EBRAHIM & EBRAHIM

[2018] FCCA 4006

FEDERAL CIRCUIT COURT OF AUSTRALIA

EBRAHIM & EBRAHIM [2018] FCCA 4006

Catchwords:
FAMILY LAW – Parenting issues – relocation sought by mother from Adelaide to Perth – children aged 7 years and 6 years.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61B, 65DAA, 65DAC, 65DAE

Cases cited:

B & B (1997) FLC 92-755

Applicant: MS EBRAHIM

Respondent: MR EBRAHIM

File Number: ADC 3161 of 2013

Judgment of: Judge Mead

Hearing dates: 30 & 31 May 2017 and 22, 23 &
24 January 2018

Date of Last Submission: 29 January 2018

Delivered at: Adelaide

Delivered on: 6 February 2018

REPRESENTATION

Counsel for the Applicant: Mr Jordan

Solicitors for the Applicant: Jordan & Fowler Barristers & Solicitors

Counsel for the Respondent: Mr Childs

Solicitors for the Respondent: Dewar Legal

Counsel for the Independent Children's Lawyer: Mr Hemsley

Solicitors for the Independent Children's Lawyer: Legal Services Commission of South Australia

ORDERS

1. That all previous orders made herein be discharged.

2. That the father and the mother have equal shared parental responsibility for [X] born … 2010 and [Y] born … 2011.

3. That the said children live with each parent as follows:

   (a)with their father:

   (i)during school term time in 2018 from the conclusion of school Thursday (or 3:30pm if a non-school day) to the commencement of school on the following Monday (or Tuesday in the event of a long-weekend or non-school day) in accordance with the existing alternate weekend schedule;

   (ii)during the April, July and September/October 2018 school holiday periods, for six days and six nights as follows:

   (a)if time would ordinarily occur on the first and third weekends of each such holiday period, then from 5:00pm Friday to 5:00pm Monday on each such week; or

   (b)if the time would ordinarily occur on the mid‑weekend of such school holiday period from 5:00pm Wednesday in the first week of the holidays to 5:00pm Tuesday in the second week of the holidays;

   (iii)during the 2018/19 Christmas school holidays and each Christmas school holiday period thereafter for one half thereof on a week-about basis commencing:

   (a)at 5:00pm on the last Friday of Term 4 to 5:00pm the following Friday and each alternate week thereafter between the same times, commencing in 2018 and each alternate year thereafter; and

   (b)at 5:00pm on the Friday at the end of the first week of the said school holiday period to 5:00pm on the following Friday and each alternate week thereafter between the same times commencing in 2019 and each alternate year thereafter;

   (iv)during school term time as and from the commencement of the 2019 academic year from the conclusion of school Wednesday (or 3:30pm if a non-school day) to the commencement of school on the following Monday (or Tuesday in the event of a long-weekend or non-school day) in accordance with the existing alternate weekend schedule;

   (v)on each of the children’s birthdays and the father’s birthday if same fall on non-school days when the children are in the mother’s care from 9:00am to 2:00pm PROVIDED HOWEVER that should the children be in the father’s care on the children’s birthdays of the mother’s birthday the children spend time with the mother on each such day from 9:00am to 2:00pm;

   (vi)on Father’s Day from 10:00am to 4:00pm if the children are not otherwise in his care pursuant to this order PROVIDED HOWEVER that if the children are in the father’s care on Mother’s Day pursuant to these orders the children will spend time with the mother from 10:00am to 4:00pm;

   (vii)from the conclusion of school (or 3.30 pm if a non-school day) for a period of 48 hours commencing on each of the Eid al‑Fitr and Eid al-Adha religious observances; and

   (viii)at such further or other times as agreed between the parties;

   (b)with their mother at all other times.

4. Notwithstanding the terms of paragraph 3(a)(iii) and 3(b) hereof [X] and [Y] spend time with each of their parents for Christmas as follows:

   (a)with their mother from 10:00am on 24 December 2018 to 4:00pm on 25 December 2018 and each alternate year thereafter between the same times;

   (b)with their father from 4:00pm on 25 December 2018 to 12 noon on 27 December 2018 and each alternate year thereafter between the same times;

   (c)with their mother from 4:00pm on 25 December 2019 to 12 noon on 27 December 2019 and each alternate year thereafter between the same times;

   (d)with their father from 10:00am on 24 December 2019 to 4:00pm on 25 December 2019 and each alternate year thereafter between the same times.

5. That the mother be restrained and an injunction is hereby granted restraining her from changing the residential address of [X] and/or [Y] from the Adelaide metropolitan area.

6. That the children continue to attend at Suburb A Primary School for their primary school years unless otherwise agreed between the parties in writing.

7. That all handovers that do not occur at school occur at McDonald’s at Suburb B.

8. That in the event that either party seeks to travel with the children to any place outside of the State of South Australia that party will give to the other party not less than twenty-one days’ notice of such intention and at the same time shall provide a detailed proposed travel itinerary.

9. That the parties be at liberty to attend all school functions and activities to which parents are ordinarily invited.

10. That the parties communicate by email for the purposes of exchanging information pertaining to the children, including details of medical treatment, school activities and notices, extra-curricular activities and other occasions relevant to the welfare of the children.

11. That within seven days of this order the parties exchange email addresses via their solicitors.

12. That in the event either party moves residence or changes contact information, that party will advise the other party of the new residential address and/or any change of contact information within twenty-four hours.

13. That the parties shall notify the other as soon as reasonably practicable of any accident or emergency involving the children that requires medical treatment or hospitalisation while the children are in their care.

14. That unless otherwise necessary in the case of an emergency both parties ensure that the children attend upon their usual General Practitioner Dr C at the Medical Centre on Street D, Suburb E.

15. That the parties shall do all things necessary to facilitate either child telephoning the other party if the child expresses a wish to speak with the other party.

16. That the parties be restrained and injunctions are hereby granted restraining each of them from:

    (a)denigrating either parent or the parent’s family to or in the presence of the children or allowing any other person to do so;

    (b)discussing these proceedings with or in the presence of the children;

    (c)removing the children from the Commonwealth of Australia; and

    (d)physically chastising the children.

17. That the order for the appointment of the Independent Children’s Lawyer made herein be discharged.

18. That all extant applications be otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3161 of 2013

MS EBRAHIM

Applicant

And

MR EBRAHIM

Respondent

REASONS FOR JUDGMENT

Background

1. By way of introduction, this is a matter where the mother and the father are simply unable to agree in relation to parenting issues that relate to two children, [X], known sometimes as [X], who was born on … 2010 and is now seven and a half, and [Y], who was born on … 2011 and is now six and a quarter.

2. The children’s mother is aged 35 years, and their father is 37 years old.  The proceedings commenced with an application filed by the mother on 2 September 2013.  The mother sought orders that the father deliver the children up into her care, that she have sole parental responsibility for the children and that the children live with her.

3. She sought that the father do various parenting, anger management and domestic violence awareness courses and that, if he successfully completed those, the children spend time with him on a supervised basis at a children’s contact service.  She further sought an order that the father be restrained from removing the children from South Australia and/or the Commonwealth of Australia without her prior written consent or an order of the court.

4. At the first return date of that hearing on 4 September 2013 the matter was adjourned to 17 October 2013, with the father to file a response and the mother being at liberty to file a further affidavit.

5. On 17 October 2013 it was further adjourned to 21 October 2013, with the file to travel with file number ADC1798/2012 and be heard concurrently.  That file related to proceedings between the mother and her previous partner Mr F, the father of her child, [G].  The interim argument took place on 21 October 2013.

6. The mother filed an affidavit in support of her application on 2 September 2013.  In that affidavit she deposed to having converted to the Islamic religion in or about 2006, to communicating with the father in Country H by telephone initially in about … of 2009 and to travelling to Country H in about … of 2009.  She married the father in Country H on … 2009.

7. She deposed to coming back to Australia in about the first week of … of 2009, to [X] being born on … 2010 and to the father coming to Australia on … 2010.  It is obvious that she travelled back to Country H in the meantime because [X] was born in … 2010.

8. The mother, has an older son [G], who was born on … 2002.

9. She deposed to separation occurring on 19 August 2013, and to she and the father living with the maternal grandmother for about three months when the father first came to Australia in … 2010.  She deposed to the parties then moving to their own accommodation due to conflict between the father and her brother and to the father being aggressive and controlling from approximately February of 2011, which ultimately led to physical violence.  She gave an example of the father grabbing her wrists during an argument.  She further deposed to the father regularly viewing pornography and sleeping for most of the day.

10. She deposed to attending to all of [X]’s needs and to moving, when [Y] was born in … 2011, to Suburb J.  After moving into that accommodation, she said that the father continued to watch pornography and pressured her to have sexual relations.

11. She said that the father obtained employment which lasted for two days but he otherwise refused to work, and that he did nothing to assist with the children except for short periods when she was at work and even then providing no real care for the children.  The mother deposed to starting work in … 2013 because the father was not working.

12. She deposed to volunteering at School K where [G] attended from about … 2012 to … 2013, and to the father refusing to allow [X] to go to childcare.  In those circumstances the father was unable to attend at TAFE nor to his English classes at TAFE because he was at home with [X].  She said the father continued to neglect his parenting duties while the children were in his care and the only thing that he did positively for the children was teach them how to box.

13. She said the parties argued daily and that the father denigrated and insulted her in front of the two young children and also in front of [G].  She alleged that the abuse towards her was both verbal and physical, and particularly to the father being physically abusive to her during an incident on 17 January 2013.  She deposed to making no reports to any authorities, including police, because she was concerned that would make the father’s behaviour worse.

14. She deposed to the father carrying a pocket knife and to his behaviour becoming worse when she commenced working at School K.  She said the father used excessive physical discipline on the children and ignored her concerns in relation to that issue.

15. The mother deposed to coming home from work on 16 August 2013 and to a serious argument occurring with the father in relation to her objection to him accessing pornographic material.  She said that argument continued to 17 August 2013, involved physical abuse towards her and that the father videoed the incident.

16. She deposed to [X] and [Y] being present during the argument but to [G] not being present, and to having concerns about the father’s mental health.  She said she called the neighbours, who in turn called the police, and that the maternal grandmother and the paternal uncle attempted to mediate the dispute between the parties.

17. The mother alleged arguments occurred on 20 August 2013, resulting in the father going to his brother’s house.  She said she and the children went to the father’s brother’s house the following day – she said 20 August was a Monday – and also going on the Tuesday.  She said the parties came to an agreement for the children to spend time with the father if his brother was present during that time.

18. The mother deposed to taking the children to the father’s brother’s home on 21 August 2013 and to them staying there with the father between 9:00am and 3:30pm.  She said she delivered the children to the father at the brother’s home and collected them from there.  She deposed to taking the children to the father again on 22 August 2013 and to becoming aware that the father’s brother was not there.  She said the excuse given was that he was with his wife, who was in labour at the hospital.  She deposed to the father being angry on that occasion and, when she went back to get the children at 1:00pm, to the father refusing to return the children to her.  The mother deposed to applying for a domestic violence intervention order on 23 August 2013, being the day after the father allegedly refused to return the children to her care.

19. The mother deposed to speaking with the father on the telephone on 26 August 2013 and to the father telling her that she could not see the children because of her own doing and further that he did not want the relationship with her to continue.  She said she was concerned that the father may take the children to New South Wales.

20. She deposed to obtaining a domestic violence intervention order on 27 August 2013 and to the father having a history of violence.  She said the father told her that he had stabbed someone and shot a police officer in the leg in Country H.

21. The mother deposed to breastfeeding [Y], to the children being unable to settle without her and to the father being unable to provide adequate care for the children.  She said she was concerned about the father’s brother possessing firearms.

22. The father’s affidavit for the purposes of the interim argument was filed on 20 September 2013.  In that affidavit, he deposed to the parties meeting in Country H in 2009, to him being 33 years old and the mother being 30 years old.  He deposed to the parties marrying in Country H in … 2009, to him coming to Adelaide in … 2010 and to obtaining permanent residence in … 2012.  He deposed to the parties separating in August 2013 and to him studying English at TAFE between 2010 and 2013.  He deposed to thereafter caring for the children and not being employed outside the home.  He deposed to the mother volunteering at School K in 2012 and obtaining fulltime work there at the start of 2013 on the basis of five days per week.  He deposed to the parties sharing care of the children in 2012 but to the mother often leaving he and the children alone during the day when she went out.

23. The father deposed to being almost totally responsible for the care of the children in 2013 until separation.  He deposed to doing most of the housework and to taking the children to his brother’s house at separation on or about 18 September 2013.  He said that the parties reached an agreement at separation that the children would spend equal time with each parent but that the agreement was not implemented and that on 29 August 2013 the police removed the children from his care.  The mother had obtained an intervention order under which she and the children were all protected persons.

24. He deposed to not having spent any time with the children as at the date of swearing of his affidavit on 20 September 2013 since 29 August 2013.  He said separation occurred because he found sex toys in the mother’s car and also came home on 18 September 2013 and found two men at the house who he hadn’t met before.  He deposed to the mother telling him that she was a prostitute and to the children being at the home when the unknown men were present.

25. The father deposed to an argument occurring, and described the mother as ranting and screaming and hitting her head on the kitchen table, grabbing a knife and saying she wanted to kill herself.  He said she ran to the bedroom, closed the door and that he was not able to get in, which he wanted to do so that he could take the knife from her.

26. The father deposed to ringing his brother, to the mother being in the bedroom screaming and to wanting to ensure that the children were alright and calmed down because they had been screaming and crying.  He said that after some 10 or 15 minutes, the mother came out of the bedroom with the knife, approached him in the corridor with the knife in hand and yelled at him.  He deposed to the children being behind him crying, to his brother arriving and to persuading the mother to put the knife away.  He said his brother called the mother’s mother and to everybody sitting down and talking until the mother calmed down.  He said the mother bit him and ripped his T-shirt during the argument.

27. The father deposed to leaving the house the next day to go to his brother’s house with the children, to the mother being regularly aggressive to him during the course of the marriage by slapping and pushing him, but to not reporting any of the incidents.  He said the mother was involved in proceedings in the Federal Circuit Court regarding her son, [G].  He categorically denied any domestic violence towards the mother.  He said he did not have a police record, he did not use drugs and that he did not use alcohol as this was in accordance with Islamic teachings.

28. He further deposed to arguments in the maternal grandmother’s house with the mother’s brother because the mother’s brother was smoking drugs in [X]’s presence.  He denied that he had grabbed the mother’s wrists or shouted at her and said that to the contrary that was her behaviour.  He denied watching pornography other than together with the mother and denied that he had limited parenting skills.  He deposed to Skyping with his family in Country H in the evenings and to the mother buying sex toys and lingerie.  He said that his English was too limited to keep his employment after the two days he was employed.  He denied any violence towards the mother.

29. He deposed to being an active and attentive father and to receiving parenting payments since approximately March of 2013.  The father agreed in his affidavit that the mother came home at lunchtime when she started working fulltime, but said that only occurred for the first couple of weeks, and that even during the school holidays she often went to her mother’s home leaving he and the children at home.  The father deposed to the mother saying that she did not want the children in childcare and to the mother bruising her elbow when she was helping [Y] in the bath and fell.

30. He denied being controlling of the mother, denied that he had exercised physical discipline in respect of the children and said that the mother smacked the children and that he did not.  He agreed that he recorded some of the arguments that occurred at separation on his phone.  He deposed to the mother going to his brother’s house on numerous occasions in the week after separation to see the children and he denied any intention to relocate to New South Wales or anywhere else.  The father denied using illicit substances and denied that the mother was breastfeeding [Y] at the time of separation.

1. On 21 October 2013 the court ordered the appointment of an independent children’s lawyer, that the children live with the mother, and that the matter be adjourned to 13 December 2013.

2. On that date, a family assessment report was ordered and family dispute resolution was ordered for 14 April 2014.

3. On 26 April 2014, the court noted Dr L’s recommendations in his first report and made orders for the father to attend upon Mr M for anger management and domestic violence therapy without any admission on the part of the father.  An updated report was ordered to include observed interaction between the father and the children, which was not done for the purposes of the first report.

Time spending arrangements

1. On 26 October 2014 an order was made for the children to spend supervised time with their father at the Suburb N Children’s Contact Service and for the independent children’s lawyer to file a report from Mr O, who the father had consulted rather than Mr M.

2. On 17 November 2014 an order was made for a report from the children’s contact service to be obtained after the fifth session of supervised time.  On 25 May 2015 an order was made for further supervised time at the children’s contact service as well as an order for an updated report from Dr L after the further children’s contact service sessions.

3. On 4 September 2015 an order was made for an addendum report of Dr L to include consideration of the reports from the children’s contact service, and an order for the children to spend unsupervised time with their father from 11:00am to 1:00pm on two occasions.  On 21 September 2015 the court ordered that during the period of the adjournment the children spend time with their father on an unsupervised basis on two occasions for four hours, which occasions were two weeks apart, and then, on four occasions for six hours.  These were also occasions that occurred two weeks apart.  The parties were to be at liberty to use a communication book and the mother was restrained from enrolling [X] other than at Suburb A Primary School.

4. On 21 December 2015 the court ordered that until further order, the children spend time with the father each alternate weekend from 2:00pm Saturday to 2:00pm Sunday, with the mother to use her best abilities to have [X] called [X], not [X], at school.  Family dispute resolution was ordered.

5. On 24 March 2016 an order was made that the children live with the mother, and, during term time, spend time with their father from 2:00pm Saturday to the start of school on Monday in alternate weeks until the third term of 2016, when the time was to commence at the conclusion of school on Friday and continue through to the start of school on the Monday morning.  An order was also made for the children to spend four consecutive nights and then two consecutive nights with their father in two separate blocks in the April 2016 holidays, and during the July school holidays for one period of four nights and one period of three nights.  The communication book was to travel with the children at handovers.

6. On that same date an order was made by way of injunction that the parties not denigrate each other or each other’s family and that they not discuss issues relating to the proceedings with the children.  Each was to advise the other of any serious health issues that the children experienced.

7. On 9 September 2016, an order was made that the children spend seven nights with the father during the September school holiday period, and, during the Christmas 2016/17 holidays, five nights one week and one night the next week on a fortnightly rotation, with specific provisions for Christmas Day and directions for trial.

8. On 20 December 2016, the mother filed an amended application whereby she sought to relocate to Perth with the children.

9. Trial directions were made on 20 February 2017.  The trial commenced on 30 May 2017 and was adjourned part heard on 31 May 2017 for directions to 25 October 2017.  On 25 October 2017 the trial was ordered to resume on 22 January 2018.  On 20 December 2017 there was an order made that during the Christmas 2017/18 school holiday period, [X] and [Y] spend time with the father on a five night per fortnight schedule.  The trial resumed on 22 January 2018.

10. I have referred to all these matters in some detail, and perhaps would not usually do so, because they are important in the particular circumstances of this case and the evidence that came to light during the trial.

The best interests of the children

1. Part 7 VII of the Family Law Act 1975 (Cth) (the Act) provides the legislative framework within which the court determines the parties’ competing parenting proposals.

2. Section 60B(1) of the Act sets out the objects of the Act as regards children’s orders, namely,

   (a) to ensure that the best interests of the children are met by ensuring that the children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.

3. The principles underlying the objects are set out in section 60B(2) of the Act and provide that:

   …(except when it is or would be contrary to the child’s best interests):

   (a) children have the right to know and be cared for by both their parents regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with and communicate on a regular basis with both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

4. The best interests of the child are the paramount consideration in determining whether to make a parenting order.[1] To determine the best interests of the child, the court must consider the factors set out in section 60CC(2) and (3) of the Act.

   [1] s.60CA Family Law Act 1975 (Cth) (as amended)

5. Section 61DA of the Act provides that:

   (1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of that child) has engaged in:

   (a) abuse of the child…;or

   (b) family violence.

   (3) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.

6. In the event that an order is made for equal shared parental responsibility, the court must consider whether it is in the child’s best interests to spend equal time with each of his or her parents and whether it is reasonably practicable for this to occur.[2]

   [2] s.65DAA(1) Family Law Act 1975 (supra)

7. If the court determines that such an order is not in the child’s best interests, it must consider whether it would be in the child’s best interests to spend substantial and significant time with each parent and whether that is reasonably practicable.[3] The Act defines what is meant by substantial and significant time and specifies that the court must have regard to certain issues when deciding whether orders are reasonably practicable.[4]

   [3] s.65DAA(2) Family Law Act 1975 (supra)

   [4] s.65DAA(5) Family Law Act 1975 (supra)

8. All of those issues must be considered in this case against the backdrop of the requirement that the parenting order that the court makes must be in [X] and [Y]’s best interests as determined in accordance with the provisions of section 60CC of the Act, being mindful of the objects of the Act and the principles underlying those objects.

9. This case involved an application for relocation.  As was made clear by the Full Court in B & B (1997) FLC 92-755 at page 84,194, “…relocation cases are not a separate category within the Family Law Act…Each is a case under Part VII relating to the best interests of the children but within a particular context and…is to be determined in accordance with the principles contained in that Part...”.

10. It is convenient to deal with the areas of dispute in this matter by way of considering the parties’ evidence as it applies to the relevant provisions of the legislation.  The mother seeks to relocate with the children to Perth, and, looking at her amended application filed on 20 December 2016, the final orders she seeks are that:

    a)she have sole parental responsibility for [X] and [Y]; and

    b)that the children live with her; and

    c)that she have leave to relocate from Adelaide to Perth with the children; and

    d)that the father spend time with the children on such dates and at times as agreed between the parties or as may be ordered by the court.

The mother’s proposal

1. In her trial affidavit filed on 13 April 2017, she sets out her specific proposals in relation to time in paragraph 193 and following.  She says in paragraphs 193 to 204 under the headings “Mr Ebrahim to relocate to Perth” and “Mr Ebrahim to remain in Adelaide and the children to relocate to Perth”:

   Relocation to Perth

   I seek to move with the children to live in Perth as soon as reasonably practicable.

   I propose that we live at Suburb P in the house owned by my partner, Mr Q.

   Mr Q has contacted the local primary school, Suburb R Independent Primary and confirmed the children will be able to attend there.  The children would then attend Suburb P College for their secondary education.

   Mr Ebrahim to relocate to Perth

   I say that it is possible for Mr Ebrahim to move to Perth for the following reasons:

   a.   he lacks significant family ties in Adelaide;

   b.   he is unemployed; and

   c.   he has nothing of note tying him to Adelaide.

   Should Mr Ebrahim relocate I am willing to post-pone relocation for 6 months so as to provide him time to organise his relocation.  Mr Q and me are amenable to assisting Mr Ebrahim to a reasonable degree with costs associated with relocation should he relocate.

   I propose the children to spend time with Mr Ebrahim in Perth as follows:

   a.   for two nights per fortnight being from after school Friday until Sunday;

   b.   after school on an elected day on the alternate week from after school until 6.30 pm that evening;

   c.   for four nights in each of the school holidays; and

   d.   on special occasions to be arranged between the parties.

   I propose a reduction of time with the children than currently ordered for the following reasons:

   a.   the behavioural issues the children are experiencing before and after time with Mr Ebrahim;

   b.   the belief that Mr Ebrahim’s desire to spend more time with the children is based on his want to receive government benefits rather than to work and to spite me, not to serve the children’s best interests;

   c.   other associated concerns regarding Mr Ebrahim’s ability to care for the children as aforementioned herein.

   Mr Ebrahim to remain in Adelaide and the children to relocate to Perth

   As far as I’m aware Mr Ebrahim has never worked since arriving in Australia seven years ago (apart from two days at employer).  I say that he is in receipt of Newstart benefits and pays no child support for [X] and [Y].  I have no expectation that he will work in the future and therefore consider that he will unlikely ever be in a position to afford air fares for himself to fly to Perth or for the children to travel to Adelaide on a regular basis throughout the year.  Accordingly I expect to have to meet the costs of the children’s travel to and from Adelaide to spend time with him.

   I propose that at my expense the children spend time with Mr Ebrahim as follows:

   a.   for a maximum of four consecutive nights in one school holiday period; and

   b.   during the Christmas school holidays for two 3 night periods.  I propose to accompany the children to Adelaide on this occasion and stay for a 10 day period.  I would take the opportunity to spend time with [G] and other family members in Adelaide.

   I propose that in lieu of child support payments Mr Ebrahim can use these funds to fly to Perth to spend time with the children at other reasonable times as agreed.

   I propose that Mr Ebrahim can have contact with the children by telephone, email and/or Skype at all reasonable times.

   I propose that Mr Ebrahim be at liberty to forward surface mail and gifts to the children at his election.

2. Under the heading “No Relocation to Perth” in paragraphs 205 to 208 inclusive of the said affidavit the mother’s proposals are set out as follows:

   If the court does not grant me leave to relocate with the children then I will have to remain in Adelaide.  This would put Mr Q and me under considerable strain firstly financially and secondly in terms of Mr Q working away from home.  It would also cause me great unhappiness which I would have to accept and endure.  I am unsure however what my circumstances would be in the event of me having to stay in Adelaide as I do not know what arrangements could be made in the likely event of the sale of the Suburb E property.  I want to make it very clear to the Court, however, that whatever orders are made on a final basis, I will comply with them.

   If required to remain living in Adelaide I do not propose that Mr Ebrahim have any more time with the children than currently ordered.  Further to this, I request a reduction of time based on my concerns as previously deposed to herein. 

   I propose Mr Ebrahim spend time with the children as follows:

   a.   for two nights per fortnight being from after school Friday until Sunday;

   b.   after school on an elected day in the alternate week from after school until 6.30 pm that evening;

   c.   for four nights in each of the school holidays; and

   d.   on special occasions to be arranged between the parties.

   If I am required to remain in Adelaide then I propose that the children continue at Suburb A Primary School.  I have an expectation that I will have to move closer to the centre of Adelaide when the children are of secondary school age where they can be zoned to attend Suburb S High School or another school of similar reputation and standard.

3. The proposals of the mother of course result in reduced time for the children with their father in either scenario, that is, if the mother moves to Perth or remains in Adelaide.

The father’s proposal

1. It is trite to say that there is an enormous gulf between the parties’ proposals.  In his amended response filed on 27 April 2017 the father sought that the parties have equal shared parental responsibility for the children.  He then sought an incremental increase in the children’s time with him, starting with the children spending time with him in each alternate week from the conclusion of school on Wednesday until the commencement of school the following Monday.  He proposed that, beginning in Term 1 of 2018 the children spend time with him in each alternate week from the conclusion of school Tuesday until the commencement of school the following Monday.  Beginning in Term 4 in 2018 he proposes that the children spend time with him in each alternate week from after school on Monday until the commencement of school the following Monday.

2. The father proposed specific time with the children on his birthday from 10:00am to 3:00pm and for the same time on the children’s birthdays and on Father’s Day.  He sought specific orders in relation to Eid celebrations on two occasions from the conclusion of school or 3:00pm for a period of two days with a conclusion time at 4:00pm two days later, time from midday on Christmas Eve until midday on Christmas Day in even numbered years and from midday Christmas Day to midday Boxing Day on odd numbered years, and other times as agreed between the parties.

3. He sought that the children continue to attend Suburb A Primary School for the remainder of their primary education unless otherwise agreed and then that the children attend Suburb B High School unless the parties otherwise agreed.  He sought injunctions restraining the parties from changing the children’s school other than with the written consent of the other of them.

4. Orders that the father sought might be described as fairly standard specific issues orders in relation to the exchange of information about the children’s health, each party being able to attend at school, that the mother not change the children’s place of residence from the Adelaide metropolitan area, and injunctive orders in terms of the existing orders but including an order that neither party physically chastise the children.

5. He also sought an order that the children not be identified by names other than those as registered on their birth certificates.

6. On the face of the parties’ proposals, it is hard to see how the mother’s proposal would promote a meaningful relationship with both parents in circumstances where, under her proposal, there would be a very significant distance indeed between the parties’ respective residences.  The children are very young.

7. She proposes that the children spend very limited time with their father and that he be excluded from parental responsibility.  I must contrast that proposal with the father’s proposal where the children would remain close to him and to their extended families.  By the end of 2018 they would spend equal time with each parent.  They would spend special occasion time with each parent, and both parents would be involved in all aspects of the children’s lives including medical issues and education.  His proposed orders also included an ability to travel for both parties.  He proposed that, in the event that either party sought to travel with the children to any place outside the State of South Australia, that party would give to the other party not less than 21 days’ notice of the intention and at the same time provide a detailed proposed itinerary.  The father also sought to ensure that the children were protected from conflict between the parties by the injunctive orders that he sought.

Section 60CC factors

1. The court has to decide, however, whether it is beneficial to the children to have a meaningful relationship with both parents.  The mother is certain that there is no real benefit to the children to have such a relationship with the father, a position that is clear in her affidavit evidence.  She is critical of the father not working or studying.  She is critical of the father not contributing financially to the children’s expenses.  In cross-examination, she made it clear that she believed that it was possible that one of the children or both of them had been inappropriately interfered with by the father, that the children are at risk from the father, and that supervised time is appropriate, in an ideal world, even now.

2. In cross‑examination, she also made it clear that she did not want the father involved in the children’s schooling at any significant level.  She told the court that she feels sick at the thought of the children having unsupervised time with their father, but said that she did not put that in her affidavit as she thought it was unlikely that the court would order supervised time.

3. In answer to questions in cross-examination from the independent children’s lawyer, the mother was unable to give examples of any redeeming features of the father at this time.  She thought that a relationship between the children and their father might be beneficial if the father improved and respected her as a mother and did not say things to the children that negatively affect the children.

1. The mother’s evidence was that she said that she believed the father wanted to see the children more because he would get more government benefits and to spite her.  That evidence was a repeat of her affidavit evidence-in-chief.  She said she wanted the father to improve and stop his negativity.

2. Overall, the mother was unable to make any positive comments about the father and in particular the benefit to the children of a meaningful relationship with him.  In the father’s trial affidavit, there were no real complaints about the mother’s parenting, rather, there were complaints about the mother’s behaviour.  He clearly believes that the mother has done everything in her power to interfere with the relationship between he and the children and it is his firm belief that the mother has made false allegations in relation to domestic violence and sexual abuse.  In cross‑examination the court gained a better sense of the father’s true feelings.

3. He conceded that the mother was a good parent when the children were babies but said he is not confident that that will be the case as they grow older.  He said that the children don’t say very much by way of good things about the mother and further, the mother has tried to turn the children against him.  In cross-examination he was however more amenable than the mother in terms of communication between the parties, particularly if the intervention order was not in place.  He just wanted everyone to be happy and said he would be amenable to handovers at the mother’s house if the intervention order was not in place.

4. I find overall that the father’s proposal is more likely to facilitate the children having a meaningful relationship with each parent.

5. Sub-paragraph (b) of section 60CC(2) of the Act provides that a primary consideration for the Court “…is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”

6. There has been an intervention order in place since August of 2013.  The children the subject of these proceedings are not protected persons under that order, although the mother’s older child [G] is, and continues to be so, notwithstanding that he has now been living with his father since late 2016.

7. There has been little contact between the mother and the father since the intervention order was put in place and it was clear from the evidence of both parties that there was a significant amount of arguing between the parties during the course of their marriage and the mother alleged that the father was physically violent.

8. The father alleged the same thing against the mother and denied any violence on his part towards her.  It is now 2018.  There is no evidence that either party has been violent to the children or exposed the children to violence in more recent years.  There is no evidence that violence occurs in the mother’s current household and I find on the evidence in the circumstances of this case that the children are currently not at any risk of violence, abuse or neglect or of being exposed to same in either household.  I will refer more to that topic later herein.

9. After the consideration of the benefit to the child of a meaningful relationship and the need to protect a child from abuse, neglect or family violence, the court must consider the additional considerations set out in section 60CC(3) of the Act. The first of those subsections is any views expressed by the child and any factors such as the child’s maturity or level of understanding that the court thinks are relevant to the weight that should be given to the child’s views.

10. Both of the children in this matter are very young.  [X] is seven and [Y] is six.  I have already referred to my finding that they are not at risk in either parents’ household.  The only objective evidence as to the children’s relationship with each of the parents comes from the expert Dr L.  His evidence-in-chief in cross-examination suggested no concerns with the relationship between the children and either of their parents.  In any event, these children are not of an age where their wishes are determinative or are of significant weight.

11. The relationship with their parents as illustrated by observations, is more helpful to the court than evidence relating to their specific wishes.

12. As to the nature of the relationship of the child with each of the child’s parents and any other person, including any grandparent or other relative of the child, I find that the children have a good relationship with each parent.  The main objective information in that regard which was of significant assistance comes from the expert, Dr L, and from the children’s contact service reports.

13. Dr L took a very cautious approach to recommencing the children’s time with their father and, in cross-examination agreed that he moved more slowly than perhaps he would have usually done in promoting an extension of the children’s time with their father.  It was his evidence that he did so mainly because of the mother’s presentation.  He took into account the mother’s expression of her great fear of the father and her expressed fear of the children being at risk with the father.

14. There were no observed interactions between the children and their father in the first report of Dr L in the circumstances of the mother’s expressed fears and her opposition to that happening.  Thereafter the observations of Dr L of the father with the children did not lead to any real concern, but there had unfortunately been a long time between the time of separation and the children’s time with the father commencing.  At first there were the two series of six visits at the children’s contact service.  The reports from the children’s contact service were positive overall, and then there was limited unsupervised time ordered progressing to the existing orders which have now been in place for some time.

15. The relationship between the children and their father has clearly strengthened over time, but there is no doubt that the mother is still the primary caregiver of the children and there is no reason, and certainly no evidence, to suggest that the children do not have a good and positive relationship with the mother’s partner, Mr Q, and their two siblings.  I find that the children’s relationship with the father is a positive one but it is still developing, as suggested by Dr L.  I find however that it is on a secure footing and it is a relationship that both boys enjoy.  I find that the children love both of their parents and have a secure relationship with both of them, but that their primary parenting relationship at this stage is with their mother.

16. As to the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, spend time with the child and communicate with the child, I have no doubt at all that both of the parents in this matter love [X] and [Y] and are interested in their health and welfare.  I find that the father has consistently done all that he can over a period of more than four years to spend time with the children as evidenced by these proceedings.

17. The mother has had the children in her full-time care.  They have spent very little time with the father, certainly for the first couple of years post‑separation, but more frequent time has been spent with him since the order in early 2016.  I also find however that the mother has not been at all encouraging in terms of the father’s involvement in any decision‑making about the children.  I find that the father has been in contact with the children’s school teachers, met their friends and has participated to a significant degree in circumstances of the children’s limited time with him to date.

18. As to the extent to which each of the child’s parents has fulfilled or failed to fulfil the parents’ obligations to maintain the child, the father has paid virtually no child support since separation.  I accept that he pays for the children’s expenses when they are with him, that he buys them clothes, toys and the like, puts food on the table and entertains them, but he has only ever had very limited employment in Australia.  The extent being two days.  I accept, taking into account all of his evidence in regard to that issue, that employment of any kind in the foreseeable future is extremely unlikely.

19. There is no evidence that the father is at all anxious to obtain any form of employment.  He deposed in his trial affidavit to 16 continuous years of employment in Country H and to being highly regarded.  It is obvious from his presentation that he has advanced significantly in terms of his English skills.  He did not need an interpreter at all for the purposes of these proceedings.  He gave the court the impression, in his affidavit evidence that he was studying and I find that he intended so to do.

20. I do not accept that he is studying currently or has been recently, and I am certainly not satisfied that he has any real intentions in the foreseeable future to do so.  He is in receipt of income from Centrelink and some cash jobs.  I find that not all of that cash is declared to Centrelink, although I am satisfied that some proportion is so reported.  Overall, the father’s attitude to study and employment is, to say the least, poor.  I find that there is no real likelihood of him paying any child support at any acceptable level in the foreseeable future and I find that that issue does not trouble the father.

21. He says he does not earn money and only receives limited Centrelink benefits and therefore he cannot pay child support.  I accept that it is not easy for the father in Australia in terms of language, cultural understanding and availability of employment in those circumstances.  I find however that there is no evidence to suggest that he has any enthusiasm to change his situation after nearly eight years of living in Australia.  I find that the mother will continue to have the primary financial responsibility for [X] and [Y].

22. As to the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person, including any grandparent or other relative of the child with whom he or she has been living, I consider this to be a very important factor in this particular case.

23. The mother and her partner are clearly, from their evidence, both of the view that a move for the children to Perth from Adelaide will improve their lives.  This would involve the children moving to Perth and starting a new life away from their father, from their current schools, from their friends and extended family.  The mother and her partner both gave evidence that it is economically better for Mr Q and for the mother to move to Perth in circumstances where, on their evidence, there will be less financial pressure and Mr Q will be able to work locally rather than on a fly-in fly-out basis and earn the same very good income.

24. The evidence was that they and the children would live in Suburb P and that there are good schools nearby.  The mother proposes very limited time for the children to spend with the father in either Adelaide or Perth.  Effectively, under the mother’s proposal, the children will hardly ever see the father unless he moves to Perth.  The children currently keep in contact and spend some time with [G], which as well as being effected through [G] spending some time in the mother’s household is also facilitated by the father via Mr F and his partner Ms T.

25. The mother proposes, and Mr F seemed to agree, that [G] would spend time with the mother in Perth during school holidays if she moved to Perth.  The boys see their maternal grandmother while they are in the care of the mother.  It appears that there is little contact between the mother and her siblings and their children, but there is some level of interaction for the boys with the extended maternal family in South Australia.

26. The father’s proposal would have the boys’ lives essentially unchanged except, of course, he is seeking for them to spend additional time with him leading up to almost a shared care arrangement by the end of this year.

27. I find that if the children were to move to Perth their relationship with their father would unlikely be sustained at a meaningful level.  I find that it is extremely unlikely that the father would move to Perth.  I further find that even if the father did move to Perth, the mother would unlikely support and foster [X] and [Y]’s relationship with him.

28. The mother and Mr Q are both scathing in their opinion of the father.  They consider that he is lazy and that he has little, if anything, to add to the lives of the children.  I am satisfied that in their view the children would be better off in their household in Perth with Mr Q taking on the role of father to the boys.  There is no doubt that Mr Q is an industrious gentleman and ambitious.  He has progressed very well in his working life to date.

29. I find that if the children were to move to Perth they would miss their father very much.  Even the mother concedes that the boys love their father.  The father has been committed to the process of ensuring that the boys spend time with him on a regular and meaningful basis.  Significant progress in that area has been made, as evidenced by Dr L.

30. I accept the view of Dr L that after such progress having been made over a long period of time and securing the children’s developing relationship with the father, there would be concern if the children’s circumstances changed such that the relationship would be very hard, if not impossible, to maintain.

31. If the children were older and the relationship were more secure, it may be that moving to Perth would not have an effect of such magnitude as that to which I have referred.  But I find that the children would miss their father very much and they would be sad.  And it is clear from the report of Dr L that the children love their father and want to spend regular time with him.

32. I find it would not be in the children’s best interests to be separated from the father to the extent of the mother’s proposal, and that even if the father moved to Perth he would have no supports himself, he would not be supported by the mother or Mr Q in his relationship with the children and that it would be very difficult for him to re-establish himself in Perth.  This in turn would impact on what he could emotionally offer to the children.

33. I accept that the mother and Mr Q have offered to help with the costs of moving for the father.  I accept that the father could get Centrelink benefits in Perth just as well as he can in Adelaide.  I find however that in his particular circumstance it is a move that is almost impossible for him to contemplate.  If a move to Perth overall was best for the children that issue would have to take second place, but I am unable to see how that move could be in the children’s best interests.

34. The next important factor is the practical difficulty and expense of a child spending time with, and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

35. There is a great deal of practical difficulty involved in the mother’s proposal to relocate with the children to Perth.  It is a very long distance from Adelaide and the mother is financially dependent on Mr Q for all of her financial needs.  She is a full-time mother to her two babies with Mr Q and the cost of travel between Adelaide and Perth is prohibitive.  The mother does not have close family ties in South Australia except, perhaps, of more recent time with her mother.

36. The father is on Centrelink and likely to remain so.  He has no friends or family in Western Australia.  He would not be able to afford travel on any regular basis and/or accommodation in Perth and he is unlikely to cope with the move to Western Australia for the reasons to which I have already referred.  I do not find that the father’s opposition to a move to Perth on his part is unreasonable.  As I have said, his English, although developing, is still his second language.

37. I find he does not have an outgoing personality from his presentation in the witness box, and he would find a move to Perth where he has no friends or family at all a very difficult move indeed.  This in turn would be reflected in his ability to cope.  Overall, I find that the practical difficulty and expense that would be occasioned by the mother’s move is an important factor in this matter.

38. As to the capacity of each of the child’s parents and any other person, including any grandparent or other relative of the child, to provide for the needs of the child, including emotional and intellectual needs, the mother, Mr Q and the maternal grandmother are very dismissive of the father.  The mother is the primary caregiver for [X] and [Y] and she is the sole financial provider for the children.  There is no evidence to suggest that the mother does not do a good job in terms of providing for the children.  They are clearly well-cared for and provided for by her and, of course, Mr Q has provided the mother and the children with a house here in South Australia.

39. I have very serious concerns however as to the mother’s ability to provide for the children’s emotional needs.  The parties separated in September of 2013.  At that time the mother made serious allegations against the father in relation to domestic violence.  She obtained a domestic violence intervention order.  The children were removed from the father’s care by police and they spent no time with their father again for over 12 months, and then in the circumstances of a children’s contact service.

40. The mother had filed an affidavit in proceedings concerning herself and Mr F regarding their child [G] as recently as 11 February 2013, some seven months prior to separation.  That affidavit was exhibit F1 in these proceedings.  In that affidavit the mother deposed to having a close family that mostly live in the country.  She said that she maintained regular contact with, and communication with her family, which was not the position that she advanced at trial in these proceedings.

41. In cross-examination in these proceedings the mother was asked if the children had a relationship with the extended maternal family.  She said that they did not and that it was hard to see her family members often.  She deposed in the February 2013 affidavit to being encouraged to contact the father by phone in Country H in … 2009.  She said that she became good friends with the father during those calls, that she went to Country H, that the meeting went well with the father and his family and that she had envisaged a 12 day trip to Country H.  She did not say exactly when the trip occurred, but said there were discussions with the father about getting a visa for him to come to Australia.

42. She deposed to travelling to Country H in … 2009 intending to stay for three months, but to coming home after two months as [G] was ill.  She deposed to [X]’s birth in … 2010 and that it was unfortunate that [X]’s father was unable to be present at the birth because the visa hadn’t been granted at that time.  She deposed to the father coming to Australia in … 2010 and to the parties having married in … 2009 in Country H.

43. In paragraph 46 of that affidavit the mother deposed as follows:

    I say that Mr Ebrahim and I have a very close and loving relationship and [G] has developed an excellent relationship with him.  I say that even prior to Mr Ebrahim’s move to Australia [G] regularly spoke to my husband via Skype.

44. In paragraph 60 of the affidavit the mother deposed as follows:

    I have been offered the opportunity to undertake further work at the school which I will take up this year in the school shop and library.  Either Mr Ebrahim or I drop [G] at school each morning.  [G] attends peer support each Thursday at which time the children engage in sport and pizza evenings.  At the end of each school day either Mr Ebrahim or I collect [G].  I say that Mr Ebrahim is undertaking a course of studies in the English language at TAFE SA this year.  Mr Ebrahim’s first language is Arabic with a Country H dialect.

1. In paragraph 61 she said:

   As a family Mr Ebrahim and I are encouraging the three children to learn Arabic, which they seem to thoroughly enjoy as somewhat of a novelty.  I hope that the children will be in a position to visit my husband’s family in Country H and be able to speak some of the language in the future.

2. In paragraph 64 she said:

   It’s not uncommon for [G] to return from visits with his father either angry or upset.  He readily cries.  [G] has told me that the father and his girlfriend grill him for information about our home life and, in particular, information about my husband.  For example, they have asked [G] whether Mr Ebrahim has guns or if he’s violent.  As stated, [G] has a very good relationship with my husband and is clearly upset by the father’s unkind statements about him.  I say that neither my husband nor I ever ask [G] questions about events that are occurring at the father’s home.  [G] appears to have a good relationship with the father’s girlfriend and has described her as a nice person.

3. In paragraph 112 of that same affidavit the mother deposed as follows:

   I say that from time to time [G] certainly does see Mr Ebrahim and I argue, but these arguments are usually very short-lived and often are as a result of the language difficulties.  My husband’s English is improving daily.  We live in a happy, healthy home and [G] is very close to both of us.

4. This was an affidavit filed by the mother six months prior to her separation with the father in these proceedings.  In her affidavit that she filed six months later in these proceedings, she deposed to the father being aggressive and controlling from February of 2011, which in turn led to him being physically violent towards her.  She deposed to the father viewing pornography, sleeping for most of the day, refusing to work, having no parenting skills and to arguments occurring daily and to the father being denigrating and insulting towards her.

5. She said that behaviour occurred in front of the children, including [G], and on 17 January 2013 there was a particularly bad argument when the father was abusive towards her.  That was less than one month prior to her filing the affidavit to which I have just referred in the proceedings between herself and Mr F.

6. The mother deposed to the father’s behaviour towards her being worse in these proceedings after 2011, 2012 and 2013 when she started work.  She also deposed to the father using excessive physical discipline on the children and to expressing concerns about the father’s mental health.  That is an extraordinary contrast to the picture that she painted in the affidavit of 11 February 2013.

7. The matters to which I refer predated, in the main, the date of 11 February 2013.  The evidence of the mother in the earlier proceedings and these proceedings simply cannot be reconciled.  On the mother’s case the behaviour of the father in these proceedings occurred at a time when [G] was in her primary care, but she said in paragraph 46 of the affidavit in the Mr F proceedings that [G] had established an excellent relationship with the father.

8. Now in cross-examination she says that [G] is still at risk from Mr Ebrahim even though [G] primarily lives with his own father now.  The mother expressed her view that the intervention order naming [G] as a protected person should remain in place.

9. I have serious concerns about the mother’s ability to be truthful.  She was in significant dispute with Mr F regarding [G]’s care arrangements.  She either told lies to the court in February 2013 about the state of her household with the father in these proceedings and presented a picture of a relationship with him and his relationship with the children, including [G], as loving and harmonious or, she is now being untruthful about violence occurring in the household at that time and to the children, including [G], being at risk then and now from the father.

10. I obtained some assistance from [G]’s father, Mr F.  The mother asked him for help in caring for [G] when she separated from the father, but Mr F’s evidence was that she did not tell him any details at all about what had happened, nor that [G] was to be included in the intervention order that she was seeking.  There is no evidence that [G] has raised any concerns at all about his relationship with the father.  According to Mr F, whose evidence I found helpful and truthful, [G] told Mr F that the father was never cruel to him and that he wasn’t scared at all of the father.

11. Mr F is opposed to [G] being on the intervention order and says that there is no need for it and that [G] is at no risk of harm.  He said that [G] told him that the father and the mother in these proceedings argued and yelled at each other, but did not suggest in any way that physical violence was involved.  [G] now lives with Mr F and has done so since the end of 2016.  He still sees his mother and [X] and [Y] regularly and also sees [X] and [Y] at handovers, which for a time were conducted outside Mr F’s home.  This meant that the children could spend some extra time with [G].

12. I found Mr F to be a truthful witness, but clearly not a supporter of the mother.  I accept that he is concerned for [X] and [Y]’s relationship with the father if the mother moves to Perth and that he is concerned as to the impact on the children in terms of their relationship with [G] and their father.  It is clear that Mr F does not consider the mother to be trustworthy and that he likes the father.

13. Mr F said that he and the father were not really close friends but has helped the father whenever he could, but he did not have an axe to grind against the mother to the extent of giving evidence just to collude with the father.  I have no doubt that he would have told the court if he had concerns regarding [G] and [G]’s relationship with the father in these proceedings.

14. If the father was as bad as the mother suggested in her affidavit of 2 September 2013 then she exposed [G] and the two younger children to serious abuse, neglect and family violence over an extended period of time.  I am not persuaded on any of the evidence that that was the position.  I am equally sure that her February 2013 affidavit was in part an exaggeration with respect to the descriptions of the happy and content household with the father.  I have no doubt that there were many arguments.  I find that these occurred in the presence of all three children.  I am not persuaded on the evidence that there was physical violence to the extent as alleged by the mother.  I find the mother overall to be a person who is prepared to say whatever is necessary to achieve the end result that she seeks.

15. I find that at separation the father left the mother and took the children with him to his brother’s house.  I find that the mother was very angry about this and that she exaggerated claims as to her fear for the safety of herself and the children to the police for the purpose of obtaining an intervention order and recovering the children into her care.

16. I find that she exaggerated the state of her fear of the father and the children’s alleged fear of the father to Dr L, to the extent that Dr L took what, in hindsight, I consider to be an unnecessarily cautious approach to his recommendations in relation to the boys’ time with their father, including not observing the children with the father for his first report.  This report was prepared within five months of separation, during which time the children had not seen the father.  Dr L reported on the father’s disappointment about what had happened and that the father had clearly expected to see the children at the interviews, but referred to the father’s respectful demeanour and his constructive input to the interview.

17. The first observation of the children by Dr L with the father was on 8 September 2014, some 12 months after separation.  He reported that there were no overt signs of discomfort or distress in either of the children and that the father was sensitive to the children.  There was some confusion on the part of the children when they were first introduced to the father and [Y] was understandably a bit dazed.  Had that observation occurred at the time of the first interviews, the matter would have proceeded very differently in court.  There may still have been an order for supervised time or there may have been an order for unsupervised time.  We will never know, but we do know that the children’s relationship with their father would not have been needlessly interrupted for a period of close to 18 months.

18. The father did all that was asked of him by Dr L.  He attended anger management sessions and was ultimately told that he was not required to continue.  He was respectful at the children’s contact service and with Dr L.  He showed, overall, remarkable resilience.  I find that the father is much more attuned to the children’s emotional needs than is the mother.  I find that the mother is a very competent parent in a practical sense and bears financial responsibility for children with no assistance whatsoever from the father.

19. Neither party is complimentary of the other of them, but the father was prepared to be a little more conciliatory than the mother.  There is no evidence to suggest that the father uses the children as a tool of conflict with the mother.  I find that the mother will ignore the children’s emotional needs to obtain her desired outcomes, first to deny the children time with their father and then to move to Perth.  I find both parents are perfectly capable of attending to the children’s educational needs, although the mother occupies that role in the main at present.  The father is interested in the children’s education on an active basis and goes to parent-teacher interviews.

20. The mother is Australian;  the father from Country H.  The children have an ideal opportunity to share both cultures with their parents.  The world is a small place now and travel possibilities are enormous.  It is a good grounding for the children to understand life from different viewpoints and different cultures.  It helps to develop the children’s emotional and intellectual balances.  These are young boys who love both of their parents, each other, their younger siblings and [G], and there is no evidence to suggest that they have other than a good relationship with Mr Q.  All of these things suggest that it is best for the boys to spend as much time in the households of each of their parents as possible.

21. Subparagraph (h) is not relevant.

22. Subparagraph (i): As to the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents, both the mother and the father love [X] and [Y].  The mother has three other children and a new partner.  The father has limited family and friendship groups in Australia, but he is not reclusive.  He is somewhat shy and retiring.  [X] and [Y] really are the centre of the father’s world, but he does not cloister them from normal activities, outings and visits and he does not rely on them for his own emotional wellbeing to the exclusion of their wellbeing and a balanced life in his household.

23. I have expressed concerns about the mother’s lack of attunement to the children’s emotional needs to suit her own ends.  She is otherwise a responsible parent.  The children are clothed and fed.  Their education is attended to.  She bears the financial responsibility for the children and she complies with orders for the children’s time with their father.

24. I do not consider the incident of 22 December 2017 anywhere near as seriously as both of the parties clearly did.  The mother was somewhat lax in thinking through her responsibilities.  The father is untrusting of the mother, probably with good reason, but there is no history of the mother not complying with orders.  Jumping to a worst-case scenario caused an overreaction on the part of the father.  I accept, however, that the father could not contact the mother, and that lawyers were not readily available at that time of the year.  The whole incident however was sorted out in an hour or so.

25. Communications between the parties are difficult because of the intervention order.  It is hard to see how that can be helpful for anyone, particularly since it is now over four years since separation.  I do not accept that the mother is genuinely afraid of the father, but rather that she is completely disdainful of him.  Not being able to communicate with the father, I find, suits the mother.

26. It is important for parents to be respectful of each other.  It is a major responsibility of parenthood.  Communication is important so that the children are not caught in the middle of a war.  These children are still young, so for example the December 2017 incident was not particularly important from their perspective or likely to impact on them, but the children are getting older.  They need to be free to love both of their parents and to be supported by each parent to do so.

27. I find that the mother’s proposal to move to Perth will significantly reduce the children’s time with their father, which will, in light of their current good relationship with him, negatively impact on their ability to deepen that relationship.  The father’s proposal means that the children will continue to spend regular time in the household of each parent, which is what the children enjoy and what I find to be in their best interests.

28. I find that the father should not be criticised for being opposed to moving to Perth.  He has moved to Adelaide from Country H eight years ago.  He has mastered serviceable English.  He has not gained employment and is not actively looking to do so.  Nevertheless, he has made a life for himself here.  It is not easy for migrants, without supportive close family nearby, and that is not a circumstance that the father in these proceedings enjoys.

29. I find that a move to Perth would isolate him from the current support networks that he has, including Mr F and Ms T, who have been of great assistance to the father over the years since separation.  It was clear from the mother’s material and the parties’ evidence that she did not mind the father liaising with Mr F during the years of the marriage.  She is now very angry that the father and Mr F formed any kind of ongoing relationship and the same applies to Ms T.  She perceives that they are “ganging up” to prevent her moving to Perth.  I do not find that to be so.

30. I find the father’s proposal is, in principle, more reflective of a responsible attitude to parenthood than that of the mother.  The father may not work and may not contribute to child support and they are matters to which he clearly should be turning his attention.  He does however love the boys and does all he can to provide a good and balanced home for them when they are in his care.

31. I have already referred at length to issues of family violence.

32. The existing intervention order covers the mother and [G], who now lives primarily with his father.  I have already referred to the circumstances in which the order was made and found that the mother exaggerated circumstances at the time to obtain an intervention order so as to ensure that the children were returned to her care.

33. As to the court making an order that would be least likely to lead to the institution of further proceedings in relation to the children, I am hoping that the parties in this matter will desist from further litigation and accept the court’s determination; otherwise [X] and [Y] will continue to be subject to feelings of conflicted loyalty and insecurity.  This will only increase as they grow older.  Ultimately what happens in those circumstances is that children very frequently “vote with their feet” and decide to opt out of a relationship with one parent or the other because it is simply too hard for them.  I hope that does not occur for [X] and [Y], who have a great deal to gain from a relationship with each of their parents.

Parental responsibility

1. As to the issue of parental responsibility, parental responsibility is defined in Section 61B of the Act as follows:

   In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

2. Section 65DAC of the Act sets out the effect of a parenting order that provides for shared parental responsibility. The section is in the following terms:

   (1)This section applies if, under a parenting order:

   (a)2 or more persons are to share parental responsibility for a child; and

   (b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.

   (2)The order is taken to require the decision to be made jointly by those persons.

   Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).

   (3)The order is taken to require each of those persons:

   (a)to consult the other person in relation to the decision to be made about that issue; and

   (b)the make a genuine effort to come to a joint decision about that issue.

   (4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons that the decision has been made jointly.

3. Section 65DAE of the Act makes it clear that there is no need for parents to consult on issues that are not major long-term issues. That section is in the following terms:

   (1)If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:

   (a)has parental responsibility for the child; or

   (b)shares parental responsibility for the child with another person;

   about decisions that are made in relation to the child during that time on issues that are not major long-term issues.

   Note: This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long‑term issues.

   (2)Subsection (1) applies subject to any provision to the contrary made by a parenting order.

4. The most common issues that arise that require joint decisions to be made involve schools attended by children, observation of particular events, activities or customs that arise from particular religious and/or cultural beliefs and major health issues arising from serious ill health or accident.

5. The mother seeks sole parental responsibility but in cross-examination said she would consult with the father about some issues.  The father seeks joint parental responsibility.  The mother does not want to communicate with the father at all.  The father is amenable to communicating with the mother if there is no intervention order.  Neither parent presents as having any dogmatic views as to religion or health issues.

6. The children are still young.  Provided orders are in place to reduce conflict, for example which GP is to be attended, notification in relation to health issues and education decisions, I am satisfied that the parties will be able to communicate and navigate those very limited long-term issues.  The children have no serious illnesses at this stage to deal with, nor any psychological problems or educational issues.  The children are happy and progressing well at school.  Both parents are interested in their education.

7. It is clear from the reasons to date that I intend to order that the children remain in South Australia.  The mother’s evidence is clear that she will, in those circumstances, remain in South Australia.  Therefore there is no distance that might make joint decision-making difficult.

8. Equal shared parental responsibility does not involve endless conversation about day-to-day issues but rather respectful communication in relation to major issues.  I am satisfied that the parents can achieve that and should do so as it is reflective of the importance of both parents to these children’s lives.

Conclusion

1. In conclusion, I find that the children’s best interests are met by them remaining in South Australia.  This would give them the opportunity to deepen their relationship with both parents by living in their respective households on a regular basis.  This is to the benefit of both children, who love their time with each of their parents.  It is, to my mind, the way to promote the children’s meaningful relationships with both of their parents.

2. I do not consider the children to be at any risk in the care of either parent.  I am sure that the mother and Mr Q will be disappointed in this outcome;  nevertheless, Mr Q and the mother have now cemented their relationship.  They live together in South Australia with [X] and [Y] and their own two children, as well as [G] sharing their household on alternate weekends and during holidays.

3. Mr Q is a hard worker and is ambitious.  He has purchased a house in South Australia in which the mother and the children live.  He also has a house in Suburb P in Western Australia which he rents to his sister for an amount significantly below market value.  He and the mother promoted the idea that economically they, and therefore the children, would be much better off in Western Australia and that he could work closer to home.  He earns a very good income on a fly-in/fly-out basis.  His evidence about being able to earn the same money by working very close to home was not convincing.

4. He and the mother entered into a relationship in the full knowledge of his working arrangements.  It is clear that money is only tighter than necessary as Mr Q is maintaining two houses with mortgages that need to be serviced.  I find that he could just as easily sell the Suburb P property and reduce or discharge the mortgage on the Adelaide property as he could the other way round, and that in those circumstances the financial situation would improve.

5. I am also concerned that Mr Q is an enthusiastic supporter of the mother’s scathing attitude to the father generally, and that permitting the children to move to Perth may result in the mother’s position, as to the lack of benefit to the children of regular and significant time with their father, being supported by the very person upon whom the mother is financially dependent.

6. I do not consider the mother’s proposal that the father move to Western Australia is a proposal in the children’s best interests.  I find that the father would find it hard to cope and that this in turn would impact on his capacity to provide a secure and calm environment for the children in his care.

7. If the children are staying in South Australia and the parties have joint parental responsibility, I must consider firstly whether the children should spend equal time with each parent, and if not, whether they should spend substantial and significant time with each parent and whether that is in their best interests.  I have to consider the children’s relationship with their young siblings as the age difference is not great and it is a very important relationship for the children.  I also have to consider the lack of a good working relationship between the parents.  There is no evidence from either party as to their household routines.

8. The expert, Dr L, does not support equal parenting time.  I likewise find that it would not be in the children’s best interests for them to share their time equally with each parent.  Their parents have very different households, there are young siblings in the mother’s household, and the children are still developing their relationship with their father.  I do find however that it is in the children’s best interests to spend substantial and significant time with their father.

9. In the most recent report of Dr L, he was of the view that it was best for the children to remain in Adelaide, live with their mother and spend five nights a fortnight with their father.  I find that such an outcome, for the reasons I have given, is best for the children.  That would mean they would spend five nights each fortnight with their father and nine with their mother.  That to my mind is reflective of the children’s best interests.

10. The current order was made almost two years ago, on 24 March 2016.  It provides for the children to spend time with their father from the conclusion of school Friday to the commencement of school Monday, each alternate weekend.  On 20 December 2017, the court made orders in relation to the Christmas holidays just past, so that the children spent time with their father from 10:00am Friday to 4:00pm Tuesday each alternate week and in the intervening week from 2:00pm Friday to 2:00pm Saturday.  That results in five days and four nights in week 1, and one day and one night in week 2.  The term-time order continues currently at two days and three nights per fortnight.

11. I consider that the father’s proposal is too expansive and extensive and increases over 2018 to equal shared time, being seven nights a fortnight with each parent.  I find that eventually five nights per fortnight during school term time and equal time during school holidays as from 2019, would reflect the children’s best interests in that:

    a.it would reflect the equal shared parental responsibility of the parents;

    b.it would reflect the strengthening of the relationship between the children and their father;

    c.it would reflect the children’s right to have a meaningful relationship with both parents and enjoy the culture of both parents and reflect special occasion time;

    d.it would reflect the children’s close relationship with their younger siblings and the importance of that relationship; and

    e.it would acknowledge the children’s close relationship with the mother and Mr Q and their primary role in providing the majority of financial support for the children.

12. For those reasons, the orders of the court are as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and sixty-three (163) paragraphs are a true copy of the reasons for judgment of Judge Mead

Date:  25 June 2019