be placed in reliance upon such a statement, other than the obvious observational characteristics of it because of the limited time that has been available in relation to such consideration. I note also that Mr H indicates, in paragraph 13, that the boys and he, “have a fantastic relationship together” and he enjoys spending as much time with them as possible. He says:
I love [Y] and [X] and every moment we spend together. They are an integral part of my life, as is Ms Porter. I couldn't fathom the thought of not having them in my life.

I accept that may in fact be exactly the case, but the very direct nature of such a statement troubled me because it failed, I thought, at all, to recognise that if in a period of five months Mr H could form a relationship with the boys, to an extent where he could not fathom the thought of not having them in his life, there seemed to be little, if any, appreciation of their natural father having exactly the same attachment and, with respect, quite clearly a far greater biological and emotional attachment.
If you like, I gained the distinct impression throughout the affidavit of Mr H and also, unfortunately I thought, through the affidavit and evidence of the mother, that there was a far greater importance placed on so many other people, in relation to the children's lives, than any real importance or recognition, particularly on the part of the mother, of the real importance and benefit to these boys, of a relationship with their father.
As I commented before, a matter that troubled me enormously in relation to this matter was the fact, that when the Hague Convention orders were made in relation to the matter, the mother was required to return to the Commonwealth of Australia. She was required to return as a direct result of the application made by the father, and yet she put her own wishes and attachments to other family and friends, ahead of the boys’ rights in relation to this matter and as I commented during both submissions and evidence, the real issue here is the children's right to a relationship, with both of their parents.
I, unfortunately, gained the distinct impression, that there was a far greater weight given by the mother, to the importance of the relationships that she considered important, than a recognition of the boys' absolute right to a relationship with their father. I noted also in paragraph 17 of Mr H's affidavit that he makes the following comments:
[Y] and [X] have sometimes called me dad which is something that I am very proud of, yet I have never told them nor so much as suggested that I should be called dad and I would never try to take this role away from their father. This is just something that has happened naturally as I am a full part of their everyday lives. They know how much I love them and they know how much I love their mother.
I accept that it would not be something that would necessarily have been encouraged by Mr H. If nothing else, my experience over nearly 30 years practising almost exclusively in the area of family law, is to the effect that children stumble regularly over changes in relationships, that exist between their parents and that very easily they can call a step parent, “mum” or “dad”. It is not in any way a suggestion that they place the relationship with that new person in their life, ahead of their other parent, it is simply the fact, that it is confusing.
I am also able, of course, to give judicial notice to the fact that the experience I have is that whilst parents might be somewhat distressed by such arrangements occurring, the children have absolutely no difficulty in delineating between “dad one” and “dad two”, “mum one” and “mum two”, or however else they might describe them.
The real matter that troubled me in relation to this was that Mr H indicated that he is a full part of their lives, and that that therefore gives rise to the possibility of the boys making that confusing statement, in relation to what they should call him.
I see no difficulties arising in relation to that particular aspect of the matter, but again, if you like, it gave me an uncomfortable feeling that there seemed again to be an appreciation by Mr H, but I also thought, by the mother, in relation to this matter, that he had, at least to some extent, taken a substituted role in relation to the children.
The fact was that, as he said, he was a full part of their everyday lives, their father was very much a secondary part in relation to that. I was troubled by that particular aspect of the matter.
I also note that in the final paragraph, again understandably, Mr H indicates his full support for the mother, in her application. He suggests that the Court should see, that [Y] and [X] are with the best possible parent they could be with. The fact is, that there is not a word in relation to the father, except, one would think by inference, of impressions that Mr H has of the father, as a result of discussions with the mother.
The mother's own evidence, however, was to the effect that when issues arose in relation to the father, they were not spoken of in the presence of the children, but rather were the subject of discussion on occasions, after the children were in bed, and clearly, of course, they would have involved Mr H.
The fact is that Mr H has no personal knowledge whatsoever of the father. If anything, and it is clear, the father would not have fought as long and as hard as he has, in relation to his application with regard to these children, unless he seriously wanted to be a real part of these children's lives. I gained the distinct impression that Mr H, understandably, was wholly supportive of the mother, but was without any real perspective in relation to that support, because he had not had any real opportunity, nor had he availed himself of an opportunity, to inquire as to the father's motivations, or the father's real wishes, in relation to this matter.
Whilst I accept Mr H's evidence in relation to the matter, as I said, I am somewhat troubled as to the limited nature of the appreciation or recognition by Mr H of the importance of the father, in the lives of these children.
I turn now, of course, to the evidence of both the mother and the father, in relation to the matter. As is obviously the case in relation to such matters, I was impressed by both the mother and the father's appreciation of their role in relation to the children's lives. I should indicate, for example, that I have absolutely no doubt as to the mother's love for the children or the father's love for the children.
I have absolutely no doubt as to the determination that both parents have to, as best they can, provide for and to meet the needs of the children, at least in so far as they might perceive them, in relation to the children. However, there are obviously some areas that were troubling in relation to such matters as this. I was, for example, in relation to the father's evidence, particularly his affidavits in relation to the matter, a little troubled as to the somewhat blasé approach that I think he took, in respect of suggesting that the children should be in his care.
I accept that there is a real concern expressed by the father and I think, to some degree, indicated by the evidence that is before me, that the mother is not as genuine or as forthright in the fostering and development of the relationship with the father, but I must say I was somewhat troubled by the fact that the father seemed to think that two little boys, not yet five years of age, having spent almost the entirety of their life primarily in the care of the mother and certainly the last

18 months or so almost exclusively in the care of the mother, would not be troubled by a radical change in circumstances involving a realignment of with whom they live and the parent with whom they spend time.
The father, however, seems to have come at least some way around to appreciating this in the alternative proposal that is outlined in the case outline, which is to the effect that the parties should have equal time with the children on a week about contact arrangement. That is certainly a greater appreciation of the children's right to a relationship with both parents and an appreciation of the fact, that the children would not be spending lengthy periods of more than a week apart from their mother, but I was still somewhat troubled by, as I say, the rather easy basis upon which the father thought that radical changes, such as that, could occur in relation to the children's lives.
It may be that the father was hoping for the best that he could possibly get, in relation to this matter, but it seemed to me to have little appreciation of the possible effects upon the children of such a radical change that would be effected in relation to the children's lives.
By the same token, however, I had not the merest doubt at all that the father's determination in relation to this matter to be involved in the children's lives, to have been involved in Hague Convention proceedings and to seek to have the children returned here, is based on absolutely nothing other than the father's very real appreciation of the importance of his role in the children's lives and the need for there to be proximity, for that to occur.
I gained the distinct impression in both the oral evidence and the affidavit evidence that was given in relation to the matter, that the father appreciated the effect upon his relationship with these children of the very significant distance that existed between Central Queensland and Western Australia or New Zealand and the obvious effects upon his relationship with the children, if that were to continue. I was not at all of a mind to think that there was any malice or other motivation other than a real intent to ensure that the best interests of the boys were met, particularly as a result of ensuring that they had the opportunity for a full relationship, with both their mother and their father.
I also, of course, had the opportunity to consider the evidence of the mother in relation to this matter. As I indicated, I have absolutely no doubt as to the mother's love for the children, her capacity as a parent to meet the day to day needs of the children and to ensure that those day to day needs and interests are met. I must say, however, that I was obviously troubled by what I consider to be a very obvious lack of insight, on the part of the mother, into the importance of the father in the children's lives.
I gained the distinct impression, particularly during her oral evidence that she was very quick to be critical of the father, very quick to say that he was not as involved as he indicated in relation to the day to day care of the children, but gave no recognition to the very obvious breakdown of traditional roles that so many parents in our society, the vast majority in fact, have with regard to the care of children. To suggest that the father was not as involved in the children's lives because he was at work, fails to recognise that obvious factor and the fact that each parent contributes as they can, in relation to the household and to the lifestyle generally of the parents.
It is trite to suggest that one parent might have a more significant role in the day to day or even minute to minute care of the children and that therefore, that gives them some absolute priority in relation to the love, affection and support that they can have for the children. If nothing else, the real issue here is that each parent provides for the support and nurture of the children in different ways. The obvious examples are that parents have different approaches in relation to parenting. It does not mean that one is right and one is wrong, it simply means that they are different, but there needs to be an appreciation in relation to that.
As I say, I was also troubled by the mother's obvious and continued attempts to deflect any suggestion of irresponsibility or a lack of appropriate attitude to her, but rather to direct it to the father. The mother was asked on at least three occasions, what steps she had taken to obviously facilitate the children's communication with the father. On each occasion she refused, perhaps even unknowingly, to answer the question, but rather to lay blame at the father's feet, that he had not called.
Only when I questioned her, in relation to certain of those aspects did I gain the impression that there was perhaps some inkling of the fact, that she did have some role and responsibility in relation to this matter. Asking the children if they wished to speak to their father and then doing nothing more when the children said no, is a total failure to appreciate that children are like sponges. They take in all that is going on around them and the distinct impression I get in relation to this matter, particularly from the mother's own evidence, was that the father was not the subject of conversation, he was not the subject of any real input by the mother or certainly encouragement by the mother, of the children appreciating their relationship with him.
As a result of that, it is obvious that the children's response, when asked by the mother if they would like to speak to their father, would be to say no, because their perception, rightly or wrongly, would be that that was what the mother wanted to hear. Appropriate parenting would mean that a decision would be made and, if you like, the children would be called in and told, "Dad's on the phone, talk to him".
Appropriate parenting means that parents put their own wishes to one side and unfortunately, the impression I get in relation to this matter, is that the mother's lack of insight in relation to that, and if you like, a concentration on what I would consider to be her own wishes, rather than the best interests of the children, troubled me significantly in relation to the decision to be made in relation to the matter.
The mother continually indicated that the father had not sought extra time with the children, over and above the two occasions to which I referred some time ago. The mother never contacted the father. There is fault on both parts, but the appropriate parenting by both parents puts such issues to one side. It is all well and good to lay blame at the father and there are areas for criticisms in relation to what the mother suggests in relation to the father, but if you like, she had the primary role. She had these boys in her care thousands of kilometres away from the father. She had to be, if you like, the “better parent”, the one who put all concerns to one side and ensured that the boys best interests were met.
Unfortunately, the impression that I got in that regard, was that the mother failed to place any real weight, if any at all, upon the importance of the father in these boys' lives. It would not be because she would be doing the father a favour, but because she would be doing the thing that would be in the best interests of the children. I was troubled by that and I was troubled by the mother's indication, that if she got what she wanted in relation to this matter, which was an opportunity either to relocate to New Zealand or alternatively, but as a secondary consideration, to live in Western Australia, then she would be a better parent. She would do, what she finally acknowledged she failed to do for the last 18 months, and would encourage, far more significantly, the children's lives and involvement with the father.
I was troubled, particularly, by the fact that the mother, when being asked about what her proposals were in relation to this matter, could not even countenance a suggestion that it might be in the best interests of the children for them to be nearby to their father and to have very serious and significant involvement with their father, not for his benefit again, but for the benefit of the children. She said that she had only considered attendance at university at Canterbury in New Zealand, if given leave to go to New Zealand, or at Murdoch University in Western Australia.
When asked if there was any consideration of a move to Central Queensland and perhaps study there, she indicated that that was not on the cards, that she had not considered Central Queensland University and, when asked if there was a chance of her moving to Central Queensland, she indicated that she would definitely not do so. The best that she could countenance in that regard was a move to Brisbane. I note, specifically, in that regard, that, of course, Brisbane is the current or former home town up until six or eight months ago, of Mr H, he indicating in his affidavit that he had relocated to Perth from Brisbane seeking a job or job opportunities, in about March of 2008.
As I say, I was unfortunately troubled by the fact that the mother seemed to be far more motivated by her own wishes in relation to this matter, than any consideration of the children's right to a beneficial and meaningful relationship with their father. I gained the distinct impression, that whilst the mother pronounced from the witness box on a number of occasions that she was flexible in relation to arrangements, the real impression I got in relation to the matter, was that the mother's flexibility extended only as far as she was prepared to consider was opportunistic for herself and in no way would be flexible to the extent of allowing there to be more time with the children.
If you like, the trouble that I have in relation to this matter and the concern that obviously motivates me in relation to it, is that, the past is an indicator of the future and whilst all of us have the capacity to change, the mother gave little recognition at all to the possibility that the father may have changed and may wish, for example, to be a far more involved parent in the life of these children, than he had been in his older children's lives. The strange thing, of course, was that the mother accused the father of exactly what she said she could do, but he could not do. She could change. In 18 months she facilitated no communication with the father and yet she criticised the father that he could not change.
I find that there is a real lack of insight, as I have repeatedly said, on the part of the mother and that clearly troubles me in relation to what future opportunities these two young boys have for a fostered and developed relationship with their father. It was interesting, in that regard, for example, that the mother specifically said that she would be flexible in relation to the matter, encouraging the children to have a relationship with their father, when that had not occurred before. What troubled me there was, if you like, that I gained the distinct impression that the mother was prepared to talk the talk, but I have real doubts as to whether she is prepared to walk the walk.
The very last thing that she said to me in her submissions was that the boys do not know their father. There is no father/son relationship and the boys will have to get to know him. I formed the view that the first response that would come in relation to any request by the father for more significant time, was that it would be not beneficial and in the best interests of the boys to spend more time with the father, because they do not know him.
How, of course, they might get to know him, if they are living in another State thousands of kilometres away, or another country, with the opportunity to spend a week or two here and a week or two there with their father, fails in my view to in any way appreciate the benefits to the boys of a proper and full relationship with their father, however that might be able to be facilitated by the father.
I turn now, obviously, to the matters of law that I must address in relation to any decision. The starting point is, as it always must be, the provisions of s.60CA. The best interests of the child are the paramount consideration, but of course there are a number of stepping stones or criteria that must be looked at, in relation to any such decision.
The first is s.61DA, where the Court is required to apply a presumption that is in the best interests of the child or children, for the parents to have equal shared parental responsibility. What flows, of course, or what is required in relation to equal shared parental responsibility, is an acknowledgement by both parents of the importance of the other parent in the child's life, both in relation to their day to day care and supervision, but also, of course, more significantly in relation to decisions to be made, with regard to the long term care and supervision, of the children.

The father, in his case outline, puts forward two alternatives. One, with him as the parent having sole responsibility for decision-making and the second, an alternative with regard to the parents having equal shared parental responsibility. The mother, in her affidavit, also details a proposal where there should be equal shared parental responsibility. What comes with that, of course, is a need for the parents to be able to communicate and the real concern that I have in that regard, is that to date there has been little, if any, communication and certainly little, if any, trust or respect shown, perhaps by both parents, to the other, in relation to such matters.
That needs to be addressed by the parties and, of course, if they have the best interests and the welfare of the children as the first and only real consideration in respect of any decisions to be made, then they will make such decisions. The fact is that these boys are coming up to a time where school will need to be commenced, where other life changing or life fixing arrangements need to be made. Both parents should clearly be involved in relation to such matters and, if an order is made for equal shared parental responsibility there is a very clear indication as to what is expected of both parents in relation to the matter.
The presumption of equal shared parental responsibility can be rebutted in circumstances of there being abuse or violence within a relationship, or in some way affecting the children or, of course, for other reasons that might satisfy the Court, that it is not in the best interests of the children.
The issue of domestic violence looms in relation to this matter. Both the mother and the father acknowledge that in or about early March, there was a domestic violence incident between them. Both have very different versions in relation to the matter.
I gained the distinct impression, that each would have, “gilded the lily”, in relation to their involvement, in respect of the altercation between them. The one thing that is obvious is, of course, that it got out of hand and that there were threats, there was yelling, there was pushing, there was shoving and, at least from the father's allegations, the mother armed herself with a knife, though she denies that and says that if there was any knife, it was in the hands of the father. The only independent or corroborative evidence in that regard is the fact that when the police became involved they obtained, or sought, Domestic Violence Orders, in relation to both of the parents.
The only inference I can therefore draw from that, is that whilst there may have been different degrees of responsibility in relation to such issues, the fact is that both parents acted inappropriately, both have acted in a manner which, pursuant to the definition of domestic violence, fell within what the police, in Queensland, considered to be a domestically violent situation and one where each should have a Domestic Violence Order protecting them from such behaviours, from the other.
I am satisfied that whilst there was at the time leading up to separation at least one incident that would be categorised as domestic violence, that such circumstances have obviously not arisen again, in light of the fact that the parties have been, to all intents and purposes, thousands of kilometres apart. But I am satisfied that that is not a factor which would influence and affect the continued presumption of equal shared parental responsibility.
As I said, if nothing else, I am satisfied that if these parents are, as they indicate, intending to put the best interests of the children to the forefront, rather than their own intentions and wishes, then equal shared parental responsibility is an appropriate starting point.
I am, of course, a little concerned that by making an order for equal shared parental responsibility and indulging in what might sometimes be called, “social engineering”, I cannot make parents, good parents. I cannot make parents be good communicators. I cannot make one thing into another. What I can do, however, is take both parents at their word, that their prime motivation in relation to the proceedings that are before the Court now, are the best interests and the welfare of the children.
In that circumstance, and particularly in light of the mother's express intent that there should be more flexible and appropriate discussions between she and the father, and the father's apparent secondary position in relation to the matter, that there should be equal shared parental responsibility, I find that that is the appropriate course to follow and I intend to make an order for equal shared parental responsibility.
What flows from that then is a requirement, pursuant to the provisions of s.65DAA, that the Court must consider whether equal time with each parent would be in the child's best interests and is reasonably practicable and if equal time is not appropriate, then to consider whether substantial and significant time, would be in the child's best interests.
If the mother's proposals in relation to this matter were to be acceded to and she was given leave, either to relocate to New Zealand or to remain in Western Australia, then of course, equal time is an impossibility. In fact, substantial and significant time would also be reasonably impracticable because, of course, the definition under the Act of what constitutes substantial and significant time involves the opportunity for a parent to be regularly involved, not only in what might be called the, “good times”, the weekends and holidays with regard to a child's life, but also, of course, in their educational and extracurricular activities.
That would be an impossibility in relation to arrangements, if it were the case that the mother were to succeed in her application. That is not to say that that is impossible and, of course, there are many instances where one party or the other seeks the opportunity to relocate for a multitude of reasons and leave is given. There can, of course, be many ways by which a fruitful and beneficial relationship can be facilitated between the parent, if you like, who remains and the children who move with the other parent. But there must, of course, be certain criteria or conditions in place for that to work satisfactorily.
The first of those would obviously be, that there is in place a sound, strong bonding or relationship between the parent that is not any longer to spend significant time with the child or children, and that there are in place arrangements which can ensure that, notwithstanding the distance and therefore the lack of opportunity to spend more regular time, there can be other means by which the relationship is facilitated.
The difficulty that arises in relation to this matter is that, for at least the last 18 months or so, there has been virtually no relationship or fostering of a bond between the father and the children.
It may be, as is indicated, that there is a criticism by the father of the mother being responsible for that, or the mother suggesting that it is a lack of application on the part of the father to be involved in the children's lives. I am inclined to believe that there is probably a combination of a lack of appropriate approach by both the mother and the father, but it is, of course, contributed to, the enormous geographic distance and the financial constraints that would be placed upon both parents in that regard.
I am troubled by the suggestion of there being opportunities for a beneficial relationship and, in fact, a developing relationship between the father and the children, if the children were to reside with the mother and she were given leave, either to reside in New Zealand or elsewhere. I am troubled and I simply cannot accept that there would be an opportunity for a substantial and significant time being spent with the father, if it were limited to school holidays, even if it were the school holiday periods in their entirety, and I have real concerns in that regard, because of the obvious detrimental effect that would occur to the children if they were not, for example, to have the opportunity to holiday at all with their mother.
It is all well and good to say that the children can travel and that they could travel for various periods of time with flexibility, in relation to spending time with the father, but the real issue here is not only the costs, not only the difficulties and, of course, they would be significant in relation to the matter, but the effects upon the children of there being limitations placed upon them, in relation to their opportunity to spend holiday and other times with the mother.
I gained the distinct impression that, as I said, that the mother was willing and strongly indicated that she would facilitate such arrangements, but unfortunately I have little confidence, that if the mother were successful in relation to her wished intent to relocate or to remain in Western Australia, that there would be as full an appreciation of the effects upon the children of spending limited time with the father or all of holiday time with the father.
The fact is, that both parents need to have the opportunity, and in fact the children should have the right, to have both parents involved in all aspects of their lives, and the move that is proposed by the mother would obviously preclude that from occurring and, of course, as I have indicated, if there were in place a strong bond that could be facilitated by other means it would be a different situation, but the fact is that for the last 18 months there has been, for whatever reasons, only very limited and cursory opportunities for the father to be involved in the children's lives. As I said, the mother's own submission to me was that the boys do not know him.
How there could be any suggestion, that with the mother living in another country, or thousands of kilometres from where the parties resided prior to separation, there could be a fostered and developed relationship with the father is entirely beyond me. I simply do not accept that there is any proper basis, upon which that could occur and certainly I do not accept, that it would be in the best interests of the children, when it is recognised by both parents that there must be a positive relationship with both parents fostered and developed by the other parent. The best of intents might be forthcoming by both parents, but my assessment in relation to the matter is that even if that were to occur, the tyranny of distance would eventually lead to the breakdown of the relationships that should be in place, to the benefit of the children.
I turn then to the various considerations that are set out in s.60CC of the Family Law Act and in particular the matters that must be addressed by me in relation to any final determination. Section 60CC and in particular sub-s.(2) and (3) are relevant here. Sub-section 2 headed, “The Primary Considerations”, only has two factors and they must be looked at first and foremost by any Court in relation to a determination. The first of those primary considerations are:
(a)For the Court to give consideration to the benefit to the child of having a meaningful relationship with both of the child's parents.
And, balancing that perhaps, those matters set out in (b):
(b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
I have already commented briefly, upon issues of family violence and of psychological harm to the children and in fact, the real issue here is that neither parent has acted as appropriately as perhaps they could have, in relation to the best interests and the welfare of the children. Whatever might have been the circumstance on or about 3 March 2007, the fact is that the children would have seen their parents acting in a manner which was most inappropriate and, of course, the evidence that was given, not only by the mother, but by Mr H, is that the children have made comment about observing the father, hurting the mother.
Unfortunately, the impression I gained in that regard, is that they have not been dissuaded, in relation to a recognition that it was something in the past and was something that perhaps both parents need to be mindful of, in relation to their discussions. In any event, I am more of the view that there is little, or any, real prospect whatsoever of these children suffering physical or psychological harm, in the care of either of their parents. It leaves me, of course, with the only primary consideration that in my view is relevant, which is the benefits to the child of having a meaningful relationship, with both of the child's parents.
I digress slightly in relation to that, because the primary consideration relates only to the child's right to a meaningful relationship, with the child's parent. The mother emphasised to me the children's relationships with other persons, including grandparents, aunts, uncles, friends, family and Mr H. All of those are, of course, significant, but what troubles me, and what also is obviously relevant, is that not only is it the law that there must be a consideration first and foremost of the benefit to the child of a meaningful relationship with the other parent, but the fact is that I gained the distinct impression, as I indicated, that I believe the mother was far more inclined to put her own wishes and perhaps others, ahead of the relevance and importance of the father, in relation to the children and to their development and benefit.
I am satisfied that the only one of the primary considerations, relevant in relation to this determination, is a consideration of the need for there to be a meaningful relationship, with both the mother and the father. The additional considerations then, that need to be looked at, are issues that arise with regard to the views expressed by the children but, of course, there is little evidence in that regard. The father says that his time with the children, limited as it was, was beneficial and in fact Ms S indicated, that the children said that they wished to spend more time, with the father. Just as obviously, the mother refers to the children's enjoyment of their time with her and the obvious benefits of that time.
If anything, the only real assessment that I could make in that regard, is that these children deserve to have the opportunity to have a full and meaningful relationship with both of their parents because, in a perfect world, that would be what would occur perhaps by the parties remaining together, but if not remaining together, at least being in close proximity, so that the children's benefit could be seen to flow, from the opportunity of a relationship with both parents.
I am also troubled by sub-div.3(b) of s.60CC. It requires that as an additional consideration, the Court give consideration to the nature of the relationship of the child with each of the child's parents and additionally other persons, including grandparents or other relatives of the child. The fact is here that the mother's own evidence is that the children do not know the father. The children, of course, have had little opportunity in the last 18 months, because of fault no doubt on the part of both parents, to have a relationship with the father. As I have indicated, however, I am troubled by the lack of application on the part of the mother who had to be, if you like, a better parent because of the position that she was in, with the children in her care, in fostering and developing the relationship with the father.
I am concerned that if there is not a far closer interaction between the parents and, of course, far closer locale in which they are situated, then the relationship that the children will have with the father can only deteriorate and that that is not in the best interests of the children.
Relevant also in relation to this matter is sub-s.(c) relating to 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. I have already commented upon that at length, and the bottom line is that I am not satisfied that the mother has shown a real and direct intent, in relation to facilitating and fostering the close and continuing relationship with the father. As I say, the evidence the mother gave troubled me enormously. I was far more inclined to the view that her intent was to put others ahead of the father, without any recognition of both the father's wishes, which are important, but most essentially, the children's right to a relationship with their father.
I am particularly concerned that if there were enormous distances between the children and the father, that there would be a far greater inclination to encourage relationships with others, no doubt of a significant nature, to the detriment of the relationship with the father which is, of course, a primary consideration.
There needs also, of course, significantly in relation to this matter, to be consideration of the effect of any changes in the child's circumstances, including the effect on a child of any separation from either of his or her parents, or any other child or other person, as a result of the orders that might be made.
The fact is, that the father, at least in one respect, seeks orders that the children live with him. As I have indicated, however, his alternative proposal is for an equal shared time arrangement, in relation to the children. The mother's proposal is that the children should live with her and should have the opportunity for time spent with the father but, of course, only of a limited nature. It is a particularly difficult consideration, particularly when coupled with the matters that also arise pursuant to the provisions of s.60CC(3)(e) which relates to the 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.
The distances, the financial constraints and, unfortunately as I have found, a lack of real willingness on the part of the mother to recognise the benefits to the children of a meaningful relationship, mean that there would be an obvious effect upon the children of any relationship which was to be fostered or developed with the father. Just as clearly, however, there are real concerns that must arise if, the father's proposal were put into effect, it was the case that the children were to live with him and the mother was only to have limited opportunities to spend time with the children, even if that were, for example, perhaps from a week about perspective.
The fact is that these children will be affected no matter what occurs in relation to the matter and, it is the parents' decisions in relation to the matter that are harming and hurting these children. There are enormous difficulties that will occur if the mother is granted leave to relocate. There are enormous difficulties that will occur in the children's lives if they were to be removed from the care of the mother. It is an almost insurmountable problem, and one that must be addressed, trying to balance all of the considerations, in relation to the day-to-day care of the children.
Sub-section (f) relates to the capacity of each of the child's parents and any other person, to provide for the needs of the child, including their emotional and intellectual needs. In my view, that should of course be read in conjunction with sub-s.(i), relating to the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child's parents. On the face of it, I have no doubt as to either parent's capacity to provide for a roof over the children's heads, food on the table and assurances that the children would attend at school and would have the benefits of an education.

Each parent could provide for the intellectual needs and each parent has what sometimes a psychologist refers to as a “good enough” capacity, in relation to providing for the day-to-day needs of the children. I am troubled, however, as to the capacity, unfortunately as I say of the mother, to provide for the children's emotional needs. I gained the distinct impression, that the father was a secondary consideration in relation to arrangements with regard to the children, without any recognition whatsoever on her part of the obvious harm that is effected upon the children, even unknowingly to her and to the children, of limited time and opportunities for a relationship with the father.
It is reflective of the mother’s attitudes and responsibilities to parenthood, but in that regard there are also criticisms made by the mother, though they were not more fully investigated, in relation to the father's provision for the financial support of the children. The fact is that parents have a multitude of responsibilities and obligations in relation to children and I am satisfied that both, unfortunately, at least to some degree, have failed to meet those obligations and responsibilities.
I have already addressed issues in relation to family violence and the existence of Domestic Violence Orders and there is no need for me to address issues, in relation to matter of maturity, sex, lifestyle and background, nor Aboriginal and Torres Strait Islander cultural matters.
Obviously, it would be preferable to make orders, which could lead to a limited exposure to further proceedings, but there is no magic answer in relation to arrangements, particularly with regard to the parenting of children. The fact is that the parents have to work with changing situations and changing circumstances. It may be that in time to come, particularly as the boys get older, their needs, their wishes, their wants and their attachments will change. What can only be hoped is that orders that might be made in relation to arrangements with regard to the parenting can provide a framework from which the parties can work together. It is, as is obviously and always the case, difficult to make a determination in relation to arrangements to be made, with regard to the parenting of children.
The real issues in respect of this matter are the children's rights to a meaningful relationship with both of their parents, balanced against considerations such as the parents' right to movement and, of course, the parents' right to move on with their lives. As was indicated by the Full Court of the Family Court in A & A relocation approach (2000) FLR 382, there are no constitutional bounds put in relation to movement, but on occasion when one looks at the paramount consideration being the welfare and best interests of the child, sometimes a parent's rights take secondary place, to the best interests and the welfare of the children.
In this matter I gained the distinct impression that the mother, in particular, has not given full appreciation or consideration to the children's rights. No doubt the relationship between she and the father deteriorated. No doubt both were unhappy in the relationship and no doubt the mother felt that the move taken by her, with regard to leaving the Commonwealth of Australia and travelling to New Zealand, was justified. All of those things may have been thought by her, but the real issue here is, was it in the best interests of these children and the situation that has then occurred for the last 18 months with the father having limited opportunities, if any, to spend time and be involved in the children's lives has been to the detriment of the children.
In my view, the only appropriate course in relation to this matter is for the mother to return to Central Queensland and to enable then the father to spend significant and substantial time with the children. It would be a difficult position for the mother to take in relation to this matter, particularly in light of her expressed desire, either to remain in Western Australia, where there are family and friends, or in New Zealand, but the real consideration here is the children's right to a meaningful relationship with both of their parents and that can, in my view, only be facilitated by a requirement that the children live in Central Queensland, and have the opportunity to be involved in both parents' lives and for both parents to be involved in their lives.
Of course, it would be a tragedy if the mother determined, as she indicated in her evidence, though not without the children, that she would not return to Central Queensland. But there needs to be some certainty and stability in relation to these children's lives and at the moment there is not. In my view, therefore, the only appropriate orders and the orders that I intend to make in relation to the matter are as follows:
ORDERS DELIVERED

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Coker FM

Associate: C Herbst

Date: 20 November 2008