Carlyle and Muldoon

FAMILY COURT OF AUSTRALIA

CARLYLE & MULDOON

[2011] FamCA 51

FAMILY LAW – CHILDREN – BEST INTERESTS – Parental responsibility – Whether an order for equal shared parental responsibility is in children’s best interests – Order made for mother to have sole parental responsibility for health and education – Order made for equal shared parental responsibility for the other major long-term issues – Traditional home of father and mother and their extended families in or near O – Father living on family farming and grazing property – Mother in rental property – Children’s living arrangements – Mother wishes to relocate to R for “new beginning” with her partner – R and O about two hours driving distance apart – Several proposals put including father and mother both living in or near O with equal time order or children living with father in or near O or with mother in or near O or with mother in R – Children’s best interests considered – Reasonable practicability considered – Determination made that children’s best interest will be met by living with mother in R and spending specified and other arranged time with father in O and that such is reasonably practicable

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DA, 65DAA

AMS v AIF (1999) 199 CLR 160
Collu & Rinaldo [2010] FamCAFC 53
D v SV (2003) FLC 93-137
Ebsworth & Ebsworth (No 2) [2007] FamCAFC 1229
G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Hepburn & Noble (2010) FLC 93-438
Korban & Korban [2009] FamCAFC 143
MRR v GR (2010) 240 CLR 461
Mazorski & Albright [2007] 37 FamLR 518
McCall & Clark (2009) FLC 93-405
Sealey & Archer [2008] FamCAFC 142
Starr & Duggan [2009] FamCAFC 115
Taylor v Barker (2007) FLC 93-345

APPLICANT:

Ms Carlyle

RESPONDENT:

Mr Muldoon

FILE NUMBER:

BRF

1472

2004

DATE DELIVERED:

11 February 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

1, 2 and 3 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr George

SOLICITORS FOR THE APPLICANT:

Family Law Doyle Keyworth & Harris

COUNSEL FOR THE RESPONDENT:

Ms Kirkman-Scroope

SOLICITORS FOR THE RESPONDENT:

Sanderson & Parks

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Burridge

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Chan
Legal Aid Queensland

Orders

Parental responsibility

The parties have equal shared parental responsibility for L born … February 2001 and S born … July 2003 (the children) for decisions in relation to the major long-term issues concerning their religious and cultural upbringing and any changes to their living arrangements that may make it significantly more difficult for them to spend time with the parties or either of them.
In the exercise of their equal shared parental responsibility concerning the children in relation to decisions concerning those major long-term issues the parties are to consult each other and make genuine effort to come to joint decisions.
In relation to such consultations:
(a)the parent wishing to make a proposal make it in writing to the other parent, setting out the advantages of the proposal perceived by that parent and reasoning supporting it
(b)the other parent respond in writing to the proposal by either agreeing with it or making a different proposal, setting out the advantages of any different proposal and reasoning supporting it
(c)if after such consultation a joint decision is not able to be made the parties are to consult a family law dispute resolution practitioner to assist them to resolve the issue.
The mother have sole parental responsibility for the children for decisions in relation to the major long-term issues concerning their health and education.
The parties each be responsible for the children’s day to day care while the children are with each of them.

Children’s living arrangements

The children live with the mother in R.
The children spend time with the father in or near O as follows and at all such additional times as the parties in writing may agree:
(a)on alternate weekends from 4.00pm Friday until 4.00pm Sunday (or if the Monday is a public holiday or pupil free day 4.00pm Monday)
(b)for half of the Easter and Christmas school holiday periods in each year, the first half in even years and the second half in odd years, with changeover to occur at 11.00am on the first Saturday, 11.00am on the midpoint day (or if there be no midpoint day the day following it) and for the odd years 11.00am on the last Friday (or if the Monday is a public holiday or pupil free day 11.00am on the last Saturday).
(c)for the whole of the June/July and September/October school holiday periods in each year, with changeover to occur at 11.00am on the first Saturday and 11.00am on the last Friday (or if the Monday is a public holiday or pupil free day 11.00am on the last Saturday).
During the school holiday periods the parties are not restricted to keeping the children in R or O but may travel with them to other places in Australia.
Despite order 7(a), during the children’s soccer season (usually from February to September in each year) the children’s alternate weekend time with the father commence not at 4.00pm on Friday but at the commencement of the children’s soccer games on Saturday, unless the father notifies the mother that he proposes to be in R overnight on any such Friday in which case the children’s time with the father commence at 4.00pm on those Fridays provided that he ensures that the children attend soccer on the Saturdays.
The mother keep the father informed by written notice as early as possible as to the dates times and venues of the children’s soccer games.
If (as he is free to do) the father should attend the children’s soccer games in or near R (or wherever they may be) on the Saturdays when ordinarily the children are not spending time with him, and it be able to be arranged, the children spend additional time with him on those days from the conclusion of the children’s soccer games until 5.00pm.
If, in relation to any weekend the children are not with the father, the mother should plan to travel to or via O with the children to visit family members, she use her best endeavours on at least some of those occasions to arrange with the father for the children to spend additional time of between 2 and 4 hours with him, being times as she may nominate to suit her plans on such weekends.

Special days

Unless the parties otherwise in writing agree, orders 14-18 apply for special days.
If a birthday of one of the children or the father’s birthday falls on a school day, the children have telephone communication with the father between 6.30pm and 7.30pm with the children to initiate the calls at the reminder by and to be facilitated by the mother.
If a birthday of one of the children or the father’s birthday falls on a day other than a school day the children spend time with the father for 4 hours between 10.00am and 2.00pm in O.
If the mother’s birthday falls on a day other than a school day and the children are not with her the children spend time with her for 4 hours between 10.00am and 2.00pm in O.
If Father’s Day falls on a Sunday when the children are not with him the children spend time with him for 4 hours between 10.00am and 2.00pm in O.
If Mother’s Day falls on a Sunday when the children are with the father for alternate weekend time there be no special arrangements (on the basis that the children in the ordinary course will be collected by the mother at 4.00pm on such Sundays) and if it falls during a school holiday period when the children are with the father the children spend time with the mother for 4 hours between 10.00am and 2.00pm in O.

Changeover

Unless the parties otherwise in writing agree, orders 20-25 apply in relation to changeovers.
In relation to the children’s alternate weekend time with the father:
(a)other than during the children’s soccer season, changeover occur at 4.00pm on Fridays at … in R and at 4.00pm on Sundays at … Park in O.
(b)during the children’s soccer season changeover occur on the Saturdays at the commencement of the children’s soccer games, at the soccer game venue/s, unless the father has notified the mother that he proposes to be in R overnight on any Friday of those weekends in which case changeover occur at 4.00pm on those Fridays at … in R and at 4.00pm on Sundays at … Park in O.
In relation to the children’s school holiday time with the father changeover occur at the commencement of time with the father at … in R and at the conclusion of time at … Park in O.
If pursuant to order 11 the father should attend the children’s soccer games on Saturdays on which the children ordinarily are not spending time with him but spend additional time with him on those days changeover occur at the conclusion of the soccer games at the soccer game venue/s at 5.00pm at … in R.
If pursuant to order 12 the children spend additional time with the father changeover occur at … Park in O.
In relation to special days all changeovers occur at … Park in O.
At all changeovers the mother and the father must use their best endeavours not to come within 10 metres of each other and there be “vehicle to vehicle” changeover to allow the children freely to alight one vehicle and move to the other vehicle.

Parties’ communication

All written communications between the parties concerning the children (save in relation to order 43 below) including in relation to parental responsibility be by email (if the father should arrange an email service), Australia Post mail, SMS text message (if the father should wish to use such) or communication book and not contain any subject matter other than as may relate directly to the children and the carrying out of these orders.
To facilitate such written communication:
(a)the parties as soon as practicable provide each other with an email address (if the father should arrange an email service), postal address and SMS text message service number (if the father should wish to use such) and give written notice of any change within 24 hours of any such change and
(b)the mother commence a new communication book.
The communication book be used to inform each other about, and not contain any subject matter other than:
(a)the children’s school and extra curricular activities
(b)the children’s health and medical appointments
(c)the children’s prescribed medications and recommendations by health practitioners
(d)other information as may relate directly to the children and the carrying out of these orders.

Telephone communication

While the children are with each parent the children have telephone communication with the other parent on each Tuesday, Thursday and Saturday between 6.30pm and 7.00pm, with the children to initiate the calls, at the reminder by and to be facilitated by the parent the children are with at such times.
The children’s telephone calls to the father be to his landline telephone service.
The children’s telephone calls to the mother be to a prepaid mobile telephone service number to be arranged by her for that purpose with a service provider to be nominated by the father (or if he should not nominate a service provider with 14 days of the date of these orders a service provider of her choice), the mother to ensure that at all times the service is sufficiently prepaid to be operational.

The children’s education and extra curricular activities

Despite order 4, the mother initially must take all steps necessary to enrol the children at R Christian School, and not change their enrolment from that school without good reason.
The father may attend all school occasions usually attended by parents, for example, parent teacher interviews, sports days, concerts, open days and end of year functions and all of the children’s extra curricular activities in R, whatever they may be, including but not limited to the children’s soccer season games.
On all such occasions, the parties must use their best endeavours not to come within 10 metres of each other.
Other than in relation to the children’s soccer season games, the mother must ensure that the children’s extra curricular activities are not arranged to occur during time which pursuant to these orders the children are to spend with the father.

The children’s health

The father and the mother must ensure that the children are administered all medications prescribed for them from time to time and follow all recommendations of the children’s medical practitioners in relation to use and dosage.
The mother must ensure that the father at all times is aware of L’s prescribed medications and recommendations of his medical practitioners in relation to use and dosage and that sufficient supply of it is provided to the father at all changeovers by way of inclusion of the medication in a changeover bag.

Children’s safety

The father must ensure that he continues to observe and follow the recommendations set out in the report of Farmsafe Queensland Ltd, in relation to the children’s time with him at his farming and grazing property near O.

Information

The parties must notify each other as soon as practicable of any serious accident or injury concerning the children or either of them.
The parties must notify each other of the names and addresses of any treating medical or health practitioner or hospital the children attend and authorise such to provide to the other at his/her request and expense information or reports concerning the children provided that this order is sufficient authorisation to do so.
The parties must authorise the children’s school to provide to the other at his/her request and expense information concerning the children, copies of school reports and circular or other written information concerning school activities usually provided to parents of children at the school provided that this order is sufficient authorisation to do so.

Non denigration

The parties must not denigrate each other or permit other persons to do so in the hearing or presence of the children.

Transitional

The mother must give the father at least 14 days written notice of the date upon which she proposes to move from O to R, which notice may be by letter from her solicitors to the father’s solicitors.
Until the date on which the mother moves from O to R the children live with the mother in O and spend time with the father in or near O in the same terms as the interim orders made on 27 March 2006.

Independent children’s lawyer

The independent children’s lawyer is discharged, without further order, one calendar month after the date on which the mother moves from O to R.

Liberty to apply

The parties and the independent children’s lawyer have liberty to apply on short notice to the Associate by email at: … if confusion should arise as to the intended operation of these orders or if any of them is ambiguous or unclear so as to require clarification.

NOTATION:

These final orders are predicated on the mother’s evidence of her intention to move from O to R, and the Court’s understanding that such is likely to occur promptly after the date these orders are pronounced.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1855 of 2007

MS CARLYLE

Applicant

And

MR MULDER

Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings concern L born in February 2001 nearly 10 years and S born in July 2003 7½ years (the children). Their parents Ms Carlyle (the mother) and Mr Muldoon (the father) have competing applications concerning suitable parenting orders for them.

The parties’ proposals

Initially, the mother and the father sought that there be an order for equal shared parental responsibility. At the trial, the mother sought that she have sole parental responsibility for the children’s health and education, and that otherwise there be equal shared parental responsibility for the major long-term issues. This was sought without formal amendment but fully litigated (as acknowledged by Ms Kirkman-Scroope of Counsel, for the father).
In relation to the children’s living arrangements, it is fundamental to observe at the outset that whilst at the time of the trial both parties lived in or near O, and had done so at least since their marriage more than 24 years before the time of the trial, and including for the period of nearly 7 years since their separation, the mother stated categorically at the trial that she wished to move to R, and intended to do so to live with her partner Mr B whom she has know for 4-5 years. The mother said however that if there should be an order that the children live with the father in O she would not move to R.
It is against that background that the parties put their ultimate proposals. It is convenient to deal first with the father’s ultimate proposals, initially four in number, in “descending order of preference”, all of which had the father and the mother and the children living in O, with a fifth proposal added at the trial in recognition of the possibility that there be an order that the children live with the mother in R. The first four initially were:
1.The children live with the father in O and spend time with the mother.
2.The children live with the father and the mother in O on the equal time basis.
3.The children live with the mother in O and spend time with the father from after school Thursday until the commencement of school Monday in one week and from after school Tuesday until the commencement of school Thursday in the other week.
4.The children live with the mother in O and spend time with the father each second week from after school Wednesday until the commencement of school Monday.
The father’s fifth proposal was that in the event the children are not living in O they spend time with him on alternate weekends from Friday after school until 4.00pm Sunday or 4.00pm Monday if it be a public holiday or pupil free day; half of the Easter and Christmas school holidays and all of the June/July and September/October school holidays in each year; the father ensure that the children attend soccer on Saturdays of the alternate weekends with him and that he also attend the children’s soccer games on the intervening weekends; telephone communication on Tuesdays, Thursdays and Saturdays between 6.30pm and 7.00pm; with specific changeover provisions for the father to do all collection of the children in R for the commencement of all time with him and the mother do all collection of the children from O at the conclusion of all time with him.
By the conclusion of the trial the father’s proposals had been distilled by Ms Kirkman-Scroope to be “four options” put as:
1.The children live with the father in O and spend time with the mother.
2.The children live with the father and the mother in O on the equal time basis.
3.The children live with the mother in O and spend time with the father.
4.The children live with the mother in R and spend time with the father (implicitly, in relation to the fourth option, in accordance with the fifth proposal).
Ms Kirkman-Scroope made clear that the father’s case “has always been advanced” on the basis that he considers that the children’s best interests will be met by an order that the children remain living in O, as his primary case; that they live in O with him; in the alternative they live in O with the father and the mother on the equal time basis; or in the further alternative they live in or near O with the mother; such that the father’s fifth proposal (fourth option) was out on the basis specifically and only if I should determine that the children’s best interests would be met by living with the mother in R.

Curiously, however, the father said in his oral evidence “I only want the children in my full care if she moves to [R].” As I have mentioned however the mother said that if there should be an order that the children live with the father in O she would not move to R. It is tolerably plain by her statement, if not implicit in it, that the mother would not move to R unless there be an order that the children live with her there, and that otherwise, if the children are to live in O, so would she.
The mother’s ultimate proposal was singular, namely that the children live with her in R and spend alternate weekend and holiday time with the father, specifically, alternate weekends from 4.00pm Friday until 4.00pm Sunday, half of the Easter and Christmas school holiday periods, and the whole of the June/July and September/October school holidays, “except for the last 3 days” of those periods and the last 3 days of any Easter and Christmas school holiday periods the children are with the father for the second half of those periods, this exception being related to evidence concerning prescribed medication for L, to which I will later refer. Mr George of Counsel, for the mother, put that there are only “two options” to be considered, namely “that the children live with the father in [O] or with the mother who intends to live in [R]”.
Authority dictates, however, that the broader options raised by Ms Kirkman-Scroope all be considered.
One matter specifically must be mentioned. In these reasons, the expressions “in [O]” or “in or near [O]” should be read interchangeably for the reason that the father’s farming and grazing property is not “in” O but “via” O on its outskirts. Similarly, whilst at the time of the trial the mother rented premises “in” O, she gave evidence, to which I will refer more below, that if she could not relocate to R she would rent “in the [O] area”. It is convenient thus to use the expressions “in [O]” and “in or near [O]” interchangeably. The expression “in the [O] area” I will refer to further below.

Background

The parties formed a relationship in 1985, were married in September 1986, separated in February 2004 and were divorced in March 2006.
The mother is 42 years and the father 52 years.
For the whole of the parties’ relationship and marriage they lived in O.
There are four children of the marriage, namely A born in 1989, now 21 years, N born in 1991, now 19 years, and the two subject children L born in February 2001, now nearly 10 years and S born in July 2003, now 7½ years.
A lives with her husband (see ex 1) about 12 kilometres south of O. She has two children, a son 3½ years and a daughter nearly 2 years at the time of the trial, these children being, plainly, grandchildren of the parties.
N is employed at a supermarket in O.
Before the parties’ separation, the family lived on a farming and grazing property on the outskirts of O.
After the separation the mother and the children moved into O into a rented house and the father remained at the family farming and grazing property.
The father has not repartnered. He intends to continue to live on the farming and grazing property, which has a “very large modern home” and continue his life and business as a farmer and grazier.
The mother is desirous of moving to R to live with her partner Mr B.
O and R are about 150 kilometeres/2 hours driving distance apart (see ex 1).
The mother seeks a “new beginning”, away from O where she is “miserable” and feels “under the constant scrutiny or the [Muldoon] family”, saying “My life is like living in a fishbowl in [O]” (mother’s trial affidavit, par 229). She has not been in the paid workforce for some 22 years, and not sought employment in O. She has received a partial property settlement of $1 million, so that she would not suffer financial hardship in O or R. (The parties’ property proceedings are to be listed for trial in 2011). If the mother lives in R, she proposes to inquire about TAFE courses. She would like to work and, if in R, she would “look in the paper” but as at the time of the trial was unsure whether she would pursue employment straight away or a TAFE course first. She has never lived in R (nor have the children), but she has several friends and relatives in R and its surrounds, some of whom have children. In her affidavit the mother lists several of these friends, relatives and children (mother’s trial affidavit, par 230).
Mr B has a house property in R, comprising a brick home with 3 bedrooms, study, living area and swimming pool. His home is located in the north of the town. He is a contractor, working as supervisor with a contract company for trade services. He works on the roster basis, at the time of the trial 4 or 5 days on and 4 or 5 days off. As the mother to date has lived in O, Mr B travels to O to spend his “off” days in O with the mother and the children.
The mother and Mr B intend to live in R as a couple provided (as already explained) the children can live with them there.
The mother said “If I am unable to relocate, I will continue to rent in the [O] area. I do not intend to make [O] my home” (mother’s trial affidavit, par 160; italics added).
The father’s mother (the paternal grandmother) and sister (paternal aunt) live in or near O, as do other members of the father’s extended family. Indeed, the paternal grandmother lives in close proximity to the father’s home. The mother’s parents (maternal grandparents) live about 40 kilometres from O.
Mr B’s parents and family live in the O area.
Mr B has known the mother’s family for “quite a few years”. The mother and Mr B’s sister were in primary school together in the O area.
If the mother and the children live in R with Mr B, they and the children would be likely to travel to the O area about once a month to visit the mother’s and Mr B’s extended family.
At the time or the trial L was attending C State School in Grade 4 and S C State School in Grade 1. See ex 1, as to the relative proximity of C State School to O, about 15 kilometres outside O.
It is regrettable indeed that the parenting issues concerning the children L and S, for whatever reason, have not been able to come to trial before November 2010, more than 6 years, nearly 7 years, after the parties’ separation and indeed more than 4 years, nearly 5 years, after their divorce. This is regrettable, particularly as the proceedings were commenced on 27 April 2004.
Mr H, the family consultant, described the parties’ relationship as “toxic”. Regrettably, they have not spoken since separation, except for an occasion on a Mother’s Day, when the children were spending time with the father and the mother telephoned to speak with the children. Despite differing versions between the father and the mother as to what transpired, the mother found the incident unpleasant.

Time spent by the children since the parties’ separation

The independent children’s lawyer, with the assistance of Counsel, has prepared a schedule in relation to the time the children have spent with each of the mother and the father since separation: ex 5.
It is convenient to set out the summary in it:
SCHEDULE OF ORDERS MADE AND TIME SPENT
Orders of 28 May 2004
·Father have contact
(a)     with [L] each alternate weekend from after school/day care on Friday until before school/day care on Monday, and for half of the school holiday periods;
(b)    with [S] from 9.00am until 12 midday each Saturday and Sunday.
Orders of 27 March 2006
·Father’s time
(a)     with [L] continue on the same terms as set out in the orders of 28/5/04 (start and finish times for school holiday periods defined);
(b)    with [S] increased over a five month period to coincide with the time [L] spends with his father (except for the Christmas school holiday period in 2006 when [S] spent time with the father for the first, third and fifth week of the holiday period).
Time Spent
In relation to the orders of 28 May 2004 there were disputes regarding start/finish times for the September 2005 and Christmas 2005 school holiday periods;
[S] did not spend time with the father in July 2006 and August 2008;
Dispute regarding the holiday changeover in Christmas 2008;
[L] did not spend time with the father in April 2009;
Children did not spend time with the father in November 2008.
It is common ground that between the separation in February 2004 and the first of the interim orders made on 28 May 2004 the children spent no time with the father. The mother said that during this period, about 3½ months, she considered it appropriate first to obtain a Court order, having left the former matrimonial home with the children in circumstances she describes in her trial affidavit pars 36-40. The mother instituted these proceedings promptly, within about 2-2½ months of ending the marriage. As mentioned, interim orders were then made on 28 May 2004.
Further interim orders were made on 27 March 2006.
With the exception of the matters detailed in the last part of ex 5, it was common ground that the children spent time with the father in accordance with the orders referred to in it.
The father’s material alleges several instances of the mother withholding the children from ordered time with him, indeed that S was withheld on some 34 occasions. The mother addresses these allegations in her material. The parties’ constant disputes concerning these matters lead to voluminous solicitors’ correspondence. However, it is not necessary in the present context to refer to the detail of these many matters. It is sufficient to observe that the parties agreed the context of ex 5.

Principles relevant to parenting orders

Children’s best interests paramount

Pursuant to s 60CA of the Family Law Act 1975 (Cth) (the Act), in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.

Objects and principles underlying objects

Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of children are met by:
·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
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;
·and that the principles underlying the objects are that, unless it would be contrary to a child’s interests:
·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
·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
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children; and
·children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Determining what is in a child’s best interests

Section 60CC of the Act provides that the Court must consider the matters set out in s 60CC(2) and (3), described as the “primary considerations” and the “additional considerations”.
The primary considerations are:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are too numerous to set out. However, I will make specific reference to them below, to the extent that each may be relevant.

Parental responsibility

Under s 61C of the Act, subject to any orders of the Court, each of the child’s parents has parental responsibility for that child.
Under s 61DA of the Act, the Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or another child who, at the time, was a member of that parent’s family or that other person’s family, or family violence.

Equal time/substantial and significant time

Under s 65DAA of the Act, if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child:
·the Court must consider whether the child spending equal time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making an order to provide for the child to spend equal time with each of the parents; and
·if an equal time order is not made or to be made the Court must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making such an order.
Section 65DAA(3) and (4) of the Act provide that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:
·days that fall on weekends and holidays; and
·days that do not fall on weekends and holidays;
and:
·allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child; and
·allows the child to be involved in occasions and events that are of special significance to the parent,
although regard may be had to other matters.
Section 65DAA(5) of the Act provides matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents including:
·how far apart the parents live from each other; and
·the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents; and
·the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
·the impact that an arrangement of that kind would have on the child; and
·such other matters as the Court considers relevant.

Prior parenting plans

Section 65DAB of the Act provides that the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents if doing so would be in the child’s best interests.

Other provisions

The Act provides several other provisions which may apply in a particular case and to which reference will be made if applicable in this particular case.

Weight

Matters affecting weight are primarily for the trial Judge to attribute in the exercise of his or her discretion, subject to any error of law in that exercise.

Principles relevant to relocation proposals

High Court

In AMS v AIF (1999) 199 CLR 160 Hayne J made clear that an important probably essential step in the inquiry as to which parent should have custody of a child (to be read now as to with which parent a child should live) is to identify where the custodial parent intends to live, that being a decision for the parent not the Court; and that the question is not whether a parent has shown a good enough reason for wanting to move, which focuses attention on the parent, but which is better for the child, which focuses on the child, that question requiring attention to what benefits the child would have and what detriments the child would suffer from living with one parent in place A compared with the other parent in place B:
216. An important, probably essential, step in the inquiry into who should have custody of, and access to, the child is to identify where the custodial parent intends to live, for that will determine where the child lives and affect what contact the non-custodial parent can be expected to maintain with the child. But that is not to say that it is for the Court to decide where the custodial parent may live: that decision is to be made by the parent.
…
218.To translate the question into this form – has the mother shown a good, or good enough, reason for wanting to move – focuses attention upon the reasons and motives of the mother. But that is not the proper focus of the inquiry. The proper focus is which is better for the child – to be in the custody of the father (in Perth) or to be in the custody of the mother (in Darwin). That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer, from being in the mother’s custody in Darwin… (emphasis added)
In the same case, Kirby J set out nine “general propositions” [141] or “general principles” [151] which he derived from the authorities [141] – [151], the third of which he discussed as follows:
144.Thirdly, 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. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule. (footnotes omitted, emphasis added)
In MRR v GR (2010) 240 CLR 461, the High Court said, in relation to s65DAA(1):
15.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. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
…
19.The evidence before his Honour did not permit an affirmative answer to the question in s 65DAA(1)(b). It follows that there was no power to make the orders for equal time parenting. It was necessary for his Honour to proceed to consider whether substantial and significant time spent by the child with each parent was in the child's best interests (given that equal time was not possible) and whether that was reasonably practicable. That would require consideration of the mother being resident in Sydney. But without a finding as to practicability no conclusion could be reached. At the rehearing of this matter afresh, the necessary determinations will be made on the evidence as to the practicability of such orders, given the circumstances pertaining to the parties as they then stand. (bold emphasis and italics added)

Full Court

A relocation proposal needs to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the s60CC matters and also in the context of s65DAA: Taylor v Barker (2007) FLC 93-345 at [60]. In McCall & Clark (2009) FLC 93-405 at [57]-[62] the Full Court referred to this necessity at [59]; and to the following analysis in Sealey & Archer [2008] FamCAFC 142 at [60]:
66.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.
67.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. On the contrary, the majority in Taylor & Barker said (emphasis added):
60. …It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, so 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…
62. … [G]iven that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsection (2) (“primary consideration”) and subsection (3) (“additional considerations”) of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests. (original emphasis)
Their Honours continued, in McCall & Clark (above):
61. 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.
62. 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.
In Starr & Duggan [2009] FamCAFC 115 the Full Court at [33] –[37] referred to the “interplay” between the paramountcy principle and the “framework” of the legislation emphasising that inevitably there will be dual consideration of some matters in particular because the consideration of the s 60CC factors “does not take place in a vacuum” but in the context of the competing proposals. The Full Court said further, despite Taylor & Barker at [81]-[83], which seemed to set out a formulaic approach, that such is not intended, as not mandated, such that:
38.…[I]t is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
·first make findings concerning the relevant s 60CC factors;
·then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
·then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
39.Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.
In Hepburn & Noble (2010) FLC 93-438 at [100] and [103] the Full Court re-affirmed these matters.
In Collu & Rinaldo [2010] FamCAFC 53, the Full Court at [374]-[382] emphasised the need, in relation to reasonable practicability, to undertake an analysis of the reasonable practicability of each of the proposals of the parties: [376], giving close attention to the matters in s65DAA(5).
The circumstance that the father’s primary case is that the children live in O, and the mother’s evidence that if there should be an order that the children live with the father in O she would not move to R, makes pertinent also the following in Collu, in particular in relation to the sentence “The Mother would follow the child”:
378.In this case, the trial Judge also made orders that provided for the possibility that the Mother would not remain in Dubai and would return to Sydney. In our view, it was clear that the Mother would return to Sydney if an order was made that the child reside in Sydney as proposed by the Father. The Mother would follow the child. Thus, there also had to be consideration of the circumstances of the Mother living in Sydney. This, in turn, would have required analysis of a number of matters which we have already touched upon, such as the Mother’s opportunities for paid employment, accommodation and daily assistance with the care of the child. Again, we are reminded of what was submitted on behalf of the Father about the necessity for the Mother to engage in paid employment. In our view, her Honour did not undertake this analysis. (emphasis added)
Earlier, in D v SV (2003) FLC 93-137, the Full Court made clear that an applicant for relocation is not required to “justify” a proposed relocation [64]; and that it is essential that a trial judge give consideration to how the best interests of the children could be advanced in a particular case which, whilst not confined to competing proposals of the parties, nonetheless cannot be “manufactured” in the absence of relevant evidence, in the sense that due account must be taken of the fact that proceedings in the Family Court are conducted in the framework of an adversarial procedure familiar to the common law [pars 17-21].
In that case, the Full Court discussed “intrastate movement”, and said at [37]:
37.…Where the move is over a relatively short distance such as this one, we would caution against the making of orders that restrict the residence parent’s freedom of movement. The inquiry should be directed more at alternative contact or shared residence arrangements.
Nonetheless, all of the relevant statutory matters must be considered in relation to all of the proposals of the parties.

The evidence

The mother relied on evidence by herself, Mr B, her partner, and Dr F, psychiatrist, in relation to a report 24 August 2010 concerning her.
The father relied on evidence by himself, three “support” witnesses, namely E Muldoon, his cousin, Ms M, a neighbour of the parties at O during their relationship and marriage, Ms K, a friend of the parties during their marriage, Dr F, in relation to a report 20 November 2006 concerning him, and Mr W, psychologist, in relation to a report 23 May 2007 concerning the father and the children.
The independent children’s lawyer relied on a report 25 March 2010 by Dr G, paediatrician, a report 12 May 2010 by Farmsafe Queensland Ltd, in relation to farm safety at the father’s property and Mr H, the family consultant, who provided two reports, namely a child and parent issues assessment statement (undated but prepared, it appears, in mid 2009) and a family report (undated but prepared, it appears, in mid 2010).
In addition, the parties relied upon documentary evidence, exhibits 1 - 7.
It is not necessary to refer to all of the evidence. If in these reasons I should not refer to the evidence of a particular witness or parts of the evidence of any witness it ought not be inferred it has been overlooked. All of the evidence has been considered carefully.

The statutory matters

The children’s best interests

I turn now to the statutory matters concerning the children’s best interests.

Section 60CC(2) – the primary considerations

Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of the children’s parents

The concept of “meaningful relationship” was examined by the Full Court in McCall & Clark (2009) FLC 93-405 at [108]-[122]. At [119] the Full Court concluded in favour of “the prospective approach”, accepting at [121] as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazorski & Albright [2007] 37 FamLR 518 and Bennett J in G & C [2006] FamCA 994. Thus, the Full Court concluded at [122] that the legislation requires a court to focus on the benefit to a child of a meaningful or significant relationship.
Section 60B of the Act provides that the objects of Part VII are to ensure the best interests of children are met by (amongst other things) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests and protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Plainly, one of these objects may impact upon the other.
It is not in dispute that the children presently have a meaningful relationship with both of their parents, and that prospectively there is benefit to the children in ensuring that such is maintained.
Ms Kirkman-Scroope argued that, prospectively, the children’s meaningful relationship with the father would be disturbed if the children live in R. Mr H, however, said quite forcefully, as to “reduction” of time with the father if the children live in R “My assessment is that if they move to [R] and visit him [the father] they will maintain their relationship with him in the same way”, and “I don’t think that reduction in time will affect his [the father’s] relationship with them” [the children] because “One night per fortnight less with the father would not change the children’s perception of or attachment to him.” Mr H’s reference to “one night less per fortnight”, in context, was a reference to the children’s alternate weekend time with the father which has subsisted for the nearly 5 years since the interim orders made on 27 March 2006 (after school Friday until before school Monday) compared with the mother’s ultimate proposal (4.00pm Friday until 4.00pm Sunday).
It is necessary to state, specifically, that in referring to Mr H’s evidence, in the context in which it was given, I am not in any way making observations predicated upon any “status quo” notion (which plainly would be erroneous), but limiting observation to the proper context of Mr H’s evidence concerning the children’s existing and prospective meaningful relationship with the father, if the children should live in R not O, the effect of his evidence being that, prospectively, the children’s existing meaningful relationship with the father would not be disturbed.
Mr H is a very experienced family consultant. He was involved with the family both for the child and parent issues assessment statement in mid 2009 and his family report in mid 2010. There is no rational basis to exclude or not accept Mr H’s careful evidence, and I accept it. I conclude therefore that the children’s meaningful relationship with the father would not be disturbed if the children should live in R.
I am conscious that during the children’s soccer season (usually February to September in each year), if the children should live in R, potentially there would be an additional night’s “reduction” from the time the children presently spend with the father, namely the Friday nights in alternate weekends. However, the father also would have opportunity, potentially, to participate in the children’s soccer on Saturdays not only in relation to the children’s alternate weekend time with him but potentially also the intervening weekends, subject to his ability to afford travel and accommodation for that purpose. (I deal with this below in the section “Practical Difficulty and Expense” in the s60CC analysis). I mention this because the “reduction in time” the subject of Mr H’s evidence specifically was loss of the alternate weekend Sunday night, whereas potentially during the soccer season unless the father were able to spend Friday nights in the alternate weekends in R, for example, in a motel with the children and take them to soccer on Saturdays, his time with them would commence on those Saturdays at the commencement of the soccer games rather than 4.00pm on the Fridays. However, there are two observations about this. First, the strength and tenor of Mr H’s evidence remains. Secondly, there is no necessary conclusion that the father would not be able to spend at least some if not all of the alternate Friday nights in a motel in R with the children during the soccer season, and indeed during it potentially he would have the ability to participate in the children’s lives during the soccer season on the intervening Saturdays as well.
Plainly, if the children should live in or near O, on any of the bases proposed by the father, their meaningful relationship with him would not be disturbed, that is, if they should live in or near O primarily with the father, on the equal time basis with the father and the mother or with the mother.
There was however no specific evidence as to the effect on the children’s meaningful relationship with the mother, prospectively, if the children should live in or near O primarily with the father, or in or near O on the equal time basis with the father and the mother.

Section 60CC(2)(b) – the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence

The mother alleged that during her relationship with the father she was subjected to emotional and other abuse. Indeed, her evidence is to the effect that such caused her to leave the relationship and end the marriage. I need not make observation as to her evidence in this regard, however, to dispose of this aspect of the matter.
Whilst there was evidence of both parties using a “belt” or “strap” to discipline the children some time ago, there is no evidence of continuance of inappropriate physical discipline of the children presently by either party or that presently they are in need of protection from abuse neglect or family violence.
In relation to the need to protect the children from physical harm, the mother raised an issue as to the children’s safety in relation to the father’s farming and grazing property. The independent children’s lawyer commissioned a report by Farmsafe Queensland Ltd. The report raises some matters of concern, for example, that “immediately” a Power Take Off Shaft must be guarded, and that in relation to certain equipment and processes “parental supervision and safety instruction of the children would be the only way to manage the risk if the children had to be within the confines of the workplace”. The mother said in her oral evidence that she was satisfied with the Farmsafe report, and satisfied that the father is capable of ensuring the children’s safety on the farm, but added that “He needs to understand that with [L’s] autism he doesn’t see danger”. (I will refer more to this below).
The father, as I understood his case, accepted the Farmsafe recommendations, and indeed there was evidence that as at mid June 2010 he was taking all steps recommended by Farmsafe (father’s trial affidavit, par 51). However to better ensure the children’s safety I will make an order that he continue to observe and follow the Farmsafe recommendations. In these circumstances, it is not necessary to refer to past incidents concerning the children which occurred on the father’s property, or which are alleged to have occurred on the father’s property, which caused the mother considerable concern.
Ms Kirkman-Scroope, for the father, raised an issue of safety for the children in relation to the swimming pool at Mr B’s house property in R. The mother’s evidence however included that the children have had and continue to have swimming lessons.
In relation to the need to protect the children from psychological harm, and also, in the context to follow, physical harm, it is necessary now to refer to the considerable body of evidence concerning L’s special needs.
L was assessed (not “diagnosed”), by Dr G, in his capacity as an expert witness, as having Attention Deficit Hyperactivity Disorder (ADHD) and possibly also Autistic Spectrum Disorder (ASD), and elsewhere had been assessed as having mild to moderate intellectual impairment: Transcript 2 November 2010, 3/20-25. Whilst Dr G emphasised that he had not “diagnosed” L with ASD, he said, based upon data from L’s school, correspondence with a Dr R (L’s treating practitioner, apparently with Child and Youth Mental Health Service) and having seen L only “once”, he had the “impression” that such “would be his diagnosis”, but that usually a diagnosis is “developed over time”. He said further, as to a “diagnosis” of ASD “That is not a diagnosis I make lightly because it is the sort of thing that stays with a child for the rest of their life, but I think, on balance, I believe that he almost certainly does have Autistic Spectrum Disorder, but I would like perhaps more time to make that categorical statement”: Transcript 2 November 2010, 5/25.
L has been prescribed Ritalin (for ADHD) and Risperidone (for Autism). The father, at least until the time of the trial, seemed unable to accept that L needed prescribed medication, on the basis that L is “fine” when with him.
Mr Burridge of Counsel, for the independent children’s lawyer, submitted at the conclusion of the trial that despite evidence to which I will shortly refer, as the trial judge I “cannot be confident that the father will accept and follow the advice and treatment recommended for [L]”, and that a “primary consideration” is the need to protect L from physical and psychological harm “should medical advice and treatment not be followed”.
At the time of Dr G’s consultation with L, about 11.15am on 31 March 2010, the mother had withheld L’s medication, on the basis that she considered it was important for Dr G, in his capacity as an expert witness, who previously had not met L, to have opportunity to observe him while not on his medication. There was unfortunate conundrum at the trial as to whether the mother’s evidence was that L’s medication had been withheld “that morning”, that is, for a matter of some 3 or 4 hours, or for two mornings, being 1½ days. Sensibly, the puzzle seemed to me to be resolved by Dr G’s evidence that Ritalin “only lasts about 4 hours”, so that “it wouldn’t make a great deal of difference” whether the Ritalin had been withheld for one morning, or for two mornings, in relation to his observations and assessment of L. Dr G said however that if L’s Risperidone also had been withheld, “That might be a little bit different”, if L had not had it for a day and a half: Transcript 2 November 2010, 7/25-28:
‑‑‑Well, if that was the case then I would anticipate that he might be very cautious and hypervigilant; that he would be suspicious; that he would misinterpret what I was saying; he might become angry, and he may be just extremely apprehensive in the clinical setting.

Dr G, however, also had data from L’s school and correspondence with Dr R as well as his interview with L, which both of his parents attended. In all of the circumstances, there is no rational basis to reject or seek unduly to qualify Dr G’s assessment of L.
Dr G was unequivocal in his evidence that, in his assessment, L’s prescribed medication of Ritalin and Risperidone is of benefit to him, that, importantly, L may be “more prone to accidents” if he does not take his Ritalin, and that if he does not take his Risperidone, whilst there would be no detriment to his physical health, there would be detriment to his “mental health”, because if Risperidone is not used that can have a “highly prejudicial impact on a child’s future development and ability to take their place in society”. He said that Risperidone “allows them to have a balanced view of the world” and, in relation to L in particular (Transcript 2 November 2010, 9/16-25 and 12/29-39):
…Particularly the Risperidone enables them to function with other people in a reasonably social manner. It allows them to take note, or to try and understand that other people have got feelings and it is important to respect those as much as your own feelings. It allows them to have a more balanced view of the world. To withdraw Risperidone would create a situation that was already developing in this child prior to medication with that treatment in that he was being highly offensive, that he was extremely unpredictable. He would overreact grossly to seemingly trivial matters or innocent matters that other children were wary of him and avoiding him. He himself was showing a lot of avoidance behaviour.
…
…So the Risperidone will help to settle that sort of thing, and if he’s not on medication then he will be typecast by others, particularly his peers, but also by teachers and others too as being very difficult and – like a misfit, a child who just can’t fit in, and if that starts to happen there is untold implication for his future mental health because, you know, the self-esteem goes through the floor. I mean, these children can be helped greatly with appropriate managements, but if you don’t – if they’re not medicated, particularly as they go through adolescence, they become very confused. They have difficulty developing an identity, and they get all sorts of consequences. I’m sorry, I’m rabbiting on here, but that was what I was getting at with mental health.
Dr G was asked as to reference in his report to “management” of L’s “behaviours” with “behaviour management strategies” and “modified cognitive approaches by individuals skilled in autistic disorders”. He said, unequivocally, that such is not an alternative to medication, but supplementary of it.
Dr G agreed, in response to questions put to him, that whilst L’s Ritalin should be administered on school days, it is “optional” on weekends and holidays, because of its 4 hour duration, “unless he’s around equipment or in a situation that he requires to be focused”, because Ritalin’s effect is “to improve the ability to focus”. In relation to L’s Risperidone, however, Dr G emphasised that it should not be “stopped and started”, because whilst it takes about 36 hours to leave the bloodstream, and 1-2 days after recommencement to “take effect”, during the recommencement period L could become “a bit drowsy”, so that, in effect, if L should not stay on his Risperidone at weekends, such would be detrimental, but that if during holiday periods with the father L did not have his Risperidone such would not be detrimental but he would need to restart it 2-3 days before L’s return to the mother, particularly because “It’s much easier for her to manage if he is on his medication”.
The father’s concern in relation to administering L Ritalin and Risperidone is the potential harmful effect. This was comprehensively canvassed by Ms Kirkman-Scroope with Dr G, who adhered to his advice and recommendations concerning L.
Dr G was interposed during cross examination of the father. After Dr G’s evidence, the father, under cross examination by Mr George of Counsel, for the mother, said that Dr G’s evidence had changed his view “a little” and, when asked whether he was able to agree with what Dr G had said, reluctantly acknowledged “I suppose so”, but with demeanour or “body language” giving me no confidence that in truth the father accepted Dr G’s opinions and recommendations. Such, indeed, was the submission by Mr Burridge of Counsel, for the independent children’s lawyer, which submission, on the basis of what I have just observed, I accept.
I have referred earlier to the mother’s proposal that, if the children should live with her in R, and spend alternate weekend and holiday time with the father, in respect of the holiday time L should return to her 3 days before the end of the school holiday periods (that is, 3 days before the end of the June/July and September/October school holiday periods and 3 days before the end of the Easter and Christmas school holiday periods when the children spend the second half with the father), her purpose being to ensure that if L has not had his Risperidone while with the father (which, according to Dr G’s recommendations, he need not have) the mother can ensure that he is medicated with his Risperidone so that the readjustment period (when, according to Dr G’s evidence, L could become “a bit drowsy”) can take place before he recommences each of his school terms. Mr Burridge, for the independent children’s lawyer, in submissions emphasised the need to ensure that L has this benefit.

Section 60CC(3) – the additional considerations

Any views expressed by the children

Mr H, in his Child and parent issues assessment statement (pp2-3) said that L described “in great detail and with much excitement”, “the activities he does on the farm with his father”, and said “He clearly very much enjoys visiting his father and working with machinery and animals on the property”.
He said also (p3) that L described that the father says “bad things” about the mother, criticising her and saying “She’s got problems”.
He said that L is aware of the “parenting disputes” between his parents, a particularly significant one being whether L should be taking his medication, and that L complained that his father does not give him his medication and said “He throws it in the bin and burns it.”
In his family report (pars 64-66) Mr H said that L is “aware of what each of his parents wants” and that L himself appears to be “quite ambivalent”. He said that L is “worried about the prospect of moving to [F]”, “because of the changes this would involve and the increased travelling time to see his father”. He said that L “likes spending time with his father on the farm but is worried that his father does not allow him to take his medication.” Mr H said that L is “experiencing some pressure from the expectations of the adults to express a view as to where he should live”, and that when asked if he wanted to have a say about where he lived L very clearly stated that he did not want to state a view, and said “I don’t know what to choose”, and that he would “prefer that the adults make a decision” and that he would accept whatever decision was made.
Mr H, in his child and parent issues assessment statement (p6) said that L’s age, lack of maturity and “his reactions to the conflict between his parents” are such that his views should not be given much weight in determining the arrangements that best suit his needs.
In relation to S, Mr H said in his child and parent issues assessment statement (p4) that whilst S is aware that her parents “do not like each other” and “do not get along”, she does not understand why and “due to her immaturity” is not concerned “about why”. He recorded that S enjoys living with the mother, and was “very outspoken” about “how much she enjoys visiting and spending time with her father”. He observed that, as with her brother, S “enjoys the activities involving machinery and animals, particularly horse riding”. In his family report, Mr H said in relation to S that “She does not seem to enjoy to the same extent as her brother working with machinery on the farm” (par 70) and that she “did not express a view as to where she would prefer to live” but is “not concerned about a move to [R]” (par 72).
Assisted by Mr H’s evidence, it seemed to be common ground at the trial that the children are not yet of an age or maturity to express meaningful views.

The nature of the children’s relationships

The children, according to Mr H, are strongly attached to each of their parents and have a meaningful relationship with each.
The mother is and always has been the children’s primary carer.
In relation to Mr B, he said, which I accept, that the children were “a bit standoffish” at first, but now “treat me as part of the family”.
The children have positive attachment to various members of their extended family on both sides.
A, as mentioned earlier, lives with her husband and two children about 12 kilometres south of O. The children, it appears, have positive attachment to and a healthy relationship with A and her family, and also with N.
At the time of the trial, N was living with the mother and the children at O. If the mother and the children should move to R, it is uncertain what N would do. As mentioned, at the time of trial N was employed with a supermarket in O. N now is 19 years.
Regrettably, A and N are estranged from the father, which he believes to be the mother’s fault (father’s trial affidavit, pars 18-26).
N has been estranged since he was 12 years, roughly the time of the parties’ separation. At this stage, it is unknown whether, if the mother and the children were to live in R, N would follow them and live with them there, or seek his independence, either in R or O.
Mr H observed (family report, par 82) that L and S are “delightful and engaging children” who have positive attachment to each of their parents and appear also to have strong and positive relationships with all significant members of their extended family, including Mr B; and (par 104) that whilst L and S have “some very different needs”, they are “attached to each other as siblings” such that it would “diminish their relationship” if they were not both to reside with the same parent or spend significantly different amounts of time with one parent.

Willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent

The father’s case is that he believes, and alleges, that since the separation the mother actively and “wherever possible” has obstructed a relationship between the children and him.
The father points to A’s and N’s estrangement from him as indicative that if the children should not live with him the mother will succeed in estranging the children from him also.
Ms Kirkman-Scroope, in her submissions, pointed to many examples of the mother’s alleged obstructive behaviour in relation to N and the father.
Mr George, however, for the mother, ably put that despite the parties’ “toxic” relationship (as expressed by Mr H, and to which I will refer in more detail below) the mother actively has protected the children from conflict by her refusal to be “drawn into battle” with the father, and that this stance by her actively has promoted the development of the children’s relationship with the father and its continuation.
Mr Burridge, for the independent children’s lawyer, pointed to the circumstance that despite the father’s beliefs and allegations the circumstance of the children’s firm and continuing attachment to the father, which has been maintained now for nearly 7 years since the parties’ separation, is unlikely to have been achieved if the mother had not been and was not continuing to be committed to facilitating and encouraging a close and continuing relationship between the children and the father. He submitted that ex 5 (referred to earlier) “speaks volumes” as to the mother’s commitment to facilitating and encouraging a close and continuing relationship between the children and the father, and referred to “both parents’ willingness” to embrace the Court orders made to date, despite their individual differences and difficulties.
There is indication in the material of the father actively denigrating the mother to or in the presence of the children. See, for example, Mr H’s family report, par 62. Mr George submitted that the father’s attitude to the mother, exemplified by this and other matters, demonstrates a lack of ability in him to promote a relationship between him and the mother, such being a matter of “serious concern”. Despite that, one of the father’s proposals is for an equal time order. In my view, the father’s attitude to the mother, however negative, is based upon his inability to accept the breakdown of their marital relationship, which he blames upon the mother, rather than lack of willingness on his part to facilitate and encourage a close and continuing relationship between the children and the mother.
Ultimately, I would conclude that despite the parties’ own differences and attitudes to each other, each of the mother and the father has both willingness and ability to facilitate and encourage a close and continuing relationship between the children and the other parent.
In so observing, I note the submission by Ms Kirkman-Scroope, for the father, that the mother may have limitation in her willingness or ability to facilitate and encourage a close and continuing relationship between the children and the father, based upon a remark by Dr F, psychiatrist, in his report 24 August 2010 in relation to the mother (concluding paragraph, p13) “There is no question as to her parenting capacity except for her anxiety about the father which inevitably will affect the children and their relationship with him” (italics added). However, whatever “anxiety” the mother may have in relation to the father, such plainly to date has not affected her willingness and ability to facilitate and encourage a close and continuing relationship between the children and the father in the nearly 7 years since the separation, as amply demonstrated by ex 5, and more pertinently by Mr H’s evidence of the circumstance of the children having and continuing to have a meaningful relationship with the father. In short, Dr F’s opinion, somewhat, is displaced by the last 7 years’ factual history wherein, despite the mother’s “anxiety”, the relationship between the children and the father is very strong. To the extent that Dr F’s opinion is directed to the future, that is a matter to be taken into account.
I would add, further, in this context, that whilst the mother might have “anxiety” in relation to the father, I will refer below to Mr H’s opinion as to the father’s “anger” in relation to the mother.
In short, the parties’ have negativity towards each other. Even if, however, the children should perceive that, I am satisfied on all of the evidence that each of the parties, whilst being critical of the other, nonetheless will ensure that they facilitate and encourage a close and continuing relationship between the children and the other parent.

The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other child or person (including any grandparent or other relative of the children) with whom he or she has been living

If the children should continue to live in O, either they would continue at the C State School, or alternatively attend the O State School.
If they lived in O with the mother, and spent substantial and significant time with the father (that is, potentially more than at present) there would not be significant change for them.
If they lived in O with the father, on his farming and grazing property, and spent substantial and significant time with the mother, that would amount to a significant change for the children as they would cease to live primarily with the mother, who has always been their primary carer, even though, as the mother made clear, if there be such an order she would not move to R but remain in O or the O area.
An equal time arrangement with both parties living in or near O similarly would amount to a significant change for the children but, plainly, not to the same extent as if they lived in O with the father and spent substantial and significant time with the mother.
If the children were to live in R, the mother would continue as their primary carer. They would live as a family unit, at Mr B’s home, comprising the mother, Mr B and the children. I have mentioned already that the children are used to Mr B spending his “off days” with the mother and the children in O, and Mr B’s evidence that the children treat him as “part of the family”. There would thus be a shift in location, and a shift to Mr B being “part of the family” in a fuller sense, as living in the one household in R, rather than Mr B being a visitor to children’s and the mother’s household in O. Mr B however, on present indications, would continue to be away with his employment on the same or a similar basis as at the time of the trial, that is, 4 or 5 days away followed by 4 or 5 days at home.
The children have never lived in R, a small city about 30 minutes inland from the Central Queensland coast.
O is a rural town.
If the children lived in R, there thus would be a shift from a “rural lifestyle” to a “small city lifestyle”. This would amount to a very significant change for the children in relation to their lifestyle.
Mr H observed in his child and parent issues assessment statement that the father described the children as “farm kids”, and that he sees their future as being on a farm and living a lifestyle associated with working on a farm and doing activities associated with farming. This has been his lifestyle, the children’s lifestyle until the parties’ separation, and that of his parents, and he wishes the children to continue to enjoy it. The children were born and raised on the family farming and grazing property near O and have immediate family on both sides in or near O.
Mr B’s home, as mentioned earlier, is in the north of R, as described in his affidavit.
If the children should live in R, they would attend R Christian School: see ex 3, which is its prospectus, showing a wide range of opportunities and facilities.
Mr H said that L’s special needs have effect that a change to living in R, attending a new school and joining a new soccer team would require “a lot of support”. He assessed the mother however as “able to ensure he gets this”: family report, par 101.
The C State School and the O State School are able to offer individual education plans for children with special needs. The mother, at the time of the trial, had ascertained that similarly R Christian School is able to offer individual education plans for special needs children.
Mr H said that S would have “little difficulty” adapting to a new school.
If the children were to live in R, and attend school there, they would be unable to spend substantial and significant time (as defined: s65DAA(3)) with the father, in that they would not be able to spend time with him on “days that do not fall on weekends or holidays” (apart from Fridays from 4.00pm on alternate weekends, which effectively is evening or night time, rather than day time) and would limit, if not exclude, opportunity for the father to be involved with their weekday daily routine during school terms. There would be no reason however, given the 150 kilometres/2 hours driving distance, for the father not to attend significant school and extra curricular activities of the children, subject to his ability to afford travel and accommodation expenses (a matter dealt with below). There would also be limitation, to some extent, for the children to be involved in occasions and events of special significance to the father, for example, rural shows and activities in or near O if not occurring on the children’s alternate weekends or holiday time with him.

In this particular case, it is very relevant that if there should be an order that the children live with the father in O the mother would not move to R: “The Mother would follow the child” [children]: Collu at [378]. Thus, in considering whether an equal time order is reasonably practicable, I do so in the context of the mother living in O (which she would need to do if there be an equal time order) and the context also of the mother living in R.
I have said already that if the mother lived in O an equal time order would be reasonably practicable in relation to distance.
If the mother lived in R, the parties would live 150 kilometeres/2 hours driving distance apart, so that an equal time order would not be reasonably practicable, particularly as the children need to attend school in the one location, and could not possibly attend school one week in O and one week in R.
Ms Kirkman-Scroope placed emphasis on the mother’s statement in her trial affidavit (par 160) “If I am unable to relocate, I will continue to rent in the [O] area” (italics added) and “I do not intend to make [O] my home”. If the mother lived “in the [O] area”, an equal time order, it would appear, would be reasonably practicable in relation to distance.

The parents’ current and future capacity to implement an arrangement for the children spending equal time with each of the parents

I would refer to Mr H’s evidence, sufficiently mentioned already, as to the parties’ “toxic relationship”, their inability to communicate and the paragraphs in his family report already set out, all of which suggest that the parties do not have this capacity.

The parents’ current and future capacity to communicate with each other and to resolve difficulties that might arise in implementing an arrangement for the children spending equal time with each of the parents

I would refer to Mr H’s evidence, sufficiently mentioned already, as to the parties’ “toxic relationship”, their inability to communicate and the paragraphs in his family report already set out, all of which suggest that the parties do not have this capacity.

The impact on the children of an arrangement for the children spending equal time with each of the parents

I would refer to Mr H’s evidence, sufficiently mentioned, that a shared parenting order (which plainly includes an equal time order) would impact adversely on both children: family report (extracts above) pars 86, 93, 94, 95, 101 and 102.

Such other matters as the court considers relevant

I have mentioned already the mother’s wish to live in R, but that she would not do so if the children lived in O.

Conclusion as to reasonable practicability

Leaving aside matters relating to the parties’ location, I would conclude that an equal time order is not reasonably practicable in any event having regard to the matters in pars 220, 221 and 222.

Conclusion as to equal time

I have determined that an equal time order is not in the children’s best interests, and not reasonably practicable.
I therefore will not make an equal time order.

Is a substantial and significant time order in the children’s best interests?

Substantial and significant time is defined in s65DAA(3) and (4), as applying “only if” the time a child spends with a parent includes both days that fall on weekends and holidays and days that do not fall on weekends and holidays and allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child and allows the child to be involved in occasions and events that are of particular significance to the parent although regard may be had to other matters.
The paragraphs in Mr H’s report already set out make plain his view not just that an equal time order would not be in the children’s best interests but that a “shared parenting arrangement” would not be in the children’s best interests. I would refer in particular to Mr H’s family report (extracts above) pars 86, 93, 94, 95, 101 and 102.
The question arises however as to whether Mr H’s reference to a “shared parenting arrangement” is or is not within the statutory definition of a substantial and significant time order. “Shared parenting” is an expression capable of wide meaning, absent linkage to the statutory definitions which judges are required to consider, in particular the statutory definition of “substantial and significant time.”
However, s65DAA(2) speaks of an order for children to spend “substantial and significant time” (as defined) with each parent. Generally, thus, a substantial and significant time order may be taken to amount to a “shared parenting arrangement”. But is the converse true? That is, is a reference to a “shared parenting arrangement” as being adverse to children’s best interests to be taken as meaning that a “substantial and significant time” order is adverse to the children’s best interests.
Fortunately, in this particular case, I need not decide this question, because Mr H spelled out that whilst L can cope with alternate weekends and half school holidays (family report, par 95 above), Mr H’s specific recommendation in this regard, which I accept, appears not to amount to substantial and significant time within the literal meaning of s65DAA(3). I would thus conclude, on the basis of Mr H’s evidence, that his conclusion also is that a substantial and significant time order is not in L’s best interests, that is to say, comparing the definition of that term in s65DAA(3) and (4), and Mr H’s family report, par 95. I would make the same conclusion having regard to the tenor of Mr H’s family report overall and the other paragraphs extracted. In Ebsworth & Ebsworth (No 2) [2007] FamCAFC 1229, the Full Court said at [54]:
54.…What constitutes substantial and significant time will vary from case to case. What is substantial and significant time in one factual context may well not be in another. Whatever their terms, orders for substantial and significant time will have in common that they literally comply with each of the requirements created by s65DAA(3). …(emphasis added)
For present purposes, it is sufficient to observe that the arrangement Mr H recommended does not “literally comply” with the requirements in s65DAA(3), with effect, categorically, that he did not recommend that a substantial and significant time order, within literal compliance with s65DAA(3), is in the children’s best interests, but that something less than substantial and significant time (as defined) is the “maximum” with which L can cope.
Mr H said further (family report, par 104) to the effect that L and S are attached as siblings and that it would diminish their relationship if they were not to both reside with the same parent, or spend significantly different time with one parent.
In the context of this evidence, Mr H’s evidence overall, I would conclude also that his opinion is that it would not be in S’s best interests to spend substantial and significant time with each parent.
I accept Mr H’s evidence and opinion, to the effect (as I have analysed the matter) that a substantial and significant time order is not in the children’s best interests. I have referred already to the circumstance that there is “no magic in a family report”. Mr H’s evidence and opinion, however, coincide with my own conclusions in the matter, particularly having regard to the level of discord between the parties, their communication difficulties, the children’s need for consistency and need for minimised exposure to the parties’ conflict.
I would conclude therefore that a substantial and significant time order is not in the children’s best interests.

Reasonable practicability

I will repeat and rely on pars 204-224, but in the context of a substantial and significant time order. A point of difference is that if the children lived in and attended school in O, or lived in and attended school in R, the statutorily defined requirements in s65DAA(3) amounting to a substantial and significant time order could not be met.

Conclusion as to reasonable practicability

Leaving aside matters relating to the parties’ location, I would conclude that a substantial and significant time order is not reasonably practicable in any event having regard to the matters in pars 220, 221 and 222.

Conclusion as to substantial and significant time

I have determined that a substantial and significant time order is not in the children’s best interests, and not reasonably practicable.
I therefore will not make a substantial and significant time order.

The remainder of the father’s proposals and the mother’s proposal

In Goode (above) at [82] (i), the Full Court made clear (as is plain in the legislation) that if neither an equal time order nor a substantial and significant time order is considered to be in the best interests of the children, according to the statutory pathway, then the Court is free to make such orders as in the Court’s discretion are in the children’s best interests as a result of the consideration of the s60CC matters.
It is necessary for me now, thus, to consider the remainder of the father’s proposals, and the mother’s proposal, in relation to the aspect of the children’s best interests.

Best interests

Father’s proposal that children live with him in O

There was no specific evidence as to the effect on the children’s meaningful relationship with the mother if the children should live with the father in O, or primarily with the father in O, that is, whether the mother also should live in O or in the O area, or in R.
It is significant however that the mother is and always has been the children’s primary carer.
It is significant that the mother’s safety concerns for the children, related to the farm and farm equipment on the father’s farming and grazing property, were resolved to allay the mother’s concerns.
It is significant however that at the trial the father showed little or no insight into L’s assessed medical conditions of ADHD and ASD and, despite his assurance at the trial that he would administer L’s medication, and that he would follow all recommendations in relation to L’s prescribed medication of Ritalin and Resperidone, he displayed reluctance to do so.
It is significant that if the children live with the father, they would continue their “rural” lifestyle, which the father firmly believes is in their best interests.
It is significant also that if the children live with the father in O they would attend the same school, namely the C State School, or move to a school at O, in a similar environment.
It is significant that if the children live with the father in O, the mother would not move to R, but would locate herself “in the [O] area”. Thus, predictably, the children’s time with the mother might not necessarily be restricted to alternate weekends and school holidays, but, by arrangement between the parties, potentially would involve more time with the mother. However, Mr H’s opinion in his family report, par 95 (above) would need to be observed. Further, Mr H made the observation in his child and parent issues assessment statement of the parties’ “vastly different parenting approaches” (p7). See also his family report, pars 29, 34 and 92 in this regard.
The children would continue to live in close proximity to their extended family on both sides.
However, the children living with the father, or primarily with the father, on his farming and grazing property at O, is untested.
Further, Mr H concluded in his family report (par 102) that if I should accept that L suffers ADHD and ASD then the mother is “the parent more likely to be able to fully meet his needs”, and recommended thus that the children live with the mother (family report, par 105).
In this regard, I accept Dr G’s evidence as to L’s health conditions and needs, already fully canvassed at length.

Father’s proposal that the children live with the mother in O

The father’s proposal that the children live with the mother in O, or primarily with the mother at O, contemplates also that the children live with the mother, or primarily with the mother “in the [O] area”.
If that obtained, the children would continue their “rural” lifestyle, and attend the same school as present or a school in O in a similar environment.
The children would live in closer proximity to the father than if they lived in R, and in closer proximity to their extended families in or near O on both sides.
There would be minimal change for them, from their lives at present. The mother would continue as their primary carer and, presumably, Mr B would continue to visit and stay with them on his “off” days.
Predictably, by the closer proximity to the father, and by arrangement between the parties, the children potentially would see and spend more time with the father than alternate weekends and half school holiday periods. However, in this regard, I would refer again to Mr H’s opinion in par 95 of his family report (above), and his observations, already mentioned, as to the parties’ “vastly different parenting approaches”, which would tend to suggest that the “maximum” time with “the other” parent, which Mr H observed, should obtain.
Despite these matters, I have referred to the mother’s evidence that she is “miserable” in O and feels “under the constant scrutiny of the [Muldoon] family”, describing her life as “like living in a fishbowl”. Whilst the mother would not suffer financial hardship if she were to live in O or in the O area, could rent a property in O or in the O area, potentially could find employment in or near O, or in the O area, and potentially pursue her study interests by “off campus” methods, and would not live in “diminished” circumstances physically, Mr H said is his family report, par 20:
20.…She feels that living in [O] is making it more difficult for her to move on with her life, both practically and emotionally. She considers [O] to be a small community where most people she deals with are aware of the disputes between herself and [the father] and that in order for herself to be able to emotionally escape from the pressure these disputes place on her she needs to move away from that community. If required to remain living in [O] [the mother] would feel some resentment, that her life was being controlled by [the father], and that she was being restricted in moving on with her life.
Further, Mr H observed that both the mother and Mr B considered that if the mother does not move away from O, there would be stress on their relationship:
55.Due to both their shared [the] goal in wanting to relocate to [R], their shared desire to move away from [O] and make some changes in their lives, and the practical advantages for them [and] living in [R] they consider it would place some stress on their relationship should [the mother] be unable to move. While both felt they would very much wish to continue in their relationship they feel it would place a long-term stress on them.

Mother’s proposal that the children live with her in R

The mother’s proposal that the children live with her in R would represent significant change for the children. There would be a change from a “rural” lifestyle to one in a small city, a change away from the place where they were born and raised to date, and they would live 150 kilometres/2 hours driving distance from the father and the members of their extended family on both sides. They would attend a much larger school, R Christian School. L, according to the evidence, would need “a lot of support” in relation to such a change, however, Mr H assessed the mother as “able to ensure he gets this”. S, according to Mr H, would have “little difficulty” in adapting to a new school.
The children would live in Mr B’s home, rather than Mr B being a visitor to their home. Importantly, however, according to Mr H’s evidence, which I accept, the children’s meaningful relationship with the father would not be disturbed by spending less time with him then at present.
Moreover, it appears that there are increased support services for L in R, at least according to the mother’s belief expressed to Mr H: family report, par 21. There is no reason to doubt the mother’s belief in this regard, O being a rural town, and R a small city.
Otherwise, I would refer, in my analysis of the s60CC matters, to the “Likely Effect of Change” section and the “Practical Difficulty and Expense” section.

Conclusion as to best interests

Having carefully considered all of the evidence, the submissions, and the statutory matters I am obliged to consider, in my view the children’s best interests will be met by living with the mother.
In particular, she is and always has been the children’s primary carer.
Mr H’s view, which I accept, is that the mother is the parent more likely to be able to meet L’s special needs, as assessed by Dr G, whose evidence I have said I accept.
The children have a close attachment as siblings. Their relationship would be diminished if they were both not to reside with the same parent, or spend significantly different amounts of time with each parent. There is no suggestion, thus, that L should live with the mother, and S not, or for less or different times.
Both parties love the children. However, in my assessment, the mother is the parent with the grater capacity to provide for the children’s needs, in particular, L’s special needs.
I am conscious, in so deciding, of Ms Kirkman-Scroope’s questions to Mr H, and his response, in par 141 above. However, as earlier observed these matters are rooted in the parties’ own “toxic relationship” and inability to communicate, and the effect, in that context, of living with one parent rather than the other parent, rather than the context of whether the children live in O or R.
As to whether the children live with the mother in O or in R, the circumstance that Mr H has assessed that “[L] can cope with alternate weekends and half school holiday periods with the other parent”, but that this is “probably the maximum time he can deal with a very different parenting style” (family report, par 95, above), has effect that if the mother and the children live in R, they would not spend less time with the father than this. Indeed, according to the mother’s proposal, they would spend alternate weekends with the father from 4.00pm Friday until 4.00pm Sunday, half of the Easter and Christmas school holiday periods and all of the June/July and September/October school holiday periods. Thus, the “maximum time” referred to by Mr H is met either way, in that, at par 95, Mr H was not specifically addressing whether “alternate weekends” be from Friday afternoon until Monday morning, or a shorter period on alternate weekends. Even if Mr H had in mind, in relation to par 95, that alternate weekends “meant” from after school Friday until before school Monday (family report, par 7), the mother’s proposal, by including all of the June/July and September/October school holiday periods goes some way towards meeting the difference between “3 night” alternate weekends (Friday, Saturday and Sunday nights) and “2 night” alternate weekends (Friday and Saturday nights). Either way, the children would spend with the father time amounting, roughly, to the “maximum” time recommended by Mr H.
More importantly, if the children should live in R, their existing meaningful relationship with the father, prospectively, would not be disturbed, as explained by Mr H, and I would refer her to his very careful but emphatic evidence in this regard: see pars 73-76 above.
As to the likely effect of change if the children should live in R, and to the matter of practical difficulty and expense, I would refer, without repetition, to the s60CC analysis of these factors.
On balance, in considering whether any detriment to the children would obtain by their living in R, there seems to be none which ultimately would affect adversely on them.
I turn then to the sensitive matter of the mother’s circumstances. As she is to be the residence parent, and there are no identifiable detriments to the children if they should live in R, there is no “conflict” between her legitimate interests and desire to live in R, and application of the paramountcy principle, to afford priority to it rather than to the mother’s legitimate interests and desires: AMS (above) at [144] (extracted above) per Kirby J. In my view, thus, there is no basis in this particular case to “require” the mother to live in O. She would like a “new beginning” in R. The move, if it be made, is not one of great distance.

I conclude, having regard to all of the relevant matters, that there is no basis to not give effect to the mother’s desire to live in R, so that she no longer need be “miserable”, living in O, with attendant difficulty in “moving on with her own life”, suffering “restriction” in that regard, and the potentially “long-term stress” in her relationship with Mr B: family report, pars 20, 55 (extracted above); while the father, for his part, is continuing to enjoy his life in his chosen location, namely his farming and grazing property near O.
Both of the parties, properly, should be allowed to “get on with their lives”, in the best way they see fit.
There is no identifiable detriment to the children if they should live with the mother in R, to create a “conflict”, of the type raised by Kirby J in AMS (above) at [144].
There is therefore no good reason, in the children’s best interests, to restrict the mother’s freedom of movement, especially as it is “over a relatively short distance”: D v SV (above) at [37]:
37.…Where the move is over a relatively short distance…we would caution against the making of orders that restrict the residence parent’s freedom of movement. …
In all of the circumstances, as the children are to live with the mother, and she desires and intends to live in R, that desire and intention does not conflict with the children’s best interests, and the likely effect of that change for the children would not be detrimental, but potentially beneficial, in particular having regard to L’s special needs, and the likelihood of better support services for him in R, I would conclude that the children’s best interests will be met by an order that the children live with the mother in R, and I will so order.
In doing so, I am conscious of the father’s evidence that L has “the love of the land in his blood”. L however is not yet 10 years. His tenth birthday is in a few days. He has special needs which require focus. He is too young, as yet, to “choose” the rural lifestyle. His education in R will not preclude his choosing that, at a later time, if he wishes to follow it. He can return to the land when he attains his majority if he so wishes, or earlier, if between now and then he should “vote with his feet”, when old enough to do so. In the meantime, however, I am well satisfied that his best interests will be met by living with the mother in R, where there can be focus on his health needs and education.
As to the children’s time with the father, the mother’s proposal, and the father’s “fifth proposal” (fourth option) largely coincide, are reasonably practicable, are consistent with Mr H’s recommendations, and thus I will make orders in those terms.
The orders which I have formulated largely follow the substance (but not format) of draft orders helpfully provided by Mr Burridge, for the independent children’s lawyer.
The orders will include, adapted from the father’s fifth proposal, opportunity for him to participate in the children’s soccer activities, not only on alternate weekends, but also on the intervening weekends during soccer season. I will include an order that if the father should attend the children’s soccer games on the intervening weekends he be able to spend additional time with them until 5pm. Such will allow the father, for example, to take the children to the beach (near R) on those Saturday afternoons, or engage in other activities with them.
I will make orders relating to changeover as canvassed during argument, and other orders mentioned already in these reasons.
I will include a provision for special days and, as canvassed during argument, transitional orders.
I will add a notation to the orders that they are predicated on the mother’s evidence of her intention to move from O to R, and the Court’s understanding that such is likely to occur promptly after the date these orders are pronounced.
Indeed, at the time of the trial, the mother’s intention was to move to R before the commencement of the 2011 school year. I would anticipate thus that upon the pronouncement of these orders she will do so promptly to enable the children to commence at R Christian School as soon as possible.

I certify that the preceding two hundred and eighty-eight (288) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 11 February 2011.

Associate:

Date: 11 February 2010

[2011] FamCA 51

11 February 2011

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness