Canning and Canning

FEDERAL CIRCUIT COURT OF AUSTRALIA

CANNING & CANNING

[2013] FCCA 2019

Catchwords:
FAMILY LAW – Children – Consideration of separation of siblings – Intended relocation of two children to a regional town five hours drive from the regional town where the other three children live – Consideration of sole parental responsibility order where parties have difficulty communicating.

Legislation:
Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAA, 65DAC

AMS and AIF (1999) 24 Fam LR 756
Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755
Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343
Taylor v Barker (2008) 37 Fam LR 461
Mazorski v Albright (2008) 37 Fam LR 518

Applicant:

MS CANNING

Respondent:

MR CANNING

File Number:

BRC 3888 of 2012

Judgment of:

Judge Lapthorn

Hearing dates:

17 & 18 June 2013

Date of Last Submission:

15 August 2013

Delivered at:

Brisbane

Delivered on:

28 November 2013

REPRESENTATION

Counsel for the Applicant:

Mr Middleton

Solicitors for the Applicant:

Schultz Toomey O'Brien Lawyers

Counsel for the Respondent:

Mr Jordan

Solicitors for the Respondent:

Wonderley & Hall

Counsel for the Independent Children’s Lawyer:

Dr. Sayers

Solicitors for the Independent Children’s Lawyer:

Legal Aid Queensland

ORDERS

That the father have sole parental responsibility for: X born (omitted) 1998; Y born (omitted) 2000; Z born (omitted) 2002; W born (omitted) 2007; and V born (omitted) 2009 (the children);
That otherwise than provided for in these orders the children live with the father;
That the child X spend time with the mother in accordance with his wishes;
That the children Y and Z spend time with the mother as agreed between the parties but failing agreement:
(a)One half of all gazetted school holiday periods as agreed and failing agreement the first half in even numbered years and the second half in odd numbered years;
(b)One weekend per month during school term to coincide with the weekend the children W and V spend with their mother subject to their wishes to do so;
That the children W and V spend time with the mother as agreed between the parties but failing agreement:
(a)One weekend per month during school term as agreed but failing agreement the third weekend from 10am Saturday to 5pm Sunday;
(b)One half of all gazetted school holiday periods as agreed and failing agreement the first half in even numbered years and the second half in odd numbered years;
That for the purposes of the children spending time with the mother in accordance with these orders the father is to deliver or cause the children to be delivered to the mother or her nominee at her residence in (omitted) at the commencement of the periods of time and the mother is to deliver or cause the children to be delivered to the father at his residence at the conclusion of the periods of time.
That each parent have liberty to telephone the children at reasonable times;
That the parents ensure the children are afforded privacy whilst talking to the other parent by telephone and ensure that any reasonable request by a child to telephone the other parent is facilitated;
That each party be and is hereby restrained from denigrating the other or members of the other’s family to or in the presence or hearing of the children;
That each party use their best endeavours to ensure that no other person denigrates the other party or members of their family to or in the presence or hearing of the children;
That notwithstanding order (1) herein, these orders authorise any school attended by any of the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children at that parent’s expense;
That notwithstanding order (1) herein, these orders authorise any of the children’s medical and dental practitioners to discuss and supply to each of the father and the mother reports as to the health of the children on an ongoing basis at the expense of the parent requesting the information;
That each parent inform the other as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children and keep the other informed of the names and addresses of any of the children’s treating medical or dental practitioners.
That each parent keep the other parent informed at all times of their current residential address and landline and mobile contact telephone numbers.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRC 3888 of 2012

MS CANNING

Applicant

And

MR CANNING

Respondent

REASONS FOR JUDGMENT

Introduction

After a marriage of 14 years the parties to these proceedings have had a very bitter breakup. They have been unable to reach agreement in relation to the future parenting arrangements for five of their six children. Although the parties lived in (omitted) when they separated, two weeks prior to the final hearing, the mother relocated to (omitted) where she hopes to have the two youngest children live primarily with her.
The children who are the subject of these proceedings are:
a)X who is 15 years old;
b)Y, 13;
c)Z, 11;
d)W who will turn 7 on (omitted); and
e)V who is 4.
The parties have an older daughter, U, born to them when they had an earlier but brief relationship. U is 20 years of age and is living with her partner independently but in the same home as the mother.
The father who is 44 years of age continues to live in (omitted) and is a (occupation omitted). Currently, as a consequence of the mother’s move to (omitted) the five children live primarily with him. The mother, a (occupation omitted), is 42 and in a relationship with Mr L although they do not live together. She is a part owner with other members of her family of the house she has moved to in (omitted). She works in (omitted) as a (omitted) of an (omitted).
They were married on (omitted) 1997 and separated on 8 October 2011. The children remained living with the father at separation and the parties disagreed as to the extent of time the children initially spent with the mother. In December 2011 the parties commenced a week about arrangement for the children living in both homes but problems quickly arose between the older children and the mother. There have been a number of distressing incidents between the parties and between the children and the mother. The older three children are estranged from their mother but the two younger children had been living with both parents in a shared care arrangement until the mother moved to (omitted).
The distance between (omitted) and (omitted) is in excess of 450km and would involve a drive of around 5 hours.
Final property orders were made by consent on the first day of the trial.

Competing Proposals

The Mother sought orders that would provide for her to have sole parental responsibility for W and V and for them to live with her in (omitted). These children would spend time with their father and their other siblings one weekend a month during the school terms and half of the school holidays. She proposed that the other children live with their father in (omitted) and that he have sole parental responsibility for them. She sought an order that they spend time with her for half of the school holidays to coincide with the time W and V would be spending their holiday time with her.
The Father proposed that the parents have equal shared parental responsibility for all five children but that X, Y and Z live with him and spend time with the mother in accordance with their wishes. For W and V he proposed they live in an equal shared care arrangement. This would require the mother to live in (omitted). He was of the view that if the mother was to remain living in (omitted) all five children should live with him. In the event the younger children were ordered to live with the mother in (omitted) he was open to the mother’s proposal for the younger children to spend time with him.
Although the Independent Children’s Lawyer (ICL) did not tender a precise minute of order, the crux of his submissions was that the best interests of these children would be met by the two youngest children living with the mother in (omitted). Alternative submissions were made by the ICL in the event the court was to find that the mother’s explanation as to why her partner did not give evidence led the court to have doubts about his role in the future care of the children. In that case the ICL would support all five children living with the father in (omitted) with the younger children spending one weekend per month during school terms with the mother as well as half school holidays. In the event the mother lived in (omitted) the ICL submitted the younger children should live with her and spend alternate weekends with the father from Thursday to Monday. The ICL supported the father having sole parental responsibility for the three older children and for the mother to have sole parental responsibility for the two younger children.

Material relied upon

In support of her application the mother relied on:
a)Her Amended Initiating Application filed 17 April 2013;
b)Her affidavits filed:
i)26 April 2013; and
ii)17 June 2013; and
c)The affidavit of Ms P filed 27 March 2013.
The mother had initially sought to rely on an affidavit of her partner, Mr L filed 27 March 2013. Mr L was required for cross-examination but was not available and the affidavit was subsequently withdrawn. I have not had regard to this affidavit.
In support of his case the father relied on:
a)His Response filed 10 July 2012;
b)His affidavit filed 27 March 2013;
c)The affidavit of Ms K filed 12 July 2012.
The children were independently represented by Mr L of Legal Aid Queensland in (omitted). Three reports were obtained by the Independent Children’s Lawyer from social worker Ms J. These reports came into evidence by way of Ms J’s affidavits filed:
a)21 August 2012;
b)9 April 2013;
c)6 June 2013.
The Independent Children’s Lawyer also relied upon the affidavit of Ms R who is the Director of the Early Learning Centre in (omitted).
A number of documents were tendered into evidence.[1] Outline of Case Documents were filed by each of the parties and the ICL as well as written submissions after the conclusion of the hearing. The parties and their witnesses were cross-examined as was Ms J. I have had regard to the affidavit and oral evidence as well as the documents tendered into evidence and have considered the submissions.
[1] Exhibit F1: Bundle of correspondence between solicitors for the parties;

Credit

For the most part, the parents gave their evidence in an honest and forthright manner. Their dispute however has clearly clouded their perceptions of each other and despite each making admissions against their own interests the parties held each other responsible for the position the family has found itself in and in particular the breakdown of the older children’s relationships with the mother. Both parents, despite attempting to give their evidence honestly, minimised their responsibility at times. This minimisation and the clouding of their perceptions has affected their ability to accurately recall some events. The level of conflict between the parents has been significant.
I found Ms K to be an honest witness who, despite giving evidence for the father, was objective. I accept her evidence. Where her evidence differed from that of the mother I preferred the evidence given by Ms K.
Ms P however was not an impressive witness. She was clearly partisan in support of the mother. I was astonished to see in her affidavit, evidence of the father’s presentation at the hospital where she worked and her recollection of what was on his medical chart. Ms P was not called as a witness in her capacity as a nurse from the hospital but as a friend of the mother. She clearly disclosed the father’s personal medical information to the mother. I was also unimpressed by her presentation in the witness box. I was left in no doubt that Ms P had aligned herself in support of the mother such that I have no confidence that the evidence she gave was an accurate recollection of events.

Evidence

There were a number of disputed facts between the parties. I do not propose to address all of them however I do intend to consider those factual disputes that will assist in determining the best interests of the children. Throughout these reasons I will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.
During the marriage both parties worked in paid employment outside of the home. When they weren’t at work they assisted each other in the care of the children. The mother was the parent that managed to attend more of the children’s sporting and extra-curricular activities.
When the parties separated in October 2011 the mother moved out of the former matrimonial home but would visit daily to assist the father to get the children ready for school as well as clean the home. Initially the children would spend time with the mother on weekends but in early December the parties had agreed to commence a week about arrangement. This did not last long. The mother’s evidence was that all went well during the first week with her, although X was not present. The children did not return to the mother after their week with the father. The mother had only limited time with the children until February 2012. Between February and August that year the mother saw the children on alternate weekends although the three older children would often not attend. From 17 August 2012 until her move to (omitted) the mother and father shared the care of the two younger children on a week about basis.
The father gave evidence that by December 2011 the mother had started to withdraw from the children. She would go away without telling the children and not ring them for days at a time. She also stopped attending the children’s sporting events and her absences left the children feeling hurt. The mother said her non-attendance was a one off. I do not intend to make a specific finding as to the extent of absences but I am satisfied that in the context of a recent breakdown of the relationship the children would have keenly felt any absence from their mother.
Ms K gave evidence, which I accept, that in November she observed the mother yell at and physically strike Y whilst he was in a car outside a local supermarket.
It is clear that by 20 December the three older children had expressed adverse views of the mother. The mother accused the father of orchestrating this and failing to promote a positive relationship between these children and her. The father had by this stage told the children that the mother had an affair with Mr L. The father conceded he was devastated by the breakdown of the relationship and that he had not been able to conceal his hurt and frustration from the children. Along with this concession however he blamed the mother for failing to be there for the children and nurturing her relationship with them at this difficult time.
On 22 December 2011 the mother attended at the former matrimonial home to collect the children but apart from V the children told her they did not want to go with her. The mother collected V and he stayed with her until 8am on Christmas morning when U returned him to the father. After the mother had taken V she told the father over the phone that she would see him in court. The father took the children to the mother’s home on 26 December but an argument broke out in front of the children. I accept the father’s evidence that the mother yelled at the children and told the father and the children to ‘get out’. All of the children were upset by this and the two younger children were crying. The mother then went on holidays for about 2 weeks. She did not contact the children while she was away.
On 8 January 2012 the mother and U visited the former matrimonial home to see the children. She did not inform the father beforehand of her intention to do so. After finding the children inside the father’s car she tried to talk to them. The father explained that they did not want to talk to her and he tried to leave with the children. The evidence of the parties differs in relation to the sequence of events. It is not surprising given the heat of the argument that the recollections of the parties differ. Although I accept the mother was remorseful for her part in the incident I am also satisfied that she minimised her part and exaggerated the father’s part. Having said that, the father also recalled the incident with a jaundiced eye blaming the mother. I am satisfied that when the father left the property he stopped up the street and was followed by the mother in her vehicle. She conceded in cross-examination that she was angry. She got out of her vehicle and tried to speak to the children but the windows of the car were up. She was yelling. U called the father “a fucking cunt”. The children were upset by the commotion. Notwithstanding the children’s distress the mother picked up a metal pole and used it to strike the father’s car when the children were inside the vehicle. X took the pole from the mother and then hit the registration plate of her vehicle. The father told him to stop. He returned home with the children and awaited the arrival of the police. The mother followed and parked across the driveway. The father then attempted to get the mother’s car keys. The mother punched the father in the chest. As a result of this incident, in March 2012 mutual protection orders were made against the parties for a period of 12 months. These orders have now expired. Both parties must bear responsibility for the distress caused to the children as a result of this incident. Despite the mother’s assertions of regret for her part in this incident at the trial she still blamed the father. Her own conduct in arriving at the home unannounced knowing the potential for conflict and allowing her anger and frustration to overwhelm her showed that at least on that occasion she was not child focused and was primarily, but not solely, responsible for the emotional distress and the risk to physical harm suffered by these children. Knowing also that the older children, particularly X, were having difficulties with the family break up, her conduct did nothing to assist her relationship with them. Her conduct on that day would have gone some significant way towards informing the children’s views.
The evidence suggests that the children’s relationships with the mother, particularly with the older children deteriorated with oppositional, rude and challenging behaviour being more evident over time. The mother complained that handovers were stressful and that the father failed to adequately encourage the children to go to her. I accept her evidence in this regard. I also accept the father’s evidence that the mother would attend changeovers in an angry mood and add to the stressful situation. Clearly the experience for the children was not pleasant. Both parties must share responsibility for the way in which handovers were conducted.
The mother attended Y’s school on a couple of occasions in May 2012. She had him removed from class on one occasion and after they had words Y was upset. On the other occasion the child hid from her. The mother also collected W from school on a few occasions when she was to be in the father’s care. These incidents would not have assisted the children to develop a closer relationship with the mother.

On 4 August 2012 X ran away from the mother’s home after an argument. Although X who was 14 at the time chose to spend time with his mates, it is concerning the parties were unable to work co-operatively in a child focused way to address this issue. This is just one of the many examples of their inability to communicate effectively.
Later that month X and his mother were again in conflict. Within an hour of the children being with their mother in a local park the father received a call from X asking him to collect him. He found him on the side of the road crying and with his shirt ripped. The mother’s evidence was that X was extremely oppositional and disrespectful to her and her family. She saw him lift up a cricket wicket and hit her car leaving a hole. He took the keys and walked away returning after 10 minutes. He then started going through the mother’s purse. At this stage she approached him and grabbed him by the collar of his shirt and asked him to hand the purse back. He threw it on the ground. When the mother asked Y and Z to pick it up for her neither did. X then hit the mother on her arm. She let him go and he left the park and waited for his father to collect him.
When the mother returned the other children to the father later that day they argued over their different perceptions of the breakdown of the children’s relationship with the mother. X’s disrespect for his mother would have challenged any parent. I make no criticism of the mother’s conduct at the park on that day.
There have been numerous incidents of the older children having difficulties with their mother. I do not propose to address all of them in this judgment although I note on 16 September 2012 Y ran away from his mother after a dispute between them.
The school records, which formed part of ICL 1 had the following file note:
Tuesday 20^th November, 2012,
At first break, Ms Canning came up to give W her lunch. Y and Z ran away to the toilets. Ms Canning waited in the tunnel and when Z came back and sat with her friends with her back to the tunnel Ms Canning came and got Z by the arm and took her to the tunnel and had one hand either side of Z. Z had her head down and was crying. I could hear Ms Canning saying “Why didn’t you tell me?” in a raised voice. I approached and said “If [sic] everything Ok” Ms Canning said aggressively “everything is fine and I don’t need you” I am her mother. I responded with “The welfare of my students is my concern and Z is upset”. She yelled “She’s fine.” At this stage another staff member had noticed the situation and went to get Ms R, a visiting Senior Education Officer..
Ms R came to speak to Ms Canning and when Ms Canning took her hands away. Z [sic]ran away.
Ms R spoke privately with Ms Canning.
Z stayed in the office with her classroom teacher for the next half hour. She was crying and shaking. Y came in to the office to see if Z was Ok. He said he hates his mother.
Back in the classroom, Y was upset and angry he said to his teacher “You need to help me”. “Why can’t you help me?”. Y’s teacher spoke to me about this.
Ms R contacted Mr Canning via mobile phone to inform him of this incident.
The file note was signed by Ms H.
The mother’s evidence was that she led Z away to a tunnel area for privacy. She denied pushing Z against the wall or that she shouted at a teacher. I was not persuaded the mother was being truthful in her evidence on this point. The mother’s conduct was inappropriate not only towards Z but also towards the teacher. I was also concerned as to the mother’s lack of insight into the effect on the children of her attendance at the school and the way she spoke to Z. The mother said she was aware of a note on the school file to the effect that Y had been withdrawn and quite sensitive since the incident, however she did not accept that her behaviour could have impacted his relationship with her.
The mother clearly blamed the father for not promoting a positive relationship between her and the children. Although the mother is entitled to be aggrieved by the father’s failures in this regard she did not fully appreciate the extent to which her own conduct has contributed to the compromising of the relationships. In cross-examination she conceded some responsibility but I was left in no doubt that in her view the heart of the problems she has faced are as a result of the father’s conduct rather than her own. The mother was confident that any issues she might have had with anger in front of the older children will not be repeated in front of the two younger children.
The mother accused the father and his friends of causing her difficulties in (omitted) and driving past her home. She believes she is unable to retain her dignity by remaining in the town given the close knit community and her perception of that community’s judgment of her. I accept there is foundation to the mother’s perception and this was borne out with the evidence of Ms K when asked about her knowledge of whether the father had told the children the mother had had an affair. She replied the whole town knew about it. The mother was clear in her evidence that she will remain in (omitted) regardless of where all five children are living. The mother had been made redundant in her employment in (omitted) and was able to secure a responsible position in (omitted). In cross-examination it became evident the mother did not seriously seek out employment in (omitted) despite being aware of some positions that were available. I am satisfied that she was determined to leave the town.
The father’s evidence was that he found the break-up of the relationship very difficult and accepted that he had expressed negative comments about the mother to or around the children. Soon after separation the father told the children that their mother had had an affair with Mr L. He believed it was better coming from him than hearing the news from others in the town. He also told them that she didn’t care about them and had let them down. The father conceded he said these things and that he now regretted doing so. The father also told the children he would move to (omitted) if they lived with their mother. Although he gave evidence of having moved on and held a different view of the mother, he conceded that he wasn’t sure he had the necessary skills to persuade the children that he had arrived at this different view.
Both parents readily accepted the children as a sibling group are very close. From their evidence I am confident to find that X despite his age spends a lot of time with his father and siblings. V hero worships X and at times follows X around the house. W and Z are very close. They share a room. W calls Z “sis sis” and idolizes her. Z braids W’s hair. W also adores X. Y and V are said to have a close relationship and V likes to do the things that Y does. They play together a lot. All five children have a close relationship with each other.
The ICL retained the services of an experienced social worker, Ms J, to prepare family reports. The first report was prepared on 8 August 2012 after interviews with the parties and children in July 2012. The family travelled from (omitted) to Brisbane for these interviews. The parties had been separated for about 10 months. After taking a detailed history from each parent, interviewing the children and observing the children with the parents the report writer recommended that the children live with each parent in a week about shared care arrangement. She made this recommendation notwithstanding her recognition of the considerable conflict between the parents and the apparent alignment of the three older children with their father and the subsequent compromised relationship with the mother. Recognising this, she suggested the arrangement be reviewed after 6 months if there were any ongoing problems. I will return to some of the relevant paragraphs of this report below.
The report writer was asked to do a second report prior to the final hearing which was initially set down for April 2013. This report was completed in February after interviews at the end of January 2013. In this report the parents’ respective accounts of a number of incidents that had occurred since the previous report were canvassed. The mother told the family report writer that she felt she had no option but to leave (omitted). Ms J was supportive of this and recommended the two younger children live with the mother. In her view whilst recognising the mother’s proposal would see a separation of the siblings, she felt that was the only way the children would be “quarantined” from “the startling rejection of their mother that is found in their father’s home”. She was of the view that even if the mother stayed in (omitted), the daily school contact between the siblings would risk undermining the mother’s parental authority over the younger children.
Concerned that Ms J had not articulated in her written report an assessment of the sibling relationships sufficient for me to fully consider the s.60CC factors particularly in relation to their relationships with each other and the effect on any separation of the siblings not only to different households but to a different town, I requested the ICL obtain a supplementary report from the report writer addressing those issues. The family report writer chose not to re-interview the children and the parents for this additional report which was prepared on 26 April 2013, apparently relying on her earlier interviews.
When cross-examined by the ICL the report writer maintained her view that the 2 younger children should live with the mother in (omitted) and the older children with the father in (omitted) notwithstanding the evidence of their strong sibling relationships. Ms J was of the view that as a general rule the parental relationship was of more significance to the children than a sibling relationship at least in part because of the role a parent plays in guiding and nurturing children. She acknowledged the father loved the children but she felt the mother was able to give a more balanced view of the father than he could of the mother. She was concerned that all of the children would have difficulty managing close and trusting relationships when they become adults without this balance being instilled now. Ms J acknowledged however that if I did not share her view as to the mother being able to present to the children a more balanced view of the father, then I should elevate the sibling relationship in my consideration. Ms J readily acknowledged that there were probably no orders that could substantially limit damage to these children.
Ms J was of the view that it would be intolerable for the mother to live in (omitted) under any circumstance both as a parent and as a person. In her view the mother’s move might assist the family to move on. She also acknowledged however that there was some risk if the two younger children went with the mother that the conflictual dynamic might remain alive for longer particularly in the minds of the three older children.
Mr Jordan on behalf of the father submitted the court would have little if any regard for the recommendations of Ms J in her second and third reports. It was submitted that Ms J took an extremely partisan view supporting the mother and being otherwise critical of the father. It was also submitted that she failed to discharge the task asked of her in the preparation of the third report in that she failed to interview the children and parents to ascertain the nature of the sibling relationships.
In my view Ms J had from the beginning fallen into the trap of preferring one parent over the other - in this case the mother over the father. I also accept the submission that she failed to adequately address the sibling relationships. It is somewhat surprising that, given her evidence that in assessing sibling relationships it is important to look at the character of those relationships, she did not assess the character of the particular relationships in this case other than to comment on the overall sibling group.
Ms J’s evidence I raised some concerns directly with her. My reading of the first and second reports led me to conclude that she had been significantly critical of the father’s behaviour but apologetic for the mother’s. I noted in particular paragraphs [173] and [174] of her first report which read:
He withheld the children from Ms Canning, asserting that they didn’t want to see her. It is my view that, in his grief and desperation, he used their emotions initially as leverage to make her reconsider her decision to leave.
In my opinion, Ms Canning has displayed remarkable fortitude. In her pregnancy with U, she was subjected to moral judgmentalism and family rejection for her ‘immoral conduct.’ Now she is again subjected to wrath and rejection for separating, her actions again being perceived as ‘immoral conduct.’ Everything constructive she ever did within and for the family has been tossed away as of little consequence or value in the eyes of her accusers because of her alleged dishonesty and dishonourable behaviour.
Ms J conceded it was unhelpful to put that in her report. When I suggested that whether it was in the report or not she had formed the view that she would prefer anything the mother told her over that which the father had told her she replied: “Yes I think so.”
At paragraph [177] of her report Ms J recorded:
Intentionally or unintentionally (probably the latter), Ms Canning has been unrelenting in punishing Ms Canning by turning their children against her.
I suggested to Ms J that she did not address any of the mother’s conduct that might have assisted in turning the children against her. Ms J accepted that she had not and that she needed to have said so.
I find that the family report writer failed to turn an independent mind when analysing the data collected in the preparation of her report and therefore her conclusions may have been compromised to such an extent that I am left with no confidence in accepting her recommendations. It is disappointing to come to this position especially when the report writer is a very experienced professional. Ms J has been involved in the preparation of family reports through the courts and in private practice for nearly three decades. All professionals make errors from time to time. The criticism I make in this judgment must be understood as relating to the preparation of the reports for this matter only and not a criticism of Ms J’s professionalism as a whole.
I shall return to a consideration of the family report writer’s analysis of the sibling relationships when I consider them in the context of the s.60CC considerations.

Legal Principles

All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975. In determining their outcome, the Court is required to have regard to the objects and principles that underlie that part[2] and must consider the best interests of the child as the paramount consideration.[3] Whilst that is the paramount consideration it is not the only consideration. In AMS and AIF his Honour Justice Kirby held: [4]
[144] ……a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.
[2] S 60B
[3] S 60CA
[4] (1999) 24 Fam LR 756 at page 792
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[5] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests, the principles are:
a)Children have a right to know and be cared for by both their parents;
b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;
c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
d)Parents should agree about the future parenting of their children; and
e)Children have a right to enjoy their culture.
[5] S 60B lists the objects and principles for Pt VII.
The legislative framework which must be followed in all parenting cases,[6] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[7] This presumption may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply.[8]
[6] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[7] S 61DA
[8] S61DA(2) & (4)
In the event that the court orders the parties to have equal shared parental responsibility, the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[9] If the court finds that equal time is not in the child’s best interests or that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so, must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[10]
[9] S65DAA(1)(a) & (b), MRR v GR [2010] HCA 4
[10] S65DAA(2)(c) & (d)
In determining what is in a child’s best interests the court must consider the matters set out in s.60CC.
This legislative approach must be followed in all parenting cases.[11] This particular case has as one of its elements the issue of relocation. Much has been written and said about relocation cases such that there may be a perception that they are a unique type of case to be determined differently from others. The jurisprudence however is clear that such cases remain to be determined like all parenting matters by considering the best interests of the child in the context of the legislative framework.[12] In Taylor v Barker[13] their Honours Bryant CJ and Finn J said:
[53] …… when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U & U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.
[11] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[12] B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755; Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343
[13] (2008) 37 Fam LR 461 at page 475
Their Honours went on to say:
[83] However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or substantial and significant time” with each parent.[14]
[14] ibid at page 480

Determining the best interests of the children – the s.60CC considerations

The court is required to determine a child’s best interests by considering a number of factors set out in s.60CC. In order to limit duplication I propose to group together a number of these factors. The mother’s Initiating Application was filed on 3 May 2012, I am therefore required to determine this dispute having regard to the s.60CC factors that were in place prior to the amendments that came into effect on 7 June 2012.

The children’s relationships

The benefit to the child of having a meaningful relationship with both of the child’s parents;[15]

[15] S.60CC(2)(a) – this is a primary consideration

The nature of the relationship of the child with:

(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);[16]

The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;[17]

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

[16] S.60CC(3)(b)
[17] S.60CC(3)(c)

(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living[18]
[18] S.60CC(3)(d)

There is no dispute all the children had a close and meaningful relationship with the parents during the marriage. They continue to have a close and meaningful relationship with their father.
The three older children’s relationships with the mother have however been compromised. The mother remains concerned that unless the two younger children live with her in (omitted) there is a real risk that they too will over time have their relationships with her compromised. She is of the view as to this inevitability because in her mind nothing will be done in the father’s household to promote a positive relationship with her. The family report writer also held that view. For the reasons I have already addressed I am not confident in Ms J’s assessment as she failed to keep an open mind. It was submitted on the mother’s behalf that the father’s conduct in telling the children that the mother had had an affair; that she didn’t care about them; and by allowing the children to see him crying would have influenced the children’s views of the mother and that she has been substantially undermined in their father’s home because the father has failed to take steps to positively promote a good relationship between the children and the mother.
Counsel for the father submitted that the mother’s difficulties with the older children stem to a large part from her own conduct since the separation. I have already referred to the evidence of the mother’s conduct in front of the children. I accept Mr Jordan’s submission. In doing so however the father’s own part in the relationship difficulties should not be down played. Both parents are responsible for the break-down of the older children’s relationships with their mother.
What though is the risk to the younger children developing a compromised relationship with the mother in the future? I accept the submission made on the father’s part that if he was undermining the mother’s relationship with the younger children he has failed. These children enjoy a good relationship with her notwithstanding the views of the older children and the father. By the date of the hearing the parties had been separated for over 18 months. V and W have also been exposed to the conduct of both parents in that time. They have very close relationships with their siblings. If there was a real risk of any diminution in their relationships with their mother as a result of things done or not done in the father’s household, it is highly likely that would have become evident at least to a degree by now. I am not persuaded that the risk the mother raises is as high as she perceives.
There is however a risk that if the younger children remain living with the father in (omitted) and the mother remains living in (omitted), which I accept she plans to do, their relationships with her might change in a negative way as a result of her being less available to them. Time spent with children in and of itself is not necessarily a determiner of how a child’s relationship with a parent may develop particularly as children get older. The quality of the relationship is the important consideration. However when a parent moves away, necessitating a reduction in the ability of a parent being involved in the day to day parent/child activities, there is a risk that the quality of the relationship may suffer.
In Mazorski v Albright[19] Brown J said:
[26] ………I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible in their best interests, substantial and significant.
[19] (2008) 37 Fam LR 518 at 526 [26]
I respectfully agree with her Honour’s comments. I find that all five children had meaningful relationships with both parents before the separation. Both parents played significant roles in the care of the children and were involved in their day to day lives. As a consequence of the conduct of both parents the three older children do not currently have meaningful relationships with their mother but they have been able to maintain such relationships with their father. The two younger children continue to have meaningful relationships with each parent notwithstanding their exposure to the difficulties experienced over the last couple of years. The mother’s move to (omitted) has the potential to compromise to some extent the younger children’s relationships with the father if these children move with her or their relationships with the mother if they remain living with the father as a result of one parent not being available on a regular basis to be involved in their day to day lives. This is particularly important for these two children as they were living in a shared care arrangement before the mother’s move and they are still very young. This risk though could be minimised by ensuring the children see the other parent at least once a month during school term and for half of the school holidays. If the mother was to return to (omitted) the risk would be even less as the children would be able to see each parent more often and the parents would be able to be more involved in the children’s day to day activities.
The mother’s proposal would see the separation of the siblings. This is an important consideration. Although I accept as a general principle the opinion of Ms J that ordinarily a parental relationship is of greater importance to that of a sibling relationship, in this particular case the sibling relationships cannot be ignored and in my view are deserving of considerable weight. Ms J did not satisfactorily address the character of the particular sibling relationships she did observe in her first report:
[135] As a group, they are well-behaved and responsive to parental cues. They knit well as a family group and I anticipate that the little ones derive a great deal of security from always being in the company of their older siblings. ……
Both parties accepted this and gave evidence of the nature of the particular relationships to which I have already referred. The mother though did not appear to place much weight on the nature and extent of these relationships when deciding to move to (omitted) and have the two younger children live with her in the future.
Ms J opined that all of the children would suffer grief should they be separated. I accept that opinion.
I propose to give significant weight to the potential for detrimental impact on the children if they are separated. I am satisfied that the two younger children have very close relationships with each of their older siblings as do the older siblings with the younger ones. It was submitted by the mother that the older children would want to visit their younger siblings if they were living with her. It was argued that should this come to pass it may prove to be the catalyst for the children to tell their father that they want to go and thereafter the benefits which come with the freedom of those visits could then be realised. In my view there is a greater risk that separating the siblings could potentially make the task of improving the older children’s relationships with their mother more difficult as they may blame her even more for the break-up of the family unit. If their current sibling relationships were not so strong I might have been more disposed to the mother’s argument but on the evidence I have little confidence separating the siblings is the answer to addressing the older children’s relationships with the mother.
Counsel for the mother submitted that although the father said he had moved on and had a different view of the mother than he did in the earlier stages of the separation, I should find that he doesn’t know how to go about changing the situation in relation to supporting the children’s relationship with their mother – that he simply doesn’t have the capacity to promote an ongoing relationship. There is merit in this argument. Although I found the father presented honestly in his belief that he had moved on, he was unable to articulate how he would go about helping the children develop a different understanding of their mother. Although willing he lacks the capacity to change.
I do not however entirely accept the further submission made by counsel for the mother that she will encourage and facilitate a close and meaningful relationship between the children and their father. Despite some concessions on her part, I am not satisfied the mother has fully accepted her responsibility in the break-down of the relationship with the older children. She lacks insight into her own contribution to the problem preferring to still blame the father. Maintaining that view will not assist her to promote a relationship between the younger children and their father and siblings if the children are living with her.

Risk of harm

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence[20]

Any family violence involving the child or a member of the child’s family[21]

Any family violence order that applies to the child or a member of the child’s family, if:

(i) The order is a final order; or

[20] S.60CC(2)(b) – this is a primary consideration

[21] S.60CC(3)(j)

(ii) The making of the order was contested by a person[22]

[22] S.60CC(3)(k)

The incident of 8 January 2012 was clearly an incident involving family violence. Mutual domestic violence protection orders were made in March that year which have now expired. The mother’s move to (omitted) should assist in minimising any conflict between the parties.
The incidents between the mother and X, Y and W described earlier in this judgment indicate that the mother has had difficulty managing the behaviour of the children and has resorted to some form of physical confrontation with them. I am not satisfied there is sufficient evidence to find that they are at risk of serious physical harm but remain concerned as to the mother’s ability to cope when under pressure.
There is no evidence that the children are at risk of physical harm whilst in the care of the father.
I will address issues relating to the children’s exposure to emotional harm when I consider parental capacity.
Apart from the exposure to family violence, I have mentioned I am satisfied the children have not been exposed to abuse or neglect.

The children’s views

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views[23]

[23] S.60CC(3)(a)

The older three children have clearly aligned themselves with the father and do not currently want to have a relationship with the mother. Their views have no doubt been formed through their experience of the break-down of their family unit. I do not accept the mother’s submission that their views have been mainly influenced by the father. Whilst I do accept his comments and failure to correct his comments would have influenced the children, they have also observed their mother’s conduct which would not have assisted them in their relationship with her. Both parties recognise the reality of the strongly held views of the older children and are agree to them remaining with their father.
The younger children appeared to the family report writer to be unaffected by the conflict. Although W expressed a preference to live with her father, the family report writer opined this was likely a result of going with the flow of her older siblings. This may be the case. In any event the younger children’s wishes and views would not be determinative of their future parenting arrangements given their young age and level of maturity and therefore little weight will be given to this consideration.

Practical difficulties

The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis[24]

[24] S.60CC(3)(e)

The mother’s move to (omitted) has made it more difficult on a practical level for the children to see their non-primary carer regularly. The driving time between the two towns is around 5 hours. The mother appeared to recognise that such travel would be too much for the younger children to spend alternate weekends with the father if they lived with her. She proposed once a month. In my view that would be manageable and would be appropriate regardless of which home the children lived.

Parental capacity and responsibility

The capacity of:

(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs [25]

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents[26]

The extent to which each of the parents has fulfilled or failed to fulfil, his or her responsibilities as a parent[27]

[25] S.60CC(3)(f)

[26] S.60CC(3)(i)

[27] S.60CC(4). Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents: (a) has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child; and (b) has facilitated, or failed to facilitate, the other parent: (i) participating in making decisions about major long-term issues in relation to the child; and (ii) spending time with the child; and (iii) communicating with the child; and (c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child. S60CC(4A) provides that if the child’s parent’s have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

Before they separated both parents provided for the children’s day to day needs. There is no evidence to suggest that they will not be able to do so in the future. It was submitted on behalf of the father that the court should be concerned the mother had not completely thought out the practical implications of her move to (omitted) and working in (omitted). The distance between these two towns is not in my view problematic and the mother would be able to make appropriate arrangements for the care of the children whilst she was working.
Counsel for the mother submitted that the father had not met his financial responsibilities since separation. The father conceded the mother had paid the school fees and for some school activities. The issue though was not canvassed sufficiently in cross-examination for me to find that the father had failed to meet his financial responsibilities. Both parties have worked in paid employment and have provided for the children from their income.
The significant issue in this consideration is the capacity of the parents to meet the children’s emotional needs. There is no doubt that each parent has acted inappropriately to and in front of the children to such an extent that they have failed to meet the children’s emotional needs. The father has not been able to shield his distress at the break-down of the relationship; he told the children he would move to (omitted) if they lived with their mother and he told them he had cancer. When challenged about his claim to have cancer the father was vague and unable to provide any evidence of such a diagnosis or treatment. The father appeared to have accepted that he had said things to the children he should not have but he appeared to lack any insight into how he could assist the children to have a better relationship with the mother. There is a risk that the emotional health of these children will be compromised unless the father is able to garner that insight.
Unfortunately the mother’s conduct does not give me confidence that she has sufficient insight to avoid emotional harm to the children. Whilst some of her conduct could be understood in the context of the challenging behaviour of the children, and accepting that all parents make mistakes, the mother’s conduct on 8 January 2012 and her attendances at the children’s school cause me concern that at times she is not able to remain child focused and as such her conduct could lead to ongoing emotional harm to the children.
Y’s request to his teacher for help is indicative of a child in need of emotional support. That has not been sufficiently forthcoming from either parent. I am not confident that, at least in the short to medium term, either parent has been able to move on from their dispute sufficiently to have the capacity to meet the children’s emotional needs. In making that finding, I do not accept the family report writer’s opinion that the mother would be more balanced than the father.

Background issues

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant[28]

[28] S.60CC(3)(g)

If the child is an Aboriginal child or Torres Strait Islander child:

(a) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(b) the likely impact any proposed parenting order under this Part will have on that right[29]
[29] S60CC(3)(h). S60CC(6) provides that for the purposes of paragraph (3)(h), that an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right: (a) to maintain a connection with that culture; and (b) to have the support, opportunity and encouragement necessary: (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and (ii) to develop a positive appreciation of that culture

This issue was not canvassed by the parties. I note there is no evidence of the children being of Aboriginal or Torres Strait Islander background.

Limiting further proceedings

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child[30]

[30] S.60CC(3)(l)

Further litigation will not be in the best interests of these children. It will only continue the bitter dispute between the parents. Unfortunately there is some risk to further litigation with each of the proposals. If the two younger children were to live with the mother in (omitted) and as a consequence separated from their older siblings, there is potential for disputes to arise should the children not cope with the separation. If all children live with the father in (omitted) there is a risk that the younger children’s relationship with the mother will become compromised. Whilst I consider the later risk to be less than the former, I am not able to foretell the future. I do agree with the family report writer when she said that there were probably no orders that could limit damage to these children.

Any other fact or circumstance that the court thinks is relevant.[31]

[31] S.60CC(3)(m)

The mother maintained that she was in a relationship with Mr L. Mr L was not interviewed for the purposes of the family reports and although he had filed an affidavit he did not present for cross-examination and accordingly the affidavit was withdrawn. There was no explanation for his non-attendance at court. Counsel for the mother argued that no great moment should be made of his non-attendance. I have difficulty with that submission. The mother sought orders for the two younger children to live with her. It would have been helpful to the court to receive evidence from Mr L as to his intentions on maintaining his relationship with the mother and what role he considered he would play in the these children’s lives. Without his evidence I am left somewhat in the dark.

Presumption of Equal Shared Parental Responsibility

In light of the family violence warranting the making of the family violence orders in 2012, I am satisfied that the presumption of equal shared parental responsibility has been rebutted.
The father had sought an order for equal shared parental responsibility whereas the mother and ICL submitted that the parent with whom the children lived should have sole parental responsibility for them.
For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[32] Unless there is a court order to the contrary, each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[33] When a court has made an order for two (or more) people to share parental responsibility for a child, any decision involving a major long-term issue must be made jointly by those people after consulting each other.[34] A major long-term issue in relation to a child means an issue:
[32] S61B
[33] S61C
[34] S65DAC
about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[35]
[35] S.4
In light of the significant difficulties the parties have experienced in communicating, I am not confident that they will be able to consult with each other to make joint decisions about these important issues. The mother appeared to recognise this by seeking a sole parental responsibility order to rest with the parent with whom the children live. Denying a parent the opportunity to contribute to important decisions affecting a child should not be done lightly. As a general rule children would benefit from having the input of both parents in such decision making. However when the parents are unable to exercise that responsibility together in a respectful and effective way, the children’s best interests will not be met. In this case, at this point in time, the parents do not have the capacity to communicate effectively. I am therefore persuaded it would be appropriate to order the parent with whom a child lives to have sole parental responsibility for that child.

Consideration of Equal Time or Substantial and Significant Time

Having determined that the presumption of equal shared parental responsibility has been rebutted and a sole parental responsibility order would be in the children’s best interests, I am not required to consider the provisions of s.65DAA. The father though had sought an order that the two younger children live with the parents in a week about arrangement. He did this on the basis that the mother was living in (omitted). In light of her evidence that she would not return to (omitted), he did not press that order. Clearly an equal time arrangement or a substantial and significant time order will not be reasonably practicable if the parties continue to live in different towns some 5 hours apart.

Discussion

In determining what is in the children’s best interests I have weighed up the matters discussed above. In doing so I have given considerable weight to nature of the younger children’s relationships with both parents and the mother’s concern that her relationships with them might deteriorate if they live primarily with the father. She is particularly concerned that the father will either deliberately or by a lack of insight and capacity fail to promote her relationships with them. She is concerned that the older children who have already made up their mind will also influence the children. It is not surprising the mother holds that view given she blames the father largely for the current predicament with the older children. She might well be right. However, I am of the view the mother lacks insight into the extent of her own involvement in the older children’s relationships with her despite the concessions she made at the hearing. The mother also lacked insight into the effect her relocation to (omitted) could have on each of the children. It would be too simplistic to suggest that any future compromising of the relationship would develop from what is said or failed to be said in the father’s household. The children’s adjustment to the mother’s absence itself has the potential to cause problems in their relationships with her.
Although the mother submitted that by having the two younger children together with her would help them in any adjustment to being away from the father and the other children I am not confident that that will be the case. The sibling relationships are important to all of the children. It is my view that this must also be given significant weight. There are times when it is appropriate to separate siblings but care must always be taken when considering such a course to be satisfied that in doing so the best interests of each of the children are catered for if possible. Given each child may have their best interests met by different outcomes that will not always be possible. In this case I am satisfied that both W and V have close relationships with each of their older siblings and that it would be detrimental for them to be separated from them.
The benefit of having a meaningful relationship with a parent is a primary consideration and therefore although I have given considerable weight to the sibling relationships I have done so in the context of weighing that issue up with the primary parental relationship consideration. In considering these issues I am of the view that the mother’s meaningful relationship with the younger children will be maintained even if they live primarily with the father. They currently have a good relationship with her largely unaffected by the conduct of their older siblings and their father. There is a risk though that their relationship with the mother might falter if they are separated from their siblings and experience feelings of loss and grief. On balance I am persuaded their best interests would be met by remaining in their father’s household with their older siblings. I am also of the view that if the two younger children were separated from the older children, these older children will likely blame the mother even more and thereby hamper any chance of restoring their relationships with her. It would not be in their best interests for the younger children to be separated from them.
I have given some weight to the risks of harm in the mother’s household given the incidents with the children. Overall however that issue did not outweigh the other considerations. Parental capacity was an important consideration to which I gave some considerable weight but have concluded that both parents have deficiencies that give me concern as to their ability to always be child focused. Neither parent stood out as having greater capacity to meet the children’s needs.
Although I have no doubt the mother does not intend to return to (omitted), her move to (omitted) occurred only two weeks prior to the trial. I do not accept her counsel’s submission that she has settled there although I accept she has moved to house in which she has some ownership interest and has a job in a neighbouring town. Mr L did not give evidence leaving a question mark over his role in the children’s lives.
When I weigh all of those considerations I am persuaded it would be in the children’s best interests for all of them to live primarily with the father in (omitted). For the reasons I have already found it would be appropriate to make an order that he have sole parental responsibility for them.
Given the distance between the two towns it would be appropriate to make orders that provide for the younger children to spend time with the mother once a month during school term and for half the school holidays. In relation to the older children it is necessary to consider whether specific orders for them to spend time with the mother should be made as she proposes or leave any such time up to their wishes which the father proposes. The ICL submitted that no spend time orders should be made for X, presumably given his age, but that there should be orders for the other children should they live with the father in (omitted). It was submitted that for Y and Z the time should be during the school holidays. There were no specific submissions as to why this would be in their best interests. Given X’s age I am satisfied that it would be appropriate to make an order that he spend time with his mother in accordance with his wishes. In relation to Y and Z, I am satisfied that it would be appropriate to make specific orders for time. It is in their best interests to spend time with the mother to assist in the repair of their relationships with her. I propose to limit the specific order to the school holidays as to also specifically order them to spend time with the mother during the school term might be too much for them at this stage in light of the compromised relationships. I intend however to make an order that they spend the time on the weekend if they choose to go. The holiday time though will not be subject to their wishes. I remain hopeful that with the mother living in another town and the sibling unit remaining intact the older children will come to feel less angst toward their mother and will take up opportunities to spend time with her but if all of the opportunities to spend time are subject to their wishes they may never commence to do so.
I have not addressed what arrangements should be put in place in the event the mother returned to (omitted) given her emphatic evidence that she would not do so.
For the reasons set out above I make the orders set out at the commencement of this judgment. I have not made a specific order in relation to the children spending time with each parent on Christmas Day. Both parties sought orders that would have involved the children travelling for five hours on Christmas day. I do not consider that to be in their best interests. Given each party recognised the benefit of the children spending time with the other parent at Christmas I am hopeful they will be able to reach agreement for a more child focused arrangement.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn

Date: 28 November 2013

Exhibit ICL1: Bundle of documents

[2013] FCCA 2019

28 November 2013

Key Legal Topics

Areas of Law

Family Law