CRABMAN & CRABMAN

[2019] FCCA 339

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRABMAN & CRABMAN [2019] FCCA 339

Catchwords:
FAMILY LAW – Relocation – best interests of children – children permitted to relocate – contravention – contravention proved – make up time given.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 61DA, 64B, 65D, 65DA(1), 64DAA(1), 64DAA(2), 65DAB

Applicant: MR CRABMAN

Respondent: MS CRABMAN

File Number: BRC 10907 of 2011

Judgment of: Judge Vasta

Hearing date: 6 February 2019

Date of Last Submission: 6 February 2019

Delivered at: Brisbane

Delivered on: 6 February 2019

REPRESENTATION

The Applicant appearing on his own behalf

The Respondent appearing on her own behalf

ORDERS

UPON APPLICATION MADE TO THE COURT by the Applicant appearing on his own behalf and the Respondent appearing on her own behalf and upon the Court finding that the Respondent mother has, with reasonable excuse, contravened the orders made under the Family Law Act1975 by Judge Coates in the Federal Circuit Court of Australia at Brisbane on 4 November 2015, in that:

(a)in contravention of Order 6(a) thereof she failed to facilitate time between the child Z and the father on:

(i)3 June 2016;

(ii)17 June 2016;

(iii)14 October 2016;

(iv)28 October 2016;

(b)in contravention of Order 6(a) thereof she failed to facilitate time between the children X and Z and the father on:

(i)13  May 2016;

(ii)11 May 2017;

(iii)19 May 2017;

(iv)25 May 2017;

(v)9 June 2017;

(vi)6 July 2017;

(vii)21 July 2017;

(viii)4 August 2017;

(ix)18 August 2017;

(x)1 September 2017;

(xi)6 October 2017;

(xii)20 October 2017;

(xiii)3 November 2017;

(xiv)17 November 2017;

(xv)1 December 2017.

(c)in contravention of Order 6(a) thereof she failed to facilitate time between the children X, Z and Y and the father on:

(i)15 July 2016;

(ii)29 July 2016;

(iii)12 August 2016;

(iv)26 August 2016;

(v)9 September 2016;

(vi)10 February 2017;

(vii)24 February 2017;

(viii)10 March 2017;

(ix)24 March 2017;

(d)in contravention of Order 7(a) thereof she failed to facilitate time between the child Z and the father on:

(i)2 April 2016;

(ii)2 July 2016.

(e)in contravention of Order 7(a) thereof she failed to facilitate time between the children X and Z with the father on:

(i)31 March 2017.

(f)in contravention of Order 7(a) thereof she failed to facilitate time between the children X, Z and Y with the father on:

(i)15 September 2017.

(g)in contravention of Order 7(c) thereof she failed to facilitate time between the children X, Z and Y with the father on 8 December 2017.

(h)in contravention of Order 7(c) thereof she failed to facilitate time between the child Z with the father on 1 January 2018.

(i)in contravention of Order 10(a) thereof she failed to facilitate time between the children X, Z and Y with the father on 24 December 2016;

(j)in contravention of Order 12 thereof she failed to facilitate time between the children X and Z with the father on 3 September 2017;

(k)in contravention of Order 14(b) thereof she relocated the children’s primary residence and failed to inform the father of the new residential address;

(l)in contravention of Order 14(d) thereof she failed to inform the father of the medical or health practitioners who treat the children.

AND UPON APPLICATION MADE TO THE COURT the Court finding that the Respondent mother has, without reasonable excuse, contravened the orders made under the Family Law Act 1975 by Judge Coates in the Federal Circuit Court of Australia at Brisbane on 4 November 2015, in that:

(m)in contravention of Order 6(a) thereof she failed to facilitate time between the child Z and the father on:

(i)     24 February 2017.

THE COURT ORDERS IN RELATION TO THE CONTRAVENTIONS:

1. That with respect to the contraventions outlined above, the children X born in 2006, Y born in 2008 and Z born in 2011 (“the children”) shall spend make up time with the father as follows:

   (a)For all of the June/July 2019 school holiday period; and

   (b)For four weeks out of the six weeks of the 2019/2020 Christmas school holiday period.

2. That for the purposes of Orders 1(a) and (b) herein, the mother shall deliver and collect the children to and from the father’s residence at the commencement and conclusion of such time.

THE COURT ORDERS ON A FINAL BASIS:

1. That all previous parenting Orders are discharged.

2. That the children shall live with the mother.

3. That the children shall spend time and communicate with the father at all times as can be agreed and failing agreement as follows:

   (a)One weekend every four weeks with the mother to deliver the children to the father at Town B and the mother to collect the children from the father on a Sunday at the conclusion of time;

   (b)All of the Easter gazetted school holiday period each year;

   (c)From the year 2020, half of the June/July gazetted school holiday period each year with the first half in odd numbered years and the second half in even numbered years;

   (d)All of the September gazetted school holiday period each year;

   (e)From the year 2021, with the father for the first half of the Christmas gazetted school holiday period in even numbered years and the second half in odd numbered years, unless otherwise agreed.

4. That for the purposes of these Orders, the school holiday period will be calculated as follows:

   (a)That holiday period commences at the conclusion of school on the last day prior to the holiday period and ends 4.00pm on the last day before a school day following the holiday period;

   (b)The duration of school holiday periods to be calculated by reference to the number of nights in the said period;

   (c)The second half of the school holiday commences at 10.00am on the first day of the second half; and

   (d)Should the school term with respect to X finish earlier than the school term for Z and Y, then the provisions of school holiday time shall be calculated as per the school term concluding for Z and Y. In the event that the school term with respect to the child X resumes sooner than the school term for Z and Y, then all children shall be returned in accordance with when the school term resumes for X.

5. That for the purposes of school holiday time pursuant to Orders herein, and unless otherwise agreed, changeover shall be effected by the mother delivering and collecting the children to and from the father’s residence at the commencement and conclusion of time.

BY CONSENT THE COURT ORDERS ON A FINAL BASIS:

Parental Responsibility

1. That the father and the mother have equal shared parental responsibility for the children.

2. That notwithstanding Order 8:

   (a)The Father shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.

   (b)The Mother shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with her.

Exchange of Information  

1. That each party:

   (a)Shall keep the other party informed at all times of their residential, email and contact telephone number, and advise the other party within twenty-four (24) hours of any change.

   (b)Shall communicate any non-urgent issues relating to the care of the children by way of email or text message.

   (c)Shall keep the other party informed of the names and addresses of any treating medical or other health practitioners who treat the children.

   (d)Authorise all treating medical or other health practitioners to provide each party with information that they are lawfully able to provide about the children.

   (e)Shall inform the other party as soon as reasonably practicable but no later than two (2) hours, of any significant medical condition suffered by the children.

   (f)Authorise all schools and other organisations attended by the children to give each party information about the children’s educational progress and/or other related educational or extra-curriculum activities and supply them each with copies of reports, photographs, certificates and awards obtained by the children (at the requesting party’s cost).

   (g)Shall keep each other informed of the details of all educational and extra-curriculum activities the children are involved in from time to time.

2. That each party will ensure that any item belong to the children, provided by the other party, will be returned in a clean and orderly fashion at changeover. 

Telephone Communication  

1. That each party shall allow the children to freely communicate with the other party at all reasonable times, should they wish to do so.

Travel  

1. That the children be permitted to travel outside of the Commonwealth of Australia for the purpose of a holiday with either party, provided that:-

   (a)Unless otherwise agreed between the parties in writing, at least twenty -eight (28) days prior to the proposed date of departure from Australia, the party proposing the travel provide the other party with a written itinerary of the proposed overseas travel for the children including a copy of the children’s confirmed flight itinerary at least seven (7) days prior to leaving and the addresses and the telephone contact details for accommodation while the children are overseas.

   (b)Unless otherwise agreed between the parties in writing, the party proposing the travel is restrained from taking and/or keeping the children outside of the Commonwealth of Australia outside of the dates specified in the written itinerary provided to the other party.

2. That unless otherwise agreed between the parties in writing, the proposed travel at Order 6 must fall within the periods of time the children are spending with that party.

3. That whilst the children are travelling overseas the travelling party is to arrange for the children to contact the non-travelling party on at least a two (2) occasions each week, with the days and times to be agreed between the parties.

Specific Issues  

School and Extra-Curricular

1. That unless otherwise agreed between the parties, and except for in the circumstances of an illness or other extra-ordinary event, each party shall ensure that the children attend to all enrolled school and extra-curricular activities that may fall during the time that the children are in that party’s care.

2. That each party be at liberty to attend all educational and/or extra-curriculum events undertaken by the children to which parents are ordinarily invited to attend.

Non-Denigration

1. That during the time the children are with either party, the party shall:

   (a)Respect the privacy of the other party and not to question the children about the personal life of the other party.

   (b)Speak of the other party respectfully.

   (c)Not denigrate or insult the other party in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other party in the hearing or presence of the children.

General

1. That both parties ensure that whilst the children are in their care, the children are not to be driven by any unlicensed person, or in any illegal manger.

2. That neither parent physically discipline the children.

IT IS NOTED:

A.That pursuant to section 65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in “Parenting orders – obligations, consequences and who can help” and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 10907 of 2011

MR CRABMAN

Applicant

And

MS CRABMAN

Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. X was born in 2006.  He is almost 13 years of age.  Y was born in 2008. She will turn 11 within days.  Z was born in 2011.  She is seven years of age.  Those three children are the issue of the relationship between the Applicant father, Mr Crabman, and the Respondent mother, Ms Crabman.

2. The relevant history of the parties is that they had commenced cohabitation in 2001, they married in 2005 and they separated in 2011 before Z was born.

3. They have had quite a litigation history.  The matter first came before the Courts whilst the children were very young.  It proceeded through a few hands judicially until on 4 November 2015, His Honour Judge Coates made orders. 

4. Those orders, in effect, gave the mother sole parental responsibility and put in place a regime that the children live with the mother and that the children spend two nights a fortnight with their father as well as spending time with him during the school holidays and on Christmas Day.  His Honour made other orders that were incidental to those main orders.

5. The father has complained that since that time that the mother has not complied with those orders.  He points to a lack of consultation, notwithstanding that the mother had sole parental responsibility.  The sole parental responsibility was to be exercised in allowing the father to have a say, which was considered by the mother, before the mother made the final decision. 

6. The father has complained that he has not been part of that process.  The father also complains that, for periods in 2016 and 2017, the mother withheld the children from the father and that the mother had, in effect, given in to whatever mood the children were in.  For example, if a child said, “I don’t wish to spend time with dad today”, she simply did not facilitate that time.

7. So whilst the father was supposed to have time with all three children, there have been times where he has had time with only two children or with only one child and sometimes with no children at all. 

8. The current circumstances are that the father has just moved to a property in Town B.  He had re-partnered soon after the separation; certainly within 18 months of the separation with the mother. His new partner already had four children which included twins.  The father and his new partner have had two children together and the partner is pregnant with the third.

9. Those four children live with their mother (the father’s new partner) and the father, and have done so for some time.  Their father, that is, the father of those four children, lives in City C and only sees the children at certain times of the year, though that situation I am informed through the affidavits and reports is an amicable one. 

10. What this means is that there will be, very soon, seven children residing with the father and his new wife.  Up until December 2017, the mother had been residing in the Region D or Suburb E area.  What happened is that she had re-partnered with a person by the name of Mr F.

11. The children were living with her and were spending the time as per the orders, albeit the father claims not to the letter of the orders. 

12. Towards the end of 2017, the mother verbally let the father know that she was going to move to Town G, just outside of City D. This was going to be done because the partner, Mr F, had a business and it was better for him to be closer to his client base. 

13. The mother said that the cost of living in Town G was cheaper, the lifestyle was more friendly (a “sea change” lifestyle) and because of that, the children could be privately educated at schools in the Town G/City D area. 

14. The father did not wish this to happen and sent letters to the mother.

15. This situation has led to what we have here; that is, the father asking for contraventions because of the incidents in 2016/2017 where the children were withheld and also for an order that the children be returned to live in the Brisbane area. 

16. While it is true that the mother did have sole parental responsibility, the orders of His Honour Judge Coates still stated that there be the fortnightly contacts with the father.  Under the proposal of the mother, and what did eventually happen, was that those fortnightly contacts became somewhat impractical.  The mother has acknowledged that she should have gone to the Court beforehand rather than to be in breach of those orders.

17. The father has pointed to the mother’s attitude during the period of 2016/2017.  I have read the emails that had passed between the mother and the father during that time.  It paints a picture where there is certainly fault on both sides but there is a real underlying theme between the two of them that there is a total lack of trust between them. 

18. The mother, because of that mistrust, it seems to me, has used the children in such a way as almost to punish the father for his transgressions. 

19. To give an example, the mother had been contacted by Centrelink and had been informed by them that they had been informed that the living arrangements for the children were that they would be spending 80 per cent of their time with the father and 20 per cent of their time with the mother.  Of course, such an arrangement affected the Centrelink payment to the mother.

20. The mother said that she asked the father to rectify the untrue position told to Centrelink and that was not done very promptly.  The mother assumed the worst; that because of that failure by the father, that he was the one who had instigated this and he was defrauding Centrelink.

21. She thought that, therefore, he had in some ways then forfeited his rights to see the children. 

22. Another example is that the child, Z, came from a visit with the father and told the mother and her frail aunt that she hated them and she wanted to kill them.  The mother said nothing to the father until the father asked about the arrangements for the next visit. The mother said that Z would not be coming because she was emotionally troubled after the last visit and the mother did not want to put her through that again.

23. There was no explanation as to what that emotional distress was or whether the father had any explanation for it. 

24. Those are simply two examples which do show that the mother has a diminishing respect for the father and cannot really see the value that the father has in the children’s life. 

25. The father, though, has only himself to blame for part of that because he has been quite delinquent in his communication with the children. 

26. There was nothing that stopped him, during any of these periods of not seeing the children, actually contacting the children himself.  He is still not contacting the children on a regular basis but seemingly leaves most of his communication to the time that he sees the children.  It must be said the children are not, as it were, toys to be enjoyed at particular times.  Children are to be nurtured by both parents whether they are physically with the children or not. 

27. This has been a common and consistent complaint that the mother has made from the start of the litigation and it is a complaint that she says had not been rectified after the orders made by Judge Coates. 

28. So from where I stand, there has been great fault on both sides; both the mother and the father are quick to apportion blame to the other when something goes wrong with the children.  The first refuge for both of them is to somehow blame the other parent for what has happened instead of calmly and rationally deciding what is actually happening to the child, and what is it that they, as parents, together can actually accomplish. 

29. Whilst what I have said has been very negative about both parents, there is still a deal of hope.  For me to really look at this matter again, I had to find that there is a substantial change of circumstances. 

1. The mother actually moving to Town G is a change of circumstances, but that would not necessarily dictate that there needed to be a huge difference in the orders that Judge Coates had made, but without prompting from the Court, or the Court having any particular role to play, the parents have, to their very great credit, come to me and given me a list of orders to which they can agree. 

2. The first of those orders is that the mother and father now have shared parental responsibility.  That is a huge leap forward and one that I certainly did not expect to occur, having regard to what had been contained in the affidavits and what both had said to the report writer. 

3. For all of the father’s contentions that the mother fails to facilitate time and doesn’t see any value in him – and for good reason that he may have thought that – the attitude of the mother in agreeing to equal shared parental responsibility belies that fact. 

4. It does show to me that she does want the father to have an active role in the lives of the children, and this includes contacting the children and being part of the children’s life, even if he is not able to be physically present with them. 

5. It does seem to me that both of these parents should undertake some form co-parenting course because they both do still need to be able to put themselves in the other’s shoes and understand what it is that the other parent may be going through. 

6. They must end up realising that it is not what is in each of their best interests to do but what is in the children’s best interests that is paramount. 

7. The real question for me comes down to this:  should the children live in Town G with the mother or should the children live in Brisbane?  And it would seem more in the Region D/Suburb H/Suburb E area.  I have been assisted by a family report by Mr J. 

8. Whilst Mr J did not give evidence here, he has made a number of pertinent points and this has assisted me greatly.  What I have also been able to glean from Mr J’s report is the views of the children.  Of course when the children are young, their views do not carry as much weight as when they become older. 

9. The views of X have been very important to me.  X has said this, which in my view, is very pertinent and really illustrates exactly what I have been saying about the relationship between the parents. 

10. At paragraph 125, Mr J writes about X:

    125. He finds it a bit annoying that his parents have never gotten on with each other.  Moreover they only say bad things about each other.  His mother thinks Ms K is a bad influence on Y and she does not like it that Ms K smokes.  Mr F does not like his Dad, “Whenever he used to go and talk to him about something, they always used to fight and argue and Dad just walked away”.

11. Mr J asked X what it was like for him and X said:

    “It’s annoying.” It is difficult to make plans. Neither parent wants to spend money and if he asks for something, he is told to ask the other parent instead.

12. Mr J asked what X might like to wish for his family if he could have three wishes, X said that

    That they just got on well together. That they didn’t always fight about money, and everyone wouldn’t be upset all the time. 

    X noted that when he visits his father, his father is often working and X says,

    I feel he does not want us there because Ms K is the one to look after us. 

    He was asked about what he wanted to do and he said:

    I want to live in City D.  I have friends and have a lot more there than I did down here. 

13. I have noted that, since this report, X has made the Region L underage team that has competed in the State Junior Sports Championships and that this has been a source of great pride for him and for his parents, as it ought be.  Such an achievement, I assume, has made his desire to stay in Town G that much greater. 

14. Y is somewhat younger.  She, in giving her three wishes, said:

    That everyone was friends and did not make it hard on us. We didn’t have to drive back and forwards. That we could move back down to Brisbane and go back to my old school. 

15. She gave the report writer the impression that she would enjoy it as things were and that, if it were that she was only seeing her father one weekend a month and living in City D, she would be upset by such an outcome. 

16. Z, who is still seven years old, was asked about the three wishes and she said:

    I wish I could have my own room in my own house with my mum and my dad (Mr Crabman). 

17. She was asked what would she think it would be like to live in Brisbane again, changing schools and spending more time with her father, and she said “I would be happy and excited and nervous” – nervous because new kids might be mean to her, but she would be happy about not having to travel as far to see her father.  She was asked what it would be like if she were to remain in City D, seeing her father monthly and on holidays, and she said she would feel angry about the outcome, but she didn’t explain why. 

18. At paragraph 185, Mr J said:

    185. I am left with an overall view that if the children remain living with their mother in the City D area, their relationship with their father is likely to diminish over time.  Despite the social upheaval it would cause the mother, I think the children would be better served returning to live in the Brisbane area so that they can maintain a closer physical connection with the father.  Assuming the mother follows, the children should live with her and they should have scope to spend regular, frequent and reasonably broad ranging time with the father.  Their school holidays should be shared equally between the parents. 

    186. If, however, the Court adopts a view that the children should remain living in City D, I think they should spend one in four weekends with the father during school terms, all of the Easter and Spring holidays with him each year and half of the winter and Christmas holidays each year.  There should be the scope for the children to have telephone or Skype communication with the father and members of his household, twice a week, preferably at set times.  There should also be scope for the children to spend time with the father on any other weekend during school terms in the City D area, if the father can travel there to spend time with them.

Application of the Act

1. The principles governing the Court’s determination in this matter are set out in the Family Law Act. Section 65D of the Act, subject to section 61DA – the presumption of equal shared parental responsibility – and section 65DAB – parenting plans – gives the Court the power to make a parenting order. A parenting order is defined by section 64B of the Act. In deciding whether to make a particular parenting order, section 60CA requires I must have regard to the best interests of the children as my paramount consideration.

2. In determining what is in the children’s best interests, I must consider the matters set out in section 60CC(2), the primary considerations, and section 60CC(3), the additional considerations. There are two primary considerations. The first is the benefit to the children of having “a meaningful relationship” with both their parents and the second is the need to protect a child from:

   physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence -

3. The Act indicates that these considerations are to be considered as having particular importance. They are described as “primary” and, as a note to section 60CC indicates, are consistent with the first two objects of part VII as stated in section 60B that the best interests of children are met by ensuring that they have the benefit of both their parents:

   …having a meaningful involvement in their lives, to the maximum extent -

   - consistent with their best interests and protecting them from physical or psychological harm or:

   …from being subjected to, or exposed to, abuse, neglect or family violence -

4. There are 14 additional considerations set out in section 60CC(3) which I will refer to later in detail. I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interests being treated as paramount. I will also be guided by section 60B, which sets out the objects of part VII of the Act and the principles underlying it.

Application of Law to The Circumstances Of The Case

1. I must now consider the application of the legal principles in the circumstances of this case, namely, the background facts and the findings I have made and how they apply in determining what parenting orders are most likely to promote the best interests of X, Y and Z. 

The Primary Considerations – Section 60B

1. Turning firstly to the application of the primary considerations, namely, (a) the benefit to the children of having a meaningful relationship with both parents, and, (b) the need to protect the children from physical or psychological harm from being “subjected to or exposed to, abuse, neglect or family violence”.  My conclusion as to these primary considerations are, in summary,(a) it is important to X, Y and Z that they have a meaningful relationship with both their mother and father and, (b) there is no need to protect them from being exposed to the risk of family violence, harm or abuse.  My reasons for reaching those conclusions are as follows.

2. Both parents, to their credit, acknowledge that it is important for the children to have a meaningful relationship with the other parent.  They have both a committed involvement as parents in the children’s lives even though that may not have been able to have been seen as well as it could be by the other parent. 

3. And, (b), there is no evidence of either parent treating X, Y and Z with anything other than the utmost love and consideration. 

4. I treat these primary considerations in my findings as being central to the structure of the orders that I ultimately propose to make with respect to the best interests of the three children. Having made the finding that I have made, section 60CC(2A) does not have relevance here.

The Additional Considerations In Section 60CC(3)

1. Going through these considerations seriatim, I say the following.  I have taken into account the views expressed by the children.  I have looked at the weight that I should give each child’s view considering their age, their maturity and all the other circumstances surrounding them.

Circumstance (b)

1. I have considered the nature of the relationship of the children with each of their parents and with the new partners of each of the parents.  I have especially had regard to the relationship that the three children have with the four children that the father’s new partner brought to their relationship, in effect, the four semi step-siblings.

Circumstance (c)

1. I have looked at the extent to which each of the parents have taken or failed to take the opportunity to participate.  I have taken into account that the mother, in many ways, excluded the father from the major long term issue because she had been given sole parental responsibility. But I have taken into consideration the manner in which she exercised that sole parental responsibility and what she says now. I have also considered the fact that she has agreed that there should be now shared parental responsibility. 

2. I have taken into account the reticence, if not almost negligence, of the father in the way in which he has communicated with the children.  As I have said before, I could see no reason why the father did not phone the children.  He has given some excuse that he thought the mother would be listening, however, that is a strange excuse to give when it is the need of the child to have communication with that parent that is of concern here.

Circumstance (ca) - The Extent To Which The Parents Have Maintained The Children

1. I do take into account very much that if the mother does not relocate to Brisbane and the children need to, for some time, live with the father that there will be, very soon, 10 children living in that house. 

2. I have taken into account what the mother has said in the past about the lack of child support given by the father, though I do not think in any way that he has neglected to maintain the children.  I have been very impressed by his work ethic, working as a tradesman, and working at the hours that he does to ensure that all of his children are maintained and given what life can give them, though I am very cognisant that this is always going to be a struggle, with so many mouths to feed. 

3. And I do note the comments of X that he has returned from the father’s house after lengthy stays with weight loss because he had not eaten sufficiently.

Circumstance (d)

1. I have taken into account what the effects are, of either decision that I make.  If it is that the children live with the mother in Town G, this means that they will be seeing the father less.  They will see him only a handful of times during school terms and be seeing him for lengthier periods during the school holidays.  There will not be that consistent communication that happens at the moment but it is whether this is going to affect the relationship between the children and the father, as Mr J suggests. 

2. I have also taken into account what would happen for the children to be separated from their mother if the mother did not come down and what would happen to the children if they were to move once again to the Brisbane area, to go back to the schools near where they had been living and the distance that they will be travelling from the Suburb H region to Town B.

Circumstance (e)

1. Consistent with what I have just said, I have also taken into account the practical difficulty and expense of the children spending time with parents if they are not living in the same vicinity as the parents and how that affects their right to maintain the relationship between themselves and their parents.

Circumstance (f)

1. I have looked at the capacity of each of the child’s parents, as well as the new partners, to provide for the needs of the children, including emotional and intellectual needs.  I have taken into account especially what the children have said about their time living with their mother and their time living with their father and certainly I have taken into account the practicalities of the 10 children living in the father’s house.

Circumstance (g)

1. I have taken into account the maturity, sex, lifestyle and background of each of the children, especially when I have been looking at the weight in which I give to their views.

Circumstance (h)

1. I have looked at the father as, at the end of his affidavit, he said this at paragraph 406:

   …the children and I identify as Aboriginal and Torres Strait Islander … my grandmother was Aboriginal and my grandfather was Torres Strait Islander -

2. The father said he regularly attends community events in Brisbane, such as Reconciliation Week festivities at M Park, NAIDOC Week celebrations at N Park in Brisbane and Children’s Day celebration and Sorry Day events.  And he said that he would like to allow the children the opportunity to proudly celebrate their heritage and understand the importance of the same.

3. The father said that he fears that the children’s identity would be diminished if they stayed in City D. 

4. I have taken those matters into account.  I have taken into account the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents, which is circumstance (i).  Circumstance (j) and (k) have no relevance here.

Circumstance (l)

1. I have looked at whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings.  I am concerned that these parents have used “lawfare” against each other for most of the children’s life.  I can tell that whichever party is aggrieved by my decision will appeal.  But that is the choice of the parent and all I can do is make the decision that I feel is in the best interests of the children.

2. And I have considered every other circumstance that I feel is relevant to the matter.

Parental responsibility

1. Under section 61DA(1), when making a parenting order the Court must apply a presumption that is in the best interests of the children for their parents to have equal shared parental responsibility for them. The presumption does not apply, however, if there are reasonable grounds to believe that a parent had engaged in abuse of the children or family violence.

2. In this case, having regard to the findings I have made – and it is not the case of the mother or father, but the children need to be protected from abuse or family violence, I would normally apply the presumption to order that the mother and father have equal shared parental responsibility. 

3. I do note that his Honour Judge Coates had ordered sole parental responsibility, it would seem to me that that order had to have been made having regard to the attitude of the father and what the father had done up until November 2015 with regard to his responsibilities to the children. 

4. Notwithstanding that that has occurred, it seems to me that the father has now demonstrated a real wish to be part of the children’s life, even if he cannot always communicate with them as is desirable and notwithstanding the very long work hours that he undertakes to ensure that food is put on his table.  I have also taken into account what the parents themselves have said and I am of the view that the presumption should be followed.

5. Having made that decision, I am then required by section 65DAA(1) and (2) to consider whether or not to make orders that the children spend equal time and, if not equal time, then substantial and significant time with each parent. 

6. The section provides that I must consider whether spending equal time with each of the parents would be in the best interests of the children if that were practical and, if not, then I have to consider whether it is in the best interests of the children to spend substantial and significant time with each of the parents if that is practical.

7. That decision really rests upon what it is I end up deciding as to where it is the children should live. In coming to my final conclusions, I have also been guided by the objects and principles set out in section 60B that I have quoted earlier.

8. I have had great regard to what Mr J has said.  I have also had great regard to what the children have said and each of the contentions of the parents.  I have also had regard to the fact that the mother would not return to Brisbane/Suburb H if I ordered the children to return. 

9. I am of the view, though, that the mother and her new partner have started a new life in Town G; that life enables the children to have a very community-based life in Town G and to enjoy the fruits of private education. 

10. I have seen the great strides that X has been able to make since the move to Town G and that this move has been of great benefit to him as he grows to be the best man that he can be.  Notwithstanding that Y and Z do not share that same passion that X has, they are both still a lot younger than X and the benefits of that new lifestyle have not been as obvious to them as it has to X. 

11. I am very cognisant that the father has worked very hard and would be able to support the 10 children in the household, however, it does seem to me that, even with all the best intentions, that will be a huge load and these three children would benefit with the individual care that they can get in Town G living with the mother and her partner.

12. As the father acknowledged, the children would have to share bedrooms because the house is a 5 bedroom house.  Even with the best intentions, I cannot accept that the children would receive the same amount of attention in the house of the father as they would in the house of the mother.  That is no criticism of the father; it is just a fact.

1. Whilst I do acknowledge that the children remaining with the mother will diminish the time that the father spends with the children, I have to ensure that I have looked at the best interests of the children and that a relationship that occurs between the father and the children is still a meaningful one. 

2. I am of the view that the orders that I will make do allow for the relationship to be a meaningful one.  It necessarily is not an optimal one, but that is not what the legislation requires me to do.  It requires me to look at what is a meaningful relationship. 

3. Therefore, I will make orders that the children remain living with the mother; that they spend time with the father one weekend every four weeks with the mother to drive them to Town B and for the mother to pick them up again.

4. So that is driving them down on the Friday and picking them up on the Sunday.  The children are to have all of the Easter school holidays and all of the September school holidays with the father and half of the June/July school holidays with the father and half of the Christmas school holidays with the father.

5. The contraventions were not really prosecuted at this hearing but that was due to the father not being familiar with how the process works.

6. Without going through each of the contraventions that have been brought, I will have to make some orders as to each of the specific contraventions, but will treat them as a group.  There was general agreement by the mother that she had contravened the order but that there was an excuse, except for that one occasion.  That was not really challenged and so I will make findings to that effect.   

7. I am going to order some make-up time for the June/July holidays that will occur.  In 2019, the children will spend all of that holiday time with the father as part of make-up time and the children will spend four out of the six weeks during Christmas 2019 going into 2020, with the father as part of make-up time. 

8. After that has happened, it will revert to the orders I have just pronounced.  I will add those orders to the orders that the parents have already agreed to.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Vasta.

Date: 29 April 2019