DIXON & SARGENT

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIXON & SARGENT

[2015] FCCA 3605

Catchwords:
FAMILY LAW – Parenting proceedings – relocation.

Legislation:

Family Law Act1975 (Cth), ss.60CC, 61DA, 65DAA, pt.VII

Family Law Reform Act1995 (Cth)

Browne and Dunn (1893) 6 R67.H.L

B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755
A v A: Relocation Approach (2000) FLC 93-035
AMS v AIF and AIF v AMS (1999) 199 CLR 160
U v U (2002) FLC 93-112
Hepburn & Noble [2010] Fam CAFC 111, (2010) FLC 93-438

Applicant:

MS DIXON

Respondent:

MR SARGENT

File Number:

NCC 1313 of 2014

Judgment of:

Judge Myers

Hearing date:

2, 3, 4 and 5 November 2015

Date of Last Submission:

13 November 2015

Delivered at:

Newcastle

Delivered on:

19 November 2015

REPRESENTATION

Solicitors for the Applicant:

Alan Arnold Lawyers

Solicitors for the Respondent:

Winder Lawyers

THE COURT ORDERS THAT:

All previous parenting orders be discharged.
The parties are to cause the children to reside and remain residing in the (omitted) area with a reasonable distance of not more than 45 minutes’ drive of (omitted) School, (omitted).
The parties are to have equal shared parental responsibility for the children X born (omitted) 2007 and Y born (omitted) 2009.
The said children live with the mother.
The children spend time with the father as follows:
(a)during week 1 and week 3 conclusion of school on Friday until 5.00pm the following Sunday and to be extended to the following Monday at the commencement of school if the father is not working Monday morning;
(b)during week 2 from after school Wednesday to the commencement of school the following Thursday and to be extended to the commencement of school on Friday if the father is not working on the Friday;
(c)during week 1 from after school Monday to the commencement of school Tuesday and to be extended to the commencement of school on the following Wednesday if the father is not working Wednesday.
The father is to provide to the mother a copy of his roster as soon as is practicable upon him receiving such roster.
By consent the parties do all acts and things and sign all documents necessary to cause the children to be enrolled at and attend the (omitted) School, (omitted) from not later than Term 1 of the 2016 school year.
Despite the provision of order 5(a), (b) and (c) above the time the children spend with the father shall be suspended during all school holiday period and the children shall spend time with both parents as follows:
(a)With the mother in the Terms 1, 2 and 3 school holidays for the first half in even numbered years and the second half in odd numbered years; and
(b)with the father in the Terms 1, 2 and 3 school holidays for the first half in odd numbered years and the second half in even numbered years.
Despite the provision of any other order the children shall spend time with the parent they are not living with or spending time with on their birthdays and that parents birthday as agreed between the parties but failing agreement for a period of three (3) hours between 4.00pm and 7.00pm.
Despite the provision of any other order the children shall spend the whole of the Fathers’ Day weekend with the father and the whole of the Mother’s Day weekend with the mother.
The children shall spend time with the parents over the end of Term 4 school holiday period as follows:
(a)In even numbered years with the mother commencing at 4.00pm on the last day of school term and concluding at 4.00pm 3 January;
(b)with the father in even numbered years commencing at 4.00pm on 3 January and concluding at 5.00pm on 23 January;
(c)with the father in odd numbered years commencing at 4.00pm on the last day of school term and concluding at 4.00pm 3 January.
(d)in odd numbered years with the mother commencing at 4.00pm on 3 January and concluding at 5.00pm on 23 January.
The father shall ensure that during periods in which the children are in his care that he shall look after the children at all times. However should the father be unable to care for the children for a period exceeding four (4) hours he shall telephone the mother and offer the mother the opportunity to look after the children.
Each party notify the other of any change to their residential address, landline or mobile telephone number within 48 hours of any such change.
The parents be enabled to have telephone or Skype communication with the children on a Tuesday or Thursday between the hours of 6.00pm and 7.00pm during the periods the children are not in their care.
Each parent be restrained from denigrating the other parent or member of the other parent’s household in the presence or hearing of the children or allowing any other person to denigrate the other parent or member of the other parent’s household in the presence or hearing of the children.
Each party is to notify the other by text message as soon as is practicable on the happening of any of the following to the children:
(a)Any medical problems or illness suffered by the children whilst in their care;
(b)Any medication that has been prescribed to the children, the amounts to be taken and such medication to be provided at changeover, if the child is required to take it during the periods they are spending time with the non-residential parent;
(c)Appointments made for the children with health service providers;
(d)Any social, school or religious functions which the children are to attend;
(e)Being involved in an accident;
(f)Any other matters relevant to the children’s welfare.
The parties will communicate about issues relating to the welfare of the children via email, and for this purpose, the parties shall ensure that the other is kept informed of any changes to email addresses within no less than twenty four (24) hours of such change. Any communications between the parents about the welfare of the children shall be child focussed, not derogatory to the other parent and in keeping with what is in the best interest of the children.
Each of the parents will be entitled to obtain directly from any education, health, welfare or other professional attended by the children, copies of any reports, notices or other verbal or written advice affecting the health and welfare of the children and for this purpose:
(a)Each of the parties will immediately notify the other of the names and contact details of the relevant health, welfare and other professional and keep the other party so informed;
(b)Each of the parties will do all acts and things and sign all documents as may be necessary from time to time to allow the other party to exercise their entitlement under clause 18 of these orders.
The parties will endeavour to agree to swap days and times if one party provides notice to the other of a major family event so that the children will be able to be included in any such family event.
In the event that either party finds difficulty communicating with one another about the children or complying with these orders, the parties do the following:
(a)to enter into discussions with the legitimate intention of resolving the difficulty in the best interests of the children; or failing that
(b)to attend upon Family Dispute Resolution (FDR) within twenty eight (28) days of a written request from either party to participate in FDR with the legitimate intention of resolving the matter in the best interest of the children.

THE COURT NOTES THAT:

A.The court notes that the parties agree that for the purposes of facilitating order 7 above they shall equally contribute towards all of the fees and costs relative to the children’s attendance at (omitted) School, (omitted).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1313 of 2014

MS DIXON

Applicant

And

MR SARGENT

Respondent

EX TEMPORE` REASONS FOR JUDGMENT

This is a parenting decision in relation to two children of a relationship between the parties, Ms Dixon and Mr Sargent. The children are X, born (omitted) 2007 and Y, born (omitted) 2009.
The applicant in the proceedings is the mother. She caused to be filed an initiating application on 26 May 2014 in which she seeks final orders with respect to the children that are in essence as follows:
a)That the children live with the mother.
b)That the mother be entitled to relocate to the State of Victoria to live in the (omitted) suburbs of Melbourne.
c)That the parties have equal shared parental responsibility and the father spend time with the children as mutually agreed between the parties in writing but failing such agreement for a block period of 10 days in each of the Victorian gazetted school holidays in terms 1, 2 and 3, for a block period of 20 days in end of term 4 school holiday periods and at times on the children’s birthday, times on the father’s birthday, Father’s Day and Christmas time, Easter time and otherwise.
The mother, during the course of the proceedings, orally amended her orders and sought an order that provided essentially if the father sought to relocate from his place of residence to Victoria where she lived with the children, the father could spend time with the children on a week about basis.
The mother sought what I might describe as a number of injunctions, including an injunction that prevents the father from not caring for the children, really, for about 90 per cent of his time. The mother sought some orders with respect to handovers of the children between the parties, namely at the McDonald’s family restaurant closest to the mother’s residence in Victoria.
The mother sought orders that for the purposes of handovers for the terms 1, 2 and 3 school holidays and December/January school holidays, the mother or nominee deliver the children to the father at the (omitted) Airport. It was the mother’s evidence that she proposed to travel with the children from Victoria to (omitted) and would then stay in the (omitted) area with friends while the children were spending time with the father and the mother would then return back with the children to Victoria.
The mother sought orders that the parties equally bear the costs associated with the travel between Victoria and New South Wales although the mother indicated to the court that she was prepared to pay the costs of that travel.
The mother sought some further orders as follows:
(a)That the parties notify each other of any change in their residential address within 48 hours of any change.
(b)That the parties have telephone and Skype communication with the children on a Tuesday and a Thursday between 6 and 7 pm in periods the children are not in that party’s respective care.
(c) The parties be restrained from denigrating one another.
That the parties notify one another by way of text message as soon as is practical upon the happening of the following issues:
(a)The children suffering medical injury or illness,
(b)Should if they need medication,
(c)Should appointments be made for the children with health service providers, or any social, school or religious function which the children are attending,
d)the children being involved in an accident or any other matter relating to the children’s welfare.
The mother sought a further order that the parties would communicate about issues relating to the children’s welfare via email and for this purpose the parties ensure the other is kept informed of any change to their email addresses within 24 hours of such a change.
The mother sought an order that any communications between the parents about the welfare of the children shall be child-focused and not derogatory to the other parent and that the parties keep the best interests of the children in mind.
The mother sought further orders with respect to the parties being entitled to obtain directly from the children’s school, health care providers or other professionals attended upon by the children, copies of reports, notices or verbal or written advice affecting the health or welfare of the children and for that purpose the mother sought orders about how that might be facilitated, including each other being kept advised of the names and contact details of any health care professionals or other professionals perhaps treating the children.
The mother sought an order that the parties shall endeavour to agree to swap days and times if one party provided notice to the other of major family events so that the children will be able to attend and be included in such a family event.
The mother sought orders that in the event the parties find it difficulty complying with the orders, the parties agree to use their best endeavours to legitimately resolve the matter and if unable to do so undertake family dispute resolution at a family relationship centre.
There are property proceedings between the parties that have not yet been resolved. The purpose of the four day hearing in this matter was for the purpose of determining what I might describe as the mother’s relocation application and not the parties’ property proceedings.
The parties agreed upon some orders that the court would make at the end of the proceedings by consent that provide that in the event the children remain in the (omitted) the parties shall do all acts and things to ensure the children are enrolled at and attend at (omitted) School from not later than the first school term commencing after the issuing of these orders being term 1 in 2016 with a notation that the parties have agreed to share equally all costs and fees associated or relative to the children’s attendance at (omitted) School.
In support of the orders sought by the mother she caused to filed an affidavit on 28 October 2015. The mother deposes that she was born in 1983. She is currently or was at the time of swearing the affidavit, 32 years and six months of age. The father was born in 1979 and he is 36 years and two months of age.
The mother deposes to a relationship with the father. There are two children of that relationship, namely X, currently aged eight years three months at the date of swearing the affidavit and Y, born (omitted) 2006, six years one month of age at the time of swearing the affidavit.
It is the mother’s evidence that the parties separated for what she describes the last time on 13 May 2013 when she left the parties’ home at (omitted). The parties’ relationship had lasted for a period of 11 years.
The mother gives some history as to the parties’ relationship. Particularly they met in 2001 through mutual friends when they were both living in (omitted) Victoria. It’s the mother’s evidence that they were initially flatmates and a few months later started a relationship.
It’s apparent that the parties moved on many occasions and lived at the following places, including (omitted) Victoria, (omitted) New South Wales, Melbourne, (omitted) Queensland, (omitted) which is a (omitted) suburb near (omitted) and (omitted).
It’s the mother’s evidence that when they lived in Victoria she saw her family frequently and that when they went to Queensland it was for the purposes of travelling and there was at no stage an agreement to permanently move to Queensland. It is the mother’s evidence that the father’s parents or stepmother lives near (omitted) and his mother lives in (omitted), which the mother described as a (omitted) town inland from (omitted).
Both X and Y were born at (omitted), Queensland. The mother gives evidence, between 2007 and 2010, the parties lived in a property they currently own at (omitted) and that, during that period, the father worked three hours from home and then began working away from home in block periods of four to five days. It is the mother’s evidence that, often on the weekend when the father was at home, he would take the opportunity to socialise with friends and mates and that she nor the children rarely saw him or they never spent a full day together.
The mother deposes that, when the father raised the prospect of moving to the (omitted) area and obtaining a (omitted) job in the (omitted), she was happy as she saw it as an opportunity for the parties to start spending time together as what she describes as a family. It is the mother’s evidence that she became concerned that she had heard rumours that the father was having an affair with somebody at work. The mother deposes that the parties married on (omitted) 2012 in (omitted) and that there was a separation between the parties in March of 2013 with the parties separating on a final basis in May 2013.
It is the mother’s evidence, to the best of her knowledge, the father had moved some five times following separation and that the father’s former partner lived in a place called (omitted) and that he had lived there previously. The father has also lived in suburbs including (omitted), (omitted) and now at (omitted). The mother deposes that it is her view that the father will move again. It is a feature in the proceedings that the parties seek equal shared parental responsibility and, indeed, the mother sought orders that, if the father relocates to Melbourne, that the children can live in an equal time arrangement between the parties.
Despite the parties’ positions the affidavits filed by the parties describe a volatile relationship with significant allegations of family violence between the parties. The mother sets out a history of family violence. The father raises similar complaints. The Court is on notice that counsel for each party strategically chose not to canvass issues relating to family violence in circumstances where it is apparent that the parties have on their evidence moved on from what their relationship might have been and now seek equal shared parental responsibility.
The mother gives a history of being what I will describe as a primary carer for the children throughout the parties’ relationship and the mother is somewhat critical of the father with respect to him taking time out to work as a (occupation omitted). Again, the mother gives further evidence in her affidavit with respect to the mother being the primary carer for the children following separation. The mother raises concerns about the father’s ability to care for the children in circumstances where, at the time of the filing of her documents and at least the affidavit in support of the orders sought by her, it was the father’s position very much that he was seeking an equal-time fifty-fifty care arrangement.
Nevertheless, the mother sought orders on a final basis that, if the father relocated to Melbourne, that she would be content that she could make work or, and there was an ability by the parties to make work an equal time arrangement. Counsel, for the mother indicated the mother had formed a view that it would be in the best interests of the children and otherwise reasonably practicable for there to be an equal time arrangement if the father lived close to where the mother and children were residing in Melbourne.
The mother raised some criticism of the father with respect to his failure to take advantage of and comply with the current Court orders to spend time with the children and it is very much a case in this matter that the mother is critical about the father’s work roster and the inability of the father to care for the children and, at least sometimes, calling upon other persons to help look after the children. The mother raises some concerns with respect to the father’s driving and some concerns about the father’s behaviour with respect to the way that he might treat the children, and particularly X, in circumstances where she might be whingey.

The mother sets out her proposals for future care of the children. The mother gave evidence that she and the children have what the mother describes as little support where they were living. The mother deposes that she has attempted to rely upon the father during periods when she has been ill to no avail. It is a case in these proceedings the mother does suffer an illness that the court will discuss later in this judgment namely, fibromyalgia. The mother is highly critical of the father not assisting her caring for the children.
The mother deposes that she desires to move down to Melbourne as she has help in Melbourne, and in particular help from her mother. At paragraph 46 of the mother’s affidavit, she deposes that the maternal grandmother has been an important person in her life and in the children’s lives and that the children call her Nanna. The mother describes that the maternal grandmother, dotes on the children and spoils the children, loves them and otherwise has a good relationship with them and it was the evidence given during the proceedings that, during the period of the parties’ relationship, they travelled to Melbourne at least once a year and, following the parties’ separation, the children would travel with the mother to Melbourne twice per year.
The mother gives evidence at paragraph 47 of her affidavit that, since living in what she describes as the (omitted) area, the maternal grandmother has visited, coming up to the (omitted) area, at least once per year. The mother sets out in her affidavit she suffers from what is called fibromyalgia, which she says is incurable; that she began to suffer symptoms in 2010 when she was first diagnosed. At first, the mother indicated she believed she had glandular fever and the symptoms increased: sensitivity to pain; increased sensitivity to stimuli such as heat, cold and smell. The mother suffers extreme fatigue, difficulties with concentration and memory difficulty with sleeping, headaches, swelling, tingling, numbness in her legs, feet, hands and arms and that she takes prescription medication, being a muscle relaxer. The mother gave evidence that she was prescribed muscle relaxants for the purposes allowing the mother to sleep at night.
The mother gives evidence to being on matazepam. It is the mother’s evidence that, following separation, she suffered depression. The mother’s evidence is that she has emotionally improved considerably over the last 18 months and that she no longer takes antidepressants and, indeed, it is the mother’s evidence given during the course of cross-examination that she no longer suffers, at least at this time, from depression. The mother deposes that she started university, and she did so in circumstances where her health was up to it.
The mother gives evidence that there are specialists in Sydney from whom she could receive treatment to assist with her symptoms, but she cannot afford to access that treatment. The mother deposes that the maternal grandmother and her sister, Ms M, both live in a suburb called (omitted) in Melbourne, and they each have a close relationship with the children and that they regularly Skype the children and send gifts. It is the mother’s evidence that she has five uncles and an aunt, and a grandmother and multiple cousins living in Melbourne, with whom they share a close relationship.
The mother deposes that the children both have health issues, and while the mother suggests that is normal for young children, the mother is critical of the father having a lack of willingness or ability to share in the care of the children in circumstances where they are unwell. The mother gives evidence by way of example where X suffers eczema and dermatitis and requires creams and antihistamines that the father fails to provide to X. During the course of cross-examination, it was the father’s evidence that he does have creams and antihistamines that he treats the children with.
It is the mother’s evidence that Y has ongoing issues with respect to tonsillitis and ear infections, and does not respond well to antibiotics and that an ears, nose and throat specialist at (omitted) had advised her that Y would benefit from a tonsillectomy and the implantation of grommets. There was some cross-examination undertaken of the father in the proceedings with respect to whether he had cancelled his health insurance deliberately as a means of somehow punishing the mother or otherwise.
It is the father’s evidence that he cancelled his private health insurance after some consultation with the mother, but well before Y had been diagnosed as needing a tonsillectomy or, otherwise, grommets implanted within her eardrums.
The mother deposes that, if she was allowed to relocate the children to the (omitted) region, she would travel with them on a plane between Melbourne and (omitted) to facilitate the children spending time with the father.
It is the mother’s evidence that the father would see the children during the school holidays, unless, of course, the husband moved to Victoria. The mother suggests this would be a beneficial arrangement as it would allow the father to focus on his work outside of holiday times and spend time with the children during the school holidays. It is the mother’s evidence that she felt this would be less disruptive to the children. It was the mother’s view at the time she swore her affidavit that if the children only saw the father during school holiday periods as opposed to midweek times, as it would be less disruptive to the children.
The mother is somewhat critical of the father’s work schedule that the court received into evidence during the course of the proceedings. The mother sets out in her affidavit material that she is aware that the court would consider the impact of the children moving to Victoria and the amount of time that they would spend with the father. It is the mother’s evidence that, if the father visited the children in Victoria, he could spend additional time with them. The mother gave evidence that the father is a shift work (occupation omitted), that the cost of a flight with Jetstar to Melbourne return is $400.00 to $800.00 and that the father is in a position to be able to afford to pay airfares.
The mother also gave some evidence that there are what she describes as spot specials on airfares that vary in price from $9.00 to $69.00 per flight, but, of course, the mother describes such airfares as subject to availability. The mother gives significant evidence with respect to issues relating to the children’s school. The Court has observed the parties during the course of cross-examination and, to that end, the parties, really between themselves, reached an agreement with respect to what might take place where the children are not allowed to relocate to Victoria; that is, the children will attend the (omitted) School at (omitted), but in circumstances where the parties contribute equally towards the cost of that schooling.
The mother gives evidence with respect to her proposal for schooling if the children move to Victoria. The mother deposes that she has spoken to a lady called Ms A, a secretary at the (omitted) Primary School, and was given some assurance that the children would be accepted into the school if this school was in her area of accommodation. It is the mother’s evidence that she has researched the school and that it has what she described as excellent programs, excelling in music and interschool sport.
The mother did give evidence during the course of cross-examination that she had not actually entered upon the school grounds and had not sought to speak with the school principal or, perhaps, deputy principal of the school. The mother deposes that, should the Court allow the children to move, she would reside at her mother’s home, which is in the (omitted) Primary School zone. The mother gave evidence during the course of cross-examination that the maternal grandmother’s home is probably not suitable for long-term accommodation, being a two bedroom unit, and ultimately the mother would look to relocate to new accommodation following some period living with the mother.
It is the mother’s evidence that she has contacted real estate agents in the (omitted) region and there are several two to three bedroom homes available in the area. The mother gave evidence of rent being somewhere between $230.00 to $380.00 per week. The mother deposes to currently receiving $900.00 per week through Centrelink and child-support payments and that she would be able to manage living in the (omitted) region.
The mother gave evidence that she intended to obtain some part-time employment upon moving to Victoria. Tendered on behalf of the mother during the course of the proceedings was a letter from an owner of a (employer omitted) suggesting that the mother would have available to her at least a part-time casual position in that (employer omitted). The mother gives evidence of her having considered the children attending an alternate school being that of (omitted) Primary School, which is also in the (omitted) region. The mother also gives evidence that there are what she describes as other (omitted) school options in Victoria, being (omitted) School in (omitted) and the (omitted) School, also in (omitted), and that the fees for such schools range from about $1800.00 to $4500.00 per year for both children.
It is the mother’s evidence that if she were to relocate to (omitted), then transport for the children would be what she describes as a non issue, where there are trams and trains. It is the mother’s evidence that the children could be enrolled into extracurricular activities such as swimming classes and the like available to the children, including karate, gymnastics and dancing. It is the mother’s evidence that, if she were entitled to move to Victoria, then she would be able to move what she describes as very quickly and she would be able to enrol the children to commence in a new school in Victoria in 2016.
It is the mother’s evidence that she has priced the cost of moving. The mother indicated that with the small amount of money that she has saved and with the assistance of her family she would be able to move relatively cheaply. It is the mother’s evidence that she has enrolled in a (omitted) degree at the (omitted) University and if she were allowed to move to Victoria, then she would explore the possibility of transferring her studies to what she describes as an appropriate university in the Melbourne (omitted) area.
The mother indicated she could also transfer her current studies to (omitted) University or remain at the University of (omitted) and attend by way of what she describes as correspondence. It is the mother’s evidence that she has been doing very well at the university, obtaining distinctions and high distinctions, which has placed her in what she describes as the top 10 per cent of the degree enrolment of some 600 students.
The father caused to be filed an amended response on 26 October 2015. The father sought in that response what are described as orders for equal time, that the parties have equal shared parental responsibility, the time to take place on what might be described as a week about arrangement, there be times during the Christmas New South Wales school holidays and other school holidays, and that time take place between the children and both parents on Father’s Day and Mother’s Day and such other times as birthdays.
Orders were sought with respect to communication between one another in circumstances where the children might be ill or injured, and with respect to the parties obtaining information about the children. The father did seek some orders in the alternate, if the mother relocated with the children to Melbourne, with respect to the amount of time that the father would spend with the children. Ultimately, the father, during the course of cross-examination, was invited, following some significant evidence by the father with respect to what I might describe as his inability to facilitate on a practical basis, the children spending time with him in a week about arrangement.
During the course of cross-examination of the father the answers that he gave tended to suggest that the father was unable to care for the children on a week-about basis that is, seven nights on/seven nights off, in circumstances where he could not actually facilitate such time without using the gratuitous services of various roommates or housemates the father had had living at his home. On the basis of the answers given by the father, the father was granted leave during cross examination to speak to his counsel and solicitor for the purpose of them obtaining instructions about the orders that he might seek.
As a result of those discussions the father caused to be tendered a minute of order that forms exhibit E in the proceedings. The minute of order sought by the father changed the orders sought by him on a final basis from that of equal time on a week-about basis to the following:
1)that the children X born (omitted) 2007 and Y born (omitted) 2009 spend time with the father as follows:
a)    during week 1 and 3 – conclusion of school on Friday to 5 pm the following Sunday, to be extended to the following Monday at the commencement of school if their father is not working Monday;
b)   during week 2 – from after school Wednesday to the commencement of school the following Thursday to be extended to the commencement of school on Friday if the father was not working on a Friday;
c)   during week 4 – from after school Monday to the commencement of school Tuesday, to be extended to the commencement of school the following Wednesday if the father is not working Wednesday.
In effect, the father seeks an arrangement of something along the lines of five nights a fortnight when extrapolated out across a month long period. The father otherwise sought time with respect to such things as telephone communication in school holidays, Father’s Day, Mother’s Day and the like.
In support of the orders sought by the father he caused to be filed an affidavit sworn or affirmed on 19 October 2015. The father deposes to being a (occupation omitted), living at (omitted) and being a (occupation omitted). He deposes to being the father of X and Y.
The father deposes to having met the mother 12 years ago in 2002, that they commenced a relationship shortly after meeting and married in (omitted) 2012. The father gives what I might describe as some evidence with respect to property in the proceedings that the court does not deal with for the purposes of the determination of parenting orders today.
The father gives evidence that whilst the parties were living in Melbourne the mother seemed to change. By that the father deposes that she became angry and unwilling to do anything to change stating “and her change contributed a great deal of tension between us”. The father deposes that in 2005 whilst living in Victoria the mother was seen by Dr B at the medical centre at (omitted) and that she was diagnosed as suffering depression and prescribed with medication and, indeed, it is an agreed fact in these proceedings that the mother has had a history of depression, although the mother’s current evidence, (which is agreed by the father) is that her depression has ended and she no longer requires medication, at least for the foreseeable future.
The father gives a history of the mother having admitted herself to the (omitted) Mental Hospital between the end of 2005 to the beginning of 2006 and that following what the father describes as the mother dealing with her depression they reconciled and recommenced a relationship, moving to (omitted). It is the father’s evidence that the parties purchased a property together at (omitted) and whilst in (omitted) the children were born. The father gives significant evidence again with respect to the mother’s mental health issues, it is both parties’ evidence that the mother has moved on, that her depression has abated and she no longer requires and no longer sees the need to take antidepressant medication.
Again the father gives some history with respect to there being family violence. The court accepts that neither counsel for the parties sought to cross-examine either party on the issue in circumstances where the parties agree they have moved on from whatever history they might have had. The court does not propose to make any findings about family violence where both parties are adamant they seek equal shared parental responsibility where the father was seeking equal time and, the mother seeks equal time if the father lived with the children in Melbourne.
Counsel for both parties took a sensible approach whereby they avoided cross examination of the parties about what they deposed their history was together with respect to family violence. It is the father’s evidence that both he and the mother cared for the children when the mother was suffering from depression and health issues and describes at paragraph 40 that he would have to step up and provide the majority of care. The father is somewhat critical of the mother in circumstances where he says she did not do such things as the dishes or wash clothes because she would be on the couch all day complaining of pain and - because of her depression. The court accepts it is a symptom of depression where parties are unable to do such things as washing up and the like in circumstances where they are depressed.
The court finds the mother has done the things she needs to do to treat herself. She has been responsible both as an adult for her own sake and that of her own children. She has sought treatment when she has needed to. She has obtained medication when she has required it and she has managed to not only control, but otherwise deal with and overcome her depressive symptoms. The father raises some issues with respect to the mother having a history of suicidal ideation, but again the court notes the parties agree in these proceedings that with whatever the mother was suffering, she has adequately dealt with that.
The father gives a history with respect to the parties using illicit drugs, including marijuana and speed. Again, it is a historical matter and neither party were questioned during the course of the proceedings. Neither party seeks to suggest to the court that either party has had a drug issue for a number of years and in fact, the parties suggest they are free from drugs. The father gives evidence that he is currently a (occupation omitted). He is randomly drug tested and he has to return clean results. The father also has given evidence as to being a member of the (employer omitted) and in order to remain a member he was not entitled to consume illicit substances.
Again, the father gives evidence at paragraph 59 to the mother’s alleged drug use stating:
I understand that Ms Dixon stopped consuming illicit substances when she became pregnant.
Noting the age of the children, this is more than several years ago. The father raises some issues with respect to abuse of alcohol, but again noting the parties’ current position the parties were not cross-examined on the issue. The father gives evidence with respect to the parenting arrangement post-separation March of 2013 with respect to the children residing with the mother and spending time with the father when the father describes the mother would allow him to do so.
The father suggests that he would spend time with the children on each alternate weekend and then half the school holidays. The father gives evidence in addition to that time the children would spend time with him on school nights when the mother wanted him to have the children and otherwise she would allow it. In that regard the father deposes he would give the children dinner and breakfast and get them to school. The father deposes the following orders being made on 17 July 2014 the children spent regular time with him. The arrangements have been going what are described as reasonably well. The father deposes that he has been able to take the children to school, swimming and other activities, as well as attend to general day-to-day activities such as preparing meals and other general caring duties.

The father deposes that the children expressed views to him that they would like to spend equal time, particularly at paragraph 78. The father deposes that as time passed and the children became more relaxed they began to say to him words to the effect, “Why can’t we have an even amount of time with you and mum?” The father is somewhat critical of the mother in circumstances where he says he learned after the commencement of school term 2 that the mother was placing the children in out of school hours care at the (omitted) Public School.
The father deposes that when he became aware of this he offered to care for the children on each second Monday and Tuesday, rather than placing the girls in care when he was available for them. It is apparent that there was a disagreement between the parties where the mother was happy to allow the father to assist with the care of the children, but the father said he would only avail himself of the opportunity if he could have the children overnight. Having heard the parties during cross-examination it appears as though the parties are gaining some insight into their behaviour and do things that are necessary in order for the parties to communicate effectively, and in effect, share the burden of the load of the children, where the mother does want to do such things as study or otherwise her health is not travelling well.
The father deposes that his work roster provides him to be available each alternate week to care for the children, which is what he has offered the mother. The father sets out at paragraph 101 that he believes if he cares for the children after school, even for a short period of time until the mother returns home and is available to care for them, it is better that they are in his care, rather than in out of school hours care. The father describes the relationship between himself and the mother as in the past volatile, however since the orders having been made, particularly since mid-2014, the father deposes that he and the mother have been, what he describes as, work together increasingly better.
By this, the father sets out at paragraph 109 that he has not experienced what he calls the volatility of the past, where they have been able to talk about issues that involve the girls.
The father deposes that both of the parents contributed towards the discipline of the children during the relationship, and they both agreed to use what he calls a joy-jar method that both parties adopted the idea off a program they watched called Super Nanny. The method rewards good behaviour.
The father deposes the strap was used by both parties on the children. It was something they discussed and agreed on. And the mother and he used it, but only the strap hitting against the door or doona never the children. It made sounds effects, and it was used as a last resort, and they tried to do other things. The father deposes that he would never and had never struck one of the girls.
The father then gives significant evidence with respect to the parties’ financial position. The father deposes Y is currently completing kindergarten at (omitted) Public School, and she is doing well in attending this school. That she has established what the father describes as a good circle of friends, and that he has taken her to friends’ birthday parties, and he has also met her friends when working at the school canteen. Indeed, the father gives evidence that he has been significantly involved in attending the children’s school canteen, working there.
The father deposes that Y has gone on school excursions, and he has been fortunate enough to have been able to volunteered on those excursions as a supervising parent. The father deposes that Y is involved in music including the school musical, and has been involved in gymnastics during terms 4 of school. The father deposes Y is involved in swimming classes and attends singing lessons and that he takes her along to the singing lessons. The father deposes that he has recently been able to acquire a piano for the home, because the girls like singing and music.
The father deposes that Y is in good health with the exception of her tonsillitis and that X is in year 2 at the (omitted) Public School and is enjoying going to the school, that she has got a large circle of friends and she has been involved in the school musical. The father deposes that X is in good health.
And the father deposes to being involved in the children’s lives wherever possible, meeting with teachers and other staff members; that’s he is rostered on the school canteen; and he is a committee member on the P & C Committee with the school, that he attends school carnivals, and he has been approached by a teacher at the girls’ school and ask if he would join the Aboriginal consultative group in circumstances where he is an Aboriginal person, and there was significant evidence at least led during the course of cross-examination and re-examination with respect to the father’s connection to his culture and the father learning about his culture.
It was the parties’ evidence that the children are enrolled in a group at school that is designed to allow Aboriginal students to understand or become familiar with and learn about their culture. The mother suggested that he had not found out whether there are any such programs available at the school she proposes down in Victoria. Indeed, the court does not have any evidence about what arrangements might be made with respect to the children enrolling in some sort of cultural activities if the children indeed begin attending the (omitted) School.
The father gives significant evidence at paragraphs 171 through to 185 as to the activities he has been doing with the children and gives evidence that he had been involved with the (employer omitted), but gave up the (employer omitted) work in 2014 so as to spend more time with the children and become more involved with the children’s day-to-day activities and their school.
It is the evidence of the parties in these proceedings that the mother is not seeking to relocate to Victoria for the purposes of pursuing a relationship. It is a relocation for the purposes of obtaining support from what she describes as her family. It is the father’s evidence that he has helped the mother out when she has been sick or injured, and when she has asked him to take the children. He gives evidence that he provides support to the best of his ability, including changing prior commitments.
The father deposes he is up-to-date with child support and that he pays for any school activities or extracurricular activities in addition to child support. The father gives evidence with respect to his daily routine with the children in his care that the court has read and considered.
Having read the parties’ affidavits, having heard the parties give evidence the court finds these are two good parents. The court has read and considered the family report prepared by Ms R. The report was prepared and released back on 29 October 2014. The family consultant sets out in her report that at the time of the interview with the children, X was then aged seven years, three months, and Y was aged five years, one month of age.
The family consultant gives information with respect to her understanding of the parties’ history, including the parties’ relationship having begun in 2002, having married in 2012 and separated in 2013.
The family consultant notes that the parents agree there was mutual illicit drug use during the course of their relationship and that they agree that they would smoke marijuana on a daily basis prior to the children being born. There is a suggestion that the father sought to minimise, perhaps, his drug use, but in any case, both the parties seem to agree in these proceedings that drug use is no longer an issue between them or an issue for them personally or in respect of their care of the children.
The family consultant noted that there are allegations of family violence, including there being an ADVO for the protection of the mother from the father and an AVO protecting the father from the mother.
The parties agreed with the family consultant that there was a period of time following separation the children did not see the father. The family consultant sets out her understanding the current orders in place that provide by consent, the children live with the mother and spend time with the father each alternate weekend from Friday to Sunday, and overnight midweek time on alternate weeks, and additional time during school holidays and special occasions.
The family consultant sets out that the mother does not currently work. The father is employed in (employment omitted) and working a rotating roster, which includes two to three days working and two to three days off. The family consultant’s understanding between the parties is that the parties live some 10 minute drive away from one another.
The family consultant set out that she understood the applications or the parties’ positions to be that the mother wished to relocate to Victoria and the father wished the children to remain in the (omitted) area and that he spend consistent time with them, increasing to what might be described as a shared care arrangement.
The family consultant articulated the dispute as one relating to how much time the father should spend with the children and whether the mother should be permitted to relocate to Victoria. The parents were both interviewed, and the family consultant notes that the mother arrived on time. She reported that with the exception of her biological father, that there were no family violence, mental health issues or criminal activities or alcoholic issues in her family growing up; that she came from a happy childhood; that she completed school to the end of year 11 and, following this, went to TAFE and completed a course in (omitted).
The mother indicated to the family consultant that she moved out of home when she was 15 years of age and moved to live with her boyfriend at that time. The mother stated that she went through a three year period when she rebelled from her parents and stated that her relationship with her then boyfriend turned violent. As a result, her then-boyfriend went to jail for an attack on the mother and the mother’s friend. It is the mother’s evidence that at about that time she began smoking marijuana what she describes as recreationally.
The mother indicated that some two years later she lived with another boyfriend who was also violent; that the violence was not as extreme as the previous boyfriend, but was characterised by shoving, pushing and punching walls, and that she was living with this boyfriend when she met the father. It is the mother’s evidence she eventually left that relationship to be with the father.
The mother advised the family consultant that initially the parties’ relationship was a good one. However, the mother indicated to the family consultant that over the years the father became what the mother described as controlling. The mother indicated the father did not necessarily like her friends and that he determined when the mother could buy groceries and how much she could spend.
The mother indicated to the family consultant that the father moved residences numerous times and that the parties eventually separated following what the mother described as a physical assault that resulted in an AVO. The mother advised the family consultant that initially the father did not seek to spend any time with the children.
The mother was critical of the father to the family consultant in that the mother suggested the father had been leaving the children with other persons, including people of what might be described as roommates or housemates the father had been living with.
The mother indicated to the family consultant that she believed the father lived what she described as a party lifestyle that was not conducive to raising children, and stated that the father rarely attends any school events with the children and had not spent time with the children on father’s day due to work commitments. Indeed, the father did indicate that he did have difficulty spending time with the children on father’s day on at least one occasion, although very different from what the mother suggests, having heard the parties’ cross-examination, the father is significantly involved in the children’s school, doing such things as being on the P&C and being involved with the school canteen.
The mother set out to the family consultant that she wanted to move to Victoria with the children to where the maternal grandmother and other extended members of the family resided. The mother stated to the family consultant that she did not have any support in New South Wales and only had good one friend and that she desperately wanted to be closer to her family so that she could access the support she needed, where her children could be closer to their grandparents. The mother indicated to the family consultant she had a physical illness that required the added support of her family to help manage this.
The mother’s indication that she had only one friend came at a time probably before the mother really engaged in university and obtained friends, and it is very much the mother’s evidence that she did make friends at university. The mother gave evidence in cross examination that one of the detriments or deficits of her moving down to Victoria would be her missing her friends. The mother indicated during the course of cross-examination that if she did move to Victoria, that she would travel with the children up to New South Wales and she would live with her friends during periods in which the children were spending time with the father, rather than shuttling backwards and forwards from Victoria to (omitted).
The mother indicated that one of the children was experiencing bullying at school and she wanted to change the school. It is apparent that certainly one of the children was suffering bullying. That bullying has abated, but nevertheless both the parties have considered the other party’s position and have adopted the position at least if the children were to remain living in the (omitted) area, that they should at change schools.
The mother indicated to the family consultant she would facilitate the children having time with the father whenever it suited him, either by travelling with the children to New South Wales or by facilitating time in Victoria if the father was able to travel. The mother indicated to the family consultant that she would like the father to pay half the cost involved in travelling. The mother indicated during the course of cross-examination at least at one stage that she would bear the costs of the children travelling back to spend time with the father.
The mother indicated to the family consultant that in addition to the alternate weekends and midweek time, the children have had time with the father on Thursday to Friday once a month. The mother indicated it was difficult to keep track of this time, and if she was required to remain in new South Wales she would like an arrangement that would be put in place that would be what she describes as easier to remember. The court notes the mother is an extremely intelligent person, and no matter whether it was a two week roster or, alternatively, four week roster, the mother has the capacity to put measures in place where it is easy for her to understand or at least remember the parenting orders, noting the excellent marks that she has achieved at university.
The father was interviewed. The family consultant opines that he appeared willing to participate in the interview and volunteered information and provided details when requested. He gave some history with respect to his upbringing. The father went on to set out that he went to school up until the completion of year 10 and that following the completion of year 10, participated in an apprenticeship.
The father did indicate to the family consultant that during his young adult years he engaged in recreational illicit drug-taking, such as smoking marijuana, taking speed and ecstasy. The father indicated to the family consultant it was primarily on weekends while at parties. However, marijuana increasingly became a daily habit, characterised by what the father indicated was a few cones when he would arrive home from work.
The father indicated to the family consultant he met the mother whilst (occupation omitted) in (omitted), and he had an uncle living around that area who owned a (business omitted), and the father worked for him as a (employment omitted). The father indicated that initially his relationship with the mother was great and that she joined him in travelling around Australia and that they had fun and shared many experiences, but the mother began to experience depression.
The family consultant sets out at paragraph 43 information provided by the father with respect to what might be described as a catalyst or cause of the demise of the parties’ relationship with respect to them together inviting another person into their relationship. The court does not propose to go through this issue. The parties were not cross-examined on it. To be quite honest, it is not really relevant for the purpose of determining parenting proceedings, and the court does not propose to embarrass the parties going through the details of something that appears, at least on the face to be a consensual arrangement. It was really a matter for themselves, if indeed it happened at all.
The father indicated that he and the mother moved around a lot when the children were young and they both decided they needed to settle down somewhere and provide some consistency with the children. The father indicated to the family consultant and gave evidence during cross-examination that they chose to reside in (omitted) because the father worked there in the (employer omitted). Evidence given by the parties in cross examination suggested (omitted) was a halfway point between where the father’s parents lived and the mother’s parents lived.
It is the father’s evidence and, indeed, the mother’s evidence that they have resided in that area for some four years, and the mother has been living in her current home with the children for a four year period. The father set out to the family consultant he did not want the mother to move to Victoria because he loves his children and they were his priorities, and he believed it was in their best interests to be involved with both the mother and the father.
The father indicated that he recognised the mother had a lot to offer the children. However, he also believed he had a lot to offer them. The father went on to talk to the family consultant about the many things that he has done with the children that, no doubt, the children would have enjoyed. The father indicated to the family consultant that he would have liked a shared care arrangement with the children. The father indicated that whilst the mother was trying to move and say anything necessary to enable her to move, he believed that things would calm down once final orders were made in the matter.
The family consultant noted that the father indicated and agreed that X was currently experiencing significant difficulties at her current school, and the parties sought to change the current school. The father indicated to the family consultant that the children were his number one priority. The family consultant gave some evidence with respect to there being family violence between the parties, and again, it wasn’t a matter that was really touched upon by counsel for either party strategically in circumstances where both parties seek orders for equal shared parental responsibility, and at least on the face of some of the orders sought by the parties the father was seeking an order for equal time and the mother was seeking an order for equal time.

The children were interviewed in the course of the proceedings. X indicated that she was in year 1 at school and she enjoys it. She stated that she likes lunchtimes when she was able to play with her friends outside. X reported that she enjoys spending time with her mother and her father, and stated to the family consultant that she behaves well at her mother’s and her father’s house, and she receives a tick, and after five ticks, she receives a prize. X indicated to the family consultant if she is naughty, she loses a tick, and if she is really naughty, she receives a cross. X indicated she did not know what would happen if she received five crosses as it had never occurred. X stated that she had never been hit with a belt, and she did not remember her parents ever threatening to use a belt.
X was asked about the sort of things that she likes to do at her mother’s and father’s home, and she stated that at her mother’s house she likes to make craft and draw and at her father’s home and she wants to go to (omitted). X advised the family consultant that dad’s home was a happy home. X was asked to clarify this comment. X reported that her father tells her, “This is a happy house and everybody here has to smile”. The family consultant noted that X indicated that she has fun at her father’s house.
X was asked the question of the family consultant along the following lines: “If you hurt yourself, who would you like cuddles from most? And if you woke up in the night after a scary dream, who would you like to comfort you?” The family consultant noted X indicated she would like either parent. X indicated to the family consultant that she would go to whichever parent was closest to her at the time. It’s not a thing the court often sees in parenting proceedings. It sees it in some. It is apparent that this little girl loves her parents very, very much, and receives comfort from both parents, not just one.
Happily for X, the family consultant noted that she appeared to be unaware of the current conflict between her parents and indicated that her parents were friends. However, she stated that they used to fight a lot when they were living together, and this is why the family now lives separately. X indicated that she had never witnessed either parent hit each other, and she also indicated that she would like to have more time with both parents.
It’s a feature in these proceedings that these children have absolutely no idea about the mother’s proposal to remove them to Victoria, and the family consultant was, at least in some respects somewhat critical of that position. When the family consultant asked questions on the subject in cross examination being whether it was a positive or a negative thing for the children, the family consultant was left in a position perhaps querying herself whether it was a positive or a negative. The family consultant remained somewhat critical of the fact the children did not know about the mother’s proposal because it would create a massive impost in their lives and a significant issue with respect to the children’s relationship with the father. That is, these children were not asked about the effect of how they might feel if they were to go and live in Victoria. Instead of answering a question of that type the children indicated they wanted to spend more time with both parties.
Y reported to the family consultant that she currently attends preschool and stated she likes playing with friends and doing craft and making paper planes and painting. She indicated to the family consultant she likes going to dad’s home; in particular, going to (omitted), and she stated that she likes watching TV and buys new toys and goes to festivals. She seemed to the family consultant a particularly happy little girl.
Y reported that at her mother’s house, she likes to build things with Lego, and she earns ticks and receives prizes from the “joy jar”. She also stated that when she’s naughty, she gets crosses instead of ticks. She stated that her mother smacked her on the bottom with her hand and that it hurt a lot, she also stated her father does not smack her, and she stated she has never seen either parent smack with anything other a hand. Y stated that her mother and father were not friends, and she reported this “because of Dad hitting Mum”. She was asked how she knew this, and she stated because her mum told her. She was asked if she ever saw this, and she replied no.
It’s an interesting experience between Y and X. X’s wholly unaware of any issues relating to the parents. Y appears to be, but only in circumstances where perhaps it’s something the mother has told her.
The mother was questioned about the topic, and she indicated quite open that she felt it was a good thing that the children didn’t remember there being any family violence between the parties, that is, it was a good thing they perhaps didn’t remember the father hitting the mother if indeed he did. The court doesn’t propose to make findings about family violence in this matter in circumstances where really, for reasons known to counsel in the proceedings, they chose not to concentrate or focus on the cross-examination relating to the topic, nor make a Browne and Dunn (1893) 6R 67HL submission in circumstances where neither party sought to cross-examine the other on the topic.
The children were observed interacting with each parent. The children presented similarly. The family consultant notes they interacted with ease and confidence with each parent; they engaged the parents in pretend play, making cups of tea, pretend food, and talking to them on the phone. There was a lot of laughter and smiles. It was clear to the court the children have a loving relationship with both parents. The family consultant noted that the children were enthusiastic and quite vigorous in their play, which was considered appropriate for their age; however, it could be challenging to manage at times.
Under the heading evaluation, the family consultant opines it was clear the children and the parents’ relationship with them is a mutually loving and significant one and was pleasing and extremely important the parents appear to be child-focused and willing to be able to prioritise the children’s needs. It is also pleasing and the parents are to be congratulated the children appear to be unaware of the current family dispute. I think that it is a good thing these children do not know what the parties’ relationship had been like previously.
The family consultant set out that while the parents disagree on the details of family violence, each indicated the most significant event occurred at the time of separation in the context of mutual heightened emotions and parental conflict, and was uncharacteristic. The family consultant sets out that while either parent’s version of this specific event is considered to be inappropriate, it is the opinion of the family consultant the children are not at risk of further family violence in either parent’s home.
The family consultants opined that given the children do not appear to be at risk of harm, and given that they appear to have an important relationship with both parents, the main issue in this matter is the impact on the children of moving to Victoria. The family consultant considered the children reported to have a lot of fun at the father’s home, and they appear to engage in a lot of activities and endeavours whilst with him. The family consultant set out that she considered that the relationship with the father is an appropriate, loving and child-focused relationship, and it would be disappointing if the distance between the children and the father was a barrier to the children maintaining this. The family consultant considered it valuable that the time the children spent with the father is not only centred around holidays and fun activities; rather, the family consultant indicated it should include neutral experiences, more mundane yet equally important elements in their life, such as household chores, the father’s employment, and the children’s homework. The family consultant opined a move to Victoria would result in significant change in their relationship with him.
The family consultant set out, however, the parents of the children do not have an extended family in the area and that it was important to consider the benefits of accessing this. The parents agree that they had lived a nomadic lifestyle, having moved numerous times, and at some point in their relationship, they determined that it was in the best interests of the children to settle somewhere and provide them with stability. The family consultant set out that whilst the parents were still in a relationship, they had settled in (omitted) and that neither party had a family or history there.
The family consultant set out while it might not have appeared to the parents of particular significance at the time, not having grandparents living nearby is an important consideration for the court, particularly in the context of the mother’s physical illness and mental health issues, although the court notes that the mother’s mental health issues have abated. The family consultant set out that it was understandable the mother wanted to move to Victoria to live near her family.
The family consultant suggested financial limitations as a significant factor in this matter as both parents do not report a substantial income. The family consultant suggested it is likely the financial burden of regular long distance travel that will be required for the children to have time with the father will be problematic over time, that is, the parties do not have the financial capacity, for instance, to fly the children backwards or forward or for them to fly perhaps every third weekend between (omitted) and Victoria.
The family consultant set out with the exceptions of a few isolated incidents, the parents had demonstrated a past ability to co-parent effectively. The family consultant considered the provision of court orders will prevent some of the previous issues and therefore the parents will be capable of co-parenting into the future, and it was therefore suggested by the family consultant the parties have equal shared parental responsibility and each parent has significant time with the children.
The family consultant set out the impact on the children of the mother’s proposal would be that the children would relocate with the mother to Victoria, that they would be near their maternal grandparents and extended family, including aunts and uncles, and it would mean that the mother would have the support network she currently does not have, and this will likely increase her parenting capacity. In addition, the mother believes she will have to manage her physical illness. The family consultant indicated that the mother may gain the emotional support that she needs to help her manage her mental health concerns, although the court notes that those have abated at a time when the mother is not living in Victoria; she has managed to resolve those issues herself whilst still remaining in the (omitted) area.
The family consultant set out that the move to Victoria and the subsequent requirement of flying the children to their father will come at a financial burden that may place undue stress on the mother. In addition, the move will result in a cessation of regular time for the children with the father. The father will only be able to see the children during school holiday periods, and while the mother has suggested he have the children for the entire school holiday period, this may not be practicable due to work commitments. In addition, the family consultant set out there will be large periods of time between school holiday periods where the children will not have time with their father, and this will likely be at a cost to their relationship with the father. Further, the father will not be able to participate in the children’s school life, extracurricular activities, and social relationship.
The family consultant opined that the impact on the children of the father’s proposal, meaning that the mother and the children will remain living in the (omitted) area, will mean the mother will not have the immediate support of her extended family, and this may impact the mother in a negative way, which will ultimately impact the children, and in addition, where the children will not have the benefit of the extended family; however, the children will be able to continue to spend regular and consistent time with their mother and father. The family consultant opines that spending meaningful and consistent time with the mother and father is important to the healthy emotional and psychological development of the children. It is in their best interests, the family consultant suggested to develop and maintain a strong and meaningful relationship with both parents. The family consultant suggested this can only occur if the children spend significant time with both. However, the family consultant noted the mother’s physical and mental wellbeing is also a significant contributing factor to the healthy development of the children.
The family consultant noted that both parties agreed that X was not progressing well at her current school and was experiencing significant bullying. The court notes the parties have at least agreed the children should attend a different school next year, whether it is in New South Wales or Victoria. The family consultant set out it was recommended that the parents share parental responsibility for the children, with both parents spending significant time with the children. The family consultant suggested the decision to move to Victoria or remain in New South Wales is a difficult one and either outcome had significant challenges for the children. The family consultant was unable to provide a final opinion which outcome was in the children’s best interests and therefore left it for the court to determine.
The court heard and considered the cross-examination of the parties and the evidence given by them, and the court notes that the mother indicated during the course of cross-examination that she no longer suffers depression. The mother indicated that she has resided in the same place for the past four years. The mother indicated that she had been previously able to and could be continue to be able to study full-time if she continued to reside in her current residence. It was the mother’s evidence that she, using the mother’s words “coped really well studying full-time”. The mother did indicate that if she moves to Victoria, she will move in with his mother and then work part-time and study part-time. The mother indicated that she was a net saver of money, that is, she had a bursary or otherwise what might be described as a scholarship that she relied upon while studying at her current university. The mother suggested that perhaps the scholarship was transferable, but ultimately while she was living at her current residence studying full-time, she was coping financially well without the requirement to work part-time.
During the course of cross-examination, it became apparent that the children are in a school that promotes their Aboriginal culture, and that the mother had not made inquiries about whether the new school suggested by the mother offered such a program, and the mother did not know who the father’s mob was. The mother indicated that it was an agreed fact in these proceedings the children had not been made aware of the mother’s proposal. The mother suggested the children’s current school was in a poor socioeconomic area and it was better for the children to go to a school in a better socioeconomic area: The father heard the mother’s evidence during the course of cross-examination and ultimately the parties agreed that the children should not continue to remain at their current school.
The mother indicated during the course of cross-examination that she had not entered upon the proposed school grounds, nor had she spoken with the school principal or a school staff member in person. It is the mother’s evidence she left living with her mother at age 15 and returned to live with her mother some time in 2004. The mother indicated during the course of cross-examination that she has friends at university and a disadvantage of moving to Melbourne would be possibly losing those friends. The mother indicated that she had spoken to real estate agents about leasing a property in Melbourne but could not recall their names. It was suggested to the mother that she may have some difficulties with respect to finding accommodation in Melbourne when she has a dog and a cat. The mother indicated that her dog was unwell and of an age where it probably would not survive for a long period of time but that she thought she would be able to obtain accommodation for herself, the children and a cat if she moved to Victoria.
Both parties indicated that there was no bullying at the moment for the children at their current school. Despite what the mother might have said to the family consultant with respect of the strength of the children’s relationship with the father, the mother now agrees that the father and the children have a strong relationship with one another. The mother indicated that she does have friends in (omitted) who have offered her accommodation if the children came up and spent time with the father where she would remain residing with them rather than travel backwards and forwards between Victoria.
The mother admitted during the cross-examination that while not her primary reason for wanting to move, getting away from the father at least played some part in her desire to move to Victoria. While the mother gave evidence that her relationship with her mother is a good one, the Court notes the paternal grandmother did not file an affidavit that would give the Court comfort about how long the maternal grandmother might have the mother, children and the mother’s cat staying in what the mother concedes is a two bedroom unit nor what assistance if any the maternal grandmother might provide to the mother if she relocated to Victoria.
The Court notes that the children currently spend four nights a fortnight with their father and that he does not need anybody to assist him to look after the children but will need D, a housemate who is aged 21 years, to do so if the children were to spend seven nights a fortnight with the father. For that reason, the father changed his application. The father has had a history of housemates including somebody called A, B, C and now D.
The Court notes that the children are expressing views they would like more time. The mother’s proposal would see them spend less time with the father.
It was suggested to the father during cross-examination that he had on a few occasions been unable to spend time with the children at times designated to him pursuant to the orders. Having heard the father’s cross-examination, the Court does not find that the father’s actions were unreasonable or that he has failed to spend time with the children to the point where it is detrimental to the children’s best interests or needs.
The father was criticised for failing to spend time for a three hour period essentially allotted to him to spend time with Y, instead returning the children back to the mother after some one and a half hours in circumstances where he was attending the (employer omitted). The Court has heard that the father has given up his duties with the (employer omitted) for the purposes of looking after the children.
The father is agreeable to the children changing schools.
Counsel for the mother was critical of the father in cross examination for having left the children with a number of persons so that they might care for the children. Interestingly and by contrast, the mother offers up some 27 persons or families she intends to call upon for assistance with the children. The list of 27 persons or families forms exhibit O in the proceedings.

The father gave evidence in cross-examination that should the Court make orders that preclude the children being removed to Victoria, he commits to remaining in the (omitted) area until the children turn 18 years of age. The father was asked questions about perhaps himself moving down to Victoria. Having heard the father’s evidence with respect to his work and otherwise, the Court is in a position where it finds that it would not be reasonably practical for the father to relocate and live in Victoria. That is, whilst it is an option, it is not one that the Court is of a view is practical in the circumstances given the father’s history of employment, given his work and otherwise his skills.
Counsel for the father challenged the father’s position with respect to remaining in the (omitted) area in circumstances where the father has kept a property at (omitted) Queensland. The father gave evidence that the cost of retaining the property is some $60.00 per week. The father gave further evidence that a real estate agent indicated that he would get somewhere between $230,000.00 to $250,000.00 if he sold the property and that the mortgage on the property is somewhere around $279,000.00. That is, the father has sought to retain the property paying interest only on the mortgage for the purposes of, in effect, delaying the crystallisation of a capital loss. The Court accepts the father’s evidence with respect to the reasons he doesn’t wish to sell the property in circumstances where there would be a shortfall on the sale. The Court does note that there have been further orders put in place for the purpose of valuing that property, perhaps for the purposes of selling the same as a result of final property proceedings between the parties.
When questioned about the father’s ability to assist the mother in circumstances where she might become ill, the father indicated he has available to him carer’s leave so he could assist the mother caring for the children if the mother’s medical condition were to flare up. The father gave evidence that he has antihistamines and creams in order to treat the children if they were unwell because of such things as eczema. The father gave evidence that the health cover was cancelled prior to Y being diagnosed with needing a tonsillectomy and grommet implantations.
Counsel for the mother suggested to the father the father’s proposal found in exhibit E is difficult for the children to understand. The father gave evidence the proposal would be easily understood by the parties in circumstances where it would consistently repeat, month-in month-out. And indeed the father has tendered during the course of cross-examination a roster. It indicates the father’s roster does repeat, month-in month-out.
The father indicated he was not in a relationship with any person at the moment, nor has he become engaged to anyone. In respect of questions asked of the father about his Aboriginality, the father indicated that his mob was from (omitted) and his longest distant relative is (omitted). The father indicated that he is in the early stages of discovering and understanding his Aboriginal culture and that the father discovered his Aboriginal heritage at a time when he was visiting his mother at (omitted) in Central Queensland.
The mother gave evidence during cross-examination that when she called on the father for assistance looking after the children the father would only agree to do so if the father could look after the children overnight. The father gave evidence in cross-examination he did offer to assist the mother and that while he made inquiries about whether the mother would allow the children to stay overnight, it was not a condition of the father providing assistance. The father indicated his willingness to engage the mother in discussions around the change of the children’s school and also perhaps an agreement prohibiting family members posting photographs of the children on Facebook.
The father was criticised for not attending school events in cross-examination and at paragraph 29 of the mother’s affidavit. The mother suggested the father had missed 17 school events but attended eight school events since the beginning of 2014 while the mother had attended 17 out of 25 events. The father suggested in cross-examination that on at least one occasion he had attended when the mother suggested he had not. On another occasion, the father indicated the he had prepared meals for one of the children in accordance with the mother’s wishes prior to a school event and the father gave evidence that he volunteers at the school canteen every Thursday and sometimes on Mondays and Tuesdays when he is available. The father gave evidence that he commenced volunteering at the canteen after he left the (employer omitted) in August of 2014. The Court finds that the father and mother are both well engaged parents with the children’s school.
The father suggests that there was at one time family violence between the mother and maternal grandmother, although the Court cannot make any findings about the issue in circumstances where the maternal grandmother has not caused to be filed an affidavit in the proceedings.
When questioned about the topic of the children’s Aboriginality, the father said he is learning things about his culture, as are the children. The father suggested he is still learning things about his culture even through the children.
The family consultant gave evidence that the mother became more distressed when discussing the possibility of not relocating. The family consultant suggested that she could not provide an opinion as to how long the mother might be unhappy for if she did not relocate. The family consultant raised some concerns about the fact the children had not been made aware that the mother seeks to relocate with the children to Melbourne. The family consultant was of the view that the impact on children of a relocation would make it difficult for the children to maintain an ongoing relationship with the father and that the children would be sad and upset, missing their father. The family consultant thought it was important for the children’s relationship with their father to have weekly time for their relationship to develop and grow and that it was important for the children psychologically. In cross-examination, the family consultant felt it would be probable the children would lose contact with the father over time if they did relocate. The family consultant did indicate during the course of cross-examination she felt the parents were able to prioritise the needs of the children over their own. The family consultant noted during the course of cross-examination the father’s proposal would see the children remaining living with the mother and spending substantially significant time with the father.
No specific section of the Family Law Act 1975 refers to the difficult subject of relocation. In fact, there is no such thing as a relocation case. In B and B: Family Law Reform Act1995 their Honours Nicholson CJ and Fogarty and Lindenmayer JJ made it clear that relocations are not a separate category within the Family Law Act:
Each is a case under part 7 related to the best interests of the children but with a particular context and is to be determined in accordance with the principles contained within that part.
As a result of what might be described as complexities associated with parenting cases involving a proposed relocation, the Full Court of the Family Court and the High Court of Australia have given careful and repeated consideration of the approach to be adopted in what the Court might describe as these difficult cases.
On 1 August 2000, the Full Court of the Family Court delivered its decisions in a judgment called A v A: Relocation Approach (2000) FLC 93-035 and formulated a guideline judgment to be applied when determining parenting cases of this sort. That decision draws together the principles enunciated by the Full Court in B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755 and the 1999 High Court decision in AMS v AIF and AIF v AMS (1999) 199 CLR 160. The decision in A v A is authority for the principle that:
In reaching a decision in cases where one party proposes to relocate with the child or children of the relationship, the following must occur: (1) the Court cannot proceed to determine the issue in a way that separates the issue of relocation from that of residence and the best interests of the child. (2) Compelling reasons for and, indeed, against the relocation need not be shown.
The mother has, in this case, demonstrated what I might describe as reasons. Some of them are, at least for the mother, compelling.
(3) The best interests of the child are to be evaluated taking into account the considerations, including the legitimate interests of both the resident and non-resident parent. Neither the applicant nor resident parent bears the onus. Treating the welfare or best interests of the child as the paramount consideration does not oblige a Court to ignore the legitimate interests and desires of the parent. If there is a conflict between these considerations, however, priority must be accorded with the child’s welfare and rights. If the parent seeks to change arrangements affecting the residence of or contact with the child, he or she must demonstrate the proposing arrangement, even if that new arrangement involves a move overseas, is in the best interests of the child.
In 2002, the High Court again had the opportunity to consider the approach to be taken in relocation cases, this time in respect of international relocation in the case of U & U (2002) FLC 93-112. In the case of U & U, the High Court left the approach taken as articulated in A & A unchallenged, but considered in detail the court’s power to make orders not sought by either party, which are ultimately in line with the particular facts of the case in the child’s best interest.
Counsel for the mother referred to the case Hepburn & Noble [2010] Fam CAFC 111, (2010) FLC 93-438. In Hepburn & Noble, the essential issue for the appeal was the potential importance to the relocation decision of any disappointment that might well be suffered by the residential parent restrained from relocating with the child. The Full Court considered the extent to which such disappointment might diminish that parent’s capacity and any consequence or adverse effect upon the child. The Full Court recognised there was a material difference between disappointment simplicity and disappointment that manifests itself in behaviour that undermines the child’s best interest. Only the latter is particularly influential, and there must be good evidence of it.
The court notes that the mother did not offer any evidence from a psychologist or a psychiatrist with respect to the disappointment or otherwise as to the state the mother might find herself in circumstances where the court refused the application sought by the mother. The court notes that while the mother has had a history of depression, the mother’s depression has largely resolved, or at least resolved for the time being.
The court must consider the legislative pathway and in doing so turns to section 60CC. The court must consider the two primary considerations: the benefit of a child having a meaningful relationship with both of the child’s parents, and the primary consideration with primacy over all others being the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect, or family violence.
There is a real benefit in these children having a meaningful relationship with both parents in these proceedings; possibly more than many. In that regard, the court must consider how it must weigh up that benefit in light of the proposal of the mother to relocate and the evidence of the family consultant with respect to, perhaps, the children’s meaningful relationship being diminished by virtue of the tyranny of distance.
The family consultant suggests that whilst there has been a history of family violence and drug use by the parents, there is nothing that currently indicates the children will suffer physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence in either party’s household, and it is the view of this court that neither children will suffer physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence in either party’s household, whether they remain with the mother in the (omitted) area, spending some five nights a fortnight with the father, or living with the mother in Victoria.
The court considers the additional considerations in this matter being any views expressed by the child, taking into account the children’s level of maturity and understanding the court thinks relevant to the weight it should give the children’s view. The mother was criticised by the family consultant in these proceedings in circumstances where, she had not made the children aware of her desire to relocate. That is a serious change in these children’s circumstances.
What the children do express is this; they express a desire to spend more time with both parents. They love spending time with their parents. Those are their views, and given their level of maturity and understanding, the court must give those views some weight. That is, these children, of their age, of their maturity and understanding are able to express views where they want to spend more time with both parents, and the court must give those views some weight.
The court does not have any information about what their views might be if they were to discover the mother was seeking to relocate to Victoria, and the court can well imagine that the children may be upset or extremely upset to find out, really, at first instance without discussion, without warning that they are about to travel down to Victoria and live there, with their father remaining in the (omitted) area.
The court must consider the mother’s proposal with respect to the father relocating to Victoria, and having heard the father’s evidence, the court is of the view that that is probably impracticable and unlikely to occur. That is that it is not practical that the father relocate to Victoria given, his education, skills and his background with respect to his work.
The court considers the nature of the relationship of the children with each of the children’s parents. They have a good relationship with both parents. They love them dearly. They really do. That good relationship will be impacted upon by the mother’s proposal; moving down to Victoria. It will not be impacted if the court made orders in alignment with those sought by the father where the children live with the mother and spending substantial and significant time with him.
The court does consider the nature of the relationship between the children and the children’s grandparents. There is no evidence from and limited information about the grandparents. The maternal grandmother, with whom the mother seeks to live with or rely upon for care, did not file an affidavit in these proceedings. The court accepts that the children have a good relationship with the maternal grandparents by virtue of the fact that the mother gave evidence that she is loving toward the children. The court accepts that, the children have seen their grandmother at least once a year when the parties were together and then twice a year following separation – that is, with the children travelling down to Victoria twice a year.
It is very much, though, a secondary relationship. If one looks at the nature of the relationship between the children and the parents, it is a primary relationship. The nature of the relationship between the children and the extended family is very much a secondary relationship in circumstances where they have not been daily features in these children’s lives. They have not been involved in the children’s daily routines in circumstances where there has been a significant distance between these children and their paternal and maternal grandparents.
The maternal grandmother has lived in Victoria. She does not live next door or down the road or in the same suburb or in the same local government area. The court finds that it is a very much secondary attachment; a secondary-type relationship to that compared with the parents’ relationship.
The court must consider the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child or communicate with the child. The court is not critical of either party in that regard. The parties have participated in making decisions about major long-term issues in relation to the child despite the cross-examination of the father and the criticism, perhaps, levelled against him.
The court does not find that the father has failed to spend time with the children. There are some times he has not, but the court does not criticise the father for that in circumstances where, for instance, he was doing such things as working in the (employer omitted), which he has now ceased.
The court does not raise criticism of the parties with respect to their failure to communicate with the child. They are communicating with the children. The court doesn’t criticise the parties in respect of which each of them have fulfilled or failed to fulfil their obligations of maintaining the child. They are maintaining the children. They are good parents.
The court considers the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person, including any grandparent or other relative of the child with whom he or she has been living. The likely effect on the children of the separation from the father if the mother moves to Victoria is one of significance. There will be a significant effect on these little girls, who clearly dearly love their father, who want to spend more time with him, a father who has been involved in their daily routine, who has involved himself with their school, working at the school canteen.
The effect of the separation on the children from either parent will be negligible except, possibly one night each fortnight if the children remain living with the mother in the (omitted) area and spend time with the father in accordance with the orders he seeks.
Having heard the family consultant and the evidence she gave, it may well be disastrous for these children and their relationship with the father if they do move to Victoria.
The court must consider the likely effect of any change in the child’s circumstances, including any effect of any separation from any other child or other person, including grandparent or other relative of the child. There will not be a change in the circumstances of the children if they remain living where they are. They are separated from their grandparents. Those circumstances will not change. It will not affect the relationship that they currently enjoy.
The court considers the practical difficulties and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s rights to maintain personal relations and direct contact with both parents on a regular basis. The family consultant opines that these are not wealthy parents. These parents will find themselves in difficult financial circumstances if they are funding airfares backwards and forwards out of Victoria.
It is the mother’s evidence that if she moves to Victoria, she will have to have to find part-time work, she is going to have to go and live with her mother, she will not be able to study full time – she will be studying part time, because she will be working as well as looking after the children – and relying on third parties for help. Particularly relying on parties other than the father to help with the children if she gets sick.

There is a practical difficulty and expense of the children spending time with and communicating with the father if the children are living in Victoria. If they live in the (omitted) area, there is not. Remaining living where they are currently, will not substantially affect the child’s rights to maintain personal relations and direct contact with the father. That is, the family consultant opines if parties are not wealthy enough to pay for ongoing airfares for visits by the father every third weekend, flying backwards and forwards to Victoria, paying for accommodation and airflights or the mother catching flights flying back with the children to the (omitted) area through (omitted) maybe once every third weekend or more regularly than just school holiday time then the relationship between the children and father will suffer.
The court considers the capacity of the parents and any other person, including grandparents, to provide for the needs of the child, including their intellectual and emotional needs. It is a matter the court must consider, having regard to the decision of Hepburn & Noble. The mother will suffer significant disappointment if she does not go to Victoria. There is, however, no evidence to support the court making a finding that if the mother does not move to Victoria it will impact upon her capacity to provide for the needs of the children, including their intellectual and emotional needs, and, in fact, the mother’s evidence is that, historically, she was studying full time. She was doing well. She was providing for the children, and she was financially doing quite well, living in a home she lived in for the past four years.
There are a considerable number of unknown issues with respect to the mother’s relocation. The court does not know where the children’s school ultimately will be. The court does not know ultimately whether the mother will or will not obtain employment. The court does not know whether the mother will or will not be able to transfer her scholarship or whether she will be able to study part time. The mother indicates that she thinks she can but the court just does not know, but, such is the case with many relocation matters. The court does know that the mother has financially been quite stable where she is. The mother has been able to provide good accommodation for the children. She has been able to study full time extremely successfully, achieving impeccably good grades.
The mother has financially survived, and the court has no concerns about the mother’s capacity to provide for the needs of the children, including their intellectual and emotional needs, in circumstances where she has been doing so to date, and, as I have said, the court cannot make a finding and the court does not make a finding, when considering Hepburn & Noble, that the mother’s disappointment will contribute to or cause her to suffer an incapacity to provide for the needs of the children, including their intellectual and emotional needs.
The court is of the view that the father has the capacity to provide for the needs of the children, including intellectual and emotional needs. The court considers whether any other person has the capacity to provide for the needs of the children, including their intellectual and emotional needs such as a grandparent.
If the mother moves to Victoria, then the maternal grandmother, on the face of the mother’s evidence, will need to be in a position to be able to provide for the needs of the children, including their intellectual and emotional needs, where the mother will not have the father to rely upon; and when I say that, the mother is quite critical of the father being unavailable but at least for the time being, up until today, there have been periods where the children have been living with the father regularly each week. If I make the orders sought by the mother, that will end. The mother will have the children during the school terms full time. She will not have the availability of the children spending time with the father on alternate weekends or midweek time. Should the mother seek to work, or seek to study, or if she is unwell, the mother will need to rely purely upon her family and friends, and the court has no evidence from the maternal grandmother as to her capacity to provide for the needs of the children including their intellectual and emotional needs.
The court must consider the maturity, sex, lifestyle and background of the child and traditions, the children’s parents that the Court thinks are relevant. There is nothing in the cultural traditions of the parties or the children the Court thinks are relevant. The Court must consider, if the children are Aboriginal children or Torres Strait Islander children, the children’s rights to enjoy his or her Aboriginal or Torres Strait Islander culture including the right to enjoy that culture with other people who share that culture and the likely impact any proposed parenting order under this power will have on that right.
It is a factor in the proceedings, and it is a significant factor, but not one that is persuasive in the orders that I make. That is, the father’s Aboriginal culture is important to the father. The children are discovering, with the father, their Aboriginal culture. The mother gives some evidence that she tried to do things necessary to ensure they enjoy that culture or understand their culture if they move to Victoria, but, for a large part, they will not be able to enjoy that culture on, at least, a weekly basis or fortnightly basis with the father in circumstances where they will be removed from him living in Victoria. It remains the view of the Court that it is impracticable wholly for the father to move and live in Victoria.
The impact any proposed parenting order would have on that right would be if the mother moves to Victoria where the children would not enjoy their culture with their father or other people who share that culture.
The Court must consider the attitudes to the child and the responsibilities of parenthood demonstrated by each of the child’s parents. The mother is a responsible parent. She has a good attitude towards the children, sadly, except for this. I do not know whether telling or not telling the children was the right thing, and when I say that, nor does the family consultant. The family consultant opines and makes a possible criticism – or a criticism of the mother – but refrains from saying necessarily it was a bad thing. The Court cannot make any findings about it. It is just one of those things. It is difficult. It has made the case more difficult because these little girls are left in a more precarious position than others. They have no idea about the mother’s proposal, and they had no idea what their life would entail or what would be in store for them if I made orders today that allowed the mother to relocate in circumstances where she would go home and say this to the girls, “Guess what? We’re moving to Victoria.” And if the girls asked “is dad going,” the answer would be no, and it would significantly impact them and impact their lives. I do not make any adverse findings about the mother’s attitudes towards the children or the responsibility as a parent.
The Court does not make a criticism of the father. In fact, the father has done good things. He was working with the (employer omitted). It impacted upon his capacity to spend time with the children. The father had a choice to choose the children or choose the (employer omitted). He chose the children. It is the view of the Court the father acted responsibly. There has been a history of family violence involving these parties. There have been mutual AVOs. The Court cannot make any findings about who was at fault, but the parties agree on this. It was at a difficult time in their life and things have largely settled down, and the family consultant says this:
The children are not at risk of suffering physical or psychological harm as a result of being subjected or exposed to particularly family violence in the parties’ households.

And the parties should be congratulated. Despite whatever relationship they had when it did turn nasty, they have not infected their children with it. There might be some criticism drawn against the mother for having discussed with one of the children the fact that the father hit her. Although, it must be said this has not impacted the children. The Court does not know the circumstances in which things might have been said. The mother, in fact, denied actually saying anything to the child about it. It may be that if the child has heard anything, she may have overhead it. The Court is not critical of the parties and is praising of these parties despite the history of family violence. They have not and I will not use the word inflict – I will use the word infect. They have not infected the children with their conflict as many parties who appear before this Court do. They have not sought to use the children as a warring ground.
I must consider making orders that will be least likely to lead to the institution of further proceedings. No matter what orders I make today, there will always be circumstances in which the parties might find themselves in a disagreement. The mother has offered a sensible pathway. If the parties cannot agree in the long-term about some issue, they resort to, family dispute resolution.
The Court has considered the mother’s reasons for wanting to relocate. They are, in some cases for her, compelling. The interests of the child are to be taken into account and evaluated taking into account the legitimate interests of the parents. The Court must treat the best interests of the children, however, as the paramount consideration. It does not ignore the legitimate interests of the parties, but there is a conflict in these proceedings between the interests of the mother and the interests of the children, and the interests of the children must be given greater weight and accorded priority as compared to the mother’s wishes.
The Court considers section 61DA. The Court does not rebut the presumption in favour of equal shared parental responsibility by reasons of abuse of a child or a child who is a member of the parents’ household; does not rebut the presumption in favour of equal shared parental responsibility by reasons of family violence. It does not rebut it because it’s not in the best interests of the children. The Court applies the presumption. The Court finds that it is in the best interests of these children that the orders sought by the parties for equal shared parental reasonability not be rebutted, that is, the presumption remain.
The Court considers the proposals for equal time, substantial and significant time or not substantial and significant time. The Court turns to section 65DAA. The orders sought by the mother if she relocates are such that the children would not spend substantial and significant time with their father unless he relocates to Melbourne which, in the view of the Court, is impracticable. However should he move, the father would based on the mother’s proposal spend equal time. I turn to, first, equal time. It’s the view of the Court that it would be in these children’s best interests that they have equal time with both parents. If the father remains living in the (omitted) area – the Court must consider whether or not the proposal is reasonably practicable.
The Court must consider how far apart the parties live. They live close enough to one another for there to be equal time. The Court must consider the parent’s current and future capacity to implement an arrangement for the children spending equal time. The father cannot implement an arrangement of equal time. That is, he must rely upon roommates or borders to care for the children. Because of his work, he cannot facilitate seven nights on, seven nights off, and for that reason, it’s the view of the Court the father sensibly amended his application to one of substantially significant time as opposed to equal time.
The parties do have the current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of equal time, and the impact and arrangement of equal time on the children would be a positive one. However the father cannot facilitate it, and it is, therefore, impracticable. So the Court will not make an order for equal time.
The Court evaluates the orders sought by the father for substantial and significant time.
Having considered those matters set out at section 60CC(2)(a) and (b), (3)(a) through to (m), it is the view of the Court that the orders sought by the father for substantial and significant time as defined by section 65DAA(3) that is, time that the children spend with the parent includes days that fall on weekends and holidays and days that do not fall on weekends and holidays and the time that the child spends with the parents allows the parents to be involved in the child’s daily routine is in the best interests of these children.
It is in the children’s best interest that they spend time with the father not just on holidays, not just on weekends, but during weekdays and during times that allow the children to be involved with the father, and the father involved with them doing such things as what the family consultant describes as menial tasks: homework, getting them in bed, doing those sorts of things, doing extracurricular activities with the children midweek, being involved in their daily routine including doing such things as attending upon the school for the purposes of doing things like seeing the children when the father works at the canteen. It is important the children know that the father is involved in their daily lives.
The Court finds that it is in the best interests of these children that there be substantial and significant time. The Court considers section 65DAA subparagraph (5). The parties live close enough to one another for there to be substantial and significant time. The parents have the current and future capacity to implement an arrangement of substantial and significant time noting the father’s roster. The father can facilitate the orders that he seeks for substantial and significant time. The parties do have the current and future capacity to communicate sufficiently to overcome issues that might arise in implementing an arrangement for substantial and significant time, and the impact the arrangement would have on the children would be beneficial. The children desire a bit more time with the father. The father’s proposal very slightly increases the amount of time the children spend with their father, but not significantly, significantly enough that it will impact the children positively, but not so significantly that it means that it becomes impracticable because the father cannot facilitate it.
The impact on the children spending time with the father in accordance with his proposal would be positive to the children.
The Court considers the proposal of the mother for the children to live in Victoria. It’s the view of the Court that it would be in the children’s best interests to spend equal time or substantial and significant time with the father in Victoria. It is however the view of the Court that equal time cannot and will not happen despite the orders sought by the mother because the father’s relocation to Victoria is impracticable.
The father lives in the (omitted) area and works in the (omitted) area. The father’s education is not such that his skills are easily transferrable. He is likely to remain working in (employer omitted) based upon the evidence before the Court, and, as such, he lives too far apart for there to be equal time, and whilst the parents have the current and future capacity to communicate sufficiently and overcome issues that might arise and the impact the arrangement would have on the children would be positive, they cannot facilitate equal time.
They cannot facilitate equal time with the father with his roster. He does not work nine days off and four days on or nine days on and nine days off. He cannot commute fly-in fly-out to his work on the roster that he works to and from Victoria. So it would be impracticable for there to be equal time, and it would also be impracticable for there to be substantial and significant time if the Court made the orders sought by the mother despite it being in the best interests of the children because the parties live too far apart.
This is a difficult, finely balanced matter, and it’s a difficult matter for both parties. They desperately love both their children, but having considered the decision in A and A, having considered the decision of the High Court in U and U, having considered the legislative pathway, those matters set out at part VII of the Family Law Act 1975. It’s the view of the Court that that the following orders are in the best interests of the children.

I certify that the preceding one hundred and ninety-six (196) paragraphs are a true copy of the reasons for judgment of Judge Myers

Date: 5 April 2016

[2015] FCCA 3605

19 November 2015

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