ELLIS & LANG

[2013] FamCA 912

FAMILY COURT OF AUSTRALIA

ELLIS & LANG [2013] FamCA 912

FAMILY LAW – CHILDREN – With whom a child lives with – Relocation – Best interest of the child - Where competing proposals – Where mother wants to relocate from D Town to E Town to reside with new husband – Where current substantial and significant time arrangement in place – Where mothers proposal would not permit substantial and significant time arrangement to remain in place – Where mother is happy to remain in D Town if not permitted to relocate – Where equal shared parental responsibility ordered - Where ordered that the children live with the mother and spend substantial and significant time with the father.

FAMILY LAW – CHILDREN – With whom a child spends time with – Where court considered distinction between spending time and communicating with a parent – Where is was noted that it was untenable that Skype could be used as a means of spending substantial and significant time with a parent.

Family Law Act 1975 (Cth) s 60CA, 60CC, 61DA, 65DAA, 65DAC.

MRR v GR (2010) 240 CLR 461

Malcolm & Munro (2011) FLC 93-460
Morgan & Miles  (2007) FLC 93-343

APPLICANT: Mr Ellis

RESPONDENT: Ms Lang

FILE NUMBER: TVC 1394 / of 2012

DATE DELIVERED: 25 November 2013

PLACE DELIVERED: Cairns

PLACE HEARD: Q Town

JUDGMENT OF: Tree J

HEARING DATE: 31 October, 1 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr. Betts

SOLICITOR FOR THE APPLICANT: Kelly Legal

SOLICITOR FOR THE RESPONDENT: De Korte Lawyers

Orders

1. The parents have equal shared parental responsibility, in consultation with each other, for the major long-term issues of the children B born … 2006 and C born … 2009 (“the children”).  The parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

   (a)they shall inform the other parent about the decision to be made;

   (b)they shall consult with each other on terms that they agree; and

   (c)they shall make a genuine effort to come to a joint decision.

2. Each parent have sole responsibility for making decision about the day to day care, welfare and development of the children during periods when the children are living with them (except as otherwise provided for in these orders).

3. The parties not relocate the children from the D Town area without the written consent of the other parent or order of a Court.

4. The children live with the mother.

5. The father spend time and communicate with the children at all times as agreed by the parents in writing, and failing agreement as follows:

   (a)during school terms, every second Thursday from after school until before school the following Tuesday morning;

   (b)for the first half of each school holiday period in 2013 and the second half in 2014 and so on in each alternate year thereafter;

   (c)the parent who does not have the children with them for the first half of any given Christmas school holiday period pursuant to order 2(b) shall have time with the children from 2:00pm Christmas Day to 2:00pm Boxing Day.  For the purposes of this order, the parent having time from the home of the other parent and shall return the children at the conclusion of this time to the home of the other parent.

6. During the school term, the father is to collect the children from school at the commencement of spending time with the children and deliver the children to school at the cessation of such time.

7. Save for the Christmas arrangements outlined in paragraph 3(c) above, during school holiday periods, the father is to collect the children from the mother’s home at the commencement of spending time with the children and deliver the children to the mother’s home at the cessation of such time.

8. In the event that either parent cannot care for the children during the times as outlined herein, that parent will contact the other parent to provide them with the first option to care for the children.

9. Whilst the children are in the father’s care, the mother may telephone the children between 6:00pm and 7:00pm and whilst the children are in the mother’s care, the father may telephone the children prior to 7:30pm.

10. The parties will communicate via text message or email in respect of any issues regarding the children.

11. The parties not criticise or denigrate the other party or the other party’s family in the presence of or within hearing of the children.

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: TVC 1394 / of 2012

Mr Ellis

Applicant

And

Ms Lang

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Essentially these proceedings revolve around one issue: should the respondent mother be permitted to relocate from D Town to E Town with the parties’ two children?  If she is not permitted to so relocate, then the parties are agreed that the current arrangements contained in interim consent orders made on 5 March 2013 should continue as final orders.  In the event the mother is permitted to relocate, whilst there are some small differences between the parties’ positions, essentially it is agreed that the children should spend time with their father for all of the school holidays (save at Christmas, when the time with their father would be one half of those holidays) and a number of weekends throughout the year.

OUTCOME

1. For the reasons which follow, I have determined that the mother should not be permitted to relocate the children to E Town, and accordingly there will be final orders in terms of the consent orders made 5 March 2013.

BACKGROUND FACTS

1. There are two children of the parties, being B born in 2006 (“B”) who is presently 7 years of age, and C born in 2009 (“C”) who is presently 4 years of age (“the children”).  They reside in D Town pursuant to an arrangement which sees them spend 5 days per fortnight living with their father, and 9 days per fortnight living with their mother.  They have lived in D Town all their lives.

2. The father is presently 43 years of age.  He was born and grew up in F Town, after which he served in the public service for 12 years in a technical role.  Upon leaving the this position he obtained employment as an instructor, and when working in that role on G Town in North Queensland, met the respondent mother in early 2001.

3. The mother is presently 39 years of age.  She was born and grew up in Country H, where she qualified as a health professional.  Sometime after achieving that qualification she came to Australia, and when working at the I Town General Hospital, met the father.

4. In early 2002 the father sustained a severe break of his leg, in consequence of which he was unable to continue working as an instructor.  At about the same time, the mother accepted a position working in the D Town Hospital, and both parties moved to D Town where they commenced living together in June 2002.  They married in 2003 in J Town.  Since then the mother has continued in her employment as a medical practitioner at the D Town Hospital.  The father has had a number of occupations since then, which I will detail later in this judgment.

5. The parties’ daughter B was born in 2006, and C was born in 2009. 

6. The parties separated on 17 January 2011.

7. As at the time of trial, the mother was living with the children in the former matrimonial home.  The father resides in a home which he built approximately 200 metres from the mother’s home, it having been completed in August last year.

8. In early 2012 the mother met her now husband, Mr K.  He has lived in E Town since June 2004 when he emigrated to Australia from Country H with his then wife and her child from a previous relationship.  Mr K and his former wife had a daughter, R, who was born in E Town in 2004, and is currently 9 years of age.  At a time which is unclear on the evidence, Mr K and his former wife separated and are now divorced.  They share the care of the two children on a week about basis in E Town. 

9. The mother and Mr K were engaged and married in 2013.  The father has also re-partnered, with Ms L.  He had known her from when he was living in F Town, but they first formed a relationship in about early 2012.  At the time of the hearing, she remained living in F Town, caring for her 17 year old son.  She intends to relocate to live with the father in D Town, when things “settle” for her son.

THE CONUNDRUM

1. Quite naturally, the mother wishes to co-habitat with her husband.  He lives in E Town, where, as explained above, he has shared care of his two children.  He works as a mining engineer in one of the E Town mines.  In that role he is in charge of a team of 24 people.  His employer has a policy of requiring its employees to live in E Town, and in his evidence Mr K said that he could not do much of his work other than in E Town itself, because he has responsibility for personally mentoring those within the group he supervises.  It can therefore be seen that for the foreseeable future Mr K will be required to stay in E Town, both for work and family reasons.

2. Leaving aside her natural inclination to be with her husband, there are further reasons why the mother wishes to go to E Town.  Firstly, and most importantly, doing so will enable her to spend more time with the children.  That is because, if she moves to E Town, she would take up a position as a general medical practitioner only working between 9:00am and 3:00pm, with a Dr M.  The mother presently works from 7:30am to 4:30pm in the D Town Hospital.  Her new position would therefore enable her to spend a further 3 hours per day with the children, and importantly, permit her to engage with them in extra-curricular activities both before and after school.  Further, she is presently on-call, which means that she can be required to attend the hospital at night or on weekends.  Doing so presents her with some real difficulties in finding someone to take care of the children if she is called out on short notice.  There would be no call-outs in E Town.  In any event, she would have the support of Mr K.

3. Secondly, albeit related to the first additional reason, is the fact that being able to spend additional time with the children would enable them to partake in extra-curricular activities when they are growing up.  Thirdly, she would like the children to grow up in a home where there is a father-figure and a mother-figure.  She would be able to achieve that if she were living with Mr K.

4. The father presently works at N Town, which is approximately 4 hours’ drive from D Town.  He works on a 7 day on, 7 day off roster, from Wednesday to Wednesday.  For the 7 days that he is working, he stays at the work site.  He has the children living with him during his 7 day off period.

5. N Town is an open cut mine.  All the mines around E Town are underground mines.  It does not appear as though the father’s above-ground skills are easily transferrable to below-ground.  However even if they were, the father does not wish to work underground.  Principally that arises out of an incident as a result of which he sustained Post-Traumatic Stress Disorder.  During the incident, in which two of his workmates died, and his work mate almost died, the father, entered into a void space filled with a noxious gas.  In that void space he established that his two work colleagues were already dead, and that his work mate was nearly dead, but still had a pulse.  The father could not rescue his buddy whilst wearing an air tank, because the opening into the void space was too small.  Bravely, he entered the space without breathing equipment and just managed to get himself and his work mate out of the void space without succumbing to the gas himself.  That the father thereafter suffered Post-Traumatic Stress Disorder is scarcely surprising, and in consequence it will be readily appreciated that there are very good reasons why the father does not ever wish to work in confined spaces such as an underground mine.

6. The father does have other qualifications.  Whilst his qualifications would be unlikely to be of any practical use in E Town, he is also qualified as a butcher.  However his evidence was that he found working on concrete surfaces painful, and did not wish to do so.  Additionally, he has worked as a gardener in a retail environment, worked in an office job in the tourism industry, worked as a casual snorkelling guide, and, by virtue of the fact that he holds a coxswain’s certificate, has worked as a skipper on a tourist boat.  It will be appreciated that for most of these occupations, there is unlikely to be any demand in E Town.

7. In any event, the father does not wish to live in E Town.  He went there on several occasions when he was in the Army, and disliked it intensely.  Further, whilst Ms L is prepared to relocate to D Town, she will not relocate to E Town.  In all likelihood, if the father were to move to E Town, it would terminate his relationship with Ms L.

8. It can therefore be seen that the mother has perfectly good reasons for wishing to move to E Town with the children, and the father has perfectly good reasons for not wishing to move there.  Unfortunately, that means that the outcome of these proceedings will strongly disappoint the unsuccessful party, who will likely be left with a justifiable sense of grievance at the outcome.  As I remarked to the parties during the course of the hearing, it is justifiable because the outcome is reflective of no failing, fault or poor behaviour on their part.

9. However a case such as this is not a competition between parents: the role of the court is to evaluate each of their proposals from the perspective of the best interests of the children.  Therefore to the extent that the unsuccessful party can find any salve for any disappointment they may suffer, it may be found in the fact that the outcome has been adjudged to be the best one from the children’s perspective.

THE STATUTORY REGIME

1. A convenient starting point is section 61DA of the Family Law Act, which by sub-section (1) provides that 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. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to section 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or alternatively, substantial and significant time.

2. S60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s60CC.

3. The application of these provisions in the context of relocation cases has been discussed by many authorities.  In the relatively recent decision of Malcolm & Munro (2011) FLC 93-460 the Full Court approved the earlier decision of Boland J in Morgan & Miles (2007) FLC 93-343, and particularly at paras.79 to 81, where her Honour said as follows:

   79. In considering whether the child should live with the parent who proposes to relocate a court:

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

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

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

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

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

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

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

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

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

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

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

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

   80. It follows from my exposition of the legislation, that earlier core principles:

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

   -    that a parent wishing to move does not need to demonstrate “compelling” reasons;

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

   -    the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,

   remain valid.

   81. What the legislation now requires is:

   -     consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;

   -     if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility  applies the consequences of an order for equal shared parental responsibility.

   but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority.  It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.

THE PARTIES’ PROPOSALS

1. The parties are agreed that it would be in the children’s best interests for the parents to equally share parental responsibility.  Plainly their agreement is correct.  They are each excellent parents and have much to offer their children.

1. Neither party seeks – in any circumstance – that the children spend equal time with each of their parents.  Even if I were to consider that that might be in their best interests, it is not reasonably practicable in D Town because the father’s work commitments would not permit equal time.  The parties have sensibly identified that the nine/five split is the best arrangement in the circumstances prevailing in D Town.  I agree.

2. The matter took a somewhat unexpected twist during final submissions, when the mother’s solicitor conceded that it would be in the children’s best interests for them to spend substantial and significant time with each of their parents.  However when questioned, it became clear that that concession was conditional upon the court concluding that a child who is engaged in Skype or other similar electronic communication with a parent is spending time with them.  I reject that contention.  The Act clearly draws a distinction between a child spending time with a parent, and communicating with a parent.  Spending time with the parent is intended to capture time in close physical proximity to the parent, if not actually physically face-to-face.  Were it otherwise, the mother’s argument would have to extend to the unlikely conclusion that a child could be taken to spend substantial and significant time with a parent only by means of Skype, yet never being physically in their presence.  That is simply untenable.

3. The mother’s solicitor also sought to base the concession upon a technicality.  He said that by virtue of the weekend time his client proposed the children would spend with the father, and particularly because they would see him on Friday night after they had flown into I Town from E Town, that they would be spending time with him on a day that did not fall on weekends and holiday.  He therefore argued that this regime constituted substantial and significant time.  Such an argument standing alone is quite an unattractive one, however as Mr. Betts, who appeared as counsel for the father submitted, in any event, even if Friday night time could technically be held not to fall on a weekend or a holiday, nonetheless s65DAA3(b) is conjunctive with sub-paragraph (a), and spending a Friday night with the parent would not permit the father to be involved in the children’s daily routine.

4. Part of the reason for this perhaps somewhat unusual approach of the mother may have arisen from her frank concession that the best outcome for the children would be for the mother to be permitted to relocate to E Town, and for the father to relocate there too.[1]   Further, she correctly identified that her proposal, in the event that the father did not also relocate, would not be the ideal situation “as our children would not be seeing [the father] during most of the school term.”  I shall review that and some additional material when considering the s60CC factors in this case.  However at this stage of these reasons, I reject the mother’s attempts at construing her proposal as permitting the conclusion that it would see the children spending a substantial and significant time with the father.  It would not. 

   [1]Mother’s affidavit sworn 22 August 2013 para.24.

5. Therefore – at least initially – the first matter I need to address is whether or not it is in the children’s best interests that they spend substantial and significant time with each of their parents, and in the event that it is, whether it is reasonably practicable.  Against that background, I will review the s60CC considerations, and then consider where the children’s best interests lie.

SECTION 60CC FACTORS

S60CC(1)(a): The benefit to the child of having a meaningful relationship with both of the child's parents

1. Both the mother and father are exemplary parents in their own way.  Both are clearly devoted and child focussed.  Each concedes that the other is an excellent parent.

2. Since separation, by agreement between the parties, the mother has been the principal care provider to both girls.  Whilst the father says that he would have been quite happy to have equal shared care, but did not press for it because he knew that the mother would never agree to it, even if that be so, it cannot detract from the fact that the mother has been the primary nurturer of the children.  That was the opinion of the Family Report writer, Mr. O and I accept it.

3. However both the mother and father have much to offer these children.  It was conceded by the mother that the father can bring to the table things which she cannot: for instance, the father is a more adventurous and outdoor sort of person.  He focusses his time with the children principally around engaging them in activities.  He likes doing things together with them.  As but one illustration of that, the father keeps at his home a number of non-venomous snakes and apparently also has a large fish tank.  The Family Report writer, when he attended that home, noticed the excited engagement of the girls in relation to these things.  It appears as though that sort of interaction is not as prominent a feature of the girls’ lives in their mother’s home.  In fact, part of the mother’s case was that her time with the girls is, of necessity, subject to an almost military-style discipline to get them ready for school or day care by the time she needs to leave for work, and feeding them, getting them showered and ready for bed, after she returns from work.

4. In this context it is useful to note the father’s uncontradicted evidence as follows:[2]

   [Ms Lang] and I had in fact discussed that if we should ever separate, we would ensure that we would buy or construct a home close to one another to ensure that there was as little disruption to the children’s living arrangements as possible.

   [2]Father’s affidavit sworn 12 August 2013 para.23.

5. Seemingly in conformity with that, and without objection by the mother, the father purposely purchased a block of land about 200 metres away from the mother’s residence and built a home on it.  That means that the children – irrespective which parent they are living with – live in the same neighbourhood, and hence are equally close to their respective schools, day care and friends.  Although the relative harmony that existed between parents appears to have soured somewhat towards the end of last year, in part because of the mother’s desire to relocate, the good sense which underpinned the parties living nearby each other remains undoubted.

6. In his affidavit, the father said:

   Both [B] and [C] enjoy spending time with me and I have based my roster on all other aspects of my life around my children, this includes my relationship with [Ms L]…[3]

   …

   My children mean everything to me.  I have remained in the [D Town] region, built a residence in close proximity and spend as much time as I possibly can with my children…

   [3]Para.66.

7. None of this was challenged by the mother.

8. Therefore not only do I conclude that the children would benefit from having a meaningful relationship with both of their parents, I also conclude that both the mother and the father have evidenced an equal determination to give their children the full benefit of that meaningful relationship, and are each desirous of continuing that into the future.  Further, each concedes that the children will benefit from having that meaningful relationship.

S60CC(1)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. Not relevant.

S60CC(3)(a): 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 it should give to the child's views

1. The children are too young to have any weight attached to any expression which they may have given.

S60CC(3)(b): The nature of the relationship of the child with:

1. each of the child's parents; and

2. other persons (including any grandparent or other relative of the child)       

1. I have already touched upon the relationship which the children have with each of their parents.  However it is useful to again stress that the father presents as very activity focussed.  At para.69 of his affidavit he says that weekend time with the girls is spent at markets (where they collect gems) or in the park, or at the beach or going fishing.  None of this was challenged in any way.

2. The nature of B’s relationship with the father was touchingly encapsulated in the father’s evidence of his attempts to get her to join her friend P in undertaking dancing lessons.  Although she is clearly close to P, B said to the father that she did not wish to go dancing.  The father then enquired what other activities she may have an interest in, and particularly queried whether she wanted to learn to play soccer.  Her response was that she didn’t want to do that either.  Rather she said that what she wanted to do was to go bush walking, or go to the beach, with the father.  It appears plain that not only is the father’s interaction with the children largely experience and activity based, but the children identify that their relationship with the father is based upon, in large part, their regular engagement in those activities with him, and they obtain real benefit and enjoyment from them.

3. On the other hand the mother brings a different set of valuable benefits to the children in her relationship with them.  Whilst I accept that the father has a nurturing relationship with the children, and can emotionally support them, I also accept that, if only by virtue of the fact that they spend more time with the mother, she is the primary nurturer of them.  It is plain that the mother has a more rigid daily regime with the children, in part because she is forced to, however part of her criticism of the father is that he is not as disciplined in attending to the children as she is.  She cited examples of the children not brushing their teeth, or the father not brushing the girls’ hair.  In fairness to her, I do not think that she put these forward as any serious criticism of the father, however I think what they do illustrate is a somewhat more rigid approach by the mother, and a somewhat more laid back approach by the father.  In making that observation, I am not being critical of either parent.  Rather it is a further indication of the different approaches which each of them bring to bear for these two girls.

4. Of some importance, but by no means of such importance as the children’s relationship with their parents, are the girls’ relationships with firstly, people in the D Town district, secondly Mr K and his family members, and thirdly Ms L.

5. Turning firstly to the D Town based relationships, it seems plain that the girls enjoy sound relationships both with other children of around their own age who live in their area, and with other adults in that area.  One of adult relationships is said to be a “surrogate” grandparent relationship, which may be of some significance given that the maternal grandmother resides in Country H, and the paternal grandmother resides in F Town.  To the extent the girls are able to form friendships or relationships with older people, the D Town based relationships may therefore be of some significance.

6. Next there is the girls’ relationship with Mr K and his children.  In his affidavit sworn 22 August 2013, Mr K says that his children have met the parties’ children on a number of occasions, including the Easter holidays in 2012, the September school holidays, and at Christmas of that year.  There have been another seven occasions when the families have met in either D Town or E Town.  Everyone enjoys each other’s company.

7. Finally as to their relationship with Ms L, although the mother in her affidavit said that she was of the view that Ms L was a “virtual stranger” to the children, it appears as though she has, to some extent, adjusted that view to accept that in fact they have a good relationship with her.  Amongst the evidence was a photograph of Ms L and the two girls in a pool, which clearly demonstrated a familiarity and comfortable relationship between them.

S60CC(3)(c): The extent to which each of the child's parents has taken, or failed to take, the opportunity:

1. to participate in making decisions about major long-term issues in relation to the child; and

2. to spend time with the child; and           

3. to communicate with the child

1. Both parties are excellent parents.  No criticism could be made of either of them in relation to any failure to involve themselves in all aspects of their children’s lives.

S60CC(3)(ca): The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

1. The father pays $100.00 per week by way of voluntary child support.  The mother’s criticism that he unilaterally reduced that from $150.00 without consultation with her, is to a large extent met by the husband’s uncontradicted assertion that if the relevant formula were to be applied, the mother would in fact be paying him child support.  No criticism could be made of either of the parents in relation to this consideration.

S60CC(3)(d): The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

1. either of his or her parents; or

2. any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. On no scenario will the children be separated from their mother.  On the other hand, the mother seeks an order that would permit, in effect, the children to be separated from their father, save for holiday time and some weekend time.  It can be accepted that the immediate effect of that separation – without more – will be one of sadness and grief, which is unlikely to lead to any permanent consequence or effect by itself.

2. On the other hand, and far less difficult to predict, is the effect on both girls of not having the activity based regular time with their father, and apart from occasional weekends, not spending any time with him during their weekday schooling.  Plainly the father has much to offer these children; equally plainly, their lives will be the poorer for any reduction in their time spent with him.  Indeed this is conceded by the mother; her point however is that she will be able to effect a better parent relationship with the children, because she will have more time to spend with them, and the time that she spends with them will be less pressured.

3. Although I have no doubt that the mother genuinely believes that by living in E Town her relationship with the children would be better, and indeed I find that it likely would be better, because her parenting is of a different style, even that increased time with them, and any increased quality in the relationship between the children and the mother, will not fully compensate the children for their lack of regular time with the father.  Therefore I conclude that the likely effect of the children’s time with the father being heavily curtailed will be to their net disadvantage.     

4. In this context it is useful to note that although the mother offers the father all of the school holiday periods, with the exception of Christmas (when she proposes that he would spend half of that holiday time with the children) there are a number of practical impediments to that in fact being fully enjoyed by the father.  The father is employed pursuant to a written contract which was tendered in evidence.  He works 12 hour shifts, 7 days in a row, and then has 7 days off.  His shifts are from a Wednesday to a Wednesday.  His uncontradicted evidence was that his employer does not like dribs and drabs of leave to be taken; rather his evidence was that the employer prefers that employees take what was referred to as “blocks” of recreation leave.  The likely effect of this is that in any 2 week school holiday period, the father would only get to spend 1 week with the children, and assuming that Ms L was by then living with the father in D Town, the children would actually be spending time with her for the balance of the school holiday period.

5. Therefore, and for present purposes ignoring any Christmas holiday and weekend time, the effect of the mother’s proposed orders would be to reduce the time that the girls spend with the father from 5 days every fortnight, to about 7 days every three months.

6. The weekend time is equally problematic.  There appear to be no direct regular scheduled passenger flight services between E Town and other towns in the rgion.  D Town’s nearest passenger airport terminal is I Town.  It is something in excess of a 4 hour drive between I Town and D Town.  Therefore although the mother has generously proposed that she would pay for the children to travel to spend time with the father on 6 weekends a year, and would make the children available for other weekends, whether in E Town or elsewhere, at the father’s expense, the chances of the children spending time on those weekends at the father’s home in D Town are slight. 

7. In recognition of the travel time involved, the father proposed that any weekend time with the children would be spent in I Town.  Whilst the father did not detail precisely what arrangements he had in mind in I Town, there is no evidence that he has access to accommodation there other than the ordinary holiday type accommodation.  There is no evidence that the girls have any friends or family in I Town.  Therefore any weekend time spent pursuant with the father in I Town would be quite different to the time which the children have thus far spent with the father during their lives.  It would plainly be of a lesser quality.  One could readily imagine that during adolescence, teenage girls would find separation from their friendship group, in a relatively strange city in which they have never lived, less than attractive. 

8. There is no evidence of any relationship with another person, separation from whom would likely have any effect upon either child.

S60CC(3)(e): 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

1. The only occasion when there will be practical difficulty and expense in the children spending time and communicating with either parent would be if the mother relocated to E Town

2. The mother sought to argue that the use of Skype, FaceTime, or other electronic means of communication, could adequately maintain the relationship between the father and the children.  In this respect she was substantially supported by the oral evidence of the Report Writer.  However the father gave evidence that at N Town there is such demand for internet use by other parents wishing to keep in touch with their children that the service is poor, and generally inaccessible by him until after the children’s bedtimes.  On the evidence, there is no reason to doubt that.

3. Even with the best will in the world, the reality is that the remoteness of E Town, or more particularly the absence of any regular scheduled passenger flight between it and Q Town, or some other airport close to D Town, means that if they live in E Town, the children’s personal relationship with their father, and their ability to have regular direct contact with him, will be substantially curtailed, and it will not be able to be adequately compensated by electronic communication.

S60CC(3)(f): The capacity of:

1. each of the child's parents; and

2. 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

1. Each parent has good capacity to provide for the children’s needs.  It is not necessary to determine the correctness of the mother’s criticism of the father to the effect that he could not function as their primary carer, because there was no proposal that the father be the primary carer of the children.

S60CC(3)(g): The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

1. This does not appear to be relevant in this case.

S60CC(3)(h): If the child is an Aboriginal child or a Torres Strait Islander child:

1. the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

2. the likely impact any proposed parenting order under this Part will have on that right

1. This is not relevant in this case.

S60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. This is relevant in this case in two respects.  The first is that each parent has a strong desire to maintain a close, supportive and direct relationship with the children.  The second is the somewhat unusual action by the father of deliberately positioning his home in the same neighbourhood as the mother and the children, so that not only is the process of moving between the two homes relatively seamless for them, but they continue to enjoy the same access to friends, schools and day care as they do from the mother’s home.  This is an unusual feature of this case.  The father has in very tangible and child focussed ways, deliberately designed his life around parenting the children.

Section 60CC(3)(j) Any family violence involving the child or a member of the child’s family

1. This is not relevant.

S60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

1. the nature of the order;

2. the circumstances in which the order was made;

3. any evidence admitted in proceedings for the order;

4. any findings made by the court in, or in proceedings for, the order;

5. any other relevant matter

1. This is not relevant.

Section 60CC(3)(l) Whether it be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. This does not appear to be relevant.  There was some evidence from Mr K that the expectation of the mine life at E Town is only a further six years, at the conclusion of which he will likely need to seek employment elsewhere.  Even if that proves to be so, it is probably too long a bow to draw to connect that with the prospect of institution of further proceedings at that time.

Section 60CC(3)(m) Any other fact or circumstance that the Court thinks relevant

1. I cannot identify any other fact or circumstance relevant to this case.

BEST INTERESTS – SUBSTANTIAL AND SIGNIFICANT TIME

1. Both parents have much to offer these children.  The father offers the children a different parenting approach and range of experiences, although remaining very child focused.  He presents a more experience based, and less rigid, approach to parenting than does the mother.  The mother’s proposed increase in time with the children would not compensate for their lack of regular exposure to the father and the things which he brings into their lives.  The only way in which that valuable benefit to these girls can be fully enjoyed by them, is by spending substantial and significant time with their father.

2. I therefore find that it is in the children’s best interests that they spend substantial and significant time with each parent.

REASONABLE PRACTICABILITY

1. The parties have been separated for almost three years.  During that time it may be fairly said, as was submitted by Mr. Betts, that the children have flourished.  The proposal of the father is that the regime which has seen them so flourish should continue.

2. The only basis upon which it could be said that it was not reasonably practical for the children to continue spending substantial and significant time with each parent would be because of the mother’s work commitments, being between 7:30 in the morning and 4:30 of an afternoon, together with call outs at night and weekends.  The simple reality is that that has been her work regime for much, if not all, of the time that she has lived in D Town and been working at the hospital.  Moreover she has, although no doubt with a degree of stress and tension, been able to effectively parent the children under that regime.

3. This is not a case of the kind of MRR & GR[4], where a parent is asserting that the continuation of the existing regime would put their parenting ability or capacity at risk.  Far from it.  The mother here does not say that she cannot continue to parent the children in D Town; indeed she acknowledges that in the event that relocation is not permitted, she will remain in D Town.  Rather her case was one of enhanced capacity to parent in E Town, because of the extra time she would be able to spend with the children, and the fact that she would be less stressed.  However the fact that she may be able to more optimally parent the children in E Town does not mean that it is not reasonably practicable for her to continue to parent the children in D Town.

   [4](2010) 240 CLR 461.

4. Fortunately, this is not one of those cases where it is predicted that in the event that the mother is unable to relocate to E Town, that her relationship with Mr K will fail.  Any doubt of Mr K and the mother’s commitment to that relationship evaporates in view of the fact that, notwithstanding the live possibility that they would not be able to live together in E Town, they chose to marry just last month.  Both Mr K and the mother agreed that, in the event that relocation was not permitted, their relationship could continue as it has in the past, and under which circumstances it has succeeded.

5. I do not ignore the fact that the mother identified that she wished, in the event that she were able to live with Mr K, to have another child with him, however there was no suggestion that if that desire could not be achieved, the relationship would in some way fail.

6. I therefore conclude that, so long as the mother resides in D Town or its near surrounds, it is reasonable practicable for the children to spend substantial and significant with each of the parents.

7. I turn then to consider whether, in the event the children were to relocate with the mother to E Town, it would be reasonable practicable for the children to spend substantial and significant time each of their parents.  I have already rejected the suggestion by the mother’s solicitor that substantial and significant time, as defined in s65DAA(3) of the Act, can be achieved by the employment of Skype or other electronic communication, and have accepted Mr. Betts’ submission that the children spending 6 or more school day Friday nights with the father during the course of the year would not satisfy the definition either.  It follows then, that if they were to live in E Town, the only way in which the children could spend substantial and significant time with the father is if he was to relocate to E Town as well.

8. In her affidavit sworn 22 August 2013 at para.24 the mother clearly expressed her preference for this outcome in the following terms.

   I am of the view that it would be in the best interests of the children if we were allowed to relocate and [Mr Ellis] were also to relocate to [E Town].  Whilst I am unsure as to exactly what he does at the N Town Mine, it is a common fact that the mines in [E Town] regularly advertise for suitably qualified people.  Whilst I do not in any way intend to suggest that his work is not important to him or that my work is more important than his, I am of the view that [Mr Ellis’] past employment history does show that he has moved a lot between jobs and occupations during the past.  Whilst I accept that work is hard to come by in the present economy, I am of the view that [Mr Ellis] should at least attempt to secure employment in [E Town].  It should also be borne in mind that [Mr Ellis] is a qualified Butcher and that [E Town] is booming, with many people flocking there, with an obvious increase in the mouths to feed there.

9. Unusually, in this case there was no other evidence as to the prospect of the father being able to obtain employment in E Town.  Ordinarily, one would expect there to be material from an employment consultant or similar analysing the employment situation in E Town, and perhaps, by reference to advertised positions or industry knowledge, identifying suitable positions for the father.  However that sort of material is not a feature in this case.  Nor was there any evidence as to the availability of suitable housing for the father in E Town, or its likely cost, or indeed the cost of living in E Town, which is a quite remote location.

10. Further, the mother did not seek to argue that the father could maintain his current employment at N Town on a fly-in fly-out basis from living in E Town.  Perhaps that was in recognition of the difficulty in finding suitable flights which would accommodate commuting between the two locations.

11. Therefore, the only material which the mother puts forward as ostensibly being sufficient to persuade me of the father’s employment prospects in E Town is her assertions recited above, which concedes that “work is hard to come by.”

12. I have already identified that in my view the father has a good and readily understandable reason for not wishing to work in an underground mine.  Further, both his evidence and the uncontradicted evidence of Ms L was to the effect that she would not contemplate living in E Town, in consequence of which the father’s relationship with her would become tenuous. 

13. Additionally, there is likewise the uncontradicted evidence of the father that he strongly dislikes E Town.  In that regard there can be no doubt that it is a remote inland location, which appears to be expensive to fly in and out of.  Indeed one only needs to consider the facts of MRR & GR itself to recognise that the father is not alone in viewing E Town as an undesirable location to live.

14. However ultimately it is the absence of any real evidence of any substantial prospect of the father being able to obtain employment in E Town which is critical in this case.  It could not seriously be suggested that the father ought give up his well remunerated and relatively secure position at N Town, which he enjoys, merely on the off chance that he might be able to obtain some kind of employment sometime in the future at E Town.  Absent that evidence, I cannot conclude, should the mother be permitted to relocate with the children to E Town, that it is reasonably practicable for the children to spend substantial and significant time with each parent.

OTHER CONSIDERATIONS

1. I am mindful that one of the basic rights of the mother is to choose to travel and live wheresoever she wishes.  Because of her avowed position that she would never be other than the primary care provider to these children, refusing her leave to relocate with the children to E Town necessarily curtails, on a practical level, that right of unrestricted movement.

2. However the children’s best interests remain the paramount, albeit not sole, consideration in this case.  Except to the extent that they bear upon the children’s best interests, the mother’s interests are subservient, particularly in this case because it is not said that restricting her travel would substantially impair her capacity to parent the children.

CONCLUSION

1. For these reasons I am of the view that it is in best interests of the children that the mother not be permitted to relocate them to E Town.   There will therefore be orders in the terms proposed by the father.             

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 25 November 2013

Associate: 

Date:  25 November 2013