CALES & CALES

FAMILY COURT OF AUSTRALIA

CALES & CALES

[2011] FamCA 307

FAMILY LAW - CHILDREN – Parental responsibility – views of the children – children are immature – little weight attributed to the children’s views – each parent is willing and able to facilitate close and continuing relationships between the children and the other parent – where the children have strong attachments to both parents – slight decrease in time with the father unlikely to be detrimental to the children’s relationship to him – practical difficulty in travelling between the parties’ residences considered – denigration of the father by the maternal family – conflict in parental relationship – parents are willing to improve communication – presumption of equal shared parental responsibility applies

FAMILY LAW - RELOCATION – mother wishes to relocate – mother is the primary residential parent – no onus of proof on the relocating parent to provide compelling reasons for relocation – Court considers reasons for residential parent’s desire to relocate – Court considers the reasons for non-residential parent’s maintenance of place of residence – balance of factors considered with the best interests of the children – no injunction restraining mother’s proposed relocation

FAMILY LAW - CHILDREN – with whom the children shall spend time – parties agree the children shall live with the mother – father does not seek equal time – substantial and significant time – statutory definition of substantial and significant time – individual circumstances of the parties influence whether substantial and significant time is reasonably practicable – order for substantial and significant time – telephone and internet communication with the father

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 64B, 65D, 65AA, 65DAA, 65DAC, 65DAE, 68B, 114

AMS v AIF (1999) 199 CLR 160
Goode v Goode (2006) FLC 93-286
Hepburn v Noble (2010) FLC 93-438
MRR v GR (2010) 240 CLR 461
McCall v Clark (2009) FLC 93-405
Sampson v Hartnett (No. 10) (2007) FLC 93-350
Taylor v Barker (2007) FLC 93-345
U v U (2002) 211 CLR 238

APPLICANT:

Ms Cales

RESPONDENT:

Mr Cales

FILE NUMBER:

NCF

358

2006

DATE DELIVERED:

6 May 2011

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Sydney

JUDGMENT OF:

Austin J

HEARING DATE:

30 & 31 March 2011 and 1 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Page SC and Mr Alexander

SOLICITOR FOR THE APPLICANT:

Kinnear & Company

COUNSEL FOR THE RESPONDENT:

Ms Rees SC

SOLICITOR FOR THE RESPONDENT:

Connah Steed & Co Solicitors

Orders

All former parenting orders relating to the children J, born … March 2002, and E, born … October 2003, (“the children”) are discharged.
The parties shall have equal shared parental responsibility for the children.
The children shall live with the mother.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children spend time with the father as follows:
(a)Whilstever the father lives within a radius of 50 kilometres of the residence of the mother and children:
(i)During NSW public school terms:
(i) Each alternate weekend, commencing from the conclusion of school on Thursday and concluding at the commencement of school on the following Monday morning, or Tuesday if Monday is a public holiday, such time to commence on the first Thursday of each term; and
(ii) From after school each alternate Thursday until the commencement of school on Friday, such time to commence on the second Thursday of each term.
(ii)During NSW public school holidays, for the first half of such holidays in every odd numbered year, and for the second half of such holidays in every even numbered year.
(b)Whilstever the father lives outside a radius of 50 kilometres of the residence of the mother and children:
(i)During NSW public school terms, each alternate weekend, commencing from the conclusion of school on Friday and concluding at 6.30 pm on Sunday, such time to commence on the first Friday of each term; and
(ii)During NSW public school holidays, for the first half of such holidays in every odd numbered year, and for the second half of such holidays in every even numbered year.
For the purposes of implementation of Order 4 hereof, the NSW public school holidays are deemed to commence on the first day following the last day of school term, the holidays are deemed to end on the last day preceding the day upon which the children are due to return to school, and the mid point is the day halfway between those first and last days.
Order 4 hereof is suspended during the following periods:
(a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd numbered years, with the same arrangements in reverse in even numbered years.
(b)Between 6.30 pm Saturday and 6.30 pm Sunday on the weekends of each Mother’s Day and Father’s Day, during which periods the children shall spend time with the mother on the Mother’s Day weekend and with the father on the Father’s Day weekend.
For the purposes of implementing Order 4 hereof, unless otherwise agreed:
(a)On all occasions that the children are to commence spending time with the father from the conclusion of school, the father shall cause the collection of the children from school at that time.
(b)On all occasions that the children are to conclude spending time with the father at the commencement of school, the father shall cause the return of the children to school at that time.
(c)The mother shall cause the collection of the children from the father’s residence at 6.30 pm on Sundays, when the children’s time with the father is to conclude at that time.
(d)The father shall cause the collection of the children from the mother’s residence at 6.30 pm on the day of the commencement of the children’s time with him pursuant to Orders 4(a)(ii) and 4(b)(ii), and the mother shall cause the collection of the children from the father’s residence at 6.30 pm on the day of the conclusion of the children’s time with the father on those occasions.
For the purpose of implementing Order 6 hereof, unless otherwise agreed, the party with whom the children are not then staying shall cause the collection of the children from the other party at the commencement of the time the children are to spend with the first party.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by telephone with:
(a)The father each Monday and Wednesday when the children are living with the mother and Order 4(a) applies, between 6.30pm and 7.00pm, and for that purpose the father shall telephone the children on the telephone number provided to him by the mother, and the mother shall ensure that the children are able to receive the father’s calls on that number at that time.
(b)The father each Monday, Wednesday and Thursday when the children are living with the mother and Order 4(b) applies, between 6.30 pm and 7.00 pm, and for that purpose the father shall telephone the children on the telephone number provided to him by the mother, and the mother shall ensure that the children are able to receive the father’s calls on that number at that time.
(c)The mother each Wednesday, Friday, and Sunday when the children are spending time with the father and Order 4(a) applies, between 6.30 pm and 7.00 pm, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father, and the father shall ensure that the children are able to receive the mother’s calls on that number at that time.
(d)The mother each Wednesday and Saturday when the children are spending time with the father and Order 4(b) applies, between 6.30pm and 7.00pm, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father, and the father shall ensure that the children are able to receive the mother’s calls on that number at that time.
(e)The parent with whom they are not then staying, on the children’s birthdays, between 6.30pm and 7.00pm, and for that purpose the parent with whom the children are not staying shall telephone the children on the telephone number provided by the other parent for that purpose, and the parent with whom the children are staying shall ensure that the children are able to receive the other parent’s calls on that number at that time.
The parties shall take all reasonable steps to ensure that, within one month of the date of these orders, they have a home computer equipped with webcam and a current subscription to the “Skype” internet communication program, and that thereafter the children are permitted reasonable access to the computer to enable internet communication with the parties.
Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the parties or either of them.
Each party shall notify the other of any medical emergency, illness or injury suffered by either child whilst in their respective care warranting treatment by a third party.
Each party, in so far as it is respectively known to them, shall keep the other informed of all educational, sporting, cultural, and extra-curricular events in which the children are to participate.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
The parties shall forthwith enrol themselves to commence, and thereafter participate in and complete, a post-separation parenting program, subject to the approval of that program by the Family Consultant, and thereafter furnish to one another evidence of their successful completion of the program.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
Any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCF 358 of 2006

Ms Cales

Applicant

And

Mr Cales

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to these proceedings have endured a protracted dispute about the parenting orders that meet the best interests of their two children.
The parties separated in November 2005 and since then the children have lived predominantly with the mother and spent frequent time with the father.
Underpinning the parties’ dispute is the mother’s proposal to relocate her residence with the children. The parties both live in suburbs on the north western fringe of Sydney, NSW but the mother is desirous of moving the residence she shares with the children to the lower reaches of the Hunter Valley, NSW in closer proximity to the maternal grandparents.
For some years the children have been spending time with the father every Wednesday afternoon for several hours, every alternate weekend from Friday evening until Sunday evening, and for half of the school holiday periods. The mother proposes curtailment of that arrangement, by dispensation of the children’s time with the father each Wednesday, to enable her change of residence. Conversely, the father proposes expansion of the time spent by the children with him during the week in school terms, which would preclude any residential relocation by the mother and children to a place beyond a conveniently proximate distance from his home.
Regrettably, the tortuous path of the litigation has only served to intensify the parties’ conflict and diminish their capacity to communicate constructively about the children.

Background

The parties married in 1998 and finally separated on 20 November 2005.[1]
[1] Mother’s affidavit, par 5
Two children were born to the parties’ marriage, they being J, born in March 2002, and E, born in October 2003.[2] At the time of trial the children were aged 9 and 7 years respectively.
[2] Mother’s affidavit, par 7
Following separation the children remained living with the mother in the former matrimonial home at Sydney Suburb 1.[3] The father vacated the former matrimonial home.
[3] Mother’s affidavit, par 12
At some indistinct point, the father commenced cohabitation with his present wife, and they subsequently married in 2008.[4]
[4] Father’s affidavit, par 1; Mother’s affidavit, par 8
The father and his wife lived together at Sydney Suburb 2 until April 2009, when they purchased a home and moved to Sydney Suburb 3 to be closer to the children.[5] They have lived there ever since.
[5] Father’s affidavit, pars 3.1, 3.2
The father and his wife have a son, C, but the evidence is inconsistent about his age. The father alleged C was born in January 2009,[6] but the mother,[7] the Family Consultant,[8] and the father’s wife all asserted he was born in December 2009.[9] I assume the latter date to be correct.
[6] Father’s affidavit, par 2
[7] Mother’s affidavit, par 11
[8] Family Report, par 5
[9] Father’s wife’s first affidavit, par 2
The mother and children remained living in the former matrimonial home until it was sold on 29 May 2010 as part of the parties’ adjustment of property interests pursuant to their binding financial agreement. They then moved into rental accommodation at Sydney Suburb 4,[10] where they still reside. The mother invested her share of the proceeds of sale of the former matrimonial home, amounting to $335,000,[11] which the mother shortly expects to have increased to $355,000.[12]
[10] Mother’s affidavit, pars 13-14, 20, 22-23; Father’s affidavit, par 30.1
[11] Mother’s affidavit, par 85; Father’s affidavit, par 25
[12] Mother’s affidavit, par 256
The litigation between the parties over the children has had a long and unfortunate history.
The proceedings for parenting orders were commenced by the mother on 5 June 2006. Interim orders were made on 15 November 2006, with the consent of the parties, providing for:
a)The children to live with the mother (Order 1.1),
b)The children to spend time with the father each alternate weekend from Friday evening until Sunday evening, each Wednesday afternoon for two hours following their attendance at pre-school, and for half of school holiday periods (Orders 1.2, 1.6), and
c)The children to communicate with the father by telephone twice per week (Orders 1.2.4, 1.4).
The possibility of the mother’s relocation was a live issue even then. It was part of the mother’s pending Amended Application and it was noted in the interim consent orders that the mother would give the father not less than 28 days notice of any proposal to relocate the children’s residence away from Sydney Suburb 1 (Order 1.9). Although styled as an order, it was really a notation.
The matter came on for final trial before Cohen J in October 2007.[13] Judgment was reserved with final orders and reasons delivered on 24 December 2008, although the orders were subsequently amended on 12 January 2009 under the slip rule.[14] Relevantly, His Honour’s orders provided that:
a)The children reside with the husband at times largely, but not precisely, in accordance with the interim orders made in November 2006 (Order 2), and otherwise the children reside with the mother (Order 7), and
b)The wife was restrained from moving the children’s residence with her to a place outside a radial distance of 30 kilometres from the Sydney GPO (Order 6).
[13] Mother’s affidavit, par 15
[14] Mother’s affidavit, par 15
The mother successfully appealed against those orders and the Full Court delivered its orders and reasons on 26 November 2010.[15] The Full Court’s orders set aside the trial judge’s orders concerning the partial residence of the children with the father and the geographical restriction imposed upon the residence of the mother, stayed the operation of its own orders, and remitted the matter for expedited hearing.
[15] Mother’s affidavit, pars 16-17
Procedural orders for the re-trial were made on 14 December 2010.
The re-trial commenced on 30 March 2011 and judgment was reserved at the conclusion of the evidence and submissions on 31 March 2011.

Proposal and primary evidence of the mother

The mother began the trial pressing for the orders set out within her Amended Application filed on 28 January 2011, in which she proposed generally that:
a)She have sole parental responsibility for the children in relation to the discrete issue about the schools they attend, but otherwise the parties have equal shared parental responsibility,
b)The children live with her,
c)The children spend time with the father each alternate weekend from Friday evening until Sunday evening, for half of school holidays periods, and on other special occasions,
d)She be permitted to relocate the children to live within a radius of 150 kilometres of the Sydney Suburb 3 Post Office, and
e)The children communicate frequently by telephone and internet with the parent with whom they are not then staying.
During final submissions the mother amended her proposal in some respects.
Firstly, the mother abandoned her application for an order permitting her to relocate her residence with the children within a specified radial distance of the Sydney Suburb 3 Post Office.[16] She was correct to do so. An order framed in terms “permitting” a party to relocate, as opposed to “restraining” a relocation where appropriate, is not a parenting order within the meaning of s 64B nor a mandatory or restrictive injunction under ss 68B or 114 of the Family Law Act 1975 (Cth) (“the Act”), and is accordingly not a proper exercise of the Court’s power. Parents enjoy as much freedom as is compatible with their obligations pertaining to the children (see AMS v AIF (1999) 199 CLR 160 at 223-224, 231-232; Sampson v Harnett (No.10) (2007) FLC 93-350).
[16] Amended Application, Order 18
Secondly, the mother proposed that she be allocated sole parental responsibility for the children in all respects.
In support of her proposals the mother relied upon:
a)Her affidavit filed on 28 January 2011,
b)The affidavit of Ms G, the maternal grandmother, filed on 2 February 2011,
c)The affidavit of Ms S filed on 28 January 2011, and
d)The affidavit of the Family Consultant, Ms B, sworn on 21 February 2011, annexing her Family Report of the same date.
The mother’s position is quite clear. She strongly desires to relocate her residence with the children from Sydney to the Hunter Valley, but in the event the Court determines the proper parenting orders for the children preclude such an outcome, she will remain the primary residential parent living in closer proximity to the father’s residence rather than relinquish the children’s primary residence to the father and relocate to the Hunter Valley alone.[17] Irrespective of the location of the mother’s residence, the father did not seek any order rendering him the primary residential parent.
[17] Mother’s affidavit, pars 223-237, 279; Family Report, par 27

Proposal and primary evidence of the father

The father abandoned reliance upon the orders set out within his Response filed on 9 February 2011. Instead, he sought orders in accordance with a Minute, which was tendered.[18] The father’s proposal was generally that:
a)The parties have equal shared parental responsibility for the children,
b)The children live with the father for a total of six days each fortnight during school terms, comprising overnight every Thursday and each alternate weekend from Friday morning until Tuesday morning, together with half of school holiday periods and other special occasions,
c)Otherwise, the children live with the mother, and
d)The children have frequent telephone communication with the non-residential parent.
[18] Exhibit F3

In support of his proposals the father relied upon:
a)His affidavit filed on 9 February 2011,
b)The two affidavits of Ms O, his wife, the first of which was filed on 9 February 2011 and the second affirmed on 18 March 2011,
c)The affidavit of Mr C, the paternal grandfather, filed on 9 February 2011, and
d)The affidavit of the Family Consultant sworn on 21 February 2011.
The father’s position is also clear. He proposed that the children live with him for a substantial, but not an equal, proportion of their lives. The suggestion he made to the Family Consultant about the children living with him for equal time on a weekly rotation[19] was not the proposal he submitted to the Court. He explained in cross examination that he dispensed with that idea once he read and absorbed the opinions and recommendations of the Family Consultant in the Family Report. The father does not covet the role of primary residential carer of the children in any circumstances.
[19] Family Report, pars 8, 36, 40

Summary of parenting law

Orders in respect of children are regulated under Part VII of the Act, in which the meaning of a “parenting order” is defined (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
In circumstances such as the present, where the mother wishes to relocate the residence of the children, she bears no onus of demonstrating compelling reasons to justify the proposed relocation (see U v U (2002) 211 CLR 238 at 261; AMS v AIF at 179, 191, 224-225, 229, 232). The circumstances of the parents in both households should be considered.
It should not be assumed that a non-residential parent such as the father cannot, or should not, contemplate moving so as to be nearer to the relocating residential parent and children. The reasons for maintenance of the place of residence of the non-residential parent ought be explored at hearing, just as the reasons for the proposed relocation of the residential parent are explored. It ought not be assumed that the residential parent must subordinate his or her wish to relocate to the wish of the non-residential parent to remain and pursue his or her life in a place of his or her choosing (see U v U at 285-286).
The proposed relocation of children to a geographically distant place should be considered as just one of the proposals for the children’s future living arrangements, rather than as a discrete issue. The relocation proposal must be evaluated not only in the context of findings about what is in the children’s best interests under s 60CC of the Act, but also in the context of s 65DAA of the Act, which requires consideration of the children spending equal, or alternatively substantial and significant, time with the other parent in the event of allocation of equal shared parental responsibility (see Taylor v Barker (2007) FLC 93-345 at 81,912-81,913; McCall v Clark (2009) FLC 93-405 at 83,466-83,468, 83,471).
The Court must balance the advantages and disadvantages of the relocation proposal with the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement (see Taylor v Barker at 81,915-81,917), and it is essential to assess the options of “equal time” and “substantial and significant time” by reference to both the best interests of the children and the reasonable practicability of those alternatives (see MRR v GR (2010) 240 CLR 461).
It is against those principles that the evidence must be evaluated, and it is to the evidence I now turn attention. As will be apparent from the discussion of it, many aspects of the evidence were uncontentious.

Best interests of the children – primary considerations

Section 60CC(2)(a)

Both parties conceded that the children each have existing meaningful relationships with each party, and that such a situation should continue to endure.[20] That is certainly the perception of both children.[21]
[20] Family Report, par 16
[21] Family Report, pars 50, 51, 60, 61

Section 60CC(2)(b)

Neither party adduced evidence of, or contended for, the existence of a need to protect the children from any physical or psychological harm from subjection or exposure to abuse, neglect, or family violence.[22]

Best interests of the children – additional considerations

[22] Family Report, par 16

Section 60CC(3)(a)

The eldest child expressed to the Family Consultant a wish to live in the Hunter Valley,[23] but the expression of that wish was in ignorance of the implication of the time currently spent by her with the father on Wednesday nights then being terminated.[24] She was less positive about, but not opposed to, such relocation if the amount of time she currently spends with the father was decreased as a consequence. She expressed pronounced happiness at the prospect of spending more time with the father each fortnight,[25] but the expression of that wish was also seemingly in ignorance of an appreciation that such an outcome would preclude her relocation with the mother to the Hunter Valley. Self-evidently, the eldest child’s expressed wishes were implicitly, if not explicitly, inconsistent. She said she wanted to move to the Hunter Valley, but see more of the father.
[23] Family Report, par 62
[24] Family Report, pars 63, 66
[25] Family Report, par 63
Similarly, the youngest child expressed inconsistent wishes to live in the Hunter Valley,[26] but to see the parties for equal amounts of time.[27]
[26] Family Report, par 70
[27] Family Report, par 72
The parties agree the eldest child, who is still only 9 years of age, is immature for her chronological age.[28] Their views are shared by the Family Consultant, whose opinion also extends to the youngest child.[29] I assume the maturity of the youngest child is commensurate with her chronological age of 7 years. It was submitted for the father that the Family Consultant was not specifically cross examined about the weight attributable to the children’s views, but that is of little moment in light of her opinion that the children are immature. The father acknowledged in cross examination that little weight could be reposed in the children’s views because of the inconsistent nature of their stated views.
[28] Family Report, par 52
[29] Family Report, par 69
Little weight can be attributed to the expressed views of the children. They are too young and immature to appreciate the import of their opinions. The whimsical nature of the eldest child’s thoughts is exemplified by her expressed wish to live in …, USA because that was where a fictional character she liked lived.[30] At her age and level of maturity, the expression by the eldest child of experiencing “shock” in the event of certain outcomes[31] is hardly a convincing evidential platform for the determination of appropriate parenting orders. The expressed views of the youngest child are even less persuasive.
[30] Family Report, par 67
[31] Family Report, pars 63, 64

Section 60CC(3)(b)

The nature of the children’s relationships with the parties are addressed under s 60CC(2)(a). There is nothing to add.
The children also have equally loving and supportive relationships with the maternal and paternal families,[32] including with their half-brother.[33]
[32] Family Report, pars 42, 47, 50, 51, 56, 57, 60, 61, 73
[33] Family Report, par 57

Sections 60CC(3)(c), (4)

The Family Consultant concluded that the mother does value and support the children’s relationships with the father, as evidenced by the strong relationships they each enjoy with him and the reliable frequency of the time they have spent with him since the marital separation.[34] I accept that evidence, despite the father’s doubts. His failure to give the mother any real credit for the quality of his relationships with the children was churlish.[35]
[34] Family Report, par 74
[35] Family Report, par 38
As the Family Consultant points out, the children were very young when the parties separated. They were then aged 3 and 2 years respectively and would have been both highly impressionable and malleable in the hands of the primary caregiver. It is illogical, if not absurd, to imagine the children have developed such strong bonds with the father over the intervening years in the face of overt or covert pressure exerted by the mother upon them to either reject the father or devalue their relationships with him.
There are some simple examples of the mother’s willingness to facilitate and encourage the children’s relationships with the father and paternal family. She has often agreed to the father’s requests for the children to spend extra time with him for special events, she arranged the purchase of a gift and for the children to visit C on his birthday in 2010,[36] and she permitted the children to attend a paternal family celebration for the father’s grandmother.[37]
[36] Family Report, par 20; Mother’s affidavit, par 186
[37] Mother’s affidavit, par 185
I also accept that the father values and supports the children’s relationships with the mother. That was not a contentious issue. The father recognises the mother’s strengths as a parent[38] even though, as he was impelled to admit in cross examination, he made no concession of that sort in his affidavits filed in these proceedings.
[38] Family Report, par 36

Section 60CC(3)(d)

The father was fearful that the children’s relationships with him would corrode through less frequent interaction with them if they were able to relocate their residence with the mother. He apprehended a diminished ability to maintain his meaningful relationships with them,[39] particularly if the children were then immersed in a climate of the maternal grandparents’ negativity about him.[40]
[39] Family Report, par 32
[40] Family Report, par 33
Any relocation of the mother and children from the suburbs in the north western quadrant of Sydney would effectively preclude the children from spending time with the father on an afternoon or evening during the school week, as they do now. It would also preclude the father from being involved in the day-time school activities of the children, such as reading groups and canteen service, in which he has been involved.[41]
[41] Father’s affidavit, par 45
I accept that the fears of the father about impingement of the children’s relationships with him are honestly held, but the genuineness of his sentiments do not prove the fact, nor sustain his case. The Family Consultant acknowledged that there was a risk the father’s fears would be fulfilled,[42] but acknowledging the risk is altogether different from offering an opinion about its probable occurrence.
[42] Family Report, par 84
The mother told the Family Consultant the children would not miss the father if their interaction with him is curtailed in the manner she proposed.[43] I do not accept such trivialisation of the proposed change by the mother. The children likely will miss their interaction with the father, because they do already. The children miss each party when they are with the other, which only serves to demonstrate the quality of the relationships the children enjoy with the parties.
[43] Family Report, par 22
The evidence overwhelmingly demonstrates that the children have deeply entrenched emotional attachments to the father. The evidence fails to satisfy me that the quality of their relationships with the father will be compromised if they see less of him on a day-to-day basis. Conversely, the evidence fails to satisfy me that the quality of the children’s relationships with the father will be improved if they see more of him on a day-to-day basis.
The father also envisaged that the mother’s relocation would have longer term implications, believing that as the children grow and mature, their interest would likely shift towards peer groups and weekend sporting activities and away from family members.[44] It is undoubtedly true that the children’s interest will shift from the immediate family to peer relationships as they mature, but that will be so regardless of where they then live.
[44] Family Report, par 32
Changes to the parenting arrangements consistent with the mother’s proposals will not likely deleteriously affect the children, and changes to the parenting arrangements consistent with the father’s proposals will not likely improve their lives. Accordingly, the changes to existing arrangements proposed by the parties are unlikely to affect the children in any material way. Once that conclusion is accepted, it becomes clearer that the parties’ respective applications are directed as much to their own interests as they are to the best interests of the children.

Section 60CC(3)(e)

The parties each contend for an outcome under which the children should have liberal communication with both parties by telephone and internet. Neither party will encounter practical difficulty or expense in ensuring that occurs.
The factual contest between the parties is restricted to the practical difficulty, but not expense, of implementing the time spent by the children with the father in the event of their relocation with the mother to a place beyond the north western fringe of Sydney.
In expectation of the mother relocating to the Hunter Valley, the father was concerned about the frequency of travel on the F3 freeway north of Sydney, particularly in peak traffic times when the freeway is notoriously busy.[45]
[45] Family Report, par 33
The mother does not regard the road journey between the father’s home and the Hunter Valley to be onerous, and estimates its duration at 90 minutes.[46] She was not challenged about the accuracy of that estimate and I consequently accept it as correct. She asserted that the children undertake the journey often and are unfazed by it.[47] The eldest child[48] and the maternal grandparents[49] have consistent views.
[46] Family Report, par 23
[47] Family Report, par 23; Mother’s affidavit, par 29
[48] Family Report, par 62
[49] Family Report, par 43
It is trite to observe that any move by the mother which puts greater distance between her own residence and that of the father will increase the travel time for the children and the parties. But, as the mother accurately observed, if she moved to a more distant region of Sydney rather than to the Hunter Valley, the increased travel time could be similar.[50] The gridlock of Sydney’s arterial roads is becoming increasingly less correlative with peak travel times.
[50] Family Report, pars 23, 29
For that reason, the increased difficulty incurred in implementing the time spent by the children with the father caused by extra travel time between the parties’ residences is a material consideration, but not one of overarching significance.

Section 60CC(3)(f)

There was no issue about the parties’ respective capacity to provide for the children’s physical and intellectual needs.
The focus of attention was upon the parties’ respective capacity to provide for the children’s emotional needs, features of which are addressed under s 60CC(3)(i) below.
The capacity of the maternal grandparents to cater to the children’s emotional needs warrants the same consideration. Their venomous criticism of the father to the Family Consultant manifests an ingrained negative attitude about him. Although I accept the evidence of the mother and maternal grandmother that they do not speak ill of the father in the presence of the children, it would be stretching credulity to conclude the children remain ignorant of the negative sentiments held about the father by the mother and maternal grandparents. In fact, there is direct evidence to the contrary. The Family Consultant concluded from her observations and discussions that the children are conscious of the conflict and tension, but have so far not been unduly burdened by it.[51]
[51] Family Report, pars 58, 68
Although the maternal grandparents may feel as though they have good reason to harbour enmity against the father, because of the manner in which they perceive he has treated the mother, that is hardly justification for allowing the children, even inadvertently, to be privy to their feelings about him. The father is a vitally important person in their lives and it is unbecoming for the maternal grandparents to allow any risk of their feelings infecting those of the children.

Section 60CC(3)(g)

There was no aspect of the parties’ respective maturity, sex, lifestyle or background that was material to the outcome of the proceedings.

Section 60CC(3)(h)

Neither party identified themselves or the children as Indigenous Australian.

Sections 60CC(3)(i), (4)

It is a matter of considerable regret that the parties cannot acknowledge the veracity of their respective motives concerning the children. Their failure in that regard adversely reflects upon their attitudes to the children and their responsibilities of parenthood.
The mother believes the father is motivated to prevent her relocation to the Hunter Valley merely to perpetuate his control and manipulation of her.[52] I do not accept the validity of that belief. The father is motivated by the desire to maximise his interaction with the children, the corollary of which is the need for him to prevent the mother’s relocation to a more geographically distant place.
[52] Family Report, par 26
Conversely, the father believes the mother is primarily motivated to relocate away from Sydney because she remains upset and angry with him about having left the marriage.[53] I do not accept the validity of that belief either. The mother is lonely, not vengeful. Unlike the father, she has not re-partnered. Her desire to move to the Hunter Valley is born of her desire for emotional succour from the maternal grandparents and more financial security.[54]
[53] Family Report, par 35
[54] Family Report, par 19

The depth of the mother’s feelings about the proposed relocation could hardly be doubted. She was visibly upset and tearful when interviewed by the Family Consultant,[55] and also whilst giving evidence. The children are aware of the mother’s desire to move to the Hunter Valley and her disappointment about not having been able to do so.[56] She acknowledged the children may have resonated with her emotion.[57]
[55] Family Report, pars 20, 26
[56] Family Report, pars 62, 70
[57] Family Report, par 28
Apart from their mutual distrust of one another, the parties have each failed to facilitate the participation by the other in major long term issues affecting the children, which indicates in each of them an inclination to impose their will and dominate the other in respect of issues pertaining to the children.
On 30 October 2006, the father enrolled the eldest child to attend Sydney Suburb 1 Public School. He admittedly did so without recourse to the mother, even though the children lived primarily with her. On the enrolment form he completed for that purpose,[58] the father utilised an address at Sydney Suburb 5, which is presumably the paternal grandparents’ address, as his own contact address. He also nominated the paternal grandparents as the emergency contact persons, and friends of the paternal family as the alternate emergency contact persons. The father disclosed himself on the enrolment form as the first carer of the child, residing at the same address as the child, and also as the non-residential parent. He disclosed the mother as the second carer of the child, but deliberately omitted to furnish the school with her contact details.
[58] Exhibit M2
The father took those steps to ensure the eldest child’s enrolment at the Sydney Suburb 1 school in October 2006, even though the child did not commence school until the 2008 academic year.[59] I impute that the father was intent on the children attending that school and took steps to exert control and establish a primary, if not exclusive, communicative link between himself and the school.
[59] Mother’s affidavit, par 119; Father’s affidavit, par 38.1
In 2008 the parties took the eldest child to consult a paediatrician, Dr D, about her perceived behavioural problems. The eldest child was diagnosed with ADHD, but the parties have conflicting perceptions about whether the child was also diagnosed with ODD.[60]
[60] Mother’s affidavit, pars 146-147; Father’s affidavit, par 22; Family Report, par 53
The mother perceived the eldest child’s behavioural problems to be worsening and so she took the child to consult a psychologist, Dr B, in late 2010 to investigate whether the child suffered from autism. The mother did so without consulting the father, and only later provided the father with copies of Dr B’s report[61] and the child’s general practitioner’s mental health plan.[62]
[61] Exhibit F1
[62] Mother’s affidavit, pars 154-156; Father’s affidavit, pars 24.2, 36.2; Family Report, par 54
When those events occurred, there was a parenting order in place expressly allocating equal shared parental responsibility for the children to the parties. The mother ought not have pursued medical investigations of such a significant nature about the eldest child without consulting the father, particularly when she was aware that the parties’ perceptions about the eldest child’s behaviour were contentious.[63] The doctors ought have been furnished with relevant historical information by both parents, not just by the mother. An autism assessment was a much more important matter than a routine medical appointment or check-up.[64]
[63] Mother’s affidavit, par 146
[64] Mother’s affidavit, par 140
In late March and early April 2010 the eldest child spent about a week in hospital and the mother stayed with her in the hospital for most of that time.[65] Although the father was away for part of that time,[66] the mother declined the father’s request to care for the youngest child while he was available.[67] The mother arranged for the youngest child to be cared for by the maternal grandparents and another friend. There was no reason the youngest child could not then have spent some extra time with the father, but for the mother’s desire to assert control.
[65] Mother’s affidavit, pars 149-153
[66] Mother’s affidavit, par 151
[67] Father’s affidavit, par 37.2
Unfortunately, the parties’ individual wish to dominate in instances of disagreement between them has caused their attention to occasionally shift from the best interests of their children and impair their capacity to provide for the children’s emotional needs.

Section 60CC(3)(j)

There was no evidence adduced of any family violence involving the children or a member of their family.

Section 60CC(3)(k)

There was no evidence adduced of any past or existent family violence order that applied to the children or any member of their family.

Section 60CC(3)(l)

The parties have demonstrated no reluctance to assert their proposals through resort to litigation. Their fierce contest of this litigation over the last five years is a clear indication that if either of them is disappointed by the outcome or implementation of the orders, the institution of further proceedings is a very real prospect.
I am not persuaded that an outcome more closely consistent with either party’s proposal is likely to abate the chance of further litigation.

Section 60CC(3)(m)

Although the mother is not obliged to demonstrate compelling reasons for her proposed relocation, her reasons for the proposal remain relevant to the Court’s determination about proper parenting orders. The mother posits two principal reasons for her proposed relocation of residence – the extra emotional support she will derive from the maternal grandparents by living closer to them and the financial strain she would bear by continuing to live in her current residence.[68]
[68] Family Report, par 19
The maternal grandparents live in the lower Hunter Valley.[69] The father told the Family Consultant that the mother’s desire to live closer to them was understandable.[70] The mother was not challenged about the honesty of her feelings of isolation in Sydney,[71] her endurance of those feelings over the years since her separation from the father,[72] or her worry about being able to cope under the same circumstances into the future.[73] In cross examination the mother said that she has been able to “exist” in Sydney, but she honestly believes her parenting capacity will be compromised if she is compelled to remain with the children in Sydney indefinitely, where she will continue to feel isolated and financially constrained. I accept the mother’s evidence as truthful.
[69] Family Report, par 42
[70] Family Report, par 35
[71] Mother’s affidavit, pars 72, 220-226, 230-234
[72] Mother’s affidavit, par 229
[73] Mother’s affidavit, pars 236-239
The uncontested evidence adduced by the mother about her disappointment at continued entrapment within the existing parenting regime if she is precluded from relocating with the children, and her perception of the consequential effect upon her parenting capacity is a powerful consideration. The availability of family support, including such things as reliable quality child care, financial assistance, and emotional support for a parent and children, can be very important considerations in parenting cases involving relocation, and are matters to be balanced and weighed when considering competing proposals (see McCall v Clark (2009) FLC 93-405 at 83,478-83,479; Hepburn & Noble (2010) FLC 93-438 at [43, 49-64]).
The lease held by the mother over her current residence at Sydney Suburb 4 is due to expire in June 2011.[74] Inferentially, it is open to the wife to renew the lease and secure the accommodation for another finite period, but the mother is uncertain she has the financial capacity to commit herself in that way.[75] Her financial predicament therefore became a hotly contested issue.
[74] Family Report, par 4; Father’s affidavit, par 31
[75] Mother’s affidavit, par 261
The wife works on a part-time basis, but does most of her work at home.[76] She was not challenged about the tightness of her household budget,[77] but she was challenged about her ability to secure better paid work and her alleged impaired financial capacity to afford accommodation in Sydney.
[76] Mother’s affidavit, pars 60-62, 248
[77] Mother’s affidavit, pars 67-80
The father alleged that the mother has the capacity to earn an annual salary of $80,000 if she was prepared to accept full-time employment in a position commensurate with her skills.[78] The mother agreed with that proposition in cross examination, but said that she does not desire full-time employment because of her primary parenting role, and would only consider full-time work once the children were older and more self-sufficient. Suffice to say, I am satisfied that the mother is reasonably precluded from undertaking full-time work or work performed substantially outside school hours, given the parties’ agreement that the mother will remain primarily responsible for the children during school weeks, and her relative isolation from family and friendship networks in Sydney.
[78] Father’s affidavit, par 29.1
The mother also said in cross examination that part-time jobs suitable to her skills are not plentiful. Although the father baldly asserted that 177 part-time or contract positions of that sort were available in Sydney,[79] the state of the evidence precludes a definitive finding about whether the father’s or mother’s evidence on that issue is the most reliable. The internet search results annexed to the father’s affidavit do not prove the suitability of such positions for the mother with respect to hours, location, or skills.[80]
[79] Father’s affidavit, par 29.1
[80] Father’s affidavit, Annexure A
The mother has capital of approximately $355,000 at her disposal. Her enquiries revealed she would be able to purchase an unencumbered home in the Hunter Valley with those funds.[81]
[81] Mother’s affidavit, pars 253, 255, 256
The mother alleged she has no capacity to borrow funds to supplement her capital,[82] which she asserted prevented her from purchasing a home in Sydney in an area she regarded as desirable.[83] She would be able to purchase a cheaper unencumbered property in Sydney’s far western suburbs, but she rejects that idea as impracticable because she does not want to live in that area and the travel time to the father’s residence through Sydney traffic would not be substantially shorter than if she lived in the lower Hunter Valley.[84]
[82] Mother’s affidavit, par 258
[83] Mother’s affidavit, par 263
[84] Mother’s affidavit, pars 262, 264
The mother alleged she could not continue to afford the rent at Sydney Suburb 4, or comparable rent elsewhere in Sydney, and she does not want to deplete her modest capital on rent payments. Her only option would be to rent further afield in the western suburbs of Sydney.[85] The father adduced evidence about his searches some months ago revealing the availability of satisfactory rental properties which would permit the mother to remain living within the same geographical area at a comparable rent.[86]
[85] Mother’s affidavit, pars 260-261
[86] Father’s affidavit, pars 32-33
The mother’s cross examination revealed that her own searches were not undertaken recently and so I prefer the father’s evidence about the availability of rental accommodation. The availability of that rental accommodation at a cost comparable with that presently incurred by the mother is a consideration which must be assessed against the mother’s desire not to exhaust, or at least substantially diminish, her capital reserves in meeting rent over the longer term.
On balance, it is unfair to enforce financial constraints upon the mother against her wish simply to achieve proximity of her residence to that of the father in accordance with his desire.
If the mother does change her residence then, unless she stays within the same geographical area, the move will also entail a change of school for the children.[87] I agree with the mother’s proposition that the children should attend a school which is reasonably proximate to her residence, where the children will primarily live. It would be impracticable to maintain the children’s enrolment at the Sydney Suburb 1 school if it is inconveniently distant from the mother’s new residence. The mother asserted, without contradiction, that the return journey between the Sydney Suburb 1 school and her current residence can take anything between 50-90 minutes,[88] even though the father has measured the distance between the school and the mother’s home at 14.6 kilometres.[89] It is unclear whether the father’s measurement was lineal or by road route.
[87] Family Report, par 25; Mother’s affidavit, par 280
[88] Family Report, par 31; Mother’s affidavit, pars 118.3, 121
[89] Father’s affidavit, par 30.2
The children were unilaterally enrolled by the father at the Sydney Suburb 1 school without regard for the mother’s wishes. In all probability the father did so as a tactical manoeuvre to impede the mother’s then current intention to relocate with the children. I do not accept the father’s denial of that in cross examination. The mother was actively considering relocation at that time, as evidenced by her pending application to permit her relocation with the children and the terms of Order 1.9 made on 15 November 2006. The mother has not dispensed with her wish to relocate in the interim period, but said in cross examination that her desire has strengthened, particularly in the last 6 months.
The decision of the father to enrol the eldest child at the Sydney Suburb 1 school did not cause undue consternation at the time because the school was proximate to the former matrimonial home in Sydney Suburb 1, where the mother then lived. However, the children still remain enrolled at the Sydney Suburb 1 school,[90] despite the mother’s complaint of inconvenience, because the parties presently have equal shared parental responsibility for the children and the parties have not reached agreement about a change in school enrolment.[91]
[90] Family Report, par 49; Father’s affidavit, par 8
[91] Mother’s affidavit, pars 126-129; Father’s affidavit, pars 38.2-38.4
The mother was not challenged about her assertion that the father was formerly prepared to approve a relocation and change of school for the children in 2007, and so I accept that evidence.[92] I also accept the mother’s evidence in cross examination that she told the father at the time he and his wife purchased their home at Sydney Suburb 3 in 2009 that she could not afford to continue living in the area, clearly implying that the children may not be able to continue attending Sydney Suburb 1 school.
[92] Mother’s affidavit, par 249
The father’s former employment with Company 1 ended in December 2010,[93] at which time the father established his own consulting business.[94] As a consequence of being self-employed, the father now has much more flexible working arrangements.[95] The father said in cross examination that he spends a considerable period of his working time at home utilising the computer.
[93] Mother’s affidavit, pars 63-65; Father’s affidavit, pars 9-11
[94] Mother’s affidavit, par 66; Father’s affidavit, par 12
[95] Father’s affidavit, pars 13, 48(a); Family Report, par 40
Although the father’s wife is currently employed, it is envisaged that she will depart that employment in the reasonably near future and work with the father in his business, creating flexibility in her work arrangements as well.[96]
[96] Father’s affidavit, par 15; Affidavits of Shelley Crowe
There is no inherent attraction for the parties and children to be anchored in the north western suburbs of Sydney. The father conceded to the Family Consultant that Sydney Suburb 3 is not his ideal place to live.[97] The father and his wife are not tied to the area by their work venues. Moreover, their child C is not yet of school age and so he does not have any school attachment in the area.
[97] Family Report, par 34
The father and his wife are not reliant upon the paternal grandparents living close by, although the paternal grandparents’ current residence at Sydney Suburb 5[98] on the north western fringe of Sydney is within a reasonably convenient distance. The parents of the father’s wife live at Town 1 on the Central Coast of NSW,[99] which is situated approximately equidistant between Sydney and the lower Hunter Valley. The father and his wife are welcome there at any time.
[98] Family Report, par 47; Father’s affidavit, par 17(a)
[99] Father’s affidavit, par 19(c), 19(d)
The father apparently contemplated his relocation to the Hunter Valley to remain in close proximity to the children. The only reason he dismissed that idea was the perceived limitation of work opportunities,[100] but that reasoning is not particularly persuasive because of the concessions made by the father in cross examination about the flexibility of his self-employment.

Parenting orders

[100] Family Report, par 34

Parental Responsibility

There is no evidence, and hence no finding, of either child abuse or family violence. Equal shared parental responsibility for the children is therefore allocated to the parties presumptively, unless the presumption is rebutted by evidence that such an outcome would not be in the best interests of the children. The only evidence which has the capacity to rebut the presumption is that directed to the parties’ conflict.
The parties both recognise the difficulty that besets their communication about the children, which difficulty they each attribute to the other’s behaviour and attitude.[101] It is uncontentious that the mother is prone to emotional disturbance when communicating with the father.[102]
[101] Family Report, pars 12-13; Mother’s affidavit, pars 204-207
[102] Father’s affidavit, pars 43.1-43.2
Their relationship since separation has not always been so strained. They previously made efforts to socialise civilly with their respective partners in late 2008 and early 2009,[103] but that goodwill has since ebbed away. Now they even have disagreements about interpretation of existing parenting orders[104] and completion of the children’s homework.[105] Sometimes, email communication between them is ignored.[106] The disharmony in communication also now involves the father’s wife.[107]
[103] Mother’s affidavit, pars 175-181
[104] Mother’s affidavit, pars 189-203; Father’s affidavit, par 40
[105] Exhibit M1
[106] Father’s affidavit, par 43.3
[107] Exhibit F2
Although that is a great shame, the evidence is not such as to impel the conclusion that the best interests of the children demand that one of the parties be allocated sole parental responsibility for them. Although that was the final submission of the mother, it was contradictory to the opinion of the Family Consultant.[108] The mother’s proposal for sole parental responsibility was not made until final submissions. Consequently, the proposal was not put to the Family Consultant in cross examination and so the validity of her opinion that the parties should have equal shared parental responsibility was unchallenged.
[108] Family Report, par 76
I accept the Family Consultant’s opinion that the children would likely benefit from the involvement of both parents in important decisions relating to their education, health, and extra-curricular activities. The evidence shows that the parties have, in the main, been able to successfully negotiate many of those aspects of the children’s lives. They are clearly both intelligent people with a capacity to think objectively and compromise.
I also accept the evidence of the Family Consultant that the parties should each make a substantial effort to develop ways to effectively communicate and consult with one another. An order is therefore made requiring the parties to participate in a post-separation parenting program. Neither party has done so before.[109] The parties’ presently fraught communication may be improved by their acquisition of skills in such an educative program. Although it has not seemingly affected the children’s relationships, the children are acutely aware of the parental conflict,[110] which causes them concern and will eventually be detrimental to them. The mother is willing to try any option to improve communication,[111] and the father said in cross examination he would also participate in a post-separation parenting program.
[109] Family Report, par 14
[110] Family Report, par 68
[111] Mother’s affidavit, par 208

I am not satisfied that there is any need to make any exception to the allocation of equal shared parental responsibility in respect of the singular issue about the children’s school enrolments, despite the heat that issue has generated between the parties, particularly in recent times. The father has been prepared to countenance a change of schools for the children. He did so in 2007[112] and again in late 2010, subject to clarification about the mother’s wish to relocate her residence with the children, when he conceded to the mother that there is no guarantee she will remain living at Sydney Suburb 4.[113]
[112] Mother’s affidavit, par 249
[113] Father’s affidavit, Annexure G
The mother accepted the proposition in cross examination that it was not unreasonable for the father to oppose a change of school for the children from Sydney Suburb 1 to Sydney Suburb 4, when there was still a real possibility of her relocation from Sydney Suburb 4 and hence another change of school for the children.
Given that equal shared parental responsibility is allocated to the parties, it follows that the Court must consider making orders for the children to live with the father for equal time, or alternatively, for them to spend substantial and significant time with him.

Equal time

Orders for the children to live with the father for equal time would be both impracticable and not in their best interests. There are several reasons for those conclusions.
Firstly, the father does not seek such orders, even if the children remain living with the mother in close proximity to his residence.
Secondly, since the parties separated over five years ago, the parenting arrangements for the children have borne no resemblance to a regime of equal time between the parties’ households.
Thirdly, the Family Consultant does not believe such an outcome would be suitable, and her opinion was unchallenged.[114]
[114] Family Report, par 77
Accordingly, I turn to consider the viability of a parenting arrangement requiring the children to spend substantial and significant time with the father.

Substantial and significant time

The concept of “substantial and significant” time is defined in the Act (s 65DAA(3)). It entails the children spending time with the father on weekdays, weekends, and during holidays, thereby permitting the father to be involved in the children’s daily routine and occasions and events of significance to both the children and the father.
The Family Consultant said in cross examination that “substantial and significant” time is traditionally defined as five or more nights per fortnight. Although I accept that may be the Family Consultant’s perception of what constitutes “substantial and significant” time, her perception does not displace the statutory definition.
The mother’s ultimate proposal for the amount of time to be spent by the children with the father meets the statutory definition of substantial and significant time, albeit barely, because it entails the children commencing their time with the father in alternate weeks during school terms from immediately following school on Friday afternoons. Fridays are weekdays, and commencement of the children’s time with the father then allows the father some involvement in their daily school routine. Otherwise, the children’s time with the father would be confined to weekends and holidays.
The error implicit in the father’s submissions was an assumption that the mother’s proposal does not allow for the children to spend substantial and significant time with the father. Her proposal does allow for that, but not as substantial or as significant an amount of the time as the father proposed. The mother’s proposal is reasonably practicable if she and the children live at a more remote location from the father and the children’s school than presently is the case.
By comparison, the proposal of the father amounts to substantial and significant time by a more generous margin. During school terms he would have the children staying overnight with him every Thursday evening, and then from Friday morning to Tuesday morning every alternate week, for which purpose he would arrange the children’s collection from and delivery to school. The father’s proposal is undoubtedly practicable if the parties each live within a reasonably convenient distance of one another and the school.
As the father’s counsel submitted, for the purposes of s 65DAA(2)(d) of the Act, the phrase “reasonably practicable” posits an inquiry about whether an arrangement of substantial and significant time can be reasonably implemented, not whether such an arrangement matches the desire of the mother.
However, a parenting regime must not only be practicable, but reasonably so. Whether a parenting regime is “reasonably” practicable is influenced by the individual circumstances of the parties, which circumstances enable findings about the reality of the parties’ situation and the feasibility of proposed parenting arrangements (see MRR v GR at 467). There is a material difference between the parties’ individual circumstances merely influencing, as opposed to determining, the issue. The individual circumstances of the parties also indirectly influence the alternate issue under s 65DAA(2)(c) of the Act about whether an arrangement of substantial and significant time is in the best interests of the children.
The individual circumstances of the mother in MRR v GR led the High Court to find (at 467-468) that an arrangement of equal time in that case was not reasonably practicable, because it required the mother to remain living in a remote rural township against her wishes, feeling despondent and isolated, where the availability of alternate rental accommodation was restricted. The mother’s circumstances in this case are not so oppressive, but the similarity of features which permissibly led to a finding in MRR v GR that a particular parenting regime was not reasonably practicable is obvious enough.
I do not accept the father’s submission that the mother bore an onus to prove that it was not reasonably practicable for her to continue living in Sydney. That is simply another way of saying the mother must demonstrate compelling reasons before the Court will permit her relocation, which formulation the High Court and Full Court have rejected. There is no onus of proof. The Court’s discretion is enlivened and informed by the evidence adduced by both parties.
The parties possess the capacity to implement a regime under which the children spend substantial and significant time with the father. They have proven their capacity over the years since separation. There was no aspect of the evidence which tended to demonstrate, and no submission made, that they could not continue to implement such a regime successfully.
I am satisfied that it is both in the best interests of the children and reasonably practicable for them to spend substantial and significant time with the father.

Orders

The proposals of both parties fall along a continuum in which the children do spend substantial and significant time with the father, so the ultimate outcome about when and how the children spend substantial and significant time with the father is dictated by the children’s best interests, conformably with the Act (ss 60CA and 65AA).
The mother’s firm and long-standing desire to relocate her residence with the children is one factor that influences the Court’s determination about proper parenting orders for the children. A prospective relocation highlights a conflict between the best interests of the children to know and have regular interaction with each parent and the interests of parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF at 196, 206, 207-208, 210).
There are no sharp lines delineating when residential moves between suburbs of a city or between regional areas are feasible or not. As soon as one parent moves further away from the other parent there is an immediate effect upon the ease of implementation of existing parenting arrangements, or if the existing arrangements thereby become unworkable, the amount and frequency of alternate interaction that can be enjoyed between the children and non-residential parent. It is a question of degree. There is no clear point at which a proposed residential relocation ceases being unexceptional and becomes untenable.
The Family Consultant did not envisage any significant change to the parenting arrangements which have existed over the last few years.[115] The children have an appreciation that they will continue to live primarily with the mother and spend frequent time with the father.[116] The mother’s proposal still affords the children substantial and significant time with the father, albeit not as substantial or as significant as the father would like.
[115] Family Report, par 79
[116] Family Report, par 65
In the context of the mother’s proposal, involving alteration of the current parenting regime by only the dispensation of the children’s time with the father for three hours on Wednesday evening each week, the Family Consultant poignantly observed in cross examination words to the effect of:
“In this case, one night here or there makes no difference. If we get hooked up on that we are missing the bigger picture.”
By the same token, the Family Consultant agreed with the father’s counsel’s proposition that neither did it matter if the children spent one more night with the father than they already do.
The Family Consultant’s evidence, which I accept, emphasised that an outcome within the range between the polarised positions of the parties would still be consistent with the best interests of the children.
Having considered and weighed the evidence carefully I conclude that the parenting arrangements that will likely more ably meet the children’s best interests are those which more closely resemble the mother’s proposal.
The factors which militate in favour of that outcome, in no particular order of priority, are:
a)The fact that the children’s meaningful relationships with the father are firmly established and will not be impaired by the consequent modest diminution in the time they spend with him caused by their relocation with the mother to a more distant place than the north western suburbs of Sydney;
b)The mother’s heartfelt dissatisfaction about her continued residence in Sydney;
c)The deleterious effect upon the mother’s financial circumstances of orders that would compel her to live in Sydney at higher cost than in the Hunter Valley or some other location between Sydney and the Hunter Valley;
d)The father’s prior consent in 2007 to the mother and children living in the Hunter Valley;
e)The father’s prior willingness to move to the north western suburbs of Sydney in 2009 to be close to the children, which manifests his acknowledgement of the need for residential flexibility;
f)The absence of any particular attraction or attachment by the father to the area in Sydney in which he currently lives;
g)The ability of the father to live in a wide range of localities, including the northern suburbs of Sydney, the Central Coast, or perhaps even the lower Hunter Valley, relatively unrestrained by work commitments;
h)The distance and travel time between the north western suburbs of Sydney and the Hunter Valley, where the mother intends to settle, neither of which is unreasonable; and
i)The lack of conflict between the children’s commitment to organised weekend activities and them spending time with the father each alternate weekend during school terms. The children do not presently play weekend sport. There is no evidence that they, or the parties, have any present inclination towards their participation in weekend sport. The children’s current extra-curricular activities are swimming on Tuesday evenings[117] and attendance at the library with the mother.[118]
[117] Mother’s affidavit, pars 110, 159; Family Report, par 49
[118] Mother’s affidavit, par 111
The factors that militate against that outcome, again in no particular order of priority, are:
a)The prospect of impingement of the children’s relationships with the father by reason of their greater exposure to the maternal grandparents in an environment of negativity about the father,[119]
b)The decrease in time spent by the children with the father – at his home on Wednesday evenings, at school when he attends to assist with their activities, and at the extra-curricular activities he attends, depriving them of that extra measure of enjoyment in their lives,
c)The loss of some time that the children would otherwise have with their half-brother,
d)The involvement of the children in some extra travel time between the parties’ households, and
e)The potential for some emotional disturbance to the eldest child if she is required to change school because her ADHD condition renders her more maladaptive to changed routine.[120] However, she would likely have to endure a change of school even if the mother relocated to a less expensive region of Sydney.
[119] Family Report, par 82
[120] Family Report, par 78; Exhibit F1
The disparity in the number of countervailing factors is irrelevant. It is the weight attributable to those factors which is important. The decision is not an easy one, as the Family Consultant recognised,[121] but the factors which support orders of the type envisaged by the mother collectively outweigh the factors which support the orders of the type urged by the father.
[121] Family Report, par 81
As the High Court observed in U v U (at 262-263), relocation disputes do not admit of perfect solutions. Predictions about domestic, marital and social arrangements are matters upon which minds will inevitably differ. Findings about the children’s short, mid, and long term interests permissibly fall within a wide range of discretion.
The legislative intent evinced by the Act in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with the children (see Goode & Goode (2006) FLC 93-286 at 80,901), is still fulfilled by the orders.
Although the mother proposed that the children’s time with the father on alternate weekends commence at 6.00 pm on Friday,[122] during her evidence she conceded that the children could be collected directly from school by the father.
[122] Amended Application, Order 19
The mother also agreed to an equitable distribution of the burden of travel between the parties, so that if the father collected the children from her residence or from their school, she was prepared to drive to the father’s residence to collect the children at the end of their time with him.
The father also agreed in cross examination to an arrangement of that sort. However, assuming the mother’s relocation to the Hunter Valley and his retention of residence in Sydney, the father was staunchly against any arrangement which would require the children’s return travel to the mother’s home, or directly to school, on Monday mornings following their weekends with him. I agree with the father on that aspect.
It may be that the father will rekindle his interest in a relocation of his own residence so as to stay in proximity to the residence of the mother and children. In that event, there would be no impediment to the children spending more time with him than if they live a greater distance apart. For that reason, the orders are framed to permit the children to spend more time with the father if the parties’ households are sufficiently close together. In that event the parenting regime bears closer resemblance to the orders proposed by the father.
In the orders, an arbitrary radial distance of 50 kilometres is selected to mark the boundary within which it is practicable for the children to spend time with the father consistently with the expanded regime he proposed, and beyond which distance it would be impracticable to expand the children’s time with the father further than that proposed by the mother.
Although the radius of 50 kilometres is arbitrary, in the sense that it was not raised in the evidence or submissions, it is a distance that would likely accommodate the father’s relocation of residence to a place of his liking between northern Sydney and the lower Hunter Valley, such as the Central Coast and lower Lake Macquarie regions. By choosing to live in those regions the father could likely stay within reasonable distance of the children, his business contacts, the paternal grandparents, and the parents of his wife.
The alternate regimes for the children to spend time with the father open up various reasonable residential alternatives for both parties, while still meeting the children’s best interests.
The mother was open to the idea of the children spending extra time with the father during school holiday periods to partially compensate for the loss of their time with the father on Wednesday evenings, as presently occurs, or Thursday evenings, as the father proposed. I am not satisfied on the evidence of the need for that, particularly when the father made no submission or proposal about having the children for extra time during school holiday periods.
The children will alternate their Christmas celebrations with the parties. I accept the mother’s view about that being the best arrangement for the children.[123]
[123] Mother’s affidavit, par 271
Consistently with the parties’ proposals, the orders require them to share the travel burden equitably in order to implement the time spent by the children with the father.
It is likely that the mother will act to relocate the residence for herself and the children without undue delay. Although the father may relocate his residence to stay within a 50 kilometres radius of the mother’s residence, it is unlikely he will do so hastily. Accordingly, to ameliorate the modest decrease in time the children will spend with the father personally, orders are made for the children to have abundant communication with the father by telephone and internet. The mother already has such internet facilities in place at her current residence,[124] and is therefore aware of the need for it. The mother also acknowledged in cross examination that the children presently speak with the father by telephone at least twice per week and she is content with that arrangement.
[124] Mother’s affidavit, par 187
The remaining orders either reflect the mutual proposals of the parties or could not be the subject of sensible controversy.

I certify that the preceding one hundred and fifty-eight (158) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 6 May 2011.

Associate:

Date: 6 May 2011

[2011] FamCA 307

6 May 2011

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness

Injunction

Remedies