Colby & Briscoe
[2023] FedCFamC2F 1273
•26 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Colby & Briscoe [2023] FedCFamC2F 1273
File number(s): MLC 4464 of 2022 Judgment of: JUDGE JENKINS Date of judgment: 26 October 2023 Catchwords: FAMILY LAW – parenting – final hearing – relocation – parties living in Melbourne – mother seeking to relocate to Region B – risk of harm to children – alcohol and anger management issues – exposure to conflict – children’s wishes Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 64B, 65D, 65DAA, 67Z, 67ZC Cases cited: A & A: Relocation Approach [2000] FamCA 751
Adamson & Adamson [2014] FamCAFC 232
AMS v AIF [1999] HCA 26
Grella & Jamieson [2017] FamCAFC 21
Heath v Hemming (No 2) [2011] FamCA 749
KB & TC [2005] FamCA 458
Morgan & Miles [2007] FamCA 1230
MRR v GR [2010] HCA 4
Oberlin & Infeld [2021] FamCAFC 66
Starr & Duggan [2009] FamCAFC 115
Taylor v Barker [2007] FamCA 1246
U v U [2002] HCA 36
Division: Division 2 Family Law Number of paragraphs: 94 Date of last submission/s: 28 August 2023 Date of hearing: 17-18 August 2023 Place: Melbourne Counsel for the Applicant: Mr Moisidis Solicitor for the Applicant: Brown and Co Lawyers Counsel for the Respondent: Ms Johnson Solicitor for the Respondent: Zenith Lawyers And Consultants ORDERS
MLC 4464 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR COLBY
Applicant
AND: MS BRISCOE
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
26 OCTOBER 2023
THE COURT ORDERS THAT:
1.The parties have equal shared parental responsibility for the children of the relationship, X and Y, both born in 2012 (“the children”).
2.The children live with the mother.
3.The children spend time with the father on a fortnightly basis during the school term in each alternate week from 3.30pm Tuesday to 6.00pm on Sunday, commencing in the second week of each school term.
4.The children otherwise spend time with the father as follows:
(a)During the gazetted school term holiday periods on a week about basis as agreed between the parties in writing and in default of agreement, from the conclusion of school on the last day of term until 4:00pm on the second Saturday in even years and from 4:00pm on the second Saturday until the commencement of school on the first day of term in odd years;
(b)During the gazetted school summer holiday period on a week about basis as agreed between the parties in writing and in default of agreement commencing the first week at the conclusion of the school term during odd years and then commencing the second week (being seven (7) days after the conclusion of the school term) at 10.00am during even years;
(c)For Christmas, from 5:00pm on Christmas Eve until 1:00pm on Boxing Day in odd years;
(d)From 5:00pm on Christmas Day until 1:00pm on Boxing Day in even years;
(e)From 5.00pm on the day prior to Father's Day until 4.00pm on Father's Day;
(f)On the children's birthday in odd years, from the conclusion of school until 7.30pm or from 4:00pm on the said birthday until 10:00am the following day, if a non-school day;
(g)At all other times as agreed in writing between the parties.
5.The children's time with the father pursuant to Orders 3 and 4 be suspended as follows:
(a)On Mother’s Day from 5.00pm the day prior until 4.00pm on Mother's Day;
(b)During the gazetted school holiday periods as applicable pursuant to Orders 4 (a) and (b);
(c)During the Christmas period as applicable pursuant to Order 4(c) and (d);
(d)On the children's birthday in even years, from the conclusion of school until 7.30pm; or from 4:00pm on the said birthday until 10:00am the following day, if a non-school day.
Changeovers
6.Changeovers which do not occur at the children’s school, the party whose care the children will be in, shall facilitate the collection of the children from the other parent's residence or otherwise as agreed in writing, including by text message, between the parties.
Communication
7.The children be at liberty to communicate with each parent by telephone or videocall whilst in the care of the other parent with such other parent to initiate such calls and thereafter provide the children with privacy and during any school holiday spend time the other parent be at liberty to contact the children every second day by telephone or videocall.
8.All communications between the parties be via the parenting app known as “App Close” and/or via text message with communications to be limited to the children's needs and care arrangements.
9.Each party notify the other within 48 hours of any change of residential address and/or contact phone numbers and email addresses and any party intending to change their residential address provide written notice no less than 30 days prior to the intended change to the other party.
Schooling
10.Both parents be authorised to receive copies of all correspondences and/or notices usually provided to parents of students at the children’s school, including school reports, photographs, newsletters, notifications of concerts, sports days, speech nights, and parent- teacher interviews, or any other reports on progress and behavioural issues in relation to the children, and shall be entitled to attend all functions to which parents are ordinarily invited or welcome to attend, and that the parties be responsible for any expenses incurred on their behalf as required by the children’s school/organisations for their own copies of school photographs, school reports and other like materials.
11.The parties be permitted to provide a copy of any Court Orders to any school, or childcare the children are attending.
Medical
12.Each party as soon as practicable notify the other of any significant medical issues, illnesses and injuries affecting the children, and medical appointments and hospitalisations, and permit each other to speak with and be provided with updates from the children’s treating doctor(s) and medical professionals about the children’s medical conditions, and attend medical appointments and any hospitalisation if the children are hospitalised.
Non-denigration
13.Each party be restrained by injunction from:
(a)Denigrating or abusing the other and their families and partners in the presence and / or hearing of the children, or permitting any other person to do so;
(b)From discussing these matters or any other proceeding between them in the presence and/or hearing of the children, or permitting any other person to do so;
(c)Discussing parenting arrangements with the children save for the purposes of the general implementation of these Orders.
Travel
14.Each party be permitted to travel with the children overseas during any time that the children are in their care pursuant to these Orders (including any other times by agreement), provided that the travelling party provides a travel itinerary to the other party no later than 30 days prior to the intended departure time, such itinerary to include flight numbers, dates and times of departure and arrival, and telephone numbers and addresses of accommodation.
15.For the purpose of any overseas travel pursuant to paragraph 14 above, both parties do all things necessary and sign all such documents as required to enable passports and visas for the children to be issued or renewed or replaced.
16.The children’s passports be held by the mother and provided to the father at least 14 days prior to any overseas travel by the father with the children pursuant to paragraph 14 above and the father return the passports to the mother within 14 days of the children’s return from overseas.
Miscellaneous
17.Each party be restrained from having a blood alcohol concentration in excess of 0.05% whilst the children are in their care.
18.The father be restrained from leaving the children at home without adult supervision, prior to the commencement of school.
19.All extant applications be otherwise dismissed.
NOTATIONS:
A.Orders 1, 2, 4 (a), (c), (d), (e), (g), 5 (a) (c), 7 to 16 and 18 were made by consent.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS
INTRODUCTION
This a parenting matter involving twins X and Y who have recently turned 11 years of age.
The applicant father, Mr Colby, is currently aged 52 years. The respondent mother, Ms Briscoe, is aged 49 years. Neither party has re-partnered.
The twins live with the mother and spend time with the father four nights a fortnight, being from Wednesday to Sunday, with an evening meal on the alternate Wednesday.
The parties currently live in the Suburb C area, where they resided throughout the relationship.
The mother remains in the former matrimonial home which is to be sold pursuant to final property orders.
The mother wishes to relocate to Region B. The father opposes the move. The mother says that if the children are not permitted to relocate that she will remain in the Suburb C area.
The mother also alleges the children are at risk in the father’s care and that regardless of the move, his time should be reduced to alternate weekends and holiday time which she says will mitigate the risk.
BRIEF BACKGROUND
The parties were in a relationship from about 2010/2011 and separated in or about July 2021 under the same roof. In mid-2022 the mother obtained an Intervention Order removing the father from the home.
The father filed his application in these proceedings on 29 April 2022.
On 11 May 2022 the parties reached agreement at mediation for the father to spend time with the children from afterschool Friday to 4.00 pm Sunday each alternate weekend and from afterschool Wednesday to 7.00 pm.
On 6 June 2022 interim orders were put in place which largely reflected the parties’ agreement at mediation.
On 6 October 2022 the parties attended a Family Dispute Resolution Conference and agreed to an increase in the father’s time from 3.30 pm each Wednesday to 4.00 pm on Sunday each alternate week as well as the Wednesday dinner. The parties also agreed to the children spending half the term holidays with each parent and two weeks in the long summer holidays with the father.
In April 2023 the parties and the children attended upon Dr D for the purposes of a Family Report. Dr D did not support the relocation and recommended the children increase their time with the father to five overnights per fortnight.
EVIDENCE
Each party gave evidence along with the mother’s sister, Ms E and her longtime friend Ms F. Two of the mother’s witnesses were not available for cross-examination; Mr G and Mr Briscoe, and accordingly their affidavits were not relied upon.
Although the mother disputed the contents of the Family Report, she did not seek to cross-examine Dr D.
THE RELEVANT LEGAL PRINCIPLES
There is, of course, no separate category of relocation cases, and I am not to determine the question of “relocation” as a separate issue. This is a parenting case, in which I must apply the law, and determine orders having the children’s best interests as my paramount consideration. They are not the only interests I can consider. I also take into account the rights of parents, including their right to determine where they live.
I note the observations of the Full Court in Adamson & Adamson [2014] FamCAFC 232 at [66]:
These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.
The following propositions can be distilled from the authorities, including AMS v AIF [1999] HCA 26 (“AMS”), A & A: Relocation Approach [2000] FamCA 751, U v U [2002] HCA 36 (“U v U”), Taylor v Barker [2007] FamCA 1246, KB & TC [2005] FamCA 458 and Morgan & Miles [2007] FamCA 1230:
(a)The best interests of the children are the paramount, but not the sole consideration;
(b) The person seeking to move does not need to provide compelling reasons for the relocation sought;
(c) The court must evaluate the competing proposals, giving consideration to how each proposal will provide advantages and disadvantages for the children’s best interests;
(d) The question of whether there should be a relocation cannot be treated as a separate or discrete issue to that of the question of residence;
(e)Neither party bears an onus to establish that an order permitting or restraining relocation is in the children’s best interests; and
(f) The Court must weigh the competing proposals and consider all the relevant factors, including the right of freedom of movement of the parent who wishes to relocate.
As observed by Kent J in Heath v Hemming (No 2) [2011] FamCA 749 at [101]:
In some cases, the determination of “best interests” may well mean that one party’s choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child’s “best interests” being served by Orders which do not give one parent “optimal” arrangements or outcomes.
I must make my way through the legislative pathway. That includes that I must weigh and consider the primary considerations, and additional considerations set out in s 60CC(2) and s 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”). I will turn to each of those considerations later in these reasons.
Section 65D of the Act directs the Court to make such parenting orders as it thinks proper. As to what is “proper”, and how the Court’s discretion is to be exercised, the Full Court of the Family Court of Australia in Grella & Jamieson [2017] FamCAFC 21 at [18] said:
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.
The objects and principles of Part VII of the Act as set out in s 60B provide guidance as to the exercise of my discretion. Those objects are:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
PARENTAL RESPONSIBILITY
In this case although each parent proposes an order for equal shared parental responsibility, I must still be satisfied that it would be in the children’s best interest to make such an order.
In this case pursuant to s 61DA of the Act, the presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility is rebutted by the family violence asserted by each of the parties. However, it may still be in the children’s best interests to make the order.
Section 60CC of the Act sets out the matters to be taken into consideration when determining best interests. I have considered each of those sections although I do not consider it necessary to refer to them individually.
In particular I note Dr D’s observations that the “co-parenting relationship and communication is poor, with both parents expressing a hostile attitude towards the other”. She also noted that the parties impose different rules in each household which may impact decision making.
However, having had the benefit of assessing each party, observing them with the children and reading all of the material filed in this matter, Dr D was nonetheless of the view that equal shared parental responsibility was in the best interests of the children. Accordingly, I propose to make such an order in this case.
As I am making such an order, pursuant to s 65DAA of the Act I must consider firstly whether equal time is in the children’s best interests and whether an order to that effect is reasonably practicable. If the answer to either of those questions is negative, I must then consider whether substantial and significant time is both in the children's best interests and reasonably practicable. This is the approach set out by the High Court in MRR v GR [2010] HCA 4, in which the High Court emphasised the Court must be satisfied both that the order is in the child's best interests and reasonably practicable before consideration can be given to the order being made (emphasis added).
I am not required to consider the children's best interests or questions of reasonable practicability in any particular order. However, as suggested by the Full Court in Starr & Duggan [2009] FamCAFC 115 at [38] a logical approach would be to:
•first make findings concerning the relevant s 60CC factors;
•then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child's best interests; and
•then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) - which may be done by referring back to the earlier s 60CC findings.
I shall follow that logical approach.
THE CONSIDERATIONS PURSUANT TO SECTION 60CC OF THE ACT
In determining the best interests of the children, there are two primary matters or considerations, and several additional matters or considerations I am required to take into account.
Section 60CC(2) of the Act sets out the two primary considerations I must consider being:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying those primary considerations, I am required to give greater weight to the need to protect children from harm.
I must also weigh and consider the additional considerations set out in s 60CC(3) of the Act.
Primary considerations
Meaningful relationship
Dr D made the following observations in the Family Report at [143]:
Meaningful relationships with both parents are critical to the children's development of positive attachment relationships. Attachment allows children to develop the secure base necessary to explore their world, relate to others, and regulate their emotions adaptively.
The mother’s evidence is that she wishes for the children to have a meaningful relationship with the father and has always encouraged such a relationship. She says her desire to move to Region B has nothing to do with wishing to sabotage that relationship, even though she conceded the Court may find the children should only travel on long weekends and in the holidays to spend time with him.
The mother did not appear to acknowledge the impact the move may have on the children’s relationship with the father. The mother’s desire for a “fresh start” on Region B and to be near her family appeared to be a greater priority than the children having a meaningful relationship with the father.
This was confirmed by the psychometric testing conducted by Dr D who analysed the results as supporting the following assertion at [70] in relation to the mother:
Elevations in risk appeared to primarily relate to her capacity to continue supporting a relationship between the children and their father and avoid exposing them to adult issues and/or conflict.
Risks to the children
Despite the mother stating there was no risk to the children in her outline of case filed two days before the Trial, this was not her position at the final hearing. At Trial she asserted the father was a risk on the basis of the father’s alcohol use, road rage, and because he continued to involve the children in the conflict in this case. I shall address each of these allegations individually.
The father’s alcohol use
The father acknowledged in the Family Report that he had a history of alcohol problems including being imprisoned for a drink driving offence over 20 years ago. Dr D noted that “He acknowledged that on occasion he would drink to intoxication, which would make him a little more aggressive and perpetuate conflict in the relationship”. However, the father’s evidence is that he no longer has a problem. He says he continues to drink one or two beers each day but reduces his intake when the children are in his care. Nonetheless, the father’s psychometric testing in the Family Report indicates he may be in denial about his alcohol use. Furthermore, Y confirmed in the Family Report that the father drank every night and was said to have “identified alcohol and anger dysregulation as potential risk factors for her father”.
However, I have had the benefit of the s 67Z response from the Department of Families, Fairness and Housing (“the Department”) who investigated allegations of alcohol misuse by the father post-separation and did not substantiate any risk to the children. There is otherwise no evidence of drinking causing ongoing problems in the father’s household. Indeed, the mother consented to an increase in the father’s time in October 2022 despite being fully aware of the father’s history. Furthermore, Dr D reported that “[Ms Briscoe] did not impress as being concerned about [Mr Colby’s] alcohol use”.
The father’s road rage
The mother’s evidence was that the children had reported to her instances of road rage whilst in the father’s care. This was corroborated in the Family Report at [108] in which Dr D reported:
[Y] believed that her father had difficulty regulating his anger at times. She indicated that he has a history of becoming upset while driving, and she has been fearful that he will ram another vehicle or get into a physical fight with another driver. She described her father as having a loud and deep voice, that she finds frightening when directed at her. She denied that he had ever physically hurt her.
X on the other hand stated he “had never been scared or worried in his father's care”.
There do not appear to have been any police reports as a consequence of any incidents of road rage involving the father.
In any event I note that the mother proposes orders in which the children are to spend a significant period of time in the father’s care and that each party be responsible for driving the children to and from time. Such orders appeared inconsistent with someone who was genuinely concerned about the father’s propensity to expose the children to such serious incidents. I note that it was put in the mother’s final submissions that her proposed orders included an order that the father complete a men’s behavioural change course and her proposal for time was “premised upon her hope that completion of such a course will enable the father to modify his behaviours”. However the orders for time were not contingent on same.
The father exposing the children to conflict
The mother asserts that the father has been involving the children in the conflict by discussing the proceedings, denigrating her to the children and otherwise undermining her parenting.
Having heard the father give evidence, there seemed some merit in the mother’s concerns. For example, he conceded he told Y she should wear what she wanted rather than what the mother had suggested. Other examples of this were the father permitting Y to get her ears pierced despite knowing the mother did not agree and allowing her to dye her hair. I formed the view that the father had little insight into how this would place the children in the middle of the conflict. However, the mother may also have been discussing court proceedings with or in the hearing of the children. For example, X was aware in the Family Report that “his mother wanted to move to [Region B] to be closer to her friends, and because property was more affordable”.
However, neither child appeared to have been substantially impacted by either party’s comments. Y told Dr D that she was aware the parties did not “get along with each other, but did not feel like she was caught in their conflict”. Furthermore, the children did not appear to be aligned with either parent, and had positive relationships with both.
Analysis of risk
Ultimately it is difficult to reconcile the mother’s concerns with her actions after separation, the orders she is seeking and her own evidence.
It is not in dispute that in late 2022, when the mother had an injury, that she turned to the father to care for the children whilst she was in hospital. Then in late 2022 she agreed to increase time to four nights per fortnight. Furthermore, despite her current concerns she is proposing large periods of time in the school holidays. She also stated in her Trial affidavit that if the father is willing to move to City H, she would have no objections to the current arrangement continuing. Whilst the mother initially said during cross-examination that this was an error, when she was later asked about Dr D’s recommendations for a block of five nights she said, “I think it would be great if [Mr Colby] moved to [Town J]” and that she thought it was a shame because he was choosing not to move.
I do not accept the mother believes the children are at an unacceptable risk of harm in the father’s care, nor does the evidence support such a finding.
Additional considerations
The wishes of the children
In the Family Report the children expressed a wish to have increased time with the father and were reticent to move to Region B.
The mother submitted that the reason the children may want more time with the father is because he has less boundaries and a more permissive style of parenting. I cannot discount that as a possibility or that their views have been impacted by what they have heard in either or both households.
However, the children are of an age where friendships are becoming more significant to them. It is not surprising that they would prefer to stay where they can continue to go to school and do extra-curricular activities with their friends. Whilst they will change schools in the next 18 months it is likely that some of their school friends will go to the same school or that they would otherwise continue to do activities with them or socialise with them outside of school. I also note that Y in particular appears to have had some difficulties with friendships and at the time of the Family Report had been settling into a new group.
Therefore, although I am cautious about placing too much weight on the children’s wishes, they do have some bearing on the outcome of this matter.
Relationships with each parent
In the Family Report it was observed that the children appear to have positive relationships with both parents. However, the Family Report identified some areas of concern for each of them. Dr D noted that during the observations of the parties with the children, at one point the father was on his phone and that the mother was initially distracted by her documents. Each party also struggled to engage with the children, although Dr D noted that X engaged in more conversation with the father than the mother.
Impact on the children of any change
The children have been spending four nights per fortnight with the father as well as an evening meal in the other week since late 2022. They are used to seeing him for substantial periods of time and having him involved in their day to day lives. If they move to Region B they are likely to only see the father on alternate weekends during school term. Their time would consequently be reduced to weekend only, with large periods in between. They would also be forced to make new friendships and/or to try and maintain current friendships through electronic communication such as text, facetime, or social media. Whilst all relationships can arguably be maintained that way, and the younger generation make frequent use of such communication in any event, there is still a qualitative difference.
Reasonable practicability
The Region B is about 150 kilometres from Suburb C and involves crossing or going around the city of Melbourne. Whilst in dispute, it appears the journey would take between 2 and 3 hours via car on a Friday evening, although the journey would be quicker on the Sunday. The mother raised the possibility of the children travelling on alternate transport for part of the journey however she conceded the children could not travel unaccompanied until they are 13 years old, and that alternate transport is unlikely to substantially decrease the travel time.
Ability to meet the children’s needs
Dr D was of the view that both parents were able to meet the basic needs of the children.
Nonetheless, part of the mother’s case was that the children have been returning from the father’s house dysregulated and having meltdowns. She attributes this to the father’s more relaxed approach to parenting and to involving the children in the conflict. In her evidence the mother said it was Y who was having the most difficulty and that she frequently had trouble getting her to school on the Monday after time with the father.
However, the mother’s evidence on this topic was inconsistent and difficult to follow. She initially said that this behaviour had become apparent after the increase in time in October 2022 but later said it had occurred since April 2023 and had increased more recently as the Trial approached. Furthermore, she conceded that the difficulties with Y attending school also occurred after weekends in her own care.
There was no evidence produced to otherwise corroborate these behaviours, such as school reports or school attendance records.
Moreover, although Dr D was of the opinion the mother had a greater understanding of boundaries, the mother “impressed as having little authority over the children”. This appeared to be consistent with X’s comments in the Family Report that there were few rules in either home about screen time or bedtime.
Nonetheless, it would not be surprising if the children struggled to transition between houses. It is clear the parents have very different parenting styles. For example, the father concedes that he allows the children to make their own choices and acts more on impulse. In such circumstances it would be natural the children would resist boundaries in the mother’s home.
Ultimately Dr D recommended block time to assist the children with transitioning between the two households. As she stated in [145]:
An extended block of time also allows them to develop deeper relationships with each parent without feeling like they must constantly adjust to different living situations.
Family violence and Intervention Orders
Both parties allege the other has committed family violence. Whilst denying many of the allegations, the father admits being removed from the home by police in 2013 when he locked the mother and her brother out of the house. He also admits to throwing an iPad which hit the mother, although he says that was not his intention. In addition the father agrees they had many arguments, with both parties shouting and that the children would have been exposed to this. For his part, he alleges that in 2016 the mother struck him in the head causing an injury. The mother denied any memory of this incident. In any event, the information from the Department suggests that the father was the predominant offender.
It is understood that Intervention Orders were taken out in 2016 when the parties briefly separated.
In late 2021 the Victorian Police took out an Intervention Order on behalf of the mother; however, it enabled the father to remain in the home. In late 2021 the father took out an Intervention Order against the mother which was similarly limited in its terms.
In mid-2022 the Intervention Order against the father was varied to remove him from the home. At that time the father had been wearing a body camera and recording everything that occurred in the home. The mother said this was to intimidate her. The father said it was to protect him from further allegations.
In late 2022 the father consented to an Intervention Order which was limited to one clause with respect to the children, for 12 months.
The father was later charged with breaching that Intervention Order as a result of texting the mother.
Although it was alleged the father sent abusive messages, no such messages were produced in evidence.
The father has a current Intervention Order application against the mother which is to go to final hearing in November.
FREEDOM OF MOVEMENT
As already stated, the bests interests of the children are the paramount concern but not the sole consideration. The Court must also take into consideration the right of parties to live where they wish. The mother wants to live in Region B. Whilst she is not required to provide a compelling reason for this desire, her reason is still relevant as it may go to other considerations such as whether she will promote an ongoing relationship with the father.
In this case, the mother says she wishes to be near her family, in particular her sister who she is very close to, as well as her brother, father and her best friend. She also is attracted to living by the local attractions and the community in that location. The mother also asserts that buying a house there will be more affordable.
The mother’s case is that the parties discussed moving to Region B during the relationship and that they were renovating their home in Suburb C with the intention of moving there in the future. The father denies this and says they only stayed there on two occasions during the relationship and never seriously discussed such a move. The mother agreed in evidence that they did not inspect any properties, tour any schools, or approach any bank about finance. Furthermore, although her sister and father moved there in 2020, her brother only recently moved there.
Nonetheless, the mother says it “takes a village to raise a child” and, in Region B, she has her “village.” She says the children have no extended family in Suburb C other than their paternal grandmother who is in declining health and in aged care. Furthermore, she says the father could move to Region B as he is only renting and is a tradesperson who could easily find work. The father denies he would be able to readily get such work but in any event was clear he has no intention of moving.
The mother says her “village” provide her with both practical and emotional support. She says this became particularly apparent to her when she had an injury. However, having seen the mother give evidence, it is clear she is a very capable person and generally in good health, so much of the support is likely to be emotional.
The father for his part was worried that the “village” have a very low view of him and are likely to influence the children against him. In this regard the mother’s sister, Ms E and best friend, Ms F both gave evidence. Ms E was a religious woman who took her oath very seriously. I accept her evidence when she says she would never speak a bad word about the father to the children and that she tries to say positive things about him. I also accept her evidence that they love their dad and that she sees their relationship with him as “vital”.
However, in regard to Ms F she is clearly a strong supporter of the mother. They have been best friends for many years. It was evident that based on what she has seen and heard of the father that she did not hold him in high esteem. It is unlikely therefore that she would actively encourage a positive relationship between the children and the father.
In terms of community, I do not accept that there is necessarily a greater sense of community in Region B than Suburb C. The family have been in the Suburb C area for many years and the children have attended the same school, and there is likely to be a substantial community which surrounds them. No doubt there are benefits to living in Region B, but it is just as possible that the children could get many of those benefits from spending substantial time visiting the local attractions when in the mother’s care.
In terms of affordability, there was no reliable independent evidence about the cost of housing in either location nor any evidence which enabled the Court to compare like properties. The evidence available consisted of online searches in the Suburb C area and surrounds however there were no equivalent searches for Region B and the appropriateness of the properties was heavily in dispute. I am simply unable to find that the housing in Region B is more affordable and I cannot take judicial notice that rural properties are cheaper, given country properties may well have had greater increases since the pandemic. I simply do not know.
I was also unclear about the mother’s borrowing capacity. Her evidence in this regard was again contradictory. For example, the mother firstly said she had only spoken to a mobile lender but later said they had exchanged emails. In any event, none of this was on affidavit.
There was also no evidence that the mother would be significantly affected either emotionally or psychologically if she was not able to move. Indeed, the psychometric testing conducted on the mother during the Family Report indicated “that the overall stress she is experiencing is in the normal range”. Nonetheless, I accept she is sincere when she says she loves the country and feels most content when she is there. Likewise, I have no doubt the father would not be comfortable living near the mother’s “village”. In the end, neither party has the onus of proving or justifying their positions in this regard.
ASSESSING COMPETING PROPOSALS
Advantages of moving to Region B
·The mother, who is their primary carer, would be happier, which may impact on how she interacts with the children;
·The children would have the benefit of living near and spending frequent time with their maternal aunt, their four cousins, their maternal grandfather and their uncle.
Disadvantages of moving to Region B
·The children would not be able to see their father each week and would spend substantially less time with him;
·The nature of the children’s relationship with the father would change as they would only see him on weekends and on school holidays;
·The children would have significant travel each alternate weekend, including up to 3 hours after school Friday which is likely to be onerous for them;
·The children would have to start again in a new community with new friends and their current friendships are likely to be qualitatively different;
·The children may resent that their wishes have not been listened to;
·As the children grow older they may resist travelling back to Melbourne on the weekends because of sporting and social commitments in Region B.
Advantages of living in Suburb C
·The children would have the benefit of both parties in their lives (noting the mother says she would not move to Region B without the children);
·The children could spend increased time with the father, in accordance with their wishes;
·The children could remain in their current community;
·The children could continue current friendships;
·The children could spend their weekends rejuvenating after the school week rather than substantial periods travelling;
·The children would have the option of participating in the same extra-curricular activities each weekend rather than every second weekend;
·The children could still visit their extended family with their mother, in particular on long weekends and school holidays.
Disadvantages of living in Suburb C
·The mother would be unhappy, which may impact the children.
·The children would spend less frequent time with extended family in Region B.
WHAT ORDERS ARE IN THE BEST INTERESTS OF THE CHILDREN?
Ultimately Dr D’s assessment was as follows at [144]:
While moving to [Region B] may have its advantages in terms of lifestyle and/or more affordable housing, it is likely that this would be offset by the children having an integrated experience across time with their mother and father. Further, it would not be practical for them to have midweek time with their father. Both or one parent is going to have to do a significant amount of driving, and the children will miss out on parties and social events, particularly as they enter high school. It would be in the children's best interests to reside closer to school and each parent. It is likely that if the children remained residing in the suburbs of Melbourne that this would be more achievable. Thus, while relocation is a matter for the Court, based on the needs of the children, it would not be recommended in this instance.
I have had the benefit of all of the evidence in this matter and taking into consideration all the aforementioned matters, I agree with Dr D’s assessment. I find that it is in the best interests of the children to remain in the Suburb C area and to spend block time with the father as she recommends, namely from afterschool Tuesday until Sunday evening. However in accordance with what Dr D’s recommends, I have considered whether a midweek dinner in the other week would also be in their best interests and have formed the view that it would not. Given the parties different parenting styles and the ongoing conflict it is likely the children will take time to transition between the homes and therefore that a short period mid week would be unnecessarily destabilising.
Otherwise, the parties prepared a joint minute which set out a number of orders which were agreed as well as highlighting the orders that were still in dispute. This became joint exhibit 1. In addition, the parties filed brief written submissions in support of their proposed orders. I shall briefly deal with those remaining issues.
Long summer holiday time
The mother proposed orders that enabled her to be able to suspend one of the father’s weeks in the long summer holidays so she could have a two-week block of time upon providing the father with three months’ notice. The father opposed this. The mother’s orders were put on the basis that such orders would “permit the mother as primary carer to take a lengthier block of time in the summer holidays from time to time”. However, in circumstances where the children are spending substantial and significant time with each parent, it is the best interests of the children to have the opportunity to spend the same amount of holiday time in each of their care. If the parties agree they can always divide that time in larger blocks to enable the other parent to take a more extended holiday, otherwise, I prefer the orders proposed by the father.
The children’s birthdays
The mother proposed orders that the parties spend time with the children on their birthday in alternate years, being afterschool if midweek or overnight if on a weekend. The father proposed that he spend time with the children every year on their birthday for that same period of time. It is generally in the best interests of children to share special occasions with each parent; however, the father’s proposal does not allow for the mother to ever have an evening meal or celebration with the children and if a school day, only time before school. However, given the potential difficulty for the children in transitioning between the two households, I do not believe it would be in the children’s interests to split the afterschool time or the day if it falls on a weekend. Accordingly, I prefer the orders proposed by the mother where the birthday is alternated each year.
Changeovers
The father proposed that when changeovers do not occur at school that they occur at the parent’s homes. The mother proposed a midway point. The mother proposes this on the basis that it would enable her to assess the father’s sobriety. However in order to do so, she would have to come into close contact with the father which would potentially expose the children to conflict. In circumstances where there has been a history of Intervention Orders and allegations of breaches, this would not be in their best interests. Consequently, I prefer the orders sought by the father which will enable the children to transition between the parties without the parties themselves coming into contact.
Restraints on alcohol
The father proposes orders that the parties each be restrained from drinking to excess when the children are in their care. The mother seeks a restraint on the father from drinking at all from midnight before the children come into his care and during his time. I have already found that the father’s drinking does not pose an unacceptable risk to the children. However he has a problematic history of drinking. In addition, the evidence shows the police have attended two incidents in which the mother was intoxicated. In such circumstances, Dr D recommends that neither party have a blood alcohol concentration above 0.05% whilst the children are in their care. I propose making orders in those terms.
Men’s Behavioural Change Course
The mother seeks an order that the father attend a men’s behavioural change group and/or an anger management course. As already discussed the mother submits that her proposed orders were put on the basis that she hoped the father’s behaviour would change as a result of attending such a course. However, the mother’s proposed parenting orders are not conditional on the father undergoing this course. As was made clear by the Full Court in Oberlin & Infeld [2021] FamCAFC 66, an order requiring a party to undergo counselling or in this case a course, which is not otherwise tethered to a parenting order, is neither a parenting order under s 64B(2) nor is it captured by s 67ZC. Accordingly, I have no power to make such an order.
Consent orders
I will otherwise make the orders which were by consent including an order that the father not leave the children unattended before school.
For all of the aforementioned reasons I make the orders as set out at the commencement of this judgment.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 26 October 2023
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