CAVINDER & CAVINDER

[2020] FCCA 3491

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAVINDER & CAVINDER [2020] FCCA 3491

Catchwords:
FAMILY LAW – Parenting – Final hearing – relocation.

Legislation:

Family Law Act 1975 (Cth), Pt.7

Applicant: MS CAVINDER

Respondent: MR CAVINDER

File Number: BRC 10791 of 2018

Judgment of: Judge Demack

Hearing dates: 27 & 28 October 2020

Date of Last Submission: 28 October 2020

Delivered at: Rockhampton

Delivered on: 3 November 2020

REPRESENTATION

Counsel for the Applicant: Mr Jones

Solicitors for the Applicant: MLDG Lawyers

Counsel for the Respondent: Mr Slade Jones

Solicitors for the Respondent: RK Law

ORDERS

1. That all previous Parenting Orders and Plans be discharged

2. That the parties have equal shared parental responsibility for the children X born in 2015 and Y born in 2017 (:the children”) in relation to the long-term care, welfare and development of the children.

3. That for the remainder of the 2020 school year, the children shall remain enrolled in their current school/day-care.

4. That the mother be permitted to relocate with the children to Suburb B or within 10km of Suburb B State School from the conclusion of the 2020 school year.

5. That if the father remains living in Town C, the children will live with the mother and spend time with the father as follows:

   (a)One (1) weekend per month from 5pm Friday until 4pm Sunday;

   (b)The first half of all school holidays, in even numbered years, and the second half of all school holidays in odd numbered years;

   (c)At any time the father travels to Brisbane he may request to spend time with the children in Brisbane ensuring that they still attend their regular activities; and

   (d)That for all handovers the father be responsible for the collection of the children at the commencement of time and the mother be responsible for the collection of the children at the conclusion of time.

6. That should the father live within 10km of Suburb B State School then the children shall live with each parent as agreed between the parties, in writing, but failing agreement, on an equal time regime pursuant to the father’s availability.

Telephone/Video Communication

1. That during times when the children are in their care, each parent will encourage the children to communicate with the other parent by telephone or otherwise at times agreed between the parents, and in the absence of agreement every second day between 6.00pm and 6.30pm.

Authority

1. That these Orders authorise any doctor, hospital, Counsellor and/or health professional by its appropriate officer to furnish both parent with any information that they may require concerning the children at the cost of the requesting parent.

2. That this Order shall be sufficient authority for each parent to obtain from the children’s school or education facility or extracurricular activity provider, at their expense, any information and documentation regarding the children’s progress at school including:

   (a)School reports, newsletters and school photographs; and

   (b)All information that either party may from time to time seek in relation to the children and their schooling and/or extracurricular activities.

3. That each party will advise the other of the residential address and contact phone number and advise of any change within 48 hours of the change.

Passports

1. That both parties do all things and sign all such documents as are necessary to procure passports for the children X born in 2015 and Y born in 2017 upon request by either parent.

2. That the party who is applying for the passports is to fund the application and is responsible to keep hold of the passports.

3. That upon compliance with paragraph 11 herein being met, each party be permitted to take the children out of the jurisdiction of the Commonwealth of Australia.

Programs

1. That the father is to enrol and complete a Family and Domestic Violence Perpetrator Program. 

2. That the parents within seven (7) days of the date of this order contact the D Family Centre on ... or E Counselling Centre on ... for intake in the Parenting Orders Program or such other program as recommended by that organisation.

3. That the parents shall comply with any reasonable direction of the Program Co-ordinator and in particular:

   (a)attend as requested for the purposes of assessment as to whether they are suitable for participation in the program;

   (b)advise the Co-ordinator of their contact telephone number and advise the Co-ordinator of any change in that number;  and

   (c)attend and participate in the program as requested including attending referrals to treating health professionals as recommended by the Program Co-ordinator.

4. That all outstanding applications be dismissed.

IT IS NOTED:

(A)That pursuant to section 65DA(2) of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Attachment A and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ROCKHAMPTON

BRC 10791 of 2018

MS CAVINDER

Applicant

And

MR CAVINDER

Respondent

REASONS FOR JUDGMENT

1. The parents of X and Y met online around about 2011 or 2012.  She was living in Brisbane and he was living in City F.  She moved to City F with her two daughters for the relationship.  When they separated in July 2018, the mother left City F with her daughters and the children of the relationship, then aged three and one respectively and moved back to Brisbane.  The mother then commenced these Court proceedings. 

2. The Court sought the assistance of a family consultant and a memorandum was produced by Ms G on 19 November 2018.  A Court order was made on 23 November 2018 providing for the children to live in City F or, rather, Town C, a satellite community to the southwest of City F.  They were to live there with the mother and to spend time with the father on his rostered days off for three daytime periods on three consecutive days.

3. The mother returned to Town C with the children on 13 December 2018, the time before the Court-mandated date.  While the children had been in Brisbane, apart from seeing their father when they spoke with the family consultant, the children otherwise did not spend any face-to-face time with the father.  Upon the mother's return to Town C and pursuant to a Court order for sole occupancy, the mother moved in the former matrimonial home, for which the father was paying the mortgage and the mother was paying all the other outgoings.

4. In a subsequent final property adjustment order by consent on 26 August 2019, the father took on the responsibility for the mortgage with a provision for the mother to remain in the home for a fixed period through to 15 July 2020.  That date has subsequently been extended with no end date, where the parenting trial was delayed earlier in 2020.  It should be noted at the outset that the mother continuing to reside in the former matrimonial home is not sustainable long term and the final property adjustment order did not envisage it.

5. It was not spoken about at the parenting trial, but plainly an order needs to be made for the mother's vacation of the former matrimonial home.  It is common ground that there is negative equity in the house, its value having diminished since its purchase, but it common experience in the Greater City F area and beyond the control of these parties. 

6. The children's time with the father has subsequently increased.  After the release of a family report dated 15 March 2019 by clinical psychologist Ms H, the children's time moved to being three days and nights in a row. 

7. A few months later, and without the need for a Court order, the parents agreed to the children spending more time with the father, so that something close to an equal-time arrangement was put in place sometime around October 2019 or perhaps a little bit later.  The children are with their mother more than they are with their father, as his roster as a labourer for Employer J does not allow for them to be with him quite as much as equally. 

8. The mother comes to this final hearing seeking orders that the children live with her in Brisbane.  The father seeks orders that the children continue to live in the City F/Town C region and continue to move between their parents homes in the same manner as that done for about the last 12 months.  The mother says that if the father also moved to live in Brisbane, then she would consider that an equal-time arrangement could be ordered.  The mother will not move to Brisbane without the children.

9. The mother is the applicant.  She read and relied upon the materials set out in her outline of case document filed 22 October 2020.  Her mother was not required for cross-examination.  The mother was represented by Solicitor and Counsel at the final hearing.  The father is the respondent.  He read and relied upon the material set out in his outline of case document filed 4 February 2020, save for his father's affidavit, that is Mr Cavinder, filed 23 January 2020, along with an updating affidavit filed 23 October 2020.  His mother was also not required for cross-examination and he too was represented by a Solicitor and Counsel at the final hearing.

10. A further family report had been undertaken closer to the final hearing.  It was done by Mr K, a social worker, and is dated 13 October 2020.  He was required for cross-examination and appeared by telephone after the parties' cases were closed.  Neither Ms G nor Dr H were required for cross-examination and their reports were otherwise before me.  There were no exhibits tendered at the trial.  Subpoenaed material was referred to in the family reports. 

11. There were some difficulty with the evidence of both of the parents.  It seems to me they were both doing their best to answer questions and, where there are any difficulties with their evidence, I am not so concerned with respect to issues of credit for either of them.

The Background Facts

1. The mother was born in 1977.  She has previously worked as a tradesperson.  Early in their relationship, around the time when the parties were talking about the mother moving to City F to be with the father, prior to their marriage or either of the children being born, they discussed and then arranged for the purchase of a business for the mother to operate.  The mother moved to City F, it would seem, in about December 2012, and the business was purchased in the first half of 2013. 

2. That business did well in the initial stages and was plainly popular.  It ceased to operate some time in 2017.  At the time, City F had a significant economic downturn.  The mother is currently studying online.  If she moves to the Greater Brisbane area, Suburb B specifically, she will work for her family's business of which she is currently a director.  Her job would be to be operations manager for their two stores.  Currently in City F she is not employed.

3. The father was born in 1981.  He is a labourer with Employer J.  He works a roster which provides opportunity for overtime and shift allowances.  His employer could give him a roster which gave him more regular hours that meant that he would be available before or after school time for the children, but it would mean a cut in his pay. 

4. After the final property adjustment order made by consent on 26 August 2019, the husband has the ongoing cost of the mortgage of the former matrimonial home.  The mortgage is higher than the value of the house, a result of the significant economic downturn in City F.  Even if the bank would allow the house to be sold, the husband would have the remaining debt.  He understandably feels that this is a poor option and that he needs to make the best money he can in his work to meet his financial obligations.

5. The mother and the children are living in the former matrimonial home.  The father is staying at his brother's house in City F.  The father's parents live in City F.  They have been and continue to be a source of real support, including practical available support for the father.  They also own a home in Town L, which seems to have been a potential retirement place.  Those plans are not firm, though, and they may choose to remain in City F.  Another of their sons, the son in whose house the father lives, is planning to return to City F from Country M with his partner and her children as soon as they are able to.  It seems likely that wherever they live, the paternal grandparents will continue to be a much needed and welcome support to the father. 

6. The mother has two other children to earlier relationships.  Ms N was born in 1999.  Her father lives in Country O, which is where she was conceived.  The mother has Country O heritage and has extended family there.  P was born in 2004.  She is now aged 16 years.  P has a learning disability, is in year 11, and her mother describes her as having a much younger age in her development and lacking emotional intelligence.  She struggles to communicate, does not make eye contact when she speaks with people and the mother describes her speech and vocabulary as that of a 10 year old.

7. When the mother left Town C at the end of the relationship, she went to her mother and stepfather's home in Suburb B, which is adjacent to Suburb Q, an area in the southeast of Brisbane on the corridor between Brisbane and the Region R.  She took her two older children, along with the two subject children, X and Y.  When the Court order required that X and Y return to live in Town C and for the mother to have sole occupancy of the former matrimonial home, Ms N and P did not return with her.  The mother had been living with her mother and stepfather, and Ms N and P continued living there.

8. Subsequently, Ms N has lived with her boyfriend for a period of time.  That relationship ended at the beginning of 2020.  Ms N is now moving between Town C and Suburb B with her mother, as her mother travels between the two places, depending on where the two younger children are, so that she can be a support for and a parent to P.  So P has remained living with the maternal grandparents, if I may call them that, and Ms N for a time did.  She otherwise housed herself separately and is now moving between Town C and the Suburb Q area with her mother on a regular basis.

9. This is a parenting matter. The best interests of X and Y are my paramount consideration. I am mindful of the objective principles of part 7 of the Family Law Act.  This a relocation case, which means that it is no more than a subset of parenting matters.  The starting point, as always, is the issue of parental responsibility.  Here, both parents seek I make an order that they have equal shared parental responsibility.  What they are telling me by asking that I make that order is that they consider that an order for equal shared parental responsibility is one which is consistent with the best interests of the children. 

10. The equal shared parental responsibility is a presumption which is rebuttable on the basis of child abuse and family violence.  The mother in her material speaks about matters which she says are examples of the father perpetrating family violence upon her.  Part of the mother's case through her Lawyers was to say that she was not running a case that the children were at an unacceptable risk of harm from the father.  Although that is how the Lawyers put it on behalf of the mother, I am not so sure that the mother considers that to be the case itself. 

11. The mother's evidence seemed to be equivocal as to whether she considered the children were potentially at risk of emotional harm in the father's care.  Regardless, the fact that the mother seeks an order for equal shared parental responsibility must indicate that she is otherwise satisfied it is consistent with the children's best interests for that order to be made.  The father denies any issues of family violence between the parents, which would mean that the presumption was rebutted, in any event.

12. Upon then making an order that the parents have equal shared parental responsibility, the Family Law Act requires me to consider whether it is in the children's best interests and reasonably practicable for them to spend equal time or, failing that, substantial significant time with the parent with whom they are not living.  Neither of the parents argue that if the parents are living in the same location that the child should not be spending equal time or close to equal time with their parents.  Nobody is arguing for substantial and significant time.

13. It seems to me that what the parents are saying to me is that in the event that the mother and father are living in sufficient proximity to each other, in the father's case that he says within 80 kilometres of City F; in the mother's case, she says within 50 kilometres of Suburb B. On behalf of the father at trial it was argued that the mother having a distance of 50 kilometres from Suburb B with a geographical distance that was so vast as to be meaningless, yet the father's own case is for 80 kilometres from City F. 

14. Regardless, they both seem to be saying that it would be consistent with the children's best interest and reasonably practicable for them to be spending equal time with both parents if the parents live in reasonable proximity to each other. 

15. So what I have here is the mother asking for orders that the children be able to live with her in the Greater Brisbane area or Suburb B just to the southeast of Suburb Q.  The father says that the children should be in City F.  It seems to me that what I have then is a decision to be made about the place where the children should live, which requires a consideration of the best interest factors and the reasonable practicability factors.

16. There are two primary considerations: the benefit to the children and having a meaningful relationship with both their parents and the second is the need to protect children from the physical and psychological harm from being subjected to or exposed to abuse, neglect or family violence.  With those two factors, the Family Law Act is clear, it is the second which should be given the greater weight.

17. Taking up the first, it is trite to say that these children would benefit from having a meaningful relationship with both of their parents.  The children are still young.  They are five and three respectively.  They were three and one when their parents separated on a final basis.  The earlier family report by Dr H, a clinical psychologist, speaks to the very real difficulties with children developing meaningful relationships with both of their parents where there is a tyranny of distance. 

18. Plainly, since that time, the children have aged a little, but they are still young.  It is difficult, even at the ages of five and three, for the children to maintain a relationship between City F and Suburb B.  Y is confident verbally and phone or FaceTime is not working well between the father and Y, it would seem, at least on the father's own report.  Mr K, the social worker who performed the updated family report, has strategies for how the father may have better FaceTime communication with Y, being in mind Y's young age.  The father may choose to take up those suggestions, if that is the final outcome.

19. In terms of the need to protect children from physical or psychological harm, there would seem to be two issues.  Historically, the mother has some drug use issues and, at the time she commenced the relationship with the father, she was seems to have been on methadone.  Methadone is an opiate replacement, which seems safe to infer that the mother had had a difficulty with heroin use or some other opiate.  The mother ceased to use methadone with appropriate support and on advice in about 2013.  There is no evidence to suggest that this is a current problem at all and the father seemed to acknowledge that in the witness box.

1. The only reason that is raised is because in earlier orders the father was seeking a capacity for drug testing of the mother.  It was in the witness box that the father acknowledged that there was no need for that anymore. 

2. The other issue is the issue of domestic and family violence.  The mother, in her material, speaks of behaviours by the father, which although not of the kind of physical assault upon her, where in the order of emotional control or threatening behaviour and some issues with respect to how she perceived his parenting of the children in terms of physical discipline, which she considered excessive.  The second family report writer, Mr K, formed the view that some of the father's behaviours were consistent with family violence matters.  When I asked Mr K some questions after the cross-examination by both Counsel for the parents, it seemed to me clear that Mr K was concerned that there were behaviours by the father, which the father should be properly addressing, but his behaviours were not so severe as to mean that his time with the children should be anything other than what the parents were otherwise both saying, which is if parents live in regional proximity to each other, something akin to an equal time arrangement.

3. The issue between the parents at the moment appears to be a difficulty with communicating with each other.  The father has been concerned, he says, about communicating with the mother in any manner other than in writing, so that there is always a record.  Some of the father's manners or ways of communicating with the mother in writing have, at times, been rude or offensive, but the father considers that that was at times when he was stressed or upset. 

4. A temporary domestic violence order was made.  The mother did not press for a final order, it would seem.  The mother's case was that the children are not at an unacceptable risk of harm in the father's care, but, as I said earlier, that may be as was framed by the Lawyers and I am not really quite sure what the mother believed.  Her evidence included that she was not sure whether the children were at risk of emotional harm from the father.  I took that to be her expressing a concern about the father's attitude towards her and perhaps more broadly women and threats that she had said that he has made in the past.

5. Through his Counsel, the father says that he agrees to do a course to focus on behavioural change, a course for men who are perpetrators of family violence. 

6. The issue then for the parenting matters is linked to some behaviours by Y at his childcare centre.  Staff there have reported him kicking, biting and scratching other children and staff at the childcare centre.  The mother is concerned with some of the children's behaviours, particularly Y's after they have been in the father's care and time that it takes for them to settle back into her care.  With respect to behaviours at the childcare centre, it is proper to note that the chronology would indicate that bookending Y's behaviours of biting or kicking or scratching other children was him being bitten by another child at the childcare centre.

7. It is also proper to note that these children are young, five and three, and moving between their parents' homes, when their parents do not have a healthy, respectful way of communicating with each other would, of course, be difficult.

8. All in all, I have decided that I should not put any family violence allegations too high on the agenda.  The mother herself says that the children should live week-about with their parents, if the parents live in close proximity to each other.  I am also satisfied that the father should do an anger management or men's behavioural change course aimed at men who are perpetrators of family violence, so that he can have a better understanding of relationships with women and how to be respectful and how to consider his partner his equal.

9. Moving on to the additional considerations, the children were not interviewed separately, as they are, of course, too young and, as such, their views are not before me.  Their relationships with both of their parents are good and sound and there is no concern with respect to either parent's standard parenting capacity.  The children's relationships with their grandparents, on each side and extended family members on each side, are acknowledged by each of the parents to be good and proper.

10. The mother and father have each re-partnered, although the partners were not witnesses in these proceedings, did not participate in family report interviews and were not considered to be people of such note that them being absent was worthy of remark.  The father's new girlfriend lives in City F and spends time with the father and has spent time with the children and the father says the children like her.  The mother's new partner lives in Canberra.  He has children from an earlier relationship who are also aged three and five who he sees on a regular basis, and so it would seem that the mother is thinking that this will be a long-distance relationship.  The children have met him and the mother says that they liked him.

11. The important relationship, which I have not yet spent any time speaking about, is the relationship between X and Y and their older siblings, Ms N and P.  X and Y have always lived with Ms N and P until the order was made for them to return to live in Town C during the latter half of 2018.  Since that time, X and Y have, in the early stages, were spending three days in a row with their father, which then became three days, including the overnights, with their father and that happened from around about December 2018 to about October 2019;  so for a period of about 10 months.  For the last 12 months, X and Y have been living something akin to equal time with both of their parents.

12. When they are with their mother in more recent times, Ms N has been with them as well.  P has remained at Suburb B.  The evidence would seem to be that X and Y see themselves as part of a sibship of four with Ms N and P, and that Ms N and P see X and Y as being part of their sibship.  Ms N now, of course, is nearly 21 and P is 16 and is in grade 11.  Plainly, with the age gap between the two older siblings and the two subject siblings, there will be periods in their lives when Ms N and P have moved on to their own adult pursuits.

13. It seems less likely, though, for P that that will mean a move away from family.  P has remained living with her maternal grandmother and step-grandfather and receive support from them, as well as support from her mother, who regularly attends in Brisbane during the times where the children are with their father.  P's disabilities would seem to indicate that she will require assistance with living and that that assistance will be lovingly provided to her by her mother's family.

14. So although Ms N may move away to more adult pursuits, it seems likely that P will continue to take the support of her mother into the foreseeable future and that P sees X and Y as her two younger siblings from whom she is currently separated. 

15. In terms of the extent to which the parents have taken or fail to take the opportunity to participate in decisions to spend time with or to communicate with the children, there are no criticisms to be made by either parent in this regard.

16. When the mother first moved to Brisbane, she made decisions without reference to the father.  That does not mean that the father would not have wanted to participate in those decisions.  Plainly, he disagreed with the decision that the children should move to live away and so decisions about school attendance or childcare attendance were made solely by the mother at that time. 

17. There is no evidence that there is any issue with respect to the father maintaining his financial obligations to the mother and to the children.

18. Plainly, the mother continues to live in the former matrimonial home for which she is responsible for the outgoings, but the father is responsible for the mortgage.  That is a significant responsibility to which the father has been taken.  The final orders in property matters were made in August last year.  The contemplated that the mother was to move out of the house by July this year.  That was given as open-ended date by me in April this year.  That open-ended date can plainly not remain.  The father is living in his brother's house whilst continuing to pay the mortgage on the former matrimonial home. 

19. Turning to the likely effect of any change in the children's circumstances, including the likely effect on the children of separation from either parent or any other child or other person.  The earlier family report by Dr H plainly has the view that the children at that point in time were too young to be away from either parent for any length of time.  The parents then, with the help of that report and subsequently, no doubt, with the help of their Lawyers or anybody else from whom they take support, moved to a point where the children were spending close to equal time with both of their parents;  slightly more with the mother, because of the father's availability, because of his work roster.

20. The family report, which was done by Mr K more recently includes the view that the children could tolerate a separation from their father in the event that they move to live in Brisbane with their mother.  It seems to me that "tolerate" is probably as high as it can be put.  They would plainly miss their father dreadfully, just as they would miss their mother dreadfully if she moved to Brisbane without them, a position which she says that she will not take. 

21. The children moved to Brisbane without their father at the point of final separation.  They were then able to rebuild their relationship with their father, notwithstanding a period of about four and a half months with no time with him, except for seeing him at the family consultant's interviews.  Having spent shorter periods of time with him when they first returned to City F, there is apparently no difficulty with their relationship now.  So it would seem that the children have been able to tolerate separations from their father and have been able to grow a relationship with him, which means at this juncture the relationship is good.

22. The mother, it would seem, has most probably always been their primary carer.  The father says that for the first period of their lives, the primary carers were equally himself, the mother and the paternal grandmother.  It is a little difficult to accept that the evidence from the father because it would seem that the children have as their primary attachment their mother.  That may be something which has happened in more recent times, but it needs to be understood that the children's parents separated on a final basis when they were three and one respectively, and so any period of time during which the primary caregivers were the three people the father nominated was, of course, quite limited, particularly for Y.

23. The ongoing separation from their siblings is an important part of the effect of change for the children.  It would be a positive outcome for the children for them to be no longer separated from their older siblings.

24. In terms of matters of practical difficulty and expense, as between City F, where the father is, and Town C, where the mother is, there would seem to be no particular matters of practical difficulty.  As between City F and Suburb B, there plainly would be.  It is a distance of somewhere between 550 and 600 kilometres.  I am not completely clear.  It is a significant drive, and there are no easy ways for the children to be able to fly between the two respective places, which would, of course, be expensive as an option.

25. The paternal grandparents apparently have a home in Town L or somewhere near Town L which the mother says could be used for the potential halfway point or drop-off point.  That in and of itself would be a significant drive, and if it was actually Town L or somewhere close to it, I note that Town L is not, in fact, on the highway which runs between Brisbane and City F, and so it would mean leaving the main highway and doing a detour. 

26. It would seem palpably clear that if the parents are not living in the same place, both of them seem to be considering that the most that could be managed during term time would be one weekend per term.  They both consider that if there is a distance between them, the children should spend that one weekend per month, and along with half of school holidays.

27. In terms of the capacity of the parents to provide for the needs of the children, both parents have the physical and emotional capacity to provide for the children as required.  It would seem that the father requires real and practical support from his parents, particularly his mother who has some flexibility with her workplace to be available.

28. During 2019, the mother travelled out of the country for about three weeks.  During those three weeks, the children lived with the father.  The father required the real practical assistance of his mother for about half of that time to make those arrangements work.  So the father has the capacity but only within his working roster.  As is clear from his working roster that he doesn't have the capacity for actual equal time, but something a little bit less than that, and if the time was to be any more or any different, he would require the real assistance from somebody else.  The father has contemplated that if the children were more with him, including if they were living with him, he may require the assistance of a nanny to be able to attend to all of the children's needs because of his working requirements.

29. In terms of the characteristics of the children and the parents which are relevant, the children's young age is relevant.  The fact that they are part of a sibship of four is highly relevant, and it is also relevant with respect to the parents, both seeking the assistance of their families of origin.  The father is able to be employed and to parent the children in the way that he does by the dint of the fact that the arrangements for the children's time is wholly based around the father's roster.  It is not based around the children's needs but in terms of what the father is available to have the children with him, wholly pursuant to his roster.  If there is any variation from that, the father requires the assistance of his family of origin.

30. The mother is only available in City F or Town C to parent the children and to provide parenting to her children Ms N and P by not being employed, and by having the housing that she lives in supplied to her by the father pursuant to a Court order.  Where the costs that she has to do with her housing are related to her outgoings, and that when she travels to Brisbane she has accommodation available to her at her mother's home.  So the mother's capacity to provide for the needs of the children in City F is wholly dependent upon her being available in the way that she is to her children in City F and her child in Brisbane, and there is no evidence that she can sustain being employed in City F whilst having childcare responsibilities without having the support of her family.

31. The mother's evidence included that she does not have friends from whom she can take support.  Indeed, the father chooses to take support from his family of origin, and the mother would choose to take support from her family of origin.  So in terms of the level of assistance that the mother would require to be able to have employment, be able to be financially attending to hers and the children's needs, there is no evidence that she has the capacity to do that in the Town C area.  Indeed, the evidence is to the contrary.  The place that the mother would be in a position to be employed and to be able to provide parenting to the children at the same time would be if she has the support of her family of origin, and that is, her mother and her stepfather at Suburb B.

32. These children are not Aboriginal or Torres Strait Islander children.

33. In terms of the attitude to the children and to the responsibilities of parenthood demonstrated by each of the parents, it seems to me that both parents take seriously their roles as parents of the children.  The father also takes seriously his role in terms of attending to financial matters.  I note that the mother equally seeks to take seriously her role in terms of financial matters.  She seeks to be employed, and the way that she sees that she would be able to do that would be to work for the family business, with the assistance of family members when there is any overlap between work responsibilities and home responsibility.  The father cannot criticise the mother for that because he requires that himself.

34. In terms of matters of family violence or family violence orders, I have referred to those issues earlier when talking about matters to do with harm.

35. The last of the best interest factors is whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings.  It is difficult to know what that might be for this family, bearing in mind the young ages of the children.  They have a long life ahead of them with their parents having Court orders, it would seem, and it is also difficult to know where each parent might be in terms of what their future lives may bring them, noting, for example, they have both already re-partnered.

36. Turning then to the reasonable practicability factors, how far apart the parents live from each other.  At the moment, it may be in the order of 10 to 15 kilometres between where they both live, and there is no issue with respect to it being reasonably practicable for the children to move between those distances.  Plainly, between City F and Suburb B, it would not be practical.

37. In terms of the parents' current and future capacities to implement an arrangement for the children spending equal time or substantial and significant time with each of their parents, the father apparently can only sustain equal time with the practical assistance of his family.  He nominated his parents.  He nominated his brother.  He nominated a cousin.  He spoke of potentially getting a nanny, or a drastic pay-cut, which the father says would be a poor financial outcome for him and which he does not see how he can afford. 

38. The mother's current and future capacity to implement an arrangement for the children spending equal time in Town C is only sustainable if she is living in a house that the father is paying for and she is not working, and she is able to travel between City F and Brisbane on a regular basis to be a support for Ms N and P, and there is then the travel between the two places which places an extra financial burden upon her. 

39. The mother living in the former matrimonial home was meant to be concluded in July this year.  It needs to be concluded.  There was no notion in any of the property proceedings that it could simply go on forever.  The fact that it was not raised during these parenting proceedings does not mean that it is not an ongoing issue that, following the conclusion of this decision, will simply somehow be resolved.  If the mother continues living in Town C, it is not an option for her to simply continue to live in the former matrimonial home rent-free.  She is already paying the outgoings.  There is no evidence that she can pay for the mortgage as well, and the mortgage is, of course, the father's responsibility pursuant to the final property order.

40. It was submitted on behalf of the father that there were no issues with respect to the reasonable practicability or the feasibility.  It seems to me that that is not the case at all.  I do not see how the mother has the future capacity to implement an arrangement for equal time in the Town C area on an ongoing basis.  She does not have people from whom she can draw support.  The people from whom she could draw support are based in Suburb B, or thereabouts, just as the people from whom the father draws support are based in City F.  She does not have the capacity to get work in the way that the father does, where the arrangements between the mother and father for the children are based upon the father's roster.  The mother would then continue to be responsible for the children at times when they are not with the children, and so how is it that she is to find employment which fits around that limited availability?  And when the children are with the father, the mother then has responsibilities for P, which means that she needs to be attending in Brisbane.  It is to be remembered that P, of course, has, it would seem, learning disabilities, which means that her emotional age is much younger than her chronological age of 16.  The mother also has ongoing moral obligation to Ms N, though of course no legal obligation as Ms N is nearly 21.

1. In terms of the parents' current and future capacity to implement an arrangement of the children spending equal time with the parents if the mother is living and the children are with her in the Suburb B area, the father says that he does not believe that he could get a work transfer to Brisbane.  His work is a labourer, and he would not consider that such work was available for him based from Brisbane.  He might be able to find other work, but he has this financial obligation, including to the payment of the former matrimonial home's mortgage in Town C, which, of course, is not a property that he can simply sell and dispose of.  The father asserts that he does not have the financial capacity because of all his other financial obligations to travel to Brisbane regularly to spend time with the children on his rostered days off.  His rostered days off are done over a four-week period, and in one week he has something like four days in a row, and two weeks later he has something like six days in a row.

2. The mother's position is, is that the father could travel to Brisbane to spend the time with the children during his rostered days off for the maximum extent that he was available.  The father does not have somewhere to stay in Brisbane like the mother has with her parents' home.  The father does not have the financial capacity to simply rent appropriate accommodation to set up a separate home in Brisbane.  And for the father to be making ad hoc arrangements of staying in a motel or some form of apartment/hotel when he is spending time with the children would, of course, be a significant expense.

3. So there is no evidence before me that the father has the capacity to be continuing to work from the City F base and to spend all of his rostered days off in Brisbane accommodating himself and being available for the children.

4. In terms of the parents' current and future capacity to communicate with each other and resolve difficulties that might arise, it is difficult to know.  The parents have effectively muddled on so far.  They do not have a good or easy way of communicating with each other.  They have been separated on a final basis now for over two years.  They have been in litigation for that entire time.  Perhaps with the ending of the litigation they may be able to have a better way of communicating with each other.  Of course, because of their different positions for the final decision, it will be clear that one person will perceive that they have lost, and that may also create further difficulties into the future for their way of communicating with each other.  It is difficult for me to know how they might go in the future, though they have been muddling along well enough with the children getting the attention that they need, although, of course, some of Y's behavioural issues, if the parents had been able to be on the same page for them to have a conversation about it, they may have been able to work out how they should respond to him together and separately.  Hopefully things may be better in the future.

5. In terms of reasonable practicability and the impact that an arrangement of that kind would have on the children, it seems to me that the remarks that I made when talking about the effect of change upon the children are absent.  And so what I have is the circumstance where the father seeks for the children to remain living in City F where he will be able to continue to be employed and to meet his financial obligations, where his time with the children happens around his availability and his obligations, and where the mother is, if she is to find employment, would need to be wholly fitting in with what the father's obligations require of him, and she would otherwise need to be wholly available for the children.  The mother would also then not be able to attend in Brisbane on a regular basis to be providing the necessary support for P.

6. On the other hand, the mother seeks orders that would have X and Y living with her in Brisbane, where she too would be able to take the benefit of support from her family of origin, where she would be able to get employment and where she would be able to have P living with X and Y, and she would be able to support all three of her children who remain under the age of 18.  X and Y would not be able to spend regular time with their father and would probably be spending time with him once per month and for half of school holidays.

7. So when I weigh those things up, it seems to me they are relatively evenly balanced.  The father says that he cannot change his work without financial detriment and he needs the support of his family, and that the children should therefore remain in City F.  The mother says that she needs to financially move to live in Brisbane where she can have the support of a job with her family's business, where she can live in her mother's home and where she can then get employment with the support that she needs to do parenting and work at the same time with her family of origin.  There is no difference between the parents, it seems to me, there.

8. The one difference between the parents is that X and Y have two older siblings, Ms N and P, and that X and Y should have the benefit of being able to have a relationship with both of those older siblings, who are important to them and who they are important to.

9. The submissions made on behalf of the father included that the mother was not making a position before the Court as being one that she would go regardless, and that the option was available to the Court that the mother would simply remain in City F with the children.  I do not consider that to be the mother's position.  The mother's position is asking the Court for an order that the children live with her in Brisbane, Suburb B, however it is defined.  The mother does not need to "go nuclear" for the Court to be taking that application seriously and to be determining that application.  The mother's position was that she would not leave Town C without the children coming with her, but that does not mean that her alternate position is that she can consider that it is in the children's best interests and reasonably practicable for her to remain in Town C.  It seems to me the evidence is that it is not reasonably practicable for the mother to remain in Town C.  There is no evidence that it is feasible for her to continue to remain living in Town C; that she can attend to all of the adult things that she, like the father, needs to attend to in life.  The mother needs her family of origin's assistance just as the father does.

10. In all of the circumstances, I am satisfied that it is in the best interests of the children that they live with the mother and that their time with the father, if the father does not move to live in Suburb B or thereabouts, will need to be once in every month during school term and for half of school holidays.

11. In terms of other orders which need to be made, unless the parents otherwise agree to it, the father is to collect the children at the commencement of time and the mother is to collect the children at the conclusion of time, so that will be during the one weekend per month and for the half of school holidays.  In the event that the father is in the Brisbane area, he can request to spend more time with the children, and such time is to occur in Brisbane and for the children to attend their regular activities.

12. The order with respect to Suburb B will be as at day 1 of term 1 of 2021.  We are currently in the final term of 2020.  X is in prep.  She should finish her school year at her school and start the new school year at Suburb B.

13. In terms of the distance from Suburb B, I am satisfied that the distance of 10 kilometres, which is what was suggested on behalf of the father in submissions.  So to be plain, I reject the 80 kilometres the father had in his proposed orders, the 50 kilometres the mother had in her proposed orders, and in the event that the father moves to live within 10 kilometres of Suburb B, then the time is to be equal time or as close to it pursuant to the father's availability.  So time with the father be no more than equal time but up to equal time, according to the father's availability.

14. There is also an order before me with respect to the prospect of overseas travel.  Overseas travel is, of course, something which is not happening at the moment because of the Novel Coronavirus.  The father sought a specific restraint upon overseas travel.  That seems to be on the basis that the mother has family in Country O, and the father considers that the mother has made threats historically to remove the children to Country O, but he also says obliquely something to do with what happened with Ms N when Ms N was born, which is difficult to understand because the mother's relationship with Ms N's father appears to have had a natural ending with the mother returned to Australia, upon which she found out that she was pregnant with Ms N.  A pregnant woman travelling, not knowing that she is pregnant, and returning home is not anything which would concern me.  These children should have the capacity for overseas travel with either of their parents in a usual and unexciting way.  There is no evidence before the Court that the mother is a flight risk or that she would be seeking to remove the children permanently from the jurisdiction, so there will be no restraint on overseas travel, and I make standard orders for both parents to sign passport applications upon being presented them by the other party, and the person seeking the passports is to fund the passports, and also is to hold the passports.

15. The father sought a non-denigration clause but only restraining the mother from saying things about the father.  In those circumstances, I decline to make a non-denigration clause, and, in fact, if the father had wanted one, he should have been prepared to surrender to one himself and not simply seek to impose it upon the mother.

16. I have made the order with respect to the issue of passports and providing for the children to be able to travel overseas with their parents.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Demack

Associate:

Date: 21 December 2020