EASTON & EASTON - [2013] FMCAfam 105

FEDERAL MAGISTRATES COURT OF AUSTRALIA

EASTON & EASTON

[2013] FMCAfam 105

FAMILY LAW – Parenting – two good parents – equal time arrangement in place since separation in 2008 – mother has moved to Newcastle while father remains on the Central Coast – both parents agree that equal time cannot continue – exceptionally finely balanced matter – order that the children live with the mother in Newcastle.

Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA

AMS & AFS (1999) 199 CLR 160
MRR & GR (2010) 42 FamLR 531

Applicant:

MS EASTON

Respondent:

MR EASTON

File Number:

NCC 1891 of 2010

Judgment of:

Terry FM

Hearing dates:

22 & 23 January 2013

Date of Last Submission:

23 January 2013

Delivered at:

Newcastle

Delivered on:

24 January 2013

REPRESENTATION

Counsel for the Applicant:

Mr Davies

Solicitors for the Applicant:

Emery Partners

Counsel for the Respondent:

Ms Burns

Solicitors for the Respondent:

Nash Williams Wotton

ORDERS

Order amended pursuant to sub-rule 16.05(2)(e) of the Federal Magistrates Court Rules 2001

The parties shall have equal shared parental responsibility for the children [X] born [in] 2004 and [Y] born [in] 2006.
Each party shall be responsible for the making decisions about the day to day care, welfare and development of the children when the children are with them.
The children shall live with the mother.
The mother be permitted to enrol the children at [N] School or some other school agreed between the parents.
The children shall spend time with the father as follows:
(a)each alternate weekend during school terms from 5.00pm on Friday to 8.15am on Monday and if a long weekend to 8.15am on Tuesday;
(b)each alternate week during school terms from 5.00pm on Wednesday to 8.00am on Thursday;
(c)for the first 10 days during the holidays commencing at the conclusion of Terms 1, 2 and 3, from 5.00pm on the last day of term requiring school attendance to 5.00pm on the day 10 days hence;
(d)for one half of the Christmas school holidays ~~commencing at~~ being the first half in even years and the second half in odd years; and
(e)at such other times in addition to or in variation of the above times as the parties may agree in writing.
For the purposes of time pursuant to Order 5(b) the mother shall deliver the children to the father’s home at the commencement of the time and collect the children from the father’s home at the end of the time and otherwise changeovers between the parents shall take place at [R]. For the purpose of this Order, a party may nominate their respective partners or a family member to facilitate the changeover.
The father’s time with the children pursuant to order 5(b) shall occur in the weeks in which the mother does not work on a Wednesday but should the mother’s work arrangements change so that she commences to work every Wednesday the father shall still be entitled to time with the children commencing at 5.00pm each alternate Wednesday and the mother will be required to make alternate arrangements for the drop-off and collection of the children to and from the father’s home.
Unless otherwise specified school holidays are deemed to commence from the conclusion of school on the last day of the school term requiring student attendance at school until the commencement of school on the first day of the next school term requiring student attendance at school.
Unless otherwise specified the expiry of the first half and the commencement of the second half of the Christmas holidays is deemed to occur at 5.00pm on the day which is the mid-point between the time of commencement and the time of conclusion of the school holiday period with the intent that the children will spend time with the parties for the same number of nights unless there is an odd number of nights in which event the first half of the school holidays will have one night more than the second half.
Notwithstanding any other provision of these Orders;
(a)commencing in 2013 and each alternate year thereafter, the children will spend time with the mother between 5.00pm on Christmas Eve and 12 noon on Christmas Day and with the ~~mother~~ father between 12 noon on Christmas Day and 4.00pm on Boxing Day.
(b)commencing in 2014 and each alternate year thereafter, the children will spend time with the father between 5.00pm on Christmas Eve and 12 noon on Christmas Day and with the ~~father~~ mother between 12 noon on Christmas Day and ~~9.00am~~ 4.00pm on Boxing Day.
(c)the children shall spend time with the father on the Father’s Day weekend from 5.00pm on the Saturday and 8.15am on Monday.
(d)the children shall spend time with the mother on the Mother’s Day weekend from 5.00pm on the Saturday to 8.15am on Monday.
(e)if either child’s birthday occurs when the children are living with the mother then the children will spend time with the father on the child’s birthday at times to be agreed but failing agreement, between 4.00pm and 8.00pm.
(f)if either child’s birthday occurs when the children are living with the father then the children will spend time with the mother on the child’s birthday at times to be agreed but failing agreement, between 4.00pm and 8.00pm.
The children be at liberty to communicate by telephone with the parent with whom they are not living at all reasonable times and the parent with whom the children are living shall facilitate this by permitting the children to use that party’s landline and/or mobile telephone service.
The father and mother be at liberty to communicate by telephone at reasonable times with the children at times when the children are living with the other party and the party with whom the children are living shall facilitate this by permitting the children to use the party’s landline and/or mobile telephone service.
Each party shall do such things and sign such documents, instruments and writings necessary to authorise the school authorities, teachers or any other person having responsibility for the children’s school education or other curricular activity to communicate directly with each parent as if the parties had not separated and to record each parent as a person to be notified in cases of emergency and provide to each parent copies of school reports and other reported relevant to the children’s education and the execution of these Orders shall be deemed to be sufficient authority for the purpose of this Order.
Each party shall keep the other party informed as to all educational, cultural and sporting events in which the children are involved and provide to the other party in a timely manner, copies of all notices received from the school and details of all functions, parent and teacher nights and other school activities to which the parties are invited to attend on the children’s behalf.
Each party shall keep the other informed as to all medical, dental and other health related treatment being undertaken by the children and each party at all times be at liberty to communicate directly with the treating professionals without necessarily referring to the other.
Each party shall notify the other party in writing of any change of address or telephone number within 48 hours of such change.
Each party shall be entitled to attend all sporting and extra-curricular events and all school events at which parents or other members of the public are entitled to attend notwithstanding that the children are not living with spending time with them pursuant to these Orders at that time.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT NEWCASTLE

NCC 1891 of 2010

MS EASTON

Applicant

And

MR EASTON

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
I have before me a parenting dispute concerning children aged 8 & 6. The parties have been sharing the care of the children week about for years. That worked well while they were both living on the Central Coast, but the mother has moved to Newcastle which is one hour’s driving distance away and the parents agree that equal time cannot continue.
Not surprisingly, given that neither of them wants to relinquish their role in the children’s lives, they cannot agree about what is to happen in the future.
The mother’s proposal is that the children should live with her in Newcastle and spend time with the father during school terms on alternate weekends from Friday to Monday and for one overnight in the off week. She also proposes that they spend time with him during the school holidays, including in excess of half during the three shorter school holidays.
The father’s proposal is that the children should live with him on the Central Coast and spend time with the mother during school terms from Friday to Sunday each alternate weekend.
The father’s counsel indicated during submissions that the father would also be agreeable to the children spending time with the mother for one overnight in the off week.
I am not critical of the father for proposing a return on Sunday. I can accept that it was his belief that this was essential in order to ensure that the children got to school on time on Mondays.
The father proposed that the children spend half of the school holidays with the mother and also additional time on the Central Coast during school terms if the mother came down to the Central Coast.
In her orders sought the mother proposed that changeovers occur at [R], which I am told is about halfway between [N] and [U], and the father also favours this location. However in her affidavit the mother proposed that for the overnight time in the off week she would take the children to the father’s home and collect them from there at the end of the time.
The parties agree that they should have equal shared parental responsibility for the children.
As I said to the parents yesterday at the end of submissions, this is a very difficult case because they are both good parents. I was impressed with them both and I want them to understand that from the beginning, because as I also said yesterday one of them is going to be very disappointed with the outcome.
The parents have worked hard since separation to give their children a good upbringing and I congratulate them on that. The children are also very fortunate in that they are surrounded by a loving extended family and when I say surrounded I mean that in a more general sense than just in having them in physical proximity. The children are lucky to be part of a very loving extended family and that love is extended to the children not only by the family members who live on the Central Coast but also by those of the mother’s family who do not.
They are fortunate children, but I cannot continue what would be the ideal arrangement for them, that is the equal time arrangement. I cannot do that because the mother’s circumstances have taken her away from the Central Coast and I therefore have to make a heartbreakingly difficult decision about where the children should live.

The Evidence

The mother relied on her Initiating Application filed on 4 April 2012, her Affidavit filed 20 December 2012 and the Affidavit of her husband Mr G filed 28 August 2012.
The father relied on his Response filed 23 May 2012, his affidavit filed 21 December 2012 and the Affidavit of his partner Ms A filed 21 December 2012.
A family report was prepared by Mr P, a Regulation 7 Family Consultant.
All of the witnesses were cross-examined.

Background

The parents commenced cohabitation in 1999 and married in 2001. They have two children, [X], who was born [in] 2004, and [Y], or [Y], but I think I will stick with [Y] for these reasons, who was born [in] 2006.
The father has a son, [Z], from a previous relationship. He is now 18. He was about five when the parties commenced living together and it would appear that he lived with his mother and spent alternate weekends with the father.
The parties lived on the Central Coast throughout their relationship, and the father was a [occupation omitted] throughout. There is a little bit of conflict in the evidence about what the mother was doing right at the beginning. The father said one thing and Mr P something else but nothing really turns on that. The important thing is that in August 2002 the mother commenced working as a [omitted], first at [omitted] and later at [omitted] where she remains. She is a [occupation omitted].
The fact that the mother worked in Newcastle required her to do a bit of travelling to get to and from work, but there was no evidence that this ever posed a difficulty for her.
In January 2008 when [X] was 3 ½ and [Y] about 17 months the parties agreed on a trial separation. They agreed that the children would remain in the home and the parents would live in the home in alternate weeks and alternate the care for the children, although I accept the mother’s evidence that she did a bit more than that, she did something extra, and in the father’s week she would come in the morning and afternoon to care for the children while the father was at work.
In June 2008 the parties agreed on a final separation and the mother rented accommodation at [T]. The father remained in the home and they continued to share the care of the children roughly week about. The father moved to rented accommodation in [U] after the home was sold and the parties thus remained very close to each other and were able to continue to share the care of the children.
There was a little bit of dispute about exactly what the arrangements for the children were in the early years. I am not going to try to descend into detail. I accept that the mother continued to do a bit extra, had some extra time with the children in the early years, but since November 2011 the arrangement has been week about from Monday afternoon to the next Monday afternoon.
The mother continued to work in Newcastle after separation and in 2008 she met Mr G who lived and worked in Newcastle and she formed a relationship with him. The relationship ended but then resumed in late 2009 after Mr G’s former wife died. Her death was tragic. She committed suicide. As a result of her death Mr G’s two children, [A] and [B] lived thereafter with him. [A] was born in 2003, so he is 9 now, 10 in [omitted], and [B] is 8.
Despite the mother’s relationship with Mr G, [X] and [Y]’s life continued to be on the Central Coast. [X] started school at [O] in 2009 and the children were enrolled in swimming lessons and other extracurricular activities on the Central Coast. Their life was there and the mother accommodated this by keeping her rental accommodation in [T].
Early in 2011 the mother raised with the father her wish to have the children live with her in Newcastle. Unsurprisingly, the father indicated his vehement opposition to this. The parties attended mediation but no agreement was reached and at that stage the mother did nothing further.
In December 2011 however the mother gave up her rental property in [T] and commenced living full time with Mr G at his home in [N]. She continued to take the children to school and to their activities on the Central Coast. To make this manageable on some week nights she stayed at her mother’s home on the Central Coast but on occasions she took the children back to [N] for the night and then drove them down to school early the next morning.
The children told Mr P that they found it very hard living in three homes and the mother herself recognised that this could not continue. In April 2012 she filed an application for parenting orders with a view to getting an order that would enable her to live in Newcastle with the children. The father filed a response seeking that the children live with him on the Central Coast.

The children

This case is about the children so I am going to start by briefly discussing them. [X] is due to start year 3 this year. To date she has attended [O] at [S]. [Y] did kindy at this school in 2012 and he should be in year 1 this year.
Both children have played sport or done extracurricular activities extensively on the Central Coast. [Y] has been involved in soccer and Nippers and also rugby league. The children do swimming classes on the Central Coast. [X] has done other activities such as gymnastics, although she did not like that and it did not continue, but the children have had an active life on the Central Coast in terms of their sport and extracurricular activities.
The mother has engaged [X] in some extracurricular activities in the Newcastle area.
The children are obviously delightful children. They do not have any health problems and they do not have any behavioural problems. They are just normal – and I say ordinary, advisedly – ordinary, happy, well developing children.

The mother’s circumstances and proposals for the future

The mother is 38. She is a [occupation omitted] and she works 42 hours per fortnight and has two whole days off in one week and three whole days off in the other. Some of the mother’s days on however involve her working past normal working hours.
The mother married Mr G in 2012. He is a [occupation omitted] and he generally works day time hours. There is the potential for him to be called out to work at other times, but he gave fairly convincing evidence that that was not something that was likely to happen very often.
Mr G’s children [A] and [B] live with Mr G and the mother in [N]. They lost their mother in tragic circumstances as referred to earlier and then more recently they lost their maternal grandmother to cancer which must have compounded their sense of loss even if they were not close to her, because it was another example of an adult disappearing permanently from their lives.
There is reference in the counselling notes which were tendered to [A] having some anger issues and [B] having some anxiety issues. However Mr G gave some very convincing evidence that the children were not suffering from any major behavioural problems or adjustment difficulties. They also sounded to me to be pretty normal and again I use the word “ordinary” advisedly but ordinary children when I heard Mr G describing them.
Mr G and since she has been with him the mother have handled [A] and [B]’s difficulties very appropriately and have ensured their engagement at counselling.
I accept unreservedly that the mother and Mr G could not easily solve the current problem by relocating to the Central Coast. If it were only their jobs that might be possible but [A] and [B]’s situation make such a move problematic. Imposing a further change on them would not be desirable and there is also the fact that Mr G has a home in [N].
If the children lived with the mother she would enrol them at [N] School which is the school [A] and [B] attend. [X] and [B] would be in the same grade.
The mother does not have any family in Newcastle. She said that her mother was planning to move there, but her mother did not give evidence in the proceedings and I cannot make any findings one way or the other about the likelihood of that occurring.
The mother has siblings who do not live on the Central Coast. One is in China and one in Brisbane from memory, but the maternal grandfather and at present the maternal grandmother are located on the Central Coast.

The father’s current circumstances and future proposals

The father is 42 and is self-employed; he is a partner in a [omitted] business. The father has employees including apprentices. He is able to tailor his working hours when the children are with him so that he can be available to drop them off to school and pick them up from school and look after them after school.

The father was not asked about whether he would be able to continue to do this if he had the children all the time instead of each alternate week, but I have no reason to believe, given his history, that he would not make every effort to extend that availability to the extra week.
The father’s home is very close to the children’s school and the children have many extended family members on the Central Coast. The paternal grandparents live at [omitted] and the father has a sister and brother on the Central Coast and there are cousins.
The father re-partnered with Ms A in 2011 after knowing her for about 12 months and in October 2011 he and Ms A purchased a home at [U].
Ms A is also a [occupation omitted]. She works 10 hour shifts, but they are rotating shifts and she has more than the normal number of days off.
Ms A has two children, [C], who was born [in] 2002 and [D], who was born [in] 2005. They live with Ms A each alternate week. Their father lives at [omitted] on the Central Coast and he has the children in the other week.
The father proposes that the children continue to attend their current schools and continue to be involved in their current extracurricular activities and I have set out at the beginning of the judgment his proposal about them spending time with the mother.
I accept that the father could not solve this problem by moving to Newcastle. He has a long-established [omitted] business on the Central Coast and has business contacts and employees there. He owns a home there and his partner works there and shares the care of her children with a man who also lives on the Central Coast.

The children’s best interests

Any orders I make about [X] and [Y] must to be orders determined by treating their best interests as the paramount consideration, although in relocation cases in particular, and I will touch on this again later, the best interests of the children are not the only consideration.
Ss.60CC(2) and (3) of the Family Law Act as it stood prior to the amendments on 7 June 2012 contain the matters to which I must have regard in order to determine the children’s best interests.
The primary considerations in s.60CC(2) are:
i)the benefit to the children of having a meaningful relationship with both of the children’s parents; and
ii)the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
[X] and [Y] have a meaningful relationship with each of their parents at present. They love and are loved by them. They are very well looked after by them. They are nurtured and guided by them. They already have a meaningful relationship with both their parents and they will continue to do so even if they live primarily with one parent and see something less of the other in the future.
The parents are both good parents. They have a firm existing bond with the children. They are not going to lose that, so this consideration does not help me to determine the matter one way or the other.
There are also no protective concerns in this case. Neither parent has ever abused or neglected the children or is likely to do so in the future.
I will deal a little bit later on with the mother’s allegation that there was some family violence during the relationship, but there was absolutely nothing to suggest that there was any family violence in the parents’ current relationships or any likelihood that these children would be exposed to family violence in the separate care of either parent in the future, so the second primary consideration does not help me to resolve the matter either.
The first of the additional considerations in s.60CC(3) is any views expressed by the children and any factors such as the children’s maturity and level of understanding that the court thinks is relevant to the weight it should give to the children’s views.
Parents in cases like this often tell me what they think the children want but I can very rarely place any weight on that sort of evidence. Children are quite prone to say things that parents want to hear. Parents are quite prone to tell me just a little bit of what the children have said being the bit they want me to know about, and leave out the rest.
I usually have to look to see whether there is any independent evidence of the children’s views. Often there is independent evidence from the family consultant who prepares the family report, but in this particular case the family consultant did not elicit any strong views from the children.
The only strong view [X] expressed was that she said:
I would like mum and dad to agree on something like about moving houses.
[Y] said something a little more pointed in one direction. When he was asked if he had a magic wand what he would change about his situation he replied:
Make dad come up here to Newcastle. Better here than down the coast.
[Y] also commented that there were too many girls at Dad’s house.
Given [Y]’s age though and his lack of life experience and his inability to really understand what it would be like if he lived in Newcastle apart from his father, I cannot place any great weight on that and Mr P did not either.
The father gave evidence that [X], and he thought [Y], had said that they did not want to change schools. I accept the children might have said that to him. I expect the children might at various times not want to change schools. That is not unusual for children. I cannot place any weight on that kind of comment however because the children do not have the maturity to understand what making that sort of a decision in isolation means, what it means in terms of where they live and how much time they spend with the other parent. If they understood all of those things they might have a different view about what school they should attend, so I cannot place weight on that either.
There is nothing in the children’s views which greatly assists me, although for reasons I will give later in the judgment there is a slight rider on that, but I will not go into that just at the moment.
The next additional consideration is the nature of the children’s relationship with each of their parents and any other relevant people including grandparents of the child.
The children have a good relationship with both of their parents and they love and are loved by their extended family on both sides.
The children have been able to forge a positive bond with step siblings on both sides and they have a good relationship with both of the persons with whom their parents have re-partnered, and I cannot tell you how rare that is. Usually there is some little problem coming in there from some direction, but that has not happened for these children.
During cross-examination the mother’s counsel was critical of the father for not having brought his partner’s children [C] and [D] to the family report interviews with Mr P, with the result that I do not have any independent evidence about the children’s relationship with [C] and [D]. However there was nothing in the material generally to suggest that those relationships were a problem.
I take into account that [X] told Mr P that it was sometimes easier to be with Mr G’s children than Ms A’s children, although there was no exploration of this by Mr P.
The father has a good relationship with his son [Z] who is now 18. That is to his credit and it is of benefit to the children because they will be able to forge a relationship with their brother, though he is a good deal older than the children and is now off pursuing a life of his own.
There is nothing in the information about the nature of the relationship of the children with their parents or any other persons that is going to greatly assist me to resolve the matter either, although for reasons given later there may be a slight rider to that.
I must have regard to the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
The parents have not had a particularly good relationship in the last 12 months; there has been a little bit of conflict between them, a little bit of regrettable communication on both sides. However they have been under the strain of this litigation which is pretty awful and what I have to take into account is the bigger picture, namely that they have been able to successfully share the care of the children for more than four years.
To his credit the father acknowledged in his affidavit that the mother was a great mother to the children and he acknowledged that the children loved her. He was very positive in his affidavit about the mother having a continuing relationship with the children. He did not denigrate the mother and he made complimentary remarks about her.
Of course it is possible for people to stage manage their affidavits and a couple of the emails or text messages which were in evidence and which emanated from the father show that his responses to the mother on occasions have not always been all sweetness and light, but that really comes back to communication difficulties. There was no evidence that the father denigrated the mother to the children or had ever sought to undermine their relationship with her.
In his case outline the mother’s counsel suggested that the father had progressively sought to reduce the mother’s time with the children after separation. I do not accept that this is a correct spin to put on what happened. The alternative way of putting it is that the father sought to adjust the time to something closer to exactly equal time as the children got older and that he did this because he thought it would benefit the children.
The evidence suggested that Ms A had a positive view of the importance of the mother’s relationship with the children. It was not suggested to her during cross-examination that this was anything other than her genuine view.
Ms A gets on well with her own ex-partner and his new partner and her child. She has been positive and inclusive in her actions in relation to [X] and [Y]. There was nothing to suggest that she would be a malign influence in the father’s household which might operate to undermine the children’s relationship with the mother if the children live primarily with the father.
Ms A and the mother’s counsel had a somewhat acrimonious exchange concerning Ms A decision to question the children about the counselling issue, but I am not convinced that this means I should be concerned about Ms A attitude generally.
The mother did not have anything positive to say about the father in her affidavit. She was quite critical of him, and it is clear that she engaged in some confrontational behaviour toward him and Ms A during 2012 and there was a very unfortunate incident between the mother and

Ms A.
However the litigation must have been very stressful and worrying for the parties and people are not always on their best behaviour when they are under stress. The father indicated that the mother had made a concerted effort in the last couple of months to pull back from what had been happening and improve her relationship with Ms A, and that is to her credit.
There was nothing in the material to suggest that the mother had ever denigrated the father to be children or sought to undermine his relationship with them.
I was very impressed with Mr G as the mother’s counsel rightly supposed, although I do note that I did give him a chance to shine by asking him for information about his children and I did not give Ms A a similar opportunity. Mr G and the father are not hostile to each other and there is the basis for a good working relationship between them. There was nothing to suggest that Mr G’s presence in the mother’s home or the children’s home was likely to be a malign influence which might work to undermine the children’s relationship with the father.
I consider that each parent has the willingness and ability to facilitate and encourage a close and continuing relationship between the children and the other parent and that there is nothing in their partner’s behaviour or attitude which is likely to undermine the children’s relationship with the other parent.
I must have regard of the likely effect of any change in the children’s circumstances including the likely effect of separation of the children from either of their parents or any other child or person including any grandparent or relative of the child with whom the child has been living.
The children are inevitably going to see less of one parent after the orders I make today. One parent will have less involvement with their extra curricular activities and their homework. The parent’s residences are an hour’s drive apart so there is going to be an inevitable change for the children in terms of their day to day care and there is nothing I can do about that.
The father gave evidence about his extensive involvement with the children in the morning and after school and about the activities he did with them such as walks and bikes and scooter rides and walking the dogs, and if the children live with the mother in Newcastle they are not going to be able to do those things as frequently.
And inevitably if the children live with the father on the Central Coast they are going to miss out on doing certain things with the mother in the afternoon.
If the children move to Newcastle it will very likely be impossible for them to continue to do their extra-curricular activities and sport on the Central Coast. I have heard of occasions when sporting teams have let children in separated families play for the team each alternate week. I do not know whether any of the teams the children are currently involved with would do that but there is also the problem of training so it does become very difficult for children if they are living in diverse locations to keep up extra curricular activities and team sports in both locations.
[Y] if he moves to Newcastle may have to start playing soccer or football up here. If he does that he is going to lose possibly, although not necessarily inevitably, the situation of having his father as a coach for his team.
There will be losses for the children no matter what I do. I cannot prevent that, and change is a part of life. Children can adapt, and no matter what I do they will have to adapt to seeing one of their parents less frequently than they do at present.
On the face of it they will have more adapting to do if they move to Newcastle because they will need to start a new school and make new friends and engage in new sporting teams and other extra curricular activities. They will also see somewhat less of some of the relatives they see at the moment, but the children are familiar with Mr G’s home. They have known [A] and [B] for years. It is not as if they would be moving to somewhere that they did not know at all.
They will have [A] and [B] at their school and if the mother is capable of helping them to adapt to a change then the children ought to adapt very well.
The children are going to face a change and it is difficult for me to pick out one particular change and say that it is likely to be more detrimental than another change.
If the children remain on the Central Coast with the father they will see less of the mother. If they move to Newcastle with the mother they will see less of the father. I would hope that both of these excellent parents could help the children adapt to whatever the change might be and that neither change in the long term would be detrimental to the children.
The father’s counsel submitted that the benefit of the children living primarily with the father would be that they would have a parent to themselves one week out of two. That is certainly factually correct, but there was no evidence that these children have a problem sharing with any of their step-siblings or desperately need that one on one time, so I do not consider that this submission really takes me anywhere.
The change for the children whatever it might be will certainly work best if the parents have a good relationship and are able to communicate with each other a little better than they have been able to do over the last 12 months. If they cannot do that then there is likely to be tension and difficulty for the children no matter what order I make.
The fault has not all been on one side when it comes to communication difficulties over the last twelve months.
The mother did not tell the father about taking [Y] to the dentist, the children told him. The mother told rather than asked the father about enrolling [X] in ice skating, and she struggled to see what the difficulty was with that when she was asked about it in cross-examination.
Those things do not reflect well on the mother in terms of communication and for the children’s sake the mother is going to have to do better in the future no matter where the children live, but the father also has had some failings in communication.
One of those was in relation to his cooperation in the process of [X]’s confirmation and his response to the mother’s request for the children’s passports when she wanted them in order to travel to Fiji does not stand the father in a very good light either.
Both parents will have to look at how they communicate with the other parent in the future if the change which must occur is going to work well for the children.
I must have regard to the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty and expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
[N] and [U] are 60 minutes driving distance apart. It is pretty well impossible for the children to live in one location and attend school in the other. The father could not manage it with his work if the children lived in [N] and went to school there. The mother has attempted it but the children did not like it and the mother knows that it cannot continue.
The distance the parties will be living apart in the future means that the equal time cannot continue, but I also bear in mind as I indicated during submissions that we are only talking about the parents living an hour apart. The hour apart makes equal time impracticable because the children are at school, but the parent with whom the children do not primarily live can still visit the children’s school regularly. They can still attend sporting events. The grandparents and extended family can still visit the school and attend sporting events as well.
I take into account that the paternal grandmother does not drive but there was no evidence either that she attended events without the paternal grandfather.
I must take into account the capacity of each of the children’s parents and any other person to provide for the needs of the children including their emotional and intellectual needs.
Both parents are very capable parents. The children have a wide network of friends. They have blended in well with their step-siblings. They are obviously lovely well brought up children and both parents get credit for that. I can trust that they will both continue to capably parent the children in the future.
In terms of availability to care for the children the mother has worked part time throughout the children’s lives and she has chosen to do this to maximise her availability for the children. I accept her evidence about the opportunities she has taken to go to the children’s school and I would trust that she would continue to do that in the future even if the children continued to live on the Central Coast.
The mother has a supportive partner. She is well able to provide for the children now and in the future no matter where they might live.
There was no compelling evidence that the children were likely to have difficulty living full time in the mother’s home with [A] and [B] because of those children’s difficulties. In fact a little snippet, a little window into that situation is in exhibit A where Ms C reported seeing all four children together. She commented that on their great interaction. She said as follows in a note from 6 July 2012:
[A] patting [Y] and very caring. [X] and [B] snuggled on the lounge. [X] and [Y] wanted to know why [B] and [A] came to see me. Explained they sometimes get sad or even angry about stuff and I was someone they could talk to. Delightful quartet, could have chatted for hours. However other clients waiting.

The mother suffers from depression but she takes medication and has counselling. There was no evidence that the mother’s depression had ever impacted adversely on her parenting or her employment. The father’s counsel submitted that it raised a concern about whether the mother would cope with parenting four children on a full time basis, but there was simply no evidence which would allow me to make such a finding.
The one slight deficit in the mother’s affidavit material and her evidence generally was she did not acknowledge the loss the children were likely to experience as a result of a substantial reduction in their time with their father, and that may indicate some blunting of the mother’s capacity to provide for the children’s emotional needs.
Turning to the father he works more than the mother but he has employees and he has tailored his working time in alternate weeks to meet his child care responsibilities. It was not suggested to him that it would be impossible for him to do this if he had the children all the time instead of each alternate week.
The father also has a supportive partner and the evidence suggests that the children get on well with their step-siblings in the father’s home.
The father, to his credit, has booked into a parenting after separation course and also to his credit was able to acknowledge in his affidavit that the children would find it difficult if their time with their mother was cut back. The father was also thoughtful in his affidavit about things he could do to make it a little bit easier for the children if the outcome of the proceedings was that they lived primarily with him and saw less of the mother.
The mother’s counsel submitted that the fact that the father told Mr P he would be devastated by an outcome that the children lived in Newcastle meant that he was self-focused and lacked child focus. I do not accept that submission. I do not consider that this is a reason to criticise the father. It is a perfectly natural way for someone to feel.
The father gave quite impressive evidence about how he would react if the court made an order that the children live with the mother in Newcastle. He said
I would have to adapt to the decision. I would have the kids with me for holidays and family days. I would tell them if they had to move that I would still be a big part of their lives.
That is to the father’s credit.
The mother suggested in her material that the father had a problem with alcohol. The father denied it. He said that he had a drink driving conviction when he was 17 or 18, when he had just got off his Ps and that he did a course and got his licence back. There was simply no evidence which would support a finding that the father had a problem with alcohol.
I must have regard to the children’s maturity, sex, lifestyle and background but there is nothing in that consideration that I have not already taken into account elsewhere in this judgment.
I must have regard to the attitude of each parent to the children and the responsibilities of parenthood.
In most respects both parents shine in that regard. They have both stepped up to their responsibilities as parents from the time the children were born, and since they separated they have both been there for their children. That shows a very good attitude to the children and to the responsibilities of parenthood.
The mother was critical of the father in regard to payment of child support but the mother’s own evidence was that the parties had a private agreement up to a certain point. There was no evidence that the father owed arrears of child support for which the Child Support Agency were chasing him and I cannot make any adverse findings against the father in respect of his attitude as a result of the child support issue.
The father’s counsel submitted that the mother’s decision to relocate reflected poorly on her attitude to the children and the responsibilities of parenthood, but I do not accept this.
As I have remarked in other matters it is frequently the case that one parent is easily able to remain in the location in which the parties were living when they separated but the other parent finds it much more difficult to do so, because of problems for example with accommodation or relationship or a job. I do not consider that a parent’s desire to relocate automatically reflects poorly on a parent.
This issue was addressed by Kirby J in the old and seminal case of AMS & AFS[1] and he basically said that a happy parent, a parent who was able to financially provide for their children and a parent who was not made bitter by being unable to pursue a new relationship was a parent who was valuable to a child.
[1] AMS & AFS (1999) 199 CLR 160
The father is very fortunate because his employment is on the Central Coast and always has been. He has been able to find his happiness and his financial security and his new relationship on the Central Coast and it is easy for him to be there.
The mother has not been similarly fortunate. Her job has always been Newcastle. She has formed a new relationship in Newcastle, probably not surprisingly, and she cannot be criticised for that. I do not consider that the mother should be criticised for wanting to move, for wanting to pursue her own happiness, her new relationship. It leaves me though in the invidious position of having to make a decision about where children should live and make a decision about a choice between two good parents.
I must have regard to any family violence involving the children or a member of the children’s family.
The mother alleged that during the relationship the father pushed her a couple of times. She did not give any exact time for when this was supposed to have occurred or give any context for what she alleged occurred. In those circumstances even if I could find that the pushes occurred I might struggle to know what to do with the allegations.
The father denied that he had pushed the mother and his counsel submitted that the fact that the mother had never sought police assistance or applied for an ADVO suggested that the evidence was fabricated. I do not accept that.
Many victims of family violence never make complaints to the police or apply for ADVOs or seek medical assistance or even tell their family and friends what has happened. Sometimes those people also make unprotective post-separation decisions about their children.
A variety of things cause that: shame and embarrassment or a misplaced sense of responsibility for what has happened are only two of them. Shame and fear of the consequences can also cause people who have acted violently occasionally but who do not see themselves as being generally violent to robustly deny what has occurred.
It can never be assumed that because a person has not gone to the police or sought medical assistance or told anyone about what has happened that they are making false allegations about family violence.
The mother did not embellish her evidence about violence, she just mentioned a couple of incidents at the less serious end of the scale, making it less likely that she simply invented the allegations for the purpose of the proceedings.
Nevertheless it would be unsafe for me to find that any family violence occurred. The father denied it and he was a good witness. He did not prevaricate or bluster. He frankly admitted he did not know what equal shared parental responsibility meant. He made some admissions against interest, for example that he was motivated partly by irritation with the mother in delaying giving her the passports for the trip to Fiji. He was not caught out in any inconsistencies or inaccuracies in his affidavit and I have no reason to prefer the mother’s evidence generally to his.
I cannot be satisfied on the balance of probabilities that what the mother alleges occurred and even if I could given the lack of context I could not do anything with the allegations.
There was no evidence of any pervasive or coercive and controlling family violence in the relationship between the parents and no evidence that the father was a violent person generally. He has been nothing but a loving and caring father to his children and they are at no risk of violence from him and there was no evidence that there was violence in his current relationship.
There has never been a family violence order between the mother and the father or between either of the parents or any other person involved in these proceedings.
I must consider whether it is preferable to make the order which is least likely to lead to the institution of further proceedings
These parents have come before the court only because of the change in the mother’s circumstances and there is a good chance that they will not need to come before the court again unless there is some further change in their life, a significant change for example in regard to relationships. No orders I make can protect against that happening and absent that sort of change there is very good reason to believe that the order I make today will mean that the parents do not need to come back to court again no matter what that order is.
I must consider any other fact or circumstance which the court considers relevant.
Something which struck me as I was going through the evidence and preparing these reasons was that if you consider the bigger picture what emerges is that the mother is quite a conciliatory person and that there may well be in general terms a bit of a power imbalance between these parents.
The mother agreed to equal time in 2008 even though the children were really too young for that and even though she had been their primary carer and was better placed than the father to care for them at that time.
The mother has not insisted on the payment of child support over the years although she would have been quite entitled to do so, and she tried for a long time to make the equal time arrangement work for the children even after she dearly wanted to move up to Newcastle to live with Mr G.
That has a couple of implications. It suggests that the mother has a propensity to give in and not face up to possible negative consequences of making decisions which need to be made and it also suggests a power imbalance so that if the father insists on a certain thing the mother has a tendency to go along with it.
For reasons I will give later on I consider that this has some relevance to the decision that I make, but I will come back to that because before I come to the conclusion I just need to touch briefly on the family report.

The Family Report

Mr P prepared a family report and it is very clear that he recognised what a difficult case this was.
Mr P made only a very tentative recommendation and he based it on a reason which I consider – and I do not blame Mr P for this - but I consider from my perspective to be unsound. I therefore cannot place weight on Mr P’s recommendation and Mr P himself put it forward in any event as a most tentative recommendation.

Parental Responsibility

There is a presumption in the Family Law Act that it is in children’s best interests that parents have equal shared parental responsibility for them, absent a finding that one of the parents or a person living with one of the parents has engaged in abuse of the children or family violence. The presumption can be rebutted by evidence that such an order would not be in the children’s best interests.
I cannot make findings that violence has occurred and clearly an order for equal shared parental responsibility would be in the children’s best interests.
The parents have been able to agree about major long-term matters concerning the children in the past, the father was quite right about that. They agreed on the school the children should attend. They have agreed about the issue of passports and about overseas travel. They have shown a capacity to reach agreement about major long-term matters in the past and I am sure they will be able to do so again in the future. They both seek an order for equal shared parental responsibility and that is the order I am going to make.

Conclusion

Because I am going to make an order for equal shared parental responsibility I am required by s.65DAA of the Family Law Act to consider whether it is in the best interests of the children and reasonably practicable to make an order for equal time and if so to consider making an order of that kind.
I have absolutely no doubt that an order for equal time would be in the children’s best interests. They have two loving and capable parents. They are used to living in an equal time arrangement. They are thriving in it and they do not have a preference for one parent over the other.
Each parent can offer the children something good but a little bit different and it will be a serious loss for the children if their time with one of the parents is diminished.
If it were possible to do so I would order equal time without a moment’s hesitation, but as the High Court said in MRR & GR:
Section 65DAA(1) of the Family Law Act is expressed in imperative terms. It obliges the Court to consider both the question of whether it is in the best interests of the child to spend equal time with each of the parents and the question of whether it is reasonably practicable that the child spend equal time with each of them. It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.[2]
[2] MRR & GR (2010) 42 Fam LR 531
The High Court went on to say that:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time with each parent.
S.65DAA(5) of the Act sets out the things which I must consider in order to determine whether equal time is reasonably practicable, and I can shortcut that in this particular case because the parents agree that given the driving distance between the parents homes and the fact that the children attend school it is impracticable to implement equal time, and equal time therefore is not reasonably practicable.
I am also required to consider whether substantial and significant time is in the children’s best interests and reasonably practicable. I do not consider that this is reasonably practicable either. I do not consider that the proposal even that the mother put forward results in substantial and significant time. It certainly gives a little bit of time of weekdays but it is not substantial time in terms of being considerable in quantity.
I am going to have to make an order that the children live primarily with one of their parents and the parents accept and understand that that is what I will have to do.
I want to say to the parents that this is one of the most difficult cases that I have had to decide in many a long year and I do not say that lightly. Many cases are finely balanced, but usually there is something which stands out as tipping the matter clearly in one direction or the other, something which clearly differentiates one proposal from the other and makes it easy, or relatively easy, for me – although I am often sad to have to make some decisions – makes it relatively easy for me to make a decision.
This case is exceptionally difficult. It has been very hard for me to find something which differentiates one proposal from the other. And yet I must do so because the mother has a good reason for being where she is and the father has a good reason for not being able to join her and a decision has to be made.
The father offers the children are home in the area where they have always lived, among their family on both sides, and with the opportunity to continue to attend the school they have always attended.
The father is not perfect. He has not always responded to the mother as civilly or reasonably as he should have. The passport issue, as I have said, and the arrangements for the care of the children when he went to Bali are examples of this.
However he has shared the care of [X] and [Y] with the mother for five years now, and the children are travelling very well. They are doing well at school. They are valued by their wider family. They do not have behavioural problems. They get on well with new partners and new sets of children. The children are attached to the father and they do not favour the mother over him, and I cannot fault his attitude to the duties of parenthood. It is to his credit that he said a number of times that the children loved their mother and that he knew that they would miss her if they remained with him while the mother lived in Newcastle.
The father offers the children many good things, but so does the mother. Certainly she proposes a change to Newcastle, but children are adaptable and can cope with change. Sometimes it is in fact good for children to understand that change is part of life and that change can be adapted to. The children are familiar with their stepfather’s home in [N]. They get on well with his children who they have known for several years, and if [X] changes school she will be going to the same school as her stepsister which would help her to adjust.
If the children live in Newcastle they will cease to be in close proximity to a number of their relatives on the Central Coast but they will not be disappearing off the planet, they will be going an hour down the road. They can still have plenty of contact with extended family. Extended family can come to Newcastle to see them. They are friendly and well-liked children. They should be able to adapt to a change of school and neighbourhood.
The mother is not perfect either. Her treatment of Ms A during 2012 was ill-judged and some of her responses to the father in the past have been ill-judged, for example her dismissive response to his concerns about the children seeing [A] and [B]’s counsellor. I can understand why the father was concerned about the idea that this might have happened and his query about it deserved a better response.
However the mother is also a capable and devoted parent generally and she is the other half of the reason why [X] and [Y] are such well-liked and well-adjusted children. The mother was more critical of the father than he was of her, and she did not openly state that the children would miss him or have some difficulties if her proposal was acceded to, but she did try for a very long time to avoid bringing this matter to Court, tried to make things work with the children down the coast, and I would also be happy enough to put the children with the mother. I consider they would do very well with her.
The children are going experience loss no matter what I do. I have got two good parents and two good alternative proposals.
Mr P used the fact that the mother wanted to move as the tie-breaker, but I cannot do that. That would be the wrong thing for me to do, so I have got to find some way to make a decision about what I should do in relation to these children.
The father promoted the idea that the children should live with him, and he promoted the fact that this would mean that they would have stability of home and school, even if they lost the regular time with the mother they are having at the moment.
There is merit in that, but for three reasons, and they are pretty slender reasons, I consider that on balance the preferable outcome for the children is that I accede to the mother’s proposal, and I will explain what those reasons are.
I indicated before that I believed the evidence indicated there was a power imbalance between the parents, and in my view the mother needs some power in her corner if she is not to look ineffectual in the children’s eyes and perhaps lose their respect as they get older, to their detriment. I am convinced on the other hand that the father will robustly ensure that he maintains a role in the children’s lives.
The second reason that tips the matter ever so slightly in the mother’s favour is that such indications of preference as the children did give to Mr P were all in line with the acceptance by them of a move to Newcastle, and they spoke slightly more favourably about their relationship with [A] and [B]. These are slight things I stress, but I have got to find slight things in an impossibly finely balanced case.

The third issue is that the mother is working part-time. She has two whole days off in one week and three in the other, and she has traditionally been the parent who has gone the extra mile with the children. She went round to the home to look after them while the father was at work when they were extremely young and the shared care arrangement first came into effect. She has put in some extra time at the children’s school. That gives me that just tiny bit of extra confidence that she will help them to adjust to the change in their circumstances.
It has been heartbreakingly difficult decision to make, but a decision has to be made, and I am going to order that the children live with the mother in Newcastle.
I understand that this will be intensely disappointing for the father, and it always makes me sad to have to make orders which disappoint a parent, but I must in the end do what I consider to be in the best interests of the children, no matter how finely balanced the things which tip the matter in one direction might be.
I do consider that the father is robust enough to make sure that he remains an involved and important part of his children’s life, and it is exceptionally important that he does that. I cannot imagine how much [Y] must value the fact that the father is the coach of his football team. It would be tragic for [Y] if the father ceased to have that sort of involvement with him, and I strongly hope that both parents make sure that continues.
The one thing the parents both need to look at to make sure this works for the children in the future is their communication. They are going to have to be a little more respectful of each other, more careful not to put a little sting in the tail of their communications, a nasty little snippet on the end, because this is only going to work well for the children if the parents communicate well.
The third thing I want to say to the parents is that the children are young, and I see many cases where children want to try something different after they have been with one parent for a few years. [Y] may well when he gets older say, “Mum, I want to try living with Dad for a while,” and I hope that if that sort of thing occurs the parents will deal with it sensitively and, in this particular case, given what these parents have been able to do to date, I have some hopes they might be able to do that.
I am going to make an order that the mother be permitted to enrol the children at [N] School or some other school agreed between the parents.
The mother proposed that the father spend more time with the children than with her during the shorter school holidays, and also proposed a changeover on Monday morning rather than Sunday evening on alternate weekends during school term and I am going to make orders in line with those proposals because it is important that the children maintain their connections on the Central Coast and spend as much time with the father and their extended family as they can.
I want to stress that there is nothing to prevent the father going to the children’s school any time he wants to, going to school events, doing reading and going to sports days, and there is nothing to prevent the father coming up and attending extra curricular activities. The father’s time with the children does not have to be restricted to what is set out in the orders. He can still have, if he chooses to have it, extra time with the children outside of those orders.
In her orders sought the mother proposed that the orders be implemented by a changeover at [R], but in her affidavit she indicated that for the overnight in the off week, she was prepared to deliver the children to and collect them from the father’s home, and I will make orders in line with that proposal.

I certify that the preceding one hundred and eighty-eight (188) paragraphs are a true copy of the reasons for judgment of Terry FM

Associate:

Date: 12 February 2013