Candeler and Candeler - [2013] FMCAfam 180

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CANDELER & CANDELER

[2013] FMCAfam 180

FAMILY LAW – Interim parenting arrangements for care of children aged 5 & 4 – unilateral relocation of children from Town A area to Town B (a distance of approximately 150 kilometres ) – father seeks the immediate return of children to Town A and that the children be parented in equal time regime – mother wishes to remain children’s primary custodian in Town B and proposes the children spend time with father on regular weekends and during school holidays – considerations relating to freedom of movement – best interests – meaningful relationship – equal shared parental responsibility – considerations of practicality.

Family Law Act 1975, Pt. VII, ss.4, 60B, 60CC, 61DA, 65DAA

AMS v AIF; AIF v AMS (1999) FLC 92-852
C & S [1998] FamCA 66
Taylor & Barker [2007] FamCA 1246
Morgan & Miles [2007] FamCA 1230
Godfrey v Saunders 2008 FLR 287
Fragomeli & Fragomeli (1993) FLC 92-393
MRR v GR [2010] HCA 4

Applicant:

MR CANDELER

Respondent:

MS CANDELER

File Number:

ADC 4912 of 2012

Judgment of:

Brown FM

Hearing date:

20 February 2013

Date of Last Submission:

20 February 2013

Delivered at:

Adelaide

Delivered on:

1 March 2013

REPRESENTATION

Counsel for the Applicant:

Mrs West

Solicitors for the Applicant:

Mason Westover Homburg

Counsel for the Respondent:

Mrs Read

Solicitors for the Respondent:

Andrew & Dale Barristers & Solicitors

UNTIL FURTHER OR OTHER ORDER

The parties have equal shared parental responsibility for the children of the marriage X born in 2007 and Y born in 2008.
The children live with the mother in Town B and she be authorised by this order to enrol (or continue the enrolment) of the children at their current schools and/or kindergartens in Town B.
The children spend time with the father as follows:
(a)During school terms, for three weekends out of four, from after school on Friday until 6.00pm the following Sunday;
(b)For the first half of each short school holiday period, the half to be calculated to run from 10.00am on the first Saturday following the conclusion of school in each term and to conclude at 3.00pm on the middle Sunday of each such holiday period;
(c)From after school on Maundy Thursday until 4.00pm on Easter Saturday; and
(d)At such other times and such other occasion as the parties may agree from time to time.
The father have liberal telephone communications with the children at times as agreed between the parties and failing agreement each Tuesday and Thursday at 6.30 with the father to place the call to the mother’s residence with the mother to ensure the children are available to take the father’s call and speak to him in private.
In the event that the father is available to spend time with the children on either of their birthdays and the children are not otherwise in his care pursuant to these orders, he will be entitled to spend three hours with the children on the occasion of each of their respective birthdays, the times to be agreed between the parties but failing agreement to be between 3.30 pm and 6.300 pm.
In the event that Mother’s Day falls on a weekend that the children are in the care of the father pursuant to these orders the children will spend time with the mother on the weekend of Mother’s Day and in lieu of that weekend spend time with the father on the next weekend that the children would otherwise be in the care of the mother.
In the event that Father’s Day falls on a weekend that the children are in the care of the mother pursuant to these orders the children will spend time with the father on the weekend of Father’s Day and in lieu of that weekend spend time with the mother on the preceding weekend that the children would otherwise have been in the care of the father.
The mother and father shall:
(a)Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the children and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the children; and
(b)Inform the other parent as soon as is reasonably practicable of any medical issue, significant health issue or significant illness or injury suffered by the children. This order authorises any treating medical practitioner to release details of the children’s medical condition and/or injury to the other parent.
The mother authorise any pre-schools/schools attended by the children to provide the father with information about the children’s educational progress and other related activities and supply him with copies of reports, photographs, certificates and awards attained by the children, with any associated fee to be borne by the father.
The father is at liberty to attend all preschool and school events involving the children which are routinely attended by each parent including parent-teacher interviews.
The parties are restrained and an injunction issues restraining each of them from discussing these proceedings in the presence or hearing of the children or permitting any other person to do so.
The parties are restrained and an injunction issues restraining each of them from denigrating, abusing or criticising the other in the presence or hearing of the children or permitting any other person to do so.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Co-ordinator of the Federal Magistrates Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 10 May 2013.
The Family Report to deal with the following matters:
(a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.
The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Child Dispute Co-ordinator.
The parties attend a Conciliation Conference with a Registrar of the Federal Magistrates Court of Australia on 4 June 2013 at 9.15 am.
Unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee of $350 in accordance with the Family Law (Fees) Regulation 2012 twenty eight (28) days prior to the Conciliation Conference.
Should the Applicant fail to comply with Order 17 herein the matter be listed for mention before the Court as soon as practical prior to the Conciliation Conference date.
The parties exchange all appraisals or valuations of all items of property in dispute between them both real and personal and exchange all relevant financial documents 14 days prior to the conciliation conference.
The parties exchange informal discovery of all relevant documents as specified in Order 24 Rule 4 of the Federal Magistrates Court Rules within 28 days.
The matter be listed for final hearing for 3 days on 18, 19 & 20 September 2013 at 10.00 am before Federal Magistrate Brown.
The matter be listed for directions following the release of the family report and the conciliation conference on 11 June 2013 at 9.30 am.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 4912 of 2012

MR CANDELER

Applicant

And

MS CANDELER

Respondent

REASONS FOR JUDGMENT

Introduction

This case relates to what lawyers call an interim unilateral relocation case. It raises difficult issues for the court’s provisional resolution, against a background of urgency and conflicting emotions and aspirations on the part of the parties concerned.
Mr Candeler and Ms Candeler are the parents of X born in 2007 and Y born in 2008. They are the parties to these proceedings.
The parties married in 2004, at Town C, a small community in the Region D of South Australia. The mother’s parents live in Town C.
The husband is a tradesman. At present he works on a farm 26 kilometres north of Town A. Prior to the parties’ separation, they lived with the children on the farm. The father’s parents live at Town A. On my calculations, Town A is 70 kilometres east of Town C on the Region D Highway. It is a further 60 kilometres on from Town C to Town B. So it is around 150 kilometres between where the father lives in Town A and Town B.
The parties separated in May 2012, when the father moved out of the main homestead on the farm, into a cottage nearby. Three weeks later, the mother and children moved into rented accommodation in Town A itself. Thereafter, the parties underwent a process of mediation in respect of arrangements for the parenting of X and Y.
Ultimately it was agreed that the children would spend overnight each Wednesday; from 3.00pm Friday until 5.00pm Saturday of one week; and from 3.00pm Friday until 9.00pm on Sunday of the other week; with their father. From the father’s perspective, he agreed to this arrangement under sufferance. He aspires to parenting the children in a shared care regime.
About ten days after the parties separated, the mother began to foster two children – E aged eight and F aged six. They are sisters. Previously the parties provided respite care for the children, who are in the guardianship of the State of South Australia. The placement of E and F, with the mother, is intended to be permanent from the perspective of the relevant authorities.
On 29 November 2012, the mother advised the father she planned to relocate to Town B with X, Y, E and F in order to coincide with the start of the 2013 academic year. The mother’s view is that the four children are very close emotionally and regard each other as sisters.
The father made it clear to the mother that he objected to X and Y moving to Town B. He formally wrote to this effect on 3 December 2012. He instituted proceedings on 19 December 2012. Due to circumstances beyond his control, the matter was listed before me, for the first time, on 20 February 2013.
For reasons unknown to me, the court’s registry did not process the application until 22 January 2013.[1] The mother responded to his application on 18 February 2013, after her solicitor was served in mid January. She has raised property issues in her responding material.
[1] See affidavit of Philip Westover filed 12 February 2013 at paragraph 3.
It is Mr Candeler’s view that X and Y are happy and well settled in Town A. He categorizes Ms Candeler’s as dictatorial and high-handed in her actions and dismissive of the important role he has played in the lives of both children to date. More importantly, he objects to the relocation because it must mean that there can be no shared care regime for the children concerned, unless he too moves to Town B, which he believes is impracticable because of his employment and personal situation.
Notwithstanding the father’s objection and the current proceedings, the mother moved to Town B in early January 2013 and enrolled X at G School and Y at H Kindergarten. In addition, she has purchased a home on five acres near Town B.
The mother’s position is that she has always been the main provider of care for the children, with little assistance from the father, who pre-occupied with work, during the parties’ marriage. It is her case that Mr Candeler has behaved nastily and negatively towards her since the parties separated and she felt insecure and unhappy in Town A. She sees her future in Town B. For these reasons, she has moved.
From her perspective, a shared care arrangement is untenable because of the father’s lack of prior day to day involvement with the children, such as washing their clothes, feeding them and providing for their needs. She characterises Mr Candeler as a ‘weekend dad” who has done “fun things with the children” but not really been involved in the day to day issues arising from their care.
It is her case that the father can maintain his role in the children’s lives, if she and the children live in Town B. She proposes that the children spend three weekends out of four with the father during school terms from after school on Friday until school recommences the following Monday; as well as for week long blocks in school holidays. She asserts this arrangement is workable given the distance between Town B and Town A.
The father seeks orders that the children live week about with each of their parents. This will be impossible if they live in Town B and he remains in Town A, where his employment is located and where he feels happy and settled. The mother’s perspective on the issue is that Town B has much more to offer both her and the children, particularly in terms of educational and extramural activities.
The mother seems to be an accomplished and energetic person. In the past she has been a public servant and part-time health care worker with Employer J in Town B and Town K. She is actively involved with her church in Town B. She plans to return to study at a tertiary level from Town B, which studies have been previously deferred, whilst she lived in Town A. She also plans to run for the up-coming election.
It is her case that she has many friends in Town B and more long-term employment prospects there. She thinks the town offers the children better social, scholastic and artistic opportunities. The children are interested in various sports. As her purchase of the property in Town B shows, she is committed to living in the town and will brook no opposition to her plans.
During the parent’s marriage, the family lived in Western Australia, New South Wales and Town L, primarily because of Mr Candeler’s work. Ms Candeler largely stopped work when X was born. In late 2010, the parties returned to Town A to be close to family. Thereafter the mother had some part-time work as a health care worker and began her studies, which she later deferred.
Given this past transient lifestyle, she suggests it is hypocritical of the father to restrain her in Town A, against her wishes, in a place which offers her few personal opportunities and where she feels lonely and isolated, after the end of the marriage between the parties. Essentially, it is her position that she such an outcome would result in her becoming a prisoner in Town A and Mr Candeler being her gaoler.
This complicated issue has divided the wider family involved. Mr M and Ms N, the mother’s parents, have each filed affidavits supporting Mr Candeler, in which they describe him as a decent man and a kind and loving parent. Ms N deposes as follows:
“Mr Candeler has always been very much involved in the care of the children. I have observed him to prepare bottles and feed the children, bathe them, change their nappies, dress them, read to them, play with them and put them to bed.”[2]
[2] Paragraph 6 of affidavit of Ms N filed 8/2/2013
Regrettably they are critical of their daughter for not supporting their relationship with X and Y, whom they describe as well settled in Town A, particularly because of the township’s relative proximity to both their maternal and paternal grandparents’ respective homes. The mother suggests that her parents have an ulterior motivation in providing this evidence.
Their father asserts that the mother has been difficult to deal with since she informed him that she was going to live in Town B and has restricted his time with the child unreasonably to secure her own ends. He paints her as a domineering and manipulative person.
The mother alleges there was an unpleasant incident between the parties on 9 February 2013, at a handover. It is her case that the father, in tandem with the two sets of grandparents, came to her home and tried to bully her about on going arrangements for the children. She alleges that later the father pushed her against her car and grabbed one of her arms. She was fearful the father would not return the children, after this incident, but to his credit, he did. The impression I have, possibly mistaken, is of an emotional tug of war over the two children, rendered more intense by the relocation issue.
The current difficult and polarized situation is summarized in the following text messages exchanged between the parties:
“The girls are enrolled at G School and H Kindy. I am getting uniforms and books wed (sic) and lodged an interim order for custody and settlement but I hope to get a court date for this week. You will receive a copy of the application in due course. I will continue in my role as primary carer until judgment is made at interim order and then final order.”[3]
“ You can’t just take them away from Town A. I have made a court application to stop the kids from being relocated. The kids need to stay at Town A for school until a judge says they can go. You are not the kids primary carer. We both have equal rights as parents. You can’t just do as you please and you know that.”[4]
“ I am and always have been the primary carer to the children. They children want to live here and start school here, and is in their best interests. We can talk later in the week.”[5]
[3] Paragraph 4 father’s affidavit filed 12/02/2013
[4] Paragraph 5 father’s affidavit filed 12/02/2013
[5] Paragraph 6 fathers affidavit filed 12/02/2013
From these messages, it is clear that the father feels disregarded and marginalised as a parent. The mother’s position is that she is making appropriate arrangements for the care of X and Y, given that she is the children’s primary carer.
As is obvious, the parties fundamentally differ as to where the best interests of the children lie, both in the short and longer term. Thus it falls to the court to determine the issue within the legal framework provided by the Family Law Act 1975.

The Legal Principles Applicable

Part VII of the Family Law Act is the part of the Act dealing with children. The ethos of this part is set out in section 60B. In section 60B are set out a number of principles to which the court must have regard in order to ensure a child’s best interests are met by any order which the court makes. These principles including the following:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
Underlying this principle are the following objective or aims of the legislation concerned:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together; and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
In this framework (along with other considerations), the legislation has created the concept of equal shared parental responsibility [see section 61DA]. If parents share parental responsibility for their children, they are required to consult with one another about major long term issues to do with their children.
The concept of major long term issues is defined in the Act [see section 4]. It includes the following issues:
(a) the child’s education (both current and future); and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

This is the nub of the father’s case. He complains that he was not properly consulted about X and Y’s future schooling or issues arising from a major change in their living arrangement, which he believes will make it significantly more difficult for him to spend time with them.
As the starting point in any matter relating to children, which comes before the court, it is to be presumed that it is in the best interest of the children concerned, for their parents to have equal shared parental responsibility for them, subject to exceptions relating to their best interests and protective or welfare issues.
If the court decides that parents are to hold equal shared parental responsibility for their children, the legislation requires the court to consider the children spending firstly equal time with each parent and then secondly significant and substantial time with each parent, subject to considerations of the children’s best interests and what is objectively reasonable or practicable in the case.
The father seeks that the presumption of equal shared parental responsibility be applied to the future parenting of X and Y. In the current circumstance, he complains that the mother has presented both him and the court with a fait accompli regarding any potential shared care arrangement for the children, which is liable to render the practical application of the presumption otiose, both at the interim and final hearing stage. Thus he seeks the return of the children to Town A to avoid the potential frustration of appropriate care arrangements for the children, following what he asserts is the proper application of the presumption.
This dispute arises at the interim stage, against a background of conflict and crisis. Accordingly there is insufficient time to have anything other than a shortening hearing not involving cross-examination. It has not been possible, as yet, for the court to allocate sufficient time to have an extended hearing into all of the factual issues arising between the parties.
It is through cross-examination that a person placed in my position, discharging a judicial function, is able to make finding regarding the credit or honesty of the parties concerned and consider the actions which have motivated each of them in the case to date. In the absence of such cross-examination, at this interim stage, I cannot resolve factual issues in dispute between them.
In this particular case, there are several significant factual disputes between the parties, the major one being the father’s degree of involvement with the children prior to separation. Was he integrally involved as Mr Candeler states or only tangentially involved as Ms Candeler asserts.
The father’s perceptions of the family are supported by Mr M and Ms N, who have filed affidavits in the case. The mother’s view by her friend Ms O, who has also filed an affidavit. None of this evidence has been tested and, for obvious reasons, it has the potential to be lacking in objectivity.
In addition, at the interim stage, there is usually inadequate time for the court or the parties to obtain a family report, which is an independent and expert assessment of the emotional needs of any children concerned and their degree of attachment to each of their parents. Such reports sometimes canvas the views and preferences of the children concerned, depending on their maturity and likely level of insight.
In this case, notwithstanding X is five and Y is four, the mother asserts that they prefer to live in Town B. This is likely to be contentious so far as Mr Candeler is concerned. A family report will examine this issue and report on the developmental progress of the children, so far as it is relevant to any views expressed by them.
In this case, as yet, there has been no independent and expert assessment of the psychological needs of the children, in the form of a family report. In my view, it is appropriate that the court orders that such a report be prepared. Notwithstanding the untested and incomplete nature of the evidence before the court, a decision must still be made in respect of the competing applications of the parties.
In making the interim decision (as at the final stage), the best interests of the child or children affected by the decision remain the most important consideration. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out in the Family Law Act [see section 60CC].
The difference between an interim and a final hearing is one of procedure. Interim hearings do not determine the final arrangements for a child’s care, whereas final proceedings do. Interim proceedings are necessarily provisional in nature and last until further hearing or order.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it.
There are two primary considerations, which are set out in section 60CC(2)(a) and (b) namely:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as twin pillars, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act the court is now directed, “in applying the primary considerations… to give greater weight to section 60CC(2)(b).” This, of course, is the consideration dealing with abuse, neglect and family violence. These considerations are now to be given priority.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in order to make the appropriate order for that child. The aim of the legislation is to make an idiosyncratic order for the child, which is in his or her best interests.
I have already alluded to the presumption of equal shared parental responsibility provided by section 61DA, which the court must actively consider in every parenting case, both at the interim and final stage.
The presumption is rebutted if the court finds reasonable grounds to believe that family violence or abuse has occurred or it would not be in the best interests of the children concerned for it to be applied. At the interim stage, it can also be rebutted if it is just not appropriate for it to be applied.
However, if the presumption applies, the court must consider a child spending either equal time or substantial and significant time with both parents, subject to a consideration of the child’s overall best interests and what is objectively reasonable or practicable to put in place.
Given the structure of Part VII of the Family Law Act, cases involving one parent wishing to move a major distance away from the other parent concerned, raise significant issues for both the court and the parties concerned. Such cases throw up competing principles which are difficult to reconcile.
Pursuant to rights which have been read into the Australian Constitution, by the High Court of Australia, citizens have an entitlement to freedom of movement. We value our freedom to live how and why and where we choose in our democratic society. I am not in a position to ignore Ms Candeler’s legitimate desire to live in a location, where she believes she will be happy and secure.
On the one hand, one of the purposes of the Family Law Act is to provide former partners with mechanisms to enable them to lead separate lives from one another in future and make arrangements for the care of their children in the now changed circumstances following the end of the marital or de facto relationship between them. There is no principle of law that requires separated parents to live indefinitely in close proximity to one another.
On the other hand, pursuant to the principles contained in the Family Law Act, it is the entitlement of a child to have a meaningful relationship with both his or her parents, regardless of the fact that the parents concerned choose not to live together. It has been said that relocation cases need careful analysis, as each such case is unique.[6]
[6] See AMS v AIF; AIF v AMS (1999) FLC 92-852 at 86,041-86,043 per Kirby J.
Accordingly, it is usually considered preferable that issues of relocation not be decided at the interim stage, particularly as decisions regarding relocations may have potentially serious ramifications for the children concerned, especially when those children are young, in terms of their ongoing parental relationships.[7]
[7] See C & S [1998] FamCA 66
This is a strong theme of the father’s case. He feels disregarded by the mother’s clearly unilateral decision to move X and Y to Town B and fears that the move, given the children’s tender years, will have implications for the quality of the relationship he has with the children into the future.
Significantly, he asserts that, if the move is retrospectively approved at this interim stage, it is likely to tie the court’s hands, at the final hearing stage, in respect of its legislative responsibilities, arising from the possible application of the presumption of equal share parental responsibility. Essentially, the court will not be able to give proper consideration to equal time arrangement, following on from the presumption’s application to the parties’ parental relationship.
In Taylor & Barker[8] the Full Court speaks of the risk of the court potentially devaluing the legislative imperative placed upon it to consider actively a child spending equal time or substantial and significant time with both parents, in all cases, including those which contain a relocation proposal.
[8] Taylor & Barker [2007] FamCA 1246
The court said as follows:
“….the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.”[9]
[9] See Taylor & Barker [2007] FamCA 1246
In this particular case, I must also bear in mind what was said by Boland J in Morgan & Miles.[10] In that case, her Honour confirmed that the court should be reticent to determine issues of relocation at the interim stage. She said as follows:
“It is highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing and that these are the types of case in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me, the comments of Warnick J in C & S remain apt and relevant to determination of these cases.”
[10] Morgan & Miles (2007) FamCA 1230
All these various considerations must be weighed and considered at both the interim and final stage. I must be careful not to devalue the options of equal time and substantial and significant time in a case containing a relocation proposal.
Equally I am not in a position to ignore the legitimate expectations of Ms Candeler and her understandable desire to live in a location where she believes she will be happy. Considerations relating to a parent’s freedom of movement may become more significant if that parent has been the undisputed principle carer of the children concerned.
I must also look at the mechanics arising from the move itself and its actual implications for the children themselves. There may be ramifications for the children’s best interests arising from shackling a principle provider of their care in a location where he or she feels trapped and bitterly unhappy.
However the touchstone remains the best interests of the children themselves, arising from a consideration of all germane matters in section 60CC.

Section 60CC considerations

The mother has raised an allegation of family violence. This arises in the context of uncertainty and competition, in respect of ongoing parenting arrangements for two young children, following a difficult process of separation and the institution of proceedings in this court.
She has made no other complaints of family violence. In this context, the need to protect the children from the physical and psychological consequences of exposure to family violence does not seem to me to justify pre-eminence in this case. It would be absurd to suggest the mother’s move can be justified by the “emergency” of family violence, which confronted her earlier this year.
In the context of the landmass of Continental Australia, the move from Town A to Town B is not a large one. It is a drive of around one and a half to two hours along an uncrowded country highway. Accordingly, the dimensions of the move are not so great that the father will only be able to spend time with the children during school holidays after the purchase of expensive air tickets and as a consequence there will be a hiatus of months in between parental visits.
However, I accept that the move, although comparatively modest when placed besides many others, which the court regularly considers, must have implications for the quality and intimacy of the children’s relationship with their father.
At ages five and four, the children cannot easily converse on the telephone. Their conception of time is not fully developed. However, they are not likely to forget their father, if they are able to see him at least fortnightly, including for overnight periods.
From the mother’s perspective, such an arrangement will enable the children to have a meaningful level of relationship with their father, which she asserts is not likely to be significantly different to the relationship he has enjoyed with them up to this stage.
The chief detriment, from the father’s perspective, of the mother’s proposal, is that he perceives he will be consigned to the role of “weekend dad” and the possible application of the presumption of equal shared parental responsibility, at the final hearing stage, will be rendered otiose.
However, in all the circumstances of this case, I think that I would be naïve to consider that the mother’s move of the children to Town B and the father remaining in Town A will inevitably leach the children’s relationship with their father of meaning.
As Kay J pointed out in Godfrey v Saunders “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.”[11]I concede however the move has the potential to restrict the extent of the time the father has available to him to spend time with the children. Necessarily such time will be confined to weekends and school holidays.
[11] See Godfrey v Saunders 2008 FLR 287
The rationale of the amended provisions of Part VII of the Family Law Act 1975 is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flow from them being exposed to their parents in a variety of settings. This I take it is the legislature’s intent by its use of the word “meaningful” in section 60CC(2)(a).
These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting, as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations. In this way, the child concerned is likely to have a more balanced and so richer relationship with each of his or her parents.
A relationship does not necessarily become better if a parent spends more time with a child, but for obvious reasons, a parent must spend sufficient time with the child concerned for the relationship between the two to become or remain “meaningful” or indeed if the intimacy and warmth in the relationship concerned is to be intensified.
Under the mother’s proposal, the father will see the children regularly during school terms, but only on weekends. As such, he will not be able to interact with the children in the context of a school morning or a school night, unless, of course, he too moves to Town B to live. He will not be involved in the children’s daily routine to utilise the phraseology of section 65DAA(3). Necessarily the regime will self apparently not be an equal time one and will be some distance away from amounting to substantial and significant time.
However, notwithstanding this deficit, of itself, the mother’s proposal will not render the father a stranger to the children. The regime proposed by her, it would seem to me, has the potential to maintain a parental relationship between the father and the children, if both parties commit to it. Accordingly, the relationship between father and children will theoretically maintain the capacity to remain warm and so retain meaning for both parent and child.
The children’s views are uncertain in the present context. In any event, given their ages, their views are unlikely to be strongly determinative. A family report may assist in clarifying these issues.
It seems likely to me the children have a close and loving relationship with both parents and indeed with the paternal and maternal grandparents. I accept that relationships, for children, with grandparents are important. It is sad to see the fracture in the family. Town C, the home of the maternal grandparents, is closer to Town B than Town A. The paternal grandparents face the same issues as Mr Candeler. However the mother’s move to Town B is not likely to result in the severance of relations between X and Y and their grandparents.
It also seems probable that X and Y have a close relationship with their foster sisters. The current impasse is likely to have implications for the welfare of E and F. However, at this stage, I am not concerned directly with their best interests.
In cases like this, who has been the relevant children’s “primary carer” assumes central significance. The mother’s case is that evidence reveals that she has been X and Y’s primary carer, given her non-involvement in the paid workforce in the children’s earliest years, which is in contrast to the father’s situation and the incontrovertible evidence that the family moved in response to the father’s employment needs from time to time.
On balance, it is not easy to disregard the mother’s position. This, in turn, is likely to have implications for the children’s best interests. It is often said to be axiomatic that a happy parent is likely to be a more competent parent. Essentially, if the court unduly interferes with the way of life which a “custodial” parent legitimately wishes to adopt, the resulting frustration and bitterness may adversely affect the child concerned.[12]
[12] See Fragomeli & Fragomeli (1993) FLC 92-393 at 80,023
This is the mother’s case. She wishes to go and live in Town B for legitimate reasons. She has friends and opportunities there. She has bought a home in Town B. So far as E and F are concerned, Families SA are in favour of the move.
In deciding to move, she has not acted in a vacuum or in complete disregard of the children’s relationship with their father. She is not moving so far that the relationship between X and Y and their father will inevitably be extinguished. She would say that relocations of children, both intra and inter state, are a frequent consequence of marital breakdown in a highly mobile society such as Australia.

The mother is to be criticised for acting high-handedly in moving in the face of the father’s obvious opposition and giving up her lease in Town A. She has shown scant regard for his feelings and sensitivities. She has disregarded his obvious interest in playing a part in determining where the children go to school and where they should live. Although it is premature to make a finding to this end, at first blush, her actions are not those of a sensitive and empathetic person or parent. The father sees her as selfish and self-absorbed.
However, there are also likely to be consequences of compelling her to come back to Town A. Where will she live? What will she do with the recently acquired property in Town B? What are the financial ramifications of such an option for her?
In psychological terms, she is likely to be bitterly disposed towards Mr Candeler for compelling her to live where she does not want to live. She would regard herself as his prisoner, even in the short term, particularly if circumstances compelled here to live in the cottage next to the parties’ former family home and in close proximity to the father. It does not seem likely that such an arrangement would be conclusive to an effective shared parenting regime.
At the end of the day, the logistical difficulties arising from the children living in Town B will not substantially affect the children’s right to maintain personal relationship and direct contact with their father. This is the terminology of section 60CC(3) (e). The distance is not so great that the children’s rights in this regard will be nullified.
True it is that the mother was able to move in the first place and now sees only impediments to her return. However, given the uncertainty about where she would live, pending trial, there is the potential for the children to be unsettled by the change represented by moving back to Town A with the mother and the likely resentment such an outcome would precipitate.
The purpose of these proceedings is not to punish the mother for an ill considered and selfish action. Rather it must remain focussed on the best interests of the children concerned. Regrettably, whatever is the outcome of these proceedings, it is likely to foster ill will between the parties, one of whom must inevitably feel unheard or disregarded by the court.
The various permutations, available to the court, cannot be manipulated, like the surface of a Rubik’s Cube, to achieve a perfect result, acceptable to all concerned, including the various sets of grandparents.
I consider both parties are responsible parents, who each aspire to be as fully involved in the lives of their children as is possible, including making important decisions about their care. In my assessment, albeit a limited one, both are loving and caring parents.

Conclusions

In all circumstances of this case, there seems to be no ground on which the presumption of equal shared parental responsibility should be rebutted. The best interests of the children dictate that both parents should be involved in exercising parental authority for them. There are no protective concerns arising from issues of family violence, abuse or neglect.
Accordingly the mechanism created by section 65DAA of the Act is engaged. By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[13]
[13] See MRR v GR [2010] HCA4 at paragraphs 13 and 15.
Currently the parties’ respective homes are 150kms apart. Their current capacity to implement a shared care regime is limited, given the ill-will between them, arising from both the circumstances of their separation and the mother’s unilateral move. They do not communicate well. Relations between them are currently strained, to say the least.
The only means by which a shared care regime could be implemented is by compelling the mother to return to Town A in the short term. Such an outcome could be achieved only by the negation of her entitlement to freedom of movement. This has the potential to have some negative impact on the children themselves.
In theoretical terms, the regime advocated by Mr Candeler is likely to be in the best interests of X and Y, if the parties themselves each fully supported it and were each committed to making sure it was successful.
An equal time regime would ensure that the children had the benefit of having both parents involved in their lives to the temporal maximum amount possible. Necessarily, such an equal time arrangement would include both weekdays, weekends, holidays and the full complement of routine arrangements pertaining to the children.
However this optimal result could only be achieved by compelling Ms Candeler to return to Town A, against her wishes and in denial of her rights as a citizen to freedom of movement. She is unlikely to share Mr Candeler’s drive and commitment to make it successful.
Granted Ms Candeler was imprudent to move without either the husband’s or the court’s imprimatur. The uncharitable may well characterise as narcissistic, self absorbed and selfish, but the fact remains that the “genie” of relocation is now “out of the bottle” and once released cannot be easily recaptured.
In my view, in the unique circumstances of this case, even given my disapprobation of the mother’s actions, it would be impracticable to compel Ms Candeler to return to Town A to live with the children. I reach this conclusion because the evidence indicates that, up to this stage, she has been the children’s main provider of care, whilst the father has been the family’s main breadwinner.
In addition, such an outcome could only be achieved by a process of judicial sleight of hand and in denial of Ms Candeler’s freedom of movement. The usual mechanism for such compulsion, at the interim stage, is that the court offers the parent who has moved an unpalatable choice. Either that parent returns with the child or children concerned, to the location left or the child or children live with the other parent in that location.
In this case, the father does not contemplate the children returning to Town A without their mother, at the interim stage. He concedes that, after separation, she has provided the majority of their care, a situation he did not seek to formally challenge until the mother had indicated her desire to move to Town B.
In this case, in my view, the outcome proposed by the father would be highly artificial and not likely, of itself, to be in the best interests of the children concerned. To my mind, the reality of the situation confronting this family is that it would be highly problematic and impractical to compel the mother to return to Town A, notwithstanding her precipitate action in moving in the first place.
Further, I do not think that it would be in the best interests of the children to place them in the full time care of their father, in the event that the mother reaches the conclusion that it is impossible for her to return to live in Town A either because of her commitments in Town B or because of a lack of accommodation in Town A or because she finds the prospect intolerable.
Accordingly, I do not think the mechanism proposed by the father, to secure a shared cared regime, that the mother be compelled to live within a thirty kilometre radius of Town A is reasonably practicable to implement and its alternative – the children coming into the care of the father – likely to be in the best interests of X and Y.
As I have already indicated, the central section 60CC factor is the likely benefit to be derived by the children from having a meaningful level of relationship with their father. In this context the extent of the distance involved in the mother’s move and her proposals for the children to spend time with the father become central.
The potentially deleteriously consequences, for children, of locating away from one on their parents, compound with distance involved. The tyranny of distance develops by degree. For obvious reasons, it is likely to be more difficult for a child to maintain a meaningful relationship with a parent, if an international relocation is involved or the move involved is to a far distant part of Australia – say Cairns to Hobart or Broome to Bairnsdale.
In this case the children concerned are living in a provincial centre around 150km from the rural community in which they previously lived. In these circumstances, the mother’s proposals for the children to interact with their father, pending final hearing, are reasonably extensive.
The central dilemma, which this case creates, is the mother’s precipitate, unilateral action in moving the children to Town B, in the face of the father’s stringent opposition. The court should not endorse such self help, principally because of the potentially skewing or distorting consequences for final hearing.
There are public policy considerations arising, which require the court to indicate its strong disapproval of such action. Essentially, the court should not reward parental self help, in respect of the vexed issue of child relocation. Otherwise others may act in the same manner and feel that they can move far away from a parent, with a child, to their long term advantage, with impunity.
This is what Warnick J meant when he indicated that the court should determine interim parenting matters in a context where there was, in effect, a level playing field between the parties concerned, not one which was skewed by “a situation of recent development which situation significantly alters the relationship of the child with regards to one of its parents.” This was the phrase he used in C & S.[14]
[14] C & S [1998] FamCA 66
If, as was the case in C & S, the mother had moved many thousands of kilometres, there could be no doubt that this would have been a situation where X & Y’s relationship with their father had inevitably been significantly altered. As such, the court would have been clear in its disapproval of such a move, unless there was a situation of significant emergency confronting the mother.
The move in this case is not of these dimensions, notwithstanding the disapprobation the court records for the mother’s actions in moving to Town B in the face of the father’s trenchant objections, the fact remains that the children can maintain a level of meaningful relationship with their father by regular periods of weekend and holiday engagement. In addition, the father will be able to interact regularly with the children’s school.
These reasons are not to be taken as a tacit approval of the unilateral actions of the mother or of any other parent. Rather each case must be judged on its own unique circumstances. The move in this case is from a small rural community to a provincial centre in the same region. It will not result in the severance of a parental relationship.
One of the challenges arising from marital breakdown, for the parties concerned, is that they must adapt to new and often emotionally painful circumstances. Although the parental relationship and all the obligations entailed in it between must them continue, they are not obliged to live in proximity to one another indefinitely nor is one in a position to dictate the life choices of the other.
At this stage, for these reasons, I do not think it would be in X and Y’s best interests to compel their mother to return the children to Town A, either to live predominantly with their father or to engineer a situation whereby a shared parenting regime comes into existence, predicated on the basis of the mother’s forced return to Town A.
An appropriate response to the difficult circumstances in this case is to expedite the final hearing. I will allocate the earliest date available to me. I will also put in place mechanisms to assist the parties to resolve the property issues arising between them. I will also order a family report which will be available to the parties in approximately twelve weeks time.
I will make orders which envisage the children spending three weekends out of four, during term times, with their father, as well as for half of each short school holiday. It being envisaged that the matter will proceed to final hearing prior to the end of the year, I will not make orders dealing with the long holiday or the specific occasions falling around Christmas.
I will however makes orders dealing with Easter and each of the children’s birthdays, as well as the weekends of Father’s Day and Mother’s Day with the intent of ensuring that both parents are involved in special occasions relating to the two children.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and thirty one (131) paragraphs are a true copy of the reasons for judgment of Brown FM

Date: 1 March 2013