Darroch & Rassell
[2022] FedCFamC1F 34
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Darroch & Rassell [2022] FedCFamC1F 34
File number(s): HBC 79 of 2021 Judgment of: MCGUIRE J Date of judgment: 10 February 2022 Catchwords: FAMILY LAW – CHILDREN – Application by father for children to live in an equal shared care arrangement on a week-about basis – Application opposed by the mother who seeks to relocate interstate with the parties’ three children – Order not permitting twin girls to relocate interstate – Orders that twin girls live with the mother for a period of nine nights per fortnight and with the father five nights per fortnight – Orders that parents have equal shared parental responsibility for the children – Orders that eldest child spend time with the parents as agreed between the parents and in accordance with the eldest child’s views – Orders by consent that eldest child will attend school interstate from January 2022 Legislation: Family Law Act 1975 (Cth) ss 60B 60CC and 65DAA Cases cited: A & A; Relocation Approach (2000) FLC 93-035
Champness v Hanson [2009] FamCAFC 96
Franklyn & Franklyn [2019] FamCAFC 256
G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
KB & TC (2005) 33 Fam LR 471
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 82
Paskandy & Paskandy (1999) FLC 92-878
U & U [2002] 211 CLR 238
Division: Division 1 First Instance Number of paragraphs: 139 Date of hearing: 23 November 2021, 15, 16 and 23 December 2021 Place: Hobart Counsel for the Applicant: Mr Kovacic Solicitor for the Applicant: Ogilvie Jennings Counsel for the Respondent: Ms Higgs Solicitor for the Respondent: Dobson Mitchell & Allport Counsel for the Independent Children's Lawyer: Mr Trezise ORDERS
HBC 79 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DARROCH
Applicant
AND: MS RASSELL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
10 FEBRUARY 2022
THE COURT ORDERS THAT:
1.That all extant parenting orders and parenting plans in respect of the three children X born 2005, Y and Z both born 2009 be discharged.
2.That the parents, Mr Darroch and Ms Rassell, have equal shared parental responsibility of the children X, Y and Z.
3.That X live in circumstances and spend time between the parents as agreed between the parents and taking into account X’s views and preferences noting that these parents have agreed that X will attend school from January 2022 in City B, New South Wales.
4.That the children Y and Z live between that the parents on the following basis:
(a)during school term for a period of nine nights per fortnight with the mother commencing from the conclusion of school on Wednesday and finishing at the commencement of school on Friday in the following week;
(b)during school term for a period of five nights per fortnight with the father commencing from the conclusion of school on Friday and finishing at the commencement of school on Wednesday.
5.During the Term 1, 2 and 3 school holidays, the arrangements in paragraph 4 above be suspended and Y and Z live in an equal shared care arrangement between the parents as follows:
(a)for one half of each school holiday period as agreed between the parents in writing, or if not agreed 28 days period to the commencement of the school holiday period, with the mother for the first half and with the father for the second half; and
(b)for this purpose, each school holiday period is to be calculated from the first Sunday immediately after the end of school term until the Sunday immediately prior to the beginning of the new school term.
6.During the Term 4 (summer) school holidays:
(a)In 2022/2023 and each alternate year thereafter, unless otherwise agreed between the parents in writing, with the mother for the first half of the school holidays and with the father for the second half of the school holidays with the changeover to occur at 5.00pm or such other time as agreed in writing on the middle day of the school holiday period;
(b)In 2023/2024 and each alternate year thereafter, unless otherwise agreed between the parents in writing, with the father for the first half of the school holidays and with the mother for the second half of the school holidays with changeover to occur at 5.00pm or such other time as agreed in writing on the middle day of the school holiday period.
7.On special occasions, notwithstanding any other orders, Y and Z will spend time with each of their parents, unless otherwise agreed in writing between the parents, as follows:
(a)In 2022 and each alternate year thereafter with the mother from 4.00pm on Christmas Day until 4.00pm on Boxing Day;
(b)In 2023 and each alternate year thereafter with the father from 4.00pm on Christmas Day until 4.00pm on Boxing Day;
(c)At Easter
(i)In 2022 and each alternate year thereafter, with the mother from the conclusion of school on Easter Thursday (or 5.00pm if not a school day) until the commencement of school on Easter Tuesday (or 10.00am if not a school day);
(ii)In 2023 and each alternate year thereafter, with the father from the conclusion of school on Easter Thursday (or 5.00pm if not a school day) until the commencement of school on Easter Tuesday (or 10.00am if not a school day).
(d)On Mother’s Day, if the children are not already in the mother’s care then from 5.00pm the day prior to Mother’s Day until the commencement of school the following Monday (or 10.00am if not a school day);
(e)On Father’s Day, if the children are not already in the father’s care then from 5.00pm the day prior to Father’s Day until the commencement of school the following Monday (or 10.00am if not a school day);
(f)On Y’s and Z’s birthday, unless otherwise agreed between the parents in writing, with the parent with whom they are not otherwise living or spending time with that day from the conclusion of school (or 3.00pm if not a school day) until 8.00pm.
8.That for the purposes of changeover:
(a)Changeover on a school day will occur at Y’s and Z’s school/s;
(b)Unless otherwise agreed between the parents in writing, changeover on a non-school day will occur at the home of the parent who is commencing time with Y and Z and with the other parent to deliver them to that location.
9.That the parents will communicate with one another in writing (including by text message) of the following:
(a)Any illness experienced by Y and/or Z whilst in his/her care along with the name and contact details of the treating medical practitioner and the details of any prescribed treatment or medication for the child/children except in the case of a genuine medical emergency or situation of urgency in which case they will communicate by telephone as soon as practicable; and
(b)Upcoming school or extracurricular events or activities which the children are participating in, with notice to be given as soon as reasonably practicable upon the parent becoming aware of the event or activity.
10.That the parents shall keep one another informed of their telephone number, physical address and email address within 24 hours of any such change to same.
11.That each parent is permitted to travel interstate or overseas to any Hague Convention Country with Y and Z during his or her own time with them subject to the travelling parent providing to the non-travelling parent:
(a)At least 28 days’ notice prior to the intended dates of travel for interstate travel; or
(b)At least 60 days’ notice prior to the intended dates of travel for overseas travel; and
(c)No less than 14 days prior to such departure proof of paid return tickets to City C for Y and Z, a detailed travel itinerary including departure and return dates, destination details and contact telephone numbers while travelling.
12.That the children spend such further time or variations of the above times with each of their parents as may be agreed between the parents from time to time in writing.
13.That the parents must do all things including but not limited to the signing of all documents necessary to enable travel and to renew Y and Z’s Passports and that such passports be kept by the mother in 2022 and in each alternate year thereafter and by the father in 2023 and in each alternate year thereafter.
14.That the mother and father are restrained from abusing, insulting belittling, rebuking or otherwise denigrating the other parent to, with or in the presence or hearing of X, Y or Z and from permitting any other person to do so.
15.That pursuant to s 62B of the Family Law Act 1975 (Cth) information about counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
16.That pursuant to section 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the 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.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym of Darroch & Rassell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGUIRE J
APPLICATION
These are parenting proceedings in respect of the parties’ three children namely X born 2005 (aged 16 years) and twins, Y and Z both born 2009 (aged 13 years).
The father, Mr Darroch, is the applicant. He broadly seeks orders that the children live in an equal shared care arrangement on a week-about basis between their parents.
Specifically, the genesis of this application appears to be the wish of X, supported by the mother, to study in 2022 at D School which is a public high school based in City B offering focus and emphasis on the performing arts. The father now agrees for X to attend in 2022.
The respondent mother, Ms Rassell, asks for orders were whereby she be permitted to relocate with all three children to City B and again with a focus on X attending D School.
BACKGROUND FACTS
The father is 48 years of age and the mother is 50 years. They commenced cohabitation in 2000. Separation occurred in March 2017.
In March 2017 the parties agree a parenting plan whereby the children are to live primarily with the mother but spend time with the father.
On 11 May 2017 the parties entered into consent orders for property settlement.
On 12 November 2020 the mother first advised the father by text message that X had been offered a place at D School for the 2021 year. The father expressed his opposition to the mother and the children relocating.
On 16 December 2020 the mother sent a text message to the father advising of her intended relocation with the children notwithstanding his objections.
On 29 January 2021 the mother sent a text message to the father indicating that she would be relocating with the children the following day and being equivocal about the return date but with no return tickets evident.
The children were to return from the father to the mother that day but the father retained the children so as to prevent the mother’s anticipated removal of them from Tasmania. There was then an incident between the father and the mother in the father’s driveway, apparently witnessed by the children, which involved some physical aggression and resulting in mutual family violence orders.
The father commenced proceedings on 29 January 2021.
On 15 March 2021 an order was made for an appointment of an Independent Children’s Lawyer and single expert.
The father lives at Suburb E. He is a scientist by occupation but currently working on reduced hours following the birth of his son, W, in March 2021.
The father has re-partnered with Ms F who is generally employed as an allied health worker.
The mother lives at Suburb G. She is an educator by occupation but currently engaged in casual work.
The mother is re-partnered with Mr H. The details of this relationship are sparse and the evidence suggests that the mother was reluctant to disclose the fact of that relationship to the father and to the Court until her trial affidavit of 19 November 2021. Mr H did not give evidence and despite a revelation from the mother that it is anticipated he would relocate with the mother’s family unit to City B and therefore effectively be a male role model in that unit. Further, Mr H is the father of fifteen year old twin boys.
The children X, Y and Z have all shown a high level of interest and proficiency in many of the arts. They pursue these activities currently during their time with both the mother and the father.
THE FATHER'S CASE
The father says that a relocation of all three children as proposed by the mother will impact negatively on his relationship with the three girls and, in particular, the twins who are 13 years of age. He says that the change proposed by the mother is a significant one where the children currently spend five days per fortnight with him but where a move to City B would essentially limit the relationships to school holiday time.
The father says that the difficulties of such a move are accentuated by the mother's historical propensity not to promote a meaningful relationship for himself and the children. In this sense he says that the mother suffers mental or emotional health issues and has a tendency to self-medicate with alcohol.
The father says that the mother's parenting style is enveloping of the children where she over-enrols them in extracurricular activities which again serves to thwart the children's relationship with him by placing those obligations during his time with the girls. The inference of this argument is that if the children do relocate to City B then they will be conflicted by their own activities in City B and the need to travel to Tasmania for time with him.
The father says that his own relationship with the mother is a conflictual and non–communicative one which does not lean towards the cooperative relationship needed if a relocation should take place.
Whilst X is firm in her resolve to move to City B and attend her preferred school, the father says that the twins are ambivalent in respect of the move.
In respect of his concession that X move and given the constraints of time with this application, the father himself has tentatively arranged home–stay accommodation.
The father has partnered with Ms F and they have a child, W, who is an infant. The father says that the children have relationships with Ms F and W and that the children will be denied the opportunity to fully establish a relationship with W should they relocate.
THE MOTHER'S CASE
In her material and initially in her evidence in court the mother’s case was put assertively that all three girls and she be permitted to relocate to City B on an “all or none” basis. That is, the mother would not contemplate any regime where the 16 year old X move without her and the twins. To her credit, and after her evidence but being armed with the father's evidence, the experts report, and the preliminary views of the Independent Children's Lawyer (‘ICL’), the mother conceded that X could move by herself forthwith and in contemplation of commencing the 2022 school year but pending my judgment in this matter. It should be noted that this trial was brought on with some urgency given X’s anticipated enrolment at the D School in 2022 but where, despite the Court allocating priority over other matters, the expert report was not available and hence the Court was obliged to relist the trial as late as 15 December 2021 and where the parents and the children understandably seek an earlier judgments and reasons.
The mother argues that the family unit of herself and the three daughters are close and mutually supportive and that, therefore, the best interests of all three children are served by them remaining together and with the support of their mother in City B.
The mother says that all of the girls have the special skills and talents currently manifested in X’s desire to attend D School and where it is perhaps anticipated that the twins might likewise follow their older sister.
The mother asserts that she has always encouraged and supported the girls in their extracurricular activities… where all three show considerable aptitude whereas the father has taken a more passive and less supportive role in respect of these activities.
The mother argues that the children's relationship with their father is established and can be maintained by contact during school holidays or at other times when the father might visit City B and/or by use of media where the children are teenagers and able to benefit by such facilities.
The mother says that her own career as an educator can be enhanced by a move to City B where opportunities for employment and the purchase of suitable accommodation are presented.
The mother alleges family violence from the father during the relationship and since separation.
THE ICL’S POSITION
The ICL advocates the twins remaining in Tasmania but with X being permitted to pursue her studies in City B. He notes the good but developing relationship for the girls with the father, Ms F, and W. He comments on the sparsity of evidence adduced by the mother in respect of details of the proposed move but concedes that the mother would be a happier person and mother if her ambitions are realised. The emphasis of the ICL’s submission however, sits with the relationship between the twins with their father and his family unit. The ICL favours a retention of the status quo rather than a move to equal time as sought by the father with weight put on the views and preferences of the girls themselves.
THE RELEVANT LAW
This matter now before me emphasises the difficulties facing parents and courts where issues of relocation of children are to the fore. In arriving at the children's ultimate best interests in their parenting and living arrangements the Court is mandated to reference numerous considerations which are often amplified by reasons of distance and impact on established relationships. Whatever order a court makes in either allowing children to relocate or refusing an application to do so, one or other of the parents will inevitably be left aggrieved. If the relocation is permitted then time and contact between the children and the remaining parent becomes less regular and frequent and must take on a different form. Conversely, the primary parent takes on a greater role, presence and influence in the children's lives than might otherwise be anticipated. There will almost certainly be a sense of loss and bitterness in the remaining parent. There will be practical impacts such as an inability of the remaining parent to spend time with the children with any degree of spontaneity or flexibility. Milestone moments will be missed. It is highly likely that such orders will impact negatively on any pre-existing cooperation and communication between the parents. Conversely, however, if the relocation is not permitted then the applicant parent will be left aggrieved at the loss of their ambitions and expectations. They will need to re–adjust their own personal lives and commitments accordingly. Again, the relationship with the other parent will be severely tested. Such impacts are generally broadened to extended families. Ultimately, children's networks of relationships are necessarily influenced by the determination as to whether a relocation is permitted.
Part VII of the Family Law Act 1975 (Cth) (‘the Act’) provides the jurisdiction and power in respect of children and parenting orders. Notably, whilst a court may permit or refuse the relocation of a child that Court cannot per se make orders which prevent the freedom of movement of an adult. Nevertheless, in most matters of this type, including the one now before me, there is no issue of the mother relocating without the children.
Importantly, the Act itself is silent as to the notion of relocation of children. In that sense, a relocation is neither prohibited by law nor is there a presumption against it. Rather, a proposal by one parent to relocate children, be that intra-state, interstate or internationally, is just one factor for the Court’s ultimate consideration and determination among many factors in arriving at orders which on balance attend to the best interests of the children. It is those best interests of the children that are the paramount consideration for the Court pursuant to s 60CA of the Act.
It should be emphasised that issues of relocation are not to be treated separately to the overall determination of children's best interests. Although the term is used colloquially, there is no specific category of “a relocation case”. That is, a party's proposal for the living and parenting arrangements for children that involves a relocation is to be determined like any other parenting case and as the Full Court observed in Paskandy & Paskandy[1] at:
[1]… There can be no dissection of the case into discreet issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be “permitted”.
[1] 1999) FLC 92-878.
The best interests of children are determined by the Court referencing the parties’ proposals, including any anticipated relocation, and the probative evidence, to the numerous mandatory considerations set out at s 60CC(2) and (3) of the Act against the background and context of s 60B which sets out the objects and principles underlying those objects in respect of children's matters with a framework for determining those best interests and as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Generally, the Court is to follow a statutory pathway of consideration in arriving at parenting orders.[2] Firstly, there is a presumption at s 61DA of the Act that parents have equal shared parental responsibility for the children. 'Parental responsibility' is defined at s 61B as “… all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Such parental responsibility usually manifests in long-term important decisions for children such as their education, medical procedure, religion and the like. Interestingly, in the matter now before me, each of the parents asks for an order for “equal shared parental responsibility” whilst leaving for the Court the determination of the children's living arrangements and location.
[2] Goode & Goode (2006) FLC 93-286.
The presumption of equal shared parental responsibility applies unless there is evidence sufficient for the Court to find that a parent or a person living with a parent has engaged in family violence within the broad definition in the Act. Alternatively, the presumption can be rebutted by evidence satisfying the Court that would not be in the children's best interest for their parents to exercise equal shared parental responsibility. Again, both parents here urge me to make orders for equal shared parental responsibility but where the mother asserts family violence of various types and where both parties agree that their personal relationship is toxic and non-communicative.
The importance of the presumption of or an order for equal shared parental responsibility is that it sets the Court on a course of statutory and intellectual consideration as to which regime of living arrangements best attend to children's interests. Firstly, the Court is obliged to consider whether the children living in an equal time arrangement between the parents is both in their best interests and reasonably practicable. If the answer to either of those questions is in the negative then the Court turns to consider whether the children spending “substantial and significant” time with each parent is both in the best interests and reasonably practicable.
“Substantial and significant time” is defined in the Act at s 65DAA(3) as:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The father’s proposal in the matter now before me is that the children's best interests are served by them living in an equal time arrangement between the parents. The current arrangement for the children sits comfortably with the definition of “substantial and significant time” where they spend a block period of four days per fortnight with their father. The mother's proposal, of course, does not sit within either of the concepts of equal time or substantial and significant time.
Superior courts in this jurisdiction have historically considered the “principles” that might be applied in determining matters involving a proposed relocation of a child.[3] The Full Court in KB & TC[4] observed:
[72]… U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s 68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.
[3] A & A; Relocation Approach (2000) FLC 93-035, U & U [2002] 211 CLR 238.
[4] (2005) 33 Fam LR 471.
The Court’s focus or specific consideration in matters involving anticipated relocation might include the following:
•relocation matters are parenting cases to be determined in accordance with Part VII of the Act and in the context of making necessary findings in respect of the relevant s 60CC factors but also within the context of the s 65DAA considerations of equal time or substantial and significant time and “reasonably practicable”;
•the best interests of the child remain the paramount but not the sole consideration;
•the child's best interest must be weighed and balanced with the “right” of a parent to “freedom of movement” but such must ultimately defer to the child's best interests; and
•neither party carries an onus of proof in respect of the proposed relocation and the Court is to consider each party's proposal generally including the advantages and disadvantages of a relocation or may itself formulate proposals in the best interests of the child.
THE EVIDENCE
The father
The father presented as an intelligent, articulate, and thoughtful witness. His focus was on the children rather than self-interest as demonstrated by his capacity to understand the wishes of his 16-year-old daughter to relocate. At times, however, the father seemed preoccupied with “fairness” clearly emanating from what he perceives as unfairness by the mother in respect of his relationship with his daughters.
The father showed an insightful and perceptive parenting style as for instance subtly building independence in the children. His evidence demonstrated a high functioning and adept parent. He was capable of the organisation of the complicated and onerous regime currently in place for these girls and their activities.
The father was at times critical of the mother both personally and in her parenting of the children. He accused her of “poisoning” the children's relationship with him. However, as the evidence developed, it became clear that a number of his criticisms of her had merit and my observations of those criticisms of the mother were that they were articulated in a factual, and at times sympathetic, fashion rather than with any emotional embellishment.
The father was objective and focused in respect of his daughters and able to make admissions against interest such that he believed that his relationship with his children would survive and endure if they were to relocate to City B, but was able still to argue that those relationships would not be maximised to their potential and would suffer hurdles and conflicts.
The mother
The mother was not a good witness. She was verbose in response and at other times non-responsive with a propensity to deflect from the questions. She tried to give an impression in the witness box of being child focused but her evidence was often suggestive of self–interest. Her responses often impressed as orchestrated or rehearsed and frequently with clichéd generalities.
The mother certainly impressed as being a dedicated parent to her three daughters but with a lingering question to whether this dedication crossed the borders of her being an enveloping parent and perhaps living her own life or personal ambitions through her children by an “oversubscribing” of the children in extracurricular activities where as the primary parent she does, of course, carry a duty to encourage and facilitate the children's relationship with their father.
The mother was almost completely critical of the father. She was virtually unable to find any positives in him personally or as to his parenting. The mother gave every indication that she considered the children’s extracurricular interest to take priority over their relationship with their father.
The mother’s evidence generally suffered in its veracity where her responses were at best reluctant against self-interest and often selective or embellished. I gleaned a propensity for parenting “as of right” or in an entitled and empowered fashion vis-a-vis the father.
Ms F
Ms F is the father's partner and the mother of their eight month old child W. She provided an affidavit affirmed 19 November 2021 and was cross-examined.
Ms F professes to have a warm and engaging relationship with the three girls which appears to be corroborated from the family report.
Whilst obviously and understandably supportive of the father, Ms F showed some inclination towards criticism of the mother.
Ms F’s evidence suggests she supports the father not only emotionally in his care of the children but also practically within the relatively complex weekday arrangements for these three girls.
I found Ms F to be an honest and generally objective witness who provides support for the father and a positive role model for the children in the father's current family unit.
Dr J
Dr J is a Clinical Psychologist and prepared a single expert report in this matter. She conducted interviews with each of the parents and children as well as telephone interviews with psychologists who have assisted both the mother and X.
Dr J gave evidence was cross-examined.
Each of the parents gave histories to Dr J roughly consistent with their affidavit material and evidence to this Court. Notably, the mother was almost entirely critical of the father whereas the father was able to be objective and positive at times in respect of the mother.[5]
[5] See paragraph [25] of the expert report.
Dr J’s report was obviously authored prior to the mother’s concession made only during the course of this trial that X relocate for her schooling, in accordance with the father's proposal, and prior to determination of whether or not the twins be able to relocate with their mother to City B.
Significantly, Dr J formulates recommendations at [114] as follows:
If [the father] and [the mother] are unable to reach an agreement regarding the potential relocation of the children, there is only one option that can be trialled that does not involve significant reconfiguration if it is not successful. This would be to allow a trial period for X to relocate to the D School in a home stay arrangement. This would allow for her to test her experiences in homestay, and indeed at the School, and decide if this were an arrangement that she would like to continue with. This would also allow for the younger girls to experience time away from their sister and to ascertain any impact of this. At the end of the trial period, decisions can be made as to whether X wishes to continue at D School (either in homestay or to have her mother and sisters with her) or whether she wishes to return to her home in Tasmania.
X reported to Dr J that she was “eager to be able to attend the D School and… that she felt that it would be a missed opportunity if she was unable to go”. Dr J in her evidence in Court described X as “very mature for her age” and presenting as “a little tired of this process”. She is described as “self-reflecting” with a “really good attachment with all family members and being able to identify value in those attachments”.
Dr J says that X has identified her previous anxieties but has developed strategies to deal with those anxieties.
In the report X expressed that she feels more competent and independent than others believe her to be.
At [108] X’s maturity and her perceptive insight is demonstrated thus:
X reported that she would miss her family if she relocated and that she new (sic) that her sisters would miss her. She stated that she felt that she would be able to maintain contact appropriately and that she would eagerly look forward to visits. X expressed some concern at her ability to maintain the same type of relationship with her father if she and her sisters relocated. She expressed that she would do her very best to maintain contact but acknowledged that it may be 'difficult' if they all moved away from her father.
Dr J reported Y as expressing a wish to move to New South Wales and that she “did not want to be away from her sister or her mother and that she would want to live where they live”. Y is reported as potentially missing her father but thinking that she will be able to maintain regular contact with him and have visits.
Z is reported as more ambivalent than her sisters in respect of the move to City B but noted that she would “miss her father, activities, her friends”.
At [111] and despite the divergent views of the parents, the girls report to Dr J as follows:
In relation to the current care arrangements, all three girls reported that the time between houses had been going well. Z and Y reported that they were happy with their time between the two houses and did not want it to change from the current arrangement if they remained in Tasmania.
In her evidence Dr J emphasised the preference of the three girls to remain together but noted the twins as being “robust and well-adjusted”.
Child Inclusive Conference Memorandum to Court
This Memorandum prepared by a Family Consultant was read into evidence without the author being required for cross-examination. The report was prepared after the interviews of 2 March 2021 being some nine months prior to the report of Dr J. X was age 15 and the twins 12 years of age at the time of these interviews. The mother was then proposing to relocate with all three children to New South Wales whereas the father was proposing a week–about arrangement.
The author of the Report noted some family violence issues including a current Family Violence Order emanating from the incident in January 2021 referenced in the affidavit material of both parties.
As with the evidence before this Court, the father referenced the mother's capacity for “violent outbursts” whereas the mother claimed “rage and anger” from the father together with controlling coercive behaviour during their relationship. The mother’s allegations extended to the father being physically and verbally violent towards X but where the current evidence, and particularly that of Dr J, does not demonstrate any manifest difficulty in the current relationship between father and daughter.
Perceptively, the author of the report notes:
[27]The relationship between the parties is dysfunctional, and appears to have deteriorated since post–separation mediation to determine parenting plans. There is no current communication between the parties other than through the legal representative (sic) and text message. The parties were in agreement that a parenting plan was agreed upon, however the mother never signed the documents due to wanting greater determination over the movement of the girls. The father alleges that this is representative of the mother’s need for control, whilst the mother maintains that she wanted to ensure that her children were managing their time with their father safely, and wanted to be able to intervene otherwise. The parties blamed one another for the ongoing dispute. The father displayed some reflective capacity in regards to his actions within in (sic) the relationship and was accepting that his actions had intimidated the mother at times, as did the mother when reflecting on her behaviour during the incident in January 2021 which resulted in a Keep the Peace Order.
Further, the parties’ positions were identified by the author of the report as follows:
[28]The parties (sic) proposals appeared to be somewhat fixed. The father was of the view that the mother was influencing and controlling the children's extracurricular activities, which he states are excessive and time-consuming, and would likely continue if the children moved interstate. The father raised concerns that the mother had not consulted with him prior to making plans to move to New South Wales with the children, and believed the mother would not be able to encourage the children to have an ongoing relationship with him, if they were to move interstate. The mother’s belief was that X had been presented with an opportunity which could significantly support her future aspirations, and wanted to be supporting of such. The mother also commented that she would have greater career prospects interstate and would be increasingly financially stable. The mother did suggest that if it was not agreed for the children to move interstate, then she would remain in City C, as the father has not had primary care of the children prior, and has not shown interest in supporting their activities and development prior and following their separation.
X is then described as “articulate, self–assured and goal oriented”.
X’s maturity is further demonstrated at [34] of the Report as follows:
In regards to her current time arrangements between the parties’ home, X said that it was confusing in regards to needing to pack her school things and things for her extracurricular activities. X commented that she doesn’t want too much change and wants stability in regards to her care arrangements. X said that her priority was focusing on her own goals and wanting to do her own thing.
X is reported as “feeling like she is living two separate lives between her parents’ home (sic)”.
As long ago as the March 2021 X was reported as being prepared to “… explore options of boarding or staying with family friends” in City B.
Y was reported as “confident, articulate and happy”. She is described as passionate about sport and also takes dance classes. Y was positive in respect of each of the parents and Ms F.
At [49] – [50] of the Report appears the following:
[49]Y (sic) said that she knew that her mother wanted to move to New South Wales and said that she would not mind the move herself because she does not like the cold. Y (sic) said that she would be happy to see her father in the holidays should she move away.
[50]Y (sic) implied that she was ok with the current parenting arrangements.
Z is also described, similar to her twin sister, as confident, mature, head–strong and goal oriented. She is also involved in … dance groups together with a commitment to gymnastics.
Z reported that she would be “okay” with the move to New South Wales.
THE SECTION 60CC FACTORS
Section 60CC(2)(a) the benefit to the children of having a meaningful relationship with both of the children’s parents; and
The Act itself does not offer a definition of the concept of “meaningful relationship”. The Full Court in McCall & Clark[6] considered the notion and adopted the views of Brown J Mazorski & Albright[7] and Bennett J in G & C[8] in concluding that the tasks of the Court is a prospective one with an emphasis on “qualitative” rather than “quantitative'' considerations. The objective of the Court is to make orders which assist both the establishment and maintenance of a meaningful and beneficial relationship for children and their parents into the future but with reference to current and historical facts relevant to those relationships. Importantly, however, the process remains a balancing one with this consideration, albeit a “primary” one, having no hierarchical priority over the numerous other considerations in subsections (2) and (3).
[6] [2009] FamCAFC 82.
[7] (2007) 37 Fam LR 518.
[8] [2006] FamCA 994.
The Full Court in Champness v Hanson[9] at [103] acknowledged such as follows:
The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors.
[9] [2009] FamCAFC 96 at 103.
The evidence here satisfies me that these three children have established and successful relationships with each of their parents despite the conflictual relationship between those parents, the lack of communication between the parents, and the different parenting role models offered by each of the parents.
The father argues that a relocation of the children (and particularly the 13 year old twins) will suffer by reason of the lack of frequency, of direct contact together with geographical and logistical hurdles, and the mother’s negative attitude should there be a relocation to City B. To the contrary, the mother accepts that the relationships between all three girls and the father are established and successful and she said that they would therefore endure such a move and even flourish by a change in nature of the direct relationship to an emphasis on block quality time in school holidays.
This century brings assistance by way of tools such as Skype and FaceTime to allow children to maintain their relationships. Whilst the experts suggest that the use of media is not a complete substitute for direct contact, it does offer a means of maintaining those relationships.
Section 60CC (2)(b) the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The relationship between these two parents is undoubtedly a dysfunctional, conflictual, suspicious and a volatile one. The children have been exposed to that conflict. The Expert’s Report and the Section 11F Report both note the children having an understanding of their parents' conflict. That conflict was most notably manifested in late January 2021 with an incident referenced by both parents in their affidavits.
It is trite to observe that placing distance between the parents might remove some opportunity for direct conflict and exposure by the children to the same. Nevertheless, conflict takes many forms and it behoves these parents to understand that such exposure of their children to conflict between the parents is, according to the experts coming before these Courts, likely to impact detrimentally for these children as they move forward into their late adolescence and adulthood.
Nevertheless, I tend towards agreement with the submissions of the ICL that this issue is not a significant factor in the ultimate determination for this Court where the mother has raised some historical concerns about the father's conduct towards her and where the father describes that behaviour, where it is admitted, in situational terms and asserts the mother as the aggressor.
Section 60CC (3)(a) any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views
X is 16 years of age. She is described as mature and independent of thought. To their great credit, and despite their own conflict, suspicions, and the lack of mutual respect, the parents have now acceded to X’s wishes to live and study in City B in 2022.
The twins, Y and Z, are more ambivalent in their views. Nevertheless, their views are established by the close nature of their relationship with their sister. They understandably are reluctant to be separated from her and they are presented with a conundrum where they also have a close, frequent, and established relationship with their father and Ms F and where they are no doubt developing a relationship with the infant, W.
Section 60CC(3)(b) the nature of the relationship of the children with:
(i) each of the children’s parents; and
(ii) other persons (including any grandparent or other relative of the children)
The nature of the relationship currently for the children with each of their parents is of a high frequency. They spend a block of five nights per fortnight with their father. They are able to settle into his home which offers a different context of family unit than offered by their mother. They have established relationships with Ms F and with W. Their parents are involved to varying degrees of commitment with their extracurricular activities. The best evidence is that the children, in fact, derive benefits from the differences in their homes and between each parent.
Each of the parents, in their own way, shows a high degree of commitment and focus on the children.
The mother's proposal to relocate with all three children to City B will significantly change the nature of the relationship for the children with each parent. The mother would become the primary parent from what is currently a shared parenting regime. Contact directly with the father would likely occur only during school holidays and hence the father's ability to be involved in the children's education and extracurricular activities would become limited if non–existent. Opportunities for flexibility and spontaneity in those relationships would be removed. The children would consider themselves to be living primarily with their mother and be “visitors” to the father's home. Long gaps in direct contact could be mitigated to a degree by the use of media.
These are children who already show a serious commitment to their extracurricular activities. This is likely to continue in City B. It follows, therefore, that there may be conflict in the future between the children's commitment to these activities and events and their visits to Tasmania during school holidays. It is here that the mother’s commitment to the responsibility of maintaining a relationship for the children with the father comes to the fore and where she suffers criticism from the father.
The nature of the girls’ relationships with Ms F and W would inevitably change should they move to City B.
Section 60CC(3)(c) the extent to which each of the children’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the children; and
(ii) to spend time with the children; and
(iii) to communicate with the children;
(ca) the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children;
Both parents contribute to the financial support of the children. The father has adjusted his work commitments following the birth of W but is prepared to return to work full-time to meet the financial responsibilities for the three girls.
The mother has shown a capacity to act unilaterally in respect of the children most notably by what seems to be an attempt to relocate to City B in late January 2021. Whilst her motives were undoubtedly focused on the children and what she perceived to be X’s best interests, she showed an abject neglect and lack of insight into the relationship between the children and the father and what is generally seen as the concept of parental responsibility. Similarly, she suffers justified criticism by the father in enrolling the children in extracurricular activities which impinge on his time with the children and without full and proper prior consultation.
Section 60CC(3)(d) the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:
(i) either of their parents; or
(ii) any other children, or other person (including any grandparent or other relative of the children), with whom they have been living
This consideration is at the very crux of any application involving the potential relocation of children. The current relationship for the children is weekly with each of their parents. They understand their parents’ styles and home environments. As indicated above, the transition for the children between the homes seems relatively successful despite the continuing animosity between the parents and the differences in the parenting styles. In their father's home, the children have relationships with Ms F and with W. Whilst the children might maintain relationships with the adults through various media, this alternative would be of limited or nil value for the relationship between the girls and W.
The mother's proposal would inevitably change the children's relationship with and their understanding of the roles and responsibilities of each of the parents. The children would be removed from established peer group relationships. A relocation would require structure, planning, and agreement between the parents where they show questionable abilities in this area.
Section 60CC(3)(e) the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s rights to maintain personal relations and direct contact with both parents on a regular basis
The mother's proposal is that the children would spend block periods of time with the father in each of the four annual school holidays and, at least for the first year, such time to be loaded in favour of the father. This would involve a degree of communication and cooperation between the parents in the travel logistics. It would incur not inconsiderable expense in respect of three return airfares on four occasions each year. As mentioned above, there is potential for conflict between the commitment for the parents and the children to maintain these school holiday arrangements and the almost inevitable commitment in respect of the extracurricular activities enjoyed by these girls.
Section 60CC(3)(f) the capacity of:
(i) each of the children’s parents; and
(ii) any other person (including any grandparent or other relative of the children);
to provide for the needs of the children, including emotional and intellectual needs
Superficially, each of the parents currently provides well for the children's needs save and except for a propensity to expose the children to conflict.
The mother argues that a relocation for her with the three children to City B will enhance her parenting capacity. Firstly, she says that she will be happier and hence a more capable parent if permitted to move. Conversely, in circumstances where she says that she would not herself move without the children, she argues that her history of depression type issues would be damaging and detrimental to her parenting capacity where she herself acknowledges self–medication with alcohol previously. She says that she has no family support or other support in Tasmania save and except for her current partner who she says would be likely to move with her.
The mother’s evidence before this Court emphasised her view that she is a more capable parent than is the father. She is broadly critical of his parenting and, in particular, in what she perceives to be a lack of commitment to the girls’ extracurricular interests. To the contrary, the evidence of the family report is complimentary of the father being a most competent parent and confirmed by my observations of him giving his evidence to this Court.
The fundamental question for this Court in respect of the capacity of the mother is as to her insight and understanding as to the needs for these three girls to maintain a relationship with their father. The evidence suggests that the mother prioritises the children’s relationship with her and their extracurricular activities over their relationship with their father.
The mother says that she will be more able to secure suitable accommodation and employment for herself if she is permitted to move to City B over that available in Tasmania. Her evidence in this regard, however, was generally unsatisfactory and more towards self-serving and self-interest rather than objectivity.
Similarly, the mother brings no objective medical evidence in respect of her relative parenting capacities whether she lives in Tasmania or City B, although I accept that she has a strong personal preference and desire to live in City B and that she would be consequently more happy should these ambitions be achieved.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant
The three children here are close and relatively dependent. The twins expressed a reluctance to be separated from their older sister. The age difference is just three years but significantly in some ways. That is, X is already expressing some claims and signs of independence and will no doubt explore these further in the next couple of years. The twins, however, are just turning 13 years of age. They have a greater degree of dependence upon their parents and the relationships with each of their mother and their father must be seen accordingly and relative to those of X as a sixteen year old with her parents.
Section 60CC(3)(h) if the children are Aboriginal children or Torres Strait Islander children:
(i) the children’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right
This is not a relevant consideration in these proceedings.
Section 60CC(3)(i) the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents
The father argues that the mother is culpable in respect of this consideration where she has placed her own self-interest and, also the extracurricular interests of the children, over the children's relationship with him. He says that this is most demonstratively manifested in the mother’s attempted unilateral relocation with the children in January 2021.
Section 60CC(3)(j) any family violence involving the children or a member of the children’s family; and
Section 60CC(3)(k) if a family violence order applies, or has applied, to the children or a member of the children’s family - any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
These issues have been dealt with above.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children
It is, of course, the objective of trial judges to make orders that whilst being in the best interests of children are workable and operable into the future given that continuing or repeated litigation is contrary to those children's best interests. Nevertheless, a relocation of children or a refusal to allow relocation of those children gives potential for further litigation. A relocation presents various unknowns. Will the parent settle and be able to assimilate into a new community with accommodation and employment? Will the children settle into new schools, environments, and relationships? Importantly, will the children's relationship with the remaining parent continue or will logistical, conflictual and financial issues bring insurmountable hurdles and further litigation? Conversely, will the frustrations of the parent having ambitions to relocate be such that the parent’s own emotional health or parenting capacity suffer to the extent that further litigation eventuates? Whilst a relocation will test and reality–check the relationships between both parents and children, those relationships can be similarly tested by one unhappy parent being denied freedom of movement, plans and aspirations.
FINDINGS AND CONCLUSIONS
On the evidence I am able to find that these three children have established, successful and happy relationships with each of their parents.
I find that the parents are different in personality and parenting style. Whilst both are child focused, the mother prioritises the children’s extracurricular activities over their relationship with their father. Her evidence in court was revealing in satisfying me that she parents in an entitled fashion and she was unable to acknowledge that what was undoubtedly an attempted unilateral relocation of the children in January 2021 was inappropriate, selfish and demonstrative of a lack of insight into the needs of her children.
Whilst the father is able to acknowledge some positives in the mother, both personally and in her parenting, the mother was singularly unable to find any positives with the father. I can only conclude that the personalities and residual animosities of these two parents are such that cooperative parenting is difficult within a climate of suspicion, conflict, and lack of mutual–respect. I repeat, however, that the father's evidence satisfied me that he is potentially more accommodating in this respect than is the mother.
I am satisfied that X is mature and informed in her desire to experience her preferred form of education in City B compatible with her interests in the Arts. I accept the evidence of Dr J that X is more independent than her parents perhaps understand or accept but where again the father is more ready to be objective and child focused in this respect than is the mother.
I find that the preferences and views of the 13 year old twin girls are more ambivalent and less mature than those of their sister. It is understandable that they do not wish to be separated from X where they have endured the separation of their parents and present as a tight knit unit together with their mother.
The current regime for these children in Tasmania offers considerable benefits to the twins. Whilst their parents exhibit almost diametrically different parenting styles, the children benefit from this breadth of parenting. They are permitted to pursue their interests, onerous as they are, when with their mother for nine nights a fortnight. Their time with their father is more relaxing and perhaps provides a form of antidote to their busy schedules when with their mother.
All three children have close, loving, and engaged relationships with both Ms F and with W. Irresistibly, the girls’ relationship with W will develop in a closer and more meaningful way should they continue to live in Tasmania rather than City B.
The mother did not adduce evidence from her partner and hence I am unable to comment with any particularity as to the nature of that relationship or that of the girls with this gentleman. For reasons that escape me, the mother was not to always forthcoming with the fact or details of that relationship and in circumstances where she now perhaps poses Mr H as a potential role model in the mother's home and life in City B should she be permitted to relocate.
Similarly, the mother argues that she would benefit psychologically and emotionally by way of relocation to City B where she would be more fulfilled in her life and employment and generally be happier. She gives this evidence in the context of asserted unhappiness and depression in Tasmania. She says that she has received psychological assistance but does not adduce evidence from any psychologist. Her evidence and the weight that I give to that evidence suffers accordingly.
The parties have agreed that X will relocate to City B for the commencement of the 2022 school year. Whether she settles and flourishes in City B in her education and her commitment to the Arts remains to be seen. Nevertheless, the agreement now reached between her parents for her to move to City B, albeit late in the case of the mother, is one which will inevitably benefit X and vicariously the twins in circumstances where they have rarely witnessed agreement between their parents.
I accept that the twins are now 13 years of age and undoubtedly proficient in the use of various media. They would, therefore, if to relocate, be able to maintain a relationship with their father in circumstances where that relationship is firmly established. Again, however, their relationship with W would not benefit in the same way by the use of media.
Significantly to this determination, should the mother relocate with the children to City B, then I am not satisfied on the balance of probabilities that she would facilitate and encourage the children's relationship with their father in Tasmania. The evidence suggests that if confronted with a conflict between the children's extracurricular activities or preferences during their holidays and a commitment, even secured by court order, for the children to travel to Tasmania the mother would not be aggressively supportive of the latter.
There are a number of benefits and potential benefits of the mother and the children relocating to City B. The children would remain together in circumstances where X has already relocated and where the younger children are emotionally connected upon their older sister who is supportive of them. The twins would also potentially be able to pursue their artistic interests and talents through a specialised school. Undoubtedly, the mother would be happier in achieving her ambitions and her freedom of movement to a place of choice where she reports existing and more accessible connections and support. It follows that the children would benefit vicariously from their mother’s increased happiness. Superficially the children would be able to maintain their established relationship with their father and there is some merit in the mother's submission that the children would have potentially greater benefits by dedicated block periods of time during school holidays as against the current regime where the father complains that his time is interrupted by the children's other commitments and where the children “take time to settle” on each occasion.
There are, however, disadvantages in the relocation and consequent advantages for the twin girls remaining in Tasmania. Most obvious is as to the frequency of the direct relationship for them with their father, Ms F, and their brother, W, in circumstances where the 13 year old twins have not yet developed the sense of independence now seen in their older sister. Similarly, their current successful peer, educational and extracurricular networks could be disturbed with the unknown of the whether or not they would be similarly established in City B.
Further, and as indicated above, a relocation to City B will almost inevitably bring conflict for the children in their established lifestyles and commitments in City B with spending lengthy block periods of holiday time in Tasmania. It is here that the mother's commitment to such arrangements is crucial and where, on my findings, she does not have demonstrated capacity.
On consideration, I am of the view that the best interests of the twins, Y and Z, is served by them remaining in Tasmania. In making this determination I placed weight on the following factors:
(a)I am not satisfied as to the mother's commitment to prioritise the children's relationship with their father should she be permitted to relocate with them to New South Wales;
(b)The relationship for the children with their father provides something of an “antidote” to the nature of the children's relationship with their mother which prioritises her relationship and their extracurricular activities;
(c)I am not satisfied on the evidence that the mother's own circumstances would be improved in City B over and above Tasmania where she has now lived for some considerable time. I accept that her ambitions would be frustrated but where she offers no evidence in proper or convincing probative form of matters such as her mental health improving or already deteriorating dependent upon the relocation and/or the particulars of employment and/or accommodation which would ultimately benefit her family unit;
(d)The relationship between the twins and their father is an important one and which is currently, given their ages, a relationship which benefits by high-frequency and again in circumstances where the parents offer differing parenting styles and models; and
(e)Counsel for the mother helpfully referred me to a decision of the Full Court in Franklyn & Franklyn.[10]Whilst the factual platform in Franklyn can be distinguished from that before me where the former involved an application to return children in the interim from a unilateral relocation, their Honours helpfully reference the tension between the obligation of the Court (and parents) to the best interests of the children with the freedom of movement of parents in circumstances where the “forcing” of parents to live in a place against their will is effectively a mandatory injunction. In this matter, the mother states that she will not herself move without the children. This is an understandable but obviously difficult position to take for a mother in circumstances where she holds ambitions for both the children and herself in New South Wales. Again, however, the evidence is that she has been a successful parent for these children whilst living in Tasmania, as has the father. She adduces no evidence of any probity to satisfy me that either her parenting capacity or her emotional health will be diminished or impacted to any extent by a refusal to make the orders that she seeks. As their Honours say in Franklyn (supra):
[28]While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223-224, 231-232; Sampson and Hartnett (No.10) (2007) FLC 93-350; Zanda & Zanda (2014) FLC 93-607 at [132]-[136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262).
[10] [2019] FamCAFC 256
In the matter now before me I am satisfied that the children's best interests here are not compatible with the mother’s desire to relocate herself and the children to City B. I am not satisfied that the mother would be supportive of the children's relationship with their father should such a move take place. I am satisfied that the children's best interests , or at least those of the twins, is served by continuing the high frequency of contact between them and their father in the circumstances of the parents own conflictual relationship and where they offer different parenting styles and models.
Having determined that the twins, Z and Y, should not relocate to New South Wales, I must determine whether or not there should be any change from the status quo in Tasmania. The father argues for a week about arrangement. It is a meritorious argument. He says that the children benefit from their time with him. He says that this time is interrupted by both a “settling in” period and the imposition of the children's extracurricular activities organised by their mother in conjunction with the children but without any proper consultation with him. In short, he says that more time for the children with him will allow them to settle and engage in his family unit with ultimate benefit to the girls, W, Ms F and himself.
To the contrary, the mother says that the children's extracurricular activities are important to them. They do not resist those activities. They enjoy their participation and the exploration of their talents. She says that the father does not show the same commitment to these aspects of the children's lives as does she.
Importantly, Dr J reports that the children are content with and have a preference for the status quo to continue.
On consideration, I am of the view that the status quo should continue on a nine–five night arrangement for the children between the parents during school terms. The mother does show a greater commitment to the children's extracurricular activities whereas the father's commitment is admirable but clearly reluctant and/or logistically onerous in some respects. There is no indication that any of these girls is reluctant or hesitant in pursuit of these artistic interests and indeed each shows some real ambition commensurate with their talents. Whilst the logistics are difficult and onerous, almost surprisingly, these parents have been able to work arrangements satisfactorily.
The father and Ms F have or will have their employment commitments as well as the commitments with W. The girls appear comfortable with the current arrangement and do not report any interest or preference in change.
I will make orders where the nine–five arrangement continues during school term but where the children and the parents can equally share the benefits of the additional quality time offered by school holidays where each family unit is more able to accommodate both family time and the children's commitments into their days.
PARENTAL RESPONSIBILITY
Surprisingly, both of these parents asked the Court to make an order for equal shared parental responsibility in them for their children. This is despite their acknowledged conflict and personality differences and where there has been at least one incident of family violence. Whilst there is a presumption that children benefit by their parent having and discharging the status of equal shared parental responsibility, practical difficulties often intervene. Nevertheless, given that both parents are represented and make a commitment to equal shared parental responsibility and where they have been able to agree important aspects in respect of X’s moved to City B, I am satisfied that such an order is in the children's best interests.
I certify that the preceding one hundred and thirty-nine (139) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 10 February 2022
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