CANDELER & CANDELER (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

CANDELER & CANDELER (No.2)

[2020] FCCA 1095

Catchwords:
FAMILY LAW – Interim hearing – relocation issues – matter previously listed for final hearing 1 June 2020 prior to COVID19 crisis – hearing expedited due to relocation issue – should trial proceed electronically – matters to be considered – should children’s interim living arrangements be changed pending final hearing – best interests.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZN, 97

Cases cited:

AMS v AIF; AIF v AMS (1999) FLC 92-852

B & B: Family Law Reform Act 1995 (1997) FLC 92-755

Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No3) (2009) 181

FCR 152

Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA

486

Candeler & Candeler [2013] FMCAfam 180

D and S V (2003) FLC 93-137

Godfrey v Sanders (2007) 208 FLR 287

Goode & Goode (2006) FLC 93-286

Mazorski v Albright (2007) 37 FamLR 518

Morgan & Miles [2007] FamCA 1230

MRR & GR (2010) 240 CLR 461

Applicant:

MR CANDELER

Respondent:

MS CANDELER

File Number:

ADC 4912 of 2012

Judgment of:

Judge Brown

Hearing date:

29 April 2020

Date of Last Submission:

29 April 2020

Delivered at:

Adelaide

Delivered on:

11 May 2020

REPRESENTATION

Counsel for the Applicant:

Ms Lewis

Solicitors for the Applicant:

Andersons Solicitors

Counsel for the Respondent:

In person

Solicitors for the Respondent:

Not applicable

ORDERS

That the hearing listed on 1 & 2 June 2020 is confirmed to proceed via Microsoft Teams.
That the existing interim arrangements contained in the orders made 1 November 2019 do continue.
Each party is directed to file all further affidavits, including relevant financial records relating to child support, on or before 25 May 2020.

IT IS NOTED that publication of this judgment under the pseudonym Candeler & Candeler (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4912 of 2012

MR CANDELER

Applicant

And

MS CANDELER

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to these proceedings are Mr Candeler “the father” and Ms Candeler “the mother”. They are the parents of X born in 2007 and Y born in 2008. The parties are in disagreement about where the children should live and how the court should resolve their dispute.
Two inter-related issues arise for the court’s determination, at an interim or procedural stage. Firstly, given the Covid19 pandemic emergency, which confronts Australia at present and which has led to significant constraints on the court’s capacity to do its business as it normally does, is this a case which could and should be conducted, at a distance, through electronic means.
Secondly, what are the appropriate arrangements for the care of X and Y, until there is a final hearing of their parents’ competing applications for their care. Through electronic means, such a hearing could take place, as early as scheduled, on 1 & 2 June 2020. If deferred, the trial could not be accommodated until mid-2021.
I, of course, like the parties themselves and their respective learned advisors, have no way of knowing what will have been the progress of the pandemic by next year and whether procedural normality will have been restored by that time.
I can predict, however, with a high level of assurance that the bitter dispute and the extreme emotions which it has precipitated between the father and mother, regarding what is best for X and Y, will remain undiminished until whenever the final hearing occurs and most probably for a long period afterwards.
In general terms, the case centres on the different values and aspirations of the parties. The mother wants to live where she chooses and pursue a wide variety of opportunities, both in terms of her employment and personal life, unimpeded by the father, from whom she has been separated close to a decade, during which period, she asserts she has been X and Y’s primary carer. Her preference would be to live in inner suburban Adelaide.
The father lives in Town A, where he works on the land. The parties lived in Town A, on the father’s family’s farm, during the parties’ marriage. It is his case that the children concerned are country kids and their lives are centred in and around the farm; their extended family there; and a variety of extra-curricular activities, particularly sports, which they pursue in the Region D.
As with the vast majority of cases, involving relocation, each party has a valid reason, relating to the children’s best interests, for wishing the court to accede to his/her preferred outcome. On any view, the case is a difficult and finely balanced one, requiring a close and intricate consideration of the competing proposals.
These issues have been playing out since the parties separated in 2012 and have already been canvassed in earlier proceedings, which were uneasily compromised in September 2013, with an agreement that the mother and children would move to Town B, but no further away from Town A.
Mr Candeler remains aggrieved that the mother unilaterally moved to Town B in the first place, in the aftermath of the parties’ separation and the court then weakly ratified the move retrospectively.[1] He regards Ms Candeler as slippery and manipulative and being a person who will do and say whatever is necessary to achieve what she wants, regardless of the implications for others, particularly him and the paternal family concerned and more importantly, irrespective of the overall best interests of X and Y.
[1] See Candeler & Candeler [2013] FMCAfam 180
Given the court’s retrospective approval of this earlier unilateral move, Mr Candeler believes that it has created a slippery slope for itself, which Ms Candeler will attempt to exploit to her own advantage, as she has done before. In this context, he asserts that she is trying to manipulate him and the court, so that she can move once again, with the children, this time to suburban Adelaide, a move against which he is fervently opposed, as it will significantly disrupt how he currently engages with X and Y, in Town A, on regular weekends.
Given his characterisation of the mother and how she has behaved in the light of significant court orders restraining her movements, Mr Candeler submits that the time has now arrived to change the children’s predominant living arrangements and they should come and live with him, at Town A, which they each regard as their true and stable home.
It is the mother’s case that it is she who has provided the vast majority of support, both in emotional and financial terms, for X and Y. She resents being, in effect, told by Mr Candeler, where she has to live, given the marriage between the two ended many years ago. In her words, much has changed since 2012.
In these circumstances, she wants the court to resolve the impasse as quickly as possible, so that she can get on with her life and the children with her. As a consequence, she greets the opportunity to have an electronic trial with alacrity.
On the other hand, given his characterisation of Ms Candeler as a disingenuous person, who is tactically astute, but without moral scruple, he asserts that such a trial would be fundamentally unfair to him as it would enable the mother to conceal evidence from him and prevent the court making an accurate assessment of her credit through being able to observe her in the flesh, whilst subject to the full rigours of direct cross-examination.

Background

In the earlier reasons for judgment, I provided the following details of the parties’ relationship, at the time. They remain germane to the present time. As previously indicated, from the father’s perspective, they contain the reasons why he remains aggrieved at the chain of events, which Ms Candeler put into chain in early 2013 and are now coming to their denouement. I said as follows:
“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.
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 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 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 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. The children want to live here and start school here, and is in their best interests. We can talk later in the week.”[5]
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.”[6]
[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
[6] See Candeler & Candeler (supra) at [3] – [9], [11] – [23], & [25] – [26]
This dynamic, in my assessment, remains in place to the current time. The father regards the mother as being high-handed and self-absorbed, doing what is best for her and no-one else. On the other hand the mother regards herself as a self-starter, who gets things done and should be able to live how and where she chooses, without any undue restraints arising from his part relationship with the father.
It is her position that she has done all the hard yards, so far as X and Y are concerned, including paying for their schooling and multiple extra-curricular activities, with little assistance from Mr Candeler. Nonetheless, she asserts that over the past eight years or so, she has supported the children’s relationship with their father, but the time has now come for her to be able to move to the next stage of her life.

The current proceedings

I do not, as yet, have a complete understanding of precisely what has occurred to bring the parties to their current state of acute crisis. From the father’s perspective, this is because the mother treats information, so far as both he and the court is concerned, on a need to know basis.
Essentially, Mr Candeler asserts that Ms Candeler will only reveal aspects of her case, either when it suits her or when she is forced to do so, but otherwise remains focussed on achieving her own personal agenda come what may.
This characterisation is co-opted in support of his case both that the final hearing can be determined in a conventional manner and also that there is a need, on an urgent basis, to change the current living arrangements for X and Y, primarily because of the lack of certainty in respect of the current arrangements for their care.
As with the earlier case, the background to the current matter is what lawyers characterise as a unilateral relocation. The relocation in question, as yet inchoate in its application, was or is proposed to be from Town B to Suburb P, in suburban Adelaide.
In this context, the mother’s final application is to move X and Y’s primary place of residence from Town B to Suburb P and change where they go to school, it being impractical in her view, for the children to travel daily from Suburb P to Town B, although she contends that that is what they are currently doing.
Ms Candeler disputes that the move is complete but asserts that there is a level of urgency about it, given various logistical factors, chiefly school and where she is currently working. She says she retains a foothold in Town B and the children continue to see their father, in Town A for three weekends out of four.
However, it is her position that she and the children need to know what is to happen and prepare appropriately for it. For this reason, Ms Candeler presses for an urgent electronic final hearing and asserts that she has been malignly characterised by the father and is not the Machiavellian person whom he portrays. To the contrary, she characterises Mr Candeler as a controlling person, who through the court process and his lawyers, attempts to coerce her.
On the other hand, Mr Candeler asserts that the mother did earlier unilaterally relocate from Town B to Suburb P, via Suburb Q, in open defiance of an order of this court, made on September 2013 and my express direction, made in open court on 1 November 2019 that it was not open to her to change the children’s primary place of residence from Town B, until she was formally authorised to do so.

The relevant order, of this court, made on 5 September 2013, which was made by consent, part way through a contested final hearing, was explicit in its terms;
“The parties are each restrained and an injunction granted restraining each of them from:
Changing the children’s residence from within a 30 kilometre radius of Town B without the written consent of the other.
Changing the children’s school without the written consent of the other.”[7]
[7] See orders made 5 September 2013 at [5]
In addition, the September 2013 order envisaged the children spending two weekends, out of every three, with the father during school terms, from the conclusion of Friday until its recommencement the following Monday. In addition, the orders envisaged the father spending extended time – significantly more than 50% - during the 12 weeks of annual school holidays. Standard orders were made in respect to the sharing of special occasions.
As previously indicated, these orders were consensually negotiated, between the parties, part way through contested proceedings dealing both with children’s arrangements and the division of matrimonial property.
At the time of the trial, Ms Candeler deposed that she had purchased a property located at R Street, Town B and was employed by Employer S in Town B. On her relocation to Town B, the mother had enrolled the children, including E and F, at G School. She deposed as follows:
“I pay the school fees for the girls along with the costs of their school uniforms, books, school excursions, sports lessons, and costumes. I have purchased all that is required to enable them to undertake their education and associated activities and after school activities.”[8]
At this early stage, the mother complained that the father was not extensively involved in the children’s school work and paid a modest amount of child support, which she asserted was $401.00 per month. These issues remain controversial, in different ways, from the perspective of each of the parties.
[8] See affidavit of the mother filed 23 August 2013 at [71]
A family report was prepared in anticipation of the September 2013 report. It was compiled by Ms T, a family consultant, with tertiary qualifications in social work. No doubt her report and the recommendations contained within it were influential in leading the parties to the compromise, which they ultimately reached.
Whilst Ms T was critical of Ms Candeler’s unilateral decision to move to Town B because of the possibility that it might suggest a lack of regard, on the mother’s part, for X and Y’s relationship with their father, Ms T considered that there were more positives than negatives arising, for the children, from the move. She reported as follows:
“In regards to the issue of relocation, both Town A and Town B appear to have benefits in relation to contributing to X's and Y's developmental needs. In Town A there appears the comfort of familiarity and long standing relationships with family and friends, adequate schooling, some opportunity for extra curricula activities and increased opportunity to spend time with Mr Candeler. In Town B as narrated by the mother, the children had thrived in all of their developmental domains. In addition, in Town B there appears the opportunity for the development of relationships with some members of the mother's family, adequate schooling, a supportive spiritual community/network and increased opportunities for the children to pursue their scholastic, spiritual, artistic and creative endeavours and interests. In addition, the mother appears to have successfully supported X and Y in settling into their new surroundings. An additional issue of concern is Ms Candeler's right to freedom of movement and the likely detrimental impact on her mental and emotional well being if she were forced to return to Town A. In turn, a forced return to Town A may negatively impact her parenting by way her of attunement and emotional availability to the children. In juxtaposition, given the distance between Town A and Town B it is unlikely that the children remaining in Town B would severe the meaningful relationship with the father or inhibit the continued development of this relationship. On balance when considering the children's reported positive progress in Town B, Mr Candeler's full time working commitments and the lack of viability at this stage of a shared care/week about arrangement, it appears that it would be in the children's best interests to remain in Town B with the mother.”[9]
[9] See family report of Ms T dated 8 May 2013 at [77]
Accordingly, as at September 2013, the mother and children were firmly ensconced, in Town B, where the mother had purchased accommodation for herself and obtained employment. In addition, she had agreed to the children maintaining their strong links, with the Town A area, through an extensive regime of contact. The distance between Town B and Town A, of approximately 150kms, was difficult but apparently manageable.
As is often the case, the final orders of September 2013 represented both an uneasy truce between the parties and unfinished business, as each perceived him/herself to be the victim of the other’s poor conduct during their relationship and afterwards.
It was against this background that the current round of litigation began when the father launched contravention proceedings, on 8 April 2019, alleging the mother had moved to Suburb Q, in the Region U. It is 61km, via the freeway, between Town B and Suburb Q.
This contravention application came before the court, for the first time, on 24 April 2019, when the court’s registrar determined that it should be adjourned, before me on 15 July 2019. The mother did not appear on the first occasion. The father was aggrieved, from his perception, the mother, as she had done before, had presented him with a fait accompli, in respect of the children moving away from Town B, and so forced him to take court action to protect his rights.
When the case came before me, the mother sought an adjournment. From her perspective, much had changed since the July 2013 orders. She obtained a job in Adelaide. In any event, she asserted that the children continued to see their father in accordance with the court’s order and remained at their familiar school, in Town B.
I had the following dialogue with Ms Candeler:
“Your Honour, as you're aware, 2012 was a very long time ago and it's quite possible that the orders do need to be varied to reflect the current circumstances and the change in circumstances.
His HONOUR: Do you think- I mean, do you and Mr Candeler have a good relationship?
MS CANDELER: No, your Honour.
His HONOUR: It's poisonous, is it?
MS CANDELER: We have absolutely no relationship whatsoever.
His HONOUR: Right. So - I mean - and are the children still seeing their father?
MS CANDELER: The orders, as you wrote them, your Honour, are what unfolds from week to week and year to year.
His HONOUR: So they've been followed.
MS CANDELER: Yes, your Honour.
His HONOUR: Right. And you -why did you move? Because you had to, or what was the reason?
MS CANDELER: Predominately it's a work thing for me, and it just enables me to be in a position where I'm closer - sort of in-between the city for work and where the children have been for school.
HIS HONOUR: Right. So -I mean - and that's what you-where you are is where you want to be.
MS CANDELER: Your Honour, it is possible that the orders do need to be varied.”[10]
[10] See transcript of proceedings 15 July 2019 being annexure C1 to the affidavit of the father filed 26 August 2019
Given the distance involved in the move as it then stood and the lack of significant disruption to the children’s lives, I referred the parties to a child dispute conference to examine if there was some consensual way to resolve the impasse, given in arithmetical terms the move concerned involved a potential transgression of the September order of some 31kms, the kilometres in question being in a rural context, which provided relatively good access to roads.
As might have been anticipated, the family dispute resolution achieved little apart from demonstrating the polarity of the parties’ approach to the parenting of the children. The mother presented as something of a martyr, who had sacrificed many things, for the benefit of the children and now wished to make changes that would assist the development of her professional skillset and enable her to grow financially. To the family consultant, she characterised the father’s application as being “just another instrument of power and control that does not assist the children and I with moving on with our lives.”
For his part, the father asserted that the mother persisted in making false claims of abuse, against him, in order to ensure that any relevant decision, concerning the children, fell her way. He categorised X and Y as being at risk of suffering emotional harm due to their mother’s instability – he asserted the mother had moved them three times since separation – and her self-absorption, in matters of interest to her.
On 1 August 2019, Ms Candeler sent an email to Mr Candeler, in which she informed him that she was now living in Suburb P. She further advised that she would not be providing him with her new address and would not permit the girls to disclose my address to you. The father characterised this prohibition as having the potential to cause X and Y significant emotional stress, in the sense that they would be required to keep a major secret from their father.
This fresh development caused the father to implement further contravention proceedings, which he did on 26 August 2019. In response, the mother commenced proceedings to change the existing parenting arrangements for X and Y, as reflected in the September 2013 orders. She did so on 1 October 2019. On both an interim and final basis, she sought orders to permit her to live with the children in Adelaide and for authorisation to enrol the children at state funded primary schools, from the start of term four 2019.
The father responded to this application on 29 October 2019. On both a final and interim basis, he sought the dismissal of the mother’s application and that she pay his costs. These competing applications returned to court on 1 November 2019.
In her supporting affidavit, Ms Candeler indicated that she was living at an undisclosed address, in Suburb V, a suburb of Adelaide, proximate to Suburb P. As indicated above, earlier in the year, Ms Candeler had indicated that she was living at Suburb Q and, as a consequence, she had been accorded some degree of latitude, whilst the case was further investigated.
In this context, I had a conversation with her, in the following terms:
“HIS HONOUR: It's about relocation?
MS CANDELER: Right.
HIS HONOUR: So where are you living at the moment?
MS CANDELER: I'm at Suburb P.
HIS HONOUR: Right. So you've moved already?
MS CANDELER: Yes.
HIS HONOUR: So - and did Mr Candeler say you could move?
MS CANDELER: . Of course not.
HIS HONOUR: So that's a problem?
MS CANDELER: Yes.
HIS HONOUR: And we've been down this road before, have we not?
MS CANDELER: Eight years ago, your Honour, yes.
HIS HONOUR: Yes, we have.
MS CANDELER: Yes, yes.
HIS HONOUR: I have a fairly good memory, and now - and at that stage, I went through the law with some care and precision and, with the greatest respect, it hasn't changed.”[11]
[11] See transcript of proceedings 1 November 2019 at page 2
As perhaps might be readily anticipated, Mr Candeler was highly aggrieved at the move, which Ms Candeler acknowledged, had occurred without his approval, and if such approval had been sought, it would have been undoubtedly refused. In his perception, the mother was intent on sabotaging his relationship, with the children, little by little by sneakily trying to fly under his and the court’s radar.
It is an additional 73kms, from Town B, to Suburb V. Again, if travelling by motor vehicle, much of this distance is on the freeway, which terminates at Suburb W, its traffic feeding into other major arterial roads, which flow through the suburbs of Adelaide. As is to be expected, these roads are subject to ebbs and flows of congestion.
It was the father’s position, at the interim hearing, that the mother had demonstrated a flawed attitude to the responsibility of being a parent by totally discounting their ability to interact with their father, in the Town A area, at weekends. He was also concerned that the enrolment of the children, at fresh schools in Adelaide, would be extremely disruptive for them.
Essentially, it was the father’s position that Ms Candeler had entirely disregarded not only the spirit but the operation of the September 2013 orders, which had conferred joint parental responsibility, for the children, on each of their parents and required her to continue to live within Town B. In these circumstances, it was the submission of his counsel, Ms Lewis, that Ms Candeler had assumed that she had sole parental responsibility for the children and could, in effect, do as she pleased for X and Y’s care.
This issue, which required my urgent attention, came before me in a busy duty list, which consisted in excess of twenty matters. The urgency of the situation compelled me to deliver an ex tempore judgment. At that stage, I had available to me the child dispute conference memorandum, to which I had earlier alluded. It was a significant document given that the Family Consultant was able to interact directly with each of the parties and provide an opinion on the implications of the then situation for the children.
The memorandum was prepared by Family Consultant Ms Z. She described Mr Candeler as being child focussed in his presentation. Under the heading Issues for the child, Ms Z reported as follows:
“The children may suffer due to leaving the familiarity and security of their school and friends.
The incremental relocation of the children which has taken place thus far may have created a source of anxiety for the children.
The current situation for the children means that they live a significant distance from their friends, and this may impact on maintenance of their friendships, and that they are travelling for several hours to and from school each day, (approximately 73 km each way).
The view of the children about relocation to the school proposed by the mother is unknown, as is the nature of their relationships with their mother, father, step-sisters and other extended family, and how this will affect the children long term.”
In all these circumstances, Ms Z considered that the relocation of the children, to another school, following a number of house changes, had the potential to be emotionally disruptive for them and therefore required further exploration. In these circumstances, she recommended that a family assessment be prepared.
In all these circumstances, I declined to authorise retrospectively Ms Candeler’s relocation of the children from Town B, via Suburb Q to inner suburban Adelaide. At the time, I was satisfied that by dint of her previous experience, Ms Candeler was well aware of the legal sensitivities of a parent acting unilaterally, so far as a child’s place of residence was concerned. Certainly, it is Mr Candeler’s position that Ms Candeler was so aware but, given her manipulative character, chose to take a risk and attempt to game the system.
The hastily delivered oral reasons for judgment were as follows:
“HIS HONOUR: Right. And, I mean, the thing is, as I've tried to explain - I mean - and I explain it as best I can, it's a free country. People move in Australia every day of the week and they're entitled to. They can go and live in Queensland. They can go and live in Tasmania. They can go and live in Western Australia. They can live in Town AA. It's a free country. However, the parents of children have obligations to one another because· they share parental responsibility. They have obligations to share decisions for major long-term issues, one of which is a relocation, a move that has implications for a child's relationship with the parent proposed to be left behind.
For that reason, I'm not in a position to ignore Ms Candeler's entitlement to move, but it has to be done in a proper way. A decision has to be made. The problem Ms Candeler has is that there was an order made. No doubt, neither party was happy with it because that's the way it usually is, and there was an injunction. And, as I said to Ms Candeler a moment ago, I've got to -you know, people won't come to court if they think people can break injunctions and there are no consequences.
It devalues the currency. So, you know, I will fix the application to relocate for final hearing, and order a family report. If you think it's appropriate, I will appoint an independent children's lawyer for X and Y.
But it's difficult to see, Ms Candeler, that I can say, okay, well, pending that, the children are going to go to a new school because the issue is still in flux. And, with the greatest respect, you have - I've got to give you an unpalatable choice. You can live in Suburb P, that's- it's a free country, but I can make orders in respect of the children, and if you want to continue to live in Suburb P, it would be my view that the children ought to live with their father so they can go and spend - continue their school in Town B. Or pending the final hearing, you can move back to Town B.
Now, if that has logistical issues, I'm sorry about that, but I'm not here to be an estate agent and canvass what the property market is and if it has financial implications. I regret that, as well, but I am here in terms of the best interests of the children concerned and, rightly or wrongly, the family consultant was of the view that Mr Candeler presented as child-focused and she thought it was an issue that the children would perhaps be unsettled by having to change school, and that seems axiomatic, but, as I say, you know, children do change school and they will be moving away from their friends.
And there are lots of difficult value issues here. I mean, your position, I understand it, is that Adelaide and its inner suburbs is a wonderfully interesting place to live. Mr Candeler has a view that these are country kids. That's a difficult issue because there are pros and cons of both. I don't want to sound patronising, but Beatrix Potter, you've probably read that story to your kids about the country mouse and the town mouse. Did you read that one, Ms Lewis?
MS LEWIS: I haven't, your Honour.
HIS HONOUR: You don't like Beatrix Potter. And so, I mean, I think you need to think about that what I've said for the next 15 or 20 minutes. I will fix the matter for final hearing. If you want to talk to the duty solicitor, I'm happy for that to be arranged, but, at this juncture, Ms Candeler, I am not- I don't think it would be either in the interests of the children for me to approve your unilateral relocation pending final hearing, and more - and equally significantly, I don't think it would be in the public interest because, you know, these issues have to be determined in an appropriate way and, with the greatest respect, courts can't approve retrospectively people just saying, ‘Look, well, I had to do it. I had no alternative’ and because otherwise people wouldn't come to court and they would settle their disputes in ways that perhaps aren't socially helpful, and this is a country that's ruled by principals of law and whether that's a good thing or a bad thing.
In some countries, as you probably know, there's just a presumption that women or men can just have ultimate say in some countries. Men can decide what happens to the children. Other countries, there are different views. But, here, we try and balance all sorts of factors and that has to happen after a close analysis of evidence
And, as Justice Kirby says - everyone knows Justice Kirby of the High Court- he says in a case called AMF, every relocation case is special and requires a unique and idiosyncratic analysis which is not possible at the interim hearing stage.”[12]
[12] See transcript 1 November 2019 at page 6

Ultimately, given the fiscal implications of an independent children’s lawyer, for each of the parties concerned, I decided not to appoint an independent children’s lawyer. I did however expedite the final hearing, as best I could, allocating 1 & 2 June 2020 for the final hearing. I also ordered that a family report be prepared, pursuant to section 62G of the Family Law Act 1975 to be released to the parties on or before 1 April 2020.
The significant mechanical order, perhaps with the benefit of hindsight, not particularly well expressed, was as follows:
“1. The mother return the children of the relationship X born in 2007 and Y born in 2008 to the Town B area no later than 20 November 2019 and thereafter the existing orders continue.
2. The mother inform the father of the children’s residential address in Town B.”
However, in my view, given what was said in court on 1 November 2019, the import of the order was clear. Pending the final hearing, it was expected that the pre-existing arrangement for the children, as memorialised in the September 2013 orders would be restored, in the sense that it was anticipated the children would live within thirty kilometres of Town B and continue to attend their school there.
Following the making of this order, considerable controversy has arisen as to whether Ms Candeler complied with this order or, as Mr Candeler asserts, has once again attempted to wriggle around it to achieve her own ends by at best paying lip service to it or at worst downright ignoring it.
It is also apparent that this highly volatile situation has coincided with a marked deterioration in the parties’ parenting relationship with one another. This is most vividly demonstrated by the fact that in November of 2018, Ms Candeler obtained a private interim intervention order, in the Town B Magistrates’ Court, which named Ms BB as the defendant. Ms BB is Mr Candeler’s present partner.
Concurrently with this order, Mr Candeler agreed to provide an undertaking that he would not assault, threaten or harass Ms Candeler or come within 150 metres of her home or otherwise contact her other than to give effect to the earlier parenting orders in respect of X and Y and Ms Candeler provided a complementary undertaking to Mr Candeler and Ms BB.

The mother’s case in summary

Ms Candeler’s case can be summarised in the following terms:
·She has always been the children’s primary carer, which she has essentially done alone, certainly since the parties separated;
·In this context, she has assumed the greater proportion of the responsibility to provide financial support for the children;
·She has endeavoured to find employment for herself in Town B, but this has been difficult for a variety of reasons;
·In 2015, she worked on the staff of the Employer CC, but had to give up her position because of health issues related to X;
·X was diagnosed with a serious neurological deficit, which was corrected through neurosurgery in August of 2015;
·Thereafter, X suffered protracted periods of ill health, which disrupted her education;
·In these circumstances, Ms Candeler supported X’s education through personal tutoring. As a consequence, she was not able to engage in paid employment;
·In 2017, Ms Candeler obtained part-time work at two employers in Town B, where she had a public servant role;
·Her contract was not renewed in February of 2019 and she endeavoured to find some self-employed consultancy work;
·It has been financially challenging for her to raise the children, particularly the costs associated with X’s brain surgery; their school fees and other medical and extracurricular activities;
·Y suffers from dyslexia and receives educational support through DD, which is in Suburb EE, which Ms Candeler funds;
·Given her financial pressures, Ms Candeler decided to explore employment opportunities in Adelaide. This led her to seeking rented accommodation in Suburb Q;
·In 2019, her lease in Suburb Q was abruptly terminated and, against this background, she elected to move to Suburb P;
·Notwithstanding the move, the children continued to attend school in Town B;
·However, it is a nearly 200km round trip between Suburb P and Town B, which was not sustainable. The cost of the travel per day was up to $50.00;
·In Adelaide, Y would be able to access therapy for her dyslexia more easily;
·Both children have musical aptitude, which talents would be better served in Adelaide;
·The children would still be able to see their father regularly, on weekends, if they live in Adelaide;
·The father and his partner have been threatening towards her.

The father’s case in summary

The father’s case can be summarised as follows:
·It is likely to be more expensive for the mother to live in Adelaide than Town B;
·The mother has numerous friends in Town B;
·He has played a vital role in the care of X and Y;
·He has significant concerns about the mother’s parenting capacity, given the two foster children were removed from her care;
·He denies that he does not make a proper financial contribution towards the upkeep of the children;
·He denies that he and his partner have ever taken any steps to intimidate the mother.

The family report

The family report, in the case, was prepared by Ms FF, who is a family consultant with tertiary qualifications in social work. Her report was released to the parties in late March of 2020. At this stage, it is important to point out that Ms FF’s report, the opinions which it contains and the methodology which supports them, are as yet untested by any process of cross-examination. Nonetheless, given her direct interaction with X and Y, the report remains an important piece of evidence, at both the interim and final hearing stage.
The mother indicated that she and the children had stayed with friends, upon their return to Town B, before the end of term four in 2019. Thereafter, she had commenced a relationship with a person, Mr GG, and the family has lived at his property in Town HH, which is apparently 25km from Town B, in a straight line, but somewhere over 35km, by road.
It was Ms Candeler’s position that the children were able to catch the bus to school from Town HH and either she or Mr GG collected them in the afternoon. Ms Candeler conceded that she maintained her accommodation in Suburb P and, from time to time, the children caught the bus from Town B to Adelaide but she disputed that it was as frequently as alleged by the father.
Ms Candeler confirmed that the children enjoyed playing sports in Town A and training with their club in Town B. The children also played sports in Town B, during the warmer months. As has previously been indicated, both children play a musical instrument.
In interview with Ms FF, Mr Candeler indicated that it would be extremely difficult for him to maintain the existing arrangements with the children, if they moved to Adelaide, as this would create a 500km round trip, involving considerable time. In these circumstances, it was his preference that the mother commute, for her work to Adelaide from Town B, but the children not be subject to more time travelling.
Ms FF was well aware that the parties have an extremely strained parenting relationship. Whilst conceding that the determination of the issue of family violence was for the court, Ms FF noted that Ms Candeler had not raised issues to do with family violence, in the earlier proceedings and in her (Ms FF’s) view from her interview with each of the parents concerned, it was more probable than not that the significant conflict between the parties had its genesis in parental difference rather than an inherent imbalance of power between them.
Mr Candeler described X and Y as being compliant and agreeable children. They presented as somewhat downcast, in interview with Ms FF, which was in contrast to their mother’s bright and animated presentation, which seemed a little forced. Overall, Ms FF had little doubt that the children were emotionally affected by the current dispute between their parents.
In respect of her interview with X, who was nearly 13 at the time, Ms FF indicated as follows:
“X described the move to Suburb Q as not particularly onerous due to her experience of being ‘used to staying at different places already’, referring to spending significant time with her father in Town A. She noted she understood that move to be related to her mother’s desire to be ‘closer to Adelaide’ for ‘more opportunities’, which she specified as easier access to a youth choir both children used to be involved with.
X also described the move to Suburb P as ‘not a big deal’, and described the travel to and from Town B to school on a daily basis as ‘not that hard’. She struggled to speculate upon how she felt leaving the Town B area.
She spoke positively about her current school; her teachers, friends and her musical tuition at school. She noted that her current school did not have a choir but that in late 2019 a local community member who ran a choir engaged some school students in this.
X spoke positively about her engagement in church activities, but noted she was ‘used to’ not attending during time with her father.
She spoke positively about time with her father, of engaging in the local sports competition and engaging in active pursuits with him. She also reported positive relationships with Ms BB and her step-sisters. X confirmed she tended to see extended maternal family members when with her father.
…
With regard to her mother’s proposal for relocation and changing schools, X considered ‘I like the idea’, particularly the musical speciality of JJ School. She conceded leaving her current school would be ‘hard’, but she pointed out she could continue to see friends for playdates and sleepovers. It seemed X understood there to be a dispute over primary residence, as she noted ‘I would prefer to live with Mum during the week’ and reported she understood that at the last Court hearing it had been suggested that she ‘return to Town B or live with Dad’. She stated that her return to living in Town B had been ‘not bad...I stay 2 days with a friend’; …
She agreed it would be ‘further for Dad to travel’ to facilitate time spending. X spoke of wanting to maintain her engagement with her sporting activities in Town A, but also wanting to return on Sundays so as to attend church with her mother. With this in mind, she suggested the time spending either remain as currently ordered or that she spend time with her father weekly from Friday after school until Saturday evening or Sunday morning.
She agreed she was aware of both parties’ wishes, but did not consider either pressured her. Whilst she noted that the father tended not to talk about the dispute, Ms BB ‘brings it up, she makes it sound like Mum is wrong’ and X’s distress at this point increased as she spoke of the upset this caused both her and Y, and X’s efforts in trying to ‘defend’ her mother.”[13]
[13] See family report dated 23 March 2020 at [70] – [74] & [76] – [78]
With her interview with Ms FF, Y who was nearly 12 at the time, is reported as saying as follows:
“Whilst Y presented as more composed than her sister for the most part, she appeared to struggle to elaborate on many areas of discussion and tended to be less elaborative generally.
She considered that she ‘didn’t mind’ the move from Town B to Suburb Q, as it did not impact on her school or the time with her father. She understood the move was to facilitate her mother’s travel to work.
Further, Y stated she ‘didn’t mind’ the move to Adelaide, for the same reasons (it not impacting on school or her time with her father).
Whilst Y suggested she ‘would like to’ move schools to one in Adelaide, she was unable to elaborate upon why. She also indicated she ‘would love to’ move to Adelaide, and noted her mother had conveyed to her that she would be able to maintain her sporting activities in Town A and spend weekly weekend time with the father before returning for church on Sundays. She speculated there was ‘more opportunities’ in Adelaide, noting she wanted to become a teacher and also that she could attend DD for tutoring, although she was rather vague when speaking about what DD was about. She also related the proximity in Adelaide to the youth choir the children had previously been involved with, but noted she had also engaged with a choir at her current school.
She spoke positively about her friends and experience at school. She noted that she had been provided with group support, outside of the classroom, for her dyslexia which she had found ‘helpful’.
Y suggested she would feel ‘annoyed’ if compelled by the Court to not live in Adelaide. However, she also spoke of ‘not mind(ing)’ the Court ordered return to Town B, but was unable to elaborate. She did speak positively, along the same lines as X, about the active lifestyle she engaged in with her father and she also spoke positively about Ms BB initially. She also spoke positively about seeing her maternal grandparents with her father.
Similarly to X, Y became teary when noting Ms BB’s comments about the dispute, specifying that the ‘questions (Ms BB) asks (are) too hard’, but that her father did not tend to talk about the dispute.”[14]
[14] Ibid at [80]-[86]
Overall, it would appear to be Ms FF’s view that there were no significant risk factors, in either household and the children had a close and loving relationship with each of their parents and indeed with Ms BB. In this context, Ms FF approached the conundrum, which this case presents, on practical grounds, which centred on the degree of travel and the children’s obvious desire to maintain their engagement with Town A, particularly in terms of sports activities.
In all these circumstances, Ms FF provided the following evaluation of the family:
“… If the children lived in Adelaide and attended local schools and the time with the father remained the same, facilitating 3 weekends out of 4 would require a 5 hour roundtrip for the weekend, with this time likely reduced to at least Sunday night (or Saturday night/Sunday morning) with the father being unable to facilitate Monday morning handover at school in Adelaide. Even if the parties facilitated halfway handover point the children, most importantly, would still be subject to the same lengthy travel times.
Furthermore, although both children emphasised their enjoyment of engaging in sports in the Town A area, once subject to 5-hour roundtrips on a frequent basis it is possible that as they aged and placed more emphasis on engaging with friendships on weekends, the children will wish to avoid this travel time in favour of spending time with friends. If they remained in the Town B area, it would be easier for the father to facilitate their likely wish to attend parties/events with friends on weekends that would be less disruptive to their time with him. So as to reduce the frequency of travel, the Consultant considered reducing time with the father to fortnightly but the children’s relationship with the father was seen to be a positive one of a longstanding nature, and it would also disrupt their engagement with sports in Town A. Further and not insignificantly, the father is the children’s sole connection to their maternal extended family.
The information from the school suggested that Y’s learning needs were adequately met, with the absence of highly specific learning needs that the school did not have the resources or expertise to address. Furthermore, both children seemed involved with the school’s music resources, with various opportunities for engagement noted; there is also a local children’s choir with rehearsals based at the school (located via Google search for ‘children’s choirs Town B’). The children have also been settled into this school for length of time, with established friendships, community and learning supports. To sum, the Consultant did not consider that the children’s learning or extra-curricular needs would be better met by a transfer in schooling to Adelaide.
Therefore, the Consultant did not support the mother’s proposal to relocate the children to Adelaide nor to change the children’s current time with the father. Although it was noted that Ms Candeler’s employment currently was located in Adelaide, it is not highly uncommon for adults to commute between Adelaide and Town B for work.”[15]
[15] Ibid at [102] - [105]
To summarise, Ms FF recommended that the children continue to live in Town B, with their mother and spend time as previously ordered in 2013, with their father. She did not support any change to the existing allocation of parental responsibility, given the close relationship each parent had with the children. Essentially, Ms FF considered that, if Ms Candeler wished to work in Adelaide, it was reasonably open to her to commute there from Town B, where the children were well settled and happy.
If there can be any criticisms made of Ms FF’s report, they are likely to centre on the fact that she has not considered any issues relating to Ms Candeler’s entitlement to live where she chooses. I can well understand why Ms FF did not enter into this controversial issue, which is essentially legal in nature.
However, as I will indicate in due course, the court is not in a position to ignore a parent’s legitimate expectations, as to where they wish to live and work. In my view, this is the nub of this difficult case. It is particularly difficult for it to be resolved decisively in the context of interim hearing, given issues of procedural fairness to each of the parties concerned, but particularly Mr Candeler.

Current controversies

The father complains that the mother has not provided him with her address, in Town B, as ordered by the court on 1 November 2019. It is further his position that Ms Candeler has not properly abided by the court’s order to return the children’s place of residence to Town B and continues to remain fixated on achieving her long term goal, which is to relocate to Adelaide with the children.
In this context, he deposes that the children have told him that they are required to travel between Town B and Suburb P by bus. This entails waiting 25 minutes for the bus in Town B and then a further 25 minutes at Suburb W. Mr Candeler characterises this arrangement as highly unsatisfactory particularly given the recent development of the Covid19 crisis.
Essentially, it is the father’s position that the mother is maintaining a fiction that she has returned to live in Town B, when in reality she and the children are living in Suburb P and the mother is utilising the address of a friend, in Town B, as a subterfuge to defeat the court’s direction.
On the other hand, it is the mother’s position that she has, from time to time used her friend’s home, located at KK Street, Town B as her and the children’s accommodation in the town, as well as utilising Mr GG’s holiday home at Town HH.
In this context, she maintains her position that she is abiding by the terms of the order of 1 November 2019, particularly given that X and Y continue to attend G School and spend time with their father, in accordance with the pre-existing arrangement. She concedes that the children have travelled, by bus, to Adelaide, from time to time but disputes that it is as onerous for them as Mr Candeler alleges.
More significantly, Ms Candeler deposes that she has obtained a position, as an administrative assistant, in the Employer LL. Employer LL is near the Suburb P area and its office is in its main thoroughfare, MM Street.
It is the mother’s case that she is receiving an annual salary of approaching $74,000, which greatly assists her in the financial support of X and Y and which she is unlikely to be able to achieve a comparable salary, in Town B, even if she was inclined to want to live there.

As previously indicated, it remains her position that financial necessity dictates that she should pursue full-time employment, particularly given she alleges that Mr Candeler does not assist her greatly through the payment of child support and the best place for her to achieve financial security is in a larger urban setting.
In addition, as a matter of personal preference, she would like to live in Suburb P. She also asserts that the children will have better educational and extracurricular activities in Adelaide, as opposed to Town B, whilst at the same time maintaining a sufficient level of relationship with their father, if there is some re-configuration of the September 2013 orders.

Legal principles applicable

This is an interim hearing. It does not afford the court the opportunity to make concluded findings of fact based on an assessment of credit of the witness concerned. As previously indicated, this is the position so far as Ms FF is concerned and her recommendations.
All necessary findings of fact, to resolve the various controversies in the case, particularly issues to do with family violence and whether the mother has artfully attempted to subvert earlier court orders, will be resolved at a final hearing, which will provide more time and rigour to the court to examine the controversies arising in the case.
The Full Court has described the nature of the hearing, at the interim stage, as being significantly curtailed. In these circumstances, it has cautioned first instance courts, such as this one, about being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[16]
[16] See Goode & Goode (2006) FLC 93-286 at 80,901 [68]
Accordingly, at the interim stage, the court is directed to look to less contentious matters, such as any facts which are either agreed or obvious and issues which are not in dispute, particularly prior care arrangements and the current circumstances of the parties and any children concerned.
At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same. They are contained in Part VII of the Family Law Act 1975 (“the Act”).
In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration [see the Act at section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.
There are two primary considerations, which are as follows:
“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.”
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 the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
The expression meaningful is not specifically defined in the Act. It is an ordinary English word. In Mazorski v Albright[17] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.
[17] See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26]
The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives. As a verb, involve means to participate or share experience.
Accordingly, in my view, the rationale of Part VII of the Act is that children derive benefits from feeling that their parents are involved or participating in their lives. A child’s life is, by necessary definition, every activity in which the child takes part. Literally, it means the child’s existence, as an individual.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
In this particular case, sub-paragraphs (a);(b);(ca);(d);(e);(f);(i);(j); and (k) of section 60CC(3) are relevant. These subparagraphs deal with the following issues:
·The views of the child concerned, subject to considerations of maturity and influence;
·The nature of the child’s relationship with parents and significant other persons, including grandparents;
·The obligations to provide financial support;
·The effect of a proposed change on a child;
·Logistical issues relating to time spending arrangements;
·Capacity to provide for a child’s educational and emotional needs;
·The child’s age;
·The attitudes to the responsibilities of being a parent demonstrated by the parties concerned;
·Any family violence involving the child or a member of the child’s family;
·Any family violence order applicable;
·The subparagraph relevant to family violence orders, subparagraph (k) directs that the court can take into account the following matters arising from any applicable family violence order:
oThe nature of the order;
oThe circumstances in which the order was made;
oAny evidence admitted in proceedings for the order;
oAny findings made by the court in the relevant proceedings;
oAny other relevant matter.
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 any order which the court makes.
In general terms, subject to child protective concerns and the overall best interests of the children concerned, the objects of Part VII of the Act and the principles underlying them, place an emphasis on the co-involvement of parents, in the lives and development of their children.
As a consequence of this emphasis, the legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].
The pathway, which the court is mandated to follow in determining parenting matters, as delineated by the Full Court in Goode & Goode, can be summarised as follows:
·consider the section 60CC matters that are relevant, bearing in mind the truncated nature of an interim hearing;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or in an interim matter only, it is not considered “appropriate” for it to be applied;
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.
Boland J has indicated that this pathway was equally applicable to cases involving relocation issues. She said as follows:
“The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtaining such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.”[18]
[18] Morgan & Miles [2007] FamCA 1230 at [74]
In considering, in practical terms, what should follow from the application of the presumption, the High Court has indicated that the court should look to the “reality of the situation of the parents and the child.” [19]
[19] See MRR & GR (2010) 240 CLR 461 at [15]
In the earlier judgment I attempted, as best I could, to summarise the principles applicable to relocation cases, both at the interim and final hearing stages.[20] In addition, in AMS v AIF; AIF v AMS[21] Kirby J set out a number of general propositions in regards to relocation, which I will try to encapsulate, along with other relevant decisions.
[20] See Candeler & Candeler (supra) at [53] – [75]
[21] AMS v AIF; AIF v AMS (1999) FLC 92-852 at 86,041-86,043
In broad brush, the court is called upon to balance competing claims of right arising from different purposes of the Family Law Act as follows:
·Provide mechanism to enable separated partners and parents to live separate lives and disentangle their financial relationship;
·Provide a mechanism to ensure children have a meaningful level of relationship with each of their parents;
·It is preferable that issues of relocation not be determined at an interim stage, particularly against a background which has been engineered to favour one parent over the other;
·Rather, each case involving a relocation aspect requires its own careful and idiosyncratic analysis of factors for and against the relocation against the yardstick of the matters to be considered pursuant to section 60CC;
·No single factor will be dispositive of a relocation case;
·Although the child’s best interests are the paramount consideration in every case, it is not the only consideration for the court. The court is not in a position to ignore a parent’s legitimate aspirations as to where he or she wishes to live his or her life in future;
·There is no universal rule that requires separated parents to live in close proximity with one another to ensure an optimal level of relationship;
·Interference, by court order, in the life of a parent, which has the effect of curtailing their personal freedoms and aspirations, has the potential to lead to resentment on that parent’s part, which of itself is likely to have negative implications for the child concerned;
·However “the touchstone” remains the best interests of the child concerned and not the wishes and interests of parents;
·Courts in Australia have a more relaxed attitude to relocations within Australia, when compared to overseas relocations, because of the availability of reliable transport and telecommunication facilities within Australia and because of the homogeneity of social and cultural factors in this country;
·When considering a relocation application, the court will be required to assess the adequacy of new contact arrangements with the other parent concerned, and particularly whether those arrangements are in the best interests of the child concerned;
·The tyranny of distance arises by degree and will be impacted upon by the age of the child concerned; the nature and resilience of the relationship the child has with the parent concerned;[22]
·In many cases, children are able to maintain their relationships with significant people, including a parent, by less frequent periods of quality time spent in school holidays, which is supplemented by other forms of communication, such as telephone, webcam or letters;[23]
·What the legislation aspires to promote is a meaningful relationship, not an optimal relationship”; [24]
·The court retains the discretion to depart from the norm of shared parental responsibility, in appropriate cases.
[22] See B & B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,196
[23] See D and S V (2003) FLC 93-137 at 78, 280
[24] See Godfrey v Sanders (2007) 208 FLR 287 at 298 [36]

Principles applicable to the hearing of cases

Ms Candeler wishes her application to be able to move the children to live in inner suburban Adelaide to heard as quickly as possible, given the court earlier was of the view that her application should be expedited. It is her position that the issues which the case throws up – a further move of less than 100 kilometres from where the children currently live, given that they have already moved from where they and their father previously lived – are not of such moment or complexity that they cannot be dealt with electronically.
On the other hand, it is Mr Candeler’s position that an electronic trial will be unfair and prejudicial to him as it will not allow his counsel to expose Ms Candeler’s case and behaviour to a prerequisite level of scrutiny before the court required to enable it to discharge justice appropriately.
It is his case that Ms Candeler is manipulative and disingenuous and her true character will not be exposed unless his counsel is able to confront her directly in the witness box without the diluting effects of any electronic filter. Essentially, he contends that it will be unfair to him for the court to make the findings of credit which he wishes it to make, if the mother’s credit is assessed through an electronic process.
The fundamental obligation of the court is to ensure that the parties to the proceedings have a fair hearing according to law. Parties are entitled to present their cases as they see fit and subject the cases of their opponents to scrutiny through cross examination.
Given the importance of the proper administration of justice to the community as a whole, it is also fundamental that legal hearing be open to public scrutiny and so not occur behind closed doors, unless there is some compelling reason which justifies the closure of the court to groups other than the parties concerned and their legal representatives.
Section 97(1) of the Family Law Act 1975 directs that proceedings under the Act, conducted in the Federal Circuit Court are to occur in open court, although the court, pursuant to section 97(2) does have a discretion to close the court to exclude persons or classes of persons from the court.
In addition, Division 12A of Part VII of the Act – the part dealing with proceedings relating to children – delineates a number of principles which are to be applied in conducting child-related proceedings. Pursuant to section 69ZN, the principles are as follows:
·The court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings;
·The court is to actively direct, control and manage the conduct of proceedings involving children;
·The proceedings are to be conducted in a way that will safeguard the child and relevant parties from being subject to, or exposed to, abuse, neglect or family violence;
·The proceedings are to be conducted in a way that will promote cooperative and child-focussed parenting by the parties concerned;
·The proceedings are to be conducted without undue delay and with as little formality and legal technicality as possible.
In annunciating these principles, the legislature recognises that unduly protracted litigation, regarding children is usually not helpful to the children who are the subject of such litigation and delay the prospect of those who are involved in it developing any more cooperative or collaborative approach towards parenting. Indeed an acutely adversarial approach to legislation may entrench rather than reduce conflict against parents.
Section 97(3) of the Act also directs that the court should proceed without undue formality and ensure that proceedings are not protracted. These provisions recognise the fact that family law proceedings are to be characterised as matters of private law, relating as they do, to issues to do with the care of children and the division of private law.
Underpinning Ms Candeler’s position is the assumption that the court, whilst in the midst of the pandemic crisis, should not lose sight of the fact that private issues, germane to her, Mr Candeler, X and Y are at stake in the case and therefore it should fashion the appropriate mechanism to resolve the arising disputes concerning them in recognition of this fact.
In determining whether or not to depart from the traditional manner in which justice has previously been dispensed in Australia, including in the Federal Circuit Court, the court must consider two issues above all others, which can be summarised under the following headings:
·Open justice;
·Procedural fairness.
A court hearing, which is open to the scrutiny of all, is a public demonstration of the rule of law. The rule of law is exemplified by impartiality; demonstrable fairness in procedures; and the ability for the public to observe legal argument and the delivery of reasons. As is often stated, justice must be seen to be done to ensure public confidence in the administration of justice.
In the current matter, the issue in dispute between the parties is of significant moment, not only to Mr Candeler and Ms Candeler, but also other members of Mr Candeler’s family and perhaps, for all I know, other persons who are associated with the family, who live in the Town A area.

In theoretical terms, they could attend a hearing to be conducted via an electronic platform, if provided with contact details in respect of such a hearing. If they have a computer, or even a smartphone, they would be able to both see and observe the proceedings, as if they were in court.
In my view, it is likely to be in the interests of X and Y that the proceedings be resolved sooner rather than later. They are not likely to be assisted by living in a state of uncertainty, as to where they are to live and attend school, for a lengthy period of time, until uncertainty about the progression of the pandemic and its impact on the court’s work is clearer.
If the June hearing is adjourned, it may well be the case that it cannot be relisted until 2021. During this period, quite possibly, Ms Candeler and the children will be living in a state of limbo. This is not likely to be conducive to the parties making any progress in ameliorating their difficult parenting relationship.
Although an electronic trial is far from perfect, I am satisfied that it can satisfy the requirements of open justice and the stipulation in section 97 that proceedings be heard in open court, if interested parties are able to respond to an invitation to access the relevant electronic platform.
A more difficult issue is whether such a hearing will provide a fair hearing. Procedural fairness dictates that a party to proceedings is entitled to be given the opportunity to present any arguments, which he or she considers vital to the case concerned and is able to test evidence comprehensibly through the process of cross-examination. If a person is deprived of either of these opportunities, the relevant trial cannot be characterised as being a fair one and, as such, would represent an affront to the principles of justice.
It is Mr Candeler’s case that he will not be able to adequately cross-examine Ms Candeler via a video link and so expose what he asserts is her overall lack of credibility. As such, such a process is fundamentally unfair to him.
In Capic v Ford Motor Company of Australia Limited (Adjournment)[25] Perram J alluded to these problems, when he said as follows:
“My impression of those platforms [which include Microsoft Teams which is the platform proposed for the electronic hearing in the current matter] has been that I am staring at the witness from about one metre away and my perception of the witness’ facial expressions is much greater than it is in Court. What is different—and significant—is that the video-link technology tends to reduce the chemistry which may develop between counsel and the witness. This is allied with the general sense that there has been a reduction in formality in the proceedings. This is certainly so and is undesirable. To those problems may be added the difficulties that can arise when dealing with objections.”
[25] See Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 at [19]
Added difficulties are likely to arise, when the system fails unexpectedly. Such hearings are likely to take longer, in a virtual environment with which parties and the court itself is unfamiliar, which will increase rather than lessen expense. In addition, if a party is called upon to refer to a document, there may be logistical issues arising.
The rationale for requiring cross-examination, in ordinary circumstances, to take place in open court, was expressed by Buchanan J in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No3)[26]
“I am particularly troubled by the prospect (or possibility) that the cross-examination of an important witness might be rendered less effective by the limitations of video link technology or the absence of the witness from the courtroom. Although the days are gone when witnesses are expected to feel any sense of intimidation as an aid to telling the truth, there is no doubt in my mind that the requirement to give evidence on oath or affirmation in the (generally) solemn atmosphere of a courtroom in the presence of a judge, and to answer questions in cross-examination in the presence also of cross-examining counsel, has at least three potential benefits. It enhances the prospect that the witness will remain conscious of the nature and solemnity of the occasion and of his or her obligations. It affords the cross-examiner some reassurance that the gravity and immediacy of the moment, and of the supervising presence of the judge, are not lost on the witness and the cross-examination is not thereby rendered any less effective, to the possible prejudice of the cross-examining party. It provides the Court with a more satisfactory environment in which to assess the nature, quality and reliability of responses by a witness, both to questions and to the overall situation presented by the necessity to give evidence in court. To my mind there remains, even in the modern context, a certain ‘chemistry’ in oral interchanges in a courtroom, whether between a judge and counsel (or other representative) or between cross-examiner and witness. I would not wish too lightly to deprive a cross-examiner of that traditional forensic element in the exchange although, as the cases universally make clear, the Court must now, if asked to do so, balance the interests of a cross-examining party against claimed inconvenience both in individual cases and with respect to individual witnesses. Notwithstanding the increased availability and use of video link technology, in my view, a case must be made out for the use of video link evidence if it is opposed by an affected party.”
[26] See Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No3) (2009) 181 FCR 152 at 171 [78]
However, I am well aware that the existence of the pandemic and the uncertainty about when it will be controlled are factors which impact upon the balance of convenience between adopting the electronic mode of trial, with the imperfections relating to cross-examination which it may entail, and the prejudice arising from the proceedings being adjourned, perhaps for a reasonably lengthy period of time.
A further complicating factor has recently arisen. As previously indicated, two days were set aside for the hearing of the case. Ms Lewis, counsel for the father, has indicated that her client wishes to call a number of witnesses from the Town A area. In these circumstances, she believes that the trial may take longer than two days to complete. This is particularly so in the event that difficulties arise in the electronic platform concerned.
Finally, the father has not indicated to me how he wishes to proceed in respect of his contravention applications. These applications will not determine the final arrangements for the care of the two children concerned, particularly with which of their parents they will live. It has been stipulated that contravention proceedings, which have the potential to result in credibility findings against a party in subsequent proceedings, should be held prior to such final hearing.
If the court adopts this mechanism, this will further prolong the proceedings and make it less likely that they can be accommodated in the timeframe currently stipulated.

Conclusions

The first issue for the court is to determine, on an interim basis, parenting arrangements for X and Y, particularly whether their living arrangements should be changed from their mother to their father. Thereafter, the court needs to determine when and how the trial required should be held.
The first issue is to be determined by reference to the various factors delineated in section 60CC, bearing in mind the limited nature of the hearing available at the interim stage and the caveat that the court should avoid becoming involved in matters of controversy, which cannot be resolved on the basis of untested evidence.
In my assessment, this is not a case which turns on issues relating to the exposure of the children to family violence, neglect or abuse. The evidence indicates that, notwithstanding the parties poor and mistrustful relationship with one another, X and Y are much loved children, who are appropriately cared for.
I acknowledge that it is Mr Candeler’s position that the mother’s lifestyle, which he categorises as peripatetic, does have the potential to be emotionally destabilising for X and Y. In this context, he points to the incontrovertible fact that the children have lived in a number of addresses, over the past few months. These include Town B; Suburb Q; Town HH; Town B again; and Suburb P.
During this period, the evidence indicates the children have attended school as required; and spent time with their father, whilst engaging in their various extramural activities, as the September 2013 orders envisaged. In addition, whilst this might not be an optimal outcome for the children, there is no evidence arising from Ms FF’s report to indicate that they are suffering any psychological or emotional deficits as a consequence.
Ms FF regarded X and Y as being well adjusted and agreeable children. It is also apparent, from her report, that she considered that the children have and continue to maintain a meaningful level of relationship with both their father and mother, notwithstanding the controversy between them and the distance between Town A and Town B. This geographical context has been the reality of the children’s lives for the past eight years at least.
The move proposed by Ms Candeler adds approximately 70km between the locations of the parties’ respective homes. I appreciate that from Mr Candeler’s perspective, this modest increase tips the balance from what was marginally workable into a situation which is logistically unfeasible. Ultimately, this will be an issue for the final hearing.
However, at this juncture, it is not the mother’s case that her proposal, if implemented, can only result in the relationship between the father and children being abruptly severed. Mr Candeler will be able to interact with the children regularly during both school holidays and the school term. This may not be the best possible outcome, as he would perceive it, but it would not leach his meaningful level of relationship with X and Y of such intimacy and significance.
Given the ages of the two children concerned, their views, at final hearing, are likely to be given a significant level of moment by the court. X sees both some positives and negatives, in moving to Adelaide. Certainly, it cannot be said that she is emphatically opposed to it. Y seems more positively disposed towards the move but, like her older sister, has significant attachments in Town B.
As previously indicated, the nature of the children’s relationship with each of their parents, can only be regarded as significant. I also accept that they have significant attachments in the Town A area and with school friends and the general community in Town B. This is as a consequence of moving regularly between the two locations during their childhood to date.
It is a significant element of Ms Candeler’s case that it is she who has fulfilled the parental obligation to maintain X and Y. Mr Candeler asserts otherwise. As such, this is likely to be a matter for the final hearing.
However, if Ms Candeler’s position is ultimately vindicated, it is likely to be a significant factor in her favour. In such circumstances, it would seem axiomatic that it would represent a gross imposition on her entitlement to live how and where she chooses, if the court were to preclude her from being able to live near to where, on her case, she can earn a reliable income, pursuing employment, which is of interest to her.
Essentially, this is a case about practical issues. If the children move to live, with their father in Town A, whilst continuing to attend school in Town B, it will mean either a long bus drive for them or either Mr Candeler or Ms BB driving them from Town A to Town B each day. The drive in question is longer than the one between Town B and Adelaide. No one has informed me when the children would have to get up in the morning to complete such a journey or at what time they would return home to their father’s place of residence.
Ms Candeler has chosen to keep on her rented accommodation in suburban Adelaide, notwithstanding the court’s decision of 1 November 2019. This is her prerogative. However, she was directed to change the children’s residence back to the Town B area, pending final hearing. Her evidence is that she has lived with the children, in a variety of temporary settings, whilst awaiting the June hearing.
The father is highly critical of this decision, on her part and categorises it as demonstrating a compromised attitude, on Ms Candeler’s part, to the heavy responsibilities of being a parent. However, he personally is not in a position to suggest any form of accommodation, for Ms Candeler, in Town B and to a certain extent, for her it is a question of needs must.
Ms FF has recommended that the children remain living in Town B near to their current school and that Ms Candeler commute between Town B and Adelaide for her employment. From Ms FF’s perspective, this is the least destabilising outcome for the children. However, with all due respect to Ms FF, she has not proposed how this outcome will be achieved in practical terms.
Certainly, such an outcome will require the cooperation of Ms Candeler, who presents at the moment as being singularly unwilling to be cooperative. This is because she sees her future in Adelaide and, as such, feels disinclined to be told – either by the court or Mr Candeler – as to where she should live.
Although the court is entitled to be critical of the manner in which Ms Candeler has approached her issue of relocation – essentially attempted to present both the court and Mr Candeler with a fait accompli – her position is not devoid of merit. It is her case that she has supported the children’s relationship, with their father, and facilitated the September 2013 orders for a significant period of time and this axiomatically has led to the children having their current level of meaningful relationship with their father.
It is now her case that she wants to get on with the next stage of her life. The court is not in a position to ignore this aspiration. In addition, the relevant authorities require the court to look at the overall implications of the move, which cannot be characterised as one involving huge geographical implications. The proposed move, by Ms Candeler, is not one of such dimensions that it must automatically mean that the children and their father will not be able to interact with relative frequency.
Although X and Y know their father well and love him a great deal, the change currently proposed by Mr Candeler must be considered a major one. The children would go from living predominantly in their mother’s household to living with their father and Ms BB. It does not appear to be the case that the children are aware that such an outcome is currently being mooted and their reaction to it, if it is abruptly implemented, is unclear.
If the hearing is deferred for a significant period of time, as Mr Candeler seeks, such an outcome may be deeply destabilising for the children, particularly in terms of continuing their various musical activities, which take place in their mother’s household. In general terms, it is not usefully helpful for children that arrangements for their care are subject to sudden or precipitate change.
There are family violence proceedings in respect of the parties concerned. These are mutual in nature and memorialised by mutual undertakings not to abuse, assault or denigrate the other. It also seems to be the case that handovers and occasions when the parties must co-exist with one another, at such things as the side of a sports oval, are fraught with difficulties. At this juncture, the evidence does not indicate clearly that it is one party more than the other, who is driving these difficulties. As such, in my view, this is not a significant aspect of the case, at the present time.
Mr Candeler regards Ms Candeler as a selfish and self-absorbed parent because of her unwillingness to remain in Town B, as she agreed to do, in September of 2013. For her part, Ms Candeler regards Mr Candeler as being coercive and controlling by, in effect, dictating to her where she should live until presumably Y has reached the age of 18 years.
Other than this particular dispute, which as I indicated at the outset, is one which is based on competing views about values and aspirations, it would appear to be the case that each parent is devoted to ensuring that both children have a happy and well-resourced childhood. X and Y are properly cared for by both their father and mother. They are emphatically not neglected children.
In all these circumstances, in my view, at this interim stage, the section 60CC factors do not favour a change in the living arrangements for X and Y, notwithstanding my criticisms of Ms Candeler arising from what can only be categorised as a unilateral action in moving the children’s place of residence away from Town B, which she is likely to have anticipated would have precipitated a retributive reaction from Mr Candeler.
Ultimately, it will be the court, if called upon, to determine what the punishment should be for Ms Candeler. This will be delineated by the relevant legal provisions contained in Division 13A of Part VII. What is clear is that arrangements for the care of children should not be used as a mechanism to impose some form of punishment on a parent.
It may be the case that the court will determine that Ms Candeler has demonstrated a flawed attitude towards being a parent. However, this is but one consideration amongst many, which go to the court’s consideration of what is in a child’s best interests. It is not necessarily determinative of a change of living arrangements. In my view, the issue is not sufficient, at this interim stage, to warrant the change of residence proposed by Mr Candeler.
At an earlier stage, I declined to grant Ms Candeler’s application to relocate the children’s place of residence from Town B to Adelaide. Since that time, Ms FF has recommended in favour of the children remaining in that location and, if Ms Candeler wishes to work in Adelaide, has suggested that she can commute.
Clearly this recommendation is unpalatable to Ms Candeler and offends her perception that she should be entitled to live where she wishes, free from interference from Mr Candeler. She also sees more positives, both for herself and the children of a home and school in Adelaide.
These are issues for the final hearing. I decline to revisit the earlier order. To a certain extent, in the short term, Ms Candeler must live with the consequences of her own precipitate and unilateral actions, regardless of the practical difficulties and inconveniences arising.
The current unsatisfactory nature of the current arrangement militates in favour of the expedited hearing going ahead as previously scheduled notwithstanding Mr Candeler’s perception that it will be unfair to him. One of the tensions of his position is that he was content to pursue an application involving a dramatic change for the children, at an interim stage, but otherwise opposes expedition.
To my mind that smacks, to some degree of tactics. Given the directions in Division 12A the court should avoid being influenced by the tactical manoeuvring of parties in child related proceedings. Having said this, I am also very well aware that Ms Candeler herself has been driven by her own brand of tactical endeavours. Her actions to date do not indicate she has clean hands.
Regrettably, the heat and rancour in this case are extreme and this has been the case for many years. In my view, it will be best for the children if the issue is resolved sooner rather than later. At the end of these long deliberations, I must remain focussed on what the case is really about. The move from Town B to Adelaide is not a huge one. It will not result in the children losing their relationship with their father.

Whatever is the outcome of the case, X and Y will remain loved and well-parented children. Sadly, their parents are also likely to remain at loggerheads with one another. Although I accept that an electronic trial is different to one taking place in the courtroom, which provides its own chemistry and theatre, particularly in the form of the direct interactions between counsel and witness and the presiding judicial officer, an electronic trial does allow evidence to be gathered and assessed.
The difference of course is that an electronic process runs the risk of being alienating for those involved or not subject to the same level of gravitas arising from the formal court setting. There is a reduction of body language, which can be best expressed as the conscious and unconscious movements and postures by which attitudes and feelings are communicated.
The parties in this case know each other extremely well. The issues arising between them are emotionally laden but not intellectually complex. There are few issues of real credit between them – rather they have fundamentally different views as to how to be a good parent and the benefits of town versus country. Neither of them have lied about their preferences, although as with many human beings they are not beyond being underhanded to achieve their preferences.
The issue regarding the payment of child support and the costs of the children’s various extracurricular activities should be readily ascertainable from the Agency and the provision of invoices. Those documents can be circulated prior to the trial and their content will speak for themselves.
In all the circumstances, balancing the pros and cons of the situation, I am satisfied that there can be a fair trial, if the matter proceeds electronically on 1 & 2 June 2020, as previously scheduled. It would not be in the interests of X and Y for them to keep living in a form of limbo, for an extended period of time, in respect of how their future is to unfold.
The final issue is the length of the hearing. Ms Lewis has indicated that her client wishes to call a number of as yet unspecified witnesses. How salient those witnesses will be to the central issues in the case is obviously unclear to me. I do know that individuals called to extoll the virtues of Town A and the moral failings of Ms Candeler as a person are not likely to be helpful, given the main issues in the case, as I have attempted to indicate in these lengthy reasons for judgment, are clear to me.
I will confirm the hearing, by Microsoft teams, on 1 & 2 June 2020. I will continue the existing interim arrangements. Each party is directed to file all further affidavits, including any relevant financial records relating to child support on or before 25 May 2020.
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 eighty one (181) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Date: 11 May 2020

[2020] FCCA 1095

11 May 2020

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Remedies