Challenor & Healey

FEDERAL CIRCUIT COURT OF AUSTRALIA
Challenor & Healey [2021] FCCA 860

File number(s): DGC 1945 of 2020

Judgment of: JUDGE BURCHARDT

Date of judgment: 29 April 2021

Catchwords: FAMILY LAW – Parenting – mother seeking to relocate from Victoria to Western Australia – mother’s husband receiving offer of employment with significantly greater pay and improved prospects of promotion – father opposing relocation because of likely disruption to his relationship with the children – children expressing approval of relocation but views immature and influenced by over-involvement in the decision-making process – family report and Independent Children’s Lawyer opposing relocation – mothers attitude to father dismissive and not supporting the children’s well-established and secure bond with the father – relocation not in children’s best interests.

Legislation: Family Law Act 1975 (Cth) ss 60CC

Cases cited:
A & A (2000) FLC 93-035

Goode v Goode [2006] FamCA 1346

Jones v Dunkel (1959) 101 CLR 298

Mazorski v Albright (2006) 77 FamLR 518

McCall & Clark (2009) FLC 93-405

MRR & GR [2010] HCA 4.

Number of paragraphs: 169

Date of hearing: 6 & 7 April 2021

Place: Dandenong

Advocate for the Applicant: Mr Cinar

Solicitor for the Applicant: Erol Cinar Lawyers

Advocate for the Respondent: Mr Sietz

Solicitor for the Respondent: James Mcconvill And Associates

Counsel for the Independent Children's Lawyer: Ms Brennan

Solicitor for the Independent Children's Lawyer: Ruffin Lawyers
ORDERS

DGC 1945 of 2020

BETWEEN:
MS CHALLENOR

Applicant

AND:
MR HEALEY

Respondent

ORDER MADE BY:

JUDGE BURCHARDT

DATE OF ORDER:

29 APRIL 2021

THE COURT ORDERS THAT:
1.That the Orders of 8 August 2017 remain in full force.
2.That the mother and father be hereby restrained by injunction from:
(a)relocating the children X born in 2008 and Y born in 2010 ("the children") residence outside of Victoria;
(b)changing the children's school unless by agreement in writing; and
(c)involving the children in adult conversations such as time they spend with each parent and any changes to their residential address;

3.That the father ensure that X has her own bedroom at all times when she is in his care.
4.That the mother use her best endeavours to encourage the children to refrain from referring to their step-father as "Dad".
5.That the parties complete a 'Tuning in with Kids" parenting program with B Families. That the mother and father complete a Post Separation Parenting Course.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Challenor & Healey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
Introductory

This is a parenting dispute about the best interests of two children, X, born in 2008, and Y, born in 2010. The applicant mother wishes to move to Western Australia with the children, where her husband, Mr C, has been offered a very good job. It is a major move, given that she and Mr C presently live in Town D and have both lived in Victoria all their lives. She proposes that the children spend time with the father in school holidays, according to their wishes.
The respondent father, unsurprisingly perhaps, opposes the relocation application and seeks that the extant time regime, which has been in place since 2017, pursuant to which the children spend four nights a fortnight with him, continue. The Independent Children's Lawyer broadly supports the position of the father.
For the reasons that follow, I propose to make the orders sought by the Independent Children's Lawyer.
Agreed or Uncontroversial Matters
The mother was born in 1981 and the father was born in 1979. They commenced a relationship in 2002 and married in 2005. As earlier indicated, X and Y followed in 2008 and 2010. They separated on 2 September 2014. The mother has re‑partnered with Mr C in 2016 and their child, E, was born in 2017. As already indicated, the children have been living with the mother and spending time with the father for four nights a fortnight since 2017.
Mr C is employed in what he describes, without contradiction, primary industry, in which he earned $119,000 in the 2019-2020 year. From his evidence, which is not controversial, it appears that that income seems to have completely recovered from any decline during the COVID emergency. He has, however, no meaningful promotional chances in his profession in Victoria and I note that that is plainly a specialised field that he has been engaged in for many years.
Following a visit to Western Australia in 2019 to attend a wedding of a cousin of the mother, Mr C received a job offer, which was annexed as exhibit 1 to the mother's first affidavit. This offer was dated 3 March 2020 and offered him a salary of $130,000 a year plus commission of $15,000, providing KPIs were met. This contrasts with Mr C's present salary of $60,000 a year plus commission, which as indicated, gave him approximately $120,000. The mother, but not Mr C, has deposed to promotional opportunities potentially available in City F and Western Australia after two or three years, which would take his salary to some $200,000.
That offer of employment has been repeated relatively recently and is plainly still extant (see exhibit “-4” to the mother's affidavit 1 April 2021). The mother has an aunt and her cousin Western Australia, but all her other close family live in Victoria, as do all the close family of Mr C and, indeed, of the father.
The father re-partnered following separation with Ms G from about December 2016 until about October 2019. That relationship is conceded by the father to have been volatile and tempestuous, although the extent of family violence and its effect upon the children is in dispute. Ms G is sufficiently disenchanted with Mr Healey to have filed an affidavit in support of the mother and in support of her application to relocate. She did not, however, attend court and was not available for cross-examination.
The Parties Affidavits
Much of what the parties have said in their affidavits is, in fact, traversed in the agreed matters above. I note that in her first affidavit filed 17 June 2020, the mother deposed (paragraphs 29-30):
I am hoping for a fresh start in WA, particularly because I do not like living in Town D. I have an aunty and cousin in West Australia. We recently visited my family in WA in last year, as we attended my cousin's wedding. X was a bridesmaid at the Wedding, Y was a ring bearer and E was a flower girl. The children are all looking forward to the move, which we have discussed with them.
We currently live in Town D, as indicated above. Town D is a small town with a population of about 3,600 people. It is located about 120 kilometres south of Melbourne. There is limited local access to medical expertise. There is one supermarket in town, being the local IGA. The next nearest supermarket is about 14km away. There is limited access to educational facilities of quality or education of choice. There is very little in Town D for the children.
Should we be permitted to be relocated to WA, we intend to live City F, WA, being a coastal city with a population of about 75,000 people. There is more to do in City F. There is a choice of educational facilities and we intend to enrol the children in the local Catholic college where we have already made enquiries.
In this affidavit, the mother went on to complain that X does not have her own bedroom when staying with the father and she complained of a number of instances of misconduct (to use the phrase globally) in the father's care of the children. This included placing them in the back tray of his ute in October 2017, an alleged assault of Y on July 2018, Y running away from the father's home in September 2019, and an incident in 2015 involving X having appendicitis.
The gravamen of the appendicitis complaint is that the father responded inappropriately to this very severe illness and includes a fairly clear statement that X would have died, had she not received medical treatment, with a clear implication that the father was deliberately or negligently putting her life at risk. The affidavit also complains of Y being burnt by a donut, the difficulties of drop-off at the edge of the father's parents' property where he lives, and a failure on the father's part to sign passport applications.
The affidavit of Mr C filed 9 November 2020 traverses, of course, his relationship with the mother, and his long drive to work in Suburb H of approximately one and a half hours from Town D. He deposed to activities he had undertaken with X, in particular, including attending a school camp and being the person of her choice for the father-daughter dance at school.
The affidavit of Ms G, who I repeat was not available for cross-examination, is entirely critical of the father. She deposed to an incident in 2018 when the father stopped his car and spanked Y for asking, "Are we there yet?" too often and makes a number of other serious assertions of delinquent parenting on the father's part. She also deposed to Mr Healey choking her throat in August 2018. It should be noted that these are merely indicia of the subject matter of the affidavit, because it is unrelentingly critical of the father.
The father's first responding affidavit deals relevantly (excluding his denials of the matters put against him) with the extensive support available in Town D, including his extended family and that of the mother.
It should be noted that I have, of course, read the affidavit material carefully and the above merely points to some aspects of it which perhaps are of particular significance.
The Family Report of Ms J
Ms J’s report is comprehensive and I have, of course, regard to all of it. In making notes in preparation for dictating this judgment, I itemised literally dozens of paragraphs that were thoughtful, considered and relevant. To set these all out, however, would end up largely reproducing a very substantial proportion of the report. It is fair to summarise by saying that Ms J felt that the mother presented with limited insight and was dismissive of the father's role (paragraph 72 and 73); that X was over‑empowered and the children were conflicted (paragraph 75 and 76); that the children were in the middle of their parents' dispute (paragraph 83).
Ms J noted that despite the mother's assertions to the contrary, the children appeared to express no problems with the style of their father's discipline of them (paragraph 85) and that the children's views about relocation were emotionally immature and, indeed, age appropriate for a 12 and 10-year-old (paragraph 88). Interestingly, the report noted at paragraph 106, something I myself divined during the oral evidence without reference to this extract, that the mother did not argue with the father, because she blew her stack and the father would not argue.
I note that the father was prepared to move in Victoria if Mr and Mrs Challenor moved closer to Mr C's work (paragraph 121). Paragraphs 145 to 146 of the report noted:
To summarise, while X and Y indicated a preference to live with their mother and to relocate to Western Australia with her, the reasons they offered - related to lifestyle and a level of concern for Mr C's investment in the plan - suggests considerable emotional immaturity in this perspective.
Despite the children's avowed strong relationship with their father, X and Y's relative dismissal of any likely impact of the loss of contact with him is at odds with the overall assessment in this report of a facilitative and meaningful relationship with Mr Healey.
The report noted that the children had strong emotional bonds with both sides of their extended families, who mostly resided in Victoria (paragraph 150) and will positively connect with their school communities and the community of the Town D district (paragraph 151).
The report noted at instance of Y calling Mr C "Dad" (paragraph 196 to 197). Once again, a particularly pertinent extract is paragraphs 212 to 215:
Ms Challenor is appreciative of the obligations of parenting, but in this, she presents as minimising Mr Healey's capacity and role and even promoting Mr C's role as the parent figure in X and Y's life.
In according weight to X and Y's views - about, for example, their relationship with their father as they convey this to her, about relocation - Ms Challenor demonstrates limited insight into the emotional impact for X and Y of such attitudes. Ms Challenor presented as privileging the children, X and Y's, purported views as it might accord with her views about Mr Healey and about relocation.
By privileging her young children's views and wishes, including stories about Mr Healey, over discussions that more appropriately should occur between the parents, Ms Challenor is contributing, for example, to X's anxiety about ‘hurting people's feelings’ and to Y's sometimes acting-out behaviour that appears to be related to anxiety and a sense of displacement in the sibling subsystem. It was notable that Mr Healey observed how Y is responsive to one on one time with him.
Ms Challenor will need to address this dysfunctional pattern by reducing her reactivity about Mr Healey, working to build an effective coparenting relationship with him, and by protecting the children from these issues that seem to stem from the unresolved relationship issues with Mr Healey. Ms Challenor will need assistance to appreciate the need for emotional-boundary setting as a parent, so the children are more appropriately protected from adult issues.
The report went on to recommend that the mother attend a post‑separating parenting education, even if she has already done so (paragraph 216). The report noted that the father did not present as a protective risk to the children (paragraph 222) and observed at paragraphs 227-230:
Regrettably, X and Y demonstrate a sense of feeling emotionally and psychologically divided in the relationship with their parents: X with anxiety about hurting her parents' feelings and Y with uncertainty about his place in the sibling unit with an older sister and an younger half-sister.
A risk to their emotional and psychological development is when Ms Challenor's caregiving, in particular, fails to provide support for X and Y's relationship with their father and his family, resulting in the children feeling caught in the middle and under stress to tell stories about Mr Healey that they think their mother wants to hear. The impact for X and Y is to experience anxiety and emotional conflict about moving between households, anxiety that can impact on their capacity to meet such developmental tasks, as learning and socialising.
The burden of responsibility for a decision as significant as relocation, that Mr and Mrs Challenor have - mostly unwittingly - placed on X and Y [Ms Challenor says that the children ‘know everything’; Mr C says that they have been included in all discussions, both Mr and Mrs Challenor acknowledge that if X and Y indicate against relocation, then the much promoted ‘opportunity’ for the family unit will be jeopardised] is not appropriate for children to bear. X and Y do not have the emotional maturity, nor intellectual capacity, to manage such a role. Regardless of the Court's determination concerning relocation, it will be crucial that X and Y are assisted in the recommended family therapy to experience Ms Challenor with Mr Healey's support in establishing more appropriate emotional and parenting boundaries.
The report went on to recommend that joint parenting counselling/family therapy for the parents (paragraph 236). At paragraphs 249 - 251 in dealing with the relocation proposal, the report said:
If relocation to Western Australia proceeds, then Mr Healey's caregiving will be limited and thus the risk to X and Y's development of such loss will be high.
If relocation to Western Australia does not proceed, but Mr and Ms Challenor are determined to move from Town D, then any changes to Mr Healey's caregiving system will not be as impactful for X and Y's development, given his stated intention to establish a residence nearby to them.
Overall, Mr and Ms Challenor present with sufficient psychological resilience to manage a decision by the Court that denies relocation for X and Y. They have indicated alternative plans should they remain in Melbourne, and Mr C appears to have considerable employability.
The report recommended that the children stay in their present schools (paragraph 252). The report recommended that relocation not be permitted, but that if it took place within Victoria, then the current orders could remain in place if Mr Healey was living close by, but the Wednesday to Thursday time each week should be reconsidered and be replaced by alternate Wednesday after-school time. The report formally recommended that the children not refer to Mr C as "Dad".
THE SUBMISSIONS MADE AND EVIDENCE GIVING AT COURT
What follows is from my notes.
The Opening and Evidence of the Mother
Counsel opened the case indicating his client's desire to relocate. Her husband has a job in Western Australia and is likely to be promoted within three years to a salary of some $200,000. Counsel pointed to four matters that should qualify the opposition expressed by Ms J to relocation. First, there was the incident at 2.30 am in 2019 which led to the end of the relationship with Ms G, when the police were called and the children were removed in the presence of the police.
Second was that the father's de facto had made numerous threats to call police. Third, the father had been in a dysfunctional relationship with his de facto for three years. Fourth, during the time that X spends with her father, she has to share a bedroom with her brother aged 10 years when the father stores gym equipment in the spare room. The mother never withheld the children. There was the three-year-old child to consider also.
The mother was called and adopted her affidavits as true and correct. Counsel for the father elected not to cross-examine.
Under cross-examination by counsel for the Independent Children's Lawyer, the mother confirmed that the children could spend time with the father in accordance with their wishes during school holidays. It could be each term holiday if the children wanted to go. There had been problems recently because the children did not want to go. X has had chicken pox a while back. At Christmas, Y did not want to go and X was crying, also not wanting to go. The children say the father does not spend time with them.
X does not enjoy camping. The children miss out on friends as a result of the father's lack of flexibility. Y did not want to go at Christmas and not at Easter. She tells him, "You have got to go." She is not trying to stop time with the father. X is a teenage girl and does not want to go. They get along with the father, but sometimes they do not. There was an argument on Christmas Eve between the father and the parental grandfather in front of X. The relationship with the father is up and down.
When it was put to her that the family report showed that the children had a close and loving relationship with their father, the mother at first gave an equivocal non-responsive answer. She then denied that the relationship was close and loving. She said the children want less time with the father. She thought the children would want to come back from Western Australia and see him, but not for the whole holidays; probably a week like it is now; possibly two weeks over Christmas. When it was put that it was important the children have more time with the father, the mother said they still have to have a life where they are.

She seemed to suggest that there could be time over long weekends. Y is 10 and she pushes for Y to see the father, but this is problematic. Y ran away from home. They were, however, living close by one another at the time. There are numerous instances where Y comes home and bursts into tears. She does not assault Y.
Counsel cross-examined about the incident in 2017, when the children were put into the tray of the ute. The mother said she heard this from both children. The father was sick of their arguing. She took the kids back to where it happened to measure the distance allegedly travelled in the back of the ute before she went to the police. She had heard from both children that the father kicks them out of the house when it is raining and dark. She conceded that Y backchats a fair bit. She has always taught the children to tell the truth.
With regards to the alleged assault on Y's arm, the mother said that Y told her the father grabbed his arm and pushed him out of the way. She did not think nothing happened. It was not just a push. She had never herself had to restrain Y. She has spoken to both children. It was more than just a push and she did not accept the father's version. She was asked why she had attended Y's school and said she could not recall if she was asked to go. She had spoken to Y outside the classroom.
I should interpolate and say that her answers on this question were equivocal and prevaricating. She had sent a message that she was there for him. Y sees she is upset at what has happened.
She was cross-examined about the incident on 14 September 2018 when Y ran away from the father's house. Y said he had been fighting with his sister and did not want to be there. It was put that the father had simply taken Y to task, but the mother said Y was so upset. He is a boy and does not like being told off. They were living about one kilometre apart at the time. The issue is the way they get along. The issue is that they clash. The mother is dissatisfied that the father will not have a conversation about Y, Y knows this.
She went on to say that nonetheless that encourages a relationship with the father.
X wanted her husband to do the father's dance. She assumed that the father was on school notifications. X told the father about her graduation night. She thought he would turn up. X had told her about a month out that she did not want to dance with her father, because her dad did not care. She denied that X will regret this later on in life. Counsel put it that X is only 12 and queried whether she should be making such decisions, but the mother said she thought she could.
She nonetheless said when questioned as to whether X could be made to go to school that, of course, she had to go to school. The mother conceded there was a strained relationship between the parents. She said she cannot make X do a dance, but she can make her go to school. She conceded, if I understood the answer correctly, that X was caught in the middle of her parents' discord. There were numerous ways the father could have built up his relationship with the children. They are poles apart.
She turns up for school sports and he only turns up when he has to. She went on to say that there was nothing more she could do to improve matters.
When asked about a spend-time regime, were she to relocate, the mother did not concede that the entirety of school holidays should be spent with the father. She said she would like holidays too. The cost of travel should be shared equally. She indicated that the cost of attending the wedding had been $1,500 airfares for five. When asked when she would relocate, she said this would be in the next couple of months and she conceded that because of COVID travel back to Victoria might be impossible. She proposed telephone and daytime contact.
Counsel put it to her that if the children were not permitted to relocate, it might be possible for them to live with the father. The mother said she had only recently thought of this. She would probably not entertain it. It would need conditions, including each child having their own bedroom. The father does not do sports and school. He does take Y to his sports training, but does not attend when it is not his time. She went on to explain the times at which Y played and asserted that the father could attend. She did not, however, know his times of work.
The mother opposed Wednesday overnights time. She said that she and Mr C will move towards her husband's workplace in Suburb H. Time each second weekend should continue if the children wanted it. Counsel put it to the mother that counselling about parenting issues would be a good idea, but the mother emphatically responded, "No." She said, however, that getting a response to any questions she put would be a start.
Y is in grade 5 and X is in grade 8 and loves school. Counsel put it that the Independent Children's Lawyer had met the children and that X really enjoyed high school. The mother agreed for this year, but said last year she had struggled. She is still a bit reluctant. There have been no discussions with the father about X's secondary school. She had messaged him so many times, but with no response. When queried again about counselling, the mother said this did not interest her.
The mother was cross-examined about the father's relationship with Ms G between December 2016 and October 2019. It was put that this was on and off. The mother said she did not like Ms G. The children were not keen. She had referred to Ms G as "a psycho girlfriend". She obtained an intervention order against her. Ms G did drive-bys past her house. Sometimes she gave her a barrage of abuse.
Counsel cross-examined about the incident in July 2015 when the mother alleged the father failed to obtain appropriate medical treatment for X's appendicitis. The mother had, in fact, accessed the entire hospital file under Freedom of Information. The hospital put her on a drip and on the Monday transferred her to K Hospital. The appendix was removed on the Tuesday. When asked about paragraph 47 of her affidavit (dealing with the events of October 2019 where the police attended) the mother said she had asked the children how they felt. There was a loud bang and torches which were the main thing. The father had rung, but had not wanted to speak to the children.
Counsel cross-examined about the father's use of alcohol. The mother said he drinks a lot. He should not drive in case something happens. She did not think he drinks every night. The kids have told her that there are always three stubbies in the car. Counsel asked why there was no reference to alcohol problems in her first affidavit. The wife said this had always been concerning to her. (I did not believe this answer). The mother said that the father got drunk in a pub and beaten up in 2016. She was satisfied that X can tell if the father would be unable to drive, even though she was only 13 years old.
Counsel cross-examined about paragraph 85 of the family report in which Ms J had noted that neither child referred to issues about the father's approach to discipline. The mother responded with a question of her own and asked were they asked about specific incidents. It emerged that she takes notes whenever the children are upset when they come home. The children know that she writes things down. She denied involving them. She does not make notes if things are fine. The mother said that the children have a close relationship with her husband.
X asked for her husband to go to the school camp and it was her decision. The father does not turn up to school sports. She cannot force her. She denied vehemently that her children called her husband "Dad". She denied the events recorded in paragraph 78 of the family report, which showed Y referring to Mr C as "Dad". She said this never happened. She would not oppose an order about the children calling him "Dad". She went on to say, however, that her husband is a father figure and he is their dad all the time. The father is "Dad" when they are with him.
The mother was asked when they decided to relocate. They had holidayed in Western Australia in 2019 and a job came up. Mr C had not applied for the job. She conceded that Ms J's account at paragraphs 35 to 37 of the family report as to how the move to Western Australia was discussed with the children was substantially correct. The decision to move was a family decision. The mother conceded that X and Y had a strong and mostly sound relationship with her, but denied that this might ground a distorted view of the father.
She said if she wanted to turn them against the father, she would not tell them he loves them. She went on to say that the children are human and are allowed to have an opinion.
There was no re-examination.
The Evidence of Mr C
Mr C is a manager and adopted his affidavit as true and correct. Counsel for the father once again elected not to cross-examine.
Under cross-examination by counsel for the Independent Children's Lawyer, Mr C confirmed he is getting back to his pre-COVID work situation. There is no promotion possible. He already works with Employer L, who are the biggest operator in Victoria. The next stop up would to be a senior manager. Employer L have not had a fixed senior manager in the past, but have just appointed one. His skills are in primary industry. The offer in Western Australia came from a contact. Employer L is the biggest company in Victoria and he is in a manager’s position, which is top of the state.
Mr C confirmed that he does not see the father's parenting and only hears from the kids. When he was asked by X to dance the father-daughter dance at her graduation, he was chuffed. When it was first discussed, X was equivocal, but he told her to think about it. Surprisingly, he said, he did not know if there was strain between the parents. They operate differently. His father is living with his parents, whereas "we are a family". He said they offered more variety with two parents. The kids enjoyed both households.
He did not agree that travel for the children to and from Western Australia would be onerous. He suggested that the children could fly on their own.
The Opening and Evidence of the Father
Counsel briefly traversed the history of the relationship and the birth of the children. He confirmed that the father seeks to continue the final orders made in 2017. It was not in the children's best interests to relocate. Equal time was not practicable. He referred to his written submissions and, in particular, the decision of the High Court in MRR & GR [2010] HCA 4.
The father was called and adopted his affidavits as true and correct. Without challenge, counsel led a certain amount of further evidence‑in‑chief. The father said he had a warm and loving relationship with the children. They do what they can and get by and make memories. He only found out about the proceeding when he was served. If the children relocated to Western Australia, there would be problems in terms of costs and the amount of time he spent with the children.
His parents live with him and there are other relatives in Victoria. The mother's mother is in Victoria and she has other relatives here also. They had moved to Town D to get a better life with their children. Town D is nice and small and slow paced. He is living with his parents to save money to buy a property. His parents live on a four‑acre hobby farm.
Counsel asked him about the incident where the children were put in the tray of his ute. He said he had pulled the car over and put them in the back. They had travelled 300 metres on bitumen and 300 metres on gravel. It was not the correct thing to do in hindsight. He was then asked about the incident where Y ran away from his home to that of the mother. He said that he and Y had been both hot-headed. Y is very good with pen and paper, but when challenged orally he locks up and gets very stubborn, but he is very good with paper.
The father was asked about the incident of X's appendix. He had both kids. X was vomiting and then the next morning she was flat. He gave her Panadol. Her vomiting became more stable. On the Saturday afternoon, they chilled. He explained this when he returned X to the mother.
When asked about time on Wednesday evenings, he said he gets the children at 5.30pm. They go to the supermarket and dinner is already made for them. They are up in the morning in time for school drop-off. When asked about alcohol, he said he does not drink on the weekend, but sometimes after work. He said he needs his driving licence.
When asked about the argument with Ms G, he said that she was not happy and was hot-headed. The argument went on, even though he tried to get out of it. By 2 am, the police came. The police asked him to relocate for the night and he woke his kids and relocated at 2.30 am. When he went to court the following day, his parents looked after the children.
The Father under Cross-Examination by Counsel for the Mother
The father confirmed that he has been living with his parents since separation on 2 September 2014. This was, however, on and off. It is a four-bedroom house and there is gym equipment in the fourth bedroom. When asked why he had not provided X and Y with separate bedrooms, his answer was one of equivocation. He went to say it was not his gym. Both his parents had had shoulder surgery and used the gym. The surgery was 18 months ago. He did not see an issue with the children sharing a room.
He had not spoken with his parents about the fourth bedroom. On Fridays, he often sleeps on the floor with the children. X has not brought up the issue with him.
The father confirmed that he had had $8,000 in two bank accounts, but this was less with expenditure on fees. His income is about $60,000 per year and it will take him years to get his own house. He confirmed the account of the end of his relationship with Ms G at paragraph 127 to the family report. She threatened to call the police. She did not want him sleeping in a room next to her children. They had previous arguments and the children had seen them arguing during the course of the relationship.
There was always going to be conflict because she had two children and he had two children. They were in a relationship where they were clashing. It was put that police LEAP records described the relationship as volatile and he agreed with this description. It was put that on 30 May there had been a message from school about in which X was distressed. He said he recalled reading this in the mother's affidavit. He was unaware that the mother had called to the school. He is only listed as a secondary carer and the school calls the primary carer.
It was put that on 8 July 2019 he had dragged X to and from the car. Although he at first equivocated, the father, to his credit, conceded that he had removed her by force from the vehicle.
Counsel traversed an argument between him and Ms G on 9 August 2019. Ms G was angry and upset and he went and slept with his children. He had had some dinner and drinks. He had had three to four drinks with his dinner and had driven back. They had had a heated discussion from 10 pm to 3.30 am. He pushed her three times and the argument spilled into the kitchen and she pushed him back. He had taken her by the throat and lifted her off the ground. He put her down. He was attempting to leave the property. There were injuries to his chest and she attacked him first.
There was a further event in October 2019. He got home with the children at 10 pm. There was not a loud knock on the door. He heard the police shoes on the lino and stepped out of the room. There was no intervention order. He was ordered not to shout at Ms G. The magistrate suggested he undertake a men's behaviour change course and he has enrolled. It emerged that this had been considerably delayed by the COVID emergency.
Counsel cross-examined on Ms G's assertion that the father had torn Y's ear. Y has eczema behind his ear, and he asked him to put the cream there. Blood can flow onto his neck, but he denied assaulting Y. When it was put that he could have called his parents to give evidence about this, as they were present, he said he had chosen not to involve his parents.
Counsel cross-examined about the incident with the ute. He said he had driven from M Street to his house. This was not 1.6 kilometres, but was 300 metres of road and 300 of gravel. He did not recall receiving a text from the mother. He often does not reply to the mother's text messages, as he does not want to continue any argument. The police rang and they discussed the matter, which is where it finished. He did not deny smacking Y on the bottom as alleged by Ms G at paragraph 11 of her affidavit. X had not been crying.
He tells the children to go outside and sit down as a form of discipline for five minutes. This is not regardless of the weather. There is a chair next to the door on the veranda. They are not alone in the dark and afraid. It is not rejection. It is time out. It has not damaged his relationship with the children.
Counsel traversed the appendicitis incident. They went to the chemist first and got Panadol. He thought it was gastro and would take 24 hours. He was asked next why he required the children to be dropped at the letterbox. He said he always collected the children from her letterbox and it should be the same for him. The letterbox is 500 metres from his home, but his parents do not want the mother on the property. Neither of them go to the front door.
Counsel cross‑examined him about the softball final. The mother asked to keep the children longer, but he maintained the current timeslot. Neither of them are flexible. He had not done this out of spite. When asked about his failure to sign passport applications, he first said he was not aware of it, but it emerged clearly that this was part of a bargaining process. When taxed with photographs on Facebook showing him drinking with the children, he said this was just on holidays and was not an AM period. It was the weekend he had his children. It was the day after his birthday and he was drinking mid-strength beer. He did not have an unhealthy relationship with alcohol.
The children come on Wednesday nights and he takes them the following morning. This had been all through primary school. He has told X that she can leave her dirty clothes with her mother and had given her multiple options as to how to deal with this. When asked if the children could live with him if the mother relocated without them, he said this was an option.
He would do his best to pay X's school fees. He would comply if there was an order for X to have her own bedroom.
The Father under Cross-examination by Counsel for the Independent Children's Lawyer
The father confirmed that he earns about $60,000 a year or $850 per week net. He pays $118 per week child support. He is a manager who usually works eight to five, but his hours can be anywhere from 7.30 to 6.30. It could even be 9.30 pm on occasions, although he has a say as to this. It would be crushing to have to travel to Western Australia in light of the cost of accommodation. Y flying without an adult would be a major problem. Arguments (between the children) are more frequent at the moment. Y is bigger than his sister, but in six out of 10 times they resolve it. They are at an age where they are competitive. Time out is now really good. Y has been outside only once in the past four visits.
He had had a meeting with the school principal. He was concerned as to whether Y's difficulties with him were to do with himself or whether this was a problem he had with others. This was about three years ago. Y has used paper to regulate his emotions and this has worked well.

He tries to be there for the children. Sometimes he had attended school events in his lunchbreak. He takes Y to sport every second week, but the other week he has to work. He tries not to attend events where both parents will be there. The children become instantly uncomfortable if they are both there. X has sports on Tuesdays, which he does not attend, because he usually working. Counsel asked him why it was necessary to have changeover at the letterbox and suggested that this might seem odd for the children. The father appeared to accept this.
When it was put that the children are in the middle of the dispute, he did not respond. Counsel asked if it had occurred to the father that X might want her own room. He responded that they spend time together. He appeared to accept that X should have her own bedroom. He was prepared to undertake Tuning In To Kids school course. He would like to get his own home. Homes in Town N cost between $350,000 to $380,000.
Counsel traversed the relationship with Ms G and submitted that there were at least two events in August and October 2019. The father said that his children were not with them when the injuries took place. (This was the August incident). He had not been drinking. On the second occasion the relationship finished. The police did not take him to the station but followed him to his parents’. The children were awake and it would have been frightening for them.
There was then cross-examination about the men’s behaviour course but counsel ultimately conceded the father’s endeavours have been appropriate. The Ms G children had been at home during the August 2019 incident. Altercations between them were monthly and it was both of them. He has not undertaken any counselling yet but is waiting. Obviously his conduct was inappropriate but he said there has been no repetition since his relationship with Ms G ended.
I should interpolate and say that the father’s insight as to the appalling nature of his violent conduct struck me as being somewhat limited.
The father conceded that his pushing past Y might have had an impact on him. He said he pushed past Y. Y is stubborn and stands his ground. It was put that the mother says that the children are reluctant to attend their time with him but the father said they hop in the car and are bubbly. Y said he did not want to come at Christmas. He told him to take time to think about it. Y wanted to watch E open her parents. X had still gone.
When asked about grabbing X, as earlier described, the husband said that, in hindsight, this was not good. It should never have happened. He had not discussed this with X. They just went forward.
Counsel cross-examined about the prospect of counselling for him and the mother. He thought this would be good. Conversations become extremely verbal. She shouts down the phone at him. He said he would continue self-education. He confirmed that the mother insists that X travel to school by bus even though he could drop her himself. When asked why he had said to Ms J that he was being locked out of the children’s lives, the father said he was not spoken to about which school X would attend. X had won an award and he was not told. X will not give him her phone number and tells him, “Mum tells me I have to sign in on the bus.”
When asked what he would say about the mother, he said she is a fit mother and Mr C is a fit stepfather. Obviously, as the mother at home, she can attend to the children’s needs.
He confirmed that he was comfortable with his work but would move within Victoria if the Challenors moved. He still had his own support network. Western Australia would be hard as he would have no support network. His family is here. His sister has two boys. He would have to leave all his friends.
There was no re-examination.
The Evidence of Ms J
Under cross-examination by counsel for the independent children’s lawyer, Ms J was directed to paragraph 146 of the family report. She said the children were caught in the middle. It is possible that they feel that they must fulfil their mother’s views in relation to relocation. The children are not mature enough to understand the consequences of a relocation. She stood by her observations at paragraph 247. The risk of damage to the relationship with their father was greater than the children’s resilience. If relocation took place there was a greater risk to the children’s psychological development. The quality and quantity of their relationship with their father would diminish.
Counsel for the mother asked about the children’s wishes. Ms J said she was surprised at the superficiality of the children’s reasons for relocation, including the presence of dolphins and sport. These children were not even able to say what they would miss. She was asked if the father smacking Y on the backside for asking, “Are we there yet?”, concerned her and Ms J said it did. She did not condone physical discipline. Likewise placing the children in the back of the ute.
She was also concerned that the father had removed X from the vehicle when she did not want to go spend time with him. She was also concerned that the father would have beer cans in the car. A parent should not mix alcohol and a vehicle.
The father, however, had taken responsibility for his relationship with Ms G. He said he is now intentionally single and has a commitment to there being no further emotional damage to the children. She had been concerned that X had not been given her own bedroom. When asked that if the mother relocated without the children, whether the children should live with the father, Ms J said this would be a difficult decision. The father would be capable of providing full-time care but the loss of the primary carer would be significant.
Some aspects of the father’s behaviour showed sensitivity to X’s adolescence. The stepfather deserved credit as did the extended families.
Counsel for the father did not elect to put any questions to Ms J.
Final Submissions by Counsel for the Independent Children’s Lawyer
Counsel confirmed that she sought the orders in the outline of case. She sought that the orders of 8 August 2017 remain in full force and that relocation or change of school be restrained. Injunctions were sought as to involving the children in adult matters and notification of change of address. X should have her own bedroom when with the father. The stepfather should not be called “dad” and both parties should undertake Tuning In To Kids program and both should undertake post-separation courses.
Counsel referred to the objects in the Act and submitted that the parents had done a good job of maximising the children’s potential. The children had rights to know both parents. Counsel referred to the case of McCall & Clark (2009) FLC 93-405 and submitted that no party had sought sole parental responsibility. The presumption had been applied in previous orders and this required a consideration of equal or substantial time. The current orders provide substantial and significant time.
If the mother stays in Victoria but moves there was a query about whether there should be alternate Wednesdays. The children’s best interests were paramount but not the only consideration. Parents have rights too. Both the mother and her husband put the cart before the horse. There was a lack of detail about travel to Victoria from Western Australia. COVID has not yet gone and could last for years. By then X will be 15.
The application had been pressed on the basis of the children’s wishes and the mother had been steadfast about this. The Independent Children’s Lawyer is critical of this position as it is inappropriate given the age of the children and the conflict between the parents. There is nothing in Western Australia that would necessarily exceed what is available in Town D. The children have thrived in Town D and are well-educated and well-adjusted. This a credit to all three parents.
Counsel expressed a concern that the mother was opposed to counselling, but did not seek orders for counselling given the difficulty of forcing a reluctant party to do so. The decision to move to Western Australia was accidental. The job opportunity is a good one but Mr C was not looking for it. The children’s interests should be paramount.
The mother’s evidence was that she would be disappointed but could manage. The mother had mentioned moving without the children but counsel submitted that was not really serious. Ms J says the father can cope if need be. Counsel expressed a concern about the mother’s evidence that the children would not be affected by spending less time with their father. She asked rhetorically if there was any support for the father as a father. Fundamentally, there was not. The father was minimised as a father.
Counsel turned to section 60CC(2). It was clear that there was and should be a meaningful relationship with both parents and also with Mr C. Counsel referred to Mazorski v Albright (2006) 77 FamLR 518 in this regard. Ms J had expressed significant concerns as to whether the relationship could be maintained. X is a teenager. Y is 10 and will increasingly look to his father. Counsel noted the query as to whether Y had said “dad” when with Ms J. This had not been traversed in cross-examination.
Mr C had said that they can offer more as a family than the father as a single father. There is a significant risk to the relationship with the father if relocation occurs. The mother was critical of the father’s parenting and accused him of being neglectful in relation to X’s medical needs. Nonetheless, the mother had not sought injunctions to restrain the father’s conduct or sought any reduction in time.
The mother raises issues to support a reduction in time but, overall, the children are going well. The children are being involved and over-empowered.
Counsel submitted that the father had minimised his violence in his previous relationship. He had taken Ms G by the throat. The father had, however, tried to access assistance and was prepared to seek help and had gone so far as to approach the school principal for it.
Counsel turned to section 60CC(3)(a). The children’s views gave rise to a difficulty. There were clear views in favour of relocation but were very superficial. There was no mention even of missing the other parent. This was because they were caught in the conflict and looked to their primary carer. Not much weight should be ascribed to their views.
Turning to section 60CC(3)(b), the children had been equally positive with both parents when with Ms J and had expressed similar positive views to the Independent Children’s Lawyer. The mother said the relationship with the father has been impacted more and more as time goes on. The mother says the children should choose but the fact is the children do go. But the mother had remained steadfast that it was the children who should decide. If relocation took place, time would reduce and FaceTime, and the like, were simply not good enough.
The mother did not accept the family report’s observations about her influence. She says that it was their wishes and nothing she could do about it. The children would lose the physicality of regular relationships with their father. It was clear that the children had been exposed to adult views. The father’s behaviour had been inappropriate on occasions but he had not risked his daughter’s life as the mother asserted. The children were caught up in a loyalty bind.
X had said she would be okay if they did not relocate and Y’s views, while clear, reflected his younger age. The father had exposed the children to family violence in the previous relationship but this had not been repeated but, by the same token, the father was not in a relationship. Post-separation courses should be ordered even though the mother did not want it. In the ultimate it was the mother’s attitude to the father that should decisively lead to the refusal of the relocation application.
Final Submission for Counsel for the Father
Counsel relied on his written submissions and sought that the 2017 orders remain. The father agreed with the additional orders that the Independent Children’s Lawyer sought. The father’s written submissions traverse relevant authority in some detail but it is important to remember that every parenting case tends to turn on its own facts. I have, however, of course paid proper attention to the matters raised in these submissions.
Final Submissions of Counsel for the Mother
Counsel pointed out that if the mother was not critical of the father’s conduct it might be put against her that she was not acting protectively herself. The mother has never prevented time with the father. The children’s views do not exist in a vacuum. The father was in a very bad relationship for three years. Their views should be given significant weight. Counsel submitted that written consent, in relation to decisions about schools, was unworkable in view of the dynamic between the parents.
Counsel submitted the father is not quite the figure he is represented as in the family report. He has a short fuse and has been violent. Ms G had been picked up by the throat and her own children were in the house. The father had an unhealthy relationship with alcohol and there were beer cans in his car. His discipline was unacceptable and cruel. It was inevitable that X was anxious.
The mother and Mr C offer stability and the father cannot. They can offer the children their own bedrooms. COVID injections were likely to come to the fore. Counsel invited the Court to form a Jones v Dunkel (1959) 101 CLR 298 assumption arising out of the failure to call the parental grandparents (I will not do so as the father’s evidence that he declined to involve his parents was patently sincere). Relocation was in the best interests of the children. There is an economic advantage to them.
The father’s circumstances were unclear. It is not cheap to raise three children and the youngest is only three years old. The best interests of the children are paramount but not decisive. Counsel referred to the case of A & A (2000) FLC 93-035 in respect of freedom of movement. There are the three year old’s interests to be considered as well. Counsel submitted that the total cost of not relocating would be about $1.5 million. If there was no relocation the mother would face a dilemma because the husband is at the top of the tree in his employment in Victoria.
SOME BRIEF OBSERVATIONS ABOUT THE CREDIT AND EVIDENCE OF THE WITNESSES
All witnesses in this case struck me as being honest. The mother was, however, at times shrill when challenged and it was impossible to avoid the impression that she is unrelentingly critical of the father. The picture that emerged to me, which was reinforced by reading the family report, is that during the relationship between the parents, the mother would have been extremely voluble on occasions (and on occasions abusive) and the father, who struck me as being naturally inarticulate, would retreat within himself thus provoking the mother even more. Indeed, this remains, even to this day, a substantive complaint that she makes. She says he does not respond to her or to numerous messages. Since at least one of the messages in evidence before the Court (relating to the tray of the ute incident) was accompanied by a foul language comment it is perhaps unsurprising that he fails to respond. It is a measure of the mother’s own lack of insight that she should imagine he would.
Mr C was a completely unexceptional witness. He seemed to me to be unable to conceal the notion that the children were better off with him and the mother in a single family unit. His denigration of the father, however, flowed inextricably from this assumption and reflects, no doubt, the views of his wife as well.
The father, as I have indicated, struck me as being a man to whom words do not come very readily. He struggles to cope with Y’s defiance but I will return to this matter in due course.
While he deserves credit for not seeking in any way to evade responsibility for his appalling assault on Ms G, it is plain that he has minimised the violence that took place during the relationship. Scream out arguments every month would have been very scaring to the children (who were substantially younger then) and, no doubt, to those of Ms G as well.
This brings us to the statutory pathway.
STATUTORY PATHWAY
I turn now to the statutory pathway which is set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65]
“Summary
[65]     In summary, the amendments to Pt VII have the following effect:
1.        Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2.        The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3.        If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4.        The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5.        When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6.        The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).
7.        The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)       the time the child spends with the parent includes both:
(i)       days that fall on weekends and holidays; and
(ii)       days that do not fall on weekends and holidays; and
(b)      the time the child spends with the parent allows the parent to be involved in:
(i)       the child’s daily routine; and
(ii)       occasions and events that are of particular significance to the child; and
(c)       the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8.        Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.      When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”
PARENTAL RESPONSIBILITY

All parties agree that there should be an order for equal shared parental responsibility. In closing submissions counsel for the mother appeared to suggest that the mother alone should be able to choose the children’s schools but this sits uneasily with the fact that her initiating application sought sole parental responsibility and the fact that this reflects what has been in place since 2017 in any event.
While I have no doubt that the relationship between the father and mother had moments of extreme difficulty, the separation took place in 2014 and any family violence that may have occurred before then (and there is none detailed in any significant fashion in the affidavit material is now sufficiently historical to be of no moment.
What is, of course, concerning is the fact that the father has, on occasions, used physical discipline on the children. The children have also been exposed to the appalling arguments and, even worse, a significant police intervention during the relationship with Ms G. Nonetheless, even that deplorable set of circumstances appears to have faded away over the last year and a half and I did not understand counsel for the mother to submit that the presumption should not be applied because of such violence as there had been nor that it was otherwise rebutted.
It is important to remember that all three of these parents are decent people who deserve credit for the way the children have thrived. I agree with the independent children’s lawyer that an order for equal shared parental responsibility should be made.
EQUAL TIME OR SUBSTANTIAL AND SIGNIFICANT TIME
No one suggests equal time should occur. That, in my view, disposes of this aspect of the matter. For completeness, however, I would point out that since 2017 there has been a 10/4 arrangement which appears to have worked largely without major incident and that no party is seeking to remove it.
THE CHILDREN’S BEST INTERESTS: THE PRIMARY CONSIDERATIONS
It cannot be said in this case that all parties agree that it is in the children’s best interests to have a meaningful relationship with both of the parents. In truth, the mother’s position about the father is entirely equivocal. She insists, and did so on a number of occasions in her oral evidence, which I may not have recorded fully, that she always tells the children that they love their father and that he loves them.
I doubt that she is as positive as she suggests. What she really suggests is that she would never stop the children from going provided that they wished to do so. Her reluctance is, in part, soundly based. During the relationship with Ms G, in particular, the children were undoubtedly exposed to family violence. However, despite all this, the interviews with Ms J (and, as I understand it, with the Independent Children’s Lawyer) show that the children do love their father and have a good and well-bonded relationship with him. They wish to promote it. They, nonetheless, tell the mother things that they think she wishes to hear. I entirely accept Ms J’s evidence to this effect. It will be necessary to return to the mother’s attitude about the father in due course but it is sufficient to say that in the position of the Independent Children’s Lawyer is obviously correct. It is in the children’s best interests to have a meaningful relationship with both of their parents and although there has been family violence in the children’s presence in the past, that appears to have been comprehensively removed by the cessation of the relationship with Ms G.
The Additional Considerations: Section 60CC(3)(a)
The children have expressed fairly clear views in favour of relocation to Ms J but I note that X, in particular, felt that if relocation was not permitted her mother would be fine, disappointed but fine, and that Mr C would be obviously disappointed but “I think okay.”
It is perhaps sufficient to say, for these purposes, that I share entirely Ms J’s reservations about the weight that should be granted to the children’s opinions. They are clearly very immaturely thought through (albeit that this was age-appropriate) and they have not emerged from a vacuum. They have emerged because their mother and stepfather have, consciously or otherwise, strongly proposed the move to them.
The mother’s assertion that this move was, as it were, essentially spinning from the children’s position is plainly ridiculous. What has occurred is that, completely fortuitously, what appears to be a very good job offer has come up in Western Australia and the children have been co-opted, when they should not have been, into the process of trying to effect this change. The children’s views, in my view, should be given very little weight in these circumstances.
Section 60CC(3)(b)
The mother has always been the children’s primary carer and I accept the professional evidence that the children are likely to look to her for guidance. This explains much of the conflicted behaviour that Ms J described, particularly in the case of X. Nonetheless, it is clear from the family report, which was not, in my view, seriously challenged by any party in cross-examination, that the children not only have an excellent relationship with their mother and stepfather but also with their father. It should be emphasised that the children did not reflect the mother’s significant criticisms of the father’s style as a disciplinarian. This throws much of her criticism of him into its proper light.
The children have well-grounded and important relationships with both of their parents and with Mr C. They also, of course, have a close relationship with their stepsibling, E, and it is noteworthy that Y was so keen to see E open her presents that he elected not to spend last Christmas Day with his father, something the father, to his credit, acquiesced in.
I also accept, despite criticisms in the mother’s affidavit material, that the children have relationships with their extended family in Victoria. The paternal grandparents may not be particularly demonstrative but there is nothing to suggest that they do not love the children and that this love is not at least in part reciprocated. Likewise there are other extended family members on the father’s side together with the mother’s own mother (the suggestion that the latter would move to Western Australia is tenuous in the extreme) and other maternal family members.
The other family members in Western Australia are an aunt and cousin of the mother. There is nothing to suggest that that relationship is particularly close. The history does not suggest more than one visit to Western Australia recorded in the materials.
Section 60CC(3)(c)
Quite clearly, both parents have taken appropriate steps to participate in making decisions about major long-term issues in respect to the children and to spend time and communicate with them. The father has pursued his case to judgment after all. I note that the father says he was not included in decisions about schools, and the like, and he plainly should have been. It is apparent that he is not a person to seek conflict but is rather conflict averse (something that, paradoxically, has probably caused more conflict both with the mother and with Ms G). Nonetheless, this minor failing is not of any moment in the overall scheme of things.
Section 60CC(3)(ca)
The Independent Children’s Lawyer is entirely correct to submit that both parents have entirely appropriately fulfilled their obligations to maintain the children. I would go further and say that it is quite clear that they have both done an excellent job.
Section 60CC(3)(d)
This is an important subsection. If the children go to Western Australia their relationship with their father will be qualitatively and quantitively changed. Not only that, but the mother’s adamantine insistence that the children should only spend time with their father if they want to, bespeaks an attitude of mind which will lead to an outcome all too easy to foresee. She will be, at best, neutral about the father.
I accept the submissions of the Independent Children’s Lawyer that the mother minimises the father as a father. She is unable to disaggregate her own dislike of him from the children’s best interests. The children will lose their father at an age when it is all the more important to have the stability of their relationship with him in their lives. This may be particularly the case with Y who, at the age of 10, is likely to look more to his father for guidance.
There is no doubt in my mind whatsoever that the children have not thought through the consequences of relocation. I entirely accept Ms J’s observations that not only were there reasons for supporting the relocation immature, but they were so immature they were unable even to articulate what it is they might miss if they went. This speaks volumes.
Not only, of course, would the children cease to have the relationship with their father or anything like it that they presently do have but, self-evidently, their relationships with extended family in Victoria would be very significantly impacted.
Section 60CC(3)(e)
True it is that if the mother and Mr C relocate to Western Australia they will be better off. As things presently stand, there would be around about $25,000 per annum better off before tax. This is, of course, a beneficent outcome but not gigantic in the scheme of things. Although it is posited that Mr C will increase his salary to $200,000 within a matter of some three or four years, this is crystal ball gazing of a major nature. No doubt others will also seek a job of that level of reward. Nonetheless, I fully accept that the move to Western Australia would represent a real career opportunity for Mr C, which, I accept, he is not likely ever to be able to obtain in Victoria. By then, of course, X will be 17 in any event.
Notwithstanding all this, however, for the next three or four years, the capacity of the Challenor household, so to speak, to support the sort of frequency of return that would be in the best interests of the children were they to relocate is open to serious question. Similarly, the father only earns about $60,000 per year. In the seven years since separation, and even assuming a significant amount of money spent on this case, he saved very little. He would never be able to pay half the costs of airfares as the mother suggests. Any endeavour to cause the mother to pay for at least three airfares would likewise face very significant difficulties.
That is not quite, however, the end of the matter. City F is not in metropolitan Perth. It is quite some distance outside. The father cannot simply fly into Perth and commence time. He would have to hire a car and drive all the way to City F and rent premises and then hope to spend such time as he could with the children were he to visit Western Australia. Conversely, if the children were to delivered to him, they still have to get to Town D. That is, of course, on the other side of Melbourne from Tullamarine. These are not perhaps, in any sense, major matters but they only go to accentuate the general difficulty both in terms of practicalities of transport, and the like, and associated expense that would arise if relocation were to be permitted.
Section 60CC(3)(f)
Both of the parents are generally well able to provide for the needs of the children including their emotional and intellectual needs. There are minor deficiencies in both parents. The mother is unable to perceive the extent to which she is over-involving the children in her own adult issues and her own adult emotions, most particularly about the father. This impacts upon the children as Ms J has described. They are put in the middle of a conflict. Perhaps unsurprisingly, this is manifested more obviously in X who, at 12, is somewhat older.
The father, by the same token, likewise has some deficiencies. His own inarticulate and inexpressive nature probably gives rise to unnecessary degrees of conflict with Y, who, it appears, may suffer from similar personality traits. Y, however, is better if he writes things down and this, from what the father said (and I accept his evidence in this regard) appears to be a helpful circuit-breaker. Nonetheless, the relative lack of verbal capacity on the father’s part is, likewise, something of a difficulty. There is nothing to suggest that Mr C is anything other than entirely appropriate.
Having made these qualifications, however, it should not be forgotten that these are decent people who have done an excellent job.
Section 60CC(3)(g)
While important, this subsection has largely been dealt with. The mother and Mr C live in what is clearly a happy family unit with E and the other two children. It provides a secure base for the children. Mr C is in secure long-term and, in the scheme of things, well-paid employment and they have a family home in Town D. I note that it is intended to move closer to his work in Suburb H and it is clear from Ms J’s report that she is not opposed to that. Given that poor Mr C has to drive an hour and a half each way every way it is readily apparent why he might wish to move. The father has suggested he would move too if this occurred.
The father lives with his parents who, it appears, have an animus towards the mother, which is most unfortunate. He is not in another relationship and appears to have adopted the position that he will not do so in order to prioritise the interests of his children. Whether he ultimately is able to sustain this position or whether he re-partners remains to be seen, but, on any view of the matter, he has, at the very least, divested himself of his disastrous relationship with Ms G during the currency, of which, I repeat, he on occasion behaved extremely badly.
Section 60CC(3)(h)
This is not relevant.
Section 60CC(3)(i)
Here, again, I repeat Ms J’s remarks without setting them out. Both of these people are loving parents despite any deficiencies they may have.
Section 60CC(3)(j)
I have already dealt, I think, in sufficient detail with the issue of family violence. There has certainly been some. Not so much in the relationship between the parents, although the mother would, undoubtedly, have been voluble and, on her own description to Ms J, used to blow her stack (ie scream at the top of her voice) at the father, there is nothing to suggest this has had any ongoing and significant effect upon the children. The father’s relationship with Ms G was clearly in many ways very inappropriate but, once again, the children appear to have coped with that and emerged with their relationship with the father in-tact.
There is no suggestion of ongoing family violence.
Section 60CC(3)(k)
There are no intervention orders that operate on this matter.
Section 60CC(3)(l)
It is plainly desirable that there be final orders. No one says otherwise even though there may yet be a further relocation by Mr and Mrs Challenor, if relocation is not permitted, to be closer to Mr C’s work.
Section 60CC(3)(m)
This brings us, perhaps in terms, to an issue that has already been touched on more than once, namely, the question of relocation.
It should be remembered that there is no onus on the parties seeking to relocate to justify it. Prima facie, they are entitled to do so. The relocation question remains, as I perceive the authorities, ultimately a question of the best interests of the children which remain the paramount consideration. They are not, however, the only consideration. As the independent children’s lawyer submits, parents have rights too. Indeed, they are obliged to lead their lives if only to provide for the children themselves.
I should make it clear that I have no doubt whatsoever that the mother would not leave the children in Victoria if relocation is not permitted. She is a devoted and loving mother. If the children do not move to Western Australia she will not move to Western Australia. I note that Ms J has opined that the father could cope on his own but I simply do not think that eventuality will occur. If it were to do so it would require further consideration.
The proposed move to Western Australia was not one planned in any way by either Mr C or the mother. They went on an enjoyable holiday to Western Australia and out of this, quite by chance, a job offer came through. It is not possible to avoid the conclusion that this was leapt on with avidity by the mother, in particular, because she simply did not regard the father’s relationship with the children as being a matter of any great moment.
The pay increase is not enormous at least at first blush. The possibility of a much greater pay increase later on, of course, would have been extremely attractive. But it needs to be borne in mind that there is nothing to suggest that Mr C was looking to relocate to Western Australia prior to this fortuitous offer becoming available.
Most unfortunately the children were overinvolved and, indeed, over-empowered in the decision-making process. To describe them as over-empowered, however, is to slightly miss the point. As Ms J rightly opines, in my view, putting the burden of such a decision on children of this age is simply utterly inappropriate. They should never have been burdened with it. The mother says that she tries to foment the relationship with the father and the children but she does not. The children well know that she takes notes on every occasion when anything goes wrong and, unsurprisingly, seek to tell her what they think she wants to hear. This kind of obsessive notetaking, which can only be done to provide self-serving notes for later use in curial proceedings, must stop. The children do not need the burden of it.
All the more so, since, as I find, while the father’s conduct on occasions in the past has been anything from extremely ill-considered (the back of the tray of the ute) to downright disgraceful (choking Ms G and grabbing X by the arm to pull her out of a car), the fact is that the children have a very well bonded and important relationship with him.
The dangers to the children of the loss and disruption of that relationship if relocation occurs manifestly and decisively outweighs such benefits as there may be in the relocation itself.
One thing given no emphasis by the mother in her desire to achieve the end which she so understandably desires is the sundering of the relationship with the extended family in Victoria. In truth, almost all her family and all of the father’s family are in Victoria. They do not appear, from the materials, to be fantastically close but, plainly, these relationships are likely to be important to all concerned. It would be unrealistic to think that, having lived in Victoria all their lives, all three of the adults in these proceedings do not have well-established friendship groups and supports of that kind which will be lost if they move to Western Australia.
The children are happy in their schools and happy in the Town D area and the criticisms that the mother makes of Town D (which I think are largely overstated) could be diminished if they moved closer to metropolitan Melbourne, as they, perhaps, intend to do.
It is entirely apparent, taking all these relevant considerations set out above in mind, that relocation to Western Australia is not in the best interests of these children and should not be permitted, as the Independent Children’s Lawyer submits.
CONCLUSION
I am keenly conscious that this decision will come as a tremendous blow to Mr and Mrs Challenor. Nonetheless, I note that the children are of the clear view that they will get over it if it is not allowed. Regrettably, it is very possible that it will cause the mother’s view of the father to be yet soured further. She is resistant to any form of counselling to enable her to better address the difficulties that obtain between them and this is merely part of the unfortunate lack of insight that pervades her approach to the matter.

It is to be hoped that, upon the conclusion of these proceedings, she will reconsider that position and contemplate obtaining the assistance that she needs (as, of course, does, indeed, the father, and he is not unprepared to address it) to try and get some resolution of the interpersonal difficulties in the best interests of the children.
As indicated at the commencement there will be orders as sought by the Independent Children’s Lawyer.

I certify that the preceding one hundred and sixty-nine (169) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt.
Associate:
Dated: 29 April 2021

[2021] FCCA 860

29 April 2021

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Natural Justice

Procedural Fairness

Remedies

Standing

File number(s):	DGC 1945 of 2020
Judgment of:	JUDGE BURCHARDT
Date of judgment:	29 April 2021
Catchwords:	FAMILY LAW – Parenting – mother seeking to relocate from Victoria to Western Australia – mother’s husband receiving offer of employment with significantly greater pay and improved prospects of promotion – father opposing relocation because of likely disruption to his relationship with the children – children expressing approval of relocation but views immature and influenced by over-involvement in the decision-making process – family report and Independent Children’s Lawyer opposing relocation – mothers attitude to father dismissive and not supporting the children’s well-established and secure bond with the father – relocation not in children’s best interests.
Legislation:	Family Law Act 1975 (Cth) ss 60CC
Cases cited:	A & A (2000) FLC 93-035 Goode v Goode [2006] FamCA 1346 Jones v Dunkel (1959) 101 CLR 298 Mazorski v Albright (2006) 77 FamLR 518 McCall & Clark (2009) FLC 93-405 MRR & GR [2010] HCA 4.
Number of paragraphs:	169
Date of hearing:	6 & 7 April 2021
Place:	Dandenong
Advocate for the Applicant:	Mr Cinar
Solicitor for the Applicant:	Erol Cinar Lawyers
Advocate for the Respondent:	Mr Sietz
Solicitor for the Respondent:	James Mcconvill And Associates
Counsel for the Independent Children's Lawyer:	Ms Brennan
Solicitor for the Independent Children's Lawyer:	Ruffin Lawyers

ORDER MADE BY:	JUDGE BURCHARDT
DATE OF ORDER:	29 APRIL 2021