CANDELER & CANDELER (No.3)

[2020] FCCA 1947

FEDERAL CIRCUIT COURT OF AUSTRALIA

CANDELER & CANDELER (No.3) [2020] FCCA 1947

Catchwords:
FAMILY LAW – Application for final parenting orders – relocation issues – mother wishes to relocate to Adelaide after previous orders directed her to live with the children in Town B – evaluation of several proposals for care arrangements for the children – meaningful relationship – equal shared parental responsibility – considerations of practicality – matters to be considered – best interests.

Legislation:

Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 64B,

65C, 65D, 65DAA, 65DAE

Cases cited:

A v A:Relocation approach (2000) FLC 93,035

Adamson & Adamson (2014) FLC 93-622

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

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

B v B (2006) FamCA 1207

Bartel & Schmucker (No 3) [2012] FamCA 1094

Bright v Bright (1995) FLC 92-570

C & S [1998] FamCA 66

CDJ v VAJ (1998) FLC 92-828

Candeler & Candeler (No.2) [2020] FCCA 1095

Fragomelli & Fragomelli (1993) FLC 92-393

Godfrey v Saunders (2008) FLR 287

Goode & Goode (2006) FLC 93-286

H v W (1995) FLC 92-598

In the Marriage of McEnearney (1980) FLC 90-866

Mazorski v Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

Morgan & Miles [2007] FamCA 1230

MRR v GR (2010) 240 CLR 461

R & R: Children’s Wishes (1999) 25 Fam LR 712

Rice & Asplund (1979) FLC 90-725

Russell & Russell & Anor [2009] FamCA 28

Sampson & Hartnett (No 10) (2007) FLC 93-350

SPS & PLS [2008] FamCAFC 16

Taylor & Barker (2007) FLC 93-345

U v U (2002) FLC 93-112

Applicant: MR CANDELER

Respondent: MS CANDELER

File Number: ADC 4912 of 2012

Judgment of: Judge Brown

Hearing dates: 1, 2 & 3 June 2020

Date of Last Submission: 3 June 2020

Delivered at: Adelaide

Delivered on: 17 July 2020

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: Not applicable

Counsel for the Respondent: In person

Solicitors for the Respondent: Not applicable

ORDERS

1. All previous parenting orders be discharged.

2. The parties have equal shared parental responsibility for the children X born in 2007 and Y born in 2008 (‘the children’).

3. In the exercise of this equal shared parental responsibility for the children the parties are to consult with each other in respect of all major long term decisions pertaining to the children, which include but are not limited to, issues concerning the following:

   (a)The children’s education (both current and future);

   (b)The children’s religious and cultural upbringing;

   (c)The children’s health and any special needs;

   (d)The children’s names; and

   (e)Any changes to the children’s living arrangement, which significantly interferes with the operation of these orders, particularly with the specific arrangements for the children to spend time with each parent.

4. The father and mother shall:

   (a)Keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;

   (b)Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the children and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the children; and

   (c)Inform the other parent as soon as is reasonably practical of any medical issue, significant health issue or significant illness or injury suffered by the children.  This order authorises any treating medical practitioner to release details of the children’s medical condition and/or injury to the other parent. 

5. The parents authorise by this order, the school, attended by the children to give each parent information about the children’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the children (at the expense of the parent requesting same). 

6. Each parent is at liberty to attend at the children’s school or any location which they attend, from time to time, to engage in extra-curricular activities, including sports and musical and choral performances, for all events that are routinely attended by parents, including parent-teacher interviews, sports days and concerts. 

7. The children live with the mother.

8. The mother is authorised by this order to live with the children in suburban Adelaide and enrol the children at the JJ School and V School respectively.

9. The child spend time with the father as follows:

   (a)From 6.00 pm on every second Friday until 6:00pm the following Sunday during the school term.  This shall be extended in the event the children have a pupil free day or a public holiday falls on either side of the weekend and in the event a public holiday or pupil free day falls on either side of the mother's weekend then the mother's weekend time shall be suspended until the following weekend and the father shall have that weekend in lieu.

   (b)For the first 10 nights of the April, July and October school holidays, from midday on the first Saturday of the holiday until 5.00pm on the second Monday of the holidays.

   (c)Week about during the Christmas school holidays with handover to occur on each Friday at 5.00pm at Town NN or at such other time or location as may be agreed between the parties and, in default of agreement, commencing in the first week of the holidays.

10. Unless the parties agree otherwise the habitual location of handover will be at Town NN however the parties are authorised to change the location of the handover to a place to be agreed between them including to each of the children’s schools from time to time.

11. The parties are at liberty to agree different commencement times in respect of school holiday time to reflect issues of logistics and convenience and to otherwise vary the times the father spends with the children as they agree from time to time.

Special Occasions

1. The children shall be in the care of the father from 12 noon on 23 December each year until 12 noon on 25 December each year PROVIDED THAT the children shall be in the mother’s care each year from 12 noon Christmas Day to 12 noon on 27 December. 

2. The children shall be in the mother’s care from 6.00pm Easter Saturday to 6.00pm Easter Monday PROVIDED THAT the children shall be in the father’s care from the conclusion of school Maundy Thursday (or 5.00pm if a non-school day) until 6.00pm Easter Saturday. 

3. The children shall spend time with the party who does not have care of them on the following occasions as follows:

   (a)On the children’s birthdays:

   (i)If a school day, for two hours as agreed between the parties in writing;

   (ii)If a non-school day, for four hours as agreed between the parties in writing and in default of agreement, from 2.00pm until 6.00pm.

   (b)On Mother’s Day and Father’s Day:

   (i)The parties shall exchange weekends to ensure that the children spend the whole of the Mother’s Day weekend with the mother and the whole of the Father’s Day weekend with the father.

4. The parties shall each have telephone, Skype and FaceTime communication with the children during the time in which the children are not in their care on Tuesdays and Thursdays PROVIDED THAT the father shall provide the appropriate technology for such communication.

5. The mother is restrained and an injunction granted restraining her from:

   (a)Changing the children's residence from within a 30 kilometre radius of Adelaide without the written consent of the other.

   (b)Changing the children's school without the written consent of the other.

6. The parties shall communicate via email, text message or telephone and shall keep each other informed of all relevant information concerning the children’s welfare.

7. The parties are restrained and an injunction is granted restraining each of them from removing the children from the Commonwealth of Australia without the written permission of the other.

8. The parties shall discuss and reach agreement with each other in respect of extracurricular activities involving the children and the impact it may have on the other party’s time.

9. Within 28 days of today’s date, should the father wish to pursue his contravention applications, he shall apply to chambers for that aspect of the proceedings to be transferred to a Judge other than Judge Brown to be heard. 

10. If the father does not make an application as outlined in order (20) hereof, within 28 days, all applications will be dismissed as finalised.

IT IS NOTED that publication of this judgment under the pseudonym Candeler & Candeler (No.3) 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

1. These reasons for judgment are intended to be read in conjunction with some earlier reasons published a few weeks ago.[1]  Those reasons related to an earlier interim determination and whether, given the restrictions on court usage arising from the Covid-19 pandemic crisis, there should be an electronic hearing of the parties’ competing final applications. 

   [1]  See Candeler & Candeler (No.2) [2012] FCCA 1095

2. Ultimately, for the reasons provided earlier, I decided that there could be such an electronic final hearing notwithstanding the objections of one of the parties concerned.  I also decided that there should not be a change in respect of the then existing arrangements for the care and residence of the children concerned but given the nature of the applications involved, the hearing should continue to proceed, with the degree of expedition earlier assigned to it, prior to the pandemic emergency. 

3. The central issue in the case concerns what lawyers characterise as a relocation case.  Relocation cases exist when one parent, very often for compelling personal reasons, wishes to move, with children, away from the other parent concerned and the move envisaged has implications for the frequency and quality of child/parent interactions with the parent proposed to be left behind.

4. The relocation issues arising in this case relate to a relatively confined geographical context – a distance of around 200 kilometres – which will not automatically rule out weekend time, during school terms.  However, notwithstanding this confinement the case remains highly vexed and controversial and has been bitterly contested. 

5. In many ways, the fact that the distances involved, when one considers the geographical size of continental Australia, are relatively modest, counter-intuitively makes the matter more difficult and more vexed.  This is because there are more potential outcomes available and combinations thereof for the court. 

6. The geographical issues in the case and their historical origin, in the parties’ relationship, are set out in the earlier judgment and require only a brief recapitulation in these reasons.  Significantly, those facts also raise issues to do with the efficacy and degree of finality of earlier orders, made in September 2013, particularly in the form of an injunction, which prohibited the move of the relevant children from a particular geographical locale.

7. The parties are Mr Candeler “the father” and Ms Candeler “the mother”.  They are the parents of X aged thirteen and Y, who will be twelve in 2020.  By all accounts, including those provided by the court appointed expert, X and Y are delightful and well-adjusted children. 

8. Clearly, the fact that X and Y, each of whom has not always had an easy run in life – X had a serious neurological illness in 2015 and Y suffers from dyslexia – are so well-adjusted can only be attributable to the parenting, which they have received, up to this stage.

9. As this evidence will ultimately reveal, this parenting has been extensive from both Mr Candeler and Ms Candeler.  However, in my view, it has been clearly quite different in its focus and quality as a consequence of the quite different personalities of the parties concerned.  To use a somewhat clichéd metaphor, Mr Candeler and Ms Candeler are chalk and cheese.

10. Again, in my view, these differences between the parties, extreme in their nature and liable to precipitate extreme and endemic conflict between them, nonetheless bestow complementary benefits on X and Y. 

11. Essentially, both Mr Candeler and Ms Candeler have much to offer X and Y, but what they do offer is different in nature but likely to be equally important for the children’s sense of identity and development as they mature into adulthood.  The children are a product of each of their parents.  Again, considerations of this type add to the complexity of the case concerned.

12. Without wishing to be unduly familiar or to risk making gratuitous judgements in respect of the parties concerned, Ms Candeler is somewhat abrasive, impulsive and self-assured.  When asked to describe herself, she described herself as “a leader”, who viewed life as “not a dress rehearsal”.  In her evidence, she further acknowledged that she had the potential to rub people up the wrong way.  She would see her greatest aptitude being that she takes things on and is open to new challenges, even difficult ones. 

13. For his part, Mr Candeler would characterise these attributes as resulting in Ms Candeler being somewhat headstrong and selfish and leading her to make decisions which are often ill-considered and misconceived.  By nature, he is a dour, introspective and somewhat conservative person.  He is not a person who propounds change for the sake of it.  In his words, he is a “slower, more cautious and stay at home” person, when compared to Ms Candeler.

14. Again, without wishing to be disrespectful, one attribute that the parties do share is stubbornness and a belief that their view as to what is likely to be best for X and Y, is superior to the others.  One of the most significant areas of controversy, in this regard, centres on the issue of lifestyle. 

15. For obvious reasons, it is inappropriate for me to bring any personal preferences in terms of whether a rural life is superior to a metropolitan or suburban one for children to grow up in.  However, necessarily given the manner in which each party has presented their respective case, I cannot ignore this issue and will have to attempt to de-nature any biases, both conscious and unconscious, I may have in respect of it.

16. Mr Candeler lives in Town A, in the Region D of South Australia, where he is employed, as a tradesman, by a large company – Employer OO.  He lives in a house on a farm.  He has had the job for a significant period of time and is well settled in Town A.  He has no plans to move.

17. In circumstances which are highly controversial, Ms Candeler currently lives in Suburb P, an inner suburb of Adelaide, where she is employed as a public servant in the Employer LL.  From her perspective, this is an excellent and well paid job, which she is lucky to have and which she acquired through her own efforts and acumen. 

18. Both parties originated in rural South Australia.  The father was born in Town PP but moved to Town A as a teenager.  The mother grew up in Town C, a rural hamlet 70km west of Town A, where her parents still have a farm.  Town C is 37km east of Town B. 

19. As a consequence, Ms Candeler has strong connections and many friends in Town B.  After school, she trained to become a public servant and her first posting was in Town B.  Currently, X and Y attend school in Town B – G School – and have done so since commencing primary school. 

20. The parties married, at Town C, in 2004.  During their marriage, they lived in Town A in the home currently occupied by Mr Candeler.  They finally separated in May of 2012, at which stage, the mother and children moved into a cottage nearby to the former family home.  Mr Candeler saw the children regularly but aspired to a shared care regime, based in Town A. 

21. This option was not palatable to Ms Candeler.  She felt, with the end of the parties’ marriage, there was nothing for her in Town A.  In this context, from Mr Candeler’s perspective, neither for the first nor the last time, she took things into her own hands and rode rough shot over his feelings and aspirations for the children and unilaterally moved them away from him and Town A.

22. The post-separation parenting arrangements came to an end towards the end of 2012, when X was about five and a half and due to start primary school the following year.  At this stage, the mother announced to the father that she and the children would be moving to Town B, where she (Ms Candeler) had purchased a house and had arranged for X to start at G School and for Y to attend at a related private kindergarten, which in Ms Candeler’s estimation, were greatly superior educational institutions to anything then available in Town A.

23. Mr Candeler made it abundantly clear that he did not agree to X and Y moving away from Town A.  Ms Candeler moved anyway.  This led to the first tranche of bitterly contested proceedings, between the parties, which were ultimately compromised by them, in September of 2013, part way through a final hearing, over which I presided. 

24. I was content to make the orders agreed upon.  However, at the time, I suspected that they represented an uneasy truce between the parties and each was likely to consider that they had given up too much in reaching the compromise. 

25. In particular, it is my impression that Mr Candeler remains somewhat disgruntled that Ms Candeler had got away with her unilateral relocation of the children and has never been properly penalised for it.  This attitude has coloured his approach to the current proceedings and what he regards as a subsequent and even more flagrant unilateral relocation arising from the mother’s more recent move – he asserts with both X and Y; the mother asserts otherwise; – from Town B to Suburb P.

26. The final orders made in 2013 provided for the children to live, with their mother, in Town B and spend two weekends, out of every three, during term time, with their father, in Town A and for longer proportions of each short school holiday period, other than the end of year school holiday, which was divided equally.

27. The weekend time, in school terms, was to begin after school on Friday and end at the commencement of school the following Monday.  Handovers, which could not be accommodated at school, were to occur at Town NN, which is approximately mid-way between Town B and Town A.  It is 132 kilometres between the two locations.

28. As a consequence of my own hasty back of an envelope calculations, I calculate that the children spend 147 nights per annum in the care of their father, pursuant to this agreed regime.  It equates to about 40% of the year as a whole.[2]

    [2]  This is eight weekends per twelve week term, which equates to 24 nights per term, together with 10 nights each short school holiday – three blocks of ten days – and 21 days in the summer holidays.

29. The parties also agreed that they should have equal shared parental responsibility for X and Y [see Family Law Act 1975 at section 61DA]. As a consequence, it is clear to me that the orders provided for the children to spend substantial and significant time with each of their parents, as defined by the Act [see section 65DAA(3)].

30. The regime also ensured that Mr Candeler was able to spend time with the children, on special occasions, such as Christmas and Easter; their birthdays; regular public holidays, which fell on Mondays following weekends allocated to him; and on Father’s Day; as well as obviously for extended periods during school holidays.

31. Although not what he had originally sought, the regime also allowed Mr Candeler to have some sense that he was involved in X and Y’s daily routine and education.  In this context, he regularly attended at G School, when he dropped off and picked up the children at their school.  In addition, he was able to have both formal and informal contact with the children’s teachers. 

1. More significantly, X and Y were able to maintain a sense of connection to the Town A area.  They play sports, for Town A, in the Region D Sports Association, although prior to the pandemic crisis, they attended training, with other teams, in Town B.  They also see each set of grandparents regularly, whilst in the care of their father. 

2. Mr and Mrs Candeler Senior own a business in Town A.  The mother’s parents, Mr M and Mrs N continue to farm at Town C.  Sadly, as was the case in 2012, the mother remains estranged from her parents, each of whom has filed an affidavit in these proceedings on behalf of the father. 

3. The contents of these affidavits are directed to ensuring that the court is aware of Mr M and Mrs N’s strong conviction that it is essential for the welfare of X and Y that they continue to spend as much time in the Town A area as possible, with their father, who will ensure the children maintain a sense of connection to their maternal family, who have farmed at Town C for around 50 years at least, whilst the mother will not. 

4. In this context, Mrs N has deposed as follows:

   “When our daughter Ms Candeler estranged herself from the family, she made it clear that if we as a family wished to still be a part of the children’s lives we had to do so in Mr Candeler’s time.  Ms Candeler has stated that she will not facilitate time for us to spend with the girls.  Ms Candeler no longer has any interactions with any of our family members.”[3]

   [3]  See affidavit of Mrs N filed 27 May 2020 at [15]

5. In her affidavit, Mrs N deposes to the many varied activities, which she and her husband take part in with the children.  These include farming activities; craft and cooking; and music.  The implication of her evidence being that the farm is central to X and Y’s sense of identity. 

6. For his part, Mr M has deposed as follows:

   “Mr Candeler has always been respectful towards my wife, myself and our extended family.  Mr Candeler interacts very well with my three sons and their wives to which the girls observe all the wider relations between the family.  I am incredibly grateful that Mr Candeler has always maintained our grandchildren’s relationship with our family.”[4]

   [4]  See affidavit of Mr M filed 27 May 2020 at [12]

7. The father has re-partnered and is engaged to be married.  His current partner, Ms BB has two children from an earlier relationship.  They are QQ aged 10 and RR aged 8.  It is Mr Candeler’s evidence that X and Y share a close relationship with QQ and RR and the four children regard themselves as a blended family. 

8. In his affidavit, Mr Candeler Senior has deposed in equally positive tones to that of the maternal grandparents as to the children’s sense of connection to their extended paternal family.  He deposes as follows:

   “My wife has, on numerous occasions, attended to the mending or alterations of school uniforms for the children.  We have been able to attend many school based activities at G School in Town B over the time, to which the children show delight and enthusiasm.  The travel to Town B for this is not unworkable for us on most occasions.

   The children’s interactions with our family is always positively, plainly enjoyable and a lot of fun.  We see the children most weekends that they are in the father’s care.  The father and Ms BB also facilitate interaction with the maternal grandparents and their family.  We are able to one way or another attend junior sporting activities involving the children in the Region D area.  The children thrive on this. 

   I say that the father, Ms BB, X, Y and Ms BB’s children QQ and RR are a loving and caring family unit under which the children thrive and that they are well liked and respected in the Town A area.”[5]

   [5]  See affidavit of Mr SS filed 27 May 2020 at [5]–[8]

9. Accordingly, the fundamental underpinning of Mr Candeler’s position, in this case, is that X and Y are firmly ensconced in the Town A district and should be approached – vis-a-vis arrangements for their care – as if they are country kids, a large proportion of whose lives have been spent in Town A, particularly so far as arrangements for their school and to maintain bonds with their extended family are concerned. 

10. No doubt, it was considerations of this kind, which led to a central aspect of the agreed parenting arrangements formalised in the court’s order of September 2013.  This was an injunction, which prevented Ms Candeler from moving the children’s primary place of residence outside of a 30km radius of Town B or from changing the children’s school.

11. The order was expressed as a final order and, from Mr Candeler’s perspective, so it was.  During the course of his evidence in the current proceedings he indicated that the first round of proceedings, culminating in the orders of September 2013, cost him around $50,000.00 in legal fees, which is a sum he could ill afford. 

12. He has spent a further sum of $20,000.00 pursuing the current matter, whilst Ms Candeler has been self-represented throughout.  This, along with other features in the case, has added to Mr Candeler’s sense of resentment. I can understand why this should be so.  Why would he have spent this large sum of money, to gain the injunction which he has, if Ms Candeler could have carte blanche to break the order at a later stage?

13. Ms Candeler is an intelligent and articulate person, who is not easily overborne.  It is her case that she steadfastly remained in Town B, with X and Y, between 2013 and 2019, a period of over six years, during which time she has ensured that the children have maintained and enhanced their relationship with their father and others significant to him, whilst at the same time, she has done the hard yards of providing primary care for the children. 

14. In this context, she alone has met the not insignificant costs of their school fees at G School; paid for their uniforms and equipment; funded other curricular activities in which they have engaged; and necessarily been more financial responsible for the children’s day to day financial needs, given the fact that they have lived more with her than their father. 

15. In addition, it is her case that she nursed X and then home schooled her, in 2015, when she (X) was diagnosed with Chiari Malformation, which is a congenital condition in which a part of the brain pushes down onto the spinal cord.  In X’s case, this led to her near drowning, when she became unconscious whilst swimming.  This led to medical examination and tests resulting in the discovery of the condition.  It required neurosurgery to correct. 

16. In addition, Ms Candeler contends that it is she alone who has attended to Y’s special needs, relating to her dyslexia through the provision of a tutor and other educational support, through DD Classes, which is a school for children with learning disabilities, which is based in suburban Adelaide.  Again, it is Ms Candeler’s case that she has organised and paid for these things, which are important for Y’s educational best interests. 

17. Ms Candeler sees herself as something of a trailblazer and a role model for women.  She is proud of the fact that she was able to be able to be a successful public servant, which was not a usual position for a woman from rural South Australia, and then to secure positions in the field of public service, which led her to become a foster parent and then pursue other community based interests. 

18. Mr Candeler would characterise Ms Candeler as being a person who bites off more than she can chew and who is inclined to make ill-considered and precipitate decisions without thinking of the probable consequences, particularly for others.  On the other hand, he would see himself as predictable and reliable in his conduct, as exemplified by his consistent employment in Town A in contrast to Ms Candeler, who has had many jobs.

19. In 2015, Ms Candeler secured a position with a rural based employer, which enabled her to continue to live in Town B.  However, with the medical crisis surrounding X, she was forced to give up this position.  X’s illness was alarming for all concerned and she was an invalid for a large part of the 2015 school year, during which Ms Candeler home schooled her.  Ultimately, this led to financial pressures and she was forced to sell her home in Town B and live in rented accommodation. 

20. More recently again, Ms Candeler has reinvented herself and has become a self-described life coach.  She is also a committed Christian, who is a member of the Church TT in Adelaide, which she attends regularly with X and Y.  Part of her case is that she wants to be closer to her church and for the children to be able to take part in its Sunday activities.

21. Following X’s convalescence and extended period of home schooling, Ms Candeler obtained employment with an organisation, called UU Organisation, which provides services and support.  The mother was providing these services and life coaching to clients in Town B.  However, her contract was not renewed in 2018 and she embarked on a period of self-employment. 

22. This continued until early 2019, when she commenced working for the Employer VV, which is based in the Adelaide suburb of Suburb WW.  This connection, in turn, led to her obtaining the position with Employer LL.  It has also coincided with the crisis and controversy which has enveloped the family and led to the current proceedings.

23. As previously indicated, financial hardship compelled Ms Candeler to sell the home, which she had purchased for herself, when she first moved to Town B in late 2012.  Following the sale of the property, I accept that she has had a variety of jobs and has also devoted herself to the care of X for significant periods of time. 

24. I also accept that she was disappointed that her role with UU Organisation did not work out, as she had hoped.  From her perspective, she was wrongly dismissed, but Mr Candeler would attribute her dismissal to her combative personality.  It is not necessary for me to resolve this controversy in the scope of the present proceedings.

25. It is in the context of this history of job insecurity and uncertain accommodation that Ms Candeler elected to move into shared accommodation, with the children, in Suburb Q, which is in the Region U, approximately 61kms to the west of Town B and therefore further away from Town A, in April of 2019. 

26. Mr Candeler learnt of this move shortly afterwards.  The children were able to continue attending school at G School, whilst Ms Candeler was able to commute to Adelaide for her work.  When Mr Candeler learnt of the move, which in raw terms represented a potential 31km transgression of the September 2013 order, he immediately commenced contravention proceedings against Ms Candeler.

27. From Mr Candeler’s perspective, the move clearly breached the earlier injunction and was done unilaterally and clandestinely.  It led to him commencing contravention proceedings against Ms Candeler in the expectation that the court would enforce its order and, if necessary, penalise Ms Candeler.

28. Initially, I was troubled by the relatively trivial nature of the breach and the fact that the children were still at their school and spending time with their father as envisaged by the earlier order.  There is a well-known legal maxim – de minibus non curat lex – the law should not concern itself with trivialities.

29. I acknowledge that Mr Candeler did not see it as such and would characterise the move as being the thin end of the wedge and if the court was prepared to turn a blind eye to such a breach, it would only be a matter of time before Ms Candeler attempted to push the envelope further.

30. From Ms Candeler’s perspective, the vehemence with which Mr Candeler responded to this incidence of crisis in her life – with contravention proceedings – is indicative of his coercive and controlling nature.  She is resentful that, although the parties separated over six years ago, Mr Candeler is still in a position to dictate where she should live and what she should do and bring quasi-criminal proceedings against her in order to do so.

31. During the current round of proceedings, it is Ms Candeler’s evidence that the accommodation at Suburb Q did not work out for her because her landlord required the property for another purpose and so she had to move again, at short notice, which had not been her original intention.  It is clearly her current preference that she and the children should be able to live in inner suburban Adelaide.

32. It was in this context that Ms Candeler secured rented accommodation for herself in Suburb P.  This occurred in late August of 2019 but did not result in either X or Y changing their school from G School, Town B.  Ms Candeler informed Mr Candeler directly of the move both formally through a solicitor and then personally.  She did not feel inclined to provide the actual address in Suburb P because, on her case, she perceived it would enable Mr Candeler to intimidate her further.

33. As is clear from the most recent preceding judgment, there exists significant controversy as to how completely Ms Candeler and the children have severed their connection with the Town B area and what are the implications of this for the severity of any established contravention of the September 2013 orders, if this aspect of the case moves forward. 

34. It is Mr Candeler’s position that it is not likely to be in the children’s best interests that they are, in effect, living out of suitcases, whilst moving from address to address on a short term basis without a fixed place of abode.  I agree with this assessment, which is primarily why I have focussed on the substantive issue in dispute between the parties – where should the children primarily live – rather than on the potential contravention aspects of the case.

35. Essentially, it is Ms Candeler’s position that she and the children have lived, from time to time, in a friend’s home in Town B or in the holiday home of her new companion, at Town HH.  These arrangements have allowed the children to continue at G School and for her to pursue her employment in Adelaide and have meant that she has not actually breached the injunction in any seriously contumacious way.  She wishes there to be a position of clarity, for all concerned, from the start of Term 3 in 2020, which is scheduled to commence on 20 July – a state of affairs which adds pressure to all concerned, including the court.

36. Mr Candeler doubts much of the veracity of Ms Candeler’s evidence, regarding the move to Suburb P, which to a certain extent was overtaken by the pandemic crisis, which resulted in the children being able to be home schooled, which took place from Suburb P.  What, however, is clear, is that the children’s enrolment at G School has not been broken and they have spent all the time stipulated, in the September 2013 orders, with their father. 

37. It is clear from how Mr Candeler elected to approach these developments that he sees them in black and white terms.  From his perspective, the order of September 2013 is final and the mother has clearly broken its provisions, if not its intentions, by moving unilaterally yet again.  He asserts that the mother’s breach is rendered much more serious by reason of the fact that she should have known the score from the earlier proceedings.

38. From his perspective, he would not have compromised the earlier proceedings, if he had believed that there was any possibility of X and Y moving further away from Town A.  It is his case that Ms Candeler was well aware of what his position was and it is disingenuous and manipulative, on her part, to now attempt to walk away from what she agreed.

39. In these circumstances, it is his view that the court’s responsibility is to enforce its orders and, if necessary, punish Ms Candeler for her conduct in knowingly breaching them.  In his final submissions to me, he indicated the only reason the parties were back in court was because of the mother’s unreasonable behaviour.

40. From Ms Candeler’s perspective, it is artificial to categorise any final family law order as being absolute in its finality.  It is her position that, in all matters to do with the care and parenting of children, their best interests are the paramount or most important consideration.  Lawyers characterise this concept as the paramountcy principle.

41. In this context, given the application of the paramountcy principle, as the circumstances of the parents change from time to time, parenting orders are never final in the sense that the court always retains a jurisdiction to deal with such changed circumstances.  

42. However, some degree of change is a necessary corollary of life and should not of itself allow final parenting orders to be easily revisited.  Otherwise to allow further applications, on the basis of a change of circumstances alone, would be likely to be an invitation to never ending litigation. 

43. For that reason, a court will not readily re-open a case concerning parenting orders recently made.  There needs to have been a substantial change in circumstances before a court will do so.  This is the basis of the rule in Rice & Asplund.[6]  Neither Mr Candeler nor Ms Candeler have specifically invoked the rule but its application underpins the position of them each.

    [6]  See Rice & Asplund (1979) FLC 90-725

44. It is Mr Candeler’s view that X and Y are well settled in the current regime, which sees them spending extensive periods of time with each parent and, more importantly enjoying the benefits of a rural lifestyle and regular interactions with grandparents and extended family.

45. The primary purpose of the rule in Rice & Asplund is to prevent “endless litigation”[7] and is based on three main pillars.  Firstly, finality of litigation avoids expense to the public occasioned by “subsequent hearings and the imposition of them on court time”.[8]

    [7] See ibid per Evatt CJ at 78,905

    [8]  See SPS & PLS [2008] FamCAFC 16 at [56]

46. Secondly, the imposition of the rule avoids the potential “evil” of one judicial officer substituting his or her “opinion of what is in the best interests of a child” for that of another judicial officer, on the basis of the same factual circumstances.[9] 

    [9] Ibid at [58]

47. Human nature being what it is, it is inevitable that some litigants will want their cases reheard in the hope that a different adjudicator will reach different conclusions about the evidence led.  The rule negates this potential outcome.

48. Thirdly and most importantly, generally speaking, it is not in the interests of children to have repeated applications before the court concerning arrangements for their living arrangements.  Litigation is not helpful to children. 

49. It is desirable that arrangements for their care be stable and so final.  For obvious reasons, children are not well served by frequent displacements or being subject to uncertainty about where they will be living in the future.[10]

    [10]  See CDJ v VAJ (1998) FLC 92-828 at 85,449

50. In this context, it has been said that the court should not condone a “perennial football match between parents, who … seek to canvass again and again the question of custody of a child …”[11]The litigation, in this case, has been protracted, expensive and time consuming. 

    [11]  See In the Marriage of McEnearney (1980) FLC 90-866 at 75,499 approved in SPS & PLS (supra) per Warnick J at [57]

51. Essentially, it is Ms Candeler’s position that the best interests of X and Y (and indeed her personal entitlement to lead the life of her preference) justify the court revisiting the injunction and the other orders of 2013, which were made over six years ago, during which period there have been many changes in her life and those of the children, if not necessarily in that of Mr Candeler.

52. These changes centre on both financial and education matters.  It is her case that she can earn a larger income in Adelaide, which will provide her and the children with greater financial security and also enable her to fund the children’s various extracurricular activities, particularly Y’s learning needs.  It is also Ms Candeler’s case that the children will be able to access a better standard of education, through publically funded schools in Adelaide, which will also ease the financial pressures on her.

1. Although Ms Candeler accepts that G School has supported Y with her learning difficulties up to this stage, it is her understanding that V School has better access to educational apps and the like, which she could utilise in conjunction with regular attendance at DD Classes and through a tutor, which costs Ms Candeler $45.00 per hour, and therefore this aspect of her education will be better managed in Adelaide than Town B.

2. Mr Candeler disputes that G School is not adequately supporting Y’s dyslexia.  He concedes that he has not provided any direct financial support for either the children’s school fees or other aspects of Y’s special needs but asserts that he provides much financial support during the extensive periods of time the children are in his care, on weekends and during school holidays.

3. In the absence of specific expert evidence, I am not in a position to resolve the technical issue of whether Y will receive sufficient educational support at G School and whether the education likely to be available to her at Suburb V School will be markedly superior.  I accept however that Ms Candeler wholeheartedly believes that it will be.

4. More significantly, it is Ms Candeler’s case that both she and the children will have access to a richer fuller life in Adelaide, which will make all of them feel happier and more fulfilled.  Music and her Church are of particular significance in this regard.  In this context, she deposes as follows:

   “X and Y both love and have a rich skill in music and singing.  They have participated in vocal and musical experiences, performances, weekly choir …I have visited and discussed at length with the Music Director at the school the academic and music opportunities available to the children at JJ School and I believe that it is in the children’s best interests to commence and complete their Secondary Education at this specialist music school.  The children have outgrown the opportunities available to them at Town B.”[12]

   [12] See mother’s affidavit filed 1 October 2019 at [25] – [26]

5. In addition, Ms Candeler has deposed as to various activities the children can undertake, on Sunday afternoons, at the Church TT City Campus.  The children have apparently taken part as leaders in the church’s various holiday events, which include youth groups and other musical events.

6. Ms Candeler’s case can be easily distilled.  Over the past six years, she has essentially done Mr Candeler’s bidding and remained in a location, which in her view has outlived its utility for both her and the children.  During this period the children have consolidated their relationship with their father and the bond between them and him is robust and resilient.

7. In these circumstances, the time is now right for her and the children to move on to the next aspect of their shared life.  It is what she wants to do and her reasons for doing so are rational and properly considered.  As such, it is grossly unfair to her that Mr Candeler, more than eight years after the marriage between them ended, should be in a position to dictate where she should live so that he can have his preferred level of interaction with the children, given that she has been the children’s primary carer in this period.

8. In summary, I accept that each parent has much to offer X and Y but the children’s family is bifurcated by distance; disparate values and aspirations; and above all by conflict.  As such, it must fall to the court to make a decision.  In so doing, the court cannot ignore Ms Candeler’s legitimate dreams, plans and aspirations for herself.

9. As this summary makes clear, the various combinations available to the court cannot be twisted or contorted to achieve a perfect outcome like the surfaces of a Rubik’s Cube.  Whatever is the outcome, one party will feel hard done by and unheard. 

10. I regret the heartache my decision must inevitably precipitate for one of the parents concerned.  I can only hope that such heartache does not intensify the conflict already evident between the parties and so cause further and unnecessary emotional distress for X and Y.

The hearing

1. Shortly prior to the date scheduled for the electronic hearing, Mr Candeler elected to represent himself.  Ms Candeler has been self-represented since the second round of proceedings began.  As foreshadowed, the hearing took place in electronic form via a video conference system.

2. This format was far from perfect but adequate given the nature of the issues arising in the case.  My prognostication made in the most recent judgment that this was not a case which largely turned on any assessment of character proved correct.

3. The positions of the parties are greatly divergent but this is not because they view past events in a diametrically different way, rather they disagree on more inchoate issues relating to values and the attribution of motives for past pieces of conduct.  In the greater scheme of things, in my view, these are not significant.

4. I felt that I was able to assess each party’s credit through the electronic medium notwithstanding its deficits, which Perram J of the Federal Court has described as being “like swimming in aspic”, which respectfully appears to me to be an apposite metaphor. 

5. I found each party to be an honest and conscientious witness, who told the truth, as each saw it.  As previously indicated, in my assessment, they are each good and capable parents, who following their painful separation continue to disagree about what is best for their children.  This is not uncommon and does not make either disingenuous.

6. In the earlier reasons, I also alluded to issues pertaining to the assessment of the credibility and the overall utility of other witnesses relied on by Mr Candeler within an assessment of how long the case was anticipated to take.  I said as follows:

   “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.”[13]

   [13] See Candeler & Candeler (No 2) (supra) at [179]

7. I do not resile from those comments.  As indicated above, Mr Candeler exercised his entitlement to rely on additional evidence from his father and from the children’s maternal grandparents.  Ms Candeler chose not to cross-examine any of these witnesses.

8. Accordingly, their evidence enters the proceedings unchallenged.  In my view it was never going to be useful for their evidence to be subject to any extensive scrutiny, which had only the potential to be upsetting for all concerned but not advance the central issues in the case.  In this context, I accept that the children’s grandparents each play a significant role in the lives of X and Y and each loves them dearly.

9. Accordingly, both the Candeler grandparents and the Mr M & Mrs N grandparents approach the possibility of X and Y living further away from them with foreboding.  This is understandable.  I also appreciate that grandparents are important for children, providing them with family history and lore, which is useful for children in deriving a sense of identity and where they fit in in the wider family setting.

10. Given the length of time Mr M & Mrs N have been farming at Town C, this is particularly significant to Mr M and Mrs N.  I respectfully adopt the following comments of Treyvaud J in Bright v Bright, which seems to me to be relevant, although it pre-dates the applicable legislation.  His Honour said as follows:

    “… it is very important for children’s proper upbringing and development that they have contact with a much wider family than merely the parents of the relevant child.  It is very important for a child to understand that he or she is a part a wider family, that he or she has grandparents on both sides, uncles, aunts and cousins, so that the child grows up feeling part of an extended and supportive family.

    In deciding this dispute between the grandparents, on the one hand, and the parents, on the other hand, I am required by law to treat the welfare of the child E as the paramount consideration.  I have pointed out that as a matter of general principle children develop better when they recognise that they have a place not only in the home in which they live but in the wider family.” [14]

    [14]  Bright v Bright (1995) FLC 92-570 at 81,658

11. I appreciate that this is a central aspect of Mr Candeler’s case.  It has been established by the affidavit evidence filed on his behalf.  It would not have been helpful for the court to have explored the reasons why there is such a rift between Ms Candeler and her parents.  In any event, it is not her case that the children will be forever deprived of having a relationship with each set of their grandparents. 

12. Like other factors arising in the case, it is one which must be balanced in the mix of other factors, to reach an outcome calculated to be in the children’s best interests.  One such factor is Ms Candeler’s entitlement to freedom of movement.

13. In A v A: Relocation approach[15] the Full Court provided some guidelines to be applied to the determination of cases involving a relocation aspect, which can be summarised as follows:

    ·The best interests of the child concerned remain the paramount but not the sole consideration;

    ·As such, a parent wishing to relocate a child need not demonstrate compelling reasons to justify the move;

    ·Rather the court should identify the competing proposals of the parties concerned and evaluate them each against the relevant criteria contained in the Act for determination of a child’s best interests.

    [15]  A v A: Relocation approach (2000) FLC 93,035 at 87,547

14. More recently again, in U v U the High Court has stipulated that, given proceedings in respect of the best interests of a child are not to be approached as strictly adversarial proceedings, the court was not bound by the proposals of the parties alone but rather could consider other outcomes which it considered might best serve the interests of the child concerned.  The classic exemplar of such an outcome being the court’s consideration of a parent moving in tandem with the relocating parent or moving closer to that parent, which might not have been a result advocated by the parties concerned.[16]

    [16]  U v U (2002) FLC 93-112 at 89,103

15. In this context, it is now appropriate that I set out the parties’ competing proposals, which as I indicated at the outset, are replete with other combinations and possibilities.  In so doing, I am cognisant of what is likely to be a central issue of contention between the parties, namely the adequacy of any time spending proposals advanced by each of them (including arrangements for X and Y to maintain their relations with their grandparents) and logistical considerations which arise therefrom.

Proposals

1. Initially, Ms Candeler proposed that she should have sole parental responsibility in respect of decision making for X and Y.  The rationale being that she has hitherto been the more active parent in this regard and she finds Mr Candeler very difficult to communicate with. 

2. In addition, she asserts that issues relating to coercive and controlling family violence render it inappropriate that the parties have shared parental responsibility for the children.  She also points to her assertion that she has assumed the majority of financial responsibility for providing for the children’s education as being a further factor in support of her having sole parental responsibility for X and Y.

3. Clearly, Ms Candeler seeks the variation of the September 2013 order to enable her, and more particularly the children, to live in Adelaide.  In this context, she seeks orders that would enable Y to attend V School for her primary education and for both children to attend JJ School for their secondary education.  Given X’s age, it is anticipated that she would start at this school as soon as is possible, subject to the court’s decision in these proceedings. 

4. So far as the arrangements for the children to spend time with their father, she would not propose any changes in respect of special occasions or school holidays from that contained in the September 2013 orders.  It is her position that the term time arrangements need to be significantly modified.

5. In this regard, initially, she proposed that the children should spend a proportion of each weekend, with their father, from after school on Friday until 6:00pm the following Saturday.  From her perspective, the benefit of this arrangement would be that it would enable the children to attend church, with her, each Sunday.

6. In addition, as I understand her initial position, she proposed that the father would travel to and from Adelaide to give effect to this proposal.  However, as the proceedings before me unfolded, Ms Candeler has revisited this proposal. 

7. It remains her preference that Mr Candeler travel to Adelaide to collect the children, on alternate Fridays from their schools and she would collect them on the following Sunday at Town NN.  From her perspective, this would be a fair allocation of travel and would enable Mr Candeler to have some direct involvement with the children’s school, as he does now, from time to time.

8. However, during her oral evidence she made the concession that she would, if necessary be able to get the children to a drop off, at Town NN, at 6.00 pm on alternate Fridays.  In her words, as I recall, she said she “would make it happen” or words to this effect.

9. However her formal position, in the form of a minute which she has prepared is that the court should make the following orders:

   1.The mother has full parental responsibility for the children X  born in 2007 and Y born in 2008.

   The children live with the parties as follows:

   With the father: 

   (i)From the conclusion of school every second Friday until 6:00pm (in Town NN) Sunday during the school term. This shall be extended in the event the children have a pupil free day or a public holiday falls on either side of the weekend and in the event a public holiday or pupil free day falls on either side of the mother's weekend then the mother's weekend time shall be suspended until the following weekend and the father shall have that weekend in lieu. 

   (ii)For the first 10 nights of the April, July and October school holidays from the conclusion of school Friday until 5.00pm on the second Monday. 

   (iii)For week about during the Christmas school holidays with handovers on each Friday at 5.00pm at Town NN as may be agreed and in default of agreement commencing the first week. 

   (iv)With the mother at all other times. 

   2.Special Occasions 

   (a)The children shall be in the care of the father from 12 noon on the 23rd December each year until 12 noon on the 25th December each year. PROVIDED that the children shall be in the mother's care each year from 12 noon Christmas Day to 12 noon on 27th December. 

   (b)The children shall be in the mother's care from 6.00pm Easter Saturday to 6.00pm Easter Monday PROVIDED that the children shall be in the father's care from the conclusion of school Maundy Thursday (or 5.00pm if a non-school day) until 6.00pm Easter Saturday.  The parties shall each have telephone, Skype and facetime communications with the children during the time in which the children are not in their care or Tuesdays and Thursdays PROVIDED the father shall provide the appropriate technology. 

   3.The parties are each restrained and an injunction granted restraining each of them from: 

   (a)Changing the children's residence from within a 30 kilometre radius of Adelaide without the written consent of the other. 

   (b)Changing the children's school without the written consent of the other. 

   4.The children shall spend time with the non-residential parent as follows: 

   On the children's birthdays:

   (i)If a school day for two hours as agreed.

   (ii)If a non-school day for four hours as agreed and in default of agreement from 2.00pm until 6.00pm. 

   (b)Mother's Day and Father's Day:

   The parties shall swap weekends to ensure that the children spend the whole of the Mother's Day weekend with the mother and the whole of the Father's Day weekend with the father. 

   5.The parties shall communicate via email, text message or telephone and shall keep each other informed of all relevant information concerning the children's welfare.

   The parties are restrained and an injunction is granted restraining each of them from removing the children from the Commonwealth of Australia without the written permission of the other.

   Each party is at liberty to attend any school or extracurricular activity involving the children to which parents are normally invited including but not limited to parent teacher interviews, sports days, concerts and assemblies.

   6.The parties shall discuss and reach agreement with each other in respect of extracurricular activities involving the children and impacting on the other parent's time.

   Each party do forthwith notify the other in the event of a child suffering a medical emergency.

10. In her oral evidence to the court, Ms Candeler described herself as a proud South Australian who would never consider living anywhere else.  Mr Candeler doubts the veracity of this statement given his previous experience of the mother. 

11. In these circumstances, Ms Candeler proposes the injunction in respect of the children’s continuing residence in Adelaide.  It is her position that she wishes both children to complete their secondary education at JJ School, and then if they are able to, move on to some form of tertiary education. 

12. In terms of practical issues relating to the exchange of the children, given the extra distance involved in travelling from Adelaide to Town A, Ms Candeler proposes that she would be open to exchanging the children at Town NN, which as previously indicated is about mid-way between Town B and Town A.  In her evidence, she indicated that she would be able to get to Town NN at 6:00pm on a school evening. 

13. The father acknowledges that the September 2013 orders do envisage an exchange at Town NN.  However, up to this stage, he has frequently collected and returned the children at G School in Town B, which remains his preference.  He does not believe that he could easily or regularly get to JJ School and this is a significant disadvantage, from his point of view, of the mother’s proposal. 

14. The father vehemently resists any proposal that the mother alone should exercise parental responsibility, in whatever form, in respect of the children.  Rather, it is his position that the court should perpetuate the conferral of equal shared parental responsibility on him and Ms Candeler and thereafter, pursuant to the relevant legislative pathway, the court is mandated to give active consideration to an equal time regime.[17] 

    [17]See Goode & Goode (2006) FLC 93-286

15. In this context, Mr Candeler asserts that an order for equal time could be made and such a regime is both calculated to be in X and Y’s best interests and reasonably practicable to put into effect.  He has deposed that the children could continue to attend at G School and then spend a week living with him, at Town A and then a week living with their mother in Suburb P. 

16. Under this scenario, the children would be able to travel, in his week, by school bus from Town A to Town B and return; and in their mother’s week, catch public transport between Town B and the end of the Freeway, and thereafter be either collected by their mother or catch a public bus to her home in Suburb P.

17. In the event this proposal is not accepted, Mr Candeler proposes that the existing two out of three weekend arrangement continue, with the mother to transport the children to Town A each Friday at 6:00pm and with him to transport the children to school the following Monday, unless that Monday is a public holiday. 

1. In addition, Mr Candeler would seek that he have the first twelve nights of each short school holiday and the longer end of year school holiday be divided week about with handover to be at Town NN.

2. Accordingly, pursuant to the principles enunciated in A v A there are basically four possible outcomes, which arise for the court’s consideration:

   ·The children move into the care of their father in Town A and spend time, with their mother, on weekends and during school holidays, in Adelaide (Suburb P);

   ·The presumption of equal shared parental responsibility is applied and the child live in an equal time regime, based on them continuing to attend school in Town B, but living one week of each fortnight in Town A and the other week in Suburb P;

   ·The children continue to live with their mother but the court makes an order directing her to live in Town B and thereafter the provisions of the September 2013 order are recapitulated;

   ·The children remain in the care of their mother but she is authorised to live with them in Adelaide (Suburb P) and to change their school, and thereafter the children spend time with their father on weekends and during school holidays.

3. Necessarily, each of these outcomes has permutations within it.  I was not prepared to sanction the first of these on an interim basis and Mr Candeler did not seriously pursue it in the current round of proceedings.  It would potentially provide Ms Candeler with an unpalatable election – move to Adelaide to pursue her employment aspirations but give up being X and Y’s primary carer or abandon her career prospects and live in Town B.

4. The application of the second outcome involves an analysis of what follows from the application of section 61DA and what follows as a consequence of section 65DAA. The court must examine whether this is an outcome, which is reasonably feasible to implement, given the reality of the situation.

5. The application of the third outcome involves the potential exercise of what has been characterised as a coercive power – essentially the court directs a parent that he or she has to live in a particular location if he or she wishes to continue to be a custodial parent.

6. The intellectual (and indeed ideological) difficulty with this outcome is why should Ms Candeler be subject to such a restriction, in order to pursue both her parenting and career aspirations, but Mr Candeler not.  Such an outcome runs the risk of being perceived as being inherently sexist and unfair.

7. In U v U Gaudron J (who was in dissent) said as follows, in respect of the dilemma created by such a situation, particularly from the perspective of a mother:

   “A mother who opts for relocation in preference to maintaining a close bond with her child runs the risk that she will be seen as selfishly preferring her own interests to those of her child; a mother who opts to stay with her child runs the risk of not having her reasons for relocating treated with the seriousness they deserve.

   It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her.  That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated.”[18]

   [18]  See U v U (2002) FLC 93,112 at 89,082

8. In the same case, Hayne J commented in respect of the level of consideration to be given to the prospect of the parent whose preference is to remain in the original location moving in tandem with the other parent.  He said as follows:

   “… it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing.  It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.”[19]

   [19] Ibid at 89,103

9. From Mr Candeler’s perspective, I accept that the prospect of him moving to live in Adelaide so that Ms Candeler can follow her aspirations and at the same time, he can achieve his goal of having a shared parenting regime in respect of X and Y is simply impossible to contemplate, given his familial and employment situation in Town A.  However, this does not mean that the court is not required to give earnest consideration to Ms Candeler’s interests. 

10. The application of the fourth option must involve the adequacy of any resulting arrangements for X and Y to spend time with their father.  In this context, it is to be noted that the proposed relocation will not deprive the children of the opportunity to spend time with the father (and extended maternal and paternal families) on a regular basis, during both school terms and holidays.

11. In addition, given their respective ages and the strength of their relationship with their father, it is improbable that a move from Town B to Adelaide and a possible resulting reduction in the frequency of time to be spent with him, will result in the extinction of a meaningful level of relationship between X and Y and their father.

12. It is now necessary for me to detail, with a greater degree of particularity, the competing considerations which apply to a case involving a relocation aspect.  Warnick J has described the various considerations relevant to such cases as being “a delicate interplay of concepts” as well as “an imbroglio of principles.”[20]

    [20]  See B v B (2006) FamCA 1207 at [1]

13. This is because, in relocation cases, the best interests of any child concerned are not the only consideration relevant because the court must also have regard to “the right to freedom of movement of a parent”.  As Kirby J pointed out in AMS v AIF, the facts surrounding every relocation case are unique and therefore each such case requires a “careful and delicate analysis”.[21]

Legal Considerations

[21]  AMS v AIF; AIF v AMS (1999) FLC 92-852 at 86,041

(a)    The legislative pathway in children’s cases

1. Part VII of the Family Law Act deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration [Family Law Act section 60CA].

2. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out in the Family Law Act at section 60CC.

3. Section 60CC creates two classes of considerations, which apply to the court’s determination of how a child’s interests will be best served in proceedings before it. They are designated as primary considerations and additional considerations. 

4. There are two primary considerations, which are set out in section 60CC(2)(a) and (b), namely:

   “(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b) the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.” 

5. Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another.  They have been referred to, in a number of the decisions of the Family Court, as twin pillars, the importance of which depends on the circumstances of the case concerned. 

6. However, as a result of the insertion of section 60CC(2A) into the Act, the Court is now directed, in applying the primary considerations, to give greater weight to section 60CC(2)(b), which is the primary consideration relating to the need to protect children from physical or psychological harm, from being subjected to or exposed to neglect, abuse or family violence.

7. Family violence is defined by section 4AB(1) of the Family Law Act.  It means:

   “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.”

8. The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:

   ·an assault;

   ·a sexual assault or other sexually abusive behaviour;

   ·stalking;

   ·repeated derogatory taunts;

   ·intentionally damaging or destroying property; and

   ·the withholding of financial support.

9. Accordingly, family violence means not only violence, which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person.

10. In the overall application of Part VII, it is necessary to consider section 60B(1) of the Act, which sets out the principles and objects of the legislation as it relates to children. They include the following:

    “(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

    (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

    (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

    (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”

11. The principles, which underpin these objects, are set out in section 60B(2) and are as follows:

    “(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

    (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

    (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

    (d)parents should agree about the future parenting of their children; and

    (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”

12. From Mr Candeler’s perspective, if the children go to live in Adelaide, which adds just a sufficient additional distance to remove him and each set out of grandparents from being an active, daily presence in the children’s lives, it will create an outcome out of kilter with these principles and objectives.  The children will not have the benefit of having him involved in their lives to the maximum extent possible. 

13. He will be excluded as a day to day influence in the parenting of the children.  As such, he will be precluded from discharging his parental responsibilities for the children.  It is his case that, prior to separation, he was integrally involved with every aspect of the children’s lives. 

14. In addition, although some may see it as something of a long bow to draw, X and Y will be deprived of the opportunity to enjoy their country culture, based in Town A with him and other family members.

15. Other criteria, relating to how a court is directed to consider how the best interests of any child concerned may be served by any order which the court makes, are set out in section 60CC(3). These criteria are categorised as additional considerations.

16. There are fourteen such criteria, including, pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance which it considers relevant. This is to ensure that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

17. Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount.  The court’s duty is to deliver individual justice, for the child affected, in every case.[22] 

    [22]  See B v B: Family Law Reform Act 1995 (1997) FLC 92-755

18. In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[23] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[24]

    [23]  See B v B: Family Law Reform Act 1995 (ibid) at 84,220

    [24]  See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J

19. The additional considerations include such matters as any views of the children concerned, subject to their maturity; the parental insight of the parties concerned; the effect of any change in the circumstances of the children concerned; the practical implications of proposed contact arrangements; and the capacity of the parents to supply the educational and emotional needs of any relevant child.  All these considerations are germane in the present matter and will receive further evaluation in due course.

20. The primary considerations are generally to be given more emphasis, arising as they do directly from the aims and principles of the family law legislation.  However, in determining the outcome of a particular case, one or more of the individual considerations may come to the fore.

21. The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.

22. Because of the importance the legislature places on both parents being closely involved in their child’s life, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].  The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents. 

23. 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)].

24. 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)].

25. The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.

26. Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.

27. By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable. 

28. If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents.  Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.

29. The expression “substantial and significant time” is defined in the Family Law Act [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.

30. More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.  Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings. 

31. Issues of practicality are dealt with by section 65DAA(5).  The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned. 

32. The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from section 65DAA(1) & (2) of the Act.  It has determined that both questions must be answered in the affirmative before an equal time order may be made (and with equal effect a substantial and significant time order).

33. The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made.  This is because section 65DAA(1) & (2) are expressed in “imperative terms” and oblige the court to consider both questions.  The affirmative answer to both being an essential jurisdictional fact before an equal time or substantial and significant time order is made.

34. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and children not merely whether it is desirable, in the sense of facilitative of the child’s best interests alone, that an order for equal time to be spent by the child with each parent.  Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[25]

    [25]  See MRR v GR (2010) 240 CLR 461 at [13] & [15]

35. Accordingly, a proper consideration of what is feasible requires the court to consider the circumstances of both parties.  This is particularly so if an equal time (or a significant and substantial time) order can only come about by requiring both parents concerned to remain in (or move to) the same locale.

36. The legislative pathway, which was delineated by the Full Court in Goode & Goode can be summarised as follows:

    ·The court is to consider the section 60CC matters relevant; then

    ·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.

c) The extent to which each of the parents has taken or failed to take the opportunity to be involved in decision making and to spend time or communicate with the children

1. This is a vexed and complicated issue as a consequence of the parties’ strained and competitive relationship with one another.  Mr Candeler perceives that he is excluded from decision making; whilst Ms Candeler perceives he has abrogated all responsibility to her.  The truth is probably somewhere in between.

2. The mother is somewhat presumptuous in her attitude to educational decision making in particular.  The father is somewhat reticent about asserting himself in this respect, but not disinterested.  The conflict probably flows from financial issues and past bitterness about the move of the children away from Town A.

3. As indicated above, it cannot be said that Mr Candeler has not taken every opportunity to spend time with X and Y.  Nor that Ms Candeler has obstructed him in this regard.

ca)    Provision of financial support for the children

1. This criteria overlaps with the one above.  Ms Candeler has portrayed herself as something of a financial martyr, so far as issues to do with the children are concerned.  Certainly the evidence is incontrovertible that she has met the children’s not inconsiderable school fees since they began at G School. 

2. It is also the case that she has met Y’s tutoring and DD Classes costs.  The mother has deposed that there have been extended periods during which Mr Candeler has paid no child support and other periods during which he has paid less than the amount assessed for him to pay.[56]  As at 13 April 2020 the Child Support Agency indicated that $954.31 was overdue in child support from Mr Candeler.[57]

   [56]  See mother’s affidavit deposed 13 April 2020 at [13]–[14]

   [57]  Ibid at Annexure  6

3. In all these circumstances, I accept that Ms Candeler has met the lion’s share of the children’s recurrent expenditure and has done so whilst a single parent, juggling a number of jobs, and whilst having to home school a very sick child for an extended period of time.  Although Ms Candeler is open to criticism for being autocratic in respect of issues to do with the children, her devotion and application to them cannot be questioned.

4. Mr Candeler has said that he is willing to contribute to the children’s school fees, provided they remain at G School.  I can understand why Ms Candeler perceives that this offer is a little hollow because it is too little too late, arising only when Mr Candeler wants to stymie her move to Suburb P.

5. I suspect that Mr Candeler was not more forward in his offer of financial assistance to Ms Candeler previously because he remained bitter because she had moved away from Town A in the first place and it was his view that she alone should be responsible for the financial costs she had incurred alone in moving there and enrolling the children at G School, in the face of his objections.  Essentially his attitude being she had made her bed and must lie in it.

6. Be that as it may, the evidence is clear that Ms Candeler has been exemplary in her discharge of financial responsibilities for the children and has done so in challenging circumstances.  She is also an energetic person, who has found a job she likes.  One of her legitimate reasons for wanting to move is that it will make her life easier, particularly in a financial sense.

7. Given that it is she who has been the mainstay of the children’s financial support and Mr Candeler has been more of a bystander in this regard, this is a very strong factor militating in favour of the relocation.

d)     The likely effect on the children of any changes in their circumstances

1. The implications of change are at the heart of this difficult matter.  Whatever is the outcome of the case, it will involve some degree of change for X and Y.  I reach this conclusion because there is no suggestion that Ms Candeler will willingly acquiescence and return to live in Town B.

2. In any event, I do not consider that it would be in the best interests of the children to apply a coercive order to Ms Candeler, with the compulsive option that if she does not submit to the court’s direction, the children should live with their father in Town A.  I think this would be inappropriate given Ms Candeler has hitherto been the children’s unchallenged primary carer, a role which she has discharged in exemplary fashion.

3. In these circumstances, in my view, it would be oppressive and sexist to indicate to her that she must live in the location preferred by her former husband, with all the implications this will involve for her personal aspirations and entitlement to freedom of movement.  Accordingly, the option of avoiding all change for X and Y, particularly in terms of their continuing attendance at G School, by directing their mother to abandon her lease in Suburb P and find some accommodation for herself, in Town B, is not a viable one.

4. The shared care, week about option, advanced by Mr Candeler, would also avoid the disruption of the children having to change schools.  However, in my view, it would also involve the onerous addition, to the lives of the children, of two very different but lengthy commutes, which have the potential to be disruptive to them – essentially, I am concerned that the children would not have a sense of where their home actually is.

5. The implementation of the mother’s proposed option also involves significant disruption.  The children would have to leave the school, which they have attended, since each started their education.  Such a change must disrupt friendship groups and involve a significant process of adjustment to a new school and social setting.

6. However, these are resilient, accomplished and socially adept children.  In addition, they can each see some positives in their proposed new schools.  They are not being dragged there kicking and screaming.  In addition, they will have the emotional support of their mother to make the transition.  I accept Ms FF’s assessment that the children will be able to make the adaption to any new school.

7. I acknowledge that there are obvious deficits in Ms Candeler’s most recent proposal, the most obvious of which will be a reduction in the amount of term time weekends, which X and Y can spend with the father and extended family in Town A. 

8. I agree with Ms FF’s view that it is not practicable for the current two weekends out of three to be translated to a regime based on the children living in Suburb P and attending school nearby.  Such an outcome would not sit comfortably with the children’s growing need for autonomy and to develop social interests outside of their immediate family. 

9. In short, both children, particularly X, if they move to Suburb P, are inevitably going to form relationships based on school friends and extramural activities and will want to pursue these on weekends, which rules out the majority of these weekends being in Town A.

10. The obvious casualty of the mother’s proposal is sports in Town A.  I acknowledge the importance of country based sport for all concerned.  However, the importance of this must be weighed against Ms Candeler’s legitimate expectations.  In such a balance, it would seem to me to be axiomatic that the desirability of her earning her income and living where she prefers outweighs sports, in the longer term perspective of the children’s personal development.

11. More significantly, the orders proposed by Ms Candeler do not result in the total extinction of the children’s sense of connection to Town A and their father.  They will see him on five weekends each term and for a significant proportion of the school holidays.  Although it may not be as logistically convenient as previously, it remains theoretically possible for them to continue to play netball in Town A.

e)     The practical difficulties and the expense of the children spending time and communicating with each of their parents

1. This is one of the central considerations in the case.  Paradoxically, the distance between Town A and Adelaide is not so great as to rule out regular time between the children and their respective parents but is of sufficient magnitude to raise quite significant logistical issues, given the extent of the time the travel will require.

2. I accept that the burden will fall on all concerned, but particularly X and Y.  I agree with Ms FF’s opinion that there is a very real probability, as the children mature, they will become resentful of the travel, particularly as their own activities and friends become more important to them.

3. In addition, I must also bear in mind that the additional travel proposed by the mother, in her most recent application, involves an extra distance of around 74 kilometres or an hour’s drive.  It is a burden but not an inordinate one for children who have become habituated to travel, in the country, to spend time with family.

4. In addition, if Town NN is utilised as the handover location, the burden of driving will fall more on Ms Candeler than on Mr Candeler.  However, in this context, I also appreciate that it will be more difficult for him to maintain contact with the children’s day to day life, at school, as has occurred when he has been able to collect the children from G School.

5. In my assessment, the mother’s proposal represents the best possible compromise of the various competing factors arising in the case.  It will be marginally more difficult for the children to spend time with their Town A family, in the event of a move to live in Suburb P, but it will not substantially affect X and Y’s right to maintain their paternal relationships.

6. This is the terminology of the section in question.  The relationship may be rendered different, in some way, because it will not have the same level of freshness arising from two weekends out of every three, during school terms; but two weekends out of every four and a substantial proportion of each school holiday, will not significantly diminish the children’s relationship with their father.  They will continue to know and love him.

f)      The capacity of the parents to provide for the children’s emotional and educational needs

1. As I previously observed, I accept that each party has much to offer the children.  It is also clear that each parent is emotionally available to the children.  I accept Ms FF’s assessment that Ms Candeler is likely to have been the children’s main source of emotional sustenance given she has been their primary carer since the parties separated.

2. In this context, although it may well be the case that Ms Candeler has her own personal reasons for harbouring negative feelings for Mr Candeler, there is nothing to indicate that she has done anything to undermine the children’s relationship with their father over very many years. 

3. It is important to note, in this regard, that although the circumstances surrounding her move from Town B to Suburb Q and then to Suburb P are controversial, the moves themselves did not result in the children spending any less time with their father.  In my view, this indicates that Ms Candeler is able to support the children’s emotional need to maintain a relationship with their father and her move is not motivated by any desire to truncate this important relationship for both X and Y.

4. Issues to do with education are obviously very important to Ms Candeler, who has demonstrated that she is prepared to make considerable personal sacrifices to ensure the children have the best possible education.  In this respect, I would characterise her as being exemplary.  As such, again, there is nothing to indicate that her position that the move will have some positive educational aspects for the children is anything other than sincerely held.

g)     The children’s maturity, sex, lifestyle and background

1. I note the powerful evidence of Mr Candeler and the respective grandparents that X and Y are to be regarded as country kids.  I agree that this an important aspect of the children’s background.  It is an attribute Ms Candeler shares with them.

2. In these circumstances, I do not accept that Ms Candeler will be dismissive of this aspect of the children’s backgrounds.  I acknowledge that Ms Candeler is estranged from her parents and has been for a significant period of time.  The reason for this estrangement was not explored in these proceedings and, from my perspective, it was not necessary that it should be.

3. However, it does not logically follow that because Ms Candeler has fallen out with her parents it means that she will be dismissive of this aspect of the children’s lives.  The evidence indicates otherwise.  The children have spent a significant period of time in both Town A and Town C.

h)     Aboriginality

1. This is not a relevant consideration in the case. 

i)      The attitude to the children and to the responsibilities of parenthood, demonstrated by each of the parties

1. In my estimation, each of the parties takes seriously indeed the responsibilities incumbent on being a parent.  This is particularly so in respect of Ms Candeler.  Although Mr Candeler may assess certain aspects of Ms Candeler’s personality as being abrasive and she herself as being headstrong and precipitate in decision making, there is nothing in the evidence available to me to indicate that Ms Candeler has decided to pursue opportunities for herself, in Adelaide, for any cavalier reason.

2. The law is clear that Ms Candeler, once having been established as the parent most suitable to provide the primary residence for the children need not establish compelling reasons as to why she wishes to move.  However, in my view, the evidence indicates that she has carefully weighted up the pros and cons of the move, from both her and the children’s point of view and, as a consequence, she has been able to muster powerful reasons which support the move.

3. In addition, in my view, it is telling that over the past eight years, the evidence clearly indicates that Ms Candeler has supported the children’s on-going relationship with their father.  As such, she has demonstrated a positive attitude to the responsibilities of being a parent.  This positive attitude has also been demonstrated by her commitment to the children’s education, including when X had to be home schooled.

j) & k)  Family violence and any family violence order

1. For the reasons outlined above in respect of the primary considerations, I do not consider that this a case which centres on the protection of the children from the corrosive emotional consequences of exposure to family violence. 

2. That is not to say that I consider that the parties concerned have an ideal relationship with one another.  Clearly, they do not, primarily as a consequence of what occurred between them prior to their separation and immediately afterwards, when Ms Candeler unilaterally relocated the children away from Town A.  Thereafter, every interaction between the parties has the potential to be extremely unpleasant but mostly, it would seem, they are able to ignore one another.

3. The parties have each felt the need to secure some form of formal intervention against the other in the Town B Magistrates Court.  These proceedings were resolved with mutually exchanged undertakings to keep the peace so far as the other (and those associated) were concerned. 

4. The subparagraph relevant to family violence orders 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.

5. In this context, in my view, it is notable that no court has made any formal finding and each party withdrew from asking the court to proceed to a final adjudication of the matters in dispute between them.  As a consequence, I do not feel that I am in a position to adjudicate who of the parties was at fault in respect of the various incidents, which brought them to the Magistrates Court in the first place.

l)      Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings

1. Finality is generally preferable in children’s cases.  Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned.  In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation. 

2. The parties’ parenting relationship is poor and likely to remain so, for the indefinite future, whatever order is made.  This is not a good harbinger for the avoidance of future litigation between the parties in respect of the care arrangements for the children. 

3. In my view, the outcome most calculated to bring the parties back to court is the shared care regime centred on the children continuing to attend school at Town B.  This seems to be inherently unstable and so destined to fail.

4. I am not persuaded that the conferral of sole parental responsibility, as proposed by Ms Candeler, on her, will have the outcome she envisages, namely a lessening of conflict between her and Mr Candeler.  He, like the mother herself, is unlikely to submit meekly to being excised from the making of decisions in respect of the two children concerned.  Rather, such an outcome would be the prelude to more, rather than less litigation.

5. As the current proceedings have shown, Mr Candeler is not the sort of person who is likely to be reticent in respect of instituting further proceedings against Ms Candeler, if he considers that she has behaved inappropriately.  In addition, he will remain vitally interested in every aspect of the children’s lives.

Presumption of equal shared parental responsibility

1. I do not consider that the presumption is rebutted on the basis that I can have reasonable grounds to believe either party has abused the children or engaged in family violence.  That is not to say, I do not consider the relationship between the parties was at times highly volatile and conflicted.  However, in my assessment, both parties played a part in creating such an atmosphere. 

2. In addition, having considered all the relevant best interest factors contained in section 60CC, I have come to the conclusion that it would not be appropriate to promote one parent above the other in respect of the exercise of parental responsibility for the children concerned.

3. On any view, both the mother and the father aspire to be involved in every aspect to do with the welfare of X and Y.  The children are fortunate to have two parents, who love them so much.  The level of dysfunction between the parties, although high, is not so extreme that Ms Candeler alone should be conferred with responsibility for making all major long term decisions in respect of X and Y.

What should follow from the presumption in the current case?

1. The next part of the court’s exercise is to consider what should follow from that presumption.  The exercise of the presumption is mandated by section 65DAA(1) & (2).  I am required, by these provisions, to consider an equal time arrangement first. 

2. It is only when that arrangement is ruled out, on the basis of a proper consideration of the best interests of the children concerned and/or reasons of practicality that the court is directed to turn to consider a substantial and significant time arrangement. 

3. Both such outcomes (equal time and substantial time) require an affirmative answer to be reached to both the questions arising from section 65DAA – namely, firstly, will these outcomes be in the best interests of the child concerned and secondly, are the outcomes objectively feasible to put in place, in all the circumstances of the case. 

4. I hope I have given earnest consideration to the possibility of shared care based on the children continuing at G School and commuting fortnightly between their parents’ respective homes, which are separated by a distance of approximately two hundred kilometres.  I reject it on the basis that it is neither calculated to be in the best interests of X and Y nor logistically feasible.

1. It would not be in the children’s best interests because I fear it would lead to them feeling their lives had become bifurcated to satisfy the needs of their parents, rather than their own. In addition, Ms Candeler has been the children’s primary carer for the last eight years. There is no reason to change this arrangement on the basis of any section 60CC consideration. She is a good and competent parent.

2. In these circumstances, the satisfaction of her aspirations is a legitimate consideration for the court.  It would not assist her to continue to fulfil her parenting role, in the exemplary fashion in which she has done, if she feels she must be endlessly beholden to Mr Candeler.

3. She need not provide compelling reasons for wanting to live with the children in Suburb P.  However, her reasons – security of employment; a different lifestyle; more opportunities; – cannot be described as being capricious in nature.  In addition, Mr Candeler is not able to establish that, in the eight years of the parties’ separation, she has not supported the children’s relationship with their father.

4. In practical terms, I am concerned that the father’s proposal condemns the children to a life of endless commuting.  I do not think it would work.  It has the potential to increase tensions between the parties, who already do not communicate well.  In attempting to satisfy the needs of each parent, it will satisfy neither and disrupt the lives of the children, who are likely to need a sense that they have one permanent home base, near to where they go to school, as they get older.

5. The children will be able to spend time with their father and Town A based relatives, under the mother’s proposal.  The time will be reduced but it will remain reasonable extensive, certainly far more than if the children were moving to a state capital.  At the end of the day, the added distance is less than a hundred kilometres.  The children will retain a sense of meaning in their paternal relationship.

6. However, I also appreciate that those hundred kilometres, insignificant in themselves, add a dimension of complexity and frustration to time spending arrangements for two teenage aged children,[58] who have school commitments and two parents, who have work commitments.  There is no easy solution to the extra time, which will have to be spent in the car, even for individuals, such as the various members of this family, who are habituated to it.

   [58] I appreciate Y has just turned 12.

7. Ms Candeler has assured me she can get to Town NN, with the children, at 6.00 pm on alternate Friday evenings, during term time.  I will hold her to her word.  In the event that the parties agree, it may be possible, from time to time, Mr Candeler to metaphorically walk the extra mile and collect the children from their school occasionally, so that he can interact, albeit briefly, with the children’s school environment.

8. Accordingly, the mandated handover location more often than not should be Town NN.  This is considerably easier for Mr Candeler than for Ms Candeler but it seems to me to be a better location than Town B, which Mr Candeler would regard as to be too accommodating for Ms Candeler, given it is her move, which has precipitated this fresh crisis.

9. Of course, if the parties agree otherwise, the handover location and indeed the specific arrangements as to when time should finish and start can be changed by agreement.  No doubt other factors, such as commitments germane to X and Y are also likely to come into play as the children get older and wish to pursue activities independently of their parents from time to time.

10. It seems to me that it would be better to start the holiday arrangements on Saturday lunchtime rather than Friday evenings so that the children can pack their bags and prepare.  I appreciate I may be mistaken in this regard but I will make the modification.  Otherwise I will make the time spending orders essentially as proposed by the mother. 

11. There remains the father’s contravention application.  Consideration of expediency dictated that the mother’s principle application should be dealt with quickly. 

12. In my view, the issues raised in the contravention application have been thoroughly traversed and there can be no material benefit in listing them for hearing.  Mr Candeler may disagree.  That is a matter for him.  I do not consider that it would be appropriate for me to deal with them.

13. If Mr Candeler wishes to pursue the application because he believes Ms Candeler should be censured for allegedly breaching the injunction contained in the 2013 orders – a matter which Ms Candeler denies – he should apply to my chambers for that aspect of the proceedings to be transferred to another judge; if he does not make such an application, within 28 days of today’s date, his applications will be dismissed.

Conclusions

1. I have found this to have been a sad and perplexing case.  I am troubled that I have written over eighty pages in respect of such a confined issue, involving a move of children from a satellite town on the edge of a major centre into that metropolitan area, where there are obvious advantages for the parent wanting to move there and the move, in geographical terms is not great.

2. That I have written so much is a testament to the powerful emotions the case has precipitated for each of the parties concerned and is indicative of the force of the feelings unleashed by the mother’s initial move away from the father’s preferred rural home eight years ago.

3. Parents do not have to live in close proximity, ad infinitum, after they separate.  The law provides mechanisms to allow them to go their separate ways.  Ms Candeler has done a good job so far as X and Y are concerned.  What she wants to do with her life is important.  It would not be acceptable that she should feel that she must be beholden to Mr Candeler indefinitely and live where he thinks she should.

4. However, although they are separated, the link, as parents, between the parties remains indelible.  Mr Candeler is essential to the children’s sense of identity – of who they are – strong male role models are important to teenage girls.  Mr Candeler is the best such role model for X and Y.  Fortunately, due in no small part to Ms Candeler, the children know their dad well and love him and always will.  Mr Candeler too is a good parent.

5. But the parties are different.  They must make the best of a bad lot.  This outcome is not perfect, but, from my perspective, it is the best I can do and remain true to the facts as I have found them and the law as I have interpreted.  I regret it has taken me longer than I would have hoped to have prepared these reasons and more words than I would have liked.

6. 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 four hundred and thirty eight (438) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate: 

Date:             17 July 2020