Dibbs and Coleman

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIBBS & COLEMAN

[2014] FCCA 2477

Catchwords:
FAMILY LAW – Parenting – considerations of parental responsibility – whether presumption of equal shared parental responsibility is rebutted – finding of circumstances that satisfy the court that the presumption is rebuttable – consideration of objects and principles as set out in section 60B and reflected in primary and additional considerations in section 60CC(2) and (3) – capacity of each parent to foster relationship with other parent – determination as to sole parental responsibility vesting in mother and children to live primarily with mother.

Legislation:
Family Law Act 1975 (Cth), ss.60CC, 60B, 60DA, 61C, 61D, 65DAC, 65DAE

Heath & Hemming (No.2) [2011] FamCA 749
Lansa & Clovelly [2010] FamCA 80
AIF v AMS (1999) 199 CLR 160
U v U (2002) 211 CLR 238
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Collu & Rinaldo [2010] Fam CAFC 53 (25 March 2010)
Sigley & Evor (2011) 44 Fam LR 439
Marvel & Marvel (2010) 43 Fam LR 348
Goode & Goode (2006) FLC 93-286
Edelman & Ziu (No.2) [2010] FamCAFC 236
Mazorski v Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
M & S (2007) FLC 93-313
Godfrey & Sanders [2007] FamCA 102
Champness & Hanson (2009) FLC 93-407
Hepburn v Noble (2010) FLC 93-438
MRR v GR (2010) 240 CLR 461

Applicant:

MR DIBBS

Respondent:

MS COLEMAN

File Number:

BRC 1204 of 2010

Judgment of:

Judge Coker

Hearing date:

11 June 2014

Date of Last Submission:

11 June 2014

Delivered at:

Townsville

Delivered on:

7 November 2014

REPRESENTATION

Counsel for the Applicant:

Ms Harding

Solicitors for the Applicant:

Best Wilson Buckley Family Law

Counsel for the Respondent:

Ms Carew QC

Solicitors for the Respondent:

Kennedy Spanner Lawyers

ORDERS

The Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the children, X born on (omitted) 2006, and Y born on (omitted) 2007, subject to the Mother consulting with the Father in relation to such decisions prior to making any final decisions, such consultation and communication to include but not be limited to:
(a)a child’s education (both current and future);
(b)a child’s health;
Notwithstanding order 1 herein:
(a)The Mother be responsible for the day-to-day care, welfare and development of the children when they are living with or spending time with her.
(b)The Father be responsible for the day-to-day care, welfare and development of the children when they are living with or spending time with him.
Time with the parents
That the children live with the Mother.
That the children spend time with and/or communicate with the Father as agreed between the parents and failing agreement then in accordance with these Orders:
(a)Each alternate week from 3.00pm Friday to 4.00pm Sunday provided however that if the Friday is a public holiday or pupil free day, time with the Father shall then commence at 3.00pm on the Thursday; and should the Monday immediately after the weekend be a public or a pupil free day, then the children’s time with the Father shall then conclude at 4.00pm on the Monday.
(b)From 3.00pm until 5.30pm with the Father on the day the Father concludes his weekly roster (“concluding day”), if the father is working in the (omitted) area and in relation to this time, the following shall apply:
(i)The Father is to provide to the Mother a copy of his work roster within 14 days of the commencement of this time;
(ii)The Father is to provide the Mother with any new roster within 14 days if the concluding day changes;
The Father shall collect the children from school at the start of this time and return them to the Mother at the (omitted) café at the conclusion of time.
That the children spend time with each parent during the gazetted school holiday periods as follows:
(a)With the Mother for the first half of the end of Terms 1, 2, 3 and 4 gazetted school holiday periods in even numbered years and with the Father for the first half in odd numbered years;
(b)With the Father for the first half of the end of Terms 1, 2, 3 and 4 gazetted school holiday periods in even numbered years and with the Mother for the first half in odd numbered years.
For the purposes of defining the first and second half of gazetted school holiday periods, the following apply:
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS COMMENCE FROM THE EASTER LONG WEEKEND THEN:
(a)The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Thursday preceding Good Friday until 6.00pm on the following Saturday;
(b)The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday following the Easter public holidays to 6.00pm on the Sunday preceding the recommencement of school;
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS DO NOT INCLUDE THE EASTER LONG WEEKEND THEN:
(c)The first half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 5.00pm on the Friday which follows or is the last day of school until 6.00pm on the Saturday of the middle weekend of such holiday period;
(d)The second half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 6.00pm on the Saturday of the middle weekend of the school holiday period until 6.00pm on the Sunday preceding the recommencement of school;
(e)The first half of the gazetted Christmas school holiday period commences from 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling 22 days later;
(f)The second half of the gazetted Christmas school holiday period commences from 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school.
That Order 4 herein shall be suspended for the weekends during any school holiday period and to recommence on the weekend after the school term recommences determined as if the sequence had not been interrupted.
That the children spend special occasions with each parent as follows:
(a)In the event that the Mother’s Day weekend falls on a weekend when the children are in the Father’s care, then the Mother shall spend that weekend with the children and the Father spend time with the children the following weekend;
(b)In the event that the Father’s Day weekend falls on a weekend when the children are in the Mother’s care, then the Father shall spend that weekend with the children and the Mother spend time with the children the following weekend;
(c)On the children’s birthdays, the children shall spend time with the parent they are not living with on the day, from 1.00pm until 5.00pm, with that parent to be responsible for collecting and returning the children to the other parent.
(d)In the event that the parent’s birthdays falls on a day when the children are not in their care, then that parent shall spend time with the children for a period of not less than four hours.
That the children communicate via telephone or other electronic means with the parent they are not living with at all reasonable times and, in particular, at 7.00pm each Tuesday and Thursday and on special occasions, including the children’s birthday and the parent’s birthdays .
Exchange of Information
That the Mother and Father shall:
(a)Keep the other parent informed at all times of their residential addresses and mobile and landline contact telephone numbers;
(b)Keep the other parent informed of the names and address of any treating medical or other health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children; and
(c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children. This Order authorises any treating medical practitioner to release the children’s medication information to the other parent.
That the parents authorise, by this Order, the schools attended by the children to give each parent information about the children’s educational progress and other school-related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at the parent’s cost).
That during the time the children are with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)Speak of the other parent respectfully; and
(c)Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
Other Orders
That the parents are restrained from using physical discipline on the children and do all necessary things to ensure that no other person physically disciplines the children.
Collection and Delivery
Other than as provided herein, the Father and the Mother shall collect the children from and return them to the McDonald’s Restaurant on the corner of (omitted) and (omitted).
Dispute Resolution
That the process to be used for resolving future disputes about the children or the terms of operation of these Orders shall be as follows:
(a)The parties shall jointly appoint a Family Dispute Resolution Practitioner by agreement;
(b)The parents shall consult with the agreed Family Dispute Resolution Practitioner to assist with resolving any dispute in relation to the children or reaching agreement about changes to be made to the parenting arrangements for the children;
(c)They shall pay the costs of the Family Dispute Resolution Practitioner equally;
(d)In the event that they are unable for any reason to agree or have an appointment with the agreed Family Dispute Resolution Practitioner and cannot agree on an alternate Family Dispute Resolution Practitioner, the Father shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability;
(e)The Father shall choose one of the listed practitioners within seven (7) days of receipt of the list
(f)If the Father fails to choose then the Mother may choose.
That unless there are some emergent circumstances, before an application is made to a court for a variation of these Orders, each party is to take the steps referred to in the preceding Order.
That each party have liberty to apply within 28 days of the date of this Order in relation to any point of clarification in relation to the orders and in respect of costs.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT TOWNSVILLE

BRC 1204 of 2010

MR DIBBS

Applicant

And

MS COLEMAN

Respondent

REASONS FOR JUDGMENT

INTRODUCTION:

These proceedings relate to orders sought with regard to the parenting of two young children, X, born (omitted) 2006 and, therefore, eight years of age, and Y, born (omitted) 2007 and, therefore, seven years of age. The children are the children of Mr Dibbs, whom I shall refer to as, "the father", and Ms Coleman, whom I shall refer to as, "the mother".
The mother and the father were in a relationship, though not a lengthy one. They commenced to reside together in or about the middle of 2005, married on (omitted) 2007, and separated only a little over a year later in May of 2008. Their marriage was dissolved on 14 May 2010. This, unfortunately, is not the first time that there have been proceedings before the court. The parties previously were involved in litigation commenced by the mother and, as a result of that litigation, orders were made by consent in November of 2010.
The orders provided generally as follows:
(1)That the parents had equal shared parental responsibility for major long-term issues to be determined in relation to the children;
(2)That if the mother were to live in the same region as the father or the father's mother, the paternal grandmother then, that the parents share the care and responsibility for the children on a week-about basis;
(3)If the mother were to remain living in a place more than 45 minutes travelling time from (omitted) then, that the children live with the father during the school term, and spend time with the mother on each third weekend, and for significant parts of the school holidays, including the entirety of the end of Term 1 and Term 3, as well as for one half of the end of Term 2 and end of Term 4 Christmas school holiday period.
(4)There were orders agreed with regard to special occasions such as birthdays, Mother's Day, Father's Day and the like as well as places for changeover and injunctions, in relation to non‑denigration.
The mother, shortly after those orders were agreed in November of 2010, moved to a place within 45 minutes of the paternal grandmother's residence in (omitted) and as a result of that, the parents then commenced an equal time shared care arrangement with regard to the parenting of the children. However, there has been a deterioration in the parents' communication which is almost now entirely non‑existent, other than some communication facilitated, with difficulty, between the mother and the paternal grandmother. Additionally, allegations have been raised by the mother with regard to the behaviours of the father directed toward the children, such that she has concerns as to the father's capacity to properly provide for and to meet the needs of the children.
Further, the mother has, in conjunction with her new partner, purchased a farming property near (omitted) on the (omitted), which property is approximately two hours drive from the paternal grandmother's residence in (omitted) such that, she says, there needs to be a determination of more specific arrangements with regard to with whom the children should live.
Interestingly, however, it was not the mother who commenced the proceedings in this matter but, rather, an application was filed by the father seeking orders in relation to both interim and final arrangements in relation to parenting.

THE APPLICATIONS:

The father's proposals in relation to parenting were the subject of some minor variation from the orders which were sought in June of 2013 but, for completeness, the father filed an amended initiating application detailing the orders proposed by him on 7 May 2014. The father sought orders in the following terms:
Should the mother reside outside the (omitted) area
(1)That the Father have sole parental responsibility for the children, X born on (omitted) 2006, and Y born on (omitted) 2007 (“the children”) with respect to “major long-term issues” as that expression is defined in the Family Law Act 1975 (“the Act”), SAVE THAT prior to the Father making decision about each such major long-term issues he shall:
(a)Advise the Mother in writing of the nature of the decision to be made and matters he is considering affecting that decision;
(b)Invite the Mother to provide her succinct written input to that decision;
(c)Make the decision having considered the Mother’s input;
(d)Inform the Mother of his ultimate decision in writing.
(2)That notwithstanding the provisions of Order 1:
(a)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;
(b)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.
Should the Mother reside within the (omitted) area
(3)That except as otherwise stated, the Father and the Mother are to have equal shared parental responsibility for the major long-term issues of the children, X born on (omitted) 2006, and Y born on (omitted) 2007.
(4)That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree;
(c)They shall make a genuine effort to come to a joint decision.
(5)That notwithstanding the provisions of Order 4:
(a)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;
(b)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.
Exchange of Information
(6)That the Mother and Father shall:
(a)Keep the other parent informed at all times of their residential addresses and mobile and landline contact telephone numbers and inform the other parent about any change to those details within twenty-four (24) hours of such change;
(b)Keep the other parent informed of the names and address of any treating medical or other health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children;
(c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children. This Order authorises any treating medical practitioner to release the children’s medication information to the other parent.
(7)That the parents authorise, by this Order, the schools attended by the children to give each parent information about the children’s educational progress and other school-related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at the parent’s cost)
(8)That during the time the children are with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
Time with the parents
Should the Mother reside outside the (omitted) area
(9)That regardless of whether the Mother relocates her primary residence to a location which is a closer distance to (omitted), or in the event that she remains at her current residence located (omitted):
(a)During the school term, the children shall live with the Mother, for each alternate weekend being weekends two (2), four (4), six (6) and so on of each term from after school Friday afternoon until Sunday at 4.00pm, and in the event of the Monday being a gazetted public holiday or designated pupil free day, changeover shall be effected on the Monday at 4.00pm;
(b)That otherwise the children shall live with their Father during the school term;
(c)That, for the purposes of school holiday periods, the children shall spend time/ live with their parents as follows:
(i)That in the even numbered years, the children spend time with their Mother:
1.   For the entire gazetted Easter school holiday period;
2.   For the first half of the gazetted Winter (June/July) school holiday period;
3.   The entire gazetted Spring (September) school holiday period;
4.   The first half of the gazetted Christmas (December/January) school holiday period, to include Christmas Day;
(ii)That in odd numbered years, the children spend time with the Mother
1.   From Easter Monday until the day prior to the children returning to school;
2.   For the entire gazetted Winter (June/July) school holiday period;
3.   The first half of the gazetted Spring (September) school holiday period;
4.   The second half of the gazetted Christmas (December/January) school holiday period, not including Christmas Day;
(iii)That otherwise, the children shall live with their Father during the school holiday periods
(iv)That the children spend time with the Mother on Mother’s Day from 4.00pm on the day prior to Mother’s Day until 4.00pm Mother’s Day if they are not otherwise in her care that weekend.
(d)That the children spend time with the Father on Father’s Day from 4.00pm on the day prior to Father’s Day until 4.00pm Father’s Day if they are not otherwise in his care that weekend;
(e)That the children spend time with the parent with whom they are not residing, on the children’s birthday and their parent’s birthday, for no less than three (3) hours if that day falls on a school day and no less than five (5) hours if that days falls on a non-school day;
(f)That the children shall communicate via telephone with the parent with whom they are not living on Christmas Day at a time as agreed between the parents and failing agreement, between 6.00pm and 7.00pm.
(10)That in the event that the Mother relocates her primary residence to a location which is a further distance from (omitted) than her current residence located at (omitted), Order 9 shall not apply and:
(a)During the school term, the children shall live with the Mother, for weekends two (2), five (5) and eight (8) of each term from after school Friday afternoon until Sunday at 4.00pm, and in the event of the Monday being a gazetted public holiday or designated pupil free day, changeover shall be effected on the Monday at 4.00pm;
(b)That otherwise the children live with their Father during the school term;
(c)That, for the purposes of school holiday periods, the children shall spend time/live with their parents as follows:
(i) That in even numbered years, the children spend time with the Mother:
1.   For the entire gazetted Easter school holiday period;
2.   For the first half of the gazetted Winter (June/July) school holiday period;
3.   The entire gazetted Spring (September) school holiday period;
4.   The first half of the gazetted Christmas (December/January) school holiday period, to include Christmas Day.
(ii)That in odd numbered years, the children spend time with the Mother:
1.   From Easter Monday until the day prior to the children returning to school;
2.   For the entire gazetted Winter (June/July) school holiday period;
3.   The first half of the gazetted Spring (September) school holiday period;
4.   The second half of the gazetted Christmas (December/January) school holiday period, not including Christmas Day.
(iii)That otherwise, the children shall live with their Father during the school holiday periods.
(11)That for the purpose of these Orders:
(a)The school holiday time shall commence when a parent’s time falls in the first half of the holidays from after school on the day the school terms finishes and conclude at 12.00pm on the day calculated to be half of the holidays;
(b)When a parent’s time falls in the second half of the holidays from 12.00pm on the day calculated to represent half of the holidays when contact shall end at 12.00pm on the day before children return to school;
(c)The school holiday periods shall be seemed to commence close of school on the day the school terms finishes and conclude at 12.00pm on the day prior to the children returning to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday periods and if there is an uneven number of nights, the Mother shall retain the additional night.
(12)That upon the Mother providing the Father with seven (7) days’ notice of her intention to travel to the (omitted) region to spend time with the children, she be at liberty to spend time with the children in (omitted) at all reasonable times as agreed between the parents, provided such time does not interfere with the usual educational or extra-curricular arrangements for the children.
Should the mother live in or around the (omitted) area
(13)That in the event that the Mother moves to a residence no further than a forty-five (45) minute drive from the Paternal Grandparents’ home at (omitted), then:
(a)That the children reside, during the school terms, on a week about basis with each of their parents with changeover to take place at 4.00pm on Friday each week;
(b)That the Father have the first half of the school holidays in odd numbered years and the second half of the school holidays in even numbered years;
(c)That the Mother have the second half of the school holidays in odd numbered years and the first half of the school holidays in even numbered years;
(d)That the children spend time with the Mother on Mother’s Day from 4.00pm on the day prior to Mother’s Day if they are not otherwise in her care that weekend;
(e)That the children spend time with the Father on Father’s Day from 4.00pm on the day prior to Father’s Day if they are not otherwise in her care that weekend;
(f)That the children spend time with the parent with whom they are not residing on the children’s birthday and their parent’s birthday for no less than three (3) hours if that day falls on a school day and no less than five (5) hours if that day falls on a non-school day.
(14)That for the purpose of these Orders:
(a)The school holiday time shall commence when a parent’s time falls in the first half of the holidays from after school on the day the school term finishes and conclude at 12.00pm on the day calculated to be half of the holidays;
(b)When a parent’s time falls in the second half of the holidays from 12.00pm on the day calculated to represent half of the holidays when contact shall end at 12.00pm on the day before children return to school;
(c)The school holiday periods shall be seemed to commence at close of school on the day the school term finishes and conclude at 12.00pm on the day prior to the children returning to school and the number of nights in each school holiday period is to be used to calculate one half of the school holidays period and if there is an uneven number of nights, the Mother shall retain the additional night.
Telephone communication
(15)That the children shall be at liberty to communicate with the parent with whom they are not living on the telephone at such times as a child reasonably request, but otherwise on each Tuesday, Thursday and Sunday evening from between 6.00pm and 7.00pm with the non-resident parent to initiate the telephone call and in relation to such communication the parent with whom the children are living with shall:
(a)Ensure that the children are available to receive the telephone call;
(b)Arrange for the children to telephone the other parent on the following night if for any unforseen circumstance the children miss the telephone call from that parent;
(c)Ensure that the children have privacy during the conversation.
(16)That the children shall communicate via telephone with the parent with whom they are not living on special occasions, including the children’s birthdays, the parent’s birthday’s, Father’s Day, Mother’s Day and Christmas Day at a time as agreed between the parents and failing agreement, between 6.00pm and 7.00pm.
(17)That the children shall communicate via telephone with the parent with whom they are not living on Christmas Day at a time as agreed between the parents and failing agreement, between 6.00pm and 7.00pm.
Collection and delivery
(18)That except as otherwise ordered, on the days that the children are attending school, the Father and Mother shall collect the children from and return them to school during times that they have the children.
(19)That except as otherwise ordered, on the days that the children are not attending school:
(a)The children shall be collected from or delivered to the paternal grandmother’s residence by the Father or his nominee at the commencement and conclusion of his time with the children;
(b)The children shall be collected from or delivered to the paternal grandmother’s residence by the Mother or her nominee at the commencement and conclusion of her time with the children.
(20)That each parent shall deliver and return the children’s clothing, school supplies and belongings shall be returned in a clean condition.
Specific Issues
(21)That the Mother attend a post-separation parenting program within six (6) months of the date of these Orders.
Future Dispute Resolution
(22)That the process to be used for resolving future disputes about the children or the terms of operation of these Orders shall be as follows:
(a)The parties shall jointly appoint a Family Dispute Resolution Practitioner by agreement;
(b)The parents shall consult with the agreed Family Dispute Resolution Practitioner to assist with resolving any dispute in relation to the children or reaching agreement about changes to be made to the parenting arrangements for the children;
(c)In the event that they are unable for any reason to agree or have an appointment with the agreed Family Dispute Resolution Practitioner and cannot agree on an alternate Family Dispute Resolution Practitioner, the Father shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability;
(d)The Mother shall choose one of the listed practitioners within seven (7) days of receipt of the list;
(e)If the Mother fails to choose then the Father may choose;
(f)They shall pay the costs of the Family Dispute Resolution Practitioner equally.
(23)That unless there are some emergent circumstances, before an application is made to a court for a variation of these Orders, each party is to take the steps referred to in the preceding Order.
Costs
(24)That the Mother pay to the Father within six (6) months of the date of this Order her one-half share of the costs of the Family Report associated with the preparation of the initial family report as ordered on 5 November 2010.
(25)That the Respondent Mother be responsible for the Applicant Father’s costs of and incidental to these proceedings on an indemnity basis.

The mother filed a response on 17 June 2013, however, she also filed an amended response on 2 June 2014 which detailed, more specifically, the orders that she proposed. The mother's orders were further refined slightly in the Minute of Final Order, which was detailed in the amended case outline which was filed on 5 June 2014. The amended case outline detailed the orders sought by the mother, as follows:
(1)That the Mother is to have sole parental responsibility for the major long term issue of the children, X born on (omitted) 2006, and Y born on (omitted) 2007, but will advise the Father in writing one month prior to making any decisions in relation to such issues which include but not limited not:
(a)Education; and
(b)Significant Medical or health issues.
(2)That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree; and
(c)They shall make a genuine effort to come to a joint decision.
(3)That notwithstanding the provisions of Order 2:
(a)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; and
(b)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.
Exchange of Information
(4)That the Mother and Father shall:
(a)Keep the other parent informed at all times of their residential addresses and mobile and landline contact telephone numbers;
(b)Keep the other parent informed of the names and address of any treating medical or other health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children; and
(c )Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children. This Order authorises any treating medical practitioner to release the children’s medication information to the other parent.
(5)That the parents authorise, by this Order, the schools attended by the children to give each parent information about the children’s educational progress and other school-related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at the parent’s cost)
(6)That during the time the children are with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)Speak of the other parent respectfully; and
(c)Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
Time with the parents
(7)That the children are to live with, spend time with and/ or communicate with their Mother and Father as agreed between the parents and if they fail to agree then in accordance with Order 8 to 12 below.
(8)Until the commencement of Term 4 in 2014, the children shall live with the Mother and Father during the school term as follows:
(a)In week 1, with the Father from the conclusion of school on Friday to the commencement of school the following Wednesday and each alternate week thereafter; and
(b)In week 2, with the Mother from the conclusion of school on Wednesday in the following week to the commencement of school the following Friday and each alternate week thereafter.
(9)From the commencement of Term 4 in 2014, the children shall live with the Mother and Father during the school term as follows:
(a)Each alternate week from 4.00pm Friday to 4.00pm Sunday until the commencement of any school holiday period with the Father:
(i)Should the Friday be a public holiday or pupil free day, time with the Father shall then commence at 4.00pm on the Thursday;
(ii)Should the Monday immediately after the weekend be a public or a pupil free day, then the children’s time with the Father shall then conclude at 4.00pm on the Monday.
(b)From 3.00pm until 5.30pm with the Father on the day the Father concludes his weekly roster (“concluding day”), if the father is working in the (omitted) area and in relation to this time, the following shall apply:
(i)The Father is to provide to the Mother a copy of his work roster within 14 days of the commencement of this time;
(ii)The Father is to provide the Mother with any new roster within 14 days if the concluding day changes;
(iii)The Father shall collect the children from school at the start of this time and return them to the Mother at the (omitted) café at the conclusion of time.
(c)That otherwise the children shall live with the Mother in (omitted).
(d)This Order shall be suspended for the weekends during any school holiday period (which shall be deemed to include the first weekend after the school term ends and the weekend before school recommences) and to recommence on the weekend after the school term recommences determined as if the sequence had not been interrupted.
(10)That the children shall spend time/ live with their parents for the school holiday period as follows:
(b)The first half of the Autumn, Winter, Spring and Summer school holidays in even numbered years with the Mother and in odd numbered years with the Father;
(c)The second half of the Autumn, Winter, Spring and Summer school holidays in odd numbered years with the Mother and in even numbered years with the Father.
(11)That the children spend special occasions with their Mother and Father as follows:
(a)With the Mother’s Day weekend. If this weekend would not ordinarily be the children’s weekend with the Mother, then in substitution the children will not be with the Mother the following weekend;
(b)With the Father for Father’s Day weekend. If this weekend would not ordinarily be the children’s weekend with the Father, then in substitution the children will not be with the Father the following weekend;
(c)On the birthday of each of the children, the children shall spend time with the parent they are not living with on the day, from 1.00pm until 5.00pm, with that parent to be responsible for collecting and returning the children to the other parent.
(12)That the children communicate via telephone or other electronic means with the parent they are not living with on special occasions, including the children’s birthday and the parent’s birthdays.
Other Orders
(13)That the parents are restrained from using physical discipline on the children and do all necessary things to ensure that no other person physically disciplines the children.
Collection and Delivery
(14)Other than as provided herein the Father and the Mother shall collect the children from and return them to the McDonald’s Restaurant on the corner of (omitted) and (omitted).
Dispute Resolution
(15)That the process to be used for resolving future disputes about the children or the terms of operation of these Orders shall be as follows:
(a)The parties shall jointly appoint a Family Dispute Resolution Practitioner by agreement;
(b)The parents shall consult with the agreed Family Dispute Resolution Practitioner to assist with resolving any dispute in relation to the children or reaching agreement about changes to be made to the parenting arrangements for the children;
(c)They shall pay the costs of the Family Dispute Resolution Practitioner equally;
(d)In the event that they are unable for any reason to agree or have an appointment with the agreed Family Dispute Resolution Practitioner and cannot agree on an alternate Family Dispute Resolution Practitioner, the Father shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability;
(e)The Father shall choose one of the listed practitioners within seven (7) days of receipt of the list
(f)If the Father fails to choose then the Mother may choose.
(16)That unless there are some emergent circumstances, before an application is made to a court for a variation of these Orders, each party is to take the steps referred to in the preceding Order.
Costs
(17)That the Applicant Father be responsible for the Respondent Mother’s costs of and incidental to these proceedings on an indemnity basis.
It should be noted, that the mother also contended, in the alternative, that should the court determine that the children remain residing in (omitted), then the mother proposed a variation of the arrangements in relation to her time to be spent with the children as detailed in order (9) of the proposed orders. The alternative, in the event of the father having the children live with him and the mother spending time with the children, was in these terms:
Should the Court find that the children shall continue to live in (omitted), the Mother seeks the following Order in substitution of Order 9 set out in the orders above:
(9)From the commencement of Term 4 in 2014, the children shall live with the Mother and Father during the school term as follows:
(a)Each alternate week from 4.00pm Friday to 4.00pm Sunday until the commencement of any school holiday period with the Mother:
(i)Should the Friday be a public holiday or pupil free day, time with the Father shall then commence at 4.00pm on the Thursday;
(ii)Should the Monday immediately after the weekend be a public holiday or a pupil free day, then the children’s time with the Father shall then conclude at 4.00pm on the Monday.
(b)That otherwise the children shall live with the Father in (omitted).
Additionally, during the course of the hearing of this matter, each of the parents clarified certain matters that arose pursuant to their proposed orders. For example, in relation to the mother's proposals, she sought that she should have sole parental responsibility for major long-term issues in relation to the children, subject to there being the opportunity for consultation and discussion between the parents.
She acknowledged, however, that in the event of the children being ordered to live in (omitted) or, more particularly, to live with the father, then that the appropriate arrangements would be for the father to have sole parental responsibility, it being the case that the mother and the father agreed on one of the very few issues to be determined in relation to the matter, which was that they were unable to communicate with each other.
Therefore, it was not appropriate for the children to be in a situation where the parents were required to reach agreement in respect of arrangements with regard to long-term decisions regarding to the parenting of the children. It was conceded by the Mother, that the parent with whom the children lived should be the parent responsible for such decisions subject, of course, to that consultation and discussion.
The father also conceded that particular issue, noting that the children should live with one parent or the other, and that that parent should have responsibility for decisions to be made, in relation to the parenting of the children, at least in respect of major decisions. Additionally, the father indicated, that whilst his proposed orders were couched in terms of the children remaining in (omitted) and sharing their time with each parent, as has been the case pursuant to the previous orders or, alternatively, that the children should live with him, and that the children should then spend time in each alternate week with the mother at her residence.
The father also, through his counsel, indicated that a further alternative or proposal was put which, it was hoped, would preclude the need for further litigation in that the father suggested that if the children were to live with him because of the mother's geographic distance but that subsequently, for whatever reason, she were to reside within a radius of 45 minutes reasonable travelling time of (omitted), then and in that event, the parenting arrangements should revert to equal time, notwithstanding what might have previously existed, pursuant to any orders made by this court.
The issues to be determined in relation to a parenting case are never easy. They involve competing applications and, understandably, competing and divergent perspectives of what arrangements might or might not be in the best interests of children. When a relocation, as is suggested here, at least from the perspective of the mother, is also to be taken into consideration, whilst it is not a factor specific and entire unto itself, it does give rise to additional difficulties, in relation to orders that might be made. That is simply because there is a need to consider the effects upon the children of less frequent opportunities for time to be spent with one parent or the other, as well as consideration of difficulties that might arise, financially or simply by way of time concerns, in relation to a child or children spending time with the parent who is more distant from them, than might previously have been the case.
That particular issue is one of significance in the relation to this matter, especially when it is considered, that for a period of some three and a half years or thereabouts, the children have, to all intents and purposes, lived in an arrangement which has generally provided for equal time within each household, though in respect of the father, it has not been reflected in equal time being spent with him because of more recent work commitments, but has still involved the children spending additional time with other members of the father's household, including his partner, Ms T, or additionally, one night per fortnight with the paternal grandmother, Ms M.

THE EVIDENCE:

Before turning to a specific consideration of this matter, it is necessary, to consider the evidence that was called in relation to the proceedings and, at least from the perspective of the mother, to consider issues that might arise, as a result of the fact that Ms T, a person who would have particular significance in relation to the future care of the children, as well as to have spent significant time with them prior to this hearing, has not given evidence.
I shall come to that aspect of the matter a little later in these reasons. From the father's perspective, his mother, Ms M, was called to give evidence in relation to this matter and, from the mother's perspective, her partner, Mr W and his mother, Ms L, provided affidavits and were required for cross‑examination.
Insofar as Mr W and Ms L were concerned, their evidence was not, to any real degree, contentious. Mr W swore an affidavit, which was filed on 7 May 2014, and spoke generally of his relationship with the children, as well as of his observations of the mother and her interaction with the children. He noted, at paragraph 5 of his affidavit, that he had been part of the children's lives since the commencement of his relationship with the mother in the latter part of 2008, and noted that he had a loving relationship with the children, that the children referred to him as "(omitted)" and that they did certain activities together, such a riding bikes and assisting him around the farm, particularly in relation to the conduct of some of the duties that arose in relation to the farm.
Interestingly, those aspects of the matter were not the subject of challenge. More specifically, Mr W was questioned about his statements in relation to the protection of the children from harm, and he was categoric in his denial of having perpetrated any physical discipline upon the children. In particular, he confirmed that discipline at his and the mother's household, if required, was dispensed by way of timeout or, on occasion, that the children were grounded from being able to use or watch the television. There were certainly no admissions made in relation to physical discipline and, in fact, the witness was adamant that any suggestion of physical discipline perpetrated by him or by the mother and observed by him was simply incorrect.
It was noteworthy that Mr W made reference to an incident in May of 2013 when the children, X and Y, but also the older of he and the mother's two children of their relationship, Z, were being disruptive and refused to go to bed. It was indicated that on that occasion, Y looked quite disturbed. She appeared upset and scared, and was holding her hands to her bottom and backing out of the room. Mr W said that he was unable to explain why that would be the case as he had not ever struck the child and was adamant, in his responses to such suggestions being put on the part of the father, that that had never occurred.
Mr W's evidence was generally non-contentious. I gained the impression, particularly seeing him in the witness box, that he was a quiet man, not prone to a raised voice or sudden movement and the impression that I gained was that he was, as he suggested, rather passive and that issues of discipline would not, in any way, involve physical disciplining. I thought Mr W an honest witness and accept his evidence in relation to this matter though it is, of course, of only somewhat limited assistance, in relation to the determination of the proceedings.
I also had the opportunity of seeing Ms L in the witness box. Ms L is the mother of Mr W and therefore, if you like, the de facto mother-in-law of Ms Coleman. Ms L gave evidence as to what she said were certain disclosures that were made to her by the child, Y, on (omitted) 2014. Those statements related to suggestions that the father and his partner, Ms T, would not help Y and, of course, by extension, X with their homework and educational needs. And, more particularly, it was suggested by Ms L that Y had said words to the effect:
All dad does is hit us around the head and kicks us, and if dad is not there, Ms T locks us in our room after we do the cleaning.
Ms L was challenged in relation to that particular aspect of the matter, but she remained firm that the statement was made to her, and that she communicated the nature of such a disclosure to the child's mother, and that the mother took the matter from there. Again, whilst it is only of narrow compass, I accept Ms L's evidence in relation to this matter, and the genuineness of the concerns that she expressed with regard to that evidence.
I also had the opportunity of seeing the paternal grandmother in the witness box. Ms M is a significant person in the lives of these children, as is obvious from material filed by both of the parties, but also as is obvious from her own statements and comments contained within the two family reports which have been prepared in relation to the matter. The paternal grandmother holds a significant place in the children's lives and also acts, as she suggested in her material, as something of a mediator between the mother and the father.
Unfortunately, I was troubled by some aspects of the evidence given by Ms M. In her affidavit, Ms M said that she acts in this role of mediator and communicates with the mother generally, it would seem, on behalf of the father as the father refuses, as does the mother, to communicate with each other. Ms M, however, noted in her affidavit, under the heading, My Relationship with Ms K, an incident which she says occurred on 1 November 2013.
On that day, the father's partner, Ms T, apparently notified Ms M of the fact that X was refusing to get in the car to go to school, and sought the involvement or assistance of Ms M. Ms M says that upon arrival at the house of the father and Ms T, X made a statement to the following effect:
I don't want to go back to mum's house, and Ms T is making me go back to mum's house.
Thereafter, she speaks of her attempts to convince the child to get into the motor vehicle and, in fact, indicates that X refused to attend school that day. She goes on, however, to note:
The reason I rang was to let Ms Coleman hear how X was behaving and how stressed he was. Ms Coleman said there wasn't anything she could do. I said, away from X's hearing, that the whole [court] process is taking too long for X, and that she was in control of the process. I do not recall Ms Coleman making any comment.

My concern in relation to that particular aspect of the matter is simply that it was a two-way street involving both the mother and the father, and the duration that might lead to the hearing of the matter was not one that was, in any way, able to be controlled by the mother. More particularly and, perhaps, more significantly, however, it was clear that the father was the applicant in these proceedings, and that it was he who sought the initial orders in relation to arrangements with regard to a change in parenting with respect to the children. To suggest, therefore, that the mother was, "in control of the process", was both unfair and I thought, to a significant degree, lacking insight into the responsibility of both parents to deal with issues, in relation to the parenting of the children.
Additionally, Ms M made a number of comments about her relationship with the mother noting that she felt that Ms Coleman was "nice" to me only when she wanted something. Ms M noted that since 2009 which, of course, followed the father, in conjunction with the paternal grandmother, holding the children away from the mother for a period of at least five months, the relationship has been tense. It troubles me to a significant degree that in some way, it would seem to be suggested by Ms M that it was the mother's sole responsibility for tension in the exchanges between them and that, in some way, she was not additionally a contributor to the tension in the relationship.
Ms M, I thought, was somewhat biased in relation to her attitudes with regard to responsibility for the difficulties, if they exist, in respect of this matter. Quite simply, both parties had acted in a manner which, on different occasions and to differing degrees, was less than helpful to resolving issues with regard to parenting. However, when questioned about the father holding the children over following a two-week period that had been agreed in April of 2009 for the children to spend time with the father, Ms M appeared to have no appreciation of the hurt that the father's and her actions had caused to the children and, as identified by the report writer, Ms W, the long-term effects upon the children.
For example, in cross-examination, Ms M was asked whether she generally agreed that a two and three year old would need to see their mother, in general circumstances, as regularly as possible. She indicated that that would be the case, but when more specifically asked about the fact that the children were in the father's care for a period of five months without any interaction with their mother, she was adamant that distance was a problem with regard to the mother seeing the children but she didn't recall, at any time, suggesting that the father might make some efforts to enable the children, at two and three years of age, to see their mother.
More significantly, however, when the first report was prepared by Ms W, which report is a report annexed to her affidavit of 1 September 2010, she indicated that whilst she was aware of what Ms W described as concerning behaving, clinging and hysterical reactions by the children with their mother, she had not considered that the children had been harmed or had been missing their mother but, rather, that it might be, as the father also suggested, a reaction to the mother's bad parenting.
I, unfortunately, did not believe the grandmother in that regard. It was a superficial answer, designed to get around the fact that there was no consideration whatsoever, on hers or the father's part, of the effect upon the children of not seeing their mother. To suggest that the behaviours of the children of such a significant nature as described by Ms W in her affidavit, including X's angry outbursts, a sense of grief, and the children both expressing extreme distress when separated from their mother was, in no way, a reflection of the children's need for their mother to be a part of their lives but, rather, a reflection of the mother's poor parenting, did Ms M no credit.
I was troubled by that particular aspect of the matter and, additionally, must say that where Ms M denies that a telephone call was made by the mother to her in or about September of 2013, with regard to apparent disclosures made by the children to the effect that the father had prodded them with a cattle prod, she was not believable. The distinct impression that I gained in relation to this matter was that, unfortunately, whilst Ms M was of great significance to the children, she was also firmly entrenched in the father's camp, and it was not open, therefore, to find that her evidence had not been tempered, to take into consideration the father's position, in relation to this matter.
Insofar as a finding is necessary with regard to whether or not a telephone call was made by the mother to the paternal grandmother following disclosures, I am far more inclined to the view that the mother's evidence is reliable in that particular regard.
Notwithstanding that, I have no doubt as to the quality of the relationship between the paternal grandmother and the children and, more particularly, the importance to the children of the relationship with their grandmother, but, by the same token, I am certainly satisfied that that relationship is both established and well developed, and that it can be maintained without, the continued need for there to be regular fortnightly time spent in the grandmother's household, to the exclusion of both the mother and the father.
I turn now to the evidence of the mother and the father noting, as I did earlier, that there is no evidence directly before the court in relation to the involvement of Ms T. Ms W, in her first affidavit, noted no interview with Ms T, but in the preparation of the second or updated family report noted in her interviews that she spoke with the father and his partner, Ms T, together on 26 August 2013. In that regard, however, her comments with regard to Ms T and, perhaps, what might be called her significance in the interview process, was limited.
The interview with Mr Dibbs and Ms T, is noted in paragraphs 90 to 108 of the updated report. However, it is only in paragraph 95 that any specific reference is made to comments by Ms T as well as in paragraph 108, there being the indication that both the father and Ms T had completed all but two sessions of the 1-2-3 Magic parenting course, which had been previously suggested. In paragraph 95, the reference to Ms T is in these terms:
Ms T likewise denied that she had made derogatory comments about the mother or that she had threatened X that she would not cook honey chicken with him unless he lived in their household. She said that X enjoys cooking with her. However, she believes that this comment has been taken out of context and twisted to make it appear negative.
Other than that evidence, however, there is nothing which specifically assists in respect of the relationship that Ms T has with the children or, more significantly, her willingness and capacity to be fully involved in providing assistance to the father in relation to the care of the children, as is clearly suggested on the father's own evidence. Ms T takes significant responsibility for the children on at least one evening each fortnight when he leaves for work after dropping the children to school on a Wednesday, and she cares for them on Wednesday evening before then readying them and sending them off to school.
This is notwithstanding the fact that she has the care of the two younger children of her relationship with the father, and also notwithstanding the fact that it was only recently revealed, that Ms T was pregnant and was expecting a third child of she and the father's relationship, in September of 2014. It would mean that Ms T would be responsible primarily for the care of the father and her two younger children, A and B, aged two years and three years respectively, as well as, of course, from September 2014, being responsible for the care of a newborn baby.
In the present circumstances, if the father were to continue working in his current capacity, then Ms T would take an even more significant role in relation to the care of these children, as well as of X and Y, because the father would be away for seven nights but, perhaps, literally eight days of the children's time with the Father. As Ms W commented, such a situation would be, of its very nature, unworkable, particularly in light of the responsibilities that Ms T would have.
I make these comments in relation to Ms T, because it was certainly emphasised to me, on the part of counsel for the Mother, that some inference could be drawn, pursuant to what is referred to as, the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, to the effect that as Ms T has given no evidence, it can be suggested that she would not be able to give evidence which would be of assistance to the father or his case.
I am not necessarily satisfied that such a negative inference can be drawn in relation to this matter, but I must say, that the failure to provide any evidence on the part of Ms T in relation to this matter does give rise to a concern as to findings that I can make, with regard to the relationship between Ms T and the children and the capacity and willingness of Ms T to assist the father, as would be essential in relation to the care of the children.
I turn now to the evidence of the mother and of the father. I agree wholeheartedly with one of the submissions made on behalf of the father through his counsel in this matter. At one stage during addresses, Ms Harding said, “Neither party is perfect.” It is clear that that is the case in, nearly if not all family relationships. Each parent of children and others significant in a child’s life can look back at their actions and reflect that they may have been able to do things better or more appropriately. In this instance, it is clear that that is the case.
Particularly, there are circumstances where the father, in conjunction with his mother has acted in a manner which has caused hurt and distress to two very young children. The mother was their primary carer. The mother, following separation in or about May of 2008 had the children living exclusively with her but provided some opportunities for the father to spend time with the children, until the father held the children over following an agreed period of two weeks, in April of 2009. Thereafter, for a period of five months, there was no time whatsoever spent by the children with their mother and only after arrangements were made for the children to at least spend some time with their mother, was their interaction with her, until orders were made in November of 2010, in terms that I have previously described.
As was submitted, therefore, for a period of 19 months from April 2009 until early in November 2010, the children were removed from the persons with whom they had their primary attachments and connections. It was done for what could only be suggested were less than genuine reasons.
The father’s suggestion of the mother not caring for the children or not providing properly for the children seems wholly unsubstantiated when the evidence that is presented in this matter is considered, but the effect of the father’s actions have been significant. Similarly, the mother has precluded the father from spending time with the children in a situation where for a period of perhaps two years or more the children had been spending time in each parent’s household on an alternating weekly basis.
Then, in or about May of 2013, the mother ceased the father’s opportunity to spend time with the children and for a period then of about two months, the children did not have the opportunity to spend time with their father. Thereafter, there was, following investigation by the Department of Community’s Child Safety and the Queensland Police Service, a determination that allegations, particularly with regard to serious and excessive discipline by the father, were unsubstantiated, though not discharged or ignored altogether, and then time was resumed.
Suffice it to say that the children have suffered as a result of the actions of their parents to differing degrees and in different ways and, whilst it is impossible to make a finding at this time as to the consequences for the children, it is troubling in the extreme that both of the children are experiencing learning difficulties, with it being noted that X’s reading age is, perhaps, two years behind what it properly should be, even when only in grade 2 and Y’s reading age is also less than what would be hoped with there being an estimate of one year’s delay in Y’s reading capacity. Similar concerns, though less specific in relation to timeframes, are also expressed in respect of the children’s other academic pursuits.
In turning to each of the parties, I should record specifically that I have no doubt whatsoever that both of the parents love their children dearly and the children love both of them. It is clear, however, that the parents are unable to properly put their own feelings with regard to each other to one side. The fact that they cannot or will not communicate with each other is a matter of particular significance as it reflects a clear indication of the parents’ determination to achieve their own goals and to satisfy their own particular wants, rather than to put the children to the fore.
It is not easy to expect that the parents would communicate with each other, particularly when there is a lack of trust and a lack of respect with regard to the parents and their interaction, but it is also essential that they do so if at all possible. The children deserve nothing less than having both parents involved in the decision-making process, particularly with regard to those major long-term issues such as education and medical treatment, particularly in circumstances where, as is obvious here, the children are both experiencing educational difficulties.
Perhaps the best indicator of the fact the parties are unable to work together, is the fact that whilst they both do not, though it would seem to differing degrees, agree with the grandmother’s suggestion that special tutoring or assistance would be of assistance to X, they are still unable to even jointly consider what arrangements, if any, might properly be made, with regard to the parenting of the children.
Significantly in that regard, it was troubling in the extreme that in the mother’s proposals with regard to the parenting of the children, she suggests a change of school to the (omitted) State School, which is in close proximity to her current residence. She annexes to her material a prospectus from the school detailing various issues with regard to the school and what it provides for its students and the father’s indication, when questioned about that particular aspect of the matter, was to indicate that he had not even read the material that had been annexed.
It reflected very clearly the lack of any respect, trust or even general courtesy between the parents and a total inability on either of their parts to put the children’s needs to the fore. I was troubled by that aspect of the matter and of the behaviours of both parents in relation to this matter.
However, when one was called upon to assess the behaviours of both parents, the distinct impression that I gained in relation to this matter was that the mother, though experiencing difficulties in relation to communication with the father and to decision-making which would be of benefit to the children, was more willing to consider such actions than was the father. Quite simply, the father had determined that he would not involve himself in the decision-making process with the mother, would refuse to even answer texts that might have been sent to him and, more particularly, lacked any insight as to the effect of such behaviours or other behaviours on his part, upon the children.
I was troubled, therefore, by particular aspects of the father’s evidence in that regard. Quite simply, the father was unable or, unfortunately, I would think, unwilling to concede that his actions in 2009 in holding the children over was harmful to the children. The father was unable to really provide information as to his concerns with regard to the welfare and wellbeing of the children when in the care of the mother up to April of 2009.
He indicated that he acted because the mother’s parents or perhaps grandparents had expressed a concern to him about the mother’s care for the children and, therefore, the need for him to keep the children. Understandably, however, counsel for the mother was quick to point out that no evidence was called from any person who apparently had alerted the father to such concerns and, in fact, the only real indication of a reason for holding the children, arose from the mother’s own disclosure to the father that she had been inside her house on one occasion, had gone looking for the children and had found them locked out.
There was no other clear evidence given as to what the father’s concerns might be and yet the consequences of his actions have been no doubt long-term to the detriment of the children, particularly with regard to the hurt that they experienced and which was observed by Ms W in relation to the separation their his mother and a feeling, perhaps, of having been abandoned by her.
When questioned particularly about Ms W’s observations as identified in the first report, the father was asked whether he was able to attribute any reason to the fact that X was so upset at the time of being separated from his mother. His answer was trite and I thought troubling in the extreme. He said simply, that it indicated that he doesn’t like her. He further indicated that he had no regrets or concerns in holding the children over and that, when asked specifically whether X’s displays of anger in some way perhaps were related to his grief in separation from his mother, he was adamant that that was not, as far as he was concerned, the cause for any difficulties in relation to the behaviours of the child.
I was troubled at the father’s attitude in that respect and a total lack of appreciation or insight at all into the consequences of adult actions upon the children. Similarly, I must say that I was concerned at the father’s attitude to the mother’s time to be spent with the children, pursuant to any arrangements that might be made at this time.
The father, in passing, made a comment to Ms W following interviews, in relation to the preparation of a second family report in August of 2013, that he would, if necessary, seek work not away from (omitted) but in (omitted) and that he was comfortable that he could get such work. Some 10 months later, the only indicators of what might have been available in that respect were negatives, in that the father had been laid off because of a downturn in work with his employment with (employer omitted) in or about November-December of 2013 and January of 2014 but he had been unable to obtain other truly remunerative work or any work whatsoever.
It was troubling that the father’s attitude was still one of being able to criticise the mother and her financial circumstances or future prospects without any appreciation whatsoever of his own difficult circumstances and, in fact, the more difficult circumstances both financially and, one would think, emotionally and physically in a household which would, if he was successful in his application, generally include seven people being he and Ms T and their combined total of five children, under the age of eight years.
Quite simply, the impression I gained was that the father’s position in relation to this matter was dogmatic in the extreme. His attitude was one of being right and being able to decide what was appropriate. And, whilst I appreciate that there were previous arrangements made in relation to the parenting of the children, particularly reflected in the orders of November 2010, the fact was that circumstances had changed and in all likelihood, with respect to both the mother but also the father, may change in the future, such that proper consideration of the best interests of the children now and how they might be best met should be properly considered, rather than simply suggesting that the children were to attend a particular school agreed to recently following interim proceedings and that therefore that would be the determinant, in relation to these proceedings.

Certainly I accept, as was submitted, that the question of the children’s school, their settled and stable routines at the school and established friendship groups are a matter to be considered but they are simply one of the many matters that a court and, of course, parents must consider, in relation to determining what is in the best interests of the children. The impression I gained was that both parents could, as I commented earlier, do better but I also felt that the mother was more willing, notwithstanding the concerns directly expressed by Ms W which I shall come to briefly, to consider the children’s needs ahead of her own and to recognise the importance of there being greater opportunities for the children than might arise from a settled arrangement simply with regard to attendance at school.

THE FAMILY REPORT:

I turn now to the evidence of Ms W. I found Ms W a most impressive witness. She has prepared two reports in relation to this matter and I have referred to both previously. She was, I thought, most professional in her comments with regard to each parent and their relationship with the children. In particular, Ms W was adamant that her comment in paragraph 179 of her updated report, relating to the reinstatement of the orders of November 2010, reflected her understanding of equal time and in no way reflected a suggestion of the children living with the father if the mother were to be living at a place more than 45 minutes’ drive from the paternal grandmother’s residence.
Ms W, sought to emphasise the fact, that whilst her views, nearly four years ago when providing her report annexed to her affidavit of 1 September 2010, reflected the needs of the children to have every opportunity to foster and develop their meaningful relationship with each parent had changed. As she put it:
We have moved on from that -
and as the parties agreed that the week about arrangement didn’t work, she was of the view and agreed, that shared time was no indicator of the best arrangements for the children, but rather to reconsider their circumstances now and determine what might be in the best interests of the children, in light of current evidence.
In particular, it was noteworthy and was commented upon by counsel for the father when noting that this was a finely balanced case, that the family report writer suggested that another question be asked, rather than requiring her to make any recommendation with regard to with whom the children might be best placed. Her indication, if I understood it correctly, was basically to the effect that both parents could provide for the children and it was obvious where the parents were unable to reach agreement, that the court being cognisant of all of the evidence called in relation to the matter, would be best placed to make a determination with regard to with whom the children should live.
I agree with her assessment in relation to this matter. I also, however, note, as I did previously, that Ms W was concerned about the actions of each parent in holding the children over at different times and the effects upon the children. Specifically, Ms W was asked about her comments in relation to the father’s holding over of the children in 2009 and the effects upon the children. She said that her comments, contained within paragraphs 163 to 167 of the report covered her views and professional opinions in that regard. Paragraphs 163 to 167 is in these terms:
(163)They were then able to spend a week with their mother each month, but this has not always been consistent it seems. These long periods of separation from their mother, who was previously their primary carer, have caused enormous distress and confusion for the children.
(164)Mr Dibbs does not seem to recognise that the children’s distress is related to the separation from their mother, and he instead tends to attribute it to her previous lack of care for them. He blames her for failing to meet their needs while they were in her care.
(165)Whether Ms Coleman was providing the children with optimal care or not, it is still likely that their extreme behavioural reaction is largely due to her sudden disappearance from their lives after April 2009. X’s angry outbursts and his expressions of rage against his mother and refusal to speak of her or to her, seem obviously to be related to his sense of grief, confusion and disappointment at her suddenly dropping out of his life. Children of X’s age are prone to blaming themselves for changes in the family, and it is possible that X feels to some extent responsible for his mother’s disappearance from his daily life.
(166)This dynamic was clearly demonstrated in the observation room with the report writer when X expressed his eagerness to spend time with his mother, and then his resistance to separate from her. When X realised that is was inevitable that his mother was leaving and there was nothing he could do to stop her, his attitude hardened, as if defending himself against hurt, and he refused to say goodbye or even to look at her. At the same time, he was obviously very upset and tearful.
(167)It seems that the father and his family either do not see this very clear dynamic, or choose not to see it, because they prefer to focus on the mother’s short comings and attribute the children’s adjustment problems to her previous care of them, which they maintain was inadequate.
Quite simply, the father was still unwilling to acknowledge that his actions had led to hurt and harm to the children and Ms W’s concern in that regard seems well-placed and understandable.
I was assisted by the assessments provided by Ms W in relation to this matter and I must say that whilst I agree with much of what she has detailed in her affidavits and two reports, in particular, I am mindful of the indication given by her that it is a determination finally to be made by the court, after consideration of all of the evidence provided in relation to this matter.

THE LAW

I am mindful, of course, that the paramount consideration is as set out in section 60CA of the Family Law Act, that the paramount consideration is the welfare of the children. I am also mindful of one of the central issues in relation to this matter, being the determination of parental responsibility and time to be spent with the children. In Lansa & Clovelly, a decision of Murphy J being [2010] FamCA of 80, a decision handed down on 11 February 2010. His Honour there, under the heading, “Parental Responsibility” set out at length issues in respect of the determination of parental responsibility, and commented through from paragraphs 136 to 152 about the issues to be looked at. They express clearly the position in relation to this matter and were as follows:
PARENTAL RESPONSIBILITY
[136]The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children. (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).
[137]Parental responsibility can, though, be altered by the making of a parenting order by the court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order. (s 61D(1) and (2)).
[138]But, when a court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
[139]The statutory presumption just referred to is rebuttable in circumstances where the court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2) or where the court considers that it is in the bests interests of the children for the presumption to be rebutted. (s 61DA(4)).
[140]No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a court determines what is in a child’s best interests”. It is, then, again called into use in this context.
[141]The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
[142]Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s 65DAE(2)).
[143]“Major long-term issues” is defined in s 4:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future);
(b) the child’s religious and cultural upbringing; and
(c) the child’s health
(d) the child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
[144]Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
[145]Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).
[146]Each of these matters has relevance, as it seems to me, to a decision as to whether the children’s best interests require the rebuttal of the presumption. A particular aspect of that is the role that entrenched and apparently intractable conflict might play in any such decision.
[147]A further issue arises by reference to the use of the expression “sole parental responsibility” which is in wide use in orders sought by parties and, indeed, in orders made by this court (and which has been in use for many years, including prior to the passing of the Reform Act which introduced into the Act the sections just referred to). The expression is neither now, nor was then, defined or used in the Act. A question arises as to what might be meant by the expression “sole parental responsibility” in the context of the current legislation.
[148]The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the duties, powers, responsibilities and authority over their child otherwise conferred by law.
[149]If that is the meaning of the expression, then, in my view, a court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person. There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
[150]The expression “sole parental responsibility” is frequently used without otherwise distinguishing between “major long-term issues” and decisions made during periods of time with the children. Or, it is used in conjunction with expressions used in now-repealed legislation such as, for example, “long-term care, welfare and development”.
[151]An order that simply provides, without more, for one party to have “sole parental responsibility” is, at least arguably, an order making provision contrary to s 65DAE(2) and, arguably, an order expressly providing for the diminution or “taking away” of parental responsibility within the meaning of s 61D(2).
[152]Those matters too, have relevance as it seems to me in assessing whether the best interests of children require the rebuttal of the statutory presumption and, if so, the form of the orders that might be made in respect of parental responsibility. In Chappell and Chappell (2008) FLC 93-382, the Full Court said:
75. In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two. [emphasis in original]
76. We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter his Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as his Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself.
Obviously the issue of parental responsibility is one of great significance. Here it is a matter which looms large because of the very divergent position of the parties. I note that Lansa & Clovelly was a case where Murphy J was dealing with what he referred to as “pervasive and apparently intractable conflict.”
Exactly that situation arises here. The difference between Lansa & Clovelly and this case, however, is that there was some indication that the report writer in that case was hopeful that a decision about parenting would see an abatement of the conflict between the parties. There was also evidence in Lansa & Clovelly of the fact that the parties had been able, at least in part, to make decisions and to work together with regard to the decision-making process with regard to the long-term interests of the child.
There is no such indication in relation to this matter.
Section 61DA provides that there is a presumption of equal shared parental responsibility, but pursuant to subsections (2) and (4), it is a rebuttable presumption in circumstances of family violence, or in circumstances generally where the court considers that it is in the best interests of the children for the presumption to be rebutted.
Section 61DA is in these terms:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.
Clearly, consideration does need to be given to those matters set out in section 61DA. But in this instance, like so many, there is also the specific need to consider the effects and possible consequences for the children and the parents of orders being made which will result in relocation of the children from where they currently primarily reside, or alternatively, continued residence at the current location, but with significant changes in relation to opportunities for time with one parent or the other.
In Heath & Hemming (No.2) [2011] FamCA 749, decision of Justice Kent, his Honour when discussing a parenting case, went on to comment about the decided law in respect of parenting decisions, and specifically addressed the approach to parenting cases involving a proposed relocation. His Honour said, at paragraph 87, the following:
87.Upon my review of the authorities it seems to me that the following is a logical and practical approach by the Court, and one which meets the statutory imperatives in a parenting case, including such cases involving a proposed relocation: -
(a)Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238)
(b)Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subsections (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo (supra))
(c)Consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).
(d)In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (supra) at [355] cited with approval in Sigley & Evor (2011) 44 Fam LR 439 at [142]).
(e)Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4)).
(f)If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.
(g)If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:
(a)Whether an order for equal time is in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,
(b)Whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.
(h)The questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.
(i)To answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR v GR (supra) s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively.

In paragraph 87, his Honour detailed a checklist of those matters that need to be considered and, of course, they are reflective of the guidance also provided in Lansa & Clovelly (supra). However, his Honour then sought to provide further guidance in relation to the approach to parenting cases which involved a proposed relocation of the children. At paragraphs 99 through 105, his Honour detailed matters of significance and in particular recognised that various factors, dependent upon the case, may be inter-related and assume particular prominence in any determination. His Honour said:
99.Reference to the “best interests” considerations in s 60CC of the Act makes it plain that in every parenting case it is necessary to consider the relevant factual history of the parties; the relevant factual history relating to the parenting of the child the subject of the proceedings; the current arrangements as well as the proposals of each party for future parenting arrangements, amongst many other considerations.
100.In other words, the process is not undertaken in the abstract or in a theoretical context, but must have regard to the particular child and the particular past history of that child and his or her parents with future parenting proposals considered in the context of that background.
101.Whilst the statutory framework does not deal differently or specifically with cases involving a proposed relocation from other parenting cases, such cases attract the description of “relocation cases” because they bring into sharp focus the central issue of balancing statutory imperatives concerning children’s best interests in the context of the legitimate and competing interests of parents. The task is to achieve, by the application of the law, Orders which are legitimate by reference to both “best interests” considerations and the rights of parents, including a right to choose where the parent lives. In some cases, the determination of “best interests” may well mean that one party’s choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child’s “best interests” being served by Orders which do not give one parent “optimal” arrangements or outcomes.
102.By the same logic, the Court is not bound by the parties’ proposals in the sense that only one or other proposal can be reflected in parenting orders. The statutory imperatives demand that the Court must consider proposals which meet the “best interests” criteria independently of the proposals of the parties, although, of course, the parties’ own respective proposals must be carefully considered and taken into account and procedural fairness must be accorded to the parties in respect of alternate proposals the Court might consider (AMS v AIF (supra) and U v U (supra)). It is essentially by reference to the parties’ competing proposals from which the assessment of “best interests” considerations proceeds as well as any alternative proposals the Court might contemplate.
103.The process suggested above in paragraph 87 will identify the advantages and disadvantages, in terms of best interests, of each of parties’ respective competing proposals. Where disadvantages are identified in the process the Court may consider, subject to the need to accord procedural fairness to the parties, whether there are modifications that might be made to the parties’ proposals which eliminate or minimise such disadvantages.
104.It seems to me that in any parenting case, including one involving a proposed relocation, the approach outlined in paragraph 87 above will meet the statutory imperatives and it is the approach I propose to take in this case. That noted, my review of the authorities indicates that in parenting cases involving a proposed relocation one or more of the following inter-related factors (without being exhaustive) may assume particular prominence in the best interests determination.
(a)s 60CC(2)(a) expresses the primary consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents. Similarly, s 60CC(3)(b) requires the Court to consider the nature of the relationship of the child with, inter alia both parents and the objects and principles expressed in s 60B also contain various references to the involvement of both parents in the life of their child.
In Sigley v Evor (supra) the Full Court recently considered what is required by the term “meaningful relationship” in s 60CC(2)(a). The Full Court:
(i)approved the interpretation that a “meaningful relationship” is one which is important, significant and valuable to the child (citing Mazorski v Albright (2007) 37 Fam LR 518 per Brown J and McCall v Clark (2009) FLC 93-405 per the Full Court);
(ii)concluded that the preferred interpretation of “benefit to the child of having a meaningful relationship” in s 60CC(2)(a) is that the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (referred to by the Full Court as “the prospective approach”). However, the Full Court noted that s 60CC(3)(b) requires a Court to explore existing relationships between a child and the child’s parents and other persons and thus, depending upon the factual circumstances, examination of the evidence as to the nature of the child’s relationships at the date of hearing (referred to by the Full Court as “the present relationship approach”) may also be relevant, for example where a significant relationship had not been established between a child and a parent at the date of trial;
(iii)confirmed that the legislation aspires to promote a meaningful relationship, not an optimal relationship. (Citing M v S (2007) FLC 93-313 per Dessau J at [38]-[39]; Godfrey v Sanders [2007] FamCA 102 per Kay J at [33]-[36] and Champness v Hanson (2009) FLC 93-407 per the Full Court at [103]);
(iv)concluded that “meaningful relationship” is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a meaningful relationship;
Clearly, if it is determined that a meaningful relationship with both parents is in the child’s best interests the starting point will be to consider whether such a relationship is already established. If not, whilst all factors must be weighed in the balance, it may be a determinative factor in assessing a proposed relocation. If such a relationship is already established, the consideration will be whether such a relationship can be promoted in the context of the proposed relocation. In either case, factors such as the child’s age and level of maturity (s 60CC(3)(g)) may assume particular importance. This may also lead a Court to consider some proposal other than that of either party, for example, providing for some period of time before the relocation is permitted to occur during which a “meaningful relationship” with the non-relocating parent may be established or further established or to allow the child to reach an age where it is likely that a meaningful relationship will be maintainable.
(b)The s 60CC(3)(b) consideration of the nature of the child’s relationships is not confined to child/parent relationships, and in circumstances where either or both parents have re-partnered and/or have other children and/or there are relatives of the child, the proposed relocation may need to be considered in light of a number of relationships between the child and other relatives, or indeed “other persons” (and it is to be noted that s 60C(3)(d) requires specific consideration to be given to the likely effect on the child of any separation from, inter alia, any other child or person with whom the child has been living).
(c)Each of the additional considerations expressed in s 60CC(3)(c), (f) and (i) focus upon parenting capacities in one form or another. Likewise s 60CC(4) focuses upon the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent, in particular in the period post-separation of the parties (s 60CC(4A)).
In Sigley v Evor (supra) the Full Court referred to the significance of the features that the father in that case, who was opposed to the proposed intra-state relocation of mother and child, had very little involvement in the care of the child and had spent very little time with the child, despite the efforts of the mother. Against that background, the Full Court highlighted that the trial Federal Magistrate had failed to properly consider s 60CC(4) and to consider whether the father would remain committed to an order for him to spend regular time with the child.
If the parent who proposes to relocate has a poor history of promoting the child’s relationship with the other parent that may, weighed in the balance with other factors, (including the “meaningful relationship” assessment referred to above) have determinative significance. Conversely, if the child has a meaningful relationship with the non-relocating parent despite the historical experience of little care by and time with that parent, Orders might readily be framed to promote the meaningful relationship even if relocation is permitted.
(d)The additional consideration expressed in s 60CC(3)(f), referring to the capacity of parents to provide for the needs of the child can assume prominence where a parent adduces evidence of potentially adverse affects upon that parent’s capacity to provide adequate parenting if the relocation is not permitted where that parent is to be the primary carer either because the parties propose that, or the preponderance of s 60CC considerations point that way. However, such evidence must be examined from the perspective of best interests of the child and whether the evidence is sufficient to support a finding of adverse affect upon parenting capacity, not simply a finding of “unhappiness” or “disappointment”. In Hepburn v Noble (2010) FLC 93-438 and Sigley v Evor (supra) differently constituted Full Courts of this Court have recently considered and provided guidance to trial judges as to the sufficiency of the evidence that will be required to support findings to the effect that the capacity of a primary carer to parent a child may be compromised if the wish of that parent to relocate is not granted.
Aside from that, MRR v GR (supra) is itself authority for the proposition that a practical analysis must be made and a comparison of the position of the proposed relocating parent if relocation is or is not permitted, having regard to the best interests of the child. Section 65DAA(5)(e) refers to “such other matters as the court considers relevant” and in MRR v GR the High Court referred to such factors as the availability of housing and employment to the mother if she remained in Mount Isa as well as the living conditions and facilities available to the subject child.
(e)The financial circumstances of the parties and their financial prospects are brought into focus by a number of s 60CC considerations in a parenting case involving a proposed relocation, particularly where the proposed relocation may put significant distance between parents and where the financial circumstances of the parents are constrained. The ability to secure a continuation of a meaningful relationship with both parents (s 60CC(2)(a)); the ability of each parent to facilitate a close and continuing relationship with the other parent (s 60CC(3)(c)); the practical difficulty and expense of time and communication (s 60CC(3)(e)); and the capacity of each parent to provide for the needs of the child (s 60CC(3)(f)); are amongst the statutory considerations in determining best interests where financial realities assume significance. Likewise, as the High Court emphasised in MRR v GR (supra), application of s 65DAA is concerned with practical realities, and in that case, the High Court referred to the availability to the mother of superior accommodation and employment opportunities available in Sydney compared with those in Mt Isa.
In Godfrey v Sanders (supra), Kay J (sitting as the Full Court) paid attention to proposals that might be put in place, given the parties’ financial circumstances, to achieve the objective of maintaining meaningful relationships consistent with allowing relocation where that appeared to be in the children’s best interests. Commencing at paragraph [35], Kay J said:
“The Federal Magistrate was in my view appropriately critical of the proposals that were being put by the mother to commit the modest capital which she and Mr Godfrey had entirely towards the provision of airfares for the children in the ensuing years when the money may have been better directed to providing for their welfare. There was however an alternative route that was clearly available, namely the provision of part of those monies as a pre-condition to the relocation being permitted to ensure that at least for the foreseeable future, say the next four or five years, adequate funds would be set aside to enable the children to visit their father on say four occasions each year and for the father to visit them on two occasions each year if he so desired. There was no evidence to suggest that a meaningful relationship could not be maintained between the children and their father in such circumstances. Of course, such visits could well be supplemented by telephone and internet communication.
…
Whilst the Federal Magistrate was correct in her conclusion that if the mother was unable to pay a substantial part of the travel costs, the result might be that the children would not spend sufficient time with their father to maintain a meaningful relationship with him, there were clearly ways and means by which provision of some of the funds as already discussed could have been secured to avoid that eventuality happening, at least in the foreseeable future.
The Federal Magistrate ought to have weighed very, very heavily into the equation the desire of the primary caregiver of these children (and indeed their siblings) to move on to a better life that she and Mr Godfrey and the children were presently enjoying. The Godfrey household could not look to either father of the children living in their household to provide any meaningful support for the children. Mr and Mrs Godfrey were each looking for better financial prospects than were available to them in the Latrobe Valley. Mrs Godfrey sought to move to a warmer climate. The Godfrey family sought the comfort of their church and it was common ground that such comfort was readily available in Brisbane. …”
(f)Moreover, economic advantage to the child in terms of “best interest” may need to be considered under, for example, s 60CC(3)(m) (any other fact or circumstance that the court thinks is relevant), where a parent is proposing to relocate to pursue a relationship or marriage likely to provide economic benefits to the child. To similar effect were the observations of the High Court in MRR v GR (supra), where the High Court had regard to the mother’s prospects of employment and the facilities that could be provided for the subject child if the mother were able to relocate from Mt Isa to Sydney.
105.Thus, whilst it is not the law that a relocating parent has any onus of establishing a bona fide reason for the proposed relocation, plainly the economic prospects of better employment opportunities; better housing or other facilities; enhanced economic circumstances by reason of a provident re-partnership or re-marriage are relevant matters and may, in a given case, assume decisive significance in the determination of best interests. Conversely, limited employment prospects or other financial circumstances of the parties in the place of origin may be relevant to the assessment of the prospect of the party opposing the relocation being able to move if the children move.

DISCUSSION:

As is always the case, the paramount consideration is the welfare of the child or children the subject of proceedings before the Court. But as is obvious from the numerous cases to which reference has already been made, and to the legislation, there are a considerable number of issues that must be considered.
The proposals of the parties are diametrically opposed, as I indicated earlier in these reasons. Each parent suggests that they should have sole parental responsibility for decisions to be made in relation to the children and that the children should live with them. The mother at least considered that there may need to be an alternative position taken should the court determine that it was in the best interests of the children for them to remain residing in (omitted), and set out proposals for her to spend time with the children. The father, however, could not countenance any other suggestion, though he did indicate that parental responsibility should vest in the parent with whom the children should live.
Having identified the various proposals or alternatives, Justice Kent in Heath & Hemming (No.2) (supra) noted that consideration needed to be given to the best interests considerations and to make the necessary findings, guided by those matters referred to in section 60CC. It is appropriate that that course be followed because the findings that arise from a consideration of those matters detailed in section 60CC assist with the determinations that must be made arising from section 61DA and, if appropriate, section 65DAA.
Section 60CC is a reflection of the objects and principles as set out in section 60B(1) and (2). Section 60B(1) and (2) is in these terms:
60B(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.
60B(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).
The primary considerations in section 60CC (2) reflect the objects as detailed in section 60B(1)(a) and (b). These children no doubt would benefit from a meaningful relationship with each of their parents. They have so benefited in the past and until the circumstances of the mother’s move arose, the children had the opportunity for continued interaction with each parent. Their relationship was meaningful and though now more difficult because of geographic considerations, is still meaningful. Any orders that are to be made should, as best they can, reflect an arrangement which will continue to foster and develop that meaningful relationship.

There is also, however, the need to ensure that the children are protected from harm, be it physical, emotional or otherwise. In this instance, identified by the report writer, Ms W, are real concerns with regard to the children’s emotional and psychological well-being if they remain primarily with the father. This stems, as I have emphasised earlier in these reasons, from the fact that the father did not and still does not appreciate the hurt caused to the children early in 2009, when the children were held over from their mother, and still fails to recognise the effects of such behaviours or even to accept any responsibility on his part.
Ms W was troubled, particularly by that aspect of the matter, and noted of course in her report that in a finely-balanced case, such a matter may be significant and would need to be considered in light of all of the other evidence. In that regard, I am concerned by the father and his family’s inability to recognise the hurt previously caused to the children, but more particularly the ongoing damage arising from such views continuing to be held. Quite simply, the mother was, in the father’s view, secondary to the children because she was, as he assessed, neglectful of the children and unable to appropriately provide for and to care for them.
In a finely-balanced case, it is a significant matter to be considered.
When the additional considerations are to be taken into consideration, many of them do not necessarily carry great weight. The parents are able to meet the needs of the children. The children have a meaningful relationship with both parents and love both parents. They do not express any specific wishes in respect of living with one parent or the other and no doubt, considering their ages, would hope to have the opportunity for as much time with each parent as possible. Meeting that hope, if the parties were in the same locality, could be achieved by orders being made for equal time, but that is impossible in the current circumstances. What can best be arranged is for a settled and stable routine, primarily in the home of one parent, but with as much opportunity as possible for the involvement of the other parent in the lives of the children.
Some of the additional considerations, however, do require specific comment. In particular, consideration needs to be given to the likely effect of change in the children’s circumstances, particularly when the mother’s proposal is for them to live with her, and therefore to cease primarily residing with the father. The clear indicators are however that the children know the homes of both parents, are settled in those homes on the occasions when they are with each parent, and whilst there may be some changes, for example with schools and the like, they would not be such as to suggest that change should not be made.
Neither party is in a strong financial position, and it would be remiss of the court to not accept that there would be practical difficulties with travel and the costs associated with it in respect of either parent spending time with the children. But, it is a situation which has existed for some time and whilst giving rise to some concerns, has not been an insurmountable problem. Again, it would not be a circumstance which would preclude orders being made which reflect the court’s consideration of what would be the most child-focussed and appropriate arrangement for parenting of these two children.
As is obvious from the comments already made in these reasons, issues relating to the children’s psychological well-being and, by extension, each parent’s capacity to provide for the children’s emotional needs, looms large. Ms W identified that each parent could provide for and meet the physical needs of the children, but what needed to be addressed, was each parent’s capacity to meet the children’s emotional needs and, of course, to display the proper attitude to the responsibilities of parenthood.
The father’s failure to appreciate the attachment of the children to their mother and the hurt that occurred when the father did not seek to facilitate that relationship was of particular significance. These children’s distress at seeing their mother and being separated from their mother was palpable, and the father’s suggestion that their behaviour was a reflection of the children “not liking her” was damning of any suggestion that the father could appreciate the children’s needs and attachments. The father’s suggestion that he had no regrets and no concerns for the well-being of the children after holding them over displayed a complete failure to appreciate the needs of the children or a capacity to meet the overriding responsibilities of parenting.
Findings such as these are significant when determining the best interests of the children and are, of course, significant in relation to determinations with regard to parental responsibility. Section 61DA has been referred to earlier in these reasons and it is noteworthy that whilst there is the presumption of parental responsibility being equally shared, it can be rebutted in appropriate circumstances. The circumstance of significance here is whether the court can be satisfied that equal shared parental responsibility would be in the best interests of the children.
As noted, the parents do not suggest that such an arrangement would be appropriate or workable, and in light of the findings which I have already made, I am not satisfied that the parents would be able to put the children to the fore in any decisions which might necessarily be required to be jointly made. More particularly, the father’s attitude to the mother and the minimising, if not total disregard, of the importance of the mother to the children and in the decision-making process leads me to the view that equal shared parental responsibility is both unworkable and would in any event not be in the best interest of the children.
I am satisfied on the evidence that I have heard in relation to this matter that the mother is the parent best able to make decisions in relation to the children’s long-term care, welfare and development. The father’s dismissive attitude to the importance of the mother in the children’s lives leads me inexorably to the conclusion that the parents would not be able to work together in a courteous and consultative manner to make decisions with regard to the children. I intend to order that the mother have sole parental responsibility for the long-term decisions to be made in relation to the children.
In the circumstances, it is not necessary to specifically consider provisions for equal time or substantial and significant time, as prescribed pursuant to the provisions of section 65DAA. I would note simply in passing that even if I were of the view that equal shared parental responsibility was in the best interests of the children, I would not be minded to consider equal time or even substantial and significant time. I say that in light of the fact that consideration of the reasonable practicality of such arrangements as required to be considered pursuant to subsection (5), would not arise favourably. Quite simply, the parties live a significant distance from each other, have little apparent ability to implement any arrangement for equal time or substantial and significant time and, most significantly, appear to have little prospects of being able to communicate with each other to resolve issues arising in relation to the children.
Accordingly, I have come to the determination that the best interests of these children can only be met by orders of a precise nature being entered into and that the orders proposed by the mother generally reflect the most child-focussed and proper arrangements into the future. The orders of the court therefore will be as detailed at the commencement of these reasons.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Coker

Associate:

Date: 7 November 2014

[2014] FCCA 2477

7 November 2014

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