Cowley & Mendoza - [2010] FamCA 597

FAMILY COURT OF AUSTRALIA

COWLEY & MENDOZA

[2010] FamCA 597

FAMILY LAW – CHILDREN – With whom a child lives – RELOCATION – Where both parents are loving, child-focussed and ‘good-enough’ – Where the mother seeks to return to her country of origin and have the children live with her – Where the father seeks the children live in Australia and spend week about time with each parent – Consideration of MRR & GR (2010) 263 ALR 368 – Elucidation of the principles to be applied in parenting matters and under s 65DAA – Where the best interests of the children call for significant, regular involvement of both parents – Where the expert evidence states that the children are too young to spend a week away from either parent – Where the mother’s proposal seeking the children live overseas would not allow significant involvement by the father – Orders made providing for significant involvement of both parents gradually progressing to shared time

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CB, 60CC, 61DA, 65D, 65DAA, 69ZN, 69ZQ

AMS v AIF (1999) 199 CLR 160
Goode v Goode (2006) FLC 93-286
Lansa and Clovelly [2010] FamCA 80
McCall v Clark (2009) FLC 93-405
MRR v GR [2009] HCA Trans 316
MRR v GR (2010) 263 ALR 368
Pitkin and Hendry [2008] FamCA 186
Starr and Duggan [2009] FamCAFC 115
Taylor and Barker [2007] FamCA 1246
U v U (2002) 211 CLR 238

APPLICANT:

Mr Cowley

RESPONDENT:

Ms Mendoza

INDEPENDENT CHILDREN’S LAWYER:

Anthea Walsh

FILE NUMBER:

MLC

9206

2008

DATE DELIVERED:

16 July 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

9-10 February 2010

Written Submissions 20, 21 April 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Brasch

SOLICITOR FOR THE APPLICANT:

McPhee Lawyers, New Farm

SOLICITOR FOR THE RESPONDENT:

Ms Reeve of Eaton Lawyers, Arana Hills

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

Parental Responsibility

The father and mother shall have equal shared parental responsibility for the children of the marriage D born … May 2005 and R born … September 2006 (“the children”) in respect of all “major long-term issues” as defined in the Family Law Act 1975 (as amended).
The parents shall each have, during all such time that the children are in their respective care, parental responsibility in respect of issues that are not “major long-term issues”.

Co-Parenting Arrangements

The children shall live with, spend time with, and/or communicate with each of their parents in such manner and for such periods of time as might be agreed between the parents in writing and, failing further or other agreement, in accordance with the succeeding provisions of these orders.
In the event that the mother shall reside permanently in Brazil or otherwise outside of Australia:
(a) The children shall live with the father;
(b)The mother and father shall do all such things, sign all such documents and pay all such amounts as might reasonably be necessary so as to permit the children to communicate by telephone, ordinary mail, e-mail and Skype (or other such similar forms of communication) at all such reasonable times as the children might request and in any event not less than once every two days;
(c)The children shall, subject to the succeeding provisions of these orders relating to the provision of surety, spend time with the mother:
(i)In either Brazil or Australia at the mother’s election for the whole of the June / July and September / October Australian school holiday periods and for one half of the December / January school holiday period each year with the mother and father sharing equally the cost of the children’s flights and otherwise themselves each being responsible for any accompanying adult flights as might be desired or required by airline policy;
(ii)In Australia upon the giving of not less than 21 days notice in writing in accordance with the succeeding provisions of these orders as if, during any such visit by the mother, she was residing in Australia.
During the period of three months during which the mother shall be in Brazil attempting to extend her leave of absence, but not permanently:
(a) The children shall live with the father;
(b)The mother and father shall do all such things, sign all such documents and pay all such amounts as might reasonably be necessary so as to permit the children to communicate by telephone, ordinary mail, e-mail and Skype (or other such similar forms of communication) at all such reasonable times as the children might request and in any event not less than once every two days.
In the event that the mother resides in Australia and consequent upon the mother and the father commencing to reside in separate residences:
(a)the children shall live with the father for three consecutive nights and immediately thereafter shall live with the mother for three consecutive nights and thereafter in that same sequence until 9.00am on Monday 2 July 2012 and, so as to give effect to that sequence, it shall be taken to commence at 9.00am on the Friday immediately following the parties commencing to reside in separate residences;
(b)As and from 9.00am on Monday 2 July 2012, the children shall live with the father from 9.00am Monday 2 July 2012 until 9.00am Monday 9 July 2012 and between those hours on those days each alternate week thereafter and shall live with the mother from 9.00am Monday 9 July until 9.00am Monday 16 July and between those hours on those days each alternate week thereafter;
(c)The sequences provided for in each of the previous sub-paragraphs of these orders shall be interrupted so as to avail the children of spending one half of all gazetted school holiday periods with each parent in each year.
(d)The mother and father shall do all such things, sign all such documents and pay all such amounts as might reasonably be necessary so as to permit the children to communicate with the parent with whom they are not living by telephone, ordinary mail, e-mail and Skype (or other such similar forms of communication) at all such reasonable times as the children might request and:
(i)until 2 July 2012, not less than once during each period of three days that the children are with each of their parents; and
(ii)after 2 July 2012 not less than twice a week.
That notwithstanding the previous orders, the children shall spend time with the parent with whom they are not residing on special occasions as follows:-
(a) On the birthday of each child:
iif a school day from after school until 6.00pm;
iiif a non school day from 1.00pm until 6.00pm;
iiiwith that parent to be responsible to collect and return the children.
(b)With the Father on Father’s Day (from 9.00am until 5.00pm) with the Father to be responsible for collecting and return the children;
(c)With the Mother on Mother’s Day (from 9.00am until 5.00pm) with the Mother to be responsible to collecting and returning the children.
The mother and father do all such things and sign all such documents as are necessary so as to authorise the schools or day care centres attended by the children to give each parent information about the children’s educational progress and any other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the children (at each parent’s own cost), and failing the provision of such authority this order shall of itself operate as such authority in each case.
The Mother and Father shall:-
(a)Keep the other parent informed at all times of their residential address, email address and landline telephone contact number;
(b)Keep the other parent informed of the names and addresses of any and all treating medical or other allied health practitioners who may be treating the children and authorise those practitioners to provide the other parent with all such information in their possession relevant to the child or children and, failing the provision of any such authority by either parent, this order shall of itself operate as such an authority.
(c)Inform the other parent as soon as practicable of any medical condition, significant health issue or significant illness suffered by the children.
The mother and father shall be at liberty to attend any and all extra-curricular activities undertaken by the children and each party shall do all things and sign all documents reasonably necessary to ensure that the attendance of each parent is authorised.

Injunctions re Removal of Children from Australia

The mother, by herself, her servants and/or agents is hereby restrained from taking or sending, or attempting to take or send, the children D born … May 2005 and R born … September 2006 from the Commonwealth of Australia, except as provided by these orders.
The Court requests that the Australian Federal Police place the names of the children (D born … May 2005 and R born … September 2006) on the airport watch list at all points of international arrivals and departures in Australia for the purpose of preventing the removal of the children from Australia in breach of these orders.
The Marshal and all officers of the Australian Federal Police and the police forces of the states and territories are requested and authorised to give effect to these orders.
The passports of the children be held by the Father and not be used to travel by either the Mother or the Father except in accordance with agreement in writing between them or an Order of the Court.

International Travel

The mother be at liberty to take the children to Brazil (or on other overseas holidays) with the written consent of the father (such consent not being unreasonably withheld) upon such terms and conditions as might be agreed in writing between them, and in the absence of further or other agreement on one occasion each year for a period of three weeks in the Christmas school holidays commencing in 2010 in accordance with the following provisions of this Order:
(a)the mother be responsible for booking and funding the air fares for herself and the two children
(b)prior to any fares being booked, the mother pay to an account in the name of the father the sum of $20,000 as security for the return of the children at the conclusion of time referred to in this order. In the event that the children are not returned at the end of such time, the father is at liberty to use the surety funds to defray the costs of recovering the children. Otherwise the money shall be returned to the mother within seven days of the children’s return;
(c)the mother is to provide the father with an itinerary, copies of the return tickets and advice in writing of the contact details for the children whilst they are overseas.
(d)Consequent upon compliance with sub-paragraphs (b) to (d) inclusive of these orders:
(i)The parties shall do all such things, sign all such documents and pay equally all such reasonable fees as might be necessary to facilitate the removal of the names of the children from the airport watch list so as to permit of the travel by the children contemplated by this order;
(ii)The father shall provide to the mother the children’s passports in sufficient time to allow travel arrangements to be properly made;
(e)Within seven days of the children’s return to Australia the mother shall return the children’s passports to the father and the parties shall do all such things, sign all such documents and pay all such reasonable fees as might be necessary to place the children’s names on the airport watch list as contemplated by paragraph 12 of these Orders.
(f)During any time that the children are absent from Australia in accordance with this order, the mother and father shall do all such things, sign all such documents and pay all such amounts as might reasonably be necessary so as to permit the children to communicate by telephone, ordinary mail, e-mail and Skype (or other such similar forms of communication) at all such reasonable times as the children might request and in any event not less than once every two days.

Dismissal of Other parenting Applications

All outstanding applications for parenting orders be otherwise dismissed and removed from the list of cases awaiting finalisation.

Other Orders

All subpoenaed documents shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: MLC 9206 of 2008

MR COWLEY

Applicant Father

And

MS MENDOZA

Respondent Mother

REASONS FOR JUDGMENT

Two young children the subject of these parenting proceedings, D, aged 5 (born in May 2005) and D, aged 3.7 (born in September 2006), are fortunate to have two loving, caring parents who are, as I find, clearly motivated to do what is best for their children. Unfortunately, these proceedings arise because the father wants to remain living with the children in Australia and the mother wants to return with the children to Brazil.
The father is Australian; the mother Brazilian (though her heritage includes Dutch and Indonesian components). D was born in Australia whereas, after the mother had spent most of the pregnancy in Australia, R was born in Brazil.
The parents met in Brazil when the father was on a back-packing holiday. They married in December 2003. In May 2004, the father returned to Melbourne and the mother joined him from Brazil a couple of months later, in July. On 27 December 2004, the mother returned to Brazil. She came back to Australia in March 2005.
About 15 months later, in May 2006, the parents moved to live in Brazil, where the mother resumed her employment. The father was not remuneratively working at that time and spent his time caring for D who, at that stage, was a baby. In August (some three months after the parties arrived in Brazil), D commenced at crèche.
In May 2007, when D was just two and R about eight months old, the father and D returned to Melbourne where they stayed for about three months or so. The mother and R remained in Brazil.
Shortly after returning to Brazil in September 2007, it is agreed that the parents, after discussions between them, agreed to relocate to Australia and to educate their children in this country. The father returned to Australia in January 2008 and was joined by the mother and children some six months later in June.
After joining the father in Brisbane, the parties travelled to Melbourne for the father’s brother’s wedding and the following month, the mother obtained Australian permanent residency status. The parties commenced living in Brisbane where they have lived since. The children have therefore been living in Australia from the time they were approximately 3 and 1.9 years old.
The parties separated under the one roof in March 2009 and have remained in that state for over 12 months. To their considerable credit, despite some episodes of significant conflict between them, they have, overwhelmingly, kept that conflict under control and co-operated together in their efforts to co-parent their two children who are, of course, still very young.
The catalyst for the current proceedings is the unilateral actions by the mother when she threatened to return to Brazil with the children. The mother took a number of actions at that time including attending at the father’s workplace in his absence to collect R’s passport (which the father held there for safe-keeping) and the following day, 7 October 2008 the mother attended at Flight Centre and paid a deposit for flights out of Australia for herself and the children for a flight leaving three days later.
Urgent orders were made at the father’s instigation. The evidence reveals that, after discussion between the mother and her father, she had, in any event, decided not to leave Australia. The events of October 2008 will be referred to in further detail below.

Division 12A and the Process in the Present Case

The evidence adduced by and on behalf of each of the parties, and that contained in the Family Report prepared by a Family Consultant, Ms D, evidences a significant lack of controversy about matters central to the determination of the children’s best interests.
In those circumstances, specific application can, and in my view should, be given to Division 12A of the Family Law Act1975 (“the Act”) and to specific provisions enumerated within it. In particular, reference was made at the hearing to the five principles contained in s 69ZN(2) to which the Court must give effect (s 69ZN(1)) and the mandatory duties imposed upon the Court in giving effect to those principles contained in s 69ZQ. In the latter respect, the Court flagged the particular importance of paragraphs (a); sub-paragraph (b); and sub-paragraph (g) of that section.
With those matters in mind, the Court prepared, and canvassed with each of the parties at the hearing, a list of matters which, the evidence revealed, were not the subject of any real controversy. Each of those matters, expressed as findings, can be seen to find ready reflection in the s 60CC Considerations. Each of the parties agreed both that the matters were in fact uncontroversial and that findings could be made in accordance with that list of matters. That list of matters is Exhibit 1 in the proceedings and will be quoted in full below.
At the time of hearing of this case, the High Court had heard and made orders in MRR v GR ([2009] HCA Trans 316, 3 December 2009) but had yet to hand down reasons. Subsequently, those reasons were delivered on 3 March 2010 ((2010) 263 ALR 368).
After that decision was read and considered, correspondence was sent to each party and the Independent Children’s Lawyer on 13 April 2010 inviting any further submissions the parties wished to make arising from this decision. Submissions were received from the applicant father on 20 April 2010 and the respondent mother on 21 April 2010. The Independent Children’s Lawyer advised that she did not seek to file any further submissions.
The additional time elapsing before the delivery of this judgment is very much regretted but, for reasons which will emerge, it was, unfortunately for the parties, necessary to consider the High Court’s decision in some detail.

Parenting Orders and “Relocation Cases” – Principles

The Act: Objects, Principles and Considerations

Parenting orders, of whatever type, are driven by a determination of the best interests of the particular children who are the subject of the proceedings (Sections 60CA; 60CB; 61DA(1) & (4) and 65DAA). The issue of best interests is not left at large. The path to a decision about that issue is signposted by a number of mandatory considerations. Some considerations are marked as having primacy, whilst others are “additional” (s. 60CC).
The “primary considerations” have particular importance but, as the word “additional”, used in the following subsection, implies, they are to be considered in conjunction with the “additional considerations”. The proper analysis of each represents not an end point in itself, but a pathway (albeit a mandatory pathway) to determining the best interests of children by according appropriate weight to those considerations relevant to the individual children and the particular circumstances in which they find themselves.

Further, “best interests” is not the application of a theoretical construct but, rather, the practical application of a number of considerations relevant to the individual needs, desires, health and aspirations of the particular children of this particular parenting relationship.
Importantly, analysis of the statutory considerations must also be consistent with the overall objectives of the Act (s. 60B(1)). The statutory objectives are given light and shadow by the principles underlying them – which are also outlined in the Act (s 60B(2)). Together, they represent a number of obligations cast upon those responsible for the nurturing and care of children and rights enjoyed by those children accordingly.
The statutory Objects and Principles are unifying aims, but attempts to meet the Objects, and to accord with the Principles, will vary from parent to parent and child to child. The individual characteristics or idiosyncrasies of parents will invariably mark the parenting relationship. Where parental conflict (particularly significant conflict) intervenes, differences in belief systems, personality, psychopathology, attitude and the like are thrown into sharp focus. The circumstances in which aims – statutory or otherwise – are satisfied, or not, must vary with the individual parents and children and with their particular circumstances.
Decisions about the best interests of individual children, arrived at by weighing those Objects and Principles, and the statutory Considerations are given further statutory direction and specificity by further statutory requirements which:
(a)direct a court to presume (rebuttably – s 61DA(4)) that shared parental responsibility is in a child’s best interests (s. 61DA(1)); and
(b)require, consequentially, the court to consider whether an equal time order is in the best interests of the children (s65DAA(1)); and
(c)if not, require the court to consider whether a child spending “substantial and significant time” (s 65DAA(2) (as defined – s 65DAA(3)) with each parent is in the children’s best interests; and
(d)require the court to consider the extent to which parents have fulfilled their parenting obligations, particularly in the post-separation period (s 60CC(4) and (4A).
The two requirements earlier referred to, relating to the amount of time children spend with their separated parents, are each governed, in turn, by a consideration of not only whether either is in the children’s best interests but, also, whether each is “reasonably practicable” (s 65DAA).
The determination of “reasonable practicability” is, also, not left at large but is circumscribed by a number of statutory factors, including geographic distance, capacity to implement the relevant arrangements; the capacity of the parents to communicate with each other in the future; the impact on the children and any other matters which the court considers relevant (s 65DAA(5)).
Ultimately, the court must bring a consideration of all of the statutory matters to a practical and enforceable conclusion in the individual circumstances of conflicted parents who, by definition, cannot agree sufficiently to do so themselves.

The Source of Power

In the present case, which attracts the convenient descriptor, “relocation case”, counsel for the father referred in written submissions, and during the hearing, to my decision in Pitken and Hendry [2008] FamCA 186. In that decision, and more recently in the matter of Lansa & Clovelly [2010] FamCA 80, I attempted a distillation of the principles emerging from the legislation and the earlier decisions of the High Court and the Full Court there referred to. Counsel for the father also referred to a more recent decision of the Full Court in Starr and Duggan [2009] FamCAFC 115. All of those decisions were handed down prior to the recent decision of the High Court in MRR v GR.
The decision and principles enunciated within MRR are, of course, of very significant general importance but they can also be seen to be of particular importance to the facts of this case, in which both parties and the Independent Children’s Lawyer contend for an order that the parties have equal shared parental responsibility for decisions about “major long term issues” of the children, and in which the mother seeks to relocate with the children internationally.
The High Court held in MRR:
8.Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." [emphasis in High Court judgment]
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n 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".
In what might be seen to be a particularly important part of the judgment, the High Court went on to hold:
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.[footnote and citation omitted]
And, later, in another passage which I consider, with respect, to also be particularly important to this case, it was held:
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s. 61DA(1) is not determinative of the questions arising under s. 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
In my view, it remains the case that, as I said in the earlier decisions referred to:
· A “relocation case” is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.
· A relocation case falls to be determined like any other parenting case: the fact-finding (or value-finding) exercise required by s 60CC is directed toward ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time.
But, other matters there referred to must now be reconsidered. In particular, while factual findings about best interests will drive many of the matters crucial to be considered in arriving, ultimately, at a decision about appropriate orders (for example, whether, in appropriate cases, the presumption of equal shared parental responsibility is rebutted), it is also in my view necessary to make distinct findings about reasonable practicability.
Findings about best interests might be seen to have a predominant relationship with the child; findings about reasonable practicability might be seen to have a predominant relationship with the parents. Writing in the Australian Law Journal after the decision in MRR, Dr Dickey QC has said:
In the majority of cases concerning a child’s future there must be a balancing of the interests of the child with the interests of each of the parents. The interests of the child do not override the interests of the parents; they have to co-exist with them. The function of the court is to balance these interests in a way that best promotes the welfare of the child whilst giving appropriate recognition to the claims and interests of the parents.
(Reflections on MRR v GR (2010) 84 ALJ 296)
The court is bound to consider carefully the proposals of the parties but, in ultimately making parenting orders, is not bound by the parties’ proposals; an obligation exists to formulate (subject to procedural fairness considerations) orders considered to best meet the best interests of the subject children. (See AMS v AIF (1999) 199 CLR 160; U v U (2002) 211 238). Section 65DAA, as it seems to me, legislatively endorses that approach. The obligation created by the section is an obligation to consider the matters there enumerated - independent of the proposals of the parties – in circumstances where an order provides, or is to provide, for the parties to have equal shared parental responsibility.

The Nature of the Inquiry?

The Full Court said in Starr and Duggan [2009] FamCAFC 115:
36.The Full Court [in McCall & Clark [2009] FLC 93-405] … pointed out that in seeking to address the relevant provisions of the legislation it is inevitable there will be “dual consideration” of some matters. This is so because consideration of the s60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals. Some of the matters to be considered under s 60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s 65DAA, especially s 65DAA(5).
In the same case, the approach of earlier Full Courts to the manner in which the parenting enquiry should take place was endorsed:
38. … it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
·First make findings concerning the relevant s 60CC(3) 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.
It seems to me that the subsequent decision of the High Court in MRR gives cause to respectfully review at least some of those statements.
While it is plain that the legislation does not, itself, mandate any particular order for the consideration of the prescribed matters, if, as the High Court has determined, s 65DAA contains the power to make parenting orders in the circumstances specified within it, and its provisions contain, as the High Court has said, “… a power which is conditioned much as it is where a jurisdictional fact must be proved to exist…”, it seems to me necessary to first make findings necessary to decide whether the power is invoked: namely, findings about whether an order “is to provide that a child’s parents are to have equal shared parental responsibility for the child”.
That question, in turn, depends upon whether the statutory presumption (s 61DA) applies or, does not apply (s 61DA(2)) or, is rebutted (s 61DA(4)) or, whether one or more parties, independent of the application of the presumption, seek such an order.
Taken together, then, the decision in MRR and the provisions of the Act (as interpreted by the High Court) require the court, as a first step, to make findings so as to determine the question of whether the presumption applies or, independent of that, whether the court should make an order to that effect (either because one or other of the parties seek it, or because, subject to natural justice considerations, the court considers such an order is in the best interests of the children the subject of the proceedings). That decision involves findings about either “family violence” or “abuse”, as each is defined, or “best interests”. (See s 61DA.)

Summary of Principles

The decision in MRR, in combination with the legislative requirements (and bearing in mind the Full Court’s decision in Goode v Goode (2006) FLC 93-286), would, then, appear to me to require a court contemplating the making of parenting orders to:
·First apply a presumption that it is in the best interests of the subject children for their parents to have equal shared parental responsibility in respect of them;
·Next, make findings as to whether any “family violence” or “abuse”, as each is defined, exists;
·Further or alternatively, then make findings, by reference to s 60CC(3) about such matters pertaining to best interests relevant to the issue of whether parental responsibility should be shared equally;
·Determine, accordingly, whether the presumption of equal shared parental responsibility is, as a result of findings about each (or, perhaps, both) of the above matters, respectively, inapplicable or rebutted or, presumption or not, whether such an order should be made;
·If the presumption is inapplicable or rebutted, and such an order should not otherwise be made, make findings about best interests relevant to a determination of what ultimate orders are in the best interests of these particular children in their particular circumstances (s 65D; s 60CA; s 65AA). (As the Full Court put it in Goode, the enquiry about best interests is “at large”);
·If the presumption is not inapplicable or rebutted, or if it be determined that an order for equal shared parental responsibility should in any event be made, the court must (s 65DAA) then proceed to:
oMake findings as to whether the subject children’s best interests are best met by an order for equal time; and
oMake findings as to the matters prescribed in s 65DAA(5), and, as a result;
oMake findings about whether an equal time order is reasonably practicable (that is, in the words of the High Court, make “a practical assessment of whether equal time parenting is feasible”); and
oIf it is not, conduct the same process, but this time with findings directed to a consideration of whether a “substantial and significant time” order (as defined – see s 65DAA(3)) should be made;
·If neither an equal time order, nor a substantial and significant time order, should be made, proceed to determine the orders which the earlier findings point to being in the subject children’s best interests. (s 65D; s 60CA; s 65AA).
It might be thought that, as a matter of logic, if neither party seeks an order for either equal time or substantial and significant time, a consideration of the power to make such an order may become moot. But, that is clearly not so.
First, the court must (subject to procedural fairness) formulate proposals, independent of the parties, consistent with findings about the children’s best interests. (See, eg. U v U, above). Secondly, while, in accordance with the High Court’s judgment in MRR, s 65DAA contains the power to make those orders, the section also plainly casts an express obligation upon the court to consider the exercise of the power to make each such order in the prescribed manner when the precondition to its application is met (viz. an order is to provide for equal shared parental responsibility). That statutory obligation exists despite the fact that, in any given case, neither party seeks an order of either type.
I propose to apply my understanding of the principles just outlined in arriving at orders in this case.

Best Interests and Parental Responsibility

I propose to make parenting orders in respect of these two young children. Thus, I must apply a presumption that it is in their best interests that their parents have equal shared parental responsibility for them.
The facts of this case permit of the potential finding that one or both parents of the children “has engaged in family violence” and that, accordingly, the presumption “does not apply” (s 61DA(2)).
In that respect, it might be observed that reference to “family violence” is not, where used in s 61DA(2), qualified by any reference to quantity or severity. So, too, the (wide) definition of the term itself (s 4). Thus, potentially, proof of any family violence of any extent or frequency would render the presumption inapplicable.
The potential for a finding in this case that a party has engaged in “family violence”, arises from a single incident described at some length in the affidavit material of the parties. It is summarised, I think accurately, by Ms E in her Family Report as follows:
15.[The father] and [the mother] both reported an incident in May 2009 which appears to have epitomised [some conflict but an attempt by each of the parties to deal with it appropriately]. They have each provided rather specific details of this in their respective affidavits, thus it will not be repeated, other than to say that it involved [the mother] throwing water at [the father] who in return pushed [the mother] causing her some harm. It would appear, though, that both parties share responsibility of behaving inappropriately and are likewise responsible for the catalyst of this incident e.g. lack of supervision at [D’s] bathtime”.

No party cross-examined the other in respect of this incident. It was not suggested to the father in cross examination that the mother was at risk from – or had any fear or apprehension about – the father from any behaviour that might fit the description of “family violence”, nor was any cross examination directed towards the mother in that respect or any submissions made to that effect.
It has never been suggested by either party in respect of the other that they present any physical or psychological harm to the children or that either party would expose the children to any abuse, neglect or family violence. Neither party suggested that there was any need to protect the children from any such behaviour at the hands of the other. Neither party expressed any fear or apprehension of the other; despite them continuing to live apart under the one roof.
I am not satisfied that the single incident meets the definition of “family violence”; there is insufficient evidence of the conduct causing a reasonable person in the shoes of either party to have the required fear or apprehension. (See s 4 and the Note to the definition).
The parties each seek, and the Independent Children’s Lawyer supports, an order for equal shared parental responsibility. The evidence points clearly to that order being in the children’s best interests. As will emerge, it can be found that the children love, and are significantly attached to, each of their parents. It is plain that these children would benefit from the involvement of both of their parents in relation to decisions about the long term issues affecting them.
In terms of the questions posed for myself earlier, I find:
·The statutory presumption applies;
·No “family violence” or “abuse” has occurred such as to make inapplicable the statutory presumption;
·The best interests of the children here do not point to the rebuttal of the presumption;
·An order for equal shared parental responsibility should be made.

What Are the Parties’ Co-Parenting Proposals?

In AMS v AIF (1999) 199 CLR 160, Hayne J held:
[215]… to put the matter another way, what were the issues for decision? In particular, was the court to assume that one party will move his or her principal place of residence; was the court to assume that this may happen; was the court to decide whether it may happen? [emphasis in original]
[216]An important, probably essential, step in the inquiry into who should have custody of, and access to, the child is to identify where the custodial parent intends to live, for that will determine where the child lives and affect what contact the non-custodial parent can be expected to maintain with the child. But, that is not to say that it is for the court to decide where the custodial parent may live: that decision is to be made by the parent.
Earlier, his Honour, in emphasising that the question for the court in cases of this type is neither whether a parent is, or is not, permitted to move nor whether a parent has, or has not, shown good reason to move, said:
[217]… Of course, the decision of a parent who is about to move and who seeks custody may well be affected (often it will be determined) by whether he or she will have custody of the child if that proposed move is carried out … the proper focus is which is better for the child – to be in the custody of the father (in Perth) or to be in the custody of the mother (in Darwin)
His Honour went on to say:
[219]The complexity and difficulty of the inquiries which must be made is increased when, as was the case here, a parent’s wish to move is expressed conditionally – I will go unless I cannot then have custody. It is more difficult and complex because there are then three possibilities for consideration …
Complexity of the type there described by his Honour is evident in this case. During the course of the hearing, and, in particular, consequent upon the cross-examination of Ms E, there emerged the potential for the parties’ proposals to have changed from those contained in their respective Case Outlines filed prior to the hearing. With that in mind, I required each of the parties to submit a document outlining the precise terms of the orders sought. Each party’s proposals contain different permutations.
The father contends for orders “if the mother lives in Brisbane” or “if the mother relocates to Brazil”. The mother’s proposals contain further permutations. Orders sought by her “if the court orders the children live in Brazil” are divided into “If the father resides in Brazil, and the parents do not reside together” and “If the father resides in Australia”. Alternative orders are sought “if the court orders that the children are to live in Australia”. Those orders are, in turn, divided into sub-proposals: “if the mother resides in Australia and the parents do not reside together” and “if the mother resides in Brazil”.
Contained within the first of the two last-mentioned sub-proposals is a proposed order that:
During the period the mother returns to Brazil to attempt to secure a further 3 years leave from her employment, the children shall live with the father in Australia and the father shall make the children available every day at 7am Brisbane time (6pm [Brazil] time) to speak to and see the mother via Skype or similar electronic communication.
This refers to an important aspect of the mother’s evidence to which further reference will later be made.
Amidst that complexity, the questions posed by Hayne J outlined above become important. In attempting to answer them, by summarising the parties’ essential positions, I also have in mind what each of Kirby J and Gaudron J said in U v U, above (albeit each in dissent). As Gaudron J expressed it (at 37):
… 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... .

The Father’s Proposals

No proposal of the father suggests that he can, or will, move to Brazil or that the children should live there. He puts forward no proposals in the event that the court’s orders are to the effect that the children live in Brazil with the mother. His sole proposal is that there should be an equal time order, expressed in differing ways. He proposes that until July 2011 the equal time should be divided 3 nights / 4 nights in alternating weeks. From July 2011, he proposes the children should divide their time between the parents week about.
Each of the father’s proposals includes half school holidays and special days and contemplates trips by the mother with the children to Brazil and America for three weeks in the Christmas school holidays in alternating years. If the mother resides in Brazil, he proposes the alternating three-week periods in the Christmas holidays just referred to, together with e-mail, telephone and Skype communications three times per week.

The Mother’s Proposals

The mother’s primary position is clearly that she and the children should live together in Brazil. In the event that this occurs and the father lives in Brazil, she proposes that she rent an apartment and provide a car to the father for six months. Time with the father would occur each second weekend for three nights and for half of school holidays. Additionally, the father “shall be at liberty to visit the children or take them on an outing for a period of at least one hour each school day when they are not at school/crèche”. The proposed order contemplates, during the Christmas school holidays, the father taking the children to Australia “for any period nominated by the father up to the entire period of the holidays …”.
If the father continues to live in Australia, the period of time in the Christmas holidays is contemplated as face to face time between he and the children, together with communication daily by Skype “or similar electronic communication”. Provision is also made for time in the event the father visits Brazil, with specified conditions.
In the event that “the court orders that the children are to live in Australia” the mooted orders contemplate, in the event that the mother also lives in Australia, alternate weekend time with the father with the daily visits “between 6pm and 7pm each day” earlier referred to with a similar one hour visit (between 2pm and 3pm) on the weekends when the children are living with the father. Half holidays, special days and a trip to Brazil by the mother and children are also contemplated.
In the event that the children are ordered to live here and the mother lives in Brazil, she proposes that the children live with the father; that the children communicate daily by Skype and that there be yearly time in Brazil “for any period nominated by the mother up to the entire period of the holidays …”. Provision is made for “block” periods of time in the event that the mother visits Australia. Provision is also made for special days “wherever practicable”.

The Independent Children’s Lawyer’s Proposals

The Independent Children’s Lawyer submits that, wherever the mother resides, the children should live with the father. Alternative “spends time with” proposals are submitted in the event of the mother living proximate to the father in Australia or her returning to live in Brazil.
In the event that the mother was to live proximate to the father in Australia the Independent Children’s Lawyer proposes a fairly lengthy process to achieve, ultimately, a week-about regime. This gradation of time would commence with the mother spending time with the children for a few hours after school each week day and for overnight time on alternate Saturdays.
It is submitted that this gradual progression to a shared care regime ought take (using the expression contained in the proposed orders) “a number of months” but leaves the ultimate timeline otherwise unspecified. The proposal would seem to mirror Ms E’s evidence which was (in evidence that might be seen to be somewhat inherently contradictory) that, ideally, a shared care or ‘week-about’ regime was “some years off” for these children “or at the least a matter of many months”.
As I apprehended her evidence, though, that opinion should be seen in the context of the recommendation made in her report that “the parenting arrangement that is in the children’s best interests is the one that ensures that they have frequent and regular time with both of their parents”.

How Should the Parties Proposals be Viewed?

Reference to the permutations just outlined illustrates that the imperatives posed by Hayne J quoted above are not easily answered in this case. However, when the evidence as a whole is properly viewed, it can, in my view, be said that the central issues for decision respectfully expressed in Hayne J’s terms, are:
·The court should assume that the father will not move to Brazil;
·The court cannot assume that the mother will move her place of residence to Brazil; her position is dependant primarily upon the court’s decision as to the children’s living arrangements;
·The court can assume that the mother moving to Brazil may happen, but this is unlikely in the event that it is considered the children should live here; in that event the mother will seek to manipulate her employment so as to permit her to live here for the next three years while retaining her Brazilian employment; and
·The court is to decide whether the children should be permitted to live with the mother in Brazil.
The reference by the mother to the period of three months in the proposed order quoted earlier is to a period which she says is necessary to be spent by her in Brazil in attempting to secure a further three years leave of absence from her employer. This reflects evidence given by the mother during the proceedings that she is currently on a long-term leave of absence from her Brazilian employer. The mother says that, in the event that this Court decides the children cannot live with her in Brazil, she will travel to Brazil in order to secure that further extended leave of absence, in which event she will return to Australia so as to resume her erstwhile caring role for, and relationship with, the children.
She says in evidence that, because of the situation she confronts emanating from the issues in these proceedings, she has been told orally that she will be granted this three-year absence (thereby, I infer, retaining her position with the company at the end of that time). The mother said, “it is 99 percent certain” that the oral arrangement will be made formal. However, it is, she says, necessary for her to travel to Brazil for that to occur.
The father swears that there are a number of reasons why he cannot (or will not) contemplate co-parenting the children in Brazil. He says employment opportunities there are limited. He says he is unable (and is probably unwilling) to learn Portuguese to a necessary standard. He says that, without fluency in that language, not only are his employment opportunities limited but so, too, are his social opportunities. In any event he has no desire to live in Brazil.
A proposition central to the mother’s case, advanced by her solicitor at the outset of the hearing was repeated in written submissions made on her behalf at its conclusion. It is said in the latter:
There is no way to predict with certainty whether, if orders are made that the children reside in Brazil with their mother, that their father will not follow and live in Brazil … the evidence is that the father spent four months from February 2003 on a tourist visa in Brazil before he met the mother in June 2003. There is no reason, therefore, why he should be too timid to do this again if the children returned to Brazil with their mother.
Interestingly, in what might be seen to be a similar vein (but from an opposing perspective) the family consultant Ms E says in her report:
67.… [the mother’s] proposal significantly reduces the children’s time with the father; [the mother] has two choices available to her. She can consent to such an arrangement foregoing her desire to return to Brazil in favour of the children having a meaningful relationship with both parents. This would require [the mother] to continue to make the personal sacrifices inherent in this arrangement; sacrifices that she was prepared to make when she agreed to return to Australia most recently for the sake of family unity. Alternatively, [the mother] can return to Brazil, essentially relinquishing her relationship with the children in favour of her “rich social life” and job. This option would be sad for the children for all the reasons aforementioned.
68.Ultimately, though, the children’s loss of relationship with their mother, in my opinion, would be her own doing. This would be her choice. It is not inherent in [the father’s] proposal which favours both parents playing a significant role in the children’s lives unlike [the mother’s] proposal. Under [the mother’s] proposal, by virtue of her desire to return to Brazil with the children will impact significantly on the role their father has in their lives. [The father], however, has the option to follow his children to Brazil.
In another part of the report, Ms E says:
31.[The mother] spoke about the sacrifices (eg loss of social life and permanent employment) that she originally made when she followed [the father] on this most recent occasion to ensure the unity of their family. She indicated, though, that it was [the father’s] decision to break up the family. Therefore, she was not motivated to keep making these sacrifices, “the mother don’t have the motivation any more to make sacrifices”. [The mother] gave the impression that if the circumstances had been different she would more than likely have remained in Australia, continued her efforts to make a life for herself here (eg establishing permanent […] business; making links to social networks) as she had said words to that effect.
Neither earlier decisions of the High Court nor of the Full Court render irrelevant the reasons for parties moving or not moving. In part, that is because it is inappropriate to assume that one party cannot move to a place which the other party would wish to live with the children (see Hayne J in U v U, above, esp. at pars 173ff.).
The statements contained in both the submissions of the wife and the report of Ms E are somewhat troubling; each have about them the aura of a moral judgment about what a parent should, or should not, do if they are to be seen as an appropriately loving, or child-focused, parent. The question of whether either parent can, or will, move (or stay):
…should not be treated as mere forensic tests of parental devotion to which only one answer is seen as being satisfactory proof of being a loving parent. Rather, they are not more than a prelude to a deeper inquiry about where the best interests of the child may lie and what arrangements will best serve those interests. (per Hayne J, U v U, above, par 175)
The reason that a significant reduction in the mother’s time with the children is “not inherent in [the father’s] proposal” and the reason that his proposal “favours both parents playing a significant role in the children’s lives” is because his proposal involves the predominance of his choice of residence and a denial of the mother’s. If the mother and children live in Brazil, the father’s proposal does not “favour both parents playing a significant role”; it contemplates him playing a very limited role. In those circumstances, a significant reduction in the father’s time with the children is inherent in his proposal.
In my view, the mother’s choices have neither more, nor less, “legitimacy” than the father’s choices. The mother – understandably and legitimately – wishes to live in Brazil. Brazil is a country where her family lives and with which she identifies. She considers it a preferable place to live to Australia. It is understandable that a caring and loving mother would want her children to live with her in that country. Equally, the father –understandably and legitimately - wishes to live in Australia. It is the country of his birth. He likes living here. He considers it a preferable place to live to Brazil. It is understandable that a caring and loving father would want to have his children living with him in Australia.
If , as Gummow and Callinan JJ suggest in U v U at [92],“[t]he reality is that maternity and paternity always have an impact upon the wishes and mobility of parents [and] obligations both legal and moral, the latter sometimes lasting a lifetime [are] restrictive of personal choice and movement …”, it is a reality restrictive of the choices of each parent and applies (or should apply) just as much to decisions to stay as it does to decisions to move.
The issue is, “where [do] the best interests of [these two young children] lie and what arrangements will best serve those interests” (per Hayne J, above). To that statement it need now be added “if (as here) the parents are to share equally parental responsibility, is an equal time order (or substantial and significant time order) ‘reasonably practicable’”.

What Co-Parenting Arrangements Are Consistent With Best Interests?

Agreed Findings

The findings which, all parties agree, are uncontroversial in this case and which are enumerated in Exhibit 1 are:
1.The children are each very young and are too young to express “views”;
2.Additionally, the children are too young to appreciate the effect of separation from either of their parents;
3.The children are closely bonded and attached to each of their parents;
4.Whilst allegations are made by each parent about alleged parenting deficiencies in the other, each parent is, in fact a “good enough parent” as that expression is used by Ms E in her report (that is, in the sense coined by the British paediatrician, psychiatrist and psychoanalyst Donald Winnicott and used thereafter in the psychological literature);
5.In that respect, Ms E is right when she says (para 49) that, while both parents allege limitations in the other’s parenting, if what each alleges about the other is true, it does not necessarily strengthen their respective individual arguments. That is emphasised by (among other things) reference to the respective proposals for the involvement of the other parent in each parent’s proposals;
6.Apart from a period of about 6 months two years ago, when the children were about 3 and 18 months old, they have lived with both of their parents, including during the almost 12 months that the parties have been separated under the one roof;
7.Any proposal, including a co-parenting arrangement in Australia, will involve a change for the children to what they have erstwhile experienced;
8.A proposal that sees their parents separated with one living in Australia and one living in Brazil will involve a very significant change for them;
9.If the children stay with one parent and the other parent does not move to Brazil or stay in Australia as the case may be, the children will be separated from an important loved person in their lives and the children are likely to suffer at least some emotional detriment as a result. In particular such a result, to use Ms E’s words, “can be destabilising, thus, undermining their capacity to form secure attachments to either of their parents and form healthy relationships as adults. Such an arrangement can cause children to become anxious and stressed which can impact upon their developmental progress”;
10.In the event of that separation “whilst regular communication would assist in compensating for this loss [of both parents regularly in their lives], at this age it is not a satisfactory replacement / alternative to regular experiential time” (Ms E par 58);
11.In the event of that separation, the amount of “experiential time” will, by reason of the parties’ respective proposals, and practical considerations of cost and distance, be effectively reduced to a couple of times per year;
12.A relationship bounded by that “experiential time” [again adopting Ms E’s words] “is not good enough, particularly at [D] and [R’s] age”;
13.Each parent is likely to react with distress and disappointment to a decision not in accordance with their desired outcome.

To that list can be added a number of findings, each of which find reflection in the Act’s Primary and Additional Considerations, and about which there is either agreement or very little controversy.

Findings: Primary and Additional Considerations

There is no doubt that the children will benefit from having a meaningful relationship with each of their parents. As importantly, I consider that each of the parties sincerely accepts the benefit to the children of a meaningful relationship between the children and their other parent.
It was submitted on behalf of the father that the children need a relationship which is simple, predictable and consistent. Ms E agreed that a relationship that fitted that description was likely to be of significant benefit to the children. I also agree.
I assess each of the mother and father to be a decent, loving, caring parent who is sincerely motivated to do what he or she can to provide for the physical, emotional and psychological needs of the children. They have, despite their separation under the one roof, and the necessity to deal with the troubling matters occurring in October 2008 earlier referred to, managed, for the most part, to conduct themselves in a child-focussed manner and to protect the children, as much as possible, from disputes between them, including the central dispute the subject of these proceedings.
The Independent Children’s Lawyer and Counsel for the father submit that, in the very finely balanced context of this case, the willingness and ability of the parties to facilitate a relationship with the other parent is a particularly important consideration and a finding ought be made that the father is the parent more ready and willing to promote a relationship with the other parent. It is submitted that, conversely, the court would find that the mother will not foster a relationship between father and children.
This submission rests heavily on the steps taken by the mother to remove the children from Australia in October 2008. It is necessary that I say something of this incident.
In October 2008, following an argument between the parties about a chosen activity with the children for the day, the mother was left at home while the father went out with both children. The mother, it seems, saw this incident as the catalyst to set about a permanent separation from the father. The mother concedes that she made a decision to return to Brazil with the children, leaving the father in Australia.
It is to be noted, and I expressly stated during the hearing, that the mother’s formulation of this plan to remove the children from the country - and from their father - is very serious behaviour worthy of criticism and condemnation. I left the mother in no doubt that such a course of action is obviously very grave and presents her in a poor light. The Independent Children’s Lawyer submits that the preparatory steps taken by the mother to achieve the return of the children to Brazil ought lead the court to find an inability or unwillingness to promote a relationship between father and children.
The mother deposes in her affidavit dated 15 October 2009 to the steps she took over the course of a few days to organise and book flights for herself and the children to return to Brazil. Following threats by the mother to retain the father’s licence until he handed over the youngest child’s passport, the father phoned the police and the mother handed the licence back. The mother deposes that, on the following day, after the husband had departed for work interstate, she:
…called in at [the father’s] workplace… and searched the drawer of his desk. I found [R’s] passport there, and took it.
The next day…I went with the children to Flight Centre…and paid a $200 deposit on the flights …using cash from the ATM. I told my parents during the day of my plans to come home, and my father counselled me to try harder with our marriage, and not give up yet. I did not listen at first and returned that day to Flight Centre to pay the balance of the fares.
The mother goes on to explain that, in order to acquire the funds to pay the balance of the airfares she asked her brother for credit card details. In the process of waiting to receive these details the mother concluded that she would not pay the remaining balance and she ultimately sought a refund of the deposit monies. I do not accept the submission of counsel for the Independent Children’s Lawyer that the booking of the flights aggravates the conduct otherwise displayed; there is, in my view, one course of (seriously inappropriate) conduct.
Ultimately, I am not satisfied that I ought otherwise make the finding urged on behalf of the husband and the Independent Children’s Lawyer. While there is no doubt that the threatened removal of the children from this country is extremely significant, I do not consider that I should extrapolate from that the conclusion sought. I am, for example, particularly cognisant of the following passages from Ms E’s report forming part of the foundation for the agreed findings earlier outlined:
…[the father] and [the mother] have attempted to weaken the other’s argument (without malice) by alleging limitations in the other’s parenting capacity, character and/or the role that they respectively play in the children’s lives. In my opinion, if what each parent alleges about the other is found to be fact, does not necessarily strengthen their respective individual arguments.
Both [the mother and the father] are generally in agreement that the other is a ‘good enough’ parent…and that any disharmony/conflict/abuse exchanged between them is generally indicative of their frustration at each other and the situation that they find themselves in, that is, living together despite separation.
In my view, the October incident, while serious, is not (in the context of the analysis of the statutory considerations) indicative of a general attitude by the mother toward the father or her view of his importance in the children’s lives. She is, in my assessment, a caring and intelligent woman who well understands (and embraces) the importance of that relationship who acted very poorly to the stress of not being able to achieve her desire of living in Brazil with the children in circumstances where the parties co-parenting has occurred under the one roof and in a country in which the mother does not wish to remain.
The children were described during the course of proceedings as having a “mixed cultural heritage” and I have little doubt that each of the parties is respectful of the other’s cultural heritage and will seek to promote the other’s heritage and positively celebrate, and assist the children to enjoy, the fact that they have a mixed cultural heritage.
During the course of proceedings, the mother attempted to assert (and asserts in written submissions handed up ultimately on her behalf) that her “parents are more closely bonded to the children than the father’s parents”. I can see little evidentiary foundation for that assertion. In any event, to the extent that a consideration of that specific issue is relevant to these proceedings, I consider it plain on the evidence before me that the children have, and have been and are encouraged to have, an appropriate close relationship with each of their maternal and paternal grandparents and the parties’ respective extended families.
I accept the submissions made by counsel for the father that, in addition to the matter listed at paragraph 2 in the agreed findings enumerated above, the children are too young to appreciate the concepts of time and distance. In that respect, Ms E was of the view that, given the children’s ages and stages of development, what adults considered to be long separations and what children considered to be long separations are likely to be very different.
I accept that children need to be able to frequently “touch base” and need reliability and stability in their capacity to do so. In that respect, Ms E was of the view, not challenged, that, generally speaking, children do not reach a stage where they can withstand significant separation with a parent with whom they are closely attached until “later primary school years”.
It is submitted on behalf of the mother that “the mother is the primary carer”; and that “the loss of contact with their primary carer will be devastating for the children”; and that whilst each of the parties have “a good capacity” to provide for the needs of the children including their emotional and intellectual needs, “the mother is the primary carer”.
The foundation for that submission is said to be that the mother has spent more time (and, inferentially, more day to day caring time) with the children than the father. The father is remuneratively employed and there is, at least at the present time, substance in that submission with respect to quantity of time. Ms E’s account is, in my view, an accurate summation of the evidence in that respect:
16. It would appear by both parties’ accounts that they have each played an active role in performing primary tasks for the children, sometimes one more than the other dependent upon the circumstances. While [the mother and father] dispute the extent of [the father’s] involvement, they generally agree that he is currently actively involved with the children but not necessarily to the same extent as [the mother] because of his work commitments…”
Ms E observes, correctly as it seems to me, that “neither parent disputes the children’s attachment to the other nor the quality of their relationship”. She says, and I accept:
56. At this age, [the children] need experiential quality of time with their parents (eg. parent/s reading to them; parent/s bathing them; parent/s playing with them) as this establishes the foundation upon which their attachment to their parents is developed … if occurring frequently, [the children] will internalise that their parents are reliable, safe and secure providers, which in return sets up for them the basis on which they can build upon on order to develop into well adjusted, emotionally healthy, independent, productive adults”
57. …[the children] will [if this occurs] develop positive memories of their parents … and as they mature this would afford them the capacity to sustain increased time away from one or both of their parents with minimal to no impact upon their attachment to them. They will be able to rely upon this established foundation and most likely be able to maintain a meaningful relationship with relative ease, despite independence, distance or long period of separation”
I also accept the opinion of Ms E, given consequent to the passages just quoted that, “[a]s it stands, it will be some years before this is the case for [the children]”
“Primary care”, to the extent that the expression, of itself, has meaning, is often merely a reflection of quantity of time spent with a child. A recognition that the manner in which the parties organised their pre-separation co-parenting arrangements resulted in one parent spending greater quantities of day to day time with children does not relegate the other parent to an inferior or subsidiary position. Quality of time is, it might be observed, just as important in establishing the attachments on which rich future relationships are built. So, too, children’s attachments with each of their parents can vary with their ages and stages of development.
With very young children, though, “available time” or “experiential time” can be extremely important. Here, the children are yet very young and each of their parents has participated significantly in their day to day care. The father did so for a period of time when the parties lived in Brazil and the mother was working remuneratively. For a short period of time, one parent parented one of the children while the other parent parented the other, although, when that occurred, the children were significantly younger than what they are now.
Those factors together with the continued cohabitation of the parties under the one roof are the apparent foundation for Ms E’s opinion that the children were securely attached to each of the parties (as distinct from being primarily attached to one or the other). I accept that opinion.
Plainly, when parties have been residing together post-separation, change to that situation - particularly in respect of very young children - marks a very significant change in their erstwhile relationships with each of their parents. That will be all the more so if a proposal is carried into effect which will see a very significant geographical separation between the children and the other parent, with all of the consequent difficulties for regular face to face time (or what Ms E calls “experiential time”) which that implies. There is no doubt that this is a significant consideration in this case. Predictability and the maintenance of such routines as can be maintained when the parties physically separate, and the children’s circumstances change significantly as a result, can be seen to be particularly important.
What Ms E says in her report about “experiential time” and the reference earlier made to her opinion about the need for frequency in time between children of this age and stage of development and each of their parents so that they can “touch base” emotionally (with which I agree), leads to a conclusion that physical face-to-face time is of a markedly different (and superior) quality for the children than time that can be facilitated by technological means (even relatively advanced technological means such as Skype and the like). Ms E’s opinion was to that effect and I accept it.
Ms E opines with respect to issues central to an ultimate finding about the children’s best interests:
58. … To separate [the children] now from one of their parents by virtue of relocating to another country would essentially make the other parent an absent figure in their lives, a virtual stranger. Whilst regular communication would assist in compensating for this loss, at this age, it is not a satisfactory replacement/alternative to regular experiential time.
…
Relocation to another country, in my opinion, essentially rules … out [regular time between children and the ‘absent’ parent]. It is simply not practical. The children’s time with the other parent is generally reduced to a couple of weeks, once or twice a year. This is not good enough, particularly at [D] and [R’s] age.
…
Ideally, if the issue of relocation is not a factor, I would be likely to promote a parenting arrangement that allowed the children to live with one parent and spend periods of time (eg hours) with the other parent on a regular basis (eg daily on alternative days) graduating to overnight, and eventually as they mature, to an equal shared care arrangement …
I agree and repeat here what I said in another case as I consider the statements equally applicable to the facts before me:
45. The statutory considerations must be seen in the context of the Objects and Principles which are also enshrined in Part VII of the Act. The rights of children enshrined in s 60B are challenged by any proposal that sees loving and caring parents, interested in their children’s nurture and development (as I find each of the parents in this case to be) separated by significant geographical distances – in this case, by international boundaries.
46. For example, the right of children “to know and be cared for by both their parents” and their right to “spend time on a regular basis … with both their parents”, [emphasis added] can be seen to be challenged by such a separation. An important aspect of a decision about the best interests of these particular children, in the particular circumstances in which they find themselves, is the recognition of their statutorily-enshrined rights, including in particular, those just highlighted. [Lansa & Clovelly [2010] FamCA 80]

Findings about Best Interests Generally

I find that the co-parenting arrangements which are in these two young children’s best interests, at this stage of the children’s respective ages and stages of development, are those which permit significant, regular involvement from each of their parents in all aspects of their lives. In my view, the court should adopt a proposal of the parties, or fashion its own proposal (see, AMF and U v U, above) so as to facilitate that outcome whilst bearing in mind that it is not for the court in parenting proceedings to, per se, restrict the freedom of either party to live where they might choose
If the father chooses to live in Australia and the mother and children move to Brazil, that co-parenting arrangement will not be possible. Similarly, it will not be possible if the mother chooses to live in Brazil and the father and children live in Australia. Neither such situation is, in my view, in the children’s best interests.
It will be possible for the broad co-parenting arrangements outlined above to occur if the parents live proximate to each other. If the mother is, as she deposes, able (and willing) to travel to Brazil for the purpose of obtaining extended leave of absence from her employer, and returns to Australia thereafter, practical difficulties will attend her situation but a co-parenting relationship of the type envisaged can occur. I consider that to be in the children’s best interests.
I will not make orders that facilitate the mother and children living remote from the father in Brazil with the consequence that produces for time between the children and their father.

Findings Best Interests – Equal Time

If the mother’s actions are true to her evidence, she will travel to Brazil for about three months to secure long-term leave of absence from her employer and then return to Australia and to the children.
The mother, then, will be in a position, she says, to provide essentially full time care for the children (while at the same time, attempting to secure some remunerative employment). While the parties have lived under the one roof, the mother has, by dint of the manner in which the parties have organised their lives here, spent more day to day time with the children while the father has worked remuneratively. Should she choose to stay in Australia, she will, I find, likely have more day to day time available to care for the children. The father will continue with his remunerative employment. He says he can make changes to that which, in combination with child-caring arrangements, would accommodate essentially full-time care for the children.
I consider that the erstwhile co-parenting arrangements for these children (s 60CC(4)) is important. Clearly, each of the parents has played an important and involved role in all aspects of the children’s care and nurturing. I again note that each of the parents have, in the past, occupied a full-time caring role, albeit for a period of some months and some time ago. They continue to live together in the one home and – within the confines of a relationship which has broken down – co-nurture the children on a daily basis.
That consideration is important and, in my view, combines with other considerations, both primary and additional, already discussed to point to the children spending equal time with each of their parents. But, while an active, regular, involved relationship between each of the parents and the children is in their best interests, it does not necessarily follow that an equal time order is in the children’s best interests (and nor, plainly, should such an arrangement be presumed – see the Note to s 61DA).
As already referred to, I accept the submission by counsel for the father that the co-parenting arrangements that are in the best interests of these children should be “simple, predictable and consistent”. I consider this particularly important in light of the fact that the physical separation of their parents will likely be a very significant, and potentially very upsetting, change for these children.

A week-about arrangement has about it predictability and consistency. It also minimises the number of (and regularity of) changes for the children. Each is a very important matter in limiting the potential for upset, and promoting the potential for stability for these children and, thus, important pointers to the children’s best interests.
However, there is equally important evidence before me which I accept. Children’s needs vary with their ages and stages of development. Neither of these children have, in recent times, been separated from either of their parents for any length of time. As Ms E says, the children do not yet have a concept of their parents as separated. Any change to their current arrangements will be difficult for them.
I accept the evidence of Ms E that these children are yet “too young to spend a week away from their primary attachment”:
… Long periods of time away from the children’s primary attachment can be destabilising, thus undermining their capacity to form secure attachments to either of their parents and form healthy relationships as adults.
Those matters are, in my view, powerful indicators that, at this point in the children’s development, a week-about order is not in the children’s best interests.
I consider that it will be some time before that can occur such that it is not attended by the potential for significant emotional dislocation and detriment to the children. In her report, Ms E refers to it being “some years” before this can occur. In her oral evidence, Ms E said that the point at which the children might be considered able to maintain relationships across lengthy (geographical and time) separations by way of other forms of communication is “late primary school years”.
Ms E circulated to the parties through the agency of the Independent Children’s Lawyer, research upon which she relied and about which she was not challenged. As referred to in the written submissions of counsel for the father, it includes the assertion: “In general, however, most pre-school children become … unnecessarily overburdened by separations from either parent that last more than 3 or 4 days”.
It seems to me that the best interests of these children require a balancing of:
·The need for each of their parents to play an active, regular and involved part in all aspects of the children’s lives and development;
·Consistency, predictability and simplicity in those arrangements;
·As a result changes between households should be kept to a minimum
·Particular attention being paid to active co-nurturing from each parent in the difficult period likely to attend their parent’s physical separation;
·Particularly at that time, and likely for a relatively significant period thereafter, periods of separation should be kept to a minimum.
Ultimately, I have concluded that it is in the best interests of these children to spend alternating weeks with each parent, but not for another two years.
In deciding upon that time frame, I am conscious of the evidence of Ms E earlier referred to (noting, also, her reference to “at least a matter of many months” earlier referred to). I have also taken into account the fact that by then D will be in school and, all being well, have settled into school (noting that the early years of school are, of themselves, a significant change for children). I have also taken into account that, by then, the mother will have returned to Brazil, thereafter returned to Australia and the parties will have had a consequent opportunity to settle into their post-separation lives.
I am also aware that, by July 2012, D will have turned 7 and R will be not quite 6. I am not unaware that R (in particular) will yet be young by the time the alternate-week order will commence. I have considered, and rejected, differentiating between the children in the orders applicable to them. I have done so because I consider that any benefit for R is outweighed by the detriment caused by orders that would be, as a result, less simple and predictable and which would have the potential for D and R to be separated during at least some periods. I consider their relationship, and mutual support of each other, important to them each dealing with the changes that the short and medium term will bring.
The ages and stages of development of both children are among a number of important considerations in assessing the orders that should apply until July 2012. First, the mother will, it seems, travel to Brazil for about three months. I do not consider that the consequent separation from the children is in their best interests. But recognition should be given to the necessity for each of the parents to fashion economic (and other) lives that provide long-term benefits for them and the children. Indeed, to one extent or another, they are interdependent. The father will need to make arrangements to permit of the continuation of the economic and other components of his life. The fact that the mother needs to do so in Brazil is neither better nor worse than that; it is, from the children’s perspective, merely extremely unfortunate.
The arrangements which best promote stability for the children and point clearly to their best interests is for them to remain in Australia with their father during that time and for them to communicate by all such means as modern technology now permits, as frequently as reasonably possible.
When the mother returns to Australia, I can see no reason why there should not be an immediate resumption of her regular involvement in all aspects of the children’s lives. I reject the submission on behalf of the Independent Children’s Lawyer that the mother’s time should, initially, be for a daily period of a few hours and one overnight occasion per week. I do not consider such an arrangement to be in the children’s best interests and can see no reason for making such an order.
In a similar vein, the Independent Children’s Lawyer proposes a lengthy process of increasing time ultimately resulting in alternate-week time. That process starts with an initial period of two months wherein the mother sees the children “from after school/ day care until 6pm” each weekday and overnight Saturday each alternate weekend. In the two months after that, the weekday time continues and alternate weekend time is increased to two nights (after school / day care Friday until 12 noon Saturday). The process continues with specified time occurring for, as the draft orders provide, “a number of months”.
It might be seen that the proposals involve continuity of care by the father and continuity of involvement by the mother. Yet, it is by no means clear to me why, in the children’s best interests, the children’s time with their mother, including, in particular, overnight time, should be of the (limited) duration as suggested; the children have experienced involved quality parenting from each of their parents. The uncertainty of the specified “a number of months” is, for both children and parents, contra-indicated in the children’s best interests.
The proposals involve, during the week, the children waking in their father’s care, changing to one form of child care or another, changing to their mother’s care for a couple of hours and changing back to their father’s care for dinner and bed. Plainly enough, the proposal seeks to have the involvement of both parents in their children’s daily lives and benefit to them might be seen to attach accordingly. However, I cannot persuade myself that the multiple changes in care arrangements inherent in the proposal is beneficial to the children. That factor combines powerfully with the two matters referred to in the previous paragraph of these reason to convince me that the proposal is not in the children’s best interests.
It should be acknowledged that no arrangement provides “the answer” nor does any arrangement preclude detriment; separation of two “good-enough” parents almost always brings with it detriment for children. However, on balance I consider that the children should alternate between households each three nights with the sequence commencing on Friday morning.
In arriving at that arrangement, I have particularly in mind the evidence, which strikes me as being right, that pre-school children are overburdened by separations of more than three or four days. Equally, I consider that each of these loving parents should have the benefits (and, one might say, burdens) of undertaking all parenting tasks, whether during the night or during the day and whether on weekends or on weekdays. Similarly, I consider the children should receive comfort and benefit from a relationship with each of their parents at night.
The number of changes inherent in orders providing for the time envisaged is significant and by no means ideal. Yet, I consider this factor is outweighed by the matters just referred to and, in my view, provides predictability and simplicity for both children and parents.
Time in the sequence intended to be ordered, and commencing on a Friday, will also provide, as time goes on, an equal number of weekday and weekend days, and an equal number of nights, until week-about time commences in July 2012.

Equal Time Orders: Reasonable Practicability

It is plainly not reasonably practicable, having regard to the matters specified in s 65DAA, for the children to spend either equal time or substantial and significant time with their father if they live with their mother in Brazil and he lives in Australia. The same is equally true if the children live with their father in Australia and the mother lives in Brazil.
If the father remains in Australia and, having secured leave of absence from her employer in Brazil, the mother returns to live in Australia, the reasonable practicability of equal time (or substantial and significant time) falls for consideration.
In MRR, the High Court highlighted, by reference to s 65DAA(5) (and in the context of the factual backdrop there applicable), such factors as the availability and desirability of housing, employment opportunities and the ability to gain income (aside from social benefits). The court also referred in that context to the availability or otherwise of familial support and the impact on the emotional and mental health and well-being (of, in that case, the mother) as being pertinent to a consideration of reasonable practicability. (See pars 16 and 18 of the judgment).
I have taken account of those matters in attempting (using the words of the High Court) to take account of “the reality of the situation of the parents and child”, together with the matters specified in s 65DAA(5). “Reasonably practicable” does not mean ideal. Nor does the expression envisage arrangements that are effected without difficulty or disappointment or upset.
By reason of the findings earlier outlined, I consider that if, as she deposes, the mother returns to Australia at the end of three months, it is reasonably practicable for the children to spend equal time with each of their parents.
As I have said, I consider such an order (in the form in which I have expressed it) is in the best interests of these two children.
I will order accordingly.

Travel and Restrictions on Travel

Counsel for the father sought various orders as a precaution that the children not be removed from the country without joint agreement. Specifically, the father sought that the children’s names be placed on the airport watch list, that both children’s passports be retained by himself and only be used with the express consent of both the mother and himself and that the mother pay a $20,000 surety in to the father’s account prior to booking any airfares for the removal of the children outside Australia.
I consider that it is appropriate to make orders of the type sought given the background of the October 2008 incident and the seriousness of the conduct there displayed. I also consider that the security offered by orders of that type is likely to promote a more relaxed co-parenting environment and maximise the potential for agreed time (contemplated in the orders I will make) and other co-operation for the children’s benefit.
I am cognisant of the fact that the mother will likely be very disappointed as a result of the orders delivered and may feel some similar stress to that which preceded the 2008 incident. I have considered that Brazil is a signatory to the Hague Convention but take note of the evidence led by the father that, in official reports examining compliance with the Hague Convention, Brazil has been recorded as showing some concerns of non-compliance.
I am satisfied that it is appropriate in this matter to make orders for the payment of a surety by the mother before any international travel is undertaken with the children.
The evidence given throughout the trial was that the mother has available to her considerable resources – her proposals for time between the father and children in Brazil included her funding the renting of apartments, the provision of a car and other necessities for the father.
On the evidence before me, I am satisfied that the payment of a surety will not render it unworkable for the mother to take the children overseas and will properly protect the best interests of these children.
I am also satisfied that the children’s names ought be placed on the airport watch list and the father ought retain the children’s passports – to be released upon written agreement of both parties (or, otherwise, order of the court). The quantum of the security should reflect the level of resources available to the mother and be sufficient to provide a potential source of funds for the pursuit of remedies should promises not be kept about the children’s movements or should orders not be complied with.
Whilst orders providing for restrictions on non-agreed international travel should be made, I also consider that specific provision should be made in the orders permitting of the mother travelling to Brazil (and more generally). The importance of the children’s Brazilian extended family and the importance of their Brazilian heritage has earlier been referred to. Further, the mother is likely to miss her family and be disappointed in the result ordered. Her family are likely to provide support and comfort to her. It is appropriate that orders provide for she and the children to travel to Brazil on a yearly basis (should she so desire).
I order in accordance with the orders set out at the commencement of these reasons.

I certify that the preceding one hundred and fifty-seven (157) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date: 16 July 2010