Cording & Cording (No 2) - [2022] FedCFamC2F 1229

Federal Circuit and Family Court of Australia
(DIVISION 2)
Cording & Cording (No 2) [2022] FedCFamC2F 1229

File number(s): NCC 3498 of 2018

Judgment of: JUDGE KEARNEY

Date of judgment: 12 September 2022

Catchwords: FAMILY LAW – parenting – relocation interstate sought for two girls aged 8 & 6 – poor co-parenting and communication – sole parental responsibility granted to parent with capacity to promote meaningful relationship with other parent – substantial and significant time only if practicable by location – regular time if party chooses to relocate interstate away from children - prescriptive orders to reduce the risk of ongoing parental conflict – best interest of children

Legislation: Family Law Act 1975 (Cth)

Cases cited:
AMS v AIF [1999] HCA 26

Franklyn & Franklyn [2019] FamCAFC 256

Hepburn & Noble [2010] FamCAFC 111

Mazorski & Albright [2007] FamCA 520

MRR & GRR [2010] HCA 4

Slater v Light [2011] FamCAFC 1

Star & Duggan [2009] FamCAFC 115

Taylor & Barker [2007] FamCA 1246

U v U [2002] HCA 36

Division: Division 2 Family Law

Number of paragraphs: 349

Date of hearing: 18-20 July 2022

Place: Town B

Counsel for the Applicant: Mr Rugendyke

Solicitor for the Applicant: Lindeman Lawyers

Counsel for the Respondent: Mr Todd

Solicitor for the Respondent: Mills Oakley Lawyers

Solicitor for the Independent Children's Lawyer: Ms McGregor, McGregor Family Law
ORDERS

NCC 3498 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR CORDING

Applicant

AND:
MS CORDING

Respondent

AND:
INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE KEARNEY

DATE OF ORDER:

12 September 2022

THE COURT ORDERS THAT:
1.The father shall have sole parental responsibility for X born in 2014 (‘X’) and Y born in 2016 (‘Y’) (collectively ‘the children’).
2.For the purpose of Order 1, the father shall notify the mother in writing of any major long term decisions regarding the children including but not limited:
(a)Any educational decisions for either of the children; and
(b)Any medical decisions for either of the children including specialist appointments or counselling appointments.

3.The children shall live with the father.
4.Notwithstanding Order 1, the children shall remain enrolled and continue to attend Town Z Public School for their primary education.

Term time
5.In the event that by no later than Monday 12 December 2022, the mother relocates and lives within a radius of a 45-minute drive from the place where the children attend school THEN the children shall spend time with her during school terms as exercised by the children’s school (‘term time’) as follows:-
(a)From the conclusion of school (or 3:00pm) Thursday to the commencement of school (or 9:00am) Monday on each alternate week commencing on the first Thursday after the mother relocates; and
(b)From the conclusion of school (or 3:00pm) Thursday to the commencement of school (or 9:00am) Friday on every other alternate week commencing on the second Thursday after the mother relocates.

6.To facilitate Order 5 and within 24 hours of her relocation; the mother shall notify the father (by text message) of her new residential address.
7.To ascertain the resumption of term time spent by the children with the mother in accordance with Order 5, following any of the school holiday periods, the sequence of alternating weekends shall be maintained (although not taken during school holidays) and used in calculating time in these orders.
8.Until such time as the mother relocates in accordance with Order 5 and/or in the event that the mother fails to relocate, and unless otherwise agreed in writing between the mother and the father, THEN the children shall spend term time with the mother from the conclusion of school (or 3:00pm) Friday to 4:00pm Sunday on the third, sixth and ninth weekends PROVIDED THAT:-
(a)The children shall stay overnight in accommodation that is within a radius of a 90-minute drive from the place where the children attend school; and
(b)No less than 4:00pm on the seventh day before the term time is to commence, the mother shall notify the father by text message of her intention to exercise time and the full residential address of the accommodation specified at Order 8(a),

FAILING WHICH and unless otherwise agreed, the father is at liberty to notify the mother (by text message) of his decision to refuse to permit the children to spend time with the mother on that particular specified weekend.

Special occasions and holiday time
9.In the event that by no later than Monday 12 December 2022, the mother relocates in accordance with Order 5 THEN the children shall spend time with the parties as follows:-
(a)During the Autumn, Winter and Spring school holidays –
(i)In 2022 and every following alternate year –
A.With the mother from 9:00am on the day after the last day of the preceding school term until 12:00noon on the middle Sunday; and
B.With the father from 12:00noon on the middle Sunday until the commencement of school (or 9:00am) on the first day of the next school term; and

(ii)In 2023 and every following alternate year –
A.With the father from the conclusion of school (or 3:00pm) on the last day of the preceding school term until 12:00noon on the middle Sunday; and
B.With the mother from 12:00noon on the middle Sunday until 4:00pm on the last Sunday before the new school term commences; and

(b)During the Summer school holidays –
(i)In 2022 and every following alternate year –
A.With the mother from 9:00am on the day after the last day of Term 4 until 12:00noon on 8 January; and
B.With the father from 12:00noon on 8 January until the first day that the children are required to return to school for the commencement of Term 1; and

(ii)In 2023 and every following alternate year –
A.With the father from the conclusion of school (or 3:00pm) on the last day of Term 4 until 12:00noon on 8 January; and
B.With the mother from 12:00noon on 8 January until 4:00pm on the last Sunday before the first day that the children are required to return to school for the commencement of Term 1;

(c)Mother’s Day weekend – with the mother from the conclusion of school (or 3:00pm) on Friday until 4:00pm on Sunday;
(d)Father’s Day weekend – with the father from the conclusion of school (or 3:00pm) on Friday until 4:00pm on Sunday.

10.In the event that the mother fails to relocate in accordance with Order 5 THEN the children shall spend time with the parties as follows:-
(a)During the Autumn and Spring school holidays in 2023 and every following year –
(i)With the mother for ten (10) consecutive nights from 9:00am on the day after the last day of the preceding school term until 12:00noon 11 days later; and
(ii)With the father for the balance of the holiday time and until the commencement of school (or 9:00am) on the first day of the next school term;

(b)During the Winter school holidays in 2023 and every following year –
(i)With the mother from 9:00am on the day after the last day of the preceding school term until 12:00noon on the middle Sunday; and
(ii)With the father from 12:00noon on the middle Sunday until the commencement of school (or 9:00am) on the first day of the next school term;

(c)During the Summer school holidays –
(i)In 2022 and every following alternate year –
A.With the mother from 9:00am on the day after the last day of Term 4 until 12:00noon on 8 January; and
B.With the father from 12:00noon on 8 January until the first day that the children are required to return to school for the commencement of Term 1; and

(ii)In 2023 and every following alternate year –
A.With the father from the conclusion of school (or 3:00pm) on the last day of Term 4 until 12:00noon on 8 January; and
B.With the mother from 12:00noon on 8 January until 4:00pm on the last Sunday before the first day that the children are required to return to school for the commencement of Term 1;

(d)Mother’s Day weekend – with the mother from the conclusion of school (or 3:00pm) on Friday until 4:00pm on Sunday PROVIDED THAT:-
(i)The children shall stay overnight in accommodation that is within a radius of a 90-minute drive from the place where the children attend school; and
(ii)No less than 4:00pm on the seventh day before the Mother’s Day weekend, the mother shall notify the father by text message of her intention to exercise time and the full residential address of the accommodation specified at Order 8(a) & Order 8(b),

FAILING WHICH and unless otherwise agreed, the father is at liberty to notify the mother (by text message) of his decision to refuse to permit the children to spend time with the mother on that weekend.
(e)Father’s Day weekend – with the father from the conclusion of school (or 3:00pm) on Friday until 4:00pm on Sunday PROVIDED THAT if such weekend falls on a weekend that would otherwise be spent by the children with the mother, THEN Order 8 is suspended for that weekend and instead the children shall spend time with the mother on the following weekend in accordance with Order 8.

Changeover
11.Unless otherwise specified within a particular Order, to facilitate time, the mother and the father shall deliver and collect the children at locations as may from time to time be agreed in writing between them and failing agreement then as follows –
(a)where time with the mother or father commences from the conclusion/commencement of school - the party with care will collect/deliver the children from/to school; and otherwise
(b)if the mother does relocate in accordance with Order 5 - all changeovers to facilitate time being spent pursuant to Orders 5 and 9 shall occur at the C Service Station, Town D; and
(c)if the mother does not relocate in accordance with Order 5 – all changeovers to facilitate time being spent pursuant to Orders 8 and 10 shall occur at the Town E Service Centre.

Communication
12.The children shall communicate with the party whom they are not in care of (‘the calling party’) by telephone or FaceTime:-
(a)On each Tuesday and Thursday between 5:30pm and 6:00pm; and
(b)On each of the children’s birthdays, the calling party’s birthday and Christmas Day at times agreed upon in writing by the parties,

AND to facilitate this Order, the calling party shall call the other party’s mobile telephone and the other party shall ensure that the children are available to receive the call and are afforded privacy during the call.

Overseas travel
13.Pursuant to s 65Y(2)(b) of the Family Law Act 1975 (Cth), each parent shall be at liberty to travel overseas with the children for the purpose of holidays.
14.To facilitate Order 13, the parties shall do all acts and things necessary to apply for an Australian travel document or other international passport for X born in 2014 and Y born in 2016 PROVIDED THAT:
(a)Within 14 days of receipt by one party (‘the receiving party’) from the other party (‘the travelling party’) of the necessary documents to apply for and enable the provision of an Australian travel document (‘the application’), the receiving party shall do all acts and things necessary to complete, sign and return the necessary documents to the travelling party;
(b)The travelling party shall be responsible for the costs of the application.

15.In the event that an Australian travel document/s is obtained, the father shall retain that document/s in this possession.
16.For the purpose of Order 13, the travelling party shall give the other party no less than thirty (30) days’ written notice of the intention to travel (‘the Notice’), with the Notice to include:
(a)The particulars of such holiday including a copy of the travel itinerary, country(ies) to be visited and the periods of such proposed travel;
(b)Copies of the confirmed return airline tickets and details of flights and accommodation.

17.Unless otherwise agreed in writing between them, the parties shall only travel overseas with the children during time they would ordinarily be spending with the children pursuant to these Orders.
18.Upon the mother notifying the father that she wishes to travel overseas with the children in accordance with Order 16 THEN the father will provide the mother with the children’s Australian travel documents within seven (7) days and the mother will return the children’s Australian travel documents to the father within seven (7) days of returning to her place of residence.

Injunctions
19.The mother and the father are restrained and an injunction shall issue prohibiting them from:-
(a)denigrating the other party in the presence or hearing of the child/ren and from permitting the child/ren to remain in the presence or hearing of another person denigrating the other party; and
(b)discussing these proceedings in the presence or hearing of the child/ren and from permitting the child/ren to remain in the presence or hearing of another person doing so.

20.The father is restrained and an injunction shall issue prohibiting him from drinking alcohol equal to or above the blood alcohol concentration limit of 0.05 within 24 hours of the children coming into his care and during the time the children are living with him.

Miscellaneous matters
21.As soon as reasonably practicable, the mother and the father shall inform one another of any accident, illness or emergency involving the child/ren being treated by a medical or dental professional or attending at a hospital.
22.The mother and the father shall keep one another informed of his/her residential and postal address, contact telephone number/s and email address/es and notify the other party within 48 hours of any change to their details.
23.Unless otherwise specified, any reference to the mother and father communicating or reaching agreement “in writing” shall include but not be limited to communications via text message.
24.The father shall forthwith do all acts and things necessary to authorise any school attended by the child/ren to send directly and/or grant access to the mother, at the mother’s expense:
(a)Copy/ies of the child/ren’s school progress reports (as these become available);
(b)Copy/ies of the child/ren’s school photograph order forms (if requested by the mother);
(c)Copy/ies of any notice (including about parent-teacher interviews), newsletters or access to electronic school communication applications (apps or portals) through which parents receive information from the school (as may be applicable).

25.The mother and the father are authorised and permitted to attend all functions and activities facilitated by the child/ren’s school to which parents are ordinarily invited or permitted to attend (including parent-teacher interviews) and if there is an event held at the school/s to which grandparents are usually invited to attend, THEN the parties shall be at liberty to inform the children’s respective grandparent/s of such event/s and support their attendance as may be required and/or applicable.
26.To facilitate Orders 24 and 25, the mother and the father are permitted to provide a copy of these Orders to an authorised officer/s of the child/ren’s school.
27.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
28.All outstanding applications are otherwise withdrawn and dismissed.

THE COURT NOTES THAT:
A.By way of explanation of how time will be implemented during term time pursuant to Order 8, if the specified weekend commences on Friday the 14^th, the mother must give written notice to the father by Friday the 7^th.
B.By way of explanation of how time will be implemented during the Autumn and Spring school holidays pursuant to Order 10, if the first day of those holidays is a Saturday then time would commence at 9:00am Saturday and conclude 11 days later at 12:00pm on the last Tuesday of those holidays.

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 Cording & Cording (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE KEARNEY
INTRODUCTION

There are two young girls who love and are loved by their parents. Their mother has already temporarily moved to Queensland and is staying with her partner, but says she will come back if the girls are not permitted to live in Queensland. The father does not want the girls to go and seeks equal time with them. Who should the girls live with and what time should they spend with the other parent?
These proceedings involve a parenting dispute invoking Part VII of the Family Law Act 1975[1] (Cth) between the Applicant, MR CORDING (‘the father’) and the Respondent MS CORDING (‘the mother’).
[1] Unless otherwise specified any reference to legislation shall be a reference to the Family Law Act 1975 (Cth)
Out of respect for each person’s gender and social status, other than parties and the children, persons will be identified by their surnames and where possible there will be an avoidance of the use of gendered pronouns.
There are two children the subject of the dispute, namely X (‘X’) aged eight (8) years and Y (‘Y’) aged six years (collectively described as ‘the girls’).
The girls were independently represented by Ms McGregor (‘the ICL’).
The main issues to be determined by the Court were:-
(a)With whom X and Y should live, in circumstances where the mother’s principal position was to relocate with the girls to the Town X, Queensland and the father’s principal position was for the implementation of an equal time regime in the girls’ current locale;
(b)What time the girls should spend with the other parent if equal time was not ordered?
For the reasons that follow and by way of summary, I will order that:
(a)The father shall have sole parental responsibility for the girls;
(b)The girls shall live with the father;
(c)If within three calendar months, the mother returns to within close proximity of the girls’ school, then the girls shall time with the mother for spend five nights a fortnight in school terms and half school holidays;
(d)Up until the mother relocates (or in the event she doesn’t) then, the girls shall spend time with the mother during school terms on the first, third and sixth weekends provided such time occurs within 90 minutes’ drive from the girls’ school;
(e)The girls will spend large periods of time with each parent during school holidays;
(f)On Tuesdays and Thursdays, the girls shall have communication with the party in whose care they are not in;
(g)Various actions to occur to support the allocation of parental responsibility and to otherwise protect the girls from exposure to parental conflict;
(h)The ICL’s costs application be dismissed.

In order to determine these issues, it is important that I traverse the applicable law.
THE APPLICABLE LAW
In these proceedings, the parties invite me to make a “parenting order” (s 64B) which I can, provided I think it is “proper” to do so in light of the objects of the Family Law Act 1975 (Cth) and the underpinning principles of those objects: ss 65D & 60B. As identified by the High Court in U v U [2002] HCA 36 at [30], the power to make a parenting order is not restricted solely by Div 6 of Pt VII but more fundamentally, it is restricted by the requirements of procedural fairness. Taking that one step further, provided procedural fairness is accorded to the parties, a Court can craft different orders if this is required to satisfy the best interests of the child/children.[2]
[2] U v U at [80]
Any orders I make about a child must be orders determined by treating their best interests as the paramount consideration and in doing so, ss 60CC (2) and (3) set out the matters to which I must have regard. This consideration of the child’s best interests is also mandated within s 65DAA, to which I shall return.
The legislation makes clear that s 60CC(2)(a) is not intended to elevate the paramount consideration as to the benefit of a meaningful relationship for the benefit of the parent, but rather it is for the benefit of the child. For example, see the preamble within s 60B which specifies that the specified objects of Part VII are to ensure that the best interests of children are met.
In Mazorski & Albright [2007] FamCA 520 (‘Mazorski’) Brown J had to determine an interstate relocation case where the subject child was just over two years of age. At paragraph [26], Her Honour said this –
26. What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
(my emphasis)
Put another way, s 60CC(2)(a) does not invite a Court to act on an artificial view that any circumstance which would increase a parent’s involvement with a child must be in that child’s best interests. It may be that to do so would simply increase the child’s potential (if not real) exposure to parental conflict between two people they may love and for whom the child would have adverse feelings including sadness, distress or anger by seeing one parent upset, angry or frustrated by actions or decisions taken by the other parent for whom they share similar feelings. Conversely, a reduction to time does not necessarily mean a reduction in the meaningful relationship between a child and a parent.
The other paramount consideration (which takes precedence over the benefit to the child arising from a meaningful relationship with parents) is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).
Relevantly to these proceedings, ‘family violence’ is defined at s 4AB as meaning violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. For children, exposure to family violence means that they have seen or heard family violence or otherwise experience the effects of family violence: s 4AB(3)
There is no formal definition of ‘neglect’ although the term has been considered by the Full Court in Slater v Light [2011] FamCAFC 1 where it was observed at [37] that:-
37.The term “neglect”, will have a similar meaning to its use in State and Territory child protection legislation. It is intended to be limited to situations where a lack of reasonable care is likely to cause unnecessary suffering or injury to the health of the child.
Whenever the Court is asked to make a parenting order, the Court is required to apply a rebuttable presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility: s 61DA. Section 61B defines “parental responsibility” as encompassing all duties, powers, responsibilities and authority conferred by law upon parents.
Where an order allocates equal shared parental responsibility to a child’s parents, then the Court is obliged to consider both - whether it is advisable and reasonably practicable for a child to live equally with each of their parents, or alternatively, to live with one parent and spend “substantial and significant time” with the other parent: s 65DAA.
“Substantial and significant time” is defined to mean time spent between the child and the parent that includes days falling on weekends and holidays and days that fall outside these periods, and time that enables the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child, as well as allowing the child to be involved in occasions and events that are of special significance to the parent: s 65DAA(3).
When making determinations as to whether a child should spend equal time with their parents or substantial and significant time with a parent, s 65DAA (5) says this:-
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)      how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)      the impact that an arrangement of that kind would have on the child; and
(e)      such other matters as the court considers relevant.
Note:          Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
“Reasonable practicability” is an important consideration in parenting disputes where the Court has to consider a child spending equal or substantial and significant time with each of their parents. As identified by the High Court in MRR & GRR [2010] HCA 4 at [13] & [14] and also within s 65DAA, the Court must consider both questions, namely
·Is it in the “best interests” of a child to spend equal (or substantial and significant) time with each parent pursuant to s 60CC? and secondly,
·Whether it is reasonably practicable for the child to spend equal (or substantial and significant) time with each parent pursuant to s 65DAA(5)?
When considering s 65DAA(1), MRR & GRR at [15], said that the focus was on –
…the reality of the situation of parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
(my emphasis)
The High Court previously considered the issue of relocation in AMS v AIF [1999] HCA 26 (‘AMS v AIF’) where at [47] and [191] the High Court rejected the proposition that a parent needed to demonstrate “compelling reasons” for the relocation of a child’s residence.
In AMS v AIF, Kirby J eruditely said this about the issue of relocation –
111.Behind the constitutional and other legal arguments of the parties lies a difficult problem. … On the one hand, the best interests of a child ordinarily favour its right to know, and to have regular contact with, each parent whilst it is growing up. On the other hand, such rights exist in a society whose members enjoy a high measure of freedom of movement, which is not lost by reason only of the responsibilities which go with custody and guardianship of a child.
144.… a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child's welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides…
145.… One of the objects of modern family law statutes … is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents...
(my emphasis and footnotes omitted)
Relevant to the parties’ various proposals which will be canvassed shortly; in U v U Gaudron J said this -
37. It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated. That is so whether it is the mother or the father who wishes to relocate. So much was made clear in AMS v AIF.
38. In the present case, the need to give proper consideration to the wishes of the parent was not the only reason why each of the proposals had to be separately evaluated. Rather, in a context in which each of the proposals involved some disadvantage for N (the child), as the trial judge acknowledged, a determination could only be made as to what was in her best interests by separately evaluating each of them.
(my emphasis and italicise with footnotes omitted)
In Taylor & Barker [2007] FamCA 1246 the Full Court expressed the following about the approach to be taken to disputes involving relocation:
62.…given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsection (2) (“primary consideration”) and subsection (3) (“additional considerations”) of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.’
In Star & Duggan [2009] FamCAFC 115 at [38], the Full Court set out a ‘logical approach’ in addressing the relevant legislative provisions at [38], being 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.
In Hepburn & Noble [2010] FamCAFC 111 the Full Court preferred this approach over the previous approach in A & A: Relocation Approach (2000) FLC 93-035.
The Full Court in Franklyn & Franklyn [2019] FamCAFC 256 at [27]-[28] said this:
27.There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207-208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
28. While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U [2002] HCA 36; (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223-224, 231-232; Sampson and Hartnett (No.10) [2007] FamCA 1365; (2007) FLC 93-350; Zanda & Zanda [2014] FamCAFC 173; (2014) FLC 93-607 at [132] – [136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262).
(my emphasis)
There is no legislative definition of ‘relocation’ and ‘relocation cases’ are not a special category of case and there is no presumption for or against a parenting order involving relocation.[3]
[3] Morgan & Miles [2007] FamCA 1230 at [72] & [73]
If after considering and rejecting firstly equal time and secondly ‘substantial and significant’ time, then the allocation of less than ‘substantial and significant’ time to one parent is ‘at large’.
THE EVIDENCE
The father read and/or relied upon the following documents:
(a)Further amended initiating application filed 20 June 2022;
(b)Affidavit of Mr Cording filed 20 June 2022[4];
(c)Affidavit of Ms F (‘F’) filed 4 August 2021[5];
(d)Outline of Case of the father filed 12 July 2022 – marked exhibit ‘F1’;
(e)Various exhibits marked from ‘F2’ to ‘F4’.
[4] Referred to as ‘C’ with paragraphs and annexures identified in square brackets
[5] Referred to as ‘F’ with paragraphs identified in square brackets
The mother read and/or relied upon the following documents:
(a)Amended response to initiating application filed 24 June 2022;
(b)Affidavit of Ms Cording filed 27 June 2022[6];
(c)Affidavit of Mr P filed 24 June 2022;
(d)Outline of Case of the mother filed 11 July 2022 including the Minute of Order (alternative proposal) circulated to the Court and parties on the last day of the trial – marked exhibit ‘M1’;
(e)Various exhibits – marked exhibits ‘M2’ to ‘M5’.
[6] Referred to as ‘C’ with paragraphs and annexures identified in square brackets
The ICL read and/or relied upon the following documents:
(a)Outline of Case of the ICL filed 11 July 2022 – marked exhibit ‘ICL1’;
(b)Proposed minute of orders sought by the ICL – marked exhibit ‘ICL2’;
(c)Notice of Costs of the ICL – marked exhibit ‘ICL3’;
(d)Various exhibits – marked exhibits ‘ICL4’ and ‘ICL5’.
All parties sought to read/rely upon the family report dated 24 October 2020 - marked Exhibit ‘A’[7]; which was prepared by regulation 7 family consultant Mr G (as he then was and to whom I will now refer to as ‘the child expert’).
[7] Referred to as ‘FR’ with numbered paragraphs identified
My observation of the parties was that at times both of them were less than forthright about events that they perceived cast them in a poor light. Where I was not satisfied that their evidence was credible or otherwise should not be preferred over another version or document, I will do so and explain the reason why.
I found the child expert to give measured and thorough evidence with the basis of his opinion clearly expressed.
Before setting out a chronology of the parties’ circumstances I will canvass their respective proposals.
THE PARTIES’ PROPOSALS
As a result of discourse between bar and bench during closing submissions, and noting the decision in U v U, procedural fairness was given to the parties about options that the Court was contemplating in addition to the parties’ proposals. In summary, these included –
·The girls living with one parent and spending substantial and significant time with the other each fortnight during school terms, being from after school Thursday to before school Monday in alternating weeks and then from after school Thursday to before school Friday in every other week – provided this was reasonably practicable;
·The Christmas period not being divided so that whomever they are spending time with at that time, has the flexibility to travel away;
·The division of time over the Christmas holiday period being prescribed by the fixing of an arbitrary middle date such as 12:00 noon 8 January with the holiday period otherwise clearly defined;
·The division of time over the Autumn, Winter and Spring school holidays such that the girls spend 10 nights with the party they do not live with, in the event that the girls live interstate from one of the parties.
Having reflected on my alternative proposals, all parties agreed that if I did not find that one of their respective primary proposals was in the best interests of the girls, then (provided the appropriate findings could be made) it was open for me to allocate substantial and significant time irrespective of with whom the girls lived.
The father had a primary proposal and an alternative proposal as contained within his further amended initiating application referred to previously. Neither proposal canvassed the prospect of him relocating to Town X.
As sometimes happens, as a result of the evidence, the father’s proposal changed by the time of closing submissions. In summary, as an addendum or to otherwise give more certainty to the father’s proposal, I heard that –
·the ‘reasonably practicable’ geographical area within which both parties should live in order to support the girls living equally between them was within 45 minutes’ drive of Town Z Primary school (‘the girls’ school’);
·in the event the mother did not return to the local area then it was practical that the distance they should have to travel in order to spend weekend term time with the mother was no more than a 90-minute drive from the girls’ school;
·in order to give certainty of outcome to the family, any order for equal time should be prefaced on the mother returning to the local area by the end of Term 3 2022; and
·the father agreed with the ICL’s proposal for how the girls should spend Christmas time.

Where the following broad brush approach does not specifically reference the above oral submissions, I have nonetheless included them in my consideration of the father’s proposal –
·The parties to have equal shared parental responsibility;
·Provided the mother’s residence was no more than a 45-minute drive from the girls’ school’)–
oThe girls to live ‘week about’ from Monday to Monday;
oThe girls to spend time with both parties over the Christmas period;
oChangeovers to occur at the C Service Station at Town D if the girls were not at school at the commencement/conclusion of time;
·If the mother’s residence was more than a 45-minute drive from the girls’ school -
oThe girls to live with the father;
oThe girls to spend time with the mother for three weekends (Friday to Sunday) in each school term provided the time was spent within 90 minutes’ drive from the girls’ school and at any other reasonable time, on the mother giving notice of her intention to do so;
oChangeovers to occur at the Town E Service Centre at times to be agreed;
·The girls to spend half school holidays with each party;
·The girls to spend the Father’s Day weekend with the father and the Mother’s Day weekend with the mother;
·The girls to have communication with the party with whom they are not in the care of on alternate days, on their birthdays and on each party’s birthday;
·The parties to be restrained from denigrating each other in the presence of the girls;
·The parties to provide information to each other to facilitate these orders.
Again as a result of the evidence, the mother’s proposal changed by the time of closing submissions. In essence, the mother’s primary proposal was set out within the draft minute of order contained within her Outline of Case document and supplemented by an alternative proposal[8] (in the event that the girls were not permitted to relocate to Queensland).
[8] Exhibit ‘M1’
In summary, the mother’s primary proposal was as follows –
·The mother to have sole parental responsibility;
·The girls to live with the mother in Queensland;
·Provided the father’s residence was within one hour of Suburb M then –
oThe girls to spend time with the father during school terms for five nights a fortnight (Friday to Monday + Wednesday to Friday);
oThe girls to spend time with the father for half of the school holidays;
oThe girls to spend time with both parties over the Christmas period;
oThe girls to spend Father’s Day with the father and Mother’s Day with the mother;
oChangeovers to occur at the McDonalds Restaurant at Suburb J;
·If the father’s residence was more than one hour from Suburb M then -
oThe girls to spend time with the father during school terms on specified weekends;
oThe girls to spend time with each party during the school holidays; and
oChangeovers to occur at the Location K at Town L;
·The girls to have communication with the party with whom they are not in the care of on Tuesdays and Thursdays;
·The father to be restrained from consuming or being in any way affected by alcohol or illicit drugs at least 24 hours before and during any time the girls spend with him;
·The mother to be permitted to obtain passports for the girls and with notice, to take the girls overseas on holidays;
·The parties to be restrained in various ways to quarantine the girls from parental conflict.
In summary, the mother’s written alternative proposal was further articulated by her counsel during closing submissions to encompass the following –
·The mother to have sole parental responsibility;
·The mother to have until 7 October 2022 to relocate her residence to within a 45-minute drive of the girls’ school and up until then, the existing regime of time remain as ordered in June 2022;
·In the event the mother does relocate her residence as specified, then the girls should live with her and spend substantial and significant time with the father;
·The use of a parenting app (at the father’s cost); and
·The ability for the mother to travel with the girls to and from Queensland on her weekends on condition that that the girls’ school days would not be interrupted.
The ICL’s proposal was in four parts including scenarios where the parties lived within close proximity to each other through to each of them living in different states and what would happen if the Court ordered the girls live either with the mother or the father and finally the making of a series of proposed orders irrespective of with whom the girls lived.
The ICL’s first proposal was prefaced on both parties living in the girls’ local area and provided for the girls to live week about (Monday to Monday) during school terms and have half school holidays with each of their parents.
The ICL’s second and third proposals were prefaced on the Court determining that the girls should live with one or other of the parties and in those circumstances then –
·The ‘lives with’ parent should have sole parental responsibility;
·The girls should have regularised time with the other parent (provided, in the case of the mother that she secured accommodation in the local area);
·The girls should have various iterations of holiday time with each parent.
Finally, and irrespective of with whom the girls lived, the ICL proposed that –
·The girls be able to communicate with each party at all reasonable times and on specified special occasions;
·Various restraints be imposed; and
·The parties to be able to provide information to each other to facilitate the orders and commit to family dispute resolution in the event they fell back into dispute about these Orders.
Having tendered exhibit ‘ICL1’, the ICL was clear to say that if the mother did not return to the local area, she would not support the girls living with the mother in Queensland.
In order to consider the various applications, it is necessary for me to set out a chronology of the parties’ circumstances.
Statements of facts set out below shall constitute findings of fact unless otherwise expressed.
CHRONOLOGY
In 1990 the father was born and he is now 32 years of age.
In 1992 the mother was born and she is now 30 years of age.
In mid-2009 the parties commenced co-habitation and were married in 2013.[9]
[9] RS [5]
In 2010 the parties moved to Town N and sometime later they moved to Town O where the father worked on a construction site.
Between May 2012 and August 2013, the father was attended to by staff from the Queensland Ambulance Service (‘QAS’) for a range of incidents including a burn injury from a welding incident (May 2012), lacerations from a motorcycle incident and on one occasion when the father sought assistance for physiological symptoms which were described as the father arriving at work and immediately feeling stressed, starting to get upset, having pain on the right side of his chest and starting to sweat (August 2013).[10]
[10] Exhibit ‘F4’
Under cross-examination the father denied (as asserted by the mother) that whilst the parties lived in Town O she would take him to the ambulance station on no less than three occasions per week.[11]
[11] RS[37]
In cross-examination, the father said that whilst he was working in construction he suffered anxiety and took prescribed medication to treat his symptoms. He denied that he had taken a handful of tablets in an attempt to end his life.[12]
[12] C [41a.]
Returning to the August 2013 QAS intervention, having initially presented as being distressed, the QAS business record shows the father as being very open about his life issues and presenting as having calmed down and feeling much better after speaking with QAS staff. From the face of the record it appears the father self-reported that he had been bottling up his emotions and not wanting to stress the mother about it because she was not having a very good time in her first trimester.[13]
[13] Exhibit ‘F4’
The mother contended that a QAS staff member had also attended upon the father at other times, all of which related to mental health issues. The mother agreed that the person she initially described as “Ms Q” was one and the same as “Ms Q”, who apparently produced some of the reports referred to earlier in this judgment. The mother was rigorously cross-examined about her allegations and she had no logical explanation as why Ms Q would not have recorded these alleged incidents given that it appeared from the tendered material that she had on occasion been the author of some of those tendered records. Put simply, the mother’s evidence was unsatisfactory.
In October 2013 the parties moved to Town Y. The mother says this move was brought on by the deterioration in the father’s mental health and the father says it was to allow the parties access to more family support.
In 2014, X was born.
In cross-examination, the mother was taken to her first affidavit where at paragraph 21, the mother recounted an incident in February 2018 when she found the father attempting to hang himself in a walk-in wardrobe whilst they had friends over in their home. She said that the friends had helped her stop him from going through with his attempt. She was asked if this incident was one and the same as the incident described at paragraph 41.b. of her trial affidavit and she agreed it was.
The allegations at paragraph 41 of the mother’s trial affidavit, were put to the father who denied them. The allegations included the father (in the presence of one or both mutual friends) –
(a)Attempting to have sex with the mother in the lounge room;
(b)Yelling and screaming at the mother;
(c)Hitting the walls in the hallway; and
(d)Standing in the walk-in wardrobe with a belt around his neck (during which time the mother observed the male friend trying to take off the belt).
The mother was cross-examined about the disparity of her reporting of the incident, between her first affidavit and her trial affidavit (both of which were prepared with the assistance of lawyers). The mother was asked about why she did not call either of her friends to support her version of events. Having considered the mother’s evidence and her presentation during cross‑examination I am satisfied that no plausible explanation was given by the mother to explain the expansion of events about this incident from one affidavit to the other, particularly given the serious nature of the allegations being made against the father and that both affidavits were prepared by solicitors. In short, I found the mother’s evidence unsatisfactory.
In 2016, Y was born.
The father agreed that on 16 October 2017 he had voluntarily attended the Town D Hospital to get some mental health advice about panic attacks he had been experiencing. He agreed that he had also told staff that he was still feeling the effects of excessive alcohol consumption following a bender at a friend’s house. When taken to a note about him having suicidal thoughts earlier in the day, the father said he couldn’t recall the conversation and that he had been in the middle of a panic attack.
Both parties were cross-examined about the veracity of the contents of paragraph 44 of the mother’s trial affidavit. Their evidence remained conflicted with the mother standing by her evidence and the father denying (in the main) the allegations that he had perpetrated family violence during the relationship.
The father did agree that he had punched a hole in a door when X was about four (4) years of age but denied there had been multiple holes punched into a wall and the door. His evidence was somewhat consistent with paragraph 23 of the family report where he was reported to have said he punched a hole in a wall on one occasion. The father was cross-examined about the allegations contained within paragraph 46 of the mother’s trial affidavit and he denied the allegations of verbal and emotional abuse contained therein. Similarly the father denied the allegations of threats made by him to the mother.[14]
[14] C[50]
The mother was taken to paragraph 27 of the family report and agreed she had told the child expert of three occasions when the father had punched holes in doors. The mother’s trial affidavit deposes to her experiencing fear at the property damage caused by the father.[15] The mother also confirmed the contents of paragraph 28 of the family report which was to the effect that on one occasion the father had grabbed her by the shoulders (whilst intoxicated) but that otherwise he had never punched, choked, kicked or spat at her.
[15] C[44e.]
The mother was challenged about the escalation in her reporting of family violence as between her first affidavit, the family report and her trial affidavit. The mother maintained that in the past she had been afraid, but with her current legal representation helping her to write the affidavit, she was no longer in that emotional state.
When reflecting on the mother’s evidence I found her explanation for the lack of detail in her account of family violence to the child expert as troubling, particularly when she then resiled from her earlier evidence about the accuracy of paragraph 28 of the family report, now saying that the statement was untrue.
In May 2018, the parties separated. At the time, the parties reached an informal arrangement whereby the girls lived equally between the parties on a rotating cycle of two nights in one household, followed by two nights in the other.[16] At about this time, the father said that he saw a new general physician who changed his existing anxiety medication to Sertraline and he continues to take that medication as prescribed and agreed that the medication stabilises his nervous system.
[16] C[6], RS[61]
The mother agreed that for a little while before the events around the Event R (‘the Event R’), the duration of the girls’ stay with each of them was increased by agreement to three nights rather than two.
It was put to the mother that she would not have agreed to the girls spending time with the father in the way that they did if she thought that they would be exposed to various risk factors in his household including excessive alcohol use, illicit substance use and poor mental health. The mother’s response included that the father’s mental health “was how it was the entire time. We didn’t know any different…that was our normal.”
In September 2018, the parties separately attended the Event R. The father was cross-examined about taking cocaine at the time, a disclosure that was reported in the family report. [17]
[17] FR [40]
The father was clear to say that other than a teenage dalliance with marijuana he has not taken any illicit substances either before or after the September 2018 incident. He deposed to having submitted to three illicit drug screen tests that all showed negative results.[18]
[18] C[15]
It is trite to say that the father’s trial affidavit was “light” on exploring the events surrounding the Event R and in cross-examination he said that paragraph 44 of his trial affidavit was a summary of what happened.
The father agreed that he told the mother he would kill himself the day after the Event R and she would be burying him the next week. He denied that in doing so, his intention was to intimidate or coerce the mother, saying instead that when he said these things to the mother, he was conveying his upset at the breakdown of the relationship, that it was his “last ditch” attempt at reconciliation and that in hindsight it was a silly way of going about it.
The father agreed that members of the New South Wales (‘NSW’) Police had found him and that he had been unresponsive. He agreed that he had been taken to hospital and that bruising had been observed around his neck. The father said that his mobile phone had gone down an embankment and he had gone through a fence to try and retrieve it, during which time he had sustained the injuries to his neck. The father denied that he had attempted suicide.
When taken to hospital medical records that suggested he had a history of attempted self-harm, the father denied this was accurate or that he had in any way contributed to the making of that record.
When taken to an aspect of the medical record which recounted the history as given by the paternal grandparents, he agreed they may have said that he wanted things to end but that this was not a reference to the taking of his own life, but rather it related to the conflict between himself and the mother. When asked about this same entry, F denied saying words to that effect or that the father had ever expressed wanting to self-harm or commit suicide. When other medical records of comments she or her husband were alleged to have said about the father, F was clear to say that she could not recall saying any of those things.
I am satisfied that the father’s mental health at this time was perilous and at times his evidence was unsatisfactory, particularly in light of the independent records put to him.
On 25 September 2018 the father commenced a therapeutic relationship with Ms S (‘S’). S gave oral evidence and said that between 25 September 2018 and 23 August 2021, she had spoken to the father about 18 times. S told the Court that in October 2018 the father completed a Depression Anxiety Stress Scales test (‘DASS’) and registered a “mild” score for stress and “normal” scores for depression and anxiety.
On 8 November 2018 the father initiated parenting proceedings seeking unsupervised time with the girls on an interlocutory basis and equal time once Y commenced kindergarten, which demonstrated to me that at that time he had no insight into his own behaviours and their impacts on others. However, at trial, it appeared his attitude may have changed insofar as the mother was not cross-examined about her decision to suspend the girls’ time with him for about five (5) months after the Event R - although I make no particular finding in that regard.
In December 2018 the mother says that she commenced a de facto relationship with Mr P (‘P’).[19]
[19] C[8]
On 25 March 2019, with both parties legally represented, interlocutory parenting consent orders were entered into (‘the March 2019 orders’) which in summary provided for –
(a)The parties to have equal shared parental responsibility;
(b)The girls to live with the mother;
(c)The girls to spend time with the father in a regime starting with overnight fortnightly weekend time of two consecutive nights and increasing to four nights a fortnight being three consecutive nights each alternate weekend and one mid-week overnight in the other week;
(d)Communication between the parties and the parties and the girls;
(e)The father to submit to random drug tests on 24 hours’ notice from the mother.
The mother agreed that she entered into the March 2019 orders because she considered that the father’s mental health had stabilised and that the girls would be safe spending time with the father. The mother was clear to say that she considered the drug screen order was a protective factor against her concerns about the father’s history of illicit drug use.
In July 2019, P moved to Town T, Queensland so that he could be closer to his children (who he had agreed could move with their mother to Queensland so that she could be closer to her support network). The Court heard that despite their geographical distance, the mother and P still travelled to see each other every weekend up until June 2021.
After P moved to Queensland, the mother lived with the maternal grandparents for a little while.
On 26 November 2019 the proceedings returned to Court, with interlocutory orders made including that the parties were to enrol X in the girls’ school with a notation that the mother had no intention (in the foreseeable future) of moving away from Town Z.

By early 2020 the mother said that she had spoken to the father over the telephone about relocating and that he had said in reply that he would “definitely consider it, nothing is really keeping me here”. The father denied saying this and instead said he had told her he would not agree to the girls relocating. In the context of paragraph 67 of the family report, the father confirmed his evidence at paragraph 55 of his trial affidavit that he had never told the mother that he would relocate to Queensland. The father agreed that he had told the child expert that he had briefly thought about a relocation and described this as being for a “millisecond”. The parties’ disparate evidence about the import of their discussion with each other at the time, is but one of many examples of their poor communication.
On 12 March 2020, interlocutory parenting orders were made by consent to the effect that when the girls were in the care of the father he would not drink alcohol and he would ensure that the girls wore appropriate protective equipment.
On 10 June 2020 the mother sent the father a text message which prompted a chain of text messages on 22 and 23 June 2020, the relevant aspects of which are set out below –
M: How long do you have this Christmas break for holidays? I’m trying to put a plan together for the girls and hopefully come up with something more suitable. Can you please send me any holidays you have or can take over Christmas and any other school holidays you will be allowed to have off next year please.
…..
M:Hi [Mr Cording], I’d prefer if we didn’t discuss days and holidays etc in front of the girls unless it is locked in. I asked about the holidays so I can know in general how much time and roughly when you have off during the year and next year do (sic) I could come up with a suitable plan and hopefully will have a new plan sorted by court so it can be easy and stress free. I have plans theses (sic) holidays. The time you have will stay the same which is every second Thursday and alternate every second weekend. We can discuss more about the end of year holidays and parenting plan for future.
M: Hi [Mr Cording], at some point this week can we go over plans for next year?
F:Yeah sure what do you have in mind?
M:I’m thinking for us to discuss this properly we should attempt going to mediation?
F:That depends on how far apart our views are. Firstly can we talk about October holidays
M:We won’t be talking about any holidays until we can come to an arrangement for next year. There are no holidays in the orders, I have given you extra time already.
F:What about next year I’m confused what are we trying to sort out
M:Are you willing to do mediation or we can work it out in person with another person to witness?
F:Isn’t txt better but I don’t know what we’re trying to sort I’m interested in holidays time
M:What we have spoken about previously on the phone about relocation. You know we have discussed this. Currently there are no holidays and only every second weekend abd (sic) every second Thursday.
F:Yeah that’s correct I don’t want to move and I don’t want the girls going to the [Town X] they are settled in there (sic) schools we have family here
The mother was cross-examined about this issue and she accepted the veracity of the messages. At times her answers were vague, which is understandable given the transpiration of time that has since occurred. At one point, the mother explained that one of the motivations for asking about holidays was that P’s children experience different school holiday times to the girls and she was trying to work this out all the different times.
Nonetheless a reading of the text messages leaves open the possibility that the mother had formed a view that she wanted to relocate in 2021 and was offering the father holiday time (for which there were no formal orders in place) provided that the relocation issue was resolved. When the mother’s true motivation around the text messages was put to her, the mother replied that it must have been a miscommunication but on reflection the mother conceded that at least in the back of her mind, she was thinking about a relocation.
There was no resolution and so the father filed an interlocutory application and the mother filed material in response. Ultimately, more interlocutory parenting orders were made on 2 December 2020 permitting the girls to spend time with each party week-about during the Christmas school holiday period, with regularised communication to occur between the girls and the parties during those holidays.
On 24 October 2020, the child expert produced the family report, following interviews that were conducted on 15 October 2020.
The child expert was taken to paragraph 97 of the family report in which he opined that whilst the parties may have different expectations regarding the children, it would be difficult … to suggest that the father’s parenting of the subject children is not good enough. The child expert was informed that since the girls had started living with the father full-time, their school attendance was 100%, there had been no involvement from the state welfare authority and there had been no concerns reported by the school about the girls’ presentation or of being unusually unwell. The child expert said that this was significant in the context of the mother’s concerns as elucidated during the family report process.
At paragraph 41 of the family report, the father was reported to have said he consumes four stubbies of beer daily and on weekends he would have a couple more. He reportedly told the child expert that once a week he would be intoxicated and that at the time of the parties’ separation (some two years previous) he would have consumed more alcohol. He reportedly told the child expert that he does not drink alcohol at times when the girls are in his care, consistent with the existing orders at that time.
S confirmed the contents of her report dated 20 July 2021, which was annexed to the father’s trial affidavit.[20] S said that earlier that year (in February), the father had participated in a DASS test which did not show any significant results or levels insofar as anxiety, depression or stress.
[20] C[45] & annex. G
S agreed that her report and observations were based on self-reports from the father. She said that the father had told her about the events around the Event R including that the father had told the mother of his intention to kill himself and that he had been hospitalised. S was clear to say that the father’s behaviour was consistent with him suffering emotional fragility during the course of a relationship breakdown. S agreed that the father’s statements to the mother were reflective of an immature interpersonal strategy. S agreed that the father had behaved in a controlling manner but conditioned her response by citing that it was in the context of a relationship breakdown and an emotional argument.
S was asked if the father had ever recounted expressing suicidal ideation other than at the time of the Event R, to which she said “no”. The hospital records were put to S (in terms of the father’s reported history of suicidal ideation). S was clear to say that there are two types of emotional dysregulation including –
(a)situational dysregulation; and
(b)character illogical dysregulation (endemic).
In the event that the Court found that the mother’s version of events was accurate, insofar as the father having a history of suicidal ideation, S was asked whether she would alter her opinion about the father displaying situational dysregulation. S made appropriate concessions that the behaviour would be more than simply situational dysregulation.
S was asked about the father’s accounting of his alcohol use. S agreed that the father had not told her that he overused alcohol. S agreed that alcohol use can be a form of self-medication in patients who suffer anxiety and that this was not appropriate. S said that if the father had disclosed excessive alcohol use to her, she would have recommended against him continuing to engage in this behaviour.
At this point, S’s willingness to make concessions adverse to her patient’s interests was apparent and her evidence did cause me to place less weight on the substance of her report, particularly insofar as her conclusion that the father does not have a problem with over use of alcohol. His use of alcohol is minimal and normal.
S was clear to say that other than the events around the Event R, she had not been made aware by the father of any other mental health incidents or admissions. S said that the father presented as very stable in his presentation to her.
On 12 March 2021, interlocutory orders were made (‘the March 2021 orders’) including for –
(a)The girls to live with the mother and spend four nights a fortnight with the father (from Friday to Monday in week one and from Thursday to Friday in week two), as well as half school holidays with each party;
(b)The allocation of a trial in August 2021; and
(c)Notations were made to the effect that the father would adhere to the treatment regime specified therein for Y and X until, in the case of X the alleged cause of the treatment plan (namely coeliac disease) was ruled out
In the mother’s trial affidavit she said that she had never withheld the girls from the father nor not delivered the girls to the father as per Court orders.[21] The mother stood by her statement.
[21] C[102]
The mother was cross-examined about two events, one of which is now set out. The mother was asked about her decision to take the girls to Queensland on Thursday 18 March 2021, which was the subject of paragraph 36 of the father’s trial affidavit. In his affidavit, the father annexed copies of text messages between the parties.[22] The text messages showed the mother asking the father to bring the changeover day forward to Thursday because it was too dangerous to be driving in the current weather with the risk of roads closing. The imperative appeared to be twofold, firstly to get the changeover done before roads closed, and secondly to avoid the girls missing out on time with the mother for the following week because the mother could not reach them on the Friday.
[22] C annex “E”
The mother agreed that despite her concerns about the weather and the roads, she then drove the girls to the Town X without notice to the father. In explaining why she didn’t tell the father, the Court heard that one reason was that the trip had not been planned, and another was that she didn’t know what the father’s reaction would be. When giving her answers, the mother presented as defensive and in combination with the written evidence, her reasoning defied logic. Even if the trip had been spontaneous, it is implausible to think she would not have expected the father to reject the trip given the safety concerns she herself had raised with him.
The mother’s decision was both disrespectful to the co-parenting relationship the parties had been operating on since the March 2019 orders were made, as well as being disingenuous and lacking insight into the possibility that her decision to place her needs first could have placed the girls at risk from the weather conditions that the mother herself recognised in her text message to the father.
On 5 April 2021 (Easter Monday), and in accordance with order 4 of the March 2019 orders, the mother sent a text message to the father’s solicitor requesting the father submit to a drug screen test. The father said that he did not receive the request that day but on the day after he did get the request he submitted to urinalysis. He agreed that he had not given any evidence in his affidavit about this. I am unsure what finding I can make about this evidence, particularly in circumstances where for the best part of five (4) years (since September 2018), there is no independent evidence to suggest that the father has been consuming illicit substances, nor any evidence of a pattern of non-compliance with orders.
On 15 September 2021, after a defended hearing, final orders were pronounced by the Court (‘the final orders’) which included provision for the parties to have equal shared parental responsibility and for the girls to live equally between them on a week-about arrangement from after school Monday to the commencement of school the following Monday and for half school holidays, with start, middle and end times specified (depending on the whether the holidays fell at the end of term 4 or otherwise).
Between S’s report in July 2021 and up until shortly after the trial, the father told the Court that he had infrequently been in contact with S and that now he no longer required regularised sessions with her.
In November 2021/December 2021, it appeared to be common ground that the mother relocated herself and the girls and they moved into P’s home (which he continues to share with his children when they spend time with him).
In cross-examination, the mother denied that her actions may have been de-stabilising for the girls, saying it would be more de-stabilising for them if they were separated from her. The mother asserted that at all times this was a temporary arrangement until she could secure accommodation back closer to (or within) the township of Town Z.
The mother was taken to annexure B of her affidavit filed 30 May 2022 which suggested that her previous accommodation had been extended to about 26 November 2021.
The mother was taken to her trial affidavit where she sent the father a text message on 25 November 2021 asking if she could take the girls to Queensland the next day.[23] The mother was asked to confirm that nowhere in those text messages did it show that she intended to move up to Queensland (either as a temporary measure or something else more permanent).
[23] C [87], annex ‘C-5’
The mother agreed it was not apparent from the text messages, but said that she had discussed this with the father previously.
The mother was challenged about this and despite her saying that the father’s response (allowing her to take the girls on Friday) was informed by him already knowing she was moving up to Queensland; I found it implausible that he would agree to her doing so and then make clear that he was not going to change their school holiday proposals. From the way this dispute has been so vigorously prosecuted including by way of an appeal, it was implausible that the father would have failed to express some disquiet about the mother’s residence no longer being within a proximity that could affect an equal time regime with the girls remaining in their current school. This implausibility was reinforced when the mother was unable to say what the father’s response was after she had allegedly told him in advance of 26 November 2021 that she had lost her accommodation. Once again, the mother’s evidence was unsatisfactory.
The following Monday being 6 December 2021, the mother informed the father that she would be home-schooling the girls for the rest of the week following a school strike on Tuesday 7 December 2021. She did so via a text message which formed annexure ‘O’ to the father’s trial affidavit and is set out below –
Monday 06.12.2021 at 4:35pm
The mother: Hi [Mr Cording], as you know there’s a school strike tomorrow at the school. I’ve tried to get school work for home-schooling but the teachers said they’ve just been doing movies and reading books etc. I’ll do the same. But wanted to let you know I’ll be with them in QLD after the strike home schooling as we have no where else to go. I’ll have them in school Monday for you to pick up. Also trying to work out if we can arrange Christmas Day.
The father:No girls need to be at school wed, thurs, Friday
The mother: Well we have no home. I’m home schooling them even though the teachers said they haven’t been doing work.
Unfortunately we are not providing work for home schooling on strike day. At this point on the term majority of our work is Christmas related, songs, stories and short films. …
(my emphasis)
From the evidence presented before me, I find that this was the first time the mother told the father in writing about her predicament, leaving him with no options about the reality that the girls would be spending the last three days of their school week away from their friends and teachers and instead spending the time with the mother in Queensland. In other words, it was presented as a fait accompli. The manner in which the mother gave her evidence left me with the impression that she was unrepentant about the situation.
On 17 December 2021, the father filed contravention proceedings.
On 3 February 2022 the mother had a conversation with the school principal at the girls’ school, Ms U (‘U’). The mother agreed that in the short term, U agreed to support the girls being home-schooled in Queensland during her week.
On 16 February 2022 the mother and U had another conversation during which the mother said that following the appeal hearing on 10 February 2022 it may take a month for the Full Court to make a decision. In that context U raised the possibility of the girls staying with their father so they could attend school in person. The mother agreed that she had rejected that proposition.
It was common ground that on 28 February 2022 extreme weather was causing flooding in Queensland and NSW. Paragraph 99 of the mother’s trial affidavit sets out a series of text messages between the parties which suggests that because the mother could not reach Town Z, the parties would swap weeks with the net effect being that the girls would stay with the father for two consecutive weeks and then spend the third week with the mother. The paragraph then records the mother’s distress when the father changed his mind, meaning that the girls would not see the mother for three consecutive weeks until 14 March 2022.
When challenged about these events, the father said that he agreed he had reneged on the agreement but that this was due to his concern that the mother would not facilitate the girls returning to school because she would not say if they were staying locally during her week and he was worried that if the weather persisted the girls would be cut-off from returning from Town X back to the girls’ school at the start of the following school week. The mistrust between the parties was now seriously impacting on their ability to co-parent and comply with the final orders.
The mother says that as a result of a breakdown in these negotiations, the girls did not see her for three weeks and upon their return, at paragraph 127 g. of her trial affidavit she records various statements the girls said to her that caused her concern. When this paragraph was put to the father, he denied the substance of the girls’ alleged disclosures to the mother. There was no further explanation from the mother about what her concerns were and no relief sought by her that appeared to address the allegations. In that context it was troubling that the father was questioned about these events.
It was common ground that at some point the parties commenced using a communication book but that each party had different attitudes about what information should be disclosed with the communication book and they had ceased the practice although even the circumstances around this were contested in cross-examination.
In any event, when the communication book was still in use in March 2022, the father accepted that the girls had been in his car when he had “bumped” into his friend’s car whilst reversing but the girls had not been affected by it and he had not written of the incident in the communication book nor informed the mother about it. When the issue was explored, the father said that if he thought it was a major issue he would have informed the mother about it but in the context of bumping a car bumper bar, he didn’t think it warranted the anticipated “ten text messages” he would have endured as a result of disclosing the incident to the mother which the mother described the girls telling her as them having been in a car accident.[24] Even after being invited to reflect on whether the news would have been better communicated had he told the mother, (rather than the girls) the father’s response was somewhat dismissive. This was another example of the parties’ disparate views about what should be communicated between them about the girls and the flow-on effects they perceive will occur if such communication occurs.
[24] C [127a.xiv]

Despite the lack of supportive evidence from the mother about the nature of the girls’ relationships with the paternal grandparents, I am satisfied that if the girls relocate they will experience a sense of loss by not having the same physical proximity and the sharing of activities with their grandparents that they currently do and have done for years.
I have reflected on the effect on the girls’ welfare and best interests arising from the mother’s parenting capacity being affected either because they move to Queensland to live with her or not. [49]
[49] See AMS v AIF at [145]
I heard and carefully considered the submission that any adverse finding about the mother’s current capacity would be capable of a favourable adjustment if the girls are able to relocate. The evidence before the court did not reach so high a bar as to allow a finding that the mother’s current poor attitude will change in any substantial way. The mother said that to support the girls’ relationship she would ensure they spent time and had communication with the father. The mother’s trial evidence had a strong focus on all the actions she has done to support the girls’ relationship with P and his family and there was nothing of any particular substance about how she would support the father’s role in the girls’ lives moving forward. Even the act of compliance with past court orders appears to be a bridge too far for the mother (if it means interfering with her plans). There was no evidence this prioritisation would change in the future, irrespective of where (and with whom) the girls lived and on that basis, I cannot make the finding as was submitted by the mother’s counsel.
The mother’s alternate proposal was that she would be able to return to live in the local area and she told the Court that if that transpired, she and P intended to pursue their relationship. I acknowledge that her evidence remains that she will not be able to rely on any other family support if she returns to the area.
Returning then to the question of the girls’ relationships with their parents.
I am comfortably satisfied that if the girls were to live with or spend time with the father, he would be able to promote a meaningful relationship between them and the mother.
I am satisfied that the same finding cannot be made about the mother’s capacity irrespective of which State the girls may live in. The mother’s capacity to promote a meaningful relationship between the girls and the father is limited. This is because –
(a)when she lived in the local area, and the girls lived with her and spent substantial and significant time with the father - the mother acted in a manner which did not support the promotion of the girls’ relationship with him;[50] and
(b)when she did not live in local area and the girls lived equally between them, the mother’s behaviours escalated to the point where she was not only in conflict with the father but also with U over her decision to unilaterally remove the girls from school at the end of Term 1 2022, in direct conflict with the final orders which provided that the girls were to live with the father until 3:00pm on the last day of term.
[50] See for example the events around 18 March 2021
At this point it is appropriate to reflect on whether any of the proposals seeking for the girls to spend equal time or substantial and significant time are reasonably practicable.
It was common ground that the father’s residence is within 45 minutes driving time of the girls’ school and if the mother could avail herself of accommodation within that radius, then there was some prospect of an equal time regime and/or substantial and significant time regime being reasonably practicable. Noting that the father was clear to say that he would not move to Queensland, it was an agreed position that if the mother did not return to the local area then any proposal for equal or substantial and significant time which did not meet this 45-minute radius would not be capable of being reasonably practicable.
I am satisfied that the mother has the capacity to remain living in Queensland, noting the support she receives from P. Although the mother submitted that she could relocate to the local area if given enough time, there was no evidence to support this submission. The evidence was that the closest accommodation upon which she could rely upon was the Town E house and that she had not secured employment and until she did, she could not secure rental accommodation in the local area. On that basis I am not able to make a finding that the mother has the capacity to return to live within the 45-minute radius described above and therefore be able to implement a regime of time that is either equal or substantial and significant.
The father’s evidence comfortably enables me to find that if the mother did return to the local area he had the capacity to implement a regime of time that is either equal or substantial and significant. This is because there was no evidence that the father intended to leave the local area.
The child expert was clear to say that he did not support an equal time arrangement because of the parties’ poor communication and the absence of a respectful relationship between them. As observed earlier, the parties agree that their communication was a feature in the dispute and their evidence left me in no doubt that their relationship lacks trust or insight into each other’s motivations for making or suggesting a particular course of action be taken regarding the girls. Even now the mother doubts the father adheres to a gluten-free diet for X and the father views with disdain the mother’s decisions to pull the girls early from school or return them late to school.
Despite an equal time arrangement being the girls’ preference, I am persuaded by the child expert’s opinion that this would not be beneficial to the girls unless the court was satisfied about the parties’ communication and the state of their co-parenting relationship. Similarly, the child expert was of the opinion that a regime of substantial and significant time would only be beneficial to the girls if the person with whom they live was found to be capable of promoting a relationship between the girls and the other party. I accept both these opinions given the child expert was qualified to give these views and the evidence upon which the opinions was basis was not the subject of any persuasive challenge.
There are no other matters relevant to s 65DAA(5).
CONCLUSION - EQUAL TIME OR SUBSTANTIAL & SIGNIFICANT TIME?
Equal time
The child expert was clear to say that an equal time arrangement (being the primary proposal from the father and the ICL) would not be in the girls’ best interests because the parents do not effectively communicate and co-operate.
Whilst the mother has historically been the girls’ primary attachment figure, the child expert said that given the girls’ recent lived experiences, whether the mother could be characterised in that way or whether the girls were equally attached to both parties was unclear.
I have given limited weight to the girls’ views regarding equal time. I am satisfied that they are sufficiently resilient to adjust to their future living circumstances if their expectations are not met.
I am satisfied that an equal time arrangement is not in the girls’ best interests because the parties lack effective parental communication and respectful co-operation, examples of which include:-
(a)the mother failing to inform the father of her intention to relocate before doing so in late 2020 and despite a notation made in orders of the Court in November 2019 to the effect that she had no intention (in the foreseeable future) of moving away from Town Z;
(b)the parties being unable to agree on the girls’ education in circumstances where the mother unilaterally engaged them in home-schooling against the father’s wishes and (ultimately) the requirements of the girls’ school;
(c)the mother continuing to hold unsubstantiated concerns about the father’s ability to physically provide an appropriate diet for X and in a more general sense, a safe living environment;
(d)the father reneging on an informal agreement in March 2022 which resulted in the girls not seeing their mother for three (3) weeks.
Substantial and significant time
I have already discussed the definition of ‘substantial and significant time’: s 65DAA(3).
The child expert would only support a regime of substantial and significant time, if the party with whom the girls lived was found to be capable of promoting a meaningful relationship with the other party. I accept the child expert’s view for the same reasons as outlined previously when I accepted his views about equal time.
I also note the child expert’s view that the girls’ “family connections” were also a significant secondary consideration in determining the girls’ best interests.
The significant issue in this case was the mother’s capacity to promote a meaningful relationship between the father and the girls in circumstances where it was uncontested that they will benefit from the maintenance of that relationship.
There were no submissions made in reverse and in the main, I am satisfied that the father does have the capacity to promote a meaningful relationship between the girls and the mother. I have already commented on the father’s decisions in March and June of this year. Given the overall circumstances of this matter, I am not able to make any further adverse findings against him.
The issue for me to determine is how to maintain the important, significant and valuable relationship between the father and the girls noting that the definition of a meaningful relationship is not strictly quantitative but is qualitative.[51] I have reflected on the parties’ various proposals and their views about my alternate proposal for substantial and significant time (if this was reasonably practicable).
[51] See Mazorski & Albright
I have already found the mother has a limited capacity to promote a meaningful relationship with the father and she has a limited capacity to meet the emotional and intellectual needs of the girls. These findings are undiminished whether the girls live with her in the local area or in Queensland.
Since the final orders were made last year the girls have lived week-about with their parents and since the June 2022 orders, the girls have lived with the father and spent time with the mother. Whether the mother is the primary attachment figure or the parties share that role is unknown. Both parties, (whether in their evidence or inferentially from their proposals) must accept that the girls love and value the relationships they have with their parents. My difficulty is that I cannot ignore the mother’s past conduct and the unsatisfactory nature of some of her evidence which criticised the father for what seemed to be minor incidents/ events/circumstances and/or suggested that the girls have come back to her care in an unhappy state. I am gravely concerned that the girls’ relationship with the father (let alone with other family members) is not sufficiently resilient to withstand the mother’s impaired parental capacity and poor attitudes towards their welfare and the importance of their relationships with significant others in their lives.
I accept that it is not an insignificant thing for me to say to the mother that the girls cannot live with her, irrespective of whether that is within the local area or interstate. However, the Court must balance a range of factors and ultimately must make orders having regard to the parties and the children before it. For the reasons already identified, there are no risk issues that would supplant the primary consideration for the girls to benefit from having meaningful relationships with both parties.
In this case, for the reasons set out above, and having regard to the girls - on balance, I find that their best interests are met by orders which will see the girls continuing to live with the father and staying in the local area.
Based on the evidence, the mother has not satisfied me on the balance of probabilities that she can support the quality of the girls’ relationships with the father in any way other than by having less than primary care or equal time with them so that their exposure to her negative opinions is reduced. In making this finding about the evidence I note not only the lay evidence but also the child expert’s opinion which was that the girls’ best interests will be met if the party they live with can promote a meaningful relationship with the other party.
The mother’s right to freedom of movement was taken into account and given significant, but not determinative, weight. Whether the mother chooses to return or not is entirely at her discretion and the orders shall accommodate both scenarios.
If the mother does return then the girls’ time with her will be substantial and significant. Because there was little to no direct submissions and/or procedural fairness[52] given by me about my concerns regarding the mother’s proposal to travel interstate on her weekends (should she relocate and the girls were to live with her); I am not going to impinge any further on the mother’s right to travel. However, I note that the mother must know of the court’s concerns about the impacts of travel for the girls, given that there was discussion and concessions made about a travel radius between the girls’ school and the mother’s accommodation whether she lived locally or not. I remain conscious of the reality of the situation[53] and will only comment that if the mother decides to travel interstate during school terms and this becomes an issue of concern, then in my view, the way forward may be an alteration of the four-night block of time, so that, for example, time commences on a Wednesday and concludes on a Sunday so that at least the girls have the ability to get an uninterrupted night’s sleep before school on Monday and/or an alternate travel route can be taken to ensure they arrive at school on time.
[52] See U v U
[53] See MRR v GRR
In making this decision for the girls to live with the father, I have also had regard to the mother’s inability to value the importance of the girls’ “family connections” and to put the girls’ needs above her own so that (for example) she doesn’t take the girls up to Queensland against the advice of the girls’ educators and existing orders. In other words, when comparing the parties’ respective capacities to meet all of the girls’ emotional and intellectual needs, the father’s capacity is demonstrably greater than the mother’s.
Given the girls’ lived experience since the making of the final orders, I am satisfied that whilst there will be loss and grief felt by them, if it is not reasonably practicable for them to spend substantial and significant time with the mother, they have the capacity to adjust given the emotional support they receive from the father and his parents. If the mother is able to return to within close proximity, then they will benefit from having substantial and significant time with the mother because I intend to order that they see her every week. I will also order that the girls spend holiday time with each party, the quantum of which will be different, depending on whether the mother returns to the local area by a due date or not.
I turn now to a consideration of whether the girls having substantial and significant time with the mother and otherwise living with the father is reasonably practicable by reference to s 65DAA(5) and where appropriate my earlier ‘best interests’ findings.
CONCLUSION – IS IT REASONABLY PRACTICABLE?
In addition to s 60CC I need to consider the reasonable practicability of the parties’ proposals as they relate to substantial and significant time. All parties agreed that for any such regime to be practical, the girls should not live more than 45 minutes’ drive from their school and they were clear to say that if the appropriate findings were available to the court, a regime of four nights one week and one night the other during school terms, would be satisfactory.
The mother’s proposal
As I observed earlier, based on the mother’s submissions versus her evidence, I am unable to confidently make a finding that she has the capacity to return to the local area. To be clear, even if the mother was able to provide sufficiently probative evidence of her capacity to do so, it would have made no difference to my determination as to with whom the girls should live. This is because, based on the lay evidence and accepting the child expert’s view – it would not be in the girls’ best interests to live primarily in the household of a parent that does not have the capacity to promote a meaningful relationship with the other parent.
For the girls to spend substantial and significant time with the mother, the parties have to live relatively close to each other noting that for now, they don’t. In my view this means that the girls should not be spending more than 45 minutes in a car driving from their school to each party’s home because a drive of that duration will not adversely affect their best interests or welfare. I make this finding because the girls’ current lived experience is that they travel 37 minutes each way to school and all parties considered a radius of 45-minutes to be appropriate.
The mother has submitted that she can find local accommodation by Friday 7 October 2022 and whilst there was at least one other date floated, I see no prejudice to the girls’ best interests to accommodate the mother’s proposal. Therefore, the orders will contemplate two alternate options for time, one reflecting substantial and significant time in circumstances where the mother returns to the local area and the fall-back of term time which is not substantial and significant. I have already observed that holiday time will vary depending on the mother’s ability to return, so as to permit the girls more time with their mother during holiday time in the event they can’t spend substantial and significant time with her during the school terms.
The father’s proposal
The father says he will not move interstate and I accept that evidence.
As previously found, there are no practical difficulties arising from his proposal as his work hours are somewhat flexible and he has the back-up support of F as required.
The father had an alternative proposal whereby the mother remained living in Queensland. If that eventuated then I accept that she has secured work and will continue to have the emotional and financial support of P in being able to make trips down to the local area during term time.
The ICL’s proposal
To varying degrees, the ICL’s alternate proposals (based on the girls remaining in NSW but either living with one or other of their parents) have been considered when I have reflected on the parties’ competing proposals and no further discussion is required.
Reflections on the parties’ proposals
I heard no submissions about any practical issues for either party insofar as funding travel during holiday time.
I have already found that the mother’s parental capacity will not be any more impaired or improved than it is now, whether she stays in Queensland or not.
I acknowledge the diminished emotional support the mother may have if she returns to the local area, versus what is on offer in the home of P, so it is a matter entirely for her whether she returns or not. I am simply acceding to the parties’ shared position that the mother should be given the opportunity to explore the possibility of a return, without any expectation that she does.
I recognise the prospect of the mother holding feelings of bitterness and unhappiness in the event the girls do not relocate. On a background of my finding that the mother already has a limited capacity to promote a meaningful relationship between the girls and the father and a poor attitude towards him and other family members:
(a)should the mother be unable to effectively quarantine her poor attitude from the girls when they are spending substantial and significant time with her - the frequent transitions between households that I intend to order will be a protective factor for the girls’ best interests and welfare; and
(b)should the mother be unable to effectively quarantine her poor attitude from the girls when they spend time with her that is not substantial and significant - the time spent in the mother’s household (that I intend to order) will similarly be a protective factor for the girls’ best interests and welfare.

Whilst I accept that the mother will be upset by the girls living with the father, I am satisfied that she has the capacity to implement the time I will order the girls spend with her. If she stays in Queensland, on her evidence she will have the support of P. If she returns, then it will be her decision alone.[54]
[54] See the June 2022 orders.
I have already explored and made findings about the parties’ poor communication and lack of trust.
In my view, the level of communication the parties do have is sufficient to enable them to resolve difficulties in the implementation of substantial and significant time noting that I have deliberately –
(a)Defined the parameters of what holiday time looks like so as to avoid the girls’ school days being unnecessarily shortened due to travel issues; and
(b)Prohibited the accommodation enjoyed by the girls during any weekend time spent with the mother being located outside a radius of 90-minute drive from their school, in the event that the mother does not return to the local area as foreshadowed by her; and
(c)Defined changeovers to occur at the girls’ school wherever practicable to do so.
In addition, I accept the ICL’s view that the orders should be as prescriptive as possible to avoid any recurrences of the conflict that arose between them over the uncertainty that plagued the parties in June 2022.
I accept that the girls are already feeling loss at not spending equal time with the mother and I have made findings about the girls’ capacity to adjust to a change in their circumstances which may well take a little time for them to process. The father and his mother presented as sensitive to the girls’ emotional needs and supportive of their relationship with the mother and I am comfortably satisfied that any adverse impact for the girls will be short-lived.
The mother is entitled to her freedom of movement where it does not adversely affect the girls’ welfare[55]. I have found that if the girls are relocated, then their welfare will be adversely affected because they will, on the balance of probabilities, lose their meaningful relationship with the father.
[55] See U v U
CONCLUSION
Pursuant to s 61DA when asked to make a parenting order, I am required to apply a presumption that it is in a child’s best interests that the parents have equal shared parental responsibility, absent a finding that one of the parents has engaged in abuse of the child, family violence or it is not otherwise in a child’s best interests.
The father and the ICL sought the allocation of equal shared parental responsibility in the event that equal time was ordered and sole parental responsibility to the ‘lives with’ parent in the event the girls lived interstate from one of their parents. The mother sought that she be allocated sole parental responsibility.
The child expert did not support the allocation of equal shared parental responsibility for reasons addressed previously. I accept the child expert’s view because the evidence did not reach a level where I could comfortably find that the parties were able to effectively and respectfully communicate and/or co-parent with each other, see for example issues around the girls’ home-schooling. To do otherwise would lead only to the risk of the girls being exposed to parental conflict and the inherent uncertainty that flows. The presumption is rebutted on the basis that it is not in the girls’ best interests: s 61DA(4).
I will order the father have sole parental responsibility because there was no compelling evidence upon which I could safely find that he would make decisions other than in the girls’ best interests.
I have already explored why the girls should live with the father and I will so order.
I have already explored why the girls should spend substantial and significant time with the mother provided it is reasonably practicable to do so, but in summary it is because:
(a)They will benefit from having a meaningful relationship with both their parents;
(b)The mother says that she is able to relocate her residence to within a 45-minute driving radius from the girls’ school;
(c)The mother has some limitations to her capacity to support the girls having a meaningful relationship with the father;
(d)The mother has some limitations on her capacity to meet the emotional and intellectual needs of the girls;
(e)Regular weekly time between the girls and the mother will ensure that they get a balanced view of each parents’ household and ameliorate any negativity that may arise in the mother’s household.
In the context of the parties being unaware of the outcome of the trial, I heard submissions about given the family certainty moving forward and on that basis submissions were made about when the mother would be practically able to return to the local area, in the event that the girls were not permitted to relocate to Queensland. I heard from the mother that she could move south by 7 October 2022 which in effect gave the mother three months from the trial to move.
Given the effluxion of time since then, and whilst observing no one canvassed their submissions in this particular way, it is my view that it is appropriate to allow the mother the same period of time to move - now that she knows the outcome.
The overall purpose will still be achieved, that is certainty to the family, but given at the time of the trial, the mother was operating in a vacuum of uncertainty as to the outcome, now she will have the chance to properly reflect on her options before making a decision. My decision to afford the mother this time, should be seen by the parties as reflecting my view that the best possible outcome for the girls is if both parties live within a reasonably practicable distance of each other and permit the girls substantial and significant time with the mother.
Ultimately, the decision is the mother’s alone, I simply want to give her as much space as I can to make what will undoubtedly be a hard decision, whilst still affording the family certainty moving forward into the 2022 Summer school holidays and beyond.
In the event that the mother decides not to return, then the orders largely (if not wholly) reflect the parties’ consensus proposals about the time the girls should spend with the parent with whom they are not living.
In recognition of the strong relationships the girls have with each of their parents, holiday time is included, with the regime to vary depending on whether or not the girls spend substantial and significant time with the mother during school terms.
I am mindful that if the mother does not relocate, then it would be impracticable and adverse to their emotional needs for the girls to spend the majority of each of the shorter school holidays with the mother away from their friends and family in NSW, and in addition would likely to lead to conflict and some reluctance on their part to go (particularly as they move into adolescence). For that reason I have afforded the girls equal time with both their parents in the Winter and Summer holidays with extra time between the girls and their mother for the Autumn and Spring holidays so that they can have quality time with her during all of the school holidays.
Again, subject to practicability, time on special occasions will be ordered (in iterations reflective of one or other of the various proposals).
The family report did not recommend electronic communication, but both parties sought it. I have preferred the mother’s proposal of twice weekly calls because given some of the historical difficulties that both parties allege, the less often they have to ensure the girls are available, the more chance the calls will go smoothly for the girls with the consequent reduction in parental frustration (and possibly conflict) that would flow from an inability to communicate with the girls.
In addition, and in-line with the ICL’s proposal, I have also allowed the parties some flexibility in the girls communicating with their parents on special occasions, particularly given the prospect that for some if not all of those special occasions, the girls may not be able to easily see the other parent if they are interstate from one of their parents.
Orders are made to give structure to the manner in which the mother and the father are to communicate with each other. I acknowledge the mother’s proposal for the parties to use a communication App however given their attempts to use a communication book in the past, and their differing views about what should be communicated to each other, I consider to make an order as sought would only open up the opportunity for more conflict. I have made prescriptive orders around the giving of written notice by the parties, otherwise it is a matter for the parties to informally communicate about other issues, thus avoiding the risk of re‑litigation because I make an order that (say) one or the other alleges has not been complied with.
An injunctive order has been made in light of the parties’ cross-allegations about denigration and the girls’ exposure to these proceedings in each household.
An injunctive order against the father’s consumption of alcohol will be made in-line with the less restrictive proposal from the ICL which protects the girls’ welfare and is made in light of the father’s unsatisfactory evidence about his past alcohol consumption and his transparency about that with third parties. The mother sought a more restrictive restraint about illicit drugs and alcohol. No adverse findings have been made about the father’s current parental capacity being affected by either. The evidence does not support the making of the restraint as sought by the mother.
The mother is a good mother who loves her girls. Whilst the father behaved inappropriately in September 2018, since then there has not been a recurrence of concerning behaviours. The evidence demonstrates that the girls have benefitted from his role as their father. The Court recognises the role that the mother has played so far in the girls’ lives. If the mother decides to return to the local area; then the mother will be giving the girls a priceless gift of having the ability to spend quality time with the two people they love most of all. If the mother is unable to do so, then I am confident that her meaningful relationship with the girls will be sustained despite the distance between the two households.
For the reasons above, I am satisfied that the Orders I have made are in the bests interests of X and Y.
THE APPLICABLE LAW, ANALYSIS & CONCLUSION – Costs
The ICL brings an application for each party to pay one-half of the ICL’s costs quantified at $4,837[56]. Such an application invokes s117.
[56] Exhibit ‘ICL3’
Both parties opposed the making of a costs order against them on the basis that they will suffer financial hardship: s 117(4)(b).
In exercising my discretion I must have regard to s 117 which sets out the Court’s jurisdiction insofar as costs are concerned including a rebuttable principle that each party should bear their own costs.
The ICL seeks to rebut the presumption that the ICL (or in other words Legal Aid NSW) should bear her costs, on the basis that I should be satisfied that the circumstances of the case make it just for each party to pay one-half (or $2,418.50) of the ICL’s costs. In the exercise of this broad discretion, the Court must take into account various considerations as set out at s 117(2A).
The discretion I exercise in the making of an order (if any) in relation to the ICL’s costs (including what proportion each party must be responsible for) must be just.[57]
[57] Section 117(3)
Turning to the considerations set out within s 117(2A):
(a)The father is a professional and his exposure to his own legal costs arising from these proceedings is estimated to be about $45,000. The father has the ongoing care of the girls and in order to satisfy a costs order of $25,000 made against him as a result of the mother’s successful appeal, he has had to sell a property that he retained from the parties’ property settlement.
(b)The mother has secured some work as a hospitality worker and uses that income to save for trips to NSW to spend time with the girls and to otherwise save for bond and future rent payments in the event she returns to NSW. She is otherwise reliant on P and other family members for financial support. Whatever money the mother has received from the parties’ property settlement has been dissipated, most likely at least in part on legal fees in these protracted proceedings.
No one consideration under s 117(2A) prevails over any other and the weight to be accorded to each of the relevant factors is at my discretion: Medlon & Medlon (No. 6 (Indemnity Costs) [2015] FamCAFC 157 at [24]. There is nothing to prevent just one consideration as set out in s 117(2A) being the sole foundation for an order for costs: Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania v Fish) [2005] FamCA 158.
In the circumstances of this case, I am not satisfied that there are justifying circumstances to rebut the presumption that each party bear their own costs: see Penfold and Penfold (1980) 144 CLR 311.
This is because, taking into account all the circumstances of this case I am not satisfied that it is just for me to make a costs order against either party because each of their households will be adversely affected by the payment of legal costs over and above the significant fees that each of them are already exposed to. This adverse effect is likely to impinge upon the girls’ welfare in circumstances where –
(a)in the father’s case, he provides the girls with primary financial support and his ability to do so may be impinged by having to pay a costs order; and
(b)in the mother’s case, she uses all her income to fund either trips to see the girls or to secure her return to NSW to see them even more, and her ability to do either of these things will be impinged by having to pay a costs order.
For all of the reasons explained above, orders as set out at the forefront of these Reasons for Judgment will be made.

I certify that the preceding three hundred and forty-nine (349) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kearney.
Associate:
Dated: 12 September 2022

File number(s):	NCC 3498 of 2018
Judgment of:	JUDGE KEARNEY
Date of judgment:	12 September 2022
Catchwords:	FAMILY LAW – parenting – relocation interstate sought for two girls aged 8 & 6 – poor co-parenting and communication – sole parental responsibility granted to parent with capacity to promote meaningful relationship with other parent – substantial and significant time only if practicable by location – regular time if party chooses to relocate interstate away from children - prescriptive orders to reduce the risk of ongoing parental conflict – best interest of children
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	AMS v AIF [1999] HCA 26 Franklyn & Franklyn [2019] FamCAFC 256 Hepburn & Noble [2010] FamCAFC 111 Mazorski & Albright [2007] FamCA 520 MRR & GRR [2010] HCA 4 Slater v Light [2011] FamCAFC 1 Star & Duggan [2009] FamCAFC 115 Taylor & Barker [2007] FamCA 1246 U v U [2002] HCA 36
Division:	Division 2 Family Law
Number of paragraphs:	349
Date of hearing:	18-20 July 2022
Place:	Town B
Counsel for the Applicant:	Mr Rugendyke
Solicitor for the Applicant:	Lindeman Lawyers
Counsel for the Respondent:	Mr Todd
Solicitor for the Respondent:	Mills Oakley Lawyers
Solicitor for the Independent Children's Lawyer:	Ms McGregor, McGregor Family Law

NCC 3498 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR CORDING Applicant
AND:	MS CORDING Respondent
AND:	INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE KEARNEY
DATE OF ORDER:	12 September 2022