Caravaggio & Caravaggio

[2011] FamCA 254

FAMILY COURT OF AUSTRALIA

CARAVAGGIO & CARAVAGGIO [2011] FamCA 254

FAMILY LAW - CHILDREN – Relocation – Best interests – Where mother resides in Melbourne with the children and father resides in Sydney – Where children enjoy good relationships with both parents – Where the mother is the primary carer of the children – Where relocating children to Sydney not in the children’s best interest

Family Law Act 1975 (Cth) ss 60B, 60CC

AMS v AIF (1999) 199 CLR 160
Collu & Rinaldo [2010] FamCAFC 53
Goode & Goode (2006) FLC 93-286
Hepburn & Noble (2010) FLC 93-438
McCall & Clark (2009) FLC 93-405
MRR v GR (2010) 240 CLR 461
Sealey & Archer [2008] FamCAFC 142
Starr & Duggan [2009] FamCAFC 115
Taylor & Barker (2007) FLC 93-345
U & U (2002) FLC 93-11

APPLICANT: Mr Caravaggio

RESPONDENT: Ms Caravaggio

FILE NUMBER: SYC 4425 of 2009

DATE DELIVERED: 14 April 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 15, 16 & 17 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Livingston

SOLICITOR FOR THE APPLICANT: Armstrong Legal

COUNSEL FOR THE RESPONDENT: Ms Byrnes

SOLICITOR FOR THE RESPONDENT: Purcell & Purcell

Consent Orders made 17 February 2011

1. The mother and the father have equal shared parental responsibility for the children of the marriage, T and B both born on … February 2007 (“the children”).

2. That during the times the children are in the care of either the mother or the father each party be at liberty to contact the children by way of telephone each night between 6:00 pm and 7.00 pm and each parent is to facilitate such calls.

3. During the times the children are in the care of either the mother or the father each party be at liberty to communicate with the children by way of Skype between 7.00 pm to 8.00 pm on Saturday’s and Sundays and as otherwise agreed between the parties.  Such arrangements to commence within seven (7) days of the date of these orders and both parties are at all times required to have the requisite computer and internet facilities to facilitate same at their own expense.

4. Both the mother and the father do all such acts and sign all such documents necessary to apply for passports for each of the children within fourteen (14) days from the date of these orders and each party equally share the costs of same.

5. The mother retain such passports.

6. The parties are to do all such acts and things and sign all such documents to ensure that the children always have a valid passport.

7. The father be at liberty to take the children on a holiday to Europe in 2011 and shall provide to the mother in writing, at least twenty-eight (28) days before such travel, a copy of the departure and return flight tickets for the children and the father, itinerary including places of accommodation and contact telephone numbers.

8. The mother be at liberty to take the children on a holiday to Europe in 2012 provided that holiday occurs during a school holiday period and no more than fourteen (14) days of school term time and the mother shall provide to the father, in writing, at least twenty-eight (28) (days before such travel) a copy of the departure and return flight tickets for the children and the mother, itinerary including places of accommodation and contact telephone numbers.

9. The children will attend a non-denominational comprehensive government school from Kindergarten to the end of their primary education, after which they will attend a Roman Catholic secondary co-education high school. 

10. While the children are to know their … Orthodox Religion and heritage, they are to receive the sacraments of Reconciliation; Holy Communion; and Confirmation in the Roman Catholic Church in Sydney, to which all members of the mother’s family are at liberty to attend.

11. Neither party shall denigrate the other, or allow any other person to denigrate the other parent in the presence or hearing of the children.

12. The mother and the father each notify each other within seven (7) days prior to any intention to change their residential address and provide each other the details of the proposed change of residential address and also notify each other of any change of telephone number within twenty–four (24) hours of such change of telephone number.

13. In the event the children suffer any illness or injury whilst in the care of either parent, that parent shall as soon as practicable provide details to the other parent including the nature of the condition, treatment rendered and the name, address and telephone number of the attending medical practitioner or provider.

14. The father be at liberty and at his own expense to obtain copies from the children's school any newsletters, notices, school reports, photographs and any other publication by the children’s school. The father is also at liberty to arrange and attend separate parent teacher interviews and other school events normally attended by parents.

15. The mother and the father forthwith enrol and successfully complete a post parenting program and each provide the other parent within six (6) months from the date of these orders, a copy of the certificate of completion for the program they have attended.

16. The mother attend upon a counsellor as recommend by her doctor for the purpose of therapeutic or supportive counselling and provide a letter of completion to the father within six (6) months from the date of these orders. 

Notations made 17 February 2011

A.The father has enrolled in a community based child behaviour management course called … and intends as soon as possible to commence that course and on completion of the course he will provide the mother with a certificate or letter of completion for that course.

B.The father must pay for part of the costs of the tickets pursuant to Order 7 by this Saturday 19 February 2011. 

C.The parties agree that when the children commence their secondary schooling at a Roman Catholic School the mother will pay the costs of uniforms and text books for each of the children and that the father will pay the tuition and other fees charged by the school directly to the school for both children. 

It is further ordered on 14 april 2011

1. The children, T and B both born on … February 2007 shall live with the mother.

2. The children shall spend time with the father as follows:

   (a)until they start school for seven (7) consecutive days in each twenty one (21) days in accordance with the current arrangements;

   (b)from when the children commence school during school term as follows:

   (i)for one (1) weekend each month at times to be agreed and failing agreement no later than 7.00 pm on the Friday until no later than 7.00 pm on the Sunday;

   (ii)in Melbourne at agreed times on the provision of fourteen (14) days notice to the mother;

   (iii)such additional time as agreed in writing between the parties.

   (c)from when the children commence school, during school holidays as follows:

   (i)for the end of Term 1, 2 and 3 school holidays, commencing the day after classes finish and returning 6.00 pm on the Thursday of the week before school commences for the following term;

   (ii)for the Christmas school holidays, commencing on the first Saturday after classes end until 6.00 pm on the Thursday of the week before school resumes.

3. Order 2(c)(ii) is subject to the children being in the mother’s care from 6.00 pm on 3 January until 14 January annually.

4. The children’s time with the father in accordance with Order 2(c)(i) may be suspended by the mother once each calendar year to enable them to spend time with her for one block period comprising an additional four nights to those which she is otherwise entitled.  This order is conditional upon the mother holidaying interstate with the children or for a special occasion, in relation to which the mother shall give the father no less than fourteen (14) days notice.

5. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders

6. All outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4425 of 2009

Mr Caravaggio

Applicant

And

Ms Caravaggio

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings in relation to the parties’ four year old twins, T (a girl) and B (a boy). 

2. When the children were about 19 months the respondent mother’s father was diagnosed with terminal cancer.  Early medical advice indicated his life expectancy was very short.  Immediately the mother (Ms Caravagio) returned to her parents in Melbourne.  This is where she lived until she moved to Sydney in preparation for marriage to the children’s father (Mr Caravaggio).

3. Before the mother moved to Sydney she secured the father’s promise that if she was unhappy in Sydney and wanted to return to Melbourne to live, they would. In the approximately two and a half years she had been in Sydney the mother had not settled and deeply missed her family.  In this period she and the father were required to cope with significant pressures and although the twins were a joy, their circumstances were fairly arduous.  On this initial visit after the maternal grandfather’s diagnosis, the children remained in Sydney with the father and his parents.  Quickly the mother decided she would stay in Melbourne.  Moved by the gravity and emotion of the situation the father agreed they would relocate to Melbourne with the children.  Thus, in late September 2008, with the father’s consent, the mother collected the children and returned to Melbourne where they moved in with her parents.

4. Ultimately the father decided against moving and the parties separated.  Ostensibly his decision was based upon the notion his financial future is rosier in Sydney.  However, it is clear he too realised he would be unhappy living so far away from his family which is his principal reason for staying put. 

5. After a period during which the parties were unable to agree on how the children’s interim living arrangements should be configured, they have respectfully and cooperatively ensured the children had regular contact with both of them. 

6. Without doubt these children are dearly loved and each parent realises it is essential to their children’s well-being that they enjoy meaningful relationships with both parents and their extended families.  During the hearing many issues were resolved and each parent demonstrated their genuine desire to make decisions about the children with the children’s best interests as the determinant.  In some instances this required the parties to put the children’s interests ahead of their own.  That they were not motivated by self interest bodes well for the future.  Nonetheless they have been unable to agree about the critical decision of how the children’s time should be divided.  The mother’s proposal is predicated upon the children living with her in Melbourne.  The father’s proposal is predicated on the children’s time being shared in a fashion which is reasonably practical only if the children live in Sydney or he moves to Melbourne.  This the father will not do.   

Background Facts

1. The father was born in 1976.

2. The mother was born in 1982.

3. In March 2005, for employment reasons, the father moved to Melbourne for 12 months where, shortly after he arrived, the parties met. 

4. In August 2005, the father returned to live in Sydney.  He continued to travel to and from Melbourne for up to a week at a time every two weeks.

5. In December 2005, the parties commenced dating.  Approximately every second weekend the father would travel to Melbourne or the mother would travel to Sydney so they could spend time together.

6. In May 2006, the parties became engaged.

7. In June 2006, the mother moved to Sydney where she moved into an investment property owned by the father.  A few weeks later her best friend, Ms C, moved to Sydney.  With the father’s agreement she moved in with the mother.

8. In about July 2006, the father moved from his parents’ home and commenced living with the mother.  Ms C lived with them until about four weeks before the twins’ birth.

9. In September 2006, the parties married.

10. The mother’s pregnancy was very difficult.  She stopped work before the children were born and was their fulltime carer until she returned to work on a fulltime basis in May 2007.  Unknown to the mother and the father’s parents, the father had signed a guarantee for a loan advanced to his employer.  The borrower defaulted and the lender and borrower placed the father under intense pressure to make good the advance.  The borrower failed to pay the father’s wages.  Consequently, he and the mother were in an awful situation financially and, although the children were only three months old, it was financially imperative she return to fulltime work.

11. From when the children were about three months the father’s parents, cared for them during the day from Monday until Friday each week.  About twice a month the children stayed the night.

12. On 14 September 2008, the mother’s father was diagnosed with terminal cancer.

13. By late September 2008, the mother and children resided with her parents in Melbourne.  It was agreed as soon as the father found work in Melbourne he would join them.

14. A loose pattern developed of the mother driving the children to Sydney every 2-3 weeks to be with the father.  She and the children would usually depart Melbourne on a Thursday morning and return to Melbourne three or four days later. 

15. By late January 2009 the father had still not moved to Melbourne.  Even before the maternal grandfather became ill, the mother was unhappy living in Sydney.  She missed her family and friends and notwithstanding the paternal grandparents’ kindness to her, she struggled emotionally.  Having returned to her family, she realised not only that her parents needed her support but she wanted and needed to be with them.  Thus, as it became clear to her the father would not move to Melbourne, she told him they should separate.

16. In the following months the children travelled back and forth between Sydney and Melbourne during which they stayed with the father and paternal grandparents for four weeks from mid March 2009 and three weeks from 30 May 2009. 

17. Throughout this period, the parties tried to resolve the children’s future living arrangements.  They were unable to agree and on 10 July 2009 their disagreement resulted in a heated discussion, during which the father told the mother that, notwithstanding her objections, he planned to take the children.  In response, the mother advised the father she would not agree to his taking the children to Sydney “until some sort of legal custody arrangements have been made”.  Until then, she agreed he could continue to speak to the children every night and see them under supervision in Melbourne.

18. Two weeks later, on 27 July 2009, the father commenced these proceedings.  He filed an Initiating Application, as well as an Application for Interim Orders, both of which were returnable on 7 September 2009.  Interim orders were made on 7 September 2009 to the effect that the children would continue to reside with the mother in Melbourne and spend time with the father in Sydney from Wednesday afternoon until Sunday evening once every three weeks.  Six weeks after the mother’s father passed away she would be required to return the children to Sydney where the children would continue to reside with her.  They were ordered to spend time with the father each Tuesday from 6.00 pm until the same time the next day and each alternate weekend from 6.00 pm Friday until 6.00 pm Sunday.  For so long as the children were travelling between Sydney and Melbourne to see the father, he would collect them from the mother at Tullamarine Airport and return them to her at Sydney Airport.  Thus, the effort and cost of travel were shared equally. 

19. In addition, there is a raft of additional orders which provide for the children to spend time with their parents on special occasions, provide a mechanism for communication between the parties and daily contact by telephone every day with the absent parent.

20. With these orders the parties complied.

21. From September 2008 to September 2009 the father had the children in Sydney 62 days.

22. The mother’s father survived and thus the event which would have triggered her obligation to return the children to Sydney has not occurred. 

23. During the hearing the parties agreed that pending the children being ordered to live in Sydney or the start of the 2012 school year, whichever first occurred, the children would spend time with the father in Sydney seven consecutive nights in each 21 day period.

The applicable law

1. Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A).  They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children”. Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child, has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DA(4)). Thus, if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements.

2. Section 60B sets out the objects of Pt VII and the principles, which underline those objects.  In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensure that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed.  The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimal outcome.  Where there are no countervailing factors, the s 60B principles may be decisive.  Section 60B is set out below.

   1.The objects of this Part are to ensure that the best interests of children are met by:

   (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.

   2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (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).

   3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or 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.

1. In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC.  Section 60CC(1) contains two primary considerations.  The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)).  The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). 

2. The Court must also consider the thirteen additional considerations set out in   s 60CC(3).   These must be considered to the extent that each is relevant to the particular case.  Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”.  This ensures that the infinite variety of children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities (s 60CC(4)).  In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence (s 60CG).  Ultimately, the weight attached to each factor is a matter for the Court’s discretion.

3. If the Court is satisfied parents are to have equal shared parental responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with his or her parents        (s 65DAA) and whether doing so would be in the best interests of the child   (ss 65DAA(1)(a) and (2)(c)).  The notion of equal time requires no explanation and is decided first.  If equal time is not ordered, substantial and significant time must be considered.  This concept is defined in ss 65DAA(3) and (4).

4. Where neither concept delivers an outcome that promotes the child’s best interests, the issue is at large and to be determined in accordance with the child’s best interests.  Goode & Goode (2006) FLC 93-286.

5. Since the 2006 amendments to Part VII there have been a number of cases in which the Full Court of the Family Court has discussed the approach to relocation cases.  In particular, Taylor & Barker (2007) FLC 93-345, Sealey & Archer [2008] FamCAFC 142, Starr & Duggan [2009] FamCAFC 115, McCall & Clark (2009) FLC 93-405 and Hepburn & Noble (2010) FLC 93-438.

6. In Taylor & Barker their Honours in the majority (Bryant CJ and Finn J) referred to Goode & Goode where the Full Court set out the pathway to be followed in parenting cases.  The majority specifically adopted the now oft quoted par 65.    In the context of the appellant’s assertion that the trial Judge had erred in dealing with the issue of relocation and the reasons for it as a separate and determinative issue instead of following the course referred to in Goode & Goode, the majority in Taylor & Barker held there was no substance to this ground of appeal.  They held at par 60:

   In our view, his Honour dealt with the relocation proposed in the context of his consideration of s 60CC and s 65DAA, at least in so far as it was possible to do so.  It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, as far as possible, in the context of the making of the necessary findings in relation to the relevant s 60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s 65DAA.

7. In McCall & Clark the Full Court discussed and incorporated the matters of principle from Sealey & Archer.  Relevantly their Honours said:

   60.In Sealey & Archer [2008] FamCAFC 142 the Full Court (Bryant CJ, Finn and Thackray JJ) said at paragraph 63:

   While it has been recognised that the Act does not provide any express direction or guidance as to the overall order in which the provisions of Part VII must be applied (Taylor & Barker (2007) FLC 93-345 at [62]), the legislation does require in s 61DA that when a court makes a parenting order, it must apply the presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for the child (unless there are circumstances in which the presumption does not apply, or in which it would be inappropriate to apply it, or it is rebutted), and it further requires in s 65DAA that if there is to be equal shared parental responsibility for the child, consideration must be given to the child spending equal time (or if not, substantial and significant time) with each parent.

8. And at pars 66 and 67:

   Again as was recognised in Taylor & Barker (supra, see in particular paragraphs 58 and 77-83), in a case which involves a proposal that there be a significant change in the place where a child lives, it is appropriate for a court in its application of s 65DAA, and particularly s 65DAA(5), to canvass the advantages and disadvantages of a proposal “to re-locate” the child.  We would also expect that the court would have addressed the matters arising under s 65DAA(5) in the context of its consideration of relevant s 60CC matters.

   In making the latter observation, we should say that we do not see anything said in Taylor & Barker as suggesting that a trial judge would ignore the relocation proposal when making the necessary s 60CC findings…

   No doubt frequently, as in the instant case, the non relocating parent’s proposal will be for an equal shared care arrangement, facilitating the consideration of matters under s 65DAA as one of the proposals, and not as an abstract exercise.

   In our view, it is inevitable, given the provisions of the legislation, that the exercise to be undertaken will, on its face, involve dual consideration of some matters.  For example, consideration of matters under s 60CC(3)(d) (the likely effect of any change in the child’s circumstances) and matters in s 65DAA(5)(a) and (b) and s 60CC(3)(e) (practical difficulty and expense of a child spending time with a parent) and s 65DAA(5)(a), (b) and (c) involve examination of similar criteria.

9. Thus relocation cases are to be approached as follows:

   ·    they are parenting cases to be determined in accordance with Part VII;

   ·    the child’s best interests is the paramount but not the only consideration;

   ·    a relocation proposal should be considered and evaluated in the context of making necessary findings in relation to the relevant s 60CC matters and, where relevant, s 65DAA;

   ·    in its application of s 65DAA, and particularly s 65DAA(5), it is appropriate to canvass the advantages and disadvantages of a proposal to re-locate the child.

1. It is still the case that neither party bears an onus to establish that a proposed change or the continuation of an existing arrangement will best promote the best interests of a child.  AMS v AIF (1999) 199 CLR 160. Notwithstanding a parent’s right of freedom of movement, this must defer to the child’s best interests. (U & U (2002) FLC 93-112). As with any parenting case subject to affording the parties procedural fairness, the Court is not restricted to their proposals.

2. More recently, the High Court published MRR v GR (2010) 240 CLR 461. This relocation case related to a parent’s proposal to leave Mt Isa with the parties’ child and live permanently in Sydney. The child’s other parent proposed to remain in Mt Isa and applied for equal time orders. At par 9 of their reasons the High Court said:

   Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.

3. At par 13 the High Court said:

   Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist[12]. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.

4. And at par 15 the High Court explained:

   Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent.  The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1).  Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. 

5. See also Collu & Rinaldo [2010] FamCAFC 53.

The father’s circumstances and proposals

1. The father resides with his parents in a home owned by them at Sydney Suburb 1 in the western suburbs of Sydney.  The father’s parents have lived in this house for about 10 years.  It is a ground level, single storey home with a fully enclosed backyard.  This is where the paternal grandparents cared for the children from when they were about three months old and is where the children spend time with the father pursuant to the current orders.  The home is nicely established and provides comfortable accommodation for the children.  Although the children have their own rooms, presently they share a bedroom.

2. The father, his brother and parents migrated to Australia from Europe.  The father’s sister and grandparents remained in Europe.  His sister is married and has two children.  The father’s brother, his wife and two children live in the same neighbourhood as him and his parents.  The father’s family are close and he, his parents and his brother’s family see each other daily.  Later this year, the father, his parents and the children will visit Europe for between 6-8 weeks, during which the children will meet many of their paternal relatives for the first time.

3. The father and his family are devout Roman Catholics.  He and his parents attend Mass every week and it is of the upmost importance to them that the children share their faith.  With the mother’s agreement the children have been baptised Roman Catholics and as a result of agreement reached during this hearing they will continue to participate in their Roman Catholic faith and, in high school, attend a Catholic school. 

4. The children will also continue to share their mother’s Orthodox faith.  The parties agree Roman Catholicism and Orthodox religions are closely connected and, I infer, they are confident they will be able to guide the children’s religious lives in a way which is respectful of any differences.

5. Since 31 January 2011 the father has been employed as a labourer.  This is a casual position in which he works a standard eight hour day, five days a week.  Previously he has worked as a manager in which he has considerable experience.  He was employed in that capacity when he met the mother whilst living in Melbourne.

6. When the father agreed to move to Melbourne with the mother in later 2008, he placed his name with a number of Sydney based employment agencies who recruit for Melbourne employers.  He also made enquiries in Melbourne.  None of these avenues resulted in the father being interviewed.  The period during which the father looked for work in Melbourne was short and he has not subsequently explored the prospect of obtaining work in Melbourne.  The father’s occupation is not so specialised that in a city the size of Melbourne, with modest effort by him, I infer he would be unable to obtain employment comparable to that which he has secured in Sydney.  The father has a cousin in Melbourne but neither friends nor family to whom he is close.

7. The father and his father referred to the father’s difficult financial position, the details of which were not revealed.  In January 2009, the father sold the parties’ home and apparently used the sale proceeds to discharge debt.  It appears he remains indebted and has borrowed money from his parents to fund this litigation.  Although difficult, his financial position is not so dire he would be unable to afford to meet the costs of travel between Sydney and Melbourne for he and the children if this is where the children live. 

8. He pays $441.00 monthly child support and later this year will take the children to Europe.  The father shares equally the children’s travel costs between Sydney and Melbourne.  When the children start high school, the parties agree he will pay their private school fees.

9. It is the father’s intention to continue fulltime employment.  If the children live in Sydney until they commence school in 2012 he proposes they live with him on a fortnightly cycle, from 6.00 pm Friday until 6.00 pm Monday in one week and 6.00 pm Thursday until 1.00 pm Saturday the following week.  Once the children start school he proposes they live week about during school term and basically spend half each school holiday with him.  Adjustments would be made for special occasions, such as Orthodox Christmas and Easter.

10. The father’s proposal that within 12 months the children’s time is effectively divided equally between the parties, puts into context a number of the concerns raised by him about the mother’s parenting capacity.  I do not accept that if the father believed the mother was seriously depressed, prone to bouts of unprovoked anger or more inclined to sleep than care for the children, he would have applied for the orders sought by him.  As will be discussed later in relation to these matters I consider the father’s evidence was exaggerated.  Whilst I understand he was motivated by his desire to secure the children’s return to Sydney, his exaggeration about these matters was unfortunate.

11. The paternal grandfather joined in the father’s criticism about the mother’s tardiness and need for sleep.  A theme developed in the father’s case based upon a speech her late brother gave at their wedding.  Apparently, he recounted a story about the mother, as a teenager, sleeping from Friday evening until Sunday.  This was said to resonate with the paternal grandfather’s experience of the mother being tired after the twins were born.  It will be recalled the mother was struggling with financial stress in the parties’ marriage, was separated from her family, endured a difficult pregnancy and birth, for three months had overwhelming responsibility for newborn twins and then returned to work fulltime.  Hers was a heavy load and the evidence did not establish her sleeping pattern was anything more than could have been expected.  In my view the father and his father’s claims about her sleeping bespeak an unfortunate lack of regard for her efforts.

12. The father’s parents are retired and are happy to assist him with the children’s care.  Presently, they care for the children during the day while he is at work and I am satisfied for so long as he wishes it, they will complement his parenting role.

The mother’s circumstances and proposals

1. The mother and children reside in a home she rents at Melbourne Suburb 1.  Recently her parents sold a farm at Victorian Town 1.  They plan to purchase a five bedroom home in the Melbourne Suburb 1 area which is where they, the mother and children would live.

2. The mother and children have become an integral part of her parents’ lives.  Her father is frail and fortnightly undergoes chemotherapy in Melbourne.  He is not well enough to drive and the maternal grandmother is not confident about driving.  Thus, the mother takes her father to his chemotherapy sessions which, generally involves an overnight stay in hospital.

3. Tragically on 15 July 2010 the mother’s brother L suffered gas poisoning which resulted in his death in August 2010.  He lived with the maternal grandparents who were reliant on him to conduct household finances and, because of their limited English, external communications.  The mother has taken on these responsibilities.

4. The maternal grandmother’s distress about her family’s loss and circumstances was palpable.  I had no difficulty as accepting as genuine her fear she would be unable to cope without the mother.  Although the mother’s sister D resides in Melbourne, she is self-employed and has four children under the age of 18 years in her care.  Even if she were in a position to provide the practical and emotional support to her parents that the mother provides this would be no substitute for the emotional support the mother and her parents receive from each other.

5. In accordance with her ancestral culture the mother visits her brother’s grave every Sunday with the children which they will continue until the first anniversary of his death.  Although no criticism was made by the father or his parents about this it was commented upon in submissions made on the father’s behalf.  It formed part of a theme that the children should spend more time with the father in order to protect them from the grief which was said to swirl around the mother and her parents.  While many tears were shed in this hearing and the maternal family grieves the loss of a beloved son and brother and know the maternal grandfather’s time is limited, the children are not burdened by grief.  The adults relish the children and do their best to keep their sadness from them. Such sadness as the children witness is not such that it has, or is likely to intrude into the happiness which was evident to the Family Consultant and others who gave evidence. 

6. Presently, the mother does not have paid employment.  She receives $525.00 per week from Centrelink and $441.00 per month child support.  When she returned to Melbourne she obtained a personal loan for $25,000.00 to re-establish herself.  This loan is repaid at $120.00 per week and she budgets for airfares at the rate of $100.00 per week.  The balance of her income is expended on living expenses.  At this rate the mother can afford to continue to contribute towards the children’s airfares if they live in Melbourne. She would find this more difficult if she moved away from her parents. 

7. As was mentioned earlier, the mother and her family are Orthodox.  Their religion is important to them.  However, the mother explained that she realises the father is more actively involved in his religion than she is with hers.  Also, that if the children and father share Roman Catholicism, this provides a special link which will strengthen their ties if the children live in Melbourne and he resides in Sydney.  While her concession in relation to the children attending a Catholic high school was probably partly motivated by her desire to concede matters which might enhance her application, I am strongly satisfied she will support this component of the children’s identity.

1. After the mother’s brother passed away she took indefinite leave of absence from work.  Throughout 2009 and 2010 she worked part-time from home and for a period, full-time setting up an office.  Her parents cared for the children when she worked.  Eventually, the mother plans to resume paid employment.  If she requires assistance with the children while she is at work, her parents will care for them. 

2. The mother does not have family or friends in Sydney.  If she moved to Sydney she would not have the type of practical and emotional support immediately available to her which exists in Melbourne.  Nor does the mother feel she and the father and his parents have the type of friendly relationship which means she could count on them to help her when she needed it. 

3. When the mother lived in Sydney she felt sad, depressed and alone.  This was notwithstanding the good relationship she felt she enjoyed with the paternal grandparents until separation.  The mother was depressed following separation and for six months took antidepressant medication.  She recently spoke to her general practitioner about seeing a psychiatrist or counsellor for support.  The mother has previously seen a psychiatrist for depression, but did not perceive benefit in more than one attendance.  The mother has agreed she will attend a psychiatrist and, within about six months, provide the father with evidence of so doing.

4. In relation to the mother’s depression the Family Consultant said “[d]espite her significant losses and challenges over the past year, she appears to have maintained her commitment to the care of the children and made them her priority”.  It was also her opinion the mother is aware of her vulnerability towards depression and, when needed, has sought assistance.  It is the Family Consultant’s opinion, however, that if the mother was ordered to return the children to Sydney it is highly likely she will relapse into a further cycle of depression.  I agree.

5. It is the mother’s proposal the children live with her in Melbourne.  She proposes they have regular time with the father, monthly during term time and for a significant part of school holidays. While the mother accepts the children should have more time with the father during school holidays than they do with her, she wishes to be able to holiday with them twice each year.  Queensland beach holidays were a particular attraction.  Thus, she wants to be able to suspend the father’s holiday time twice annually.  Irrespective of other arrangements which might be ordered, the mother wants the children to be with her for Orthodox Christmas.  She agrees the children should be with the father for his Christmas celebrations[1]. 

   [1] Exhibit D

6. If the father lived in Melbourne she said the children could spend time with him more often during term.  The mother does not want to live in Sydney.  However, rather than lose the children she would move to Sydney.  Even if the parties and children live in the same city, the mother does not believe an equal time order is in the children’s best interests.  She points to the parties’ communication difficulties, the children’s reliance upon her as their primary carer and the parties’ different parenting styles as reasons why that arrangement would be difficult for the children.

Section 60CC considerations

1. The Family Consultant observed the children with their parents.  Although she was subject to strong criticism by counsel for the father I was not persuaded the criticisms withstood scrutiny.  For example, it was asserted the Family Consultant asked the paternal grandparents to pick up the pace, spent no more than 15 minutes with them, and asked them to return the following day but then did not see them.  The Family Consultant did not agree with these propositions.  Relevantly, neither of the paternal grandparents gave evidence consistent with the propositions put to the Family Consultant.  She was questioned by counsel for the father about the numerous complaints they made about the mother documented in her report.  The paternal grandparents’ evidence was consistent with the remarks the Family Consultant said they made to her.  Thus, on balance, I am satisfied the Family Consultant competently undertook the tasks required of her, accurately reported upon her observations and investigations and that her evidence warrants significant weight.

2. The children were almost four when the Family Consultant met them in early 2011.  She described them as:

   … alert, happy and active children who are developing well according to age related norms. [T] was highly focussed and imaginative.  Her play was creative, reciprocal and socially oriented.  [B] presented as a child of high energy and inquisitiveness.  (paragraph 44)

3. The Family Consultant noted the children’s “happy conversational demeanour”.  Her observations of the children are consistent with the evidence given by their parents and grandparents. 

4. To inform her evaluation of the children’s relationships and attachments, the Family Consultant observed them with their parents.  In relation to the father the Family Consultant said:

   The children were excited to see [the father] in the child care room.  They ran to him and showed him their paintings (and later their suitcases) as would small children to a loved and interested adult.  [The father] responded to the children enthusiastically and warmly.  His interactions with them were at times directive (for example, he said “[B]…don’t touch…you need to sit down to play the game” and “You be careful [B]”).  The children appeared to manage this level of control of their behaviour without difficulty.  (paragraph 47)

5. In relation to her observations of the children with the mother, the Family Consultant said:

   When with [the mother] the children appeared relaxed and spontaneous towards her.  They felt free to continue in their play both independently and alongside her.  [The mother] was child focussed and allowed the children to lead the choice of activities and pace of play.  They played with her in a contained and purposeful manner.  She successfully limited their behaviour (for example, when [B] wished to eat and paint at the same time, he responded to her request not to do so).  Both children demonstrated exemplary manners with [the mother].  (paragraph 48)

6. At the end of their day with the Family Consultant, the children were due to leave with the father and spend four days with him.  The Family Consultant observed they were happy to leave with him and that “[t]he children did not display any sign of distress when with their parents or grandparents, rather to the contrary”.

7. It was the Family Consultant’s opinion the children are happy and confident and “much loved in the context of two large extended families”.  It was evident to her they delighted in their parents’ and grandparents’ company throughout the day.

8. It was the Family Consultant’s opinion that the mother is the children’s primary carer.  Their young age at separation and her significant primary responsibility for the children’s care since then, when combined with her prior history of their care and the positive observations she made of them together, informed this view.  I agree these provide a sound foundation for this opinion.

9. In relation to the father, the Family Consultant said the children appear to have a secure attachment.  Notwithstanding they do not live with the father, his daily contact by telephone, coupled with the time the children have with him, has been sufficient to support and develop this secure attachment.

10. It is highly likely the children view the mother as the person to whom they are most strongly attached.  Since separation they have spent far more time with her than with the father.  She, more than any other person, has been a constant presence.  The mother is very committed to the children’s wellbeing and her loving involvement in their daily lives has established strong relationships with the children upon which they rely.  While the children are securely attached to the father, he has not had as much time with them nor on a day by day basis the hands-on parenting which underpins the children’s stronger relationships with the mother. 

11. In short, while the father is an important person in the children’s lives, his relationship with the children does not have the same centrality to their wellbeing and happiness that their relationship with the mother has.  Notwithstanding the children’s attachment to the father, because of the primacy of their attachment to the mother and her being their primary carer, the Family Consultant recommended the children live primarily with her.  Provided the children had regular time with the father it was her opinion the children’s good relationships with their parents would be maintained.  She did not recommend the reduction in the children’s time with their primary carer (the mother) inherent in the father’s equal time application.

12. The strengths of the children’s attachment to the mother is such that it is difficult to see how the type of reduction in the time they spend with her, to the extent proposed by the father, is something they would take in their stride.  It is reasonably likely they would be unsettled and unhappy and, as time passed, these feelings may begin to compromise the children’s relationship with both parents.  In short, I am strongly satisfied the children enjoy good relationships with both parents and will continue to benefit from these meaningful relationships, particularly if they are able to continue with the mother as their primary carer and have sufficient time with the father to maintain their secure attachment to him.  From a relationship perspective, this is the scenario which delivers the optimal outcome for the children.

13. In relation to the risk of exposure to abuse, neglect or family violence, the second primary and a number of additional considerations overlap.  I will consider these matters together.

14. It is the mother’s evidence that following the parties’ marriage, the father became quite controlling and on a number of occasions was violent.  The first notable incident occurred three months following the children’s birth.  Following an argument, the mother went to the bedroom.  The father was screaming at her and she called him an “arsehole”.  The father ran into the bedroom, pointed his finger at her and said “call me an arsehole and I will kill you”.  The mother was horrified.  She said to the father “do you know what you just said” to which he responded “yes.  I know and I will fuckin kill you”.  The mother cried and the father’s behaviour terrified her.

15. The next incident occurred when the children were about 12 months old.  An argument developed between the parties in relation to a microwave.  After they swore at each other, the father ran at the mother, grabbed her by the throat and, having pressed his face against hers, said she was “fucked and to watch my fuckin mouth”.  The father’s actions frightened the mother and she saw the two children “staring at their father in disbelief”.

16. Ms C lived with the mother in Sydney from July 2006 and, after the parties married, with them until about four weeks prior to the children’s birth.  After the children’s birth, she visited the mother at least three times a week.  She witnessed arguments between the parties at least twice a month in relation to the mother’s desire to return to Melbourne and the father’s desire to remain in Sydney.  A number of these arguments became “very heated” and during one, whilst pregnant the mother developed stomach pains.  Ms C intervened to end the argument.  She corroborates the mother’s evidence about the parties’ difficult financial position, the father’s refusal to spend money on the mother’s desire to visit her family in Melbourne as often as she sought and threats to them both from third parties demanding money from the father.  Since high school, the mother and Ms C have been best friends.  As the mother’s unhappiness in Sydney developed, Ms C observed she “changed from being a very happy, cheerful and fun person to becoming withdrawn, depressed” because of what the mother explained related to the father’s behaviour, her isolation and it becoming increasingly clear he was not going to agree to them returning to Melbourne.

17. Ms C did not observe conduct which would come within the definition of family violence by the father to the mother.  The mother did not tell her about the incidents discussed above.

18. The mother told her sister, D about the father’s threat to kill her when the twins were 12 months old.  D recalled the mother was horribly upset.  D told the mother she should call the police and leave the father.  To her sister, the mother reported the father’s insistence she return home immediately from work and lack of access to money sufficient to enable her to dress nicely and spend time in Melbourne as often as she wished.  On 7 January 2009 D saw the father give two year old B a heavy smack.  The child cried profusely and was comforted by the mother.  D considered the father’s actions to be heavy handed, as do I, and was troubled by the paternal grandparents’ lack of reaction to their son’s behaviour.

19. D does not view the father in a favorable light.  The tenor of her evidence was she is unhappy with the father because she believes he made her sister unhappy and failed to honour his promise she could return to Melbourne to live.  Her negative views of the father are probably also influenced by relatively little contact with him and being a long distance confidante for her sister while her sister was lonely and unhappy.

20. Ms C had much more contact with the father and I am satisfied warrants greater weight.  Thus I am satisfied there were arguments between the parties and the mother was unhappy and generally struggled being so far away from her family.  Also, that the family violence about which the mother gave evidence and which is accepted, was not pervasive.  The father too was under intense pressure. He was caught between his wife’s strong desire to return to Melbourne, her increasing unhappiness, his desire to stay in Sydney and under serious financial pressure due to his guarantee.  His aggression and violence to the mother was out of character.  While I accept the father hit B once, this was inexperienced discipline.  I am not persuaded there is an ongoing risk to the children of abuse or family violence from the father.  I am satisfied, however, the father is more likely to use corporal punishment than the mother and their parenting styles in relation to what is acceptable behavior in the children is quite different.  In this regard, I do not accept the father and his parent’s criticisms that the children have become poorly behaved in the mother’s primary care.  While I accept appropriate behavior is a matter upon which minds legitimately sometimes differ, the examples given of ostensibly poor behavior by the children were not of inappropriate behavior.  I am strongly satisfied the children are generally well mannered and behave within social norms for good behavior.  It would be wise for the father to reflect upon and embrace the evidence given by the Family Consultant about this matter.

21. As I understand it, because of the children’s young ages, the Family Consultant did not ask them to express views about the outcome.  Inferentially the parties agreed they lack the maturity for any views expressed to influence the outcome.  I agree.

22. I have already discussed the children’s relationship with their parents.  I do not propose to repeat my findings and will discuss the remaining s 60CC(3)(b) considerations by focussing upon their grandparents.

23. As I mentioned earlier, until the mother and children moved to Melbourne, the paternal grandparents were actively involved in the children’s lives.  From when the children were three months old the paternal grandparents cared for them while the mother was at work.  From late 2008 when the father spent time with the children so did his parents.  Since September 2009, the children and paternal grandparents have been in a routine whereby the children stay with them every three weeks from Wednesday evening until Sunday afternoon. 

24. The paternal grandparents wait at home for the father to bring the children.  On arrival, the children run around excitedly.  On the first night, they are so excited they usually stay up until between 9.30 pm and 10.00 pm and, until recently, each child slept with a grandparent.  Because the father usually works on Thursday and Friday the paternal grandparents care for the children.  The paternal grandmother said she is lonely when the children are not around and is happy to care for them at any time.  The paternal grandfather misses the children greatly and he too is willing to look after them at any time.  Both paternal grandparents “would welcome the opportunity for the children to live in [their] home”.

25. The children are loved by and love the paternal grandparents.  The children’s relationship with them is important and contributes to their wellbeing and identity.  One of the advantages of the father’s proposals is the children would have the opportunity to spend more time with their paternal grandparents and eventually, live with them half of the time.  However, after two years of reduced contact between the children and paternal grandparents there is no doubt the children have maintained loving relationships with them.  The point being a reduction in time has not compromised these relationships.  Not only are these relationships strongly supported by the father but the mother as well.  Her agreement for the children to holiday with the father and paternal grandparents in Europe later this year speaks volumes about her regard for the children’s relationships, not only with the father, but also his parents.  I am strongly satisfied the mother’s positive support for the children’s relationships with the paternal grandparents will continue.  Provided the children have the opportunity to maintain reasonably regular face to face contact with them these relationships are assured.

26. In the weeks preceding the children’s birth, the maternal grandmother stayed with the parties.  She remained for three weeks following their birth.  Thereafter, until the mother and children moved to Melbourne the maternal grandparents had occasional contact with the children. Since late 2008, even when the mother and children lived independently, the children have had extensive contact with them.  When the mother and children arrived in Melbourne in September 2008 they lived with the maternal grandparents.  This continued until about March 2009 when the mother and children moved into a home she rented at Melbourne Suburb 2.

27. The mother was employed full-time from April 2009 to July 2009.  Whilst she was at work her parents cared for the children.  When the mother worked part-time (from home) her parents also cared for the children.  Apart from these periods, the mother and children spent a lot of time with her parents.

28. In January 2010, the mother and children moved in with Mr V, who the mother was dating.  Extensive contact between the children and maternal grandparents continued.  Under the stress engendered by these proceedings the mother and Mr V’s relationship faltered and in June 2010 she and the children moved into premises rented by her in Melbourne Suburb 1.  The mother, by then, had returned to work and while she was at work her parents cared for the children.  Close, virtually daily contact between the children and maternal grandparents has continued.  It would appear that when the mother takes her father to medical appointments the maternal grandmother cares for the children.  Thus, since September 2008, other than when the children have been with the father the maternal grandparents have been a large part of their lives.  The maternal grandparents dote upon the children.  These loving, mutually affectionate relationships contribute in a real way to the children’s wellbeing and identity. 

1. Since mid 2009, the children have not lacked significant face to face contact with the maternal grandparents for a period longer than five days.  Almost daily contact with them has thus, for a significant part of the children’s lives, formed part of the rhythm of the children’s lives.  Although the paternal grandparents wish it was otherwise, the children’s move to Melbourne in September 2008 has resulted in them adapting to reduced contact with them and a dramatic increase in contact with the maternal grandparents.  One of the disadvantages of the father’s proposal is this would require the children to adapt again to a reduction in the amount of time they have with grandparents who have become significant to them.  Of course, it must be acknowledged, that the maternal grandfather’s time is short.  However, these findings warrant some weight in the mother’s favour.  Although I am satisfied both parties support the children’s relationship with the maternal grandparents and, even if the children lived in Sydney they would still spend time with the maternal grandparents in Melbourne and thus the relationships are assured, the children would miss their maternal grandmother and/or maternal grandfather for some time.  On the other hand, one of the advantages of the mother’s proposal is the children will reside with her mother and possibly her father.  This the children would enjoy.  It has the advantage of providing the mother with their hands on practical support and means she need not pay commercial rent.  It is an arrangement which would promote real stability for the children.

2. The children have cousins in Sydney and Melbourne to whom they are close.  The father and his parents support the children’s relationship with their paternal cousins in the same way the mother and her parents do with the children’s maternal cousins.  I accept the children enjoy these relationships.  Whether the children live in Sydney or Melbourne their cousins, aunts and uncles will continue to be an enriching component of their lives.  The relationships with these extended families are of comparatively modest significance and do not tip the balance for or against either party’s application.

3. I have already referred to the parties’ willingness and ability to facilitate and encourage close and continuing relationships between the children and their other parent.  Whenever relocation is an issue this tends to be a core consideration.  This is because, when the Court comes to consider the impact such a proposal may have upon children’s relationships with the parent with whom they would not reside, the Court needs to be confident the other parent, at the very least, will comply with Court imposed obligations for visits and regular communication.  It is also important to be able to assess whether, in addition to compliance with orders, the parent with whom the children resides, will support their relationship with the other parent. So that it is clear, I am satisfied neither party has denigrated the other within the children’s hearing.  Orders have been complied with and the children have moved between their parents homes with the frequency agreed or ordered. 

4. In the event the children reside in Melbourne, the father and his parents will remain in Sydney.  It is common ground this will adversely impact upon the children’s ability to regularly spend time with the father during school term and there will be four week gaps when the children do not see him.  Potentially, this reduces his capacity to influence his relationship with the children and the mother’s influence becomes even more significant.  It was in relation to this issue particularly the mother was closely questioned about and the extent to which she facilitated contact between the children and father after she moved to Melbourne.  There was particular focus upon her stance in July 2009 to the effect that until orders were in place, she would not agree to the children spending time with him unless this was supervised in Melbourne. 

5. Between mid January 2009 and July 2009 the children spent time with the father:

   ·    from 11 to 22 January 2009;

   ·    from 14 March 2009 until 14 April 2009;

   ·    from 30 May 2009 until 19 June 2009.

6. The March and May periods were longer than the two weeks initially agreed.  In relation to both periods the mother reluctantly gave in to pressure from the father for the children to stay longer.  The mother’s reluctance related to her view the children required stability and routine and that prolonged periods away from her at their ages was not good for them.  These arrangements occurred against a background of the father pressing the mother to agree to an arrangement that the children spend six weeks with him, followed by six weeks with her on an ongoing basis.  The father’s alternating six week proposal was ill advised and probably reflects a somewhat inadequate appreciation by him at that stage of the children’s emotional and developmental needs.

7. Matters came to a head when, in July 2009, the father threatened to take the children whether or not the mother agreed.  Thus, frightened he might take the children the mother imposed the conditions mentioned earlier.  The father rejected the notion of supervision.  There was thus a standoff and the children did not see him from 19 June 2009 until 9 September 2009.  Apart from this gap, since September 2008 the mother has facilitated regular contact between the children and the father.  It is noteworthy that until the father made the remarks in July 2009, this occurred without him having needed to obtain orders.

8. Since orders have been in place the mother has complied with the obligations imposed on her.  Other than a few occasions, the father has been able to speak with the children daily.  Because of the children’s young age and reliance upon the mother as their primary carer, if post-separation she sought to undermine the children’s relationships with the father and his parents, this probably would have been apparent.  That the children enjoy happy relationships with the father and his parents, to a reasonable degree, is testimony to the mother’s active support.  There are no signs these relationships have been subtly undermined.  I am strongly satisfied the mother has and will continue to promote the children’s relationships with the father and paternal relatives.

9. I am similarly satisfied the father will promote the children’s relationships with the mother.

10. Section 60CC(3)(d) is another important factor.  This sub-section concerns the likely effect of any change in the children’s circumstances, including separation from parents or any other person with whom the child has been living. 

11. The children have experienced considerable change since late 2008 in relation to where and whom they live.  On both parties proposals there will more change.  In the mother’s case this involves them moving into her parent’s home and having longer periods in school holidays away from her.  The changes proposed by the father do not need to be repeated.  Notwithstanding the many changes which the children have faced, the mother has been their primary carer.   Because of their ages it is important for them to be able to rely on her.  It is likely her competent and consistent care that has contributed in a real way to the children being able to cope with the changes to date.  However, it does not necessarily follow this would continue if the children and mother move to Sydney.  The issue which arises is the effect upon the mother’s parenting capacity and thus the children’s wellbeing, if it is ordered the children live in Sydney.  My point being, because I am satisfied the children’s emotional and psychological wellbeing and their capacity to core with change is closely connected to them being able to rely on the mother, if her wellbeing is compromised, there is a risk she would be less able to invest her relationship with the children with those qualities upon which they rely.  In my view this involves a real risk the children may not cope with being returned to Sydney and the changes this entails.

12. This issue dovetails with the parties’ capacities to meet the children’s emotional and psychological needs.  I have already commented upon the mother’s unhappiness in Sydney.  In short, in the period she lived in Sydney, the mother did not adapt to being away from her parents and sister.  There is considerable evidence of frequent distressed telephone calls by her to her mother and some to her sister.  For most of this time the mother had her best friend living in Sydney.  Her friend has returned to Melbourne.  Even with her friend’s support, the mother’s unhappiness was not alleviated.  On one occasion, when at home with no money or food, in a very distressed state the mother telephoned the father.  He declined her request to come home immediately and told her she should go to his parents.  In high distress the mother threw a telephone at a window which smashed.  At the father’s request, Ms C went to the mother.  He arrived a couple of hours later.  I accept the mother’s actions were out of character and reflect how deeply she struggled in Sydney.  So that it is clear, I do not accept the father’s evidence about this incident and must record I consider he attempted to mislead the Court. 

13. Earlier, I referred to the mother being diagnosed with depression and taking anti-depressant medication.  The evidence established she is vulnerable to depression.  While the mother feels deeply a duty to support her parents, this is not a one-way street.  Being with them, helps her feel confident about the way she fulfils her filial obligations and enables them, particularly her mother, to help her with her mood.  The mother is saddened by the failure of her marriage, bereft from her brother’s passing and grieving for her father and what this means for her family.  Individually these are heavy burdens.  Collectively, they weigh heavily on her.  I am strongly satisfied that if the mother returned to Sydney to live, separation from her family is likely to profoundly affect her such that she would struggle to cope emotionally and there is a heightened risk she would become depressed.  Because the children are reliant upon her as their primary carer and to a great degree, for their emotional and psychological wellbeing, their wellbeing would also be compromised.  These are findings to which I attach significant weight.

14. The father has no history of depression.  When he lived in Melbourne he was not sad and lonely in the same way the mother was when she lived in Sydney.  In closing addresses, the father’s counsel emphasised how important it is for children to have both parents intimately involved in their lives.  Reference was made repeatedly to the importance of fathers.  As I understood it, it was to promote the father’s significant involvement in the children’s lives, that it was submitted they should reside in Sydney.  This submission failed to acknowledge the children were settled in Melbourne with their primary carer and that, the father could achieve more regular time with the children, if he moved to Melbourne.  I do not accept he would be unable to obtain employment or accommodation in Melbourne.  Rather, I am strongly satisfied the father feels deeply his connection to his parents and family in Sydney and cannot contemplate how he could be happy if he had to live in Melbourne.  No criticism is made of the father for his stance.  Its significance is no more than in this case both parties genuinely believe they would be unable to live away from their parents.

15. However, it follows, that the effort and expense involved in maintaining regular contact between the children if their parents live in different cities could be alleviated if the mother and children moved to Sydney or the father moved to Melbourne.  In any event, the parties have shown they are able to afford (not without some difficulty) the children’s travel between Sydney and Melbourne.  The children travel comfortably and it is likely that their familiarity and comfort with air travel will result in their being able to travel as unaccompanied minors in the medium term.  The effect of this, self evidently, is that the cost of travel would be reduced.  These costs are reduced further if the parties and children live in the same city.  Because the only available option which would achieve this is the mother and children relocating to Sydney, this would mean she would incur higher living costs and would be unable to reside in a home provided by her parents.  This is a not insignificant matter and outweighs the costs to the parties of ongoing travel.

16. Once the children start school, on the mother’s proposals, their circumstances will change.  The children would not be able to spend regular time during the school week with the father and by then they are likely to reside with her parents.  There is consensus that during school term, if they live in Melbourne they could visit Sydney every four weeks.  Thus, during term their time with the father would be reduced from the present one week every three weeks.  This will be a change of some significance to the children.  However, any adverse consequence can be addressed by ensuring that during school holidays the children have a proper amount of uninterrupted time with him.  Provided the majority of school holidays are spent by the children with the father and paternal grandparents, the children would still have time to immerse themselves in their lives.  Once the children start school, they will be old enough to adapt to longer gaps between contact during term and longer separations from the mother during school holidays.  Regular telephone contact between the parents when they are away will help the children adjust and deal with separation issues.

17. I have already touched upon the parties’ capacities to meet the children’s needs.  When in the mother’s care, the children are well cared for and she has demonstrated her ability and commitment to meeting their needs.  Provided her parenting capacity is not compromised by living away from her family, I am strongly satisfied in her care the children’s needs would be met to a high level.

18. While the parent’s both take seriously their parental responsibilities, the father has not had primary responsibility for the children’s care.  His work commitments have been such that it has been necessary for him to rely upon his parents and thus, his parenting capacity is somewhat untested.  He is more controlling of the children than the mother.  Although he did not concede this was an issue, to his credit, he adopted the Family Consultant’s recommendation that he enrol in a community based child behaviour management course.  So that it is clear, the mother’s evidence in relation to the father’s lack of involvement in the children’s care prior to separation was slightly exaggerated.  Ms C’s evidence on this topic was more balanced.  Thus, albeit rarely, I accept the father changed a nappy and completed at one time or another most aspects of the tasks needed by the children.  However, overwhelming responsibility fell to the mother.  The father did not prepare evening meals. Now that he resides with his parents, his mother runs the house and prepares the meals.  Nonetheless, if the father was required to run a home which included the children, he has the intellect and capacity to do so. 

19. More relevant, however, is his capacity to meet the children’s emotional and psychological needs.  While the children love and are attached to him, he has never been their primary carer.  To change the children’s circumstances so that their time with their primary carer was reduced in the manner contended for by the father does not sit comfortably with their emotional and psychological needs being met long-term.  This weighs heavily against the father’s equal time application.

20. When the hearing started, issues of culture and tradition loomed large.  Although it was clear the parties were respectful of each other’s religious and cultural differences, the challenge was how to promote this into the future.  An issue about the children’s schooling was resolved as was how the children would participate in the sacraments, beliefs and practices of their parents’ religions and cultures.  In short, irrespective of the outcome, I am strongly satisfied the children will share in a real way their parents’ religions and cultures.

21. Section 60CC(3)(l) requires that the Court consider 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 children.  The longevity of this dispute has taken a heavy toll.  Further litigation is likely to exacerbate the tensions which ebb and flow between the parties and their families.  The scenario most likely to result in further litigation is that which requires the children to live in Sydney.  The mother’s commitment to the children is such that she would move too.  I have real reservations about her capacity to cope in this situation and it is far from fanciful further litigation may ensue.  While I take this into account, it warrants little weight.

Section 60CC(4) & (4A)

1. There is considerable overlap between s 60CC(4) and (4A) with s 60CC(3).  Prior to separation the parties were able to make major long-term decisions jointly.  Post separation they have been unable to agree upon the complex parenting issues faced by them.  Their communication has been limited and predominantly undertaken through lawyers.  At changeover, they do not speak.   The father sought to spend more time with the children than the mother agreed was appropriate and there is no doubt, he sought to be actively involved in the children’s lives to the fullest extent possible.  Just as his desire for involvement with the children was understandable and reasonable, so too was the mother’s position in relation to the amount of time the children could, at their ages, cope with being away from her and the importance of reasonable routine.  Neither party’s approach to these matters casts doubts upon the seriousness with which they fulfil and are likely to fulfil their parental responsibilities.

2. The father has paid appropriate child support.

Parental responsibility

1. The parties agree it is in the children’s best interests for them to have equal shared parental responsibility.  Although it required a final hearing to resolve numerous outstanding parenting issues, that they were able to do this, shows they have the capacity to co-operate to the extent required to enable them to exercise equal shared parental responsibility.

Relocation, time and other matters

1. The Court must, thus, first consider the father’s application for equal time orders.  I do not consider equal time orders to be in the children’s best interests.  Putting aside for one moment, whether such an order would be reasonably practicable, my reasons for judgment are replete with findings which show how important it is for these children to continue in the mother’s primary care.  The type of reduction in the time they spend with her which is necessary to achieve an equal time outcome puts the children’s emotional and psychological wellbeing, also their happiness at risk.  The evidence did not establish a proper basis connected to the children’s long-term interests for the Court to deny them the support and comfort they have always enjoyed from a competent primary carer.  In circumstances where the mother has demonstrated her willingness and ability to support the children’s relationship with the father and, the children enjoy good relationships with him and his parents, the type of changes the father wants long-term to the children’s time with the mother does not promote their best interests.  Nor is equal time reasonably practicable if the parties live in separate cities. 

2. The mother’s proposal, she says, provides for the children to have substantial and significant time with the father.  While in lay terms, I agree, the lack of opportunity for the father to be involved with the children’s education and extra curricular activities persuades me that her proposal does not satisfy the definition for substantial and significant time found in s 65DAA(3).  Nor, with the parties living in different cities can an arrangement be designed which has the children spending substantial and significant time with both parties.  That this is so is implicit from the parties’ agreement about the appropriate orders if the children live in Melbourne and the father remains in Sydney.  In short it is not reasonably practicable to facilitate the type of contact between the children and the father between Melbourne and Sydney which would satisfy the definition of substantial and significant time. 

1. Thus it is necessary to determine, in effect at large, the orders which promote the children’s best interests long term. It is not necessary to repeat my findings about the importance to the children of being able to continue to reside with their primary carer.  Or those findings which result in my strong satisfaction her parenting capacity is maximised if she lives in Melbourne and, compromised if she is required to move to Sydney in order to be with the children.  Their reliance on her has been commented upon a number of times as, although phrased slightly differently, is my comfortable satisfaction that if her emotional and psychological wellbeing is potentially compromised there is a commensurate probability the children’s well being will be compromised. 

2. For the children to live in Sydney the Court’s findings in relation to the effect this would have upon the mother’s parenting capacity and thus the children, would require less weight than the advantages to them from relocating.  In my view, whether the children live in Sydney or Melbourne they will maintain good relationships with the father and have the continuing benefits from meaningful relationships with him.  For the mother, being able to live with her families support in Melbourne offers her and thus the children greater security and long term stability.  These findings weigh heavily in favour of the children being able to live in Melbourne with the mother.  On balance I am strongly satisfied orders consistent with the mother’s primary proposal deliver the best outcome for the children.

3. During the hearing, the parties presented a number of somewhat untidy documents which reflected various elements of their agreements.  Directions were made for a typescript of the orders to be provided which the Court could engross, which is attached.  In the event the mother’s application that the children live with her was successful the parties provided a suite of orders upon which they agreed.  Nonetheless a few matters require determination.

4. As a general approach I prefer the father’s approach to school holiday time.  Because the parties agree the children will have a block period with the mother at Orthodox Christmas plus a further period during school holidays, the mother’s desire for another block holiday period would reduce the father’s time with the children too much.  On his approach the mother will have two periods annually during school holidays when she and the children may have a holiday.  This strikes the right balance between the children’s need to spend proper time with the father and holiday time with the mother.  To ensure the second period during school holidays for the children with the mother enables them to holiday away she will be able to add four days to her time with the children.

5. I have not started the father’s holiday periods on the day school finishes.  From their perspective it will be easier if they can unwind from what is commonly an exciting last day of school before flying to him the next day.

6. For these reasons I am satisfied the orders I will make are in the children’s best interests.

I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 14 April 2011.

Associate:     

Date:              14 April 2011