FINCH & FINCH

[2013] FCCA 1117

FEDERAL CIRCUIT COURT OF AUSTRALIA

FINCH & FINCH [2013] FCCA 1117

Catchwords:
FAMILY LAW – Parenting – Children 9 and 6 years – history of significant and substantial time with Father – Mother seeks to relocate with Children to Melbourne – Mother’s partner lives in Melbourne – application refused.

Legislation:  

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC

MRR v GR [2010] HCA 4
Sayer & Radcliffe & Anor [2012] FamCAFC 209

Applicant: MS FINCH

Respondent: MR FINCH

File Number: SYC 3445 of 2012

Judgment of: Judge Sexton

Hearing dates: 12, 13 and 14 June 2013

Date of Last Submission: 14 June 2013

Delivered at: Sydney

Delivered on: 22 August 2013

REPRESENTATION

Counsel for the Applicant: Ms McIntosh

Solicitors for the Applicant: Peter Cornock & Associates

Counsel for the Respondent: Mr Gueteres

Solicitors for the Respondent: Craddock Murray Neumann

THE COURT ORDERS THAT:

1. The parties have equal shared parental responsibility for the Children X born (omitted) 2004 and Y born (omitted) 2006 and in the exercise of that parental responsibility, the parties shall each do the following:

   (a)Consult with each other in relation to decisions to be made concerning issues pertaining to the long term welfare of the Children including but not limited to:

   (i)The Children’s health and medical treatment;

   (ii)School and educational activities;

   (iii)Extra-curricular sports, activities and events;

   (iv)Religious activities; and

   (v)Interstate and overseas travel.

   (b)Make a genuine effort to come to a joint decision concerning the issues referred to above.

2. Each party have sole parental responsibility for the day to day decisions relating to the Children when they are in that party's care.

3. The Mother forthwith, in consultation with the Father as to a convenient time, make an appointment for X with his General Practitioner and the parties attend the appointment together to review X's Asthma. 

Schooling

1. Unless otherwise agreed between the parties in writing, the Children attend (omitted) Primary School (where they are currently enrolled) until the completion of their primary school education and the Court notes that the Father agrees to pay half each Child’s school fees at that school each year.  

Live with/spend time with arrangements

1. The Children live with/spend time with each party as agreed and if not agreed then the Children live with the Mother in Sydney and spend time with the Father as follows:

   (a)During school terms:

   (i)On each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday morning; and

   (ii)Each week from the conclusion of school on Tuesday until the commencement of school on Wednesday morning; and

   (iii)Each week from the conclusion of school on Thursday until 7.00p.m. 

   (b)During school holidays:

   (i)For one half of each school holiday period, such periods to be agreed between the parties, but in default of agreement, for the second half of all school holiday periods in 2013 and each alternate year thereafter and in the first half of school holiday periods in 2014 and each alternate year thereafter:

   (ii)School holiday periods shall be determined by reference to the school website for the school the Children are attending. 

   (iii)School holidays are deemed to commence on the day immediately following the last day the Children are required to attend school and end on the day immediately prior to the first day the Children are required to attend school.

   (c)On the Father’s Day weekend each year from 5.00p.m. on the Saturday until 4.00p.m. on Father’s Day.

   (d)On the Father’s birthday each year for a period agreed between the parties, but in default of agreement, from 2.00p.m. to 6.00p.m if a weekend, and from after school until 7.00p.m. if a weekday.

2. Unless otherwise agreed, the Children spend time with each party on each Child’s birthday as follows: 

   (a)In the event the birthday falls on a weekend or a day when the Children are not at school the party with the care of the Children on that day in the usual course, spend time with the Children until 2.00 p.m. and the other party spend time with the Children from 2.00 p.m. until 7.00 p.m.;

   (b)In the event the birthday falls on a day when the Children are at school the party who does not have the care of the Children on that day in the usual course spend time with the Children from the conclusion of school until 5.30 p.m.

3. Notwithstanding any other Order, the Children spend time with the Mother as follows:

   (a)On the Mother’s Day weekend each year from 5.00 p.m. on Saturday until 4.00 p.m. on Mother’s Day;

   (b)On the Mother’s birthday each year for a period to be agreed between the parties but in default of agreement, from 2.00 p.m. to 6.00 p.m if a weekend, and from after school until 7.00 p.m. if a weekday.

Public holidays, pupil free days and sick days

1. The Children spend time with the Father each year on Australia Day from 9.00 a.m. to 5.00 p.m. notwithstanding any other Order herein.

2. During the Easter period: 

   (a)In 2014 and each alternate year thereafter time the Children spend time with the Mother from 9.00 a.m. on Good Friday until 6.00 p.m. on Easter Saturday and with the Father from 6.00 p.m. on Easter Saturday until 6.00 p.m. on Easter Monday;

   (b)In 2015 and each alternate year thereafter time the Children spend time with the Father from 9.00 a.m. on Good Friday until 6.00 p.m. on Easter Saturday and with the Mother from 6.00 p.m. on Easter Saturday until 6.00 p.m. on Easter Monday;

3. During the Christmas period, the Children spend time with each party as follows:

   (a)With the Mother from 4.00 p.m. on Christmas Eve until 10.30 a.m. on Christmas Day in 2013 and each alternate year thereafter;

   (b)With the Father from 4.00 p.m. on Christmas Eve until 10.30 a.m. on Christmas Day in 2014 and each alternate year thereafter;

   (c)With the Father from 10.30 a.m. on Christmas Day until 4.00 p.m. on Boxing Day in 2013 and each alternate year thereafter;

   (d)With the Mother from 10.30 a.m. on Christmas Day until 4.00 p.m. on Boxing Day in 2014 and in each alternate year thereafter;

4. Unless otherwise provided in these Orders, the parties shall agree upon the time the Children shall spend with each parent on public holidays and pupil free days.

5. In the event a Child is unwell and unable to attend school the party with the care of the Children the night before continue to have the care of the Child the following day until 6.00 p.m.

6. In the event that one party has a Rostered Day Off, or is not working on a day when one or both of the Children are unwell and unable to attend school, that party shall be responsible for caring for the Child (or Children) until 6.00 p.m.

7. Each party ensure that the clothing worn by the Children at changeover is returned to the other party at the next changeover. 

Communication between the parties and with the Children

1. The Children be permitted to have liberal telephone, or Skype time with each party at any reasonable time and for the purpose of this Order, the party with the care of the Children ensure the Children are available to speak to the other party, that the telephone has sufficient signal and battery charge and each party encourage the Children to speak to the other party.

2. The parties communicate with each other with respect and refrain from using aggression or anger in any form of communication, whether by email, telephone or text message.

3. Each party be restrained by injunction from denigrating the other party, the other party's partner or members of the other party's family to the Children or in the presence or hearing of the Children or at all.

4. Each party do all acts and things to prevent any form of denigration of the other party, his/her respective partner or any member of either party's family by a third party in the presence or hearing of the Children or at all.

Travel and passports

1. The Children be permitted to travel on international holidays with either party provided that:

   (a)The travelling party has provided to the non-travelling party at least 4 weeks’ notice of his/her intention to travel with the Children.

   (b)The travelling party has provided to the non-travelling party a detailed itinerary of the Children’s travel, a copy of the Children’s return air tickets no later than 14 days prior to departure.

   (c)The travelling party has provided a telephone number and email address for each overnight destination for the Children. 

   (d)The Children do not miss a school day without the prior written consent of the other party.  

2. The Children be permitted to travel on interstate holidays with either party provided that:

   (a)The travelling party has provided to the non-travelling party at least 7 days’ notice of his/her intention to travel interstate with the Children;

   (b)The travelling party has provided to the non-travelling party a detailed itinerary of the Children’s travel, including the names and addresses of where the Children will sleep each night, a copy of the Children’s return air tickets and a telephone number for each destination the Children will be staying.   

   (c)The Children do not miss a school day without the prior written consent of the other party.  

3. Each party complete that party’s section of a passport application for either Child, immediately on receipt of the passport application from the other party, and return the document within 7 days to the party making the application, and the party applying pay the costs of the application. 

4. The Mother retain the passports and release them to the Father upon his compliance with Order (19) herein.

Review of arrangements

1. The Court notes that the parties agree to review these arrangements when X is in Term 3, Year 6 and if they are unable to reach agreement in relation to the Children’s secondary schooling, or in relation to any other parenting issue, they will seek the assistance of Relationships Australia. 

2. Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 3445 of 2012

MS FINCH

Applicant

And

MR FINCH

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case concerns parenting arrangements for the parties’ two Children, X, aged 9 years and Y aged 6 years (at the time of hearing).  X was 5 years and Y two and a half years of age when the parties separated. The Children have lived primarily with the Mother since separation but have spent substantial and significant time with the Father by voluntary agreement between the parties. The Mother now seeks orders permitting her to relocate to Melbourne with the Children. 

2. The parties agree that, despite the length of time since their separation, they have been unable to establish a cooperative co-parenting relationship. Their communication is poor and each complains the other denigrates the other to the children.[1] X told the Family Consultant that he knows his parents are angry with one another.[2]  Y is also aware of the parental conflict.[3]   

   [1] Exhibit 1 (Family Report of Ms A, dated 2 May 2013) at paragraphs 22 & 25

   [2] Ibid at paragraph 33

   [3] Ibid at paragraph 35

Background facts

1. The parties commenced living together in 2001, married in (omitted) 2003 and separated in April 2009. They divorced in December 2011. X was born on (omitted) 2004 and Y was born on (omitted) 2006. 

2. The Mother is 34 years of age. She is a (occupation omitted) and is employed in (omitted) at (omitted) 3 days a week from 9.00 a.m. until 5.00 p.m. The Mother lives in (omitted) in the former matrimonial home, now owned by the Father, to whom she pays rent. She lives approximately 5 minutes from the Father and the children’s school. The Mother says she suffers chronic pain from a neck injury she sustained in the workplace in May 2002, and suffers from migraine headaches every 4-6 weeks. She says she is unable to work more than 4 days a week due to her neck injury. She has been receiving compensatory income from her insurer but she expects it to stop soon. In September 2011, the Mother underwent major kidney surgery. The Mother has a father in Tasmania and a mother and brother in Sydney. Her mother suffers poor health and the Mother says her brother is only in Sydney on a temporary basis to help care for their mother. 

3. The Mother commenced a relationship with Mr D in (omitted) 2012. Mr D and his extended family live in Melbourne.  Mr D, aged 34 years, is a (occupation omitted) and has been employed by (omitted) in (omitted), Victoria for 11 years. He owns a home subject to mortgage in (omitted) in the western suburbs of Melbourne. The Mother and Mr D say they plan to marry and hope to have children in the future. 

4. The Father is 34 years of age and works full time on a rotating roster as a (occupation omitted). He has lived with his parents in (omitted), in the western suburbs of Sydney, since the parties separated in April 2009. The Father has been in a relationship with Ms H for 4 years. The Mother and Ms H had known each other for many years before Ms H became the Father’s partner shortly after the parties’ separation.  Ms H is a (occupation omitted), and is currently employed as the (occupation omitted) at (omitted). The Father and Ms H do not live together but plan to do so by the end of 2013 in the (omitted) area. They hope to marry and possibly have children.

5. X is in Year 4 and Y in Year 1 at (omitted) Primary, a (omitted) school located close to both parties’ homes. X was diagnosed with asthma when under 2 years of age, and has been admitted to hospital as a result of asthma attacks both before and since separation. X has also been diagnosed with Attention Deficit Hyperactivity Disorder by Dr T, paediatrician.  He is not taking medication, but sees a psychologist, Dr P, for behavioural therapy. The Mother says that X struggles academically but enjoys (activities omitted).  Y has a divergent squint and is under the care of a paediatric ophthalmologist, Dr R. The parties agree she will undergo surgery for this condition, shortly. 

6. From the time of separation until the parties entered into a Parenting Plan in June 2010, the Children spent 5 nights a fortnight with the Father. From June 2010 until approximately February 2012, the Children spent 4 nights a fortnight with the Father as well as Thursday afternoons. The parties give different accounts of why there was a reduction in overnight time. In 2011, the Children’s time with the Father on Thursday afternoons ceased because of tension caused by the parties' different views about the tasks the Father should complete during that afternoon period.

7. The parties resolved their financial issues by way of a Binding Financial Agreement in October 2010.  

Current arrangements

1. In accordance with the Parenting Plan agreed by the parties in 2010, the Children live with the Mother and spend time with the Father each Tuesday overnight and each alternate weekend from Friday after school until Sunday at 6 p.m. These arrangements continue during school holidays at the end of Terms 1, 2 and 3 and the Children spend half the Christmas school holidays with each party. 

Orders sought by each party

1. In her initiating application filed in June 2012, the Mother sought final orders for equal shared parental responsibility, for the Children to live with her in Melbourne, to spend time with the Father on two weekends a term and half school holidays in Sydney and at other times in Melbourne as nominated by the Father. By his Response, the Father sought orders that the Mother be restrained from relocating with the Children outside Sydney, that the Children live with the Father for 4 nights a fortnight during school terms, for half school holidays and on special occasions. 

2. On 21 May 2013, the Father proposed, by letter to the Mother’s solicitors, that the Children spend 5 nights a fortnight with him, in addition to half of all school holiday periods. 

3. By amended Application filed just prior to this hearing in June 2013, the Mother sought an order for sole parental responsibility in relation to the Children’s medical issues, and if not permitted to relocate to Melbourne with the Children, the Mother sought orders permitting her to relocate within the Sydney metropolitan area, to change the Children’s schools at her sole discretion, and for the Father to pay half the costs of schooling. If not permitted to relocate, the Mother sought orders for the Children to spend 5 nights a fortnight with the Father and half all school holidays. The Mother also sought a Child Support Departure Order.  On 4 June 2013, His Honour Judge Baumann made orders refusing the Mother’s application for a child support departure application to be heard with the parenting issues at the final hearing.   In final submissions at hearing, the Mother’s counsel said the Mother would meet all the Children’s airfares to and from Sydney, though counsel did not specify whether or not the Mother proposed meeting all the costs of the accompanying adult. The Father said he would pay his own airfare to accompany the Children to avoid them having to travel with a flight attendant.

4. The Mother said she would remain in Sydney with the Children if not permitted to relocate with them to Melbourne. 

Issues

1. At the commencement of the final hearing, the parties were in dispute as to:

   i)Whether or not Y would undergo surgery with Dr R, ophthalmologist, for a divergent squint; 

   ii)Whether or not the parties would share equally parental responsibility;

   iii)Whether the Children should be permitted to attend protests/gatherings for the animal liberation cause; and

   iv)Parenting arrangements for the Children, including the question of whether they should be permitted to relocate to Melbourne, or within the Sydney metropolitan area.  

2. By the end of the hearing, the parties had reached agreement on a number of these issues. They had agreed that Y would undergo eye surgery, that the parties would share parental responsibility equally and that there would be no order restricting the Children’s attendance at events concerning the (omitted) cause. In addition, the parties reached agreement on the time the Children would spend with each party during the Christmas period and school holidays, on telephone communication and on the Children’s overseas and interstate travel arrangements.

3. The Court was required to determine the Children’s parenting arrangements, including the question of their relocation. 

Expert recommendations

1. Ms A, Family Consultant, prepared a report for the Court.[4] Ms A said:

   The question of whether or not X and Y should be permitted to relocate to Melbourne with their mother is fraught with many complexities.  The concerns from the children’s perspective include: the quality of the children’s care, the possible impact of geographical distance on the children’s relationship with their father, and the impact of disruption to the children’s routine and environment.[5]

   [4] Exhibit 1

   [5] Ibid at paragraph 38

2. In her report, Ms A recommended that the Children remain living with the Mother, preferably in Sydney. In cross examination by the Mother’s counsel, Ms A confirmed her view that it is in the Children’s best interests to remain living primarily with the Mother in Sydney. Ms A recommended that the Children spend time with the Father on each alternate weekend from after school Friday until before school Monday, on each Tuesday after school until Wednesday morning (5 nights a fortnight) and every Thursday after school until 7 p.m.  She recommended that the Children have liberal telephone contact with each party.[6]

   [6] Ibid at paragraphs 48 – 50

1. In the event the Court determined that the Children would live in Melbourne, Ms A recommended that they spend two occasions each school term with the Father, as well as half of school holidays.[7]

   [7] Ibid at paragraph 51

Legal principles

1. These proceedings were commenced on 14 June 2012. Amendments made to the Family Law Act 1975 pursuant to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 therefore apply.

2. The principles governing this case are set out in Part VII of the Family Law Act 1975. As the Full Court said recently in Sayer & Radcliffe & Anor:

   It is now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders…the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.[8]

   [8] Sayer & Radcliffe & Anor [2012] FamCAFC 209 at paragraphs 47 & 48

3. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration. To determine the child’s best interests it must consider the primary considerations set out in section 60CC(2) and the additional considerations set out in section 60CC(3). Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, the Court must consider all the factors before making a determination. It must ensure that any order it makes is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration.

4. The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The Court must give greater weight to the second primary consideration.[9] The primary considerations are consistent with the first two objects of the Act set out in section 60B to which the Court must have careful regard.

   [9] Section 60CC (2A), Family Law Act 1975 (Cth)

5. The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:

   ·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

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

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

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

6. The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children and children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture). 

The Mother's proposal

1. The Mother relies on her own affidavit and the affidavit of her partner, Mr D. The evidence gives limited details of the Mother’s proposal.

2. The Mother says that she and the Children will live with Mr D in the home he owns (subject to mortgage) in (omitted) in western Melbourne.  She says Mr D’s mother, or other members of his extended family, will provide her with support for the Children, but the Mother adduces no evidence from Mr D’s mother, or from any other member of his family, as to their availability, their capacity to care for the Children, or as to the logistics of any support arrangements. 

3. The Mother says that she has made inquiries in Melbourne about employment and expects to find similar work to the work she is presently doing in Sydney. However, she does not adduce evidence from a potential employer, nor give details of her proposed hours of work, anticipated salary, estimated travelling time, or proposed care arrangements for the Children when she is working.

4. The Children have not yet been enrolled in a Melbourne school.  The Mother has driven past the (omitted) Primary School which she says looks modern and is walking distance from Mr D’s home.  The Mother says she has spoken to the Deputy Principal in relation to the school’s counselling services. The Mother has not consulted the Father about her preferred school in Melbourne. The Mother says she wants to move to give the Children stability, financial security and support, which she believes will be available from Mr D and his family, particularly if she and Mr D have their own children. 

5. The Mother adduces no evidence of her proposed transport arrangements, the cost of transport, or the source of funds to meet those costs.  

THE PRIMARY CONSIDERATIONS   

The benefit to the Children of having a meaningful relationship with both of the Children's parents

1. While the Children have lived primarily with the Mother since separation, they have spent frequent, regular time with the Father on weekdays and weekends and he and his parents have been a constant presence in their lives. The parties agree that the Children enjoy meaningful relationships with each of them and the strength of those relationships was confirmed by Ms A during observations and in discussion with the parties and the Children.

2. If the Children are living with the Mother in Melbourne, they will no longer spend weekly time with the Father as they do now.  Ms A says the Children are likely to suffer significant emotional loss by being unable to spend as much time with him.  She also believes that Y may still be consolidating her relationship with the Father, because the Mother reports that Y is sometimes reluctant to separate from her, when transitioning to the Father, though appears to settle when she is in his care.[10] Ms A says:    

   If Y does not firmly establish her relationship with Mr Finch now, through spending frequent and regular time with him, there is a risk that she may be resistant to visiting her father in the future.[11]  

   [10] Exhibit 1 at paragraph 14

   [11] Ibid at paragraph 43

3. Ms A believes that Y needs more time to build and consolidate her relationship with the Father.  

4. I accept Ms A's evidence on these issues.  I find it unlikely that the current strength of the Children's relationships with their Father will be maintained on the Mother's proposal.  This is a factor to which I give substantial weight. 

The need to protect the Children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. There are no issues of abuse, neglect or family violence in this case. 

THE ADDITIONAL CONSIDERATIONS

Any views expressed by the Children and any factors (such as the Children’s maturity or level of understanding) the Court thinks are relevant to the weight it should give to the Children’s views

1. X made it clear to Ms A that he did not want to relocate to Melbourne because he would miss “Dad” and the Father's parents whom he calls “Nanny and Pop”.  The Mother says that when she asked the Children how they felt about a move to Melbourne, X said “yay” but “hope I can still see my Dad.” “Am I still going to see Daddy?” While the Mother alleges that the Father told X that the Mother was taking him away, and that if he moved to Melbourne, X would not see him again[12] (an allegation denied by the Father), Ms A thought X's expressed views were genuine as he had thought through some of the issues. For example, X told Ms A that if he were living in Melbourne, he did not think telephone calls would work because they do not work now; he told her that while he would miss Mr D if he, (X) were living in Sydney, Mr D could move to Sydney to be with them.[13] 

   [12] Affidavit of the Mother, sworn 3 June 2013 at paragraph 103

   [13] Exhibit 1 at paragraph 33

2. The Father deposes to X telling him at least once a month, that he does not want to live in Melbourne, and to X writing on his etch-a-sketch on 12 May 2012, that he did not want to move away.[14] 

   [14] Affidavit of the Father, sworn 2 June 2013 at paragraph 67

3. In light of Ms A's assessment, I accept that X genuinely holds the view that he does not want to relocate to Melbourne.  However, given he is 9 years old, I have given his views limited weight in reaching my decision. 

4. In relation to Y, I accept Ms A's evidence that Y, at 6 years of age, is confused about what is happening, apparently believing that she will move to Melbourne when she is in Year 6.[15] Y has told the Father that she will be a bridesmaid and wear a pretty dress if she moves to Melbourne, as well as have a new baby sister. The Father too, says that Y has an unrealistic view of what a move to Melbourne would mean to her relationship with him, saying such things to him as “you can just drive down and see us like you do now.”  I give minimal weight to Y's views.

The nature of the relationship of the Children with each of the Children’s parents and other persons (including any grandparent or other relative of the Children)

[15] Exhibit 1 at paragraph 35

1. As already noted, I am satisfied on the basis of the evidence of both parties and Ms A, that the Children have close and loving relationships with each party.  X was particularly enthusiastic about the relationship he shares with his Father and the fun they have together playing various sports. 

2. It is common ground that the Children are close to the paternal grandparents who have been actively involved in their care since birth, and with whom they live when they are in their Father's care. Ms A described them as “doting grandparents who have a close relationship with the children.”[16] The Mother says that when the parties separated she was keen to remain in the former matrimonial home so the Children could maintain their close relationships with the Father and with the paternal grandparents. In cross examination, Ms A noted that Y included her paternal grandparents in her drawing of her family, and said the paternal grandparents are significant figures in both Children's lives. 

   [16] Ibid at paragraph 29

3. Each party acknowledged, and Ms A observed, that the Children enjoy relaxed, affectionate relationships with Ms H, the Father's partner, with whom they have spent regular weekly time for the last 4 years and who accompanies the Children with the Father on holidays. The Father observes the Children wanting to hold Ms H's hand and sit next to her when they go out together. The Father says that Y enjoys doing girly things with Ms H and X enjoys throwing a football around with her. Ms H deposes to warm affectionate relationships with both Children. I accept her evidence that she is closely involved in their care when they spend time with the Father, including helping them with homework and preparing their meals. 

4. I accept both parties' evidence that the Children enjoy close relationships with other members of the Father's extended family, whom they see regularly. 

5. At the time of the Family Report interviews, the Mother and Mr D had been in a relationship for approximately 16 months. The Children have travelled to Melbourne with the Mother to spend time with Mr D a number of times, and Mr D has travelled to Sydney regularly to spend time with the Children, including during extended holiday periods.  Mr D says he shares a broad range of activities with the Children including (activities omitted).  He helps the Children with their homework on Skype. The Mother told Ms A that Mr D has not only provided valuable support to the Children with their school work, but he has had a positive effect on X’s behaviour.  I am satisfied that the Children have a good relationship with Mr D and he has been a positive influence on their lives.  I also accept the Mother's evidence that the Children related well to Mr D's mother and other members of his extended family on visits to Melbourne. 

6. I take these findings into account. 

The extent to which each of the Children’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the Children; and to spend time with the Children; and to communicate with the Children

1. As already noted, there is no question that the parties have shared the care of the Children both before and since separation. Nevertheless, the Mother is extremely critical of the Father throughout her affidavit material.  She says she has felt isolated and unsupported by the Father since separation. She expresses immense frustration and anger at what she sees as his failure to share responsibility for the Children, physically, emotionally, intellectually and financially. The Mother gives numerous examples of the Father letting her down in a variety of different circumstances, including when one of the Children has required urgent hospitalisation. She says that the Father is mean with money, inflexible in relation to care arrangements, and extremely difficult to consult about issues concerning the Children.  She says:

   When it comes to communicating with the father about the children he rarely makes himself available to discuss problems or concerns that I may have. He rarely answers my calls and he never responds to text messages...He has always made it very difficult to resolve issues.[17] 

   [17] Affidavit of the Mother sworn 3 June 2013 at paragraph 180

2. The Mother does not have the support of her own family. She deposes to her mother having advanced multiple sclerosis and to her brother being unavailable to assist her.  Her father lives in Tasmania.  The Mother says she has only had the Father or the Father's mother to rely on when she has needed help with the Children.  While she acknowledges that the paternal grandmother was a reliable source of help until the Mother's decision to move to Melbourne, her relationship with the paternal grandmother is now strained.  The Mother deposes to repeated attempts to increase the Children's time with the Father, but says he has always refused her. 

3. I find some basis for the Mother's complaints, which I address later in these Reasons. 

The extent to which each of the Children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the Children

1. The Mother acknowledges that the Father meets his assessed child support obligations on time, by payment of $630.83 a month.[18] However, the Mother says that the Father has not contributed when unexpected expenses have arisen. 

   [18] Affidavit of the Mother sworn 3 June 2013, Annexure LF at page 12

2. In particular, in her affidavit, the Mother claims that:

   i)The Father has been unreasonable when requiring her to pay rent of $400 a week for his property, once the former matrimonial home. However, in cross examination, the Mother conceded that she would have to pay a higher rent on the open market, and that the terms of the parties' Binding Financial Agreement dated October 2010, permitted the Father to charge market rent from the beginning of 2012 and gave her 6 monthly options to extend her lease, or terminate.[19] 

   ii)The Father has refused to pay 50% of the Children's school fees at the local (omitted) Primary School despite the parties both choosing that school for the Children.  The Father says however, that he has paid his half of the fees in the second, rather than the first half of the year in the past, and intends to continue to do so.  The Mother also acknowledges that the paternal grandparents have assisted with school fees. 

   iii)The Father has unreasonably refused to assist with medical, dental and psychologist expenses for the Children, or for the costs associated with their extra curricular activities.  The Father agrees he has not contributed to these expenses, beyond payment of child support. 

   iv)When the Mother travelled overseas for work in December 2010, the Father insisted she pay him for the additional time he looked after the Children and in September 2011, he withdrew child support payments when the Mother was hospitalised, because he had the care of the Children for an additional several weeks. However, the Mother acknowledges that the Father had the Children in his care for an extra week in February 2013 without it affecting her child support payments.  

   v)The Father cancelled the Children's private health insurance when she advised him last May that she intended to move to Melbourne. 

   [19] Ibid, Annexure LF at page 2

3. While I accept that the Mother has carried the majority responsibility for the Children's financial support in recent years, given the Children have been in her care 10 nights a fortnight, compared to the Father's 4 nights a fortnight, I do not conclude that the Father has failed in his obligations to maintain the Children. The Father is not in arrears of child support currently, has not been in arrears in the past, has kept the Mother's rent slightly under market value, is contributing to school fees, and has the Children in his care every Tuesday night as well as on alternate weekends, at his expense.

4. I give moderate weight to these findings. 

The likely effect of any changes in the Children’s circumstances, including the likely effect on the Children of any separation from either of his or her parents, or any other Children, or other person (including any grandparent or other relative of the Children), with whom he or she has been living

1. This is a significant factor in this case.  If the Children relocate to Melbourne with the Mother, they will spend significantly less time with the Father, the paternal grandparents, Ms H and the Father's extended family, all of whom are significant figures in the Children's lives.  They will miss their Tuesday night dinners with the paternal family, and the constant availability of the Father and paternal grandparents who live so close. In addition, the Children will lose the stability and security of their school, their teachers and their friends. Y, in particular, has a shy and introverted disposition, but has now settled into school and made friends.  The Children will also lose the familiarity of their local General Practitioner, and the security of the (omitted) area in which they have always lived, including the neighbours, the parks and the shops. 

2. X will have to change his psychologist, with whom he engages well, and Y will have to change her ophthalmologist, who will be performing her eye surgery in the near future. I find it noteworthy that in 2011 when the Mother feared X might have to change schools in Sydney, she said he would find any change of school, involving the loss of his friendship group, extremely difficult.

3. Ms A said it was highly likely the Children would suffer significant emotional loss if they relocated and both Children would lose the connections the Father would otherwise be able to offer them, if they continued to spend frequent time with him.  Ms A said relocation would put Y, in particular, at risk, because Y, at aged 6 years, needs time with the Father to consolidate her relationship with him. In Ms A's view, X is also vulnerable and likely to be traumatised by the separation.  When the Mother told X about the move, his first question was how it would impact on his time with the Father.  X loves playing hockey with the Father and wants him to coach his team. X has been diagnosed with Attention Deficit Hyperactivity Disorder. Ms A says that children with behavioural difficulties, like X “may be at higher risk of difficulty adjusting to disruption to relationships, routine and environment.”[20] Ms A says that if the Children lose the quality of their relationships with the Father, they may be distracted from other important developmental tasks.  In her view, in the long term, that loss is likely to impact on the formation of their identity with potentially serious consequences for their wellbeing.

   [20] Exhibit 1 at paragraph 46

1. On the Mother's proposal, the Children would spend two weekends a term with the Father, and half school holidays. While in cross examination, the Mother estimates fares would cost approximately $5,000 per annum, her evidence as to who would pay the costs of travel for the Children and any accompanying adult, is vague and unsupported by evidence as to the actual costs of travel and the source of funds for that travel whether paid by herself or by the Father. There was no evidence before me as to the likely additional costs of travel involved, including food, travel from the airport to each party’s residence, tolls, or costs of accommodation for the Father in Melbourne.

2. As already noted, the Mother says that she has been under considerable financial strain, and that her situation is likely to significantly worsen when her employer terminates her insurance payment of $700 a fortnight, in the near future. Neither party has the funds for frequent travel. Mr D says it has been financially difficult to travel for him to Sydney as often as he has, while also maintaining a mortgage in Melbourne and meeting his own expenses.[21] I have no detailed financial evidence from either party, and no evidence from the Mother’s partner or from anyone else who might assist the Mother with travel costs. I am not satisfied either party can afford to meet the significant financial resources which would be required to implement the arrangements proposed by the Mother. I therefore find that the Children spending two weekends a term, as well as half school holidays with the Father each year in Sydney, may be unachievable in a practical sense. As well, I have regard to Ms A's evidence that the travel proposed for the Children would be “extremely draining” on the children, involving several hours to get from one home to the other.[22]   I find it unlikely that the arrangements proposed by the Mother in relation to the Children's time with the Father, would be sustainable beyond the short term. 

   [21] Affidavit of Mr D sworn 3 June 2013 at paragraph 28

   [22] Exhibit 1 at paragraph 47

3. The Children have visited Mr D and his family in Melbourne on a number of occasions, but have no other connection to Melbourne. Their longest period spent in Melbourne has been 4 consecutive nights.  The Mother acknowledges that the Children would be required to make a huge adjustment if they moved permanently to Melbourne, and would find the move daunting.  I agree with her.

4. The Mother told Ms A that her relationship with Mr D may end if she is not permitted to relocate with the Children, but at hearing, the Mother conceded Mr D would relocate to Sydney to be with her if her application were unsuccessful. Mr D says that he will move to Sydney if the Mother is not permitted to relocate with the Children, although he would have to find work in Sydney first.  He has not yet applied for jobs but says he has spoken to someone at the (omitted) in Sydney, to (omitted) in Sydney and looked online for positions.  He has not sought an (“omitted”) in NSW at this stage, which he understands is a pre-requisite to teaching in this State. 

5. The Mother has developed a strong relationship with Mr D and I agree with Ms A that the Mother would be badly affected by a breakdown of that relationship, which may in turn, have an adverse impact on her parenting capacity.[23]  However, on the evidence before the Court, I do not accept that the Mother's relationship with Mr D will end, or is at risk of ending, if she is not permitted to relocate with the Children to Melbourne.

   [23] Exhibit 1 at paragraph 39

6. I give my findings under this factor significant weight.  

The practical difficulty and expense of a Children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the Children's right to maintain personal relations and direct contact with both parents on a regular basis

1. This issue has already been addressed in relation to the Children spending face to face time with the Father. In relation to communication, X tells Ms A at interview that he doubts whether telephone communication would work, given it does not work now.  For electronic communication to work effectively and frequently, the parties would need to cooperate to ensure their computers were turned on, Skype was connected, mobile phones charged and switched on. While the Mother says she will permit the Children to communicate with the Father by Skype or by telephone at any reasonable time, given the history of the parties' poor cooperation and communication, I am not persuaded the Children would have easy frequent access to the Father by way of telephone or Skype, if living in Melbourne.  I give some weight to this finding. 

The capacity of each of the Children’s parents and any other person (including any grandparent or other relative of the Children) to provide for the needs of the Children, including emotional and intellectual needs

1. The Mother has always been the Children's primary carer.  I accept Ms A’s opinion that the Mother is a capable and caring parent. She observed the Mother’s “relaxed but attentive nature with the children”.[24] The Mother told Ms A she has had difficulty managing X’s behaviour at times but his behaviour has improved markedly since he has engaged with a psychologist, Dr P.  Ms A observed Mr D to complement the Mother’s parenting style “with his more active and jovial manner with the children.”[25]   

   [24] Exhibit 1 at paragraph 36

   [25] Ibid

2. The Children spent time with the Father on 5 overnights a fortnight from the time the parties separated. Although that time was reduced to 4 overnights a fortnight in 2010, the Father has had the care of the Children for additional periods when the Mother has been required to travel, or has been hospitalised.  While the Mother says she has felt unsupported by the Father since separation, she does acknowledge that the Father has taken responsibility for the Children’s care from an early age on a regular basis. While she is highly critical of the Father's attitude to his parental responsibilities, the Mother does not seriously question his capacity to look after the Children day to day, even though she believes he receives a lot of help from his mother. I share Ms A's view that the Father is a capable parent. 

3. However, an issue does arise about each party's capacity to meet the Children's emotional needs.  For example, the Father says that the Mother will not return the Children's clothing kept at his home, if the Children wear that clothing on return to the Mother’s home. The Father therefore requires the Children to change back into their school uniforms before returning to the Mother on a Sunday evening.[26] I find the fact that the parties have not been able or prepared to resolve this issue reflects extremely poorly on their capacity to empathise with the Children and ensure that the Children are not repeatedly exposed to the conflictual nature of their parents’ relationship. The parties acknowledge that arguments occur in front of the Children, that the Children are well aware of these Court proceedings, and are confused about what is going to happen to them. I am not satisfied either party adequately shields the Children from the adult relationship issues, which reflects poorly on them both. I accept Ms A's view that both Children are being damaged by the parties' ongoing conflict.

   [26] Affidavit of the Father sworn 2 June 2013 at paragraph 148

4. I give some weight to these findings.   

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

1. Each Child has vulnerabilities. X suffers from asthma which has required hospitalisation. The Father is concerned the cold Melbourne weather would aggravate X’s condition. X has also been diagnosed with Attention Deficit Hyperactivity Disorder. Dr P, X's psychologist, says X’s main difficulties include inattention, impulsivity and some restlessness at school.[27] The Mother says X requires considerable attention and support because of the behavioural issues his condition causes, though has observed considerable improvement since Dr P’s involvement. Dr P believes that X would manage the adjustment if he were moved to Melbourne, but raised concerns for X if the parents' continuing levels of anger, distrust and poor cooperation, persists.[28]

   [27] Affidavit of the Mother, sworn 3 June 2013, Annexure B at page 48

   [28] Ibid, Annexure B at page 49 & 50

2. Y has a divergent squint. She has been under the care of a paediatric ophthalmologist, Dr R, since she was very young. She is shortly to undergo eye surgery, and the Father wants her to retain her current ophthalmologist in Sydney.  As already noted, Y was two years of age when the parties separated. In cross examination, Ms A said that Y’s relationship with the Father is probably less secure as a result of the disruption to her care arrangements at a critical developmental stage, and may explain why that relationship needs more time to consolidate. 

3. I give some weight to these matters.  

The attitude to the Children, and to the responsibilities of parenthood, demonstrated by each of the Children's parents

1. Each party is critical of the other’s attitude to the responsibilities of parenthood, and I find some justification for those criticisms in relation to each of them.

2. In relation to the Mother, a troubling issue is the way she managed her wish to relocate to Melbourne. I find it demonstrates her poor insight into the needs of the Children.  In April 2012, when the Mother says she made her decision to move, the Children were spending 4 nights a fortnight with the Father, in the home of the paternal grandparents, and had been doing so for a number of years. Nevertheless, the Mother said nothing to the Father about contemplating a move to Melbourne, before reaching a “decision”. She told the Children of her decision, in the presence of Mr D, without any prior consultation with the Father. The Mother made her decision after knowing Mr D for a matter of 4 months, the Children having known him for 2 months, and without having formally introduced him to the Father. It is apparent that the Mother formed the view that she was going to Melbourne with the Children, whatever the Father might think about the idea, having given no consideration to the impact on these two young Children of being summarily removed from their Father and the paternal family, removed from a location they had lived in all their lives, and removed from the school in which they were both settled and happy. 

3. Having made up her mind in April 2012, and having discussed her decision to relocate with Dr P in April 2012, the Mother first mentioned to the Father her intention to relocate to Melbourne on 6 May 2012. The Father’s evidence is unchallenged that the Mother phoned him on 6 May 2012 from the local pub where she was having lunch with the Children, to ask him to pick up X because he was behaving badly. The Mother gave the Father 10 minutes to collect X or she would move to Melbourne with the Children and “you won’t ever see them again.”[29] As the Father was 40 minutes away, he arranged for his mother to collect X. Later that afternoon the Father received an email from the Mother which stated that she had decided to relocate with the Children to Melbourne at the end of 2012. The email reads in part:

   [29] Affidavit of Father sworn 2 June 2013 at paragraph 56

   As you are aware I am in a relationship with a man who resides in Melbourne. Mr D has been a fantastic positive influence for the children. They have grown very fond of him and enjoy the time we spend together as a family.

   After much consideration, I have decided to relocate with the children to Melbourne at the end of this year 2012. 

   I have discussed the move with the children. They are happy and excited about this decision.… 

   On numerous occasions (as their father) I have requested you to take our children and help care for them on a more regular basis but you continuously refuse. 

   Mr D offers great support and he has a large family who will also be a great support network that the children and I are lacking here in Sydney.[30]

   [30] Affidavit of the Father sworn 2 June 2013, Annexure A at page 2

4. On 11 May 2012, the Father retained solicitors and advised the Mother he did not agree to the relocation. Nevertheless, in June 2012, at a parent-teacher interview, a teacher told the Father that the Mother had asked her to start preparing the Children for the move at the end of 2012.  

5. I find the Mother’s approach shows a serious and troubling disregard for the significance of the Children’s relationship with the Father and the paternal family, and gross discourtesy to the Father as an active and involved other parent. 

6. A further concern relates to the Mother’s ongoing hostility towards the Father’s partner, Ms H, and the impact of her conduct and attitude on the Children. I am satisfied that until recently, the Mother has exhibited almost uncontrollable anger towards Ms H, threatening to report the Father to the Department of Community Services if he introduced the Children to Ms H, refusing to allow the Father, accompanied by Ms H, to bring his car into the Mother’s driveway for changeover, refusing to allow Ms H to transport the Children to school when the Father was working on a Wednesday morning, refusing to allow Ms H to visit Y when she was hospitalised, swearing at the Father about Ms H, in front of the Children with remarks like “Get that fucking whore off my driveway.”[31] The Father recalls X saying “Mummy says you don’t love us anymore because you love Ms H instead.”[32]Y reported the Mother referring to Ms H as "a witch."[33]

   [31] Affidavit of the Father sworn 2 June 2013 at paragraph 316; Affidavit of Ms H affirmed 2 June 2013 at paragraph 35

   [32]Affidavit of the Father sworn 2 June 2013 at paragraph 329

   [33] Affidavit of Ms H affirmed 2 June 2013 at paragraph 33(d)

7. While the Mother says for the first 18 months of the Father’s new relationship she did not cope well, and that she has no problems anymore, she was unable to explain why her anger persisted at such a level for so long.  As recently as November 2012, Ms H says X said he did not want her to sign that he had done his homework:

   Because last time mummy saw that you had signed it and ripped it all up and I had to do my homework all over again.[34] 

   [34] Affidavit of Ms H affirmed 2 June 2013 at paragraph 49

8. Again, in November 2012, the Mother was upset that the Father brought Ms H to consult a second ophthalmologist about options for treatment of Y’s squint. Ms H is a psychologist and given the Father’s concerns about Y having eye surgery, the Father says he was keen to have Ms H’s opinion.  The Mother admits that she raised her voice in front of Y, and attempted to block Ms H’s passage, in an effort to stop Ms H entering the consultation room. According to an eyewitness account the Mother made it clear that Ms H had no right to be present.[35] While the Father acknowledged in hindsight he should not have brought Ms H, being aware the Mother was against her being there, the Mother gave no satisfactory explanation as to why she was so vehemently against Ms H being present, and why she behaved as she did. The Mother conceded that the Father has raised no issue about Mr D attending a medical appointment with one of the Children.  When questioned in cross-examination about the tone of her SMS messages to the Father concerning Ms H, the Mother said “I’m not proud of my behaviour”. 

   [35] Affidavit of Mother sworn 3 June 2013, Annexure M

9. The Father says the Mother has made arrangements for the Children without any prior consultation with him, which directly affect their welfare or their time with him. He says that because she tells the Children about the arrangements before discussing them with him, he is left with no choice but to stand back and permit the new arrangement to go ahead. Examples include the Mother accepting a party invitation, buying concert tickets, permitting (omitted) online, sending X on a holiday to Tasmania, taking the Children out of school so the Mother could take them to Melbourne. The Father also deposes to the Mother failing to tell him about events at the Children’s school or opportunities to purchase school photos. She did not tell him about an athletics presentation day, nor did she permit the Children to bring their trophies to his home. 

10. In relation to medical issues, the Father says the Mother made a unilateral decision to put X on Ritalin, well aware the Father opposed the use of Ritalin, (a decision later reversed when X reacted badly to the medication), did not tell him about her appointment with Dr T, the paediatrician, did not involve him in her decision to send X to behavioural therapy, refused to give the Father medical benefit details when requested. The Father has therefore made independent arrangements to consult the Children’s teachers and specialists. On the other hand, the Mother deposes to asking the Father to attend consultations and various events at the Children’s school which the Father has not attended, though she agrees that in April 2012 she told the Father not to bother to come to see Dr R, ophthalmologist if he were opposed to Y having eye surgery. 

11. I am satisfied there has been such poor cooperation between the parties over a long period that it is likely the Father has given up on any chance of the Mother consulting him, and the Mother has not fulfilled her obligations to consult the Father about significant decisions affecting the Children.  

12. The Father complains that the Mother has undermined him to the Children, making such remarks as “I have told the children you are pathetic. They know it.”[36]  Ms H deposes to Y telling her in April 2013 that the Mother "always tells me that daddy is a very bad man and I can't trust him, because he tells us lies."[37]  The Father says the Mother’s approach has improved since she started these proceedings, but he questions whether this new approach will be sustained when this litigation has been finalised.

    [36] Affidavit of the Father sworn 2 June 2013 at paragraph 322

    [37] Affidavit of Ms H affirmed 2 June 2013 at paragraph 49

13. In relation to the Father, the Mother deposes to having felt isolated and unsupported by the Father in relation to her caring responsibilities after separation. In particular, she says that when she has asked the Father for help when she has been ill, or there has been an emergency, the Father has either not helped her, or made it difficult for her to get help from him. Mr D told Ms A that in phone calls to him, the Mother had been upset and stressed because the Father had refused to look after the Children in urgent circumstances. The Mother told Ms A that she used to be able to rely on the paternal grandmother, but recently that support had been withdrawn. The Mother says that the Father never offered to look after the Children on pupil free days, on days when the Children were unwell or on public holidays, despite her also having work commitments.  The Father refused to take the Children for additional time in term school holidays. Although later conceding that the Father has been involved in X’s baseball, the Mother says the Father has shown little interest in the Children’s extra curricular activities, and has not taken the trouble to see the Children on their birthdays. In December 2012, she says the Father did not attend Y’s end of year dance concert.  I find some basis for the Mother’s criticisms.  Ms A says if the Father is unsupportive, then this will impact on the Mother’s ability to care for the Children. 

14. In September 2010, Y became ill with rotavirus. Despite her pleas for the Father to help, he would not get involved. The Mother was in hospital with Y for 6 days with the Father providing her only one hour's assistance during that period.  I am critical of the Father’s failure to provide more support during this incident.

1. The Mother describes a time in March 2012 when X was returned to her by the Father on a Sunday evening, suffering from asthma.  The Mother says X’s condition worsened during the evening, and she decided to take him to hospital. She rang to ask the Father to care for Y but he refused. Later the Father told the Mother to bring Y to his home if she wanted her looked after, which the Mother was forced to do. The Mother believes that the Father should have taken X to the doctor before dropping him home on that Sunday evening, or at least the Father should have responded immediately to her request for help with Y when X was facing a potential emergency. I agree with the Mother. Having at first denied the Mother’s version of events, the Father could not recollect what occurred, then conceded the Mother may have been correct. I share Ms A’s strong criticism of the Father refusing to collect Y when the Mother needed to take X to hospital because of his asthma. Ms A said, and I agree, that both parties are responsible for whatever needs the children might have at any time, not just during periods allocated to that party by agreement or Order.

2. In answer to the Mother’s complaints, the Father carefully details the many times he has helped the Mother by having the Children with him for extra time, including when she has been in hospital and when she has been overseas for work. In cross-examination, the Mother acknowledged these occasions and acknowledged the Father helping her with X’s behavioural problems when asked. I find the Father sees himself as helper/support person for the Children, rather than equally responsible with the Mother for their needs, and I urge him to change that attitude. 

3. Ms A says that even if I find the Father’s conduct has been unsupportive of the Mother, she would not change her recommendation that the Children should remain with the Mother in Sydney. Ms A is concerned as to whether the Mother would support a quality relationship between the Children and the Father were she to relocate.[38]

   [38] Exhibit 1 at paragraph 44

4. The numerous examples of the parties' SMS communication in evidence clearly demonstrates the poor alliance between these parties. The Mother is at times aggressive, high handed and rude, even when she is asking for favours from the Father. The Father is at times inflexible. Ms A says that this ongoing conflict may impact on the Mother’s ability to maintain the Children’s relationship with the Father.  

5. I give considerable weight to my findings under this factor. 

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the Children

1. The Mother says if she is not permitted to relocate with the Children to Melbourne, she may have to move to a cheaper area in Sydney. Much will depend on whether or not Mr D is able to obtain employment and help with her financial support. The Mother however, gives no details about where she might choose to move, or what school she might select for the Children in another area of Sydney if she is unable to remain in the (omitted) region. In cross examination, the Mother acknowledged that if all goes well for Mr D in Sydney, she would stay in her current residential area which would allow the Children to remain at their present school. 

2. If the Children remain living with the Mother in Sydney, there is therefore some chance the Mother will initiate further litigation if the Mother ever seeks to relocate within Sydney, and the parties are unable to reach agreement on that move.  If the Children are permitted to relocate to Melbourne, I have concerns that the arrangements for the Children spending time in Sydney would break down, which may well trigger further litigation.  However, my findings under this factor are not critical to my determination. 

Any other fact or circumstance that the court thinks is relevant

1. Mr D says there are limited positions available for (occupation omitted) in both Sydney and Melbourne and always many applicants applying for the positions. Having spoken to (omitted) authorities in Sydney and to other professionals in his field, Mr D is pessimistic about his chances of obtaining work in Sydney at the level of his current position in Melbourne. If he leaves his employment with (omitted), he said he will lose his permanent ongoing status within the (omitted) in Victoria.  He earns $86,000 per annum and believes a (omitted) could employ a less experienced (omitted) for much less money. [39]    

   [39] Affidavit of Mr D sworn 3 June 2013 at paragraphs 13 & 14

2. Mr D is an only child, and says he is very close to his mother and extended family who live in Melbourne.  He could expect their support if he remained living in Melbourne, and has concerns about how he and the Mother would manage Children if they were in Sydney without that support.

3. The Mother’s relationship living full time with Mr D is untested, though they have lived together on holidays. As Ms A says, their relationship might change when they live together with the two Children, and experience the usual stresses of day to day life. If they have difficulties, Ms A says that the Mother may be less emotionally available to assist the Children to adjust to the change.[40] 

   [40] Exhibit 1 at paragraph 40

4. I give these matters moderate weight.

PARENTAL RESPONSIBILITY

1. Section 65DAC applies whenever a parenting order provides for shared parental responsibility, and requires the parties to consult the other person and to make a genuine effort to come to a joint decision about any major long term decisions concerning the children.

2. Section 61DA requires the court to 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. 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 the child) has engaged in:

   a)Abuse of the child or another child, who at the time, was a member of the parent’s family (or that other person’s family); 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.[41]  In this case, there are no issues of abuse or family violence and I therefore find the presumption applies.  The parties consent to an order for equal shared parental responsibility.  I am also satisfied that it is in the Children’s best interests for an order to be made for equal shared parental responsibility. 

   [41] Section 61DA(4) Family Law Act 1975

4. When an order is made for equal shared parental responsibility, s.65DAA(1) requires the Court to consider whether making orders that the child should spend equal time, or if not equal time, substantial and significant time with each party would be in the best interests of the child and whether such an arrangement is reasonably practicable,[42] having regard to the factors set out in section 65DAA(5). These factors include the distance between the parties’ homes, the parties’ capacity to implement such an arrangement, the parties’ capacity to communicate and resolve any differences between them, the impact such an arrangement would have on the child, and any other matter the Court considers relevant. The requirement of reasonable practicality “requires a practical assessment of whether equal time parenting [or substantial and significant time parenting] is feasible”.[43] 

   [42] Section 65DAA Family Law Act 1975; See also MRR v GR [2010] HCA 4

   [43] MRR v GR [2010] HCA 4

5. Both parties have been closely involved in the Children’s care all their lives and share a deep commitment to the Children’s welfare.  The parties have remained living in close proximity to one another, and despite the difficulties in their relationship they have managed to implement a significant and substantial time arrangement for the care of the Children for many years.  While I find that the parties’ poor communication and level of cooperation needs to improve markedly for the benefit of the Children, I am nevertheless persuaded that the parties now have some understanding of the negative impact on their Children of the ongoing conflict between them, and are motivated to achieve positive change. I find some signs of progress in more recent times, for example in the Mother’s less hostile attitude to Ms H.  

Discussion and Determination

1. X and Y were very young when the parties separated.  However, to both parties’ credit, since then, each party has been actively involved in the Children’s day to day care.  I agree with Ms A that the continuing close involvement of each party in the Children’s lives in the future is critical to the Children’s emotional health. The same close involvement of the Father and his family would not be possible if the Children moved to Melbourne. 

2. The Mother has felt isolated and unsupported by the Father since separation, and believes the Father has not carried his fair share of parental responsibility.  I agree with Ms A’s view that if this were to continue, the Mother’s parenting capacity may be compromised. However, the Mother’s circumstances have changed since she met Mr D, and she now plans to live with him full time. She says Mr D is a positive influence on the Children and an enormous help to her.  I find that this new arrangement is likely to remove or at least reduce the Mother’s current sense of isolation and financial insecurity.  In addition, as sought by the Mother if living in Sydney, the Father has agreed to care for the Children on 5 rather than 4 nights a fortnight, as well as every Thursday afternoon, and to have the Children in his care for half of all school holiday periods, which will give the Mother some respite. 

3. As outlined in these Reasons, I find many risks for the Children if they relocate to Melbourne:

   ·    the risk of Y losing the chance to consolidate her relationship with the Father and eventually not wanting to spend time with him;

   ·    the risk of X’s behaviour deteriorating because he would miss the Father and does not adapt well to change. Both parties say that X, in particular, struggled to accept his Father’s absence from his life day to day after the parties’ separation, but has now adjusted to the present arrangements;   

   ·    the risk that the Children’s time with the Father and the paternal family will gradually reduce in frequency over time because of the parties’ poor cooperation and the financial and practical realities of travel and communication between Melbourne and Sydney; and

   ·    the risk that the Children’s close and loving relationships with the Father will be compromised. 

4. While I accept that the Mother genuinely believes that life for her and the Children would be easier in Melbourne, I am not persuaded the Mother’s proposal is well thought through. Her plans for her own employment, the Children’s schooling, the Children’s medical care and the Children’s care if she were working in Melbourne, are vague. Her capacity to meet the financial costs of the Children’s travel to and from Melbourne has not been established.  I agree with Ms A that the Mother has focussed on the potential positives of the move, not properly acknowledging the potential negatives.

5. I have decided the Children will remain living in Sydney, so they can continue to have the close involvement of each parent in their lives week to week.  Such arrangements would not be possible on the Mother’s proposal. 

6. I am not satisfied that an order for equal time is in the Children’s best interests. I find, on the evidence of Ms A, that the Children’s needs are best met by living primarily with the Mother, as they have always done, and that equal time would have an adverse impact on their welfare, even if the parties’ relationship improves.  Notably, neither party seeks an order for equal time, and Ms A does not support an order for equal time. I am satisfied however, that the Children will benefit from a continuation of a substantial and significant time arrangement as sought by each party and recommended by Ms A.

7. If not permitted to relocate with the Children to Melbourne, the Mother seeks orders providing for her to be free to move anywhere in the Sydney metropolitan area and to change the Children’s school.  She said she is not confident she can financially manage to remain in the (omitted) area where she presently lives. However, in cross examination, she said if Mr D lived with her in Sydney and obtained suitable employment, remaining in her present area was certainly possible.  As already noted, the Mother’s wish to move elsewhere in Sydney is contingent on a number of factors and it is not possible to speculate whether such a move will ever be necessary.  Any application would have to be considered on its merits when details of the proposal were clear.  The Children will remain at their present school, unless the parties otherwise agree. 

8. The Mother raised concerns as to whether the Father has been prepared to follow the preventative asthma plan for X.  I have therefore made an order for the parties together, to consult X’s doctor, to review his asthma plan. 

9. As noted in these Reasons, the Father requires the Children to change into their uniforms before returning home on a Sunday because he says the Mother will not return the clothes belonging in the Father’s home.  I have been highly critical of both parties for allowing this situation to continue.  Consequently, I have made an order requiring each party to ensure the return of the Children’s clothing and other items on the next contact occasion. The purpose of this Order is to allow the Children to move between the households with anything they choose to take with them. 

10. The parties substantially agreed on the parenting arrangements for the Children if they were living in Sydney.  In addition, a number of the Father's other proposed orders were agreed by the Mother, including those providing for arrangements on special days, overseas and interstate travel and passports, and manner of communication and exchange of information between the parties. I have made those orders as agreed.

11. I have noted that the parties agree to review these arrangements when X is in Term 3, Year 6 and if they are unable to reach agreement in relation to the Children’s secondary schooling, or in relation to any other parenting issue, they will seek the assistance of Relationships Australia.  I strongly encourage the parties to engage in this process if any issues of significance cannot be agreed. 

12. I am guided by the objects and principles already referred to. Having regard to all these matters, I am satisfied the orders set out at the beginning of these Reasons are in the best interests of X and Y.  

I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Judge Sexton

Date:  22 August 2013