EAGLETON & EAGLETON

[2019] FamCA 894

FAMILY COURT OF AUSTRALIA

EAGLETON & EAGLETON [2019] FamCA 894

FAMILY LAW – CHILDREN – Relocation –  where the mother has unilaterally relocated three times since separation – where the father seeks that the mother relocate back to the Eastern Suburbs of Sydney and be restrained from leaving that area – where there is about 45 kilometres between residences of the parents – whether the children are able to have a meaningful relationship with the father and his family

FAMILY LAW – CHILDREN – Parental responsibility – where the mother seeks sole parental responsibility and the father equal shared parental responsibility – where the father seeks that the children be baptised as Catholic and attend a Catholic school – where there are no risk factors present

FAMILY LAW – PROPERTY – Small property pool – two significant assets – money held in controlled moneys account – investment property in O Street, Suburb P – O Street, Suburb P initial contribution made by the father – where the father sought that the O Street, Suburb P property be quarantined from the asset pool – where joint funds were used to finance O Street, Suburb P – where neither parties’ proposal was just and equitable

Family Law Act 1975 (Cth) ss 60CA, 60CC, 60B, 61DA, 65D(1), 65DAA, 65DAB, 65DAC, 75, 79, 80, 81

Bevan & Bevan (2013) FLC 93-545
C & C (2005) FLC 93-220
Champness & Hanson (2009) FLC ¶93–407
Chapman & Chapman (2014) FLC 93-592
Cowling & Cowling (1998) 22 FamLR 776
Cox & Pedrana (2013) 48 FamLR 651
Damiani & Damiani (No. 2) [2009] FamCAFC 215
Doherty & Doherty [2016] FamCAFC 182
Eagleton & Eagleton [2018] FamCA 623
Fielding and Nichol [2014] FCWA 77
Fitzroy and Fitzroy [2009] FamCA 954
Froth & Schneider [2011] FamCA 378
G & G [2000] FamCA 1075
Giles & Giles & Anor [2018] FCCA 194
Goode & Goode(2006) FLC 93-286 
Heath & Hemming (No 2) [2011] FamCA 749
In the Marriage of A (1998) 22 Fam LR 756
In the Marriage of Burke (1981) FLC 91-055
In the Marriage of Crapp and Crapp (No 2) (1979) FLC 90-615
In the Marriage of Paisio (1978) 26 ALR 132
JEL & DDF (2001) FLC 93-075
Jollie & Dysart [2014] FamCAFC 149
Kim & Lam & Anor [2018] FCCA 911
Kowalski and Kowalski (1993) FLC 92-342
Loxley & Loxley & Anor (2018) 58 Fam LR 519
M & S (2007) FLC 93-313
Manolis & Manolis (No 2) [2011] FamCAFC 105
Malcolm & Monroe and Anor [2011] FamCAFC 16
Maldera & Orbel [2014] FamCAFC 135
Marvel & Marvel [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
Morgan & Miles [2007] FamCA 1230
MRR v GR (2010) 240 CLR 461
Norbis v Norbis (1986) 161 CLR 513
Norman & Norman [2010] FamCAFC 66
Pierce & Pierce (1999) FLC 92-844
Re Andrew (1996) FLC 92-692
Rockman & Rockman [2014] FCCA 1966
R & C (unreported, Family Court of Australia, Fogarty, Baker and Lindenmayer JJ, 25 June 1993)
S & S [2004] FamCA 201
Sayer & Radcliffe & Anor [2012] Fam CAFC 209
Sigley & Evor (2011) 44 Fam LR 239
Stanford v Stanford (2012) CLR 108
Tibb & Sheean [2018] FamCAFC 142
VR & RR

APPLICANT: Mr Eagleton

RESPONDENT: Ms Eagleton

FILE NUMBER: SYC 6502 of 2015

DATE DELIVERED: 5 December 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Harper J

HEARING DATE: 4, 5 & 6 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lawson

SOLICITOR FOR THE APPLICANT: Kydon Segal Legal Lawyers

COUNSEL FOR THE RESPONDENT: Mr Roche

SOLICITOR FOR THE RESPONDENT: Watkins Tapsell Solicitors & Barristers

Order amended pursuant to sub-rule 17.02(1)(e) of the Family Law Rules 2004 (Cth)

Orders

Parenting

Parental Responsibility

1. That all prior parenting orders be discharged

2. That the father, Mr Eagleton (“the father”) and the mother, Ms Eagleton (“the mother”) have equal shared parental responsibility for the children X born … 2013 and Y born … 2015 (“the children”). 

Where the children live

1. That the children live with the mother.

Time to be spent with the father prior to Y commencing school

1. Prior to Y commencing school, X spend time with the father at such times as may be agreed between the parties in writing, and failing agreement from 9 December 2019 as follows:

   (a)Each alternate weekend from after school on Friday afternoon, or if a non-school day 4:00pm, until 5:30pm on Sunday; and

   (b)Each Wednesday from after school, or if a non-school day 4:00pm, until before school Thursday.

2. Prior to Y commencing school, Y spend time with the father at such times as may be agreed between the parties in writing, and failing agreement from 9 December 2019 as follows:

   (a)Each alternate weekend from after day care on Friday afternoon, or if a Y does not attend day-care 4:00pm, until 5:30pm on Sunday; and

   (b)beginning from the second week of term one, each Wednesday from 8:30am until 5:00 pm Thursday

Time to be spent with the father subsequent to Y commencing school

1. When both children are attending school, during term time, as agreed between the parties in writing and failing agreement, if the parents remain living in excess of 15km from each other, from the commencement of week one of school term the children spend time with the father:

   (a)Each alternate weekend, from after school Friday afternoon, or if a non-school day 4:00pm, until 5:30pm on Sunday, commencing in the first week; and

   (b)From after school Tuesday, or if a non-school day 4:00pm, until before school Wednesday, or if a non-school day 9:00am,  in week one; and

   (c)From after school Thursday, or if a non-school day 4:00pm, until before school Friday, or if a non-school day 9:00am, in week two.

If the parents are living within 15kms of each other

1. In the event either parent commences to live within 15kms, or such other distance as the parties agree in writing, of the residence of the other parent:

   (a)From after school or 3:00pm Thursday afternoon until 9:00am Monday each alternate week; and

   (b)From after school or 3:00pm Wednesday afternoon until 9:00am Thursday in every other week.

School Holidays

1. Commencing from the 2019 Christmas School holidays, unless otherwise agreed in writing and subject to any other Order in respect of Christmas/Easter/Birthday time, the children shall spend time with the parents as follows:

   (a)For the school holiday periods at the end of Term 1, 2 and 3 in even numbered as follows:

   (i)From 9:00 am on the first Saturday of the school holidays until 5:00 pm on the following Saturday with the father;

   (ii)From 5:00 pm on the second Saturday of the school holidays until 5:00pm on the following Saturday with the mother.

   (b)For the school holiday periods at the end of Term 1, 2 and 3 in odd numbered as follows:

   (i)From 9:00 am on the first Saturday of the school holidays until 5:00 pm on the following Saturday with the mother;

   (ii)From 5:00 pm on the second Saturday of the school holidays until 5:00pm on the following Saturday with the father.

   (c)For the school holiday period at the end of Term 4, commencing 9:00am on the first Saturday:

   (i)Until Y attains age 6, for half of all Christmas holidays, on a week about basis commencing with the father;

   thereafter

   (ii)for the first half of the holiday period in odd numbered years, and the second half of the holiday period in even numbered years, with the father

   (iii)for the first half of the holiday period in even numbered years, and the second half of the holiday period in odd numbered years, with the mother.

Special Occasion time 

1. Notwithstanding any other order, the children spend time with the parents on special occasions as follows:

   (a)       Christmas:

   (i)In 2019 and all odd-numbered years thereafter, the mother will have the children from 12:00pm on Christmas Eve until 12:00pm on Christmas Day.

   (ii)In 2020 and all even-numbered years thereafter, the father will have the children from 12:00pm on Christmas Eve until 12:00pm on Christmas Day

   (iii)In 2019 and all odd-numbered years thereafter, the father will have the children from 12:00pm Christmas Day until 12:00pm Boxing Day.

   (iv)In 2020 and all even-numbered years thereafter, the mother will have the children from 12:00pm Christmas Day until 12:00pm Boxing Day.

   (b)       mother’s Day and father’s Day:

   (i)If the children are not otherwise scheduled to spend time with the mother on mother's day, the parties will otherwise ensure that the children will spend time with the mother on mother's Day from 10:00am to 5:00pm;

   (ii)If the children are not otherwise scheduled to spend time with the father on father's day, the parties will otherwise ensure that the children will spend time with the father on father's Day from 10.00am to 5.00pm.

   (c)       Easter:

   (i)That in even-numbered years, the father will have the children in his care from after school/care on the Thursday prior to Easter through Easter Saturday at 12:00pm and the mother will have the children in her care from Easter Saturday at 12:00pm through Easter Monday.

   (ii)That in odd-numbered years, the mother will have the children in her care from after school/care on the Thursday prior to Easter through Easter Saturday at 12:00pm and the father will have the children in his care from Easter Saturday at 12:00pm through Easter Monday at 6:00pm.

   (d)       Birthdays:

   (i)The mother will have the children with her on her birthday from after school until 6:00pm if on a school day and from 9:00am to 6:00pm in the event that the day falls on a weekend outside of her normal parenting time.

   (ii)The father will have the children with him on his birthday from after school until 6:00pm if on a school day and from 9:00am to 6:00pm in the event that the day falls on a weekend outside of his normal parenting time.

   (e)       Children’s birthdays:

(i)Where a Child’s birthday falls on a day the Children are spending time with, or in the care of, one parent, with the father from after school/daycare (or 4:00 pm if a non-school day) the day immediately prior to the Child’s birthday until before school/daycare or 9:00 am on the Child’s birthday with the other parent

(f)        Christmas in July:

(i)For a 24 hour period to allow the children to attend the paternal grandmother’s Christmas in July family reunion, provided that the father provides the mother with four (4) weeks’ written prior notice.

Changeover

1. That for the purposes of facilitating the time in accordance with these Orders, in the event the parents do not live within 15kms of each other, changeovers shall occur as agreed between the parties and in the absence of agreement as follows:

   (a)Before Y attends school, the mother shall deliver Y to the residence of the father by 8:30 am Wednesday at the commencement of time with the father in accordance with these Orders;

   (b)Otherwise, the father will collect the Children from school or day care at the commencement of his time with the Children and when the children are not attending school or day care, the father will collect the children from the mother’s residence at the commencement of his time with the Children; and

   (c)The mother will collect the children from school or day care at the conclusion of the father’s time with the children and where changeovers do not take place at school, the mother will collect the children from the father’s residence at the conclusion of the father’s time.

2. That for the purposes of facilitating the time referred to in these Orders, in the event the parents do live within 15kms of each other, changeovers shall occur as agreed between the parties and in the absence of agreement as follows:

   (a)       During the school term changeover to occur at the school;

   (b)During the school holiday period the mother will deliver the children to the father’s residence at the commencement of his time and the father will deliver the children back to the mother’s residence at the conclusion of his time.

Family Therapy

1. The mother and father take all necessary steps to make appointments and engage with a family therapist (“family therapist”) as nominated by Q Service or similar organisation and follow the recommendations of the family therapist.

2. The parties shall provide to the nominated family therapist a copy of the Single Expert Report prepared by Mr T dated 12 April 2016 and 17 December 2018, and a copy of the Reasons for Judgment.

3. The father be responsible for the costs of his sessions with the family therapist and the mother be responsible for the costs of her sessions with the family therapist.

Education

1. Until he commences school, Y attend a day care centre selected by the mother.

2. That both parties sign all documents necessary to have the Children attend the public primary school in the catchment area in which the residence of the mother is located, unless the parties are otherwise able to agree to a private or catholic school, including agreement as to educational fees and expenses.

3. That both parents be permitted to liaise directly with the Children’s school, day care and/or sporting bodies to receive any notices, information, newsletters, school reports, order forms for the Children’s photographs, information about the Children’s progress at school as well as parent teacher appointments and information about extracurricular activities involving the Children.

4. That each party is at liberty to attend at the Children’s school/day care for the purposes of any function to which parents are normally invited to attend.

Baptism

1. That the father be at liberty to have the Children baptised in the E Church, Suburb F.

Communication

1. That the Children be at liberty to communicate with the party with whom they are not spending time or living with by way of telephone, email, Skype and Facetime at all reasonable times.

2. That each party keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and provide the other parent with seven (7) days’ prior notice of any change.

3. That within seven (7) days of the making of these Orders, the mother shall nominate a parental communication App and both parents will as soon as reasonably practicable, download the App on their phone. Except in the case of emergency, this App is to be used as each parent’s primary means of communication with the other parent.

Mutual Non-denigration

1. That the parties, their servants and agents be hereby restrained by injunction from:

   (a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party; and

   (b)Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the Children and from permitting any other person to do so.

2. Each party be restrained from saying unpleasant or unkind things of or about the other in the presence or hearing of the Children and will not permit any other person to do so.

3. That both parties be restrained from passing information or messages for the other through the Children.

Notification of illness of a Child

1. That each party keep the other informed of changes to the Children’s health while the Children are in their care and as soon as practicable, notify the other parent of any medical emergency involving the Children.

Authorisation to discuss treatment with a medical practitioner

1. This Order be authority to any doctor or other medical specialist upon whom the Children may attend to provide the mother and/or father all information she/he may request with respect to the Children and copies of any reports arising.

International Travel

1. That within fourteen (14) days of any request made by one parent to the other parent, that both the mother and the father do all acts and things and sign all documents as may be requested of them to apply for and obtain an Australian passport and/or Australian passport renewal for the Children X and Y, with the costs of the passport application fee to be borne by the parent making the request.

2. The parties agree either party should be permitted to take the Children out of Australia for holidays and for other short periods of time whilst in that parties care in accordance with these orders and in relation thereto:

   (a)So far as practical the occasions on which a parent takes the Children out of Australia are to coincide with normal school holidays.

   (b)The parent proposing travel will give the other parent as much as notification as possible of the intention to take the Children out of Australia and in any event will give the other parent not less than thirty (30) days’ written notice of such intention.

   (c)The parent intending to travel will furnish to the other parent an accurate itinerary to include the departure date and return date the country or countries that parent and the Children are travelling to, the approximate dates on which the Children will arrive and depart each country and a telephone number and address at which the travelling parent and the Children can be contacted in each country.

   (d)While the travelling parent is out of Australia with the Children the Children shall have contact with the other parent for the period of travel.

   (e)The parent receiving the request for travel will not seek an Order for the immediate return of the Children in the event of their return to Australia being held up for a reasonable period by unforeseen circumstances such as airline strikes or adverse weather conditions beyond the travelling parent's control.

Location of Passport

1. That the Children’s passport will remain in the mother’s possession, and the mother will not unreasonably withhold the passport if the passport is requested by the father for the purpose of travelling outside of Australia and the father has provided full details of the proposed travel in accordance with Orders above.

Interstate Travel

1. That each party will provide the other with fourteen (14) days’ written notice of their intention to take the Children outside the State of New South Wales during any period the Children are in that party’s care and will provide particulars of the location or locations at which the Children will spend time while outside the State of New South Wales.

Disputes or Variations

1. The process to be used for resolving disputes about the interpretation, implementation or enforcement of these Orders shall be as follows:

   (a)The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (Cth) (“the Act”) or by the Commonwealth Attorney General; or

   (b)The mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Act.

2. Before an application is made to a court for a variation of these orders to take account of the changing needs or circumstances of the Children or of the mother or the father:

   (a)The mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Act or by the Commonwealth Attorney General; or

   (b)The mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Act.

3. Pursuant to sections 65DA(2) and 62B of the Act, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

Property

1. The parties take all necessary steps to cause the release to the mother the funds held in account Westpac #...72 within twenty eight (28) days of the date of these Orders.

1. The father pay to the mother $22,650 within twenty eight (28) days of the date of these Orders.

2. The father be declared the legal and beneficial owner of the property known as O Street, Suburb P (“O Street, Suburb P”).

3. In the event the father is in default of payment in accordance with Order 36 of these Orders, the father shall forthwith:

   (a)take all necessary steps and execute all necessary documents to cause O Street, Suburb P to be sold by public auction with such agent as the father shall appoint at the earliest convenient date and in any event not later than ten (10) weeks from the date of the making of these Orders at a reserve price recommended by the agent and the proceeds of the sale shall be distributed as follows by him:

   (i)Payment of agent’s commissions and advertising expenses and legal expenses of the sale;

   (ii)Payment of any money due and owing to the mortgagee;

   (iii)Payment to the mother of the sum of $22,650 plus interest calculated on a daily basis in accordance with the rate prescribed by the Family Law Rules2004 (Cth) from the due date under Order 26 to the date of payment; and

   (iv)Payment of the balance to the father.

4. That otherwise, as between the father and the mother and subject to these Orders, the father and the mother shall each:

   (a)       respectively retain all interest in and entitlement to:

   (i)All personal property now in their respective possession or control;

   (ii)All interests in life insurance policies and superannuation funds standing in their sole name respectively;

   (b)       Be liable for any debts or other liabilities held in their respective names.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Eagleton & Eagleton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6502 of 2015

Mr Eagleton

Applicant

And

Ms Eagleton

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings, between the applicant father, Mr Eagleton (“the father”), and the respondent mother, Ms Eagleton, (“the mother”) concern both parenting and property issues. 

2. The parenting dispute took the primary focus at the trial. The parenting issues relate to the children of the relationship Miss X, born in 2013 (“X”), presently six years of age, and Master Y, born in 2015 (“Y”), presently four years of age (“the children”). 

3. The parties had a fractious relationship and separated on a final basis in May 2015, prior to the birth of Y. Since separation, the mother has changed her residence on three occasions. The children presently live with their mother at Suburb JJ, a suburb in Region KK Sydney, located near G School. The father lives with his parents in the suburb of Suburb F in the Eastern Suburbs of Sydney. Consequently, there is currently about 45 kilometres between residences of the parents. This has been the cause of significant dispute between the parties, and the father seeks orders for a coercive relocation of the mother, with the children, back to the Eastern Suburbs of Sydney.

4. In accordance with the present interim parenting orders, the children live with the mother.  They spend time with the father on a two week cycle. X spends each Tuesday night with the father while Y spends time with the father on the same Tuesday evening from 9:00 am to 5:00 pm. On each alternate weekend X spends time with the father from 9:00 am on Saturday until 5:00 pm on Sunday, while Y spends time with the father on the same weekend days as X from 9:00 am to 5:00 pm. Additionally, Y spends each alternate Thursday with the father from 9:30 am until 4:00 pm. I will detail the final proposals of the parties later in these reasons.

5. I note that no Independent Children’s Lawyer was appointed in this matter. As will be discussed later in these reasons, despite some historical allegations of angry and abusive behaviour, by each parent against the other, there appeared to be no dispute that there are presently no relevant risk factors for the children in the care of either parent. To the extent necessary, I will return allegations of abusive behaviour later in these reasons.  I observe here that although the mother seeks an order for sole parental responsibility on the basis of a history of conflict, she did not view the conflict as so serious as to seek the appointment of an Independent Children’s Lawyer. The central problem in this case is that the parents have consistently failed to place the best interests of the children ahead of their own desires for control.

6. The property dispute received less attention than the parenting issues in the evidence and the submissions. The property pool is relatively modest. The significant assets are an investment property O Street, Suburb P (“the O Street, Suburb P Property”), owned by the father at co-habitation, and the balance of the net sale proceeds of the former matrimonial home held in a controlled monies account, Westpac Business Cash Reserve Account #...72 (“Westpac account”).  The father argues a two pool approach should be adopted, the O Street, Suburb P property should be quarantined from the matrimonial pool, and retained by him, while the mother should receive 60%, he should receive 40%, of the monies in the Westpac account, with the parties otherwise to retain their assets and liabilities including superannuation. 

7. The wife proposes that there should be one pool, and the O Street, Suburb P property should be sold, with her to receive 55% of the net proceeds of sale and 55% of the balance of the Westpac account, with a splittable payment of superannuation on a base amount of $20,000 to be made to the father, and the parties otherwise to retain their assets and liabilities.

BACKGROUND

1. It is necessary to set out some relevant background facts.

a)In 2011 the father purchased the O Street, Suburb P Property, off the plan, as an investment property.

b)The parties were married in 2011 and commenced cohabitation in 2011.

c)In 2012, the parties purchased property situated at LL Street, Suburb J, (“the Suburb J Property”). This became the matrimonial home.

d)The parties separated for a period of approximately 5 months after the birth of X in 2013 (“first separation”).

e)The parties reconciled in 2014 but separated on a final basis in 2015, prior to the birth of Y (“final separation”).

f)In 2015, the mother relocated, with the children, from the Suburb J property to live with the maternal grandmother in Suburb C.

g)On 2 October 2015, the father filed an Initiating Application, seeking inter alia parenting and property orders, including that the mother relocate back to the Eastern Suburbs.

h)On 9 November 2015 her Honour Justice Stevenson made orders for the sale of the Suburb J property.

1. On 18 November 2015 her Honour Justice Stevenson made interim parenting orders by consent, including an order for equal shared parental responsibility (“interim orders”).

j)The Suburb J property was sold in 2016, although the evidence was unclear about the date. The balance of the proceeds of sale were placed into the Westpac account.

k)On 21 June 2016 Senior Registrar Campbell varied the interim orders, relevantly, to remove equal shared parental responsibility for all major long term issues by allocating sole parental responsibility to the mother for day care arrangements, in the following terms:

“That the respondent wife have sole parental responsibility for the making of decisions in relation to the children’s day care, including choice of day care, provided that the respondent wife provides the applicant husband reasonable notice of any changes to day care arrangements as and when they are proposed.”

l)In about March 2018 the mother relocated, with the children, from Suburb C to G School. In March 2019 the mother relocated again from G School to Suburb JJ. G School and Suburb JJ are suburbs both located in Region KK Sydney, proximate to each other, and within the Region U.

1. Both parties gave detailed Affidavit evidence. The evidence shows that the genesis of many of the disputes and arguments between the parents lay in their individual desires to control parenting outcomes.  It is clear that both parties have at times been egotistical in their dealings with the other, and frequently disrespectful.  This reflects poorly on both of them.

Issues in dispute

1. In respect of parenting, there are two overarching issues, namely the allocation of parental responsibility and relocation, both of which were closely connected to the question of the time to be spent by the children with their father.

2. In relation to property, apart from assessment of contributions and the question of a just and equitable outcome, the principle issue is whether the O Street, Suburb P property should be quarantined from the property pool and whether a superannuation splitting order should be made.

Evidence

1. The father relied on the following documents:

a)His Initiating Application filed 2 October 2015;

b)His Case Outline;

c)His Affidavit sworn and filed 13 May 2019;

d)His updated Financial Statement sworn and filed 13 May 2019;

e)The Affidavit of W affirmed and filed 13 May 2019;

f)The Affidavit of Ms R sworn and filed 13 May 2019; and

g)The Affidavit of Ms S sworn and filed 13 May 2019.

1. The father was cross-examined.

2. The mother relied on the following documents:

a)Her Amended Response filed 13 May 2019;

b)Her Case Outline dated 28 May 2019;

c)Her Affidavit affirmed 8 May 2019 and filed 10 May 2019;

d)Her Financial Statement affirmed 8 May 2019 and filed 10 May 2019; and

e)Affidavit of Mr V sworn 26 May 2016 and filed 20 June 2016.

1. The mother was cross-examined.

2. The following documents were received into evidence:

Exhibit Label	Document	Tendered by
A	Father’s Tender Bundle in relation to his Affidavit sworn and filed on 13 May 2019.	Applicant father
B	Loan Schedule Lender Ms R; Borrower Mr Eagleton.	Applicant father
C	Loan Repayment from Complete Freedom Offset Account #...54 per statements 21 September 2014 to 20 September 2015.	Applicant father
D	National Rental Affordability Scheme (NRAS).	Applicant father
E	Notice of Costs – The Costs incurred by the Applicant father up to and including the first day of Trial on 4 June 2019.	Applicant father
1	The mother’s tender bundle to her Affidavit affirmed 8 May and filed 10 May 2019.	Respondent mother
2	The father’s Parenting Questionnaire filed 21 June 2018.	Respondent mother
3	The mother’s complete freedom offset account with QQ Bank Account number ending in #...54.	Respondent mother
4	PP Hospital Records, Progress/Clinical Records dated 16 July 2015	Respondent mother
5	PP Hospital Records, Progress/Clinical Records dated 23 July 2015	Respondent mother
6	Letter from Super Fund LL in respect of the mother’s Superannuation dated 28 May 2019	Respondent mother
7	X's Student History Report from G School for the year of 2019	Respondent mother
8	Notification of Costs from the mother’s Solicitors, Watkins Tapsell Solicitors, dated 6 June 2017	Respondent mother
Court 1	Family Report by Mr T dated 12 April 2016	Court
Court 2	Updating Family Report by Mr T dated 17 December 2018	Court
Court 3	Joint Balance Sheet	Court

Expert evidence

1. There were two family reports produced for the purpose of the proceedings. Both were prepared by Mr T. The first report was prepared on 12 April 2016, and the second, updating, report was prepared on 17 December 2018.

2. In his second report Mr T made recommendations in paragraphs [96] to [104] as follows:

   It is recommended that the children live primarily with their mother and (if possible from a logistical perspective) spend substantial and significant time with their father. Options for the children spending time with their father are set out below.

   If the father were to be living in or near the G School area it is recommended that, by the time that X is nine years old and Y is seven years old they be spending time together, with their father, for five consecutive nights each fortnight, from Thursday after school until Tuesday morning before school and for a few hours in the alternate week (on a weekday) for a special evening with their father. It is recommended that this regime be approached incrementally – commencing, during the forthcoming Christmas holidays, with the children spending time together, with their father from Friday after school to Sunday evening and on one special ‘Daddy evening’ in the alternate week. It is suggested that this time be increased by around one night annually until the five consecutive nights is achieved as previously mentioned. (It is noted that this option would seem to be the least disruptive for the children and their primary attachment figure/caregivers whilst enabling a meaningful relationship with their father).

   If the parents continue to live at their current locations there would appear to be no viable alternative but for the children to spend each alternate weekend with their father and an evening after school in the alternate week. It might be possible for the father to ‘connect with’ children’s school/preschool/extra-curricular activities by spending other daytime/evening periods with them at other times in addition to the ‘Daddy Evening’.

   If the mother were to be living close to the father’s home the regime described in paragraph 98 could be applied. The writer is of the view however, that this option would be the most problematic for the children, as it would be experienced as the most disruptive and (probably) chronically stressful for their primary attachment figure and care giver.

   The father requested that the writer consider the children spending time with himself and his family at Christmas. In this regard it is suggested that, commencing at the forthcoming Christmas period, they spend Christmas Eve from mid-day to mid-day on Christmas day in one household and from mid-day on Christmas Day until Midday on Boxing Day in the other household and that this arrangement alternates annually.

   With respect to term holiday periods, it is recommended that the children commence spending two periods of three nights with their father commencing in the Easter term time holidays of 2019 and that thereafter such time increases incrementally until they commence spending one half of each of the term time school holidays with their father when Y is seven years old and X is nine years old.

   With respect to the Christmas Holidays, it is suggested that if the children spend two periods of three nights with their father in the forthcoming school holidays (whilst Y is adjusting to spending overnights with his father and away from his mother) and that the time that the children spend with their father during Christmas holidays increase incrementally each year until, by [sic] the time X is nine years old and Y is seven years old, they are spending a minimum of three or four weeks with their father.

   Given the problems that the parents have had finding some common ground with respect to Y’s name and health and with deciding upon their proposed school and religious observance it is suggested that the Court might need to consider the children’s primary residential parent having sole parental responsibility whilst being [sic] obliged to consult with the other parent.

   It is further recommended that the parents undertake a short course to assist them to better communicate and negotiate.

3. I will refer to the content of either of the reports as necessary during the course of these reasons.

4. Mr T also gave oral evidence.  I will refer to this evidence as necessary in the course of these reasons.

5. The parties did not tender a joint balance sheet.  Each party sent to the Court on 28 May 2019 a proposed balance sheet. During the hearing, counsel for the father agreed the mother’s proposed balance sheet could be accepted as a Joint Balance Sheet.  This therefore became Exhibit Court 3.

The father and mother

1. As a general comment, despite the prolix nature of the parties’ evidence, material factual disputes were quite limited.  Having said that, the evidence of both parties exhibited features which undermined their credibility.

2. The father conceded quite frankly the allegations of volatile and violent behaviour during the relationship. However his evidence was clearly coloured by the distrust he felt towards the mother, primarily by reason of her relocations.  Some of his evidence was clearly unreliable. For example, his evidence about the sale of his business, discussed later in these reasons, cast a pall over his credibility.  This evidence was important because it was connected to one of the wife’s stated motivations for relocation, namely, financial pressures induced partly by lack of child support. The father sold this business to his parents for $1 in 2013. In his Affidavit evidence, he asserted that at the time of the sale, the business owed his parents $60,000. In cross-examination about the circumstances of the sale, he conceded this evidence was untrue, and the business had enough resources to repay $40,000 to his parents.

3. The mother at times was defensive in answering questions.  Sometimes her answers were implausible. For example she denied any parenting contributions by the father, such as bathing and feeding, when the children were very young. She was quite emotional at times when giving evidence.

4. The Affidavits of both parents extensively traversed the events from the birth of X to the date of the Affidavit. The period after separation was covered in great detail.  The central point of difference was not so much dissimilar versions of events, although there were some. It was rather the way each party perceived and characterised the conduct and motivations of the other. Some specific examples will illustrate these features of the evidence.

5. The mother tendered a folder of documentary material which became Exhibit “1”. The first 117 pages of Exhibit “1” were copies of text messages passing between the parties between 22 April 2015 and 2 May 2019. The father also tendered a number of copy text messages. This evidence paints a dispiriting picture of two individuals who frequently have shown limited insight into their own behaviours and motivations, and a consistent pattern of conflating their own desire to control parenting outcomes with the best interests of the children. They also obviously have frequently interacted in a conflictual manner.

6. A brief recitation of the events around the birth of Y also helps to illustrate these features of the parents’ relationship.  By way of background, the father left the Suburb J property on May 2015. The parties then had a counselling session as a result of which they struck an informal parenting arrangement whereby the father would spend every Tuesday and an alternate Saturday or Sunday with X. Y was unborn at this stage.  At paragraph 73 of her Trial Affidavit the mother details a number of occasions on which, according to her, the father kept X overnight, contrary to the informal parenting plan, prior to the birth of Y. The father did not put these in issue. Y was born in 2015, about 6 weeks premature.  The mother did not give evidence as to the exact date of her entry into hospital, but she agreed in cross-examination that the father cared for X over 7 or 8 nights while she was in hospital with Y. This was clearly outside the informal parenting agreement but was done consensually.

1. According to the mother, the father was insensitive to her emotional state while in hospital. I accept this is likely. He tried to engage her about tax documentation.  He told staff the mother had post-natal depression, a diagnosis he apparently made himself.  The father for his part expressed the hope in text messages that he, the mother and the two children could all “come home together” and have dinner as a family, despite recent separation of the parents. The mother was not receptive.  This was not surprising since the parties had separated some months previously, a fact which the father seemed to simply gloss over.

2. Upon discharge from hospital in 2015, the mother insisted the father return X, even though the child had a cough, saying “I want her home”.  The father organised to collect X, and organised family events for her, when it suited him.  He appeared on several occasions at the former matrimonial home in company with his sister, whose presence had not been forewarned to the mother. The mother says she felt intimidated by this, and it violated the boundaries set consensually by the parties after separation.  She complained about this to the father at the time. For example, on 1 August 2015 she messaged the father stating she felt bullied by him.

3. On 2 August 2015, two days after discharge from hospital with Y, the mother refused to allow the father to keep X overnight to meet some of her paternal cousins. The mother claimed X must learn to bond with Y.  She relied on the informal agreement, despite the father having cared for X over the previous two weeks overnight as well as the existence of Y as a newborn, as the basis for her refusal. Neither circumstance had been covered by the informal agreement. The mother threatened to call the police “if you do not have her home by 7 pm” accusing the father of being “intimidating and manipulating”.

4. It can be seen that there is good reason to think both parties were largely unable to understand the other’s situation. The father seemed to nurse an unrealistic hope that he, the mother and children could return to some kind of intact family unit, something the mother had no interest in. At times he seemed oblivious to the mother’s fragile state after giving birth to a child 6 weeks premature. He organised care for X as he saw fit. The mother for her part also seemed to feel entitled to control when the father cared for X, trying to deny overnight care as soon as she decided the father was not needed for this. The mother’s reliance on the informal agreement after Y was born was not particularly apt, since it was made when X was the only child, and it had obviously been often ignored by the parties around the time of Y’s birth. The threat to involve police was quite strange in the circumstances, when no Court Orders were in place, both parties had parental responsibilities under common law and there were no risk factors. According to her own evidence it was a threat she repeated a number of times.  In cross-examination the mother could not concede that the threat to call the police was an overreaction. It did betray an attitude of mind held by the mother that on the one hand she felt, in some sense, overpowered in the face of the father’s actions but also that she should be the one to control decisions about the children’s care, despite the parental responsibilities of the father.

5. The battle for control, manifested in the series of events just described, permeated the evidence given by both parties.  It caused me to approach the evidence of both parents with caution.

Parenting

Proposals

1. In summary, as set out in his Case Outline document, the father proposed that the parties have equal shared parental responsibility for the children, however, the father be at liberty to have the children baptised as a Catholic in the E Church, Suburb F. This was a matter of importance to him and less importance to the mother. In respect of the children’s education, failing agreement, Y attend a day care facility near his primary place of residence, and that unless the parties can agree on the children attending a catholic or private primary school, then the children attend a public school in the catchment area of the primary carer’s residence.

2. The father agreed that the children should live with their mother.

3. However, the father sought, as his primary position, an order that the mother relocate the children’s primary residence back to the Eastern Suburbs of Sydney. Additionally, he sought to restrain the mother from changing the children’s place of residence to more than fifteen kilometres from Sydney without a Court Order or the written consent of the father, obtained sixty days prior to any proposed change. The father made an alternative proposal for the children to spend time with him, in the event the Court refused his orders for the mother to relocate to the Eastern Suburbs.

4. The time arrangements proposed by the father varied depending on the Court’s decision made in respect of the relocation and injunction. These are as follows:

   Spend time arrangements in the event that the Children relocate back to the Eastern Suburbs

   8. In the event that children live in the Eastern Suburbs region, the Children shall spend time with the Applicant father at all such times as may be agreed between the parties and failing agreement as follows:

   8.1 During school term, until Y attains age 6:

   8.1.1 Commencing 7 June 2019:

   8.1.1.1 From after school/day care Friday afternoon until after school/day care Monday each alternate week; and

   8.1.1.2 Commencing 12 June 2019, from 8am Wednesday until 5pm Thursday in each alternate week.

   8.1.2 Commencing 18 July 2019:

   8.1.2.1 From 3pm Thursday afternoon until 9am Monday each alternate week; and

   8.1.2.2 From 8am Wednesday until 5pm Thursday in every other week.

   8.2 During school holidays, until Y attains age 6:

   8.2.1 For half of all Easter, June/July and September school holidays, being the first half in even numbered years and the second half in odd numbered years;

   8.2.2 For half of all Christmas holidays, on a week about basis.

   8.3 After Y turns 6 in 2021, during school holidays for half of all Easter, June/July, September and Christmas school holidays, being the first half in even numbered years and the second half in odd numbered years (and subject to any other Order in respect of Christmas/Easter/Birthday time).

   In the alternate, spend time arrangements in the event that the Children continue to reside in the Suburb G region

   9. In the event that the children continue to reside in the Suburb G region and whilst the father continues to reside in the Eastern Suburbs region, the Children spend time with the Applicant father at all such times as may be agreed between the parties and failing agreement as follows:

   9.4 [sic] During school term:

   9.4.1 Commencing 7 June 2019:

   9.4.1.1 From after school/day care Friday afternoon until after school/day care Monday each alternate week; and

   9.4.1.2 Commencing 12 June 2019, from 8am Wednesday until 5pm Thursday in each alternate week.

   9.4.2 Commencing 18 July 2019:

   9.4.1.2 From 3pm Friday afternoon until 9am Monday each alternate week; and

   9.5 [sic] During school holidays for half of all Easter, June/July, September and Christmas school holidays, being the first half in even numbered years and the second half in odd numbered years (and subject to any other Order in respect of Christmas/Easter/Birthday time).

5. The father also proposed specific orders in respect of special occasions, changeover, communication, mutual non-denigration, education, communication with third parties in respect of the children, such as their school, and travel. The entirety of the orders proposed by the father are set out below in Annexure A.

6. In summary, as set out in her Case Outline document, the mother proposed that she have sole parental responsibility for the children and that the children live with her. In respect of spending time with the father, the mother sought orders for the children to spend time with the father each alternate weekend and for one extra night, from after school until 6:00pm, each alternating Tuesday.

7. The mother also proposed orders in respect of the school holidays, special occasions, changeover and communication.  The entirety of the orders proposed by the mother are set out below in Annexure B.

The Children

1. X was born premature, and hence, in her early life she had been placed on a strict routine. She is currently living with her mother in Suburb JJ and attends Kindergarten at Suburb G. According to the father, the school believes X has a bright future. The evidence shows she is progressing well socially and academically. 

2. The mother’s pregnancy with Y was high-risk. Y was also born premature, discussed at 27 above. Y presently attends a day care centre. The father described him as bright and energetic. The mother gave detailed evidence about early medical problems suffered by Y.  Y is currently 4 and will turn 5 in 2020.  He could commence primary school in NSW in 2020.

3. The observations of Mr T did not indicate the Children were presently adversely affected by conflict between the parents. The father gave evidence that “X is a considerate and caring young girl who is able to articulate her own independent thoughts.” He describes her as “compassionate of the feelings of those around her” and “fiercely independent and determined when completing a task.”  According to the father, Y is an “active, vibrant young boy who can at times be boisterous and very enthusiastic.  Y enjoys more physical games and is always happy and attentive.” The mother did not provide similar descriptions of the children although she did not dispute this evidence by the father.  I accept the father’s evidence in this regard.

Relevant Law

Legislative framework

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) governs the making of parenting orders.

2. Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s 61DA and s 65DAB of the Act.[1] The best interests of a child are the paramount consideration in making parenting orders (s 60CA of the Act).

   [1] There is no relevant parenting plan so s 65DAB of the Act does not apply.

3. The best interests of a child, for the purposes of Part VII, are determined by reference to the primary and additional considerations set forth in s 60CC(2) and (3) of the Act.

4. Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of a child for a child’s parents to have equal shared parental responsibility for the child. The application of the presumption and the question of the allocation of parental responsibility is always important and is one of the main areas of debate in this case. The history of conflict between the parents raises the question whether sole parental responsibility should be ordered in favour of one or other parent. Accordingly, it is appropriate to discuss the law in some detail.

5. The application of the presumption has significant consequences. There have been suggestions, without a final determination, in the Full Court of the Family Court that if the presumption is applied, the Court is required to make an order for equal shared parental responsibility: Damiani & Damiani (No. 2) [2009] FamCAFC 215 at [133], [134]. In Marvel & Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348; 240 FLR 367 at [104], the Full Court said, without the benefit of extensive argument:

   It seems to us, as presently advised, that the implication of the legislation, having regard to the provisions of s 61C, s 61D, s 61DA, s 65D(1) and s 65DAA is that if the presumption applies, an order for equal shared parental responsibility will generally be made, thus displacing s 61C and triggering consideration of the provisions of s 65DAA.

6. As Loughnan J has pointed out, this passage in Marvel suggests the Court may not invariably make an order for equal shared parental responsibility even when the presumption applies: Froth & Schneider [2011] FamCA 378 at [226]. However, Kent J in Heath & Hemming (No 2) [2011] FamCA 749 at [89] said:

   So far as I am aware, no subsequent Full Court has considered the matter further but having regard to Marvel & Marvel (supra) it seems to me that a trial judge should take the approach of making an order for equal shared parental responsibility when the presumption in s 61DA applies.

7. With respect, I adopt this as the correct approach for a trial judge, until further guidance is given by the Full Court.

8. The presumption does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s 61DA(2) of the Act). The presumption may be applied but be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for his or her parents to have such equal shared parental responsibility (s 61DA(4) of the Act).

9. Where the presumption applies, it conditions the Court’s power to make parenting orders, including enlivening s 65DAA, which requires consideration of equal or substantial and significant time with each parent (s 65DAA(1)) and (2)): MRR v GR (2010) 240 CLR 461 at [20]; Cox v Pedrana (2013) 48 FamLR 651 at [16], [17]. It is important to realise that if the presumption is applied, the order for equal shared parental responsibility should be made for all aspects of parental responsibility, enlivening s 65DAA. But an order that a child’s parents have shared parental responsibility for some but not all aspects of parental responsibility is not “an order for equal shared parental responsibility”: Doherty & Doherty [2016] FamCAFC 182 at [34], [57].

10. If an order for any type of shared parental responsibility is made, the obligations imposed by s 65DAC become applicable. In summary, these obligations require decisions about major long-term issues to be made jointly by the persons subject to the order, by them consulting each other and making a genuine effort to come to a joint decision. “Major long-term issues” are defined in s 4 of the Act to mean issues about the “care, welfare and development of a child” and include education, health and a child’s living arrangements.  It is also the case that an order that a child’s parents have shared parental responsibility for any aspects of parental responsibility would still be an order under which “2 or more persons are to share parental responsibility for a child” thus imposing the statutory obligation for consultation and joint decision making in s 65DAC.

11. The s 60CC considerations have an important role to play in relation to the presumption. The Full Court pointed in Cox v Pedrana (supra) at [19] (following MRR at [7]) if the presumption is not to apply or is rebutted, the relevant findings need to be made by reference to ss 61DA(2) or (4). Such findings will ordinarily be made in the course of, or informed by, conclusions as to the best interests of the children, reached by an assessment of the considerations set forth in s 60CC(2) and (3).

12. Before discussing such of the s 60CC considerations as are relevant to this judgment, it is convenient also to set out the applicable law relating to applications seeking orders in relation to relocation.

Relocation

1. It has long been recognised that relocation cases pose particular difficulties.  As a general proposition, a parent is entitled to live where they choose. There is no requirement for a parent to demonstrate “compelling reasons” to live where the parent proposes to live: AMS v AIF (1999) 199 CLR 160; U v U [2002] HCA 36; (2002) 211 CLR 238; Adamson & Adamson (2014) FLC 93-62 at 79,700 [65] – [66]. However, the best interests of the children are paramount. In U & U Gummow and Callinan JJ said at [89]: “whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent.”

2. The fact of parenthood carries with it responsibilities which can inherently restrict choices made by a parent. In Zahawi & Rayne [2016] FamCAFC 90, [47] – [48] the Full Court noted:

   47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U [[2002] HCA 36; (2002) 211 CLR 238 [92]]:

   ...The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.

3. I am satisfied the Court has the power to make an order requiring the mother to relocate. The Full Court has held that there is nothing in the authorities that establishes that there is no power within the Act to directly restrain a parent from relocation or to directly require relocation: Sampson v Hartnett (No 10) [2007] FamCA 1365; (2007) 215 FLR 155; [2007] FLC 93-350; (2007) 38 Fam LR 315 at [33]. A coercive order does require significant and careful consideration of the circumstances of the parent to be compelled to move: Stringer & Nissen (No. 2) [2019] FamCAFC 185 at [30] citing Sampson v Hartnett (No 10).

4. However, where parenting proceedings, including applications regarding relocation, are brought under the Act, the legislative pathway must be followed. It clear on the authorities that relocation cases are to be determined as any other parenting case (Fitzroy and Fitzroy [2009] Fam CA 954 at [16]; Morgan & Miles [2007] FamCA 1230; (2008) 38 Fam LR 275; (2007) FLC 93-343 at [72]). Any exercise of a power to compel the mother to relocate is governed by these considerations.

5. The decision of Boland J in Morgan (supra) has been cited as a correct statement of the law and followed many times: see, for example, Malcolm & Monroe and Anor [2011] FamCAFC 16; [2011] FLC 93-460 at [107]. At [72] to [78] Boland J set out a number of principles relevant to relocation, which I respectfully adopt. In particular at [79], her Honour said in considering whether the child should live with the parent who proposes to relocate the Court:

   ·Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute. 

   ·Make orders having regard to the child’s best interest as the paramount, but not the sole, consideration. 

   ·Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child. 

   ·If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child. 

   ·In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.

   ·When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made. 

   ·Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide: 

   -    that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;

   -     that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent; 

   -    that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale; 

   -    the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.

   ·Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.

1. Further at [80], Her Honour said:

   It follows from my exposition of legislation that earlier core principles:

   ·that the child’s best interests remain paramount, but not the sole consideration;

   ·that a parent wishing to move does not need to demonstrate compelling reasons;

   ·that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and

   ·the child’s best interests must be weighed and balanced with the right of the proposed relocating parent’s freedom of movement;

   ·remain valid.

2. Consistently with the decision in Morgan (supra), in Sayer & Radcliffe & Anor [2012] Fam CAFC 209 at [47] to [48] the Full Court observed:

   It is now well established principle that whilst some special requirements may apply, relocation cases are guided and judicial officers are bound by the same legislative pathways as other parenting cases under the Act. In other words relocation is not to be treated as a discrete issue in the making of parenting orders ... A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents ... It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway. (citations omitted)

3. In Morgan (supra) at [55], Boland J also made clear that there is no right to unilateral relocation and such a relocation does not fetter, in any way, the exercise of discretion by the Court:

   …There is nothing in the legislation which provides that a parent who has existing order which provides that the child spends fifty per cent or more of his or her time with that parent has a unilateral right to move the child, (on the basis that this is in the child’s best interests). Whilst such a move may, after exploring all relevant factors, be found to be in the child’s best interests, those interests can only be determined by examination of the relevant factors in the structured exercise of discretion required by the legislation. It is illogical to suggest it is appropriate for an unauthorised unilateral move to occur, and that a court’s discretion in determining a child’s best interests, including time to be spent with the other parent, be inappropriately fettered by a move which has already occurred.

4. An order for shared parental responsibility, if one has been made, is a significant matter in relation to relocation. Although the original order for equal shared parental responsibility made by Stevenson J on 18 November 2015 was varied by Senior Registrar Campbell on 21 June 2016, there remained in operation orders for shared parental responsibility, because the change was limited to giving the mother sole parental responsibility for day care in relation to Y. Consequently the obligations in s 65DAC were imposed upon the mother and the father from 18 November 2015.

5. In Morgan & Miles (supra) at [66] Boland J emphasised that major long term issues include “changes to the child’s living arrangements that make it significantly more difficult for a child to the spend time with a parent”. The operation of s 65DAC of the Act clearly precludes changes by one parent to the children’s living arrangements without notice and consultation with the other parent. Thus the mother was required to consult and make a genuine effort to agree about a move which would make it significantly more difficult for the child to spend time with the father as “left behind” parent.

6. Although an order for shared parental responsibility does not trigger the requirement for the Court to consider equal or substantial and significant time with each parent pursuant to s 65DAA of the Act, the decision in Goode & Goode(2006) FLC 93-286 suggests they continue to be relevant considerations in a parenting matter, and important questions in relocation cases: Morgan & Miles (supra) at [68].

7. The facts relating to relocation in this matter can be summarised as follows.

8. In September 2015 the mother relocated from the Suburb J property to live with the maternal grandmother in Suburb C. This was just before the father commenced the proceedings on 2 October 2015. The father appears to have sought an order for the mother’s compulsory relocation in his Initiating Application in response to the move to Suburb C.  At the time there is no dispute that the mother was on maternity leave after the birth of Y.  The mother then lived at Suburb C between 2015 and 2018.

9. At the time of the move to Suburb C, the mother conceded she had joined an Eastern Suburbs mother’s group, the father was paying the mortgage on the Suburb J property, and she expected to raise the children there. However, she maintained the property was not suitable for two children. In cross-examination it was put to her that there was nothing forcing her to leave the Suburb J property.  She disagreed, saying the father asked her to leave, but could not point to any actual compulsion. She was adamant that she could not tell the father before her proposed move, but did not clearly explain why.  In her Trial Affidavit at paragraph [92] she said the move was about privacy while she was living in the Suburb J property but in cross-examination she said it was more than that, namely, the father just came and went as he pleased. This was not seriously put in issue by the father, and I accept it is likely to be correct.  It shows an aspect of the father’s desire for control. It appeared from her cross-examination that the mother moved to Suburb C because the father had moved to live with his parents, saying “He was living with his parents, so I did too”.

10. The mother gave evidence about her relocation to Suburb G at paragraphs [127] to [133] of her Trial Affidavit. It is clear she felt financial pressure at this time. According to the mother in February 2018 she received notification of her eligibility for the Affordable Housing Scheme which entitled her to a 25% discount on rent.  She became aware of an eligible 4 bedroom home in Suburb G at about the same time. She described the property as a relatively new, gated community featuring a park and a pool for residents only.  The mother was aware her move increased the distance between the children and the father but believed the positive effects outweighed the negative effects. She asserts she relocated to Suburb G “to provide my children with the best possible living conditions consistent with my income”. The mother gave evidence that the children were enrolled in day care and school near Suburb G.

11. By the time of the move to Suburb G, the mother must have known the father was unlikely to agree or acquiesce, since he had from the start of the proceedings sought a coercive order for the mother to relocate back to the Eastern Suburbs from Suburb C. I infer she had no intention of telling him, even though none of the factors said to lie behind her move to Suburb C remained current. After the move to Suburb G the father filed an Application in a Case on 27 March 2018 seeking an order that the mother move back to Suburb C to her mother’s home or to within 20 kms of her employment. As pointed out in Morgan (supra), the mother’s unilateral conduct was contrary to what the law required, and in particular violated the mother’s statutory obligation to consult with the father and attempt to reach a consensus about her move, pursuant to s 65DAC of the Act.

12. I observe here that in his Trial Affidavit at paragraphs 153 to 156 the father contends that in the mother’s earlier Affidavit affirmed 3 May 2018 and filed 4 May 2018, the mother had given evidence that her move to Suburb G was, in part at least, motivated by the likelihood the maternal grandmother intended to move from Suburb C to Suburb G, and the mother was going to build a support network in the area. Mr T adverts to the same motivation in his second report at paragraph 89.  However, none of these motivations were repeated by the mother in her Trial Affidavit.  The mother’s Affidavit of 4 May 2018 was not read by the mother in the trial.  It was referred to by the father in his Trial Affidavit. In cross-examination, the mother conceded her mother had not asked her to leave Suburb C, although she talked of selling, and would never have asked her to leave. It is undisputed that the maternal grandmother has not moved to Suburb G, nor did she give evidence in the mother’s case.  I infer her evidence would not have assisted the mother’s case. I am not satisfied that the mother’s move to Suburb G was motivated, even in part, by an expectation that the maternal grandmother would also move to the same location. 

13. In March 2019 the mother gave evidence that the property at Suburb G  was listed for sale by the owner. She found another property at Suburb JJ, which was 8 kms from the house at Suburb G . She gave no evidence about this property’s characteristics, such as the number of bedrooms. In her Trial Affidavit the mother asserts the children have developed some friendships with children living nearby in Suburb JJ.  She also states “Most of my extended family lives in proximity to me and the children, which provides me and the children with a network of support”.  She also gave evidence that “Many of my life-long friends reside close to me.”

14. In his oral evidence, Mr T said he believed the mother was authentic when she said she has a strong sense of “home” at Suburb G  (and, I infer, Suburb JJ).  He did not elaborate on why he held this belief. He was not aware that the mother had previously lived for 14 years in the Eastern Suburbs. He accepted the possibility that the mother may have been less than candid.

15. Despite the view of Mr T, I find it difficult to give great weight to the mother’s evidence that most of her extended family and many lifelong friends live in the Suburb G area. It is vague and unsupported by specific details to allow much reliance to place upon it. No detail was given by her about these relationships and the nature of the asserted support network in Suburb JJ, nor was it pointed to as a reason for the relocation to Suburb JJ, which is only 8 kilometres away.  No particular extended family members, or the asserted lifelong friends, were identified by the mother. Clearly, neither category presently includes the maternal grandmother. Somewhat surprisingly it is the father’s evidence which adds some detail. In his evidence the father said the mother receives assistance from her sister and a close friend, Ms Eagleton, in transporting the children from school and day care, when the father is not doing so.

16. The mother also gave no evidence about any particular value of such a network to the children, for example, by describing a warm or positive relationship with a particular extended family member.

17. However, the evidence of the mother about friends and relatives in Suburb JJ was not challenged in cross-examination.  I accept there may be some kind of support network of friends and relatives proximate to Suburb JJ, which includes the mother’s sister and at least one close friend. Overall I accept that the nearness of these persons was one motivation of the mother in her relocation to the Suburb G area.

18. There was no dispute that each of the mother’s moves to Suburb C, Suburb G and Suburb JJ was made unilaterally, without any consultation or agreement with, or prior knowledge of, the father.  In cross-examination she denied that the “real reason” for her moves was to place distance between herself, the children and the father.

19. The mother’s relocations have made worse an already fractious post-separation relations between the parties. The father gave evidence that he believes the mother was deliberately progressively moving the children further away from him to preclude him spending substantial and significant time with the children, using distance to restrict his time to alternate weekends. I do not accept this is entirely true. The accommodation in Suburb G was superior to Suburb C. I will return to this issue below in the discussion under s 60CC(3)(ca). The mother had plausible financial reasons to move to cheaper housing in Suburb G, and then, I infer, Suburb JJ. These reasons are closely connected to the modest level of financial support provided to the mother by the father after separation, as well as a need to find independence. I am satisfied that the mother moved to the Suburb G area (including Suburb JJ) because she could secure more substantial housing and a discounted rent. On the other hand, I am not satisfied that the mother turned her mind to any other possible location other than Suburb JJ or Suburb G, which would have allowed greater access for the children to the father, as well as allowing the children access to the mother’s network in the Suburb G area.

20. I am also satisfied it is likely the mother moved to Suburb G to create geographical distance between her and the father, to make it difficult for him to appear at her home unannounced and uninvited, and when it suited him.

Best interests of the children

1. I consider the statutory factors underlying conclusions about the best interests of the children at this point. Findings and conclusions concerning the best interests of the child will be important in considering the application of the presumption of equal shared responsibility, the making of any order to that effect, and thus the potential trigger of s 65DAA. In addition, as the decision in Goode & Goode (supra) makes clear, even if the presumption is not applied or is rebutted, then the Court makes such orders as it deems are in the best interests of the child, as a result of consideration of one or more of the factors set out in s 60CC of the Act.

2. Section 60CC prescribes a series of primary and additional considerations, to be considered, and weighed against the facts of each case.

3. The objects as set out in s 60B of the Act, and their underlying principles, are also to be borne in mind. It is unnecessary to set these objects and principles out in full. No party made reference to them in submissions. I note that the underlying objects include ensuring that children have “the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child” (s 60B(1)(a)) and that “parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children” (s 60B(1)(d).

4. The principles include the right of children “to know and be cared for by both their parents, regardless of whether their parents are married [or] separated” (s 60B(2)(a)), “to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development” (s 60(2)(b)), and “parents should agree about the future parenting of their children” (s 60(2)(d)).

5. In considering the role to be played by these objects and principles in the determination of parenting orders the Full Court has held in Maldera & Orbel [2014] FamCAFC 135; 52 FamLR 24 at [74]-[75], that s 60B of the Act does no more than provide context, indicate the legislative intention or purpose of Part VII and otherwise operates as an aid to construction of Part VII and the Act. It cannot be used to change the ordinary and clear meaning of s 60CC nor where the s 60CC deliberations do not enable the court to determine whether or not a parenting order is in a child’s best interests, will s 60B be decisive.

6. When it comes to the separate primary and additional considerations prescribed in s 60CC of the Act, recent authority makes clear the requirement to “consider” does not carry with it a requirement to “discuss” expressly each consideration: Jollie & Dysart [2014] FamCAFC 149 at [49]; Tibb & Sheean [2018] FAMCAFC 142; (2018) 58 FamLR 353 at [68]. I will discuss those considerations which are relevant based upon the evidence and the submissions of the parties. I have given weight to each consideration discussed.

Primary considerations

1. In order to determine the child’s best interests, the Court must first have regard to the “primary considerations” under s 60CC(2) of the Act which are:

   (a)The benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. In applying these considerations the Court is to give greater weight to the consideration in paragraph 2(b) (see s 60CC(2A) of the Act).

Section 60CC(2)(a), “meaningful relationship”

1. A “meaningful relationship” is one which is “important, significant and valuable to the child”: (citing Mazorski & Albright [2007] FamCA 520 at [26] and McCall v Clark (2009) FLC 93-405 at [115]). A “prospective approach” is the preferred approach to s 60CC(2)(a) requiring the Court to “consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”: McCall (supra) at [118]-[119].

2. The legislation aspires to promote a meaningful relationship, not an optimal relationship, (M v S (2007) FLC 93-313 per Dessau J; Godfrey (supra) per Kay J and Champness v Hanson (2009) FLC ¶93–407 per the Full Court). A “meaningful relationship” is a legal construct, not a psychological one, and it is for the Court, not an expert, to determine what constitutes a meaningful relationship: Champness (supra) at [191]. The Full Court in Sigley v Evor (2011) 44 Fam LR 239 endorsed these earlier judicial interpretations of the expression “meaningful relationship” at [136].

3. The authorities make clear that the “meaningful relationship” consideration in s 60CC(2)(a) of the Act supports the position that as much time as possible with both parents is in the children’s best interests.

4. As I understood the submissions, no party argued that the children would not benefit from a meaningful relationship with both their parents.  It was a common position that the children should live with the mother. Their relationship with her is meaningful and, as primary carer, should continue and grow. This would be true even if she is ordered to relocate to the Eastern Suburbs as proposed by the father.

5. It is also clear on the evidence that the children have a meaningful relationship with their father. The debate centred around how a meaningful relationship with him could be maintained and enhanced within the limitations created by the physical distance between the parents, if the mother remained in the Suburb G  area, or whether the children’s relationship with their father should be supported by compelling the mother to relocate closer to the father’s residence.  Each party argued that the other could move to reside closer to them, with the father arguing the mother should be forced to relocate, and the mother arguing the father had greater flexibility than her in deciding where he lived.  The father argued that at present the distance between the residences of the parents undermined his time and relationship with the children, and would continue to do so unless the parents lived closer to each other.

6. There was no dispute that if the parties lived closer to each other, the children could spend more time more easily with the father. The father’s proposed order for the mother’s relocation to the Eastern Suburbs would help achieve this result.  But so would a move by the father to a location closer to Suburb JJ.

7. But as already pointed out, neither possible move is necessary to create a meaningful relationship with the father. This already exists. The father believes it is not optimal, but as the authorities show, s 60CC(2)(a) does not require the relationship to be optimal. As Kay J said in Godfrey & Sanders [2007] FamCA 102, in the context of relocation: “Even if the move results in a diminution of the quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.”

Special Occasion time

1. That regardless of where the parties reside, the Children spend time with the Applicant father at all such times as may be agreed between the parties and failing agreement as follows:

   10.1Christmas:

   10.1.1Notwithstanding any Order for school holiday time, from 4pm Friday until 9am Monday on the weekend immediately preceding Christmas;

   10.1.2From 8am on Christmas Eve until 11am on Christmas Day in odd numbered years; and

   10.1.3From 11am on Christmas Day until 5pm on Boxing Day in even numbered years. 

   10.2Easter:

   10.2.1From after school on Holy Thursday or, if Holy Thursday is a non-school day, from 5pm on Holy Thursday until 5pm on Easter Monday in even numbered years.

   10.3Children’s Birthdays:

   10.3.1Where a Child’s birthday falls on a day the children are not spending time with the father, from after school/daycare (or 4pm if a non-school day) the day immediately prior to the Child’s birthday until before school/daycare or 9am on the Child’s birthday.

   10.4father’s birthday:

   10.4.1Where the father’s birthday falls on a day the children are not spending time with the father, from after school/daycare (or 4pm if a non-school day) on the father’s birthday until 9am the following day.

   10.5Father’s Day

   10.5.1Where the children are not spending time with the father on father’s Day pursuant to these Orders, from 4pm on the Saturday immediately preceding father’s Day until 9am on Monday.

   10.6Christmas in July:

   10.6.1For a 24 hour period to allow the children to attend the paternal grandmother’s Christmas in July family reunion, provided that the father provides the mother with four weeks written prior notice.

Changeover

1. That for the purposes of facilitating the time referred to in this Order:

   11.1The father will collect the children from school or day care at the commencement of his time with the children and where changeovers do not take place at school or day care, the father will collect the children from the mother’s residence at the commencement of his time with the children; and

   11.2The mother will collect the Children from the father’s residence at the conclusion of the Children’s time with the father.

Communication

1. That the Children be at liberty to communicate with the party with whom they are not spending time or living with by way of telephone, email, Skype and Facetime at all reasonable times.

2. That each party keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and provide the other parent with seven days’ prior notice of any change.

3. That within 7 days of the making of these orders, the mother shall nominate a parental communication App and both parents will as soon as reasonably practicable, download the App on their phone. Except in the case of emergency, this App is to be used as each parent’s primary means of communication with the other parent.

Mutual Non-denigration

1. That the parties, their servants and agents be hereby restrained by injunction from:

   15.1Abusing, insulting, belittling, rebuking or otherwise denigrating the other party; and

   15.2Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the Children and from permitting any other person to do so.

2. Each party be restrained from saying unpleasant or unkind things of or about the other in the presence or hearing of the Children and will not permit any other person to do so.

3. That both parties be restrained from passing information or messages for the other through the Children.

Education

1. That both parents be permitted to liaise directly with the Children’s school, day care and/or sporting bodies to receive any notices, information, newsletters, school reports, order forms for the Children’s photographs, information about the Children’s progress at school as well as parent teacher appointments and information about extracurricular activities involving the Children.

Parent’s attendance at school events

1. That each party is at liberty to attend at the Children’s school/day care for the purposes of any function to which parents are normally invited to attend.

Notification of illness of a Child

1. That each party keep the other informed of changes to the Children’s health while the Children are in their care and as soon as practicable, notify the other parent of any medical emergency involving the Children.

International Travel

1. That within 14 days of any request made by one parent to the other parent, that both the mother and the father do all acts and things and sign all documents as may be requested of them to apply for and obtain an Australian passport and/or Australian passport renewal for the Children X and Y, with the costs of the passport application fee to be borne by the parent making the request.

2. The parties agree either party should be permitted to take the Children out of Australia for holidays and for other short periods of time and in relation thereto:

   22.1So far as practical the occasions on which a parent takes the Children out of Australia are to coincide with normal school holidays.

   22.2The parent proposing travel will give the other parent as much as notification as possible of the intention to take the Children out of Australia and in any event will give the other parent not less than thirty (30) days written notice of such intention.

   22.3The parent intending to travel will furnish to the other parent an accurate itinerary to include the departure date and return date the country or countries that parent and the Children are travelling to, the approximate dates on which the Children will arrive and depart each country and a telephone number and address at which the travelling parent and the Children can be contacted in each country.

   22.4While the travelling parent is out of Australia with the Children the Children shall have contact with the other parent for such period.

   22.5The parent receiving the request for travel will not seek an Order for the immediate return of the Children in the event of their return to Australia being held up for a reasonable period by unforeseen circumstances such as airline strikes or adverse weather conditions beyond the travelling parent's control.

Location of Passport

1. That the Children’s passport will remain in the father’s possession, and the father will not unreasonably withhold the passport if the passport is requested by the mother for the purpose of travelling outside of Australia and the mother has provided full details of the proposed travel in accordance with orders above.

Interstate Travel

1. That each party will provide the other with 14 days written notice of their intention to take the Children outside the State of New South Wales during any period the Children are in that party’s care and will provide particulars of the location or locations at which the children will spend time while outside the State of New South Wales.

Authorisation to discuss treatment with a medical practitioner

1. This Order be authority to any doctor or other medical specialist upon whom the Children may attend to provide the mother and/or father all information she/he may request with respect to the Children and copies of any reports arising.

2. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

PROPERTY

1. That the funds held in the controlled money account be distributed as follows:

   27.1As to 60% to the Wife; and

   27.2As to 40% to the Husband.

2. That the Husband retain the O Street, Suburb P property and remain solely liable for the O Street, Suburb P mortgage.

3. That the Wife do all things necessary to withdraw the Caveat held by her over the property with registration number within 7 days of the date of this Order.

Each party to retain own financial institution account

1. The Applicant Husband and the Respondent Wife retain any money in their respective credit in any financial institution or account or accounts held by them in their respective names.

Liability for credit card debts

1. That the Applicant Husband and the Respondent Wife each remain solely liable for and indemnify the other for any and all credit card liability held in their own respective names.

Assets and liabilities to be retained by the Applicant Husband

1. That the Applicant Husband retain as his absolute property, the title and possession to and of the following:

   (a)       The O Street, Suburb P property;

   (b)       The Husband’s bank account;

   (c)The furniture and contents otherwise in his possession at the date of this Order;

   (d)       The Husband’s superannuation interest;

   (e)Save as otherwise set out herein, all shares and investments held in his sole name; and

   (f)All other proprietary interests of whatsoever nature in the Applicant Husband’s current possession and/or control.

2. That the Applicant Husband retain sole liability for and indemnify the Respondent Wife with respect to:

   (a)       The O Street, Suburb P mortgage;

   (b)       The loan from his parents;

   (c)       The Husband’s credit card; and

   (d)Any other loan, lease or credit card liability held or registered in his sole name.

Assets and liabilities to be retained by the Respondent Wife

1. That the Respondent Wife as her absolute property, the title and possession to and of the following:

   (a)       The Wife’s bank accounts;

   (b)The furniture and contents otherwise in her possession or control at the date of signing;

   (c)       The Wife’s motor vehicle;

   (d)       The Wife’s superannuation interest;

   (e)Save as otherwise set out herein, all shares and investments held in her sole name; and

   (f)All other proprietary interests of whatsoever nature in the Respondent Wife’s current possession and/or control.

2. That the Respondent Wife retain sole liability for and indemnify the Applicant Husband with respect to:

   (a)       The Wife’s credit card;

   (b)Any personal loan from Ms GG, Mr HH or any other friend or family member of the Respondent Wife; and

   (c)       Any loan, lease or credit card liability held or registered in her sole name.

Possession of furniture, contents and chattels denotes ownership

1. Other than is specifically provided for in these Orders, the parties are solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in the possession of each of the parties as at the date of making these Orders.

Preparation of documents and duty

1. That save as otherwise provided herein the transferee spouse or the spouse receiving the benefit of any transaction pursuant to these Orders prepare the documentation necessary to give effect to the provision of these Orders at their cost and further be responsible for the payment of registration fees and any other fees in relation to the transfer of property into their name.

2. That any duty payable on any transaction arising out of these Orders be paid by the transferee spouse or the spouse receiving the benefit of such a transfer or transaction.

COSTS

1. That the Respondent Wife pay the Applicant Husband’s costs of and incidental to these proceedings on an indemnity basis.

Annexure B

Parenting Orders

1. That the Respondent mother shall have sole parental responsibility in respect of major long-term issues for the children, X (dob: 2013) and Y (dob: 2015), hereinafter "the children"

2. That the Respondent mother have the sole responsibility for giving consent and making arrangements for the issue of the children's passports.

3. That subject to any other requirements of the Department of Foreign Affairs and Trade passports be issued to the children X (dob: 2013) and Y (dob: 2015), to enable them to leave Australia and it's territories notwithstanding that the consent of the Applicant father has not been obtained.

4. That the children live with the mother.

5. That the parties will use email and or sms message to keep each other informed as to matters concerning the children, including but not limited to:

   (a)       Their health including doctor appointments;

   (b)       Their education;

   (c)       Their religion;

   (d)       Their sporting and recreational pursuits;

   (e)       The administering of the children's medication;

   (f)        Any and all other subjects pertaining to the welfare of the children.

6. The mother shall ensure that the father is advised via email of any further medical or dental diagnosis and any treatment for or of the children and the mother shall authorise all treating physicians or practitioners to provide information to the father about the children's treatment and progress as required.

7. That the children will spend time with the Applicant father as follows:

   (a)       During school terms:

   (b)On alternating weekends from Friday after school until Sunday evening at 6:00pm;

   (c)       alternating Tuesdays from after school until 6:00pm; and

   (d)       As the parties may otherwise agree between them.

8. During school holidays until 2022;

   (a)From 9:00am on the first Saturday immediately following the commencement of the school holiday period until Wednesday that week at 5:00pm.

   (b)       All other parenting orders are suspended during the school holiday period.

9. During school holidays from 2022 onward;

   (a)From 9:00am on the first Saturday immediately following the commencement of the school holiday period until the following Saturday evening at 6:00pm.

   (b)       All other parenting orders are suspended during the school holiday period.

10. Christmas School Holidays until 2022;

    (a)From 9:00am on the first Saturday following Boxing Day (or the first Sunday if Boxing Day falls on a Saturday) until the Wednesday that week at 5:00pm (or until the Thursday at 5:00pm if Boxing Day falls on a Saturday);

    (b)From 9:00am on the third Saturday following Boxing Day until the Wednesday that week at 5:00pm;

    (c)All other parenting orders are suspended during the Christmas school holiday period.

11. Christmas School Holidays after 2022;

    (a)In 2022 and in all even-numbered years thereafter, on a week-about basis commencing on the first Saturday following Boxing Day at 9:00am until the following Saturday at 5:00pm and continuing to the last Saturday of the school holiday period so as to ensure that the children are in the care of the mother on the Sunday directly prior to school commencing.

    (b)In 2023 and in all odd-numbered years thereafter, on a week-about basis commencing on the second Saturday following Boxing Day at 9:00am until the following Saturday at 5:00pm and continuing to the last Saturday of the school holiday period so as to ensure that the children are in the care of the mother on the Sunday directly prior to school commencing.

    (c)All other parenting orders are suspended during the Christmas school holiday period.

Holidays/Special Occasions

1. Christmas

   (a)In 2019 and all odd-numbered years thereafter, the mother will have the children from 5:00pm on Christmas Eve until 5.00pm on Christmas Day.

   (b)In 2020 and all even-numbered years thereafter, the father will have the children from 5:00pm on Christmas Eve until 5:00pm on Christmas Day

   (c)In 2019 and all odd-numbered years thereafter, the father will have the children from 5:00pm Christmas Day until 5.00pm Boxing Day.

   (d)In 2020 and all even-numbered years thereafter, the mother will have the children from 5:00pm Christmas Day until 5:00pm Boxing Day.

2. If the children are not otherwise scheduled to spend time with the mother on mother's day, the parties will otherwise ensure that the children will spend time with the mother on mother's Day from 10.00am to 5.00pm;

3. If the children are not otherwise scheduled to spend time with the father on father's day, the parties will otherwise ensure that the children will spend time with the father on father's Day from 10.00am to 5.00pm.

Easter

1. That in even-numbered years, the father will have the children in his care from after school/care on the Thursday prior to Easter through Easter Saturday at 12:00pm and the mother will have the children in her care from Easter Saturday at 12:00pm through Easter Monday.

2. That in odd-numbered years, the mother will have the children in her care from after school/care on the Thursday prior to Easter through Easter Saturday at 12:00pm and the father will have the children in his care from Easter Saturday at 12:00pm through Easter Monday at 6:00pm.

3. All other parenting orders are suspended during the Easter holiday period (including school holiday parenting orders).

Birthdays

1. The mother will have the children with her on her birthday from after school until 6:00pm if on a school day and from 9:00am to 6:00pm in the event that the day falls on a weekend outside of her normal parenting time.

2. The father will have the children with him on his birthday from after school until 6:00pm if on a school day and from 9:00am to 6:00pm in the event that the day falls on a weekend outside of his normal parenting time.

General Parenting Orders

1. That for the purposes of these parenting orders, the term "after school" shall mean at the end of X's school day, whether Y is enrolled in day care, pre school, school or is home for any reason with the mother.

2. The father will be responsible for the transportation of the children at the commencement and conclusion of his time with them according to these orders.

3. That the father will be timely in his collection and delivery of the children to and from the mother or the children's school or care.

4. That the mother will be responsible for enrolling the children in extracurricular activities, and sports and clubs/associations in proximity to where the children reside. She will advise the father of the children's enrolment in such activities.

5. That if the children have a scheduled weekend activity or sporting event which occurs during the father's time, the father shall ensure that the children attend said activity or sporting event.

6. That neither party will denigrate the other in the presence of the children.

7. That the father shall have phone contact with the children on each alternate Friday (when the children are not in his care) at 6.00pm.

8. That the parent who has either child on that child's birthday shall facilitate a phone call to the other parent by the child at 5:00pm if there is no other contact scheduled for that parent on that day/night.

9. The children's personal belongings, including but not limited to clothing and school items, will travel with the children at changeover, and each party shall do all things necessary to facilitate the children packing and transporting their personal items to each household.  

Property Orders

1. These Orders are made by way of alteration of property interests pursuant to Section 79 of the Family Law Act 1975.

O Street, Suburb P Property

1. That the Husband forthwith do all things and sign all documents necessary to cause the property situate at and known as O Street, Suburb P, being the whole of the land contained in folio identifier ("the O Street, Suburb P Property"), to be sold by private treaty or public auction at the earliest possible date at a sale price or reserve price to be agreed upon between the parties and failing such agreement at a sale price or reserve price to be determined by the President of the Real Estate Institute of New South Wales (or any successor of it) or his/her nominee and to disburse the proceeds of the said sale in the following manner and priority:

   (a)Payment of agent's commission and advertising expenses and legal expenses of the sale.

   (b)Payment of costs incurred, if any, in relation to determination of value or selling price by the President of the Real Estate Institute of New South Wales or his/her nominee.

   (c)       Payment of all other outstanding rates and levies owed on the Property;

   (d)The balance then remaining to be divided 55% to the Wife and 45% to the Husband.

Funds Held in Controlled Monies

1. That the Funds held in controlled monies account by the Wife's Solicitor be divided as follows:

   (a)       55% to the Wife

   (b)       45% to the Husband

Superannuation

1. That:

   (a)the Court allocates, as required by Section 90XT(4) of the Family Law Act, a base amount of $20,000 to the Applicant Husband out of the Respondent Wife's interest in the AA Super Fund ("the Fund").

   (b) In accordance with Section 90XT(1)(a) of the Family Law Act, the Court:

   (i)creates an entitlement on the part of the Applicant Husband to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

   (ii)makes a corresponding reduction in the entitlement to the Respondent Wife, or such other person to whom a splittable payment may be made, would have had in the fund, but for these Orders.

   (c)whenever the Trustee of the fund makes a splittable payment out of the Respondent Wife's interest in the fund, the Trustee shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created in paragraph (b) of these Orders in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.

   (d)these Orders have effect from the operative time and the operative time is 4 dates after the date of service of this Order upon the trustee.

   (e)the Respondent Wife shall do all things necessary, including but not limited to, exercising her request pursuant to Regulation 7A.05 of the Superannuation Industry (Supervision) Regulations 1994 for the creation of a new interest in the Applicant Husband's name in the fund with the value of the transferable benefits calculated in accordance with Regulations 7A(11) of the Superannuation Industry (Supervision) Regulations 1994.

2. That the parties otherwise retain all property in their individual possession, name or control, inclusive of superannuation. 

3. That the parties otherwise be responsible for any debts held in their respective names.

4. That the parties shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed.

5. That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

6. That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

7. That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

8. That all outstanding applications are dismissed.