FOX & CLYDE

[2018] FCCA 825

FEDERAL CIRCUIT COURT OF AUSTRALIA

FOX & CLYDE [2019] FCCA 825

Catchwords:
FAMILY LAW – Parenting – proposed relocation from Melbourne to (omitted), NSW – children three years old and 17 months old.

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Applicant: MS FOX

Respondent: MR CLYDE

File Number: MLC 5842 of 2016

Judgment of: Judge Riley

Hearing dates: 1, 2 and 7 February 2018

Date of last submission: 7 February 2018

Delivered at: Melbourne

Delivered on: 6 April 2018

REPRESENTATION

Counsel for the applicant: Vince Peters

Solicitors for the applicant: O’Connor Sraj Lawyers

Counsel for the respondent: Timothy Puckey

Solicitors for the respondent: Lander & Rogers

ORDERS BY CONSENT

1. The parents have equal shared parental responsibility for [X] born on (omitted) 2014 (“[X]”) and [Y] born on (omitted) 2016 (“[Y]”).

2. [X] and [Y] live with their mother.

3. The mother hold [X] and [Y]’s passports.

4. Each parent advise the other forthwith of any serious injury or health issue affecting [X] and [Y] or either of them from time to time, together with the names and contact details of any treating medical, dental and/or allied health professionals.

5. Each parent be at liberty to attend appointments with the health practitioners of [X] and [Y] or either of them.

6. Both parents be authorised to receive copies of all notices, reports, photograph order forms, newsletters and like materials ordinarily made available to parents from the kindergarten and/or school attended by [X] and [Y] or either of them.

7. The parents communicate regarding parenting arrangements via text message or email.

8. Each parent keep the other informed of any change of residential address, telephone number and email address within seven days of the date of the change.

9. Each parent be permitted to travel overseas with [X] and [Y] during any period in which [X] and [Y] are in that parent’s care provided that:

   (a)the travelling parent notify the non-travelling parent in writing of their intention to travel overseas not less than 60 days prior to the proposed departure date;

   (b)the travelling parent provide to the non-travelling parent an itinerary for the proposed trip including travel, flight and contact details;

   (c)the travelling parent obtain the written consent from the non-travelling parent with such consent not to be unreasonably withheld;

   (d)if the travel period includes a time when [X] and [Y] would otherwise be in the non-travelling parent’s care, then the travelling parent provide the non-travelling parent with make-up time at times to be agreed in writing; and

   (e)if the non-travelling parent is holding [X] and [Y]’s passports pursuant to these orders, the non-travelling parent do all acts and things necessary to ensure that [X] and [Y]’s passports are made available to the travelling parent at least seven days prior to the proposed departure date, and the travelling parent ensure that [X] and [Y]’s passports are returned to the non-travelling parent within 48 hours of the travelling parent’s return from the overseas travel.

ORDERS BY THE COURT

1. Until [X] commences primary school, [X] spend time with her father as follows:

   (a)from 8am each Tuesday until 5:30pm each Wednesday; and

   (b)each alternate weekend, from 4pm Friday until 5pm Sunday.

2. Until 1 June 2018, [Y] spend time with her father as follows:

   (a)from 8am until 5:30pm each Tuesday;

   (b)from 8am until 5:30pm each Wednesday; and

   (c)each alternate weekend:

   (i)from 9am until 5pm on Saturday; and

   (ii)from 9am until 5pm on Sunday.

3. From 1 June 2018 until 1 November 2018, [Y] spend time with her father as follows:

   (a)from 8am on Tuesday until 5:30pm each Wednesday;

   (b)each alternate weekend:

   (i)from 9am until 5pm on Saturday; and

   (ii)from 9am until 5pm on Sunday.

4. From 1 November 2018 until 1 April 2019, [Y] spend time with her father as follows:

   (a)from 8am Tuesday until 5:30pm each Wednesday; and

   (b)each alternate weekend, from 9am on Saturday until 5pm on Sunday.

5. From 1 April 2019 until [X] commences primary school, [Y] spend time with her father at the times set out in subparagraphs 10(a) and (b) of these orders.

6. From [X]’s commencement at primary school, [X] and [Y] spend time with their Father as follows:

   (a)during school term:

   (i)in week one, from the conclusion of school on Wednesday until the commencement of school on Friday; and

   (ii)in week two, from the conclusion of school on Friday until the commencement of school the following Monday;

   (b)during the first school term holiday period after [X]’s commencement at primary school, for four consecutive nights at times to be agreed, and in default of agreement, from 8am on the first Wednesday of the holiday period until 5pm on the following Sunday;

   (c)during the second school term holiday period after [X]’s commencement at primary school, for five consecutive nights at times to be agreed, and in default of agreement, from 8am on the first Tuesday of the holiday period until 5pm on the following Sunday;

   (d)during the third school term holiday period after [X]’s commencement at primary school, for six consecutive nights at times to be agreed, and in default of agreement, from 8am on the first Monday of the holiday period until 5pm on the following Sunday;

   (e)for one-half of the first term holiday period in the calendar year after [X]’s commencement at primary school, and each school term holiday period thereafter at times to be agreed, and in default of agreement, the first half with changeover to occur at 5pm on the middle Saturday; and

   (f)for one-half of the long summer school holiday period by agreement, and in default of agreement, on a week-about basis with [X] and [Y] to spend time with their father in the first week, and each alternate week thereafter, with changeover to occur at 5pm on Saturdays.

7. In addition, [X] and [Y] spend time with their father as follows:

   (a)each Father’s Day from 5pm the preceding night until 5pm on Father's Day;

   (b)for a period of at least three hours on (omitted) each year as agreed and in default of agreement, from 4pm until 7pm if [X] and [Y] are otherwise in their mother’s care, and unless [X] and [Y] are in New South Wales;

   (c)for a period of at least three hours on (omitted) each year as agreed and in default of agreement, from 4pm until 7pm if [X] and [Y] are otherwise in their mother’s care, and unless [X] and [Y] are in New South Wales;

   (d)for a period of at least three hours on (omitted) each year as agreed and in default of agreement, from 4pm until 7pm if [X] and [Y] are otherwise in their mother’s care, and unless [X] and [Y] are in New South Wales;

   (e)from 5pm on 21 December until 5pm on 23 December in 2018 and in each alternate year;

   (f)from 5pm on 24 December  until 5pm on 25 December in 2019 and in each alternate year;

   (g)such further or other times as agreed between the parents in writing.

8. [X] and [Y]’s time with their father be suspended at the following times:

   (a)each Mother’s Day from 5pm the preceding night until 5pm on Mother's Day;

   (b)for a period of at least three hours on (omitted) each year as agreed and, in default of agreement, from 4pm until 7pm;

   (c)for a period of at least three hours on (omitted) each year as agreed and, in default of agreement, from 4pm until 7pm;

   (d)for a period of at least three hours on (omitted) each year as agreed and, in default of agreement, from 4pm until 7pm;

   (e)from 5pm on 23 December to 5pm on 25 December in 2018 and in each alternate year; and

   (f)from 5pm on 25 December until 5pm on 26 December in 2019 and in each alternate year.

9. Changeover be effected at kinder or school when the relevant child is at kinder or school at the changeover time and at (omitted) at other times.

10. The mother be permitted to take [X] and [Y] to New South Wales:

    (a)whenever they are with her; and

    (b)until [X] starts school:

    (i)for two weeks in each school term holiday; and

    (ii)for four weeks over the summer holidays.

11. The mother provide the father with 14 days’ notice of [X] and [Y]’s travel to New South Wales.

12. All extant parenting applications be otherwise dismissed.

ORDER BY CONSENT

1. Pursuant to s.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 Attachment A and these particulars are included in these orders.

NOTATIONS

(A)Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

(B)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5842 of 2016

MS FOX

Applicant

And

MR CLYDE

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for parenting orders in respect of [X], born on (omitted) 2014 (“[X]”), and [Y], born on (omitted) 2016 (“[Y]”). [X] is currently aged three years and [Y] is currently aged 17 months.  The parents agree that they should have equal shared parental responsibility for [X] and [Y], and that [X] and [Y] should live with their mother.  The parents, and particularly the mother, are doing an admirable job of separately raising two very small children.

2. The principal issue in the proceeding is whether the mother should be permitted to relocate from Melbourne to (omitted), NSW with [X] and [Y]. (omitted) is on the (omitted) in (omitted) New South Wales.  It has a population of about 1,600 people.  The closest large town is (omitted). (omitted) is about seven hours drive from Melbourne, or eight or nine, if allowance is made for stops for safety reasons.

3. The mother’s parents live in (omitted), NSW in a large house, and the mother, [X] and [Y] could be comfortably accommodated there.  If the mother, [X] and [Y] are not permitted to relocate to (omitted) NSW, the parents were largely agreed on the arrangements for [X] and [Y] to spend time with their father.

4. The mother was born in Victoria but spent most of her childhood in New South Wales.  She moved to Melbourne when she was 18 years old for the purposes of study and work.  The father has always lived in Melbourne.  The parents met in Melbourne, commenced cohabitation in Melbourne in (omitted) 2011, and were married on (omitted) 2013.  [X] was born on (omitted) 2014 in Melbourne. 

5. The parents separated in August 2015, when [X] was about 9 months old.  The parents reconciled briefly, at which time [Y] was conceived, and separated finally in January 2016.  It was common ground that the mother had an affair during the marriage, although whether the separation was caused by that, or by basic incompatibility, is not clear.  Suffice to say that the mother said that her feelings of guilt about the affair meant that she made concessions to the father post separation about his time with the children that she now considers were excessive.

6. The mother is now 33 years old and works on a casual basis as a (occupation omitted). The father is also 33 years old.  He works from home as a (occupation omitted) and on Monday nights as a (occupation omitted).  The father’s hours, except on Monday nights, are somewhat flexible.  The mother has lived in Melbourne for about 15 years.  She attended university in Melbourne and has had jobs in Melbourne. 

7. In the property settlement following separation, the former matrimonial home was retained by the father, and he paid the mother the sum of $100,000. The mother is presently renting accommodation in (omitted).  The father is presently living with his parents in (omitted).

Basic proposals

1. The mother’s basic proposal was that, after she and [X] and [Y] relocated to (omitted) NSW, [X] and [Y] would spend time with their father for one week per month, with time in one month to take place in (omitted) NSW, and time in the alternate month to take place in Melbourne.  As [X] and [Y] are still very young, the mother proposed that, during the seven day periods, [X] and [Y] see their father mostly during the day time, and return to the mother most evenings, but gradually build up to a fairly standard arrangement of overnight time as the children grow older.

2. The mother also said that she would accommodate [X] and [Y] spending time with their father for additional periods in (omitted) NSW if he wished to go there. For example, the mother was agreeable to [X] and [Y] spending alternate weekends with their father in (omitted) NSW.  

3. The family consultant, Mr T, thought that the father might be able to fly to and from (omitted) NSW.  However, it was not disputed that the only viable way for the father to travel to (omitted) NSW was by car.  It is a seven and a half hour drive.

4. The mother said that she had not considered what the arrangements should be once [X] starts school, which will be in about two years.  Obviously, at that point, [X] will not be able to come to Melbourne for a week in alternate months.  At most, she could come to Melbourne in school holidays, which would work out to be somewhat less than every second month.

5. The father’s basic proposal was for [X] and [Y] to remain living with their mother in Melbourne, and for them to continue having short, frequent periods of time with him, in accordance with the usual regime for small children, that is, two or three times per week, building up to five nights a fortnight when [X] starts school.

Material relied upon

1. The mother relied on:

   a)her initiating application filed on 27 June 2016;

   b)her amended application filed on 31 January 2018;

   c)her affidavits sworn on 23 June 2016, 29 August 2016, 31 October 2017 and 19 December 2017;

   d)the affidavit sworn or affirmed on 20 July 2016 by the maternal grandparents, Mr D and Ms D;

   e)the affidavit sworn on 31 October 2017 by Ms D;

   f)the affidavit sworn on 12 December 2017 by Mr D;

   g)the affidavit sworn on 19 December 2017 by Mr P, a psychologist;

   h)the affidavits sworn on 1 September 2016 and 29 January 2018 by Mr T, a family consultant; and

   i)the notice of risk filed on 27 June 2016.

2. The mother, the maternal grandmother, Mr P and Mr T were cross-examined. The maternal grandfather, Mr D, was not required for cross-examination.

3. The father relied on:

   a)his amended response filed on 1 December 2017;

   b)his affidavits affirmed on 11 August 2016, 22 August 2016, 2 November 2017, 1 December 2017 and 15 January 2018;

   c)the affidavits affirmed on 11 August 2016 and 15 January 2018 by the paternal grandmother, Ms K;

   d)the affidavits sworn on 1 September 2016 and 29 January 2018 by Mr T;

   e)the father’s financial statement affirmed on 11 August 2016; and

   f)the notice of risk filed 11 August 2016.

4. The father and the paternal grandmother were cross-examined.

The history of the proceedings

1. The proceedings were commenced by the mother’s initiating application, which was filed on 27 June 2016 and amended on 31 January 2018.  The mother sought parenting and property orders. The father filed his response on 11 August 2016 and his amended response on 1 December 2017.

2. The matter first came before the court in the duty list on 15 August 2016. At that stage, the mother was about six months pregnant with [Y].  On that day, interim orders were made by consent, relevantly:

   a)for a private family report to be prepared in relation to [X] (and any further child of the parents), with such report to be paid for by the father;

   b)until further order:

   i)for the parents to have equal shared parental responsibility for [X];

   ii)for [X] to live with her mother and spend time with her father:

   A.from 8am until 5pm each Wednesday;

   B.from 8am Friday until 5pm Saturday each week; and

   C.at such further times as agreed between the parents; and

   c)adjourning the matter to 5 September 2016 for final hearing.

3. On 5 September 2016, the trial commenced in relation to property and parenting matters.  On 6 September 2016, the property matter resolved by consent on a final basis. Essentially, it was agreed that the husband would pay the wife a lump sum of $100,000, plus spousal maintenance of $125 per week between 23 March 2017 and 1 February 2018.  It was also agreed that the wife would receive a super split of $10,000.

4. In relation to parenting, there was discussion during the hearing about the benefit to the parent’s unborn child for the mother to have peace and support during the last couple of months of her pregnancy and the first few months of the new baby’s life.  Orders were made by the court for:

   a)[X] and her mother to live in (omitted) NSW from 23 September 2016 until 23 March 2017, and for them to then return to Melbourne;

   b)the orders made on 15 August 2016 for [X] to spend time with her father to be suspended during the period from 23 September 2016 until 23 March 2017;

   c)during the period from 23 September 2016 until 23 March 2017, [X] to spend time with her father in (omitted) NSW:

   i)for a period of not less than four hours on Christmas Day 2016 and [X]’s birthday on (omitted) 2016, provided that the father gave the mother at least seven days’ notice of his intention to spend time with [X];

   ii)for one period of up to 14 days and three periods of up to seven days between the hours of 9am to 5pm on each day during the months of October, November and December 2016 and January 2017 and, in addition, an overnight stay in each of these periods and during one of the December or January visits [X] be permitted to go to Queensland with her father for a period of three days and two nights provided that the father gave the mother seven days’ notice; and

   iii)at other times as agreed between the mother and the father;

   d)[X] to spend further time with her father in Melbourne in February 2017 for a period of seven days between the hours of 9am to 5pm on each day, in addition to one overnight stay during this period;

   e)notwithstanding any other order, [X] to spend time with her father from 3pm on 24 December 2017 until 3pm on 25 December 2017;

   f)from 23 March 2017 to 1 February 2018, [X] and her mother to be permitted to travel to (omitted) NSW on six occasions for a period of up to two weeks on each occasion, provided that her mother gives her father seven days’ notice, and provided that there be make up time;

   g)the matter to be adjourned to 2 November 2017 for interim hearing and 1 February 2018 for final hearing.

5. When [Y] was born on (omitted) 2016 in or around (omitted) NSW, the parents had a substantial and vehement disagreement about what she should be called.  The mother wanted her to be called [Y], and the father wanted her to be called [Y].

6. At the interim hearing on 2 November 2017, orders were made:

   a)by consent for:

   i)the parents to complete a post separation parenting program;

   ii)[X] spend time with her father from 9:30am to 5pm each Wednesday and from 9:30am Friday until 5pm on Saturday, with the time on the Saturday to be extended to 5pm on Sunday for the weekends immediately before and after [X] had spent time in (omitted) NSW with her mother, and from 3pm on 24 December 2017 until 3pm on 25 December 2017;  

   iii)from 23 March 2017 to 1 February 2018, [X] be permitted to travel to (omitted) NSW with her mother on six occasions for a period of up to two weeks on each occasion, provided that the mother gives the father seven days’ notice;

   iv)the time [X] usually spends with her father be suspended on each occasion [X] and her mother go to (omitted) NSW;

   v)until further order, the parents have equal shared parental responsibility for [Y];

   vi)until further order, [Y] live with her mother;

   vii)until further order, [Y] spend time with her father from 9:30am until 5pm each Wednesday, and from 9:30am on 3pm on 25 December 2017 (together with [X]);

   viii)changeovers to occur at (omitted) Park, unless otherwise agreed;

   ix)the mother be restrained from referring to [X] and/or [Y] by any name other than their legal names, in all communications and documents;

   x)the mother instruct her legal representatives to refer to [X] and [Y] by their legal names in all communications and documents;

   xi)there be an updated family report prepared by Mr T, with the cost of the report to be shared equally between the parties; and

   b)by the court, until further order, for [Y] to spend time with her father from 9:30am until 5pm each Friday.

Orders by consent

1. During the trial, the parents agreed to the following orders being made by consent:

   1.That the parties have equal shared parental responsibility for the children [X] ([X]) born (omitted) 2014 and [Y] ([Y]) born (omitted) 2016 (Children).

   2.That the Children live with the Mother and the Mother hold the Children’s passports.

   …

   14.That the parties keep each other informed forthwith of any serious medical injury or health issue affecting the Children or either of them from time to time, together with names and contact details of any treating medical, dental and/or allied health professionals

   15.That each party be at liberty to attend appointments with the Children’s or either of the Children’s health practitioners.

   16.That both parties be authorised to receive copies of all notices, reports, photograph order forms, newsletters and like materials ordinarily made available to parents from the kindergarten and/or school attended by the Children or either of them.

   17.That the parties communicate regarding parenting arrangements via text message or email.

   18.That each party keep the other informed of any change of residential address and telephone/email contact details within seven days of the date of the change of information.

   19.That each party be permitted to travel overseas with Children during any period in which the Children are in their respective care provided that:

   (a)the travelling party notify the non-travelling party in writing of their intention to travel overseas not less than 60 days prior to the proposed departure date;

   (b)the travelling party provide to the non-travelling party an itinerary for the proposed time including travel, flight and contact details;

   (c)the travelling party shall obtain the written consent from the non-travelling party with such consent not to be unreasonably withheld;

   (d)if the travel period includes a time when the Children would otherwise be in the non-travelling party’s care, then the travelling party shall provide the non-travelling party with make-up time at times to be agreed in writing; and

   (e)if the non travelling party is holding the Children’s passports pursuant to these Orders, the non-travelling party shall do all acts and things necessary to ensure that the Children’s passports are made available to the travelling party at least 7 days prior to the proposed departure date, and the travelling party shall ensure that the Children’s passports are returned to the non-travelling party within 48 hours of the travelling party’s return from the overseas travel.

The first family report

1. Mr T prepared a family report dated 31 August 2016.  At that time, [X] was 18 months old and [Y] was yet to be born.  The mother was then living in Melbourne with her aunt and uncle.  The mother’s proposed relocation to (omitted) NSW was the principal issue in dispute.

2. Mr T noted that the parents were amicable, but the mother wished to relocate to New South Wales.  Mr T noted at paragraph 14 of his first report that the mother:

   appears to have given little thought to their unborn child’s need for a relationship with [her father] …

3. Mr T noted that the father had been agreeable to the mother relocating temporarily, but later withdrew that offer as he considered that the mother would be reluctant to return to Melbourne.  Mr T noted that the father, at that stage, was agreeable to the mother living in his investment property in (omitted), Melbourne at a discounted rate.

4. Mr T observed the parents together in the waiting room and considered that their behaviour was exemplary.  Mr T said the following in relation to the observation sessions:

   20.The observations were unremarkable and reveal little collateral information that would inform the matters at hand.  [X] moved between the parties without any sign of apprehension or anxiety, both parties came well prepared for the assessment and displayed an attentive and intuitive parenting style.

   21.[X] was openly affectionate with both parents and as she tired and became fractious towards the end of the assessment, both parents were able to soothe and console her.  [X] showed a slight preference for her mother’s care in these circumstances and this is consistent with [the mother’s] role as the primary attachment figure for [X].

   22.The play and parenting interactions of the parties’ with [X] follow predictable gender differences with [the mother] more focused on imaginative and narrative play and [the father] more exploratory and activity based.  There is nothing in the parenting of either party that is a cause for concern.

5. In his evaluation, Mr T said:

   26.[The father’s] belief that his relationship with [X] will be significantly diminished if she is relocated to New South Wales is somewhat born out in the literature and studies in this area which is limited but indicates children in this cohort tend to suffer a greater range of negative psychological, emotional, and social outcomes, than those children whose parents stay closely located after separation.  [The father] will lose the intimacy that frequent contact on a weekly basis provides and will become a relative stranger to [X]’s social and educational milieu with limited access to involvement in her milestones and developmental trajectory.  This level of intimacy is directly proportionate to the level of psychological and emotional support the child experiences with both parents and in this regard he will be largely absent.  These circumstances will be even more amplified for their unborn child.

   27.Resilience factors to these negative outcomes and the diminution of quality in the relationship with the non-resident parent are identified as; the child’s developmental stage at the time of relocation, the level of attachment formation to the non-moving parent, commitment of the moving parent to maintaining the relationship and image of the non-resident parent in the child’s mind and the frequency and duration of the time spent with the non-moving parent after relocation.

   28.[X] is not yet two and is still in the formative attachment phase of her relationship with both parties and in the case of parental separation this is sometimes disrupted for the non-resident parent.  However, in these circumstances the parties’ cooperation, communication and goodwill has ensured [the father] has been able to begin the process of a secondary attachment with [X].  However, it is reasonable to assume her developmental age and stage are not fully consolidated in regards to her attachment with [the father] and this issue would remain a risk factor for their relationship if [X] relocated.

   29.[The mother’s] commitment to supporting and facilitating the relationship between [the father] and [X] in the event of a relocation is not questioned by the writer.  [The mother] has acted in a mature and responsible manner around this issue and there is nothing in the interviews, observations or available material to suggest she would not continue to do so if allowed to relocate.

   30.In terms of the frequency and duration of time spent should the relocation be permitted, a fortnightly arrangement would be required in these circumstances with the parties alternating between New South Wales and Victoria by plane in an effort to ameliorate the fatigue of travel for [X]. Holiday time would need to be introduced incrementally commensurate with [X]’s capacity to cope with prolonged absences away from her mother starting in or around age 4/5.  However, these conditions would not be applicable to their unborn child who would require short frequent contact with her father of three or four times per week, incrementally increasing over time, in an effort to establish a secure base for their relationship to move forward as it has with [X]’s.  If this could not be achieved it is unlikely [the father] would enjoy the same level of intimacy and be able to establish the same solid foundation in this relationship as he has with [X].

   31.[The mother’s] concerns about her parenting capacity in the context of potentially predisposing factors for postnatal depression and the difficulties associated with being a sole parent on a limited income, with limited support, are completely understandable in the circumstances. The parenting capacity of the primary attachment figure ([the mother]) is a critical factor in the early development of the child where the goal is to establish a secure attachment with at least one parent.

   32.Significant disruption to the primary attachment relationship, as a result of depression, that cannot be ameliorated or addressed places this fundamental relationship at risk with potentially significant consequences for the child.  There is a settled body of research and literature concerning the impact of maternal depression on the attachment, development, and psycho-social welfare of children.  Epidemiological and clinical studies clearly show elevated rates of disorder in the children of depressed parents versus non-depressed parents. Anxiety, disruptive and oppositional behaviour, depression, and difficulty with peers are over represented in this group who are prevalent in clinical populations.  Disorders of mood, personality, and conduct tend to prevail into adulthood for these children. The key to ameliorating these factors is early diagnosis, access to resources including practical, psychological, social and medical supports at the requisite levels required to support the mother’s parenting capacity. In these circumstances, their unborn child would be most at risk.

   33.In conclusion, the driving narratives of such disputes often become linear and reductive and hinge on solutions of an either/or nature which rarely reflects the complexity of the issues and needs faced by the children.  Inevitably the perceptions and positions taken by the adults in the dispute have a cogent and persuasive logic and one is often confronted with ordinary people struggling for autonomy over their lives, security and the maintenance of meaningful relationships. Only the Court has the forensic capacity and experience required to weigh the nuanced challenges outlined in this report.  In this case, the issues are further complicated by the parties’ unborn child for whom the risk factors connected to both proposals are amplified. This is a finely balanced matter in which the factors for and against need to be carefully weighed and the writer is unable to make definitive recommendations in terms of which proposal best supports the children’s needs.

The second family report

1. Mr T prepared an updated family report dated 22 January 2018.  At that time, [X] was three years old and [Y] was 13 months old. 

2. [X] was then spending time with her father:

   a)each Wednesday from 9.30am until 5.00pm; and

   b)each Friday from 9.30am until Saturday at 5.00pm.

3. [Y] was then spending time with her father each Wednesday and Friday from 9.30am until 5.00pm.

4. Mr T noted that the relationship between the parents had deteriorated since September 2016, with the mother accusing the father of being controlling and bullying and the father accusing the mother of arbitrarily restricting [X] and [Y]’s time with him.

5. Mr T said in relation to his observations:

   34.Both children presented as physically robust and healthy and appear to be on track in all required developmental areas at this point in time. Both [X] and [Y] moved between the parties without any side of anxiety of apprehension. The children presented as relaxed and at ease in the care of both parents. [X] and [Y] are at an age and stage that make it unlikely they can cognitively contribute to the matters at hand in an informed or meaningful manner.

   35.Both parties were observed with the children individually. They came well prepared with food, drink and nappies and where (sic) anticipatory and attentive to the children need’s throughout the course of the day. The observations are largely unremarkable and add little collateral information to the matters at hand. At an individual level, the parenting of both parties presents as skilled, warm and intuitive.

6. Mr T said in his evaluation:

   36.The previous semblance of goodwill, cooperation and communication that was apparent during the course of the last assessment, appears to have evaporated completely after the birth of [Y]. The parties now view each other through the lens of their competing proposals which has seen their views of each other become increasingly polarised, mistrustful and overwhelmingly negative.

   …

   39.The children’s developmental context, then and now, militated against a block format of overnight time for this age group. The writer explored a fortnightly arrangement alternating between (omitted) NSW and Melbourne, consisting of overnight time for [X] and daytime contact for [Y] with the children travelling by plane in the early stages of the arrangement. The goal was to consolidate the children’s attachment profile with [the father]. However, the writer concluded [the father’s] relationship with [Y] would potentially lack the same familiarity and intimacy he has been able to establish with [X], and his relationship with both children may become somewhat peripheral (Family Report dated 31 August 2016, paragraphs 27, 28, 29 and 30).

   …

   46.Attachment formation to the primary attachment figure has four key stages generally complete in the first two years of the child’s life. At the end of this process the child should have established a sense of basic trust with its care givers and be prepared for the completion of the first stage of separation and individuation. At this stage the child is ready to experiment with separations from the primary attachment relationship and significant other’s. these separations should be staged and incremental in order to gradually increase the child’s threshold to the discomfort experienced by the separation from the primary attachment relationship. The act of parental separation often has the potential to delay or disrupt this process and the care arrangements need to be carefully managed in order to ameliorate the impact on the child’s psychological and emotional well-being.

   47.The research and literature on attachment is well established and unequivocal in its findings. Premature disruption or severing of this relationship has the potential to precipitate a variety of emotional and psychological difficulties for children similar to those described for maternal depression. Outcomes such as heightened anxiety, depression, behavioural disorders and developmental delay are over represented in this group. In this context of [the father’s] proposal for a potential change of residency (Further Amended Response filed 1 December 2017, paragraph 14), it is the writer’s view a change of the primary care arrangements for the children would place them at significant risk of psychological and emotional harm. In these circumstances, a change of residency is contraindicated and not recommended to the Court.

   48.It is beyond the remit of this report to provide definitive recommendations around the proposal for relocation. However, some guidance concerning the spending time arrangements in relation to the proposals of the parties is appropriate. In the event [the mother] remains in Victoria, it is recommended the children’s time with [the father] incrementally increase to five nights a fortnight and half of all school holidays. A structure consisting of each alternate weekend from Friday p.m. until Monday a.m. and each alternate Wednesday p.m. until Friday a.m. would be recommended.

   49.The potential timing of the incremental increases for [X] should occur between mid-2018 and mid-2020 (prep year) on a six monthly basis or thereabouts. Holiday time should be introduced incrementally in 2020 along the following lines; in the first term prep 2020 for four consecutive nights, second term for five consecutive nights, third term for six consecutive nights, and thereafter half of all school holidays with the long summer break taken by agreement between the parties.

   50.[Y]’s adjustment to the arrangements and pace of change would be supported by the sibling relationship and the structure of the arrangement which requires no more than three consecutive nights at any one time. Under these circumstances it may be feasible to synchronise the children’s time with [the father] in the time frame described above with overnight time for [Y] commencing mid-2018. However, periodic reviews of the children’s progress by an experienced clinician, particularly for [Y], would be advisable. [The father’s] proposal for equal shared time would be contraindicated under the current circumstances given the distance between the two homes and the poor level of communication and cooperation between the parties.

   51.In the event [the mother] relocates to (omitted) NSW with the children, the writer recommends [the father] spend time with the children on two occasions per month alternating between Melbourne and (omitted) NSW for five consecutive nights on each occasion until [Y] turns two in (omitted) 2018. It is anticipated [X]’s overnight time would increase to two consecutive nights at the start of the arrangement with [Y] beginning overnight time in June 2018. The parties should consider using air travel for the Melbourne leg of this arrangements given its limited timeframe.

   52.Subsequent to the conclusion of the above arrangement in October 2018, it is further recommended [the father] spend time with the children for a period of seven consecutive nights in each month alternative between Melbourne and (omitted) NSW on a monthly basis. In these circumstances, it is recommended overnight time for [X] incrementally increase up to seven nights in increments of one night in six monthly blocks, or thereabouts. As above, overnight time for [Y] could begin in mid-2018 increasing in increments of one night in sync with [X]’s changes. However, consideration should be given to speeding up the pace of change for [Y] to synchronize the children’s time prior to a comprehensive review of the arrangements in late 2019 prior to [X] starting prep in 2020. Skype and telephone time would be essential and the ability for [the father] to spend time with the children in (omitted) NSW at other times by agreement would enhance the arrangements.

   53.In conclusion, the structure and pace of change in these potential arrangements are by necessity somewhat approximate and loosely based on the children’s capacity to cope with the extended absences from the primary attachment relationship ([the mother]). As a general rule, [Y]’s adjustment will be assisted by the sibling bond with her sister. Her capacity to adjust to change will be greater than [X]’s at the same age. It is a somewhat imperfect science given the amount of variables involved in both scenarios and the history of parental conflict to date.

   54.As with all post separation arrangements, their success or otherwise is largely dependent on the capacity of the parties to cooperate and communicate in a mature and child focused manner. The most significant risk to the children’s long-term psychological and emotional health at this point in time remains their potential exposure to the parental conflict and the parties’ current attitudes towards each other. Failure on the part of the parties to remediate their current behaviours and views places the children at significant risk of psychological and emotional harm into the future.

7. As can be seen, Mr T did not make any written recommendation about whether the proposed relocation is or is not in the best interests of [X] and [Y].

Mr T’s oral evidence

1. Mr T was cross-examined by both parents by telephone. 

1. In relation to the mother’s criticism of the father that he needed the support of his parents to be able to properly parent [X] and [Y], Mr T noted that the mother was seeking to relocate primarily so that she could have the support of her parents.  Mr T also reiterated that the father is himself a capable parent and his capacities as a parent will increase with more time spent with [X] and [Y].

2. Mr T said that, if the mother remained in Melbourne, and the father had [X] and [Y] for gradually increasing periods of time, the mother could be expected to use that respite to cement her position in the local community.  It was implicit in Mr T’s evidence on this point that, with time, the mother would gain more social support in Melbourne.

3. Mr T said that, if the mother relocated to (omitted) NSW, the mother’s parenting capacity may be improved, but [X] and [Y]’s relationship with their father would be diminished in the short to medium term.  Mr T said that the mother appears to have idealised what life in (omitted) would be like for her, [X] and [Y], and overlooked the importance of the father in [X] and [Y]’s lives.

4. In relation to the mother’s criticism that the father played sport during [X] and [Y]’s allocated time with him, Mr T said that children need to experience their parent’s day to day lives as they are, and the father’s participation in sport was comparable to the mother taking [X] and [Y] to have morning tea with her girlfriends. 

5. Mr T confirmed that [X]’s relationship with her father would be significantly diminished if she relocated, as explained in social science research.  Mr T said that, at [Y]’s age, frequency of contact with her father was more important than duration.  

6. Mr T said that a two year old spending four or five days away from their primary attachment figure could damage the child’s attachment to both parents.  Mr T recommended, for a child of [Y]’s age, up until two years of age, that unless she saw her father three or four times a week for short periods, she would be unlikely to have the same solid foundation in her relationship with her father as [X] now has.

7. Mr T said that the attachment formation stage generally went to the age of two years.  Mr T said that, if [Y] could see her father fortnightly until she was two years old, that would alleviate some of the risks she faced in relation to attachment formation.  In that regard, Mr T said that he was contemplating fortnightly travel by aeroplane and said that he understood that, even if [X] and [Y] remained in Melbourne, they would only see their father fortnightly.  When it was explained to Mr T that [X] and [Y] see their father two or three times a week in Melbourne, Mr T maintained that fortnightly contact would be sufficient for attachment formation but it would not be as optimal as two or three contacts per week.  Mr T agreed that monthly contact would be more problematic for [Y] than fortnightly, but said the less frequent the contact, the longer it would take for the relationship between [Y] and her father to develop, and there was a risk that it would not be as intimate and satisfying.

8. Mr T said that [X] and [Y] being clingy with their mother after time with their father was an indication of normal attachment behaviour.  Mr T considered that both parents had the capacity to soothe and calm [X] and [Y].  Mr T agreed that the clinginess displayed by [X] and [Y] was a clear indicator of why it would be important to slowly and gradually increase their time with their father.

9. Mr T said that it was normal for children in separated families to be immersed in each parent’s life, including involvement in (hobbies omitted) and their extended family.  Mr T agreed that it would not be ideal for [X] and [Y]’s time with their father to be in a hotel room or caravan park in (omitted), and to not include the extended family on the paternal side.

10. Mr T’s evidence was not substantially challenged and I accept it.

Mr P’s evidence

1. Mr P is a registered clinical psychologist.  He is studying for a PhD part-time at (omitted) University.

2. In his affidavit, Mr P said that he had been treating the mother since August 2017.  However, in his oral evidence, he said that he had seen the mother nine times, but had not given her much treatment.  He said he was actually engaged to provide an assessment and report.[1]  He said that people with the mother’s issues could be successfully treated with sessions with a psychologist every three weeks for 12 months.

   [1]     Tr. p.83, l.22

3. In a report attached to his affidavit, Mr P said that:

   a)the mother was repeatedly sexually abused by a neighbour (in (omitted)) when she was eight years old;

   b)she disclosed the abuse when she was 21 years old and has had some therapy for the abuse;

   c)the mother had anorexia in her late teens;

   d)the mother reported a number of supportive relationships with family and friends;

   e)the mother did a test which indicated that she had moderate to severe post traumatic stress disorder (“PTSD”) symptoms;

   f)the mother met the criteria for major depressive disorder and PTSD;

   g)the mother’s stress, anxiety and depression were likely to be situational, and connected with her relationship breakdown, the current court proceedings and the current requirement that she remain in Victoria;

   h)relocation may help the mother to improve her wellbeing, given that she had more family support in (omitted); and

   i)if the mother were not permitted to relocate, it would be important that she engage more with the local community, and had the opportunity to have lengthy trips to (omitted).

4. Mr P specifically acknowledged at paragraph 54 of his affidavit that he was unable to comment on how a relocation would affect [X] and [Y].

5. In his oral evidence, Mr P confirmed that he was aware of the obligation of expert witnesses to be impartial and not to advocate for their client. 

6. Mr P confirmed that the mother’s PTSD was related to her childhood sexual abuse.  He said that the mother was not currently taking any medication for her psychological issues, or abusing alcohol or drugs.

7. Mr P said that, notwithstanding her psychological issues, the mother remained efficacious as a parent.  He said that she was motivated to have treatment.

8. Mr P said that, for people with PTSD, triggers for flashbacks and nightmares could include exposure to the scene of the traumatic event.  He agreed that it was unhealthy for a person with PTSD to be constantly exposed to the scene where the abuse occurred.

9. Mr P said that the mother’s insight, motivation and personal strengths, including that she had been successful socially, academically and professionally, would stand her in good stead.

10. Mr P confirmed the statement in his report that relocation may help the mother, but he could not put it higher than that.

11. Mr P said that, if the mother had supports around her, her recovery would probably proceed more quickly.

12. Mr P’s evidence was not substantially challenged and I accept it.

The naming of the second child

1. A very significant issue in this case concerned the naming of the second child, who was known prior to her birth to be a girl.  The father said, without challenge, that:

   a)he and the mother had agreed to discuss names for the second child, who was born on (omitted) 2016;

   b)the father provided to the mother by text a list of his nine preferred names on (omitted) 2016;

   c)the mother replied saying that she had a list of 25 names and that she would reduce it to six and then provide the shortlist to the father;

   d)the father asked the mother for feedback on his proposed names;

   e)she replied saying that she liked a few of them, but it was hard because she had (employment omitted) girls with some of the names;

   f)on (omitted) 2016, the mother sent the father a text message suggesting that they discuss their second child’s name later that day;

   g)the father asked the mother to send through her list (so that he could think about the mother’s proposed names in advance of the discussion);

   h)the mother did not do so;

   i)when the father returned [X] to the mother in the afternoon of (omitted) 2016, the mother told the father that she had decided to name the second child [Y];

   j)the father replied that he did not like that name, and he was disappointed that the mother had reneged on the agreement to discuss the second child’s name;

   k)the father asked the mother if she would consider any other names;

   l)the mother said she would not consider any other names;

   m)the father again said that he did not like the name [Y];

   n)the mother said, bad luck;

   o)the father was disappointed, but concentrated on spending time with the second child;

   p)that evening, the father wrote to the mother by text, asking her to reconsider the name [Y];

   q)the mother replied saying she liked the name [Y];

   r)the father replied saying that he liked [Y] too, and asking if they could call the second child that;

   s)the mother replied saying, How about we give it a few days?;

   t)on (omitted) 2016, the mother sent the father a message saying, Did you want to think names and we’ll chat in a few days – I still really like [Y]/[Y];

   u)the father replied saying, I’m happy with [Y], but not [Y];

   v)however, the mother did not agree to [Y];

   w)the father asked the mother to provide him with the other 24 names she liked;

   x)the mother replied saying that she did not have any other names at that stage;

   y)the mother suggested that the baby be named [Y], but the father could call her [Y];

   z)the father said that this might cause the child confusion;

   aa)on (omitted) 2016, the father went to the maternal grandparent’s home to collect [X];

   bb)the paternal grandfather confronted the father at the front gate and shouted:

   i)you are harassing [the mother];

   ii)you need to get over it and let [the mother] choose the name;

   iii)we haven’t been sleeping, [the mother] has been in tears, it is your fault that [the mother] is an emotional wreck;

   iv)stop messaging [the mother] about the name;

   v)just accept the name [Y];

   cc)since then, the father has not been permitted to enter the maternal grandparents’ home;

   dd)on (omitted) 2016, the mother said that she would not consider any name other than [Y];

   ee)the father said that he would not agree to the name [Y], but he would agree to the name [Y], or they could try to come up with a different name;

   ff)later that day, the mother sent the father a text saying that she was  not likely to agree to any name the father picked;

   gg)the father replied saying that if they could not agree on a name, then they could submit their preferred names to the Registrar of Births Deaths and Marriages and ask the Registrar to choose;

   hh)shortly after, the mother agreed to name the second child [Y] (and her name was registered as such);

   ii)since then, the mother has persisted in calling [Y] and [X];

   jj)at the interim hearing on 2 November 2017, the father sought orders that the mother be restrained from referring to [X] and [Y] by any names other than their legal names;

   kk)the mother opposed that order, unless the father agreed to [Y]’s surname being changed from Clyde to Clyde Fox;

   ll)eventually, the mother agreed to the restraint; and

   mm)however, the mother has not complied with the restraint, as she uses the names [X] and [Y] on Facebook and elsewhere.

2. Although there was no order in place for equal shared parental responsibility for [Y] at the time of her birth, in the absence of an order for sole parental responsibility, the common law gives the parents equal say in major decisions about a child.  The name to be given to a child is a major decision in relation them.  Consequently, the mother was obliged to consult with the father in a reasonable manner about [Y]’s name.  The mother did not do so.

3. On the contrary, the history set out above shows that the mother tried to impose her will on the father in relation to [Y]’s name.  When the mother’s own efforts in that regard failed, the paternal grandfather tried to intimidate the father, by shouting, and manipulate him, by saying the mother was in tears.  There is no evidence that the mother encouraged the paternal grandfather to behave in that way.  Nevertheless, the mother took the benefit of that intimidation and manipulation.  It was only when the father said that the decision would have to be made by the Registrar of Births Deaths and Marriages that the mother relented about [Y]’s name.  At no stage did the mother offer any option other than [Y].  Notwithstanding the restraints upon her, the mother has continued to call [Y], [Y], and [X], [X].

The father’s communications when [Y] was born

1. The mother alleged that the father was excessive and insistent in relation to the naming of [Y] and never asked her, after she had just given birth, how she was or how [Y] was or offered any help.  The mother also claimed that the father sent her a text message at 11pm pressuring her about [Y]’s name.  The issue about [Y]’s name is discussed above.

2. In relation to the father’s queries about the mother’s and [Y]’s well-being and offers of help, the father tendered a series of text messages between him and the mother (exhibit 1) which included the following:

   a)when she was in labour, the mother told the father she was heading to the hospital at 3:24am, and said, Can you please grab [X] in the morning?

   b)the father replied, Yeah sure thing. Good luck and let me know if you need anything;

   c)after being advised of the birth, the father wrote, Well done Ms Fox. How are you and the new bubba?

   d)Do you need anything?

   e)How’d you and the Bubba’s go last night?

   f)Did you manage to get some rest?

   g)Did you manage to get some rest after we left?

   h)How did you and the mini grape monster go?

   i)how’d you and (omitted) go?

3. It is simply not true that the father did not ask how the mother or [Y] were or offer any help.  Also, for at least some of the time shortly after [Y] was born, the father was caring for [X] overnight.  The mother’s false claims in this regard indicate that she is not a reliable witness.

4. After some discussion at the trial, it became apparent that the mother’s claim that the father sent the mother a text message at 11pm was false.  The time on the text message produced by the mother was not the time it was sent, but the time the mother took a screen shot of the message (exhibit 3, page 3).  The father said that he did not send the mother any messages after 8:40pm.  I accept the father’s evidence on this point.  He presented in the witness box as an entirely credible witness.  He was not shown to have given any false evidence to the court in relation to any matter.  The mother, on the other hand, gave false evidence about the father’s enquiries about her and [Y]’s health.  I consider that the mother deliberately gave false evidence about the time when the father contacted her to falsely portray him as obsessed about [Y]’s name, and overbearing and thoughtless.

Whether the father is a controller and a bully

1. The mother alleged that the father is a controller and a bully.  One of the examples the mother gave to illustrate that assertion arose in the context of a proposal that the father withdrew.  That proposal was that, if the mother relocated to (omitted), [X] and [Y] should remain in Melbourne with him. In that event, the father proposed that the mother give the father 28 days’ notice of the time she wanted to spend with [X] and [Y] in (omitted).  It was the proposal for 28 days’ notice that the mother said was indicative of the father being a bully and a controller. 

2. I do not accept that the proposal for 28 days’ notice is evidence that the father is a bully and a controller.  That proposal was put in the context of ongoing legal proceedings and presumably was advanced with the benefit of legal advice.  In any event, it does not strike me as unreasonable or overbearing.  Moreover, the whole proposal was withdrawn before the trial began.

3. Another example given by the mother of the father’s allegedly controlling and bullying behaviour was the allegedly extreme pressure he placed on her with regard to the naming of [Y].  However, as discussed above, it was, if anything, the mother who was controlling and bullying in relation to the naming of [Y].

4. The mother said that the father had given an undertaking that she could call [Y], [Y].  This is an overstatement.  The evidence relied on by the mother in support of this claim is that the father sent the mother a text on (omitted) 2016 saying, Why can’t she be [Y] on her birth certificate and you can introduce her as you like?  That was not an undertaking.  It was a question.  It could be characterised as an offer, in the context of an ongoing negotiation.  As the mother did not accept it, and made a counteroffer, the father’s offer did not become an agreement and the father was not bound by it.  In any event, it was not an undertaking.

5. The mother said that further evidence of the father being controlling and a bully was that he sought to control the pet names that she gives to [X] and [Y].  It is true that the father sought to restrict the names that the mother used for [X] and [Y].  The father sought and obtained an interlocutory injunction restraining the mother from using any names for [X] and [Y] other than their legal names.  That order was made on 2 November 2017 in the best interests of [X] and [Y].  The mother presumably also thought that the order was in the best interests of [X] and [Y] because she consented to it.  It is bizarre to suggest that this is an example of the father being a bully and a controller.

6. The mother said that paragraph 36 of the father’s affidavit affirmed on 1 December 2012 shows that he seeks to analyse my whole relationship with my daughters and seeks to control how I relate to them and how my family relates to him. Paragraph 36 of the father’s affidavit affirmed on 1 December 2017 is as follows:

   36.I have grave concerns that if [the mother] were permitted to relocate to New South Wales with the children, [the mother] would not be committed to supporting and facilitating my relationship with the children. The following four areas are of particular concern to me:

   (a)[the mother’s] negative attitude towards the children spending time with me, and in particular, [the mother’s] breach of Court Orders which provide for the children to spend time with me;

   (b)[the mother’s] reluctance to involve me in deciding [Y]’s name;

   (c)[the mother’s] refusal to communicate and engage in cooperative parenting with me; and

   (d)[the mother’s] family’s negative attitude towards me.

7. There is nothing untoward in that paragraph.  If the mother intended to refer to the following paragraphs in the father’s affidavit, there is nothing untoward in them either.  They simply elaborate on the points made by the father in paragraph 36.  If anything, they show that the mother was being controlling and unduly restrictive and obstructive in relation to [X] and [Y]’s time with their father.

8. I am not persuaded that the father is a controller or a bully.

Care by the paternal grandparents

1. The mother claimed that, when [X] and [Y] were with their father, they were predominantly cared for by the paternal grandparents, with whom the father is presently living.  The mother also alleged that the father did not have the capacity to care for [X] and [Y] without the substantial assistance of the paternal grandparents.  The mother alleged that the father prioritised his sporting commitments over the care of [X] and [Y], and left them in the care of his parents while he was playing (hobbies omitted) with his friends.

1. Mr P explained that it is appropriate for children to fit in with their parents lives, and said that [X] and [Y] spending time at a (omitted) game was no different in principle from the mother taking [X] and [Y] for morning tea with her girlfriends. 

2. The father gave evidence, which I accept, because I found him to be a credible witness, that he cared for [X] and [Y] without significant input from his parents.

3. The paternal grandmother also gave evidence.  She said in her affidavits that she and the paternal grandfather had retired and were prepared to assist the mother and the father with the care of [X] and [Y].  The paternal grandmother said that she and the paternal grandfather cared for [X] and [Y] when the father was playing sport, and sometimes played with [X] and [Y], read to them and took them for walks.  Otherwise, the paternal grandmother said that the father looked after [X] and [Y] by himself, including shopping for them, preparing their meals and snacks, changing their nappies, bathing them, dressing them, reading to them, taking them to the park and soothing them.

4. In cross examination, the paternal grandmother acknowledged that, six days a week she cooked for the whole household, and one day a week, the father cooked for the whole household.  Otherwise, the paternal grandmother confirmed her affidavit evidence.  It was put to her that she had understated her involvement in the care of [X] and [Y].  However, I found her to be a credible witness.  There was nothing to undermine her creditworthiness. 

5. I accept the paternal grandmother’s evidence that the father predominantly cares for [X] and [Y] without input from her, except for minding them while the father plays sport, and doing the sorts of things grandparents would normally do with their grandchildren.  In other words, I accept that the father is well able to care for [X] and [Y] by himself.  I also note that the paternal grandparents stand ready to assist the mother with caring for [X] and [Y] one day per week if the mother would like that to enable her to go to work on that day.

The father’s capacity to travel to (omitted) regularly

1. The mother submitted that the father had provided no evidence of his incapacity to travel to (omitted) every second month, stay for a week each time, and travel there more frequently for additional weekends if he wished.  The father gave unchallenged evidence, which I accept, that he is presently earning $35,000 a year, which is significantly more than the $4,800 he recently earned in a year.

2. The father started to say in oral evidence that if he flew to (omitted), as foreshadowed by Mr T, but the mother’s counsel cut him off and asked him about driving.  The father said that the petrol for the round trip would cost about $250.  He said that each night’s accommodation would cost about $125.  He said that, if he went to (omitted) for a weekend, he would drive up on a Thursday and back on a Monday, but would lose three days’ work as result.

3. The mother’s counsel put to the father that he could work on the telephone while driving.  The father said that he could make and take calls in the car (which would be correct if he has a hand’s free telephone) but that he could not meet with clients, go through their position and scenarios and execute documents, which is the work that earns him income.  I accept that evidence.

4. The mother’s counsel put to the father that he could drive up on a Thursday after work, and drive back on a Monday after spending time with [X] and [Y].  I asked how long the drive is. The father said that the drive was seven and half hours.  I said at that point that there was a safety issue with driving when tired after a days’ work, and that I would not want to make orders that were premised on the father routinely driving late in the day.

5. The father said he earned about $100 per day on average from his (omitted) business and $150 each Monday night as a (occupation omitted).  He said the petrol, at $250 per trip, plus four nights’ accommodation at $125 per night, would make the cost of weekend trips $750.  In addition, there was $300 in lost work as a (occupation omitted), and the $150 in lost work on the Monday night. 

6. The mother’s counsel put it to the father that he was saving $600 a month, because he was no longer paying spousal maintenance to the mother, and therefore the real cost of his trips to (omitted) was only $150.

7. That is patent nonsense.  There is simply no rational basis for deducting the $600 that the father previously paid in spousal maintenance from the cost of the father’s trips to (omitted).  The fact that the father is no longer paying the spousal maintenance might mean that he has more disposable income, or less debt, but it does not mean that the trips to (omitted) only cost $150.

8. The mother tendered some holiday accommodation material showing venues available in the (omitted) area (which is about 20 minutes from (omitted)) from $65 per night for a horse and farm loft to $129 for an apartment (exhibit 2).  The mother gave no additional information about those options that would indicate whether they were suitable for [X] and [Y].  In any event, it is probably reasonable to work on a figure of $100 per night for accommodation.

9. If the father travelled to (omitted) for one week each alternate month for a year, there would be petrol costs of $1,500 (6 X $250), plus accommodation costs of $4,200 (6 X $700), making a total of $5,700.  That is a lot of money for a person on an income of $35,000 per year.  That calculation does not include any loss of income resulting from the father being unavailable for work, and it does not include any cost for the additional weekends the mother proposed the father could spend in (omitted).

10. If the father were to travel to (omitted) for two weekends in a two month period, to make [X] and [Y]’s time with their father fortnightly, the annual cost would be $3,000 for petrol (12 X $250) plus $4,800 (12 X 4 X $100) (assuming a stay of four nights).  That totals $7,800.  Adding that figure to the $5,700 makes $13,500.  That cost would be excessive for the father, who earns $35,000 per year.

Capacity of the maternal grandmother to help in Victoria

1. The father cross-examined the maternal grandmother about whether she could travel to Melbourne from time to time to assist the mother here.  The maternal grandmother said that she works in the family (omitted) business and also works in her own (omitted) business.  She said that her jobs were not full time, but she was very busy.  She said that she travelled twice a year for two to four weeks, and three times a year for two to four days to attend (omitted).  She said one of her (omitted) trips includes a visit of one to two weeks to her other daughter, who lives in a (omitted) town in (omitted) New South Wales.

2. The maternal grandmother said that, since the parents had separated, she had visited the mother in Melbourne about six to eight times per year.  She said some of those trips were to drive back to (omitted) with the mother, and some were to stay in Melbourne for a few days.

3. The maternal grandmother said that the mother definitely needed her support.  The maternal grandmother said that, if the mother said that she needed the maternal grandmother to stay with her in Melbourne for a few days to help out, she could do that.

4. In re-examination, the maternal grandmother said that she did have other demands on her time, and, if the mother asked her for help, she would have to prioritise.

5. On the evidence, the maternal grandmother has the financial capacity and the time to come to Melbourne six to eight times a year for a few days at a time.  If the mother had an urgent need for support, I daresay that the maternal grandmother could accommodate it on most occasions.  Having said that, I accept that the maternal grandmother’s support in (omitted) would be much more readily available.

The father’s capacity to relocate to (omitted)

1. The court asked the father whether he could relocate to (omitted).  He said that, realistically, he could not.  He said that the employment prospects for him in a small town like (omitted) were pretty small.  He also said that (omitted) was a potentially hostile environment for him, given the paternal grandfather’s treatment of him.  I accept that they are legitimate reasons for the father not relocating to (omitted).  In addition, the mother did not press that as a possible outcome.  As neither parent proposed that the father relocate to (omitted), I take that matter no further.

The mother’s financial circumstances

1. The mother argued that her financial circumstances would be much better in (omitted) than they are in Melbourne.  That is because in (omitted), she would live with her parents and would not have to pay for rent, utilities or food, whereas she would have to bear all of those costs if she continued living in Melbourne.  I accept that claim. 

2. The mother said that her expenses exceed her income, and that she has used some of the $100,000 she received by way of a property settlement.  I accept that claim.

3. The mother indicated that she expected to start working a few days a week in the not too distant future.  She said that in 2016 she had been offered a job in the (omitted) area as a (occupation omitted), but she was unable to accept it as the father did not agree to her relocating.  I accept that claim.  Having said that, there would clearly be many opportunities for work in the area of Melbourne where the mother lives.  Either way, it can be expected that the mother will soon be able to find employment as a (occupation omitted).

The mother’s social circumstances

1. The mother also claimed that she is socially isolated in Melbourne.  Her parents are in (omitted).  They would obviously provide a good deal of social and emotional support, as well as physical support for [X] and [Y], if the mother were to relocate to (omitted).

2. The mother has one sibling, a sister, who lives in the (omitted) of New South Wales.  The paternal grandmother said that she goes to see the sister once a year.  From this, it seems unlikely that the mother would see her sister very often, even if the mother did relocate to (omitted).

3. The mother said that she still had a number of school friends living in the (omitted) area, as well as a number of her parents’ friends. 

4. In Melbourne, the mother said that she had few friends, as most of her university friends had moved interstate or overseas and she had lost touch with the friends she made during her eight years in the (omitted) industry.  

5. The mother said that her family in Melbourne consisted of:

   a)her Uncle Mr R and his wife Ms J with whom she previously lived, but who have mental health issues and busy lives;

   b)her grandmother, who is 82, and frail;

   c)her aunt, who is very busy, including with caring for her significantly older husband;

   d)another aunt, who has breast cancer and depression;

   e)another uncle who she sees about once per year;

   f)a cousin and his wife, who are very busy with their second child;

   g)a friend who has a baby who she sees about once every two months;

   h)another friend who she sees about twice a year; and

   i)another friend who she sees about once a year.

6. The mother’s evidence on these matters was not challenged and I accept it.

The mother’s physical condition

1. The mother said that she had been diagnosed with diastasis of the rectus muscles and a compromised pelvic floor after [X]’s and [Y]’s births.  The mother said that these conditions cause her chronic back pain and frequent headaches.  She said that she had been advised that her condition would not improve unless she could have some proper, focussed rehabilitation, had some rest and could stop lifting children.  That evidence was not challenged and I accept it. 

The best interests of the children

1. Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:

   (1)The objects of this Part are to ensure that the best interests of children are met by:

   (a)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

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

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

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

   (2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

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

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

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

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

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

   (3)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)to have the support, opportunity and encouragement necessary:

   (i)         to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)    to develop a positive appreciation of that culture.

   (4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

2. Section 60CA of the Act provides that:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

3. Section 60CC(1) of the Act relevantly provides that:

   Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

   The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.

4. Subsection 60CC(2A) provides that:

   In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   I will address the relevant considerations in order.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

1. It was not disputed that [X] and [Y] would benefit from having a meaningful relationship with both of their parents.

Section 60CC(2)(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. There was no suggestion that [X] or [Y] have been, or might be, subjected to or exposed to abuse, neglect or family violence, save to the extent that bullying and controlling behaviour fits within the definition of family violence.  However, as discussed above, I do not accept that the father has been a controller or a bully.  There is no reason to suppose that he will become one in the future.

Section 60CC(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. [X] and [Y] are obviously much too young to have expressed any views about the arrangements that should be made for them.

Section 60CC(3)(b) the nature of the relationship of the child with:

(i)         each of the child’s parents; and

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

1. Each of the parents and maternal and paternal grandparents seem to have good relationships with [X] and [Y].  Obviously, they are primarily attached to their mother, and their relationships with their father are developing. 

Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i)         to participate in making decisions about major long-term issues in relation to the child; and

(ii)    to spend time with the child; and

(iii)   to communicate with the child

1. The mother and father have both taken every opportunity to participate in decision making in relation to [X] and [Y] and to spend time and communicate with them.

Section 60CC(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 mother bears the bulk of the costs of maintaining [X] and [Y].  However, the father is paying $70 per week child support, which is more than the assessed amount, plus the father was paying the mother $125 per week to assist with her expenses between March 2017 and February 2018.  In addition, the father offered the mother the opportunity to live in his investment property in (omitted), Melbourne at a below market rate of rent, but she declined the offer.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)         either of his or her parents; or

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

1. Mr T indicated that, if [X] and [Y] were to relocate, their attachment to their father would be adversely affected.  It is also likely that their connections to their paternal family would be adversely affected.

Section 60CC(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. Obviously, the relocation proposed by the mother would cause significant practical difficulties and expenses in [X] and [Y] spending time and communicating with their father.  Those difficulties and expenses would substantially impede [X] and [Y]’s right to maintain personal relations and direct contact with their father on a regular basis.

2. The mother proposes that the father travel to (omitted) every two months for a week.  However, as explained above, that would be at substantial cost to the father, given his presently low income.  It would also be disruptive to his work.  Moreover, the mother’s proposal for one week per month in alternating between (omitted) and Melbourne will not be viable once [X] starts school.  Consequently, it will be necessary for the father to spend one week per month in (omitted) if he wishes to retain the same level of contact with them.  That would cost $11,400 a year.  That figure is prohibitive on the father’s present income.

Section 60CC(3)(f) the capacity of:

(i)         each of the child’s parents; and

(ii)    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. Both parents are well able to provide for [X] and [Y]’s needs, albeit that they are primarily attached to their mother, and they need to be primarily with her for the time being.

Section 60CC(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. The father accepts that [X] and [Y] have connections to (omitted) and their extended family there.  The father accepts that [X] and [Y] should continue to visit (omitted) and their maternal family on a regular basis.

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i)     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

(ii)    the likely impact any proposed parenting order under this Part will have on that right;

1. This factor does not apply in this case.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. Both parents have demonstrated an admirable attitude to the responsibilities of parenthood.

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

1. Save for the allegations of bullying and control, which have been addressed above, there were no allegations of family violence in this case.

Section 60CC(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:

(i)         the nature of the order;

(ii)    the circumstances in which the order was made;

(iii)       any evidence admitted in proceedings for the order;

(iv)   any findings made by the court in, or in proceedings for, the order;

(v)    any other relevant matter

1. This factor is not relevant.

Section 60CC(3)(l) 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 child

1. It would be preferable to make the order that would be the least likely to lead to the institution of further proceedings in relation to [X] and [Y].  However, it is not apparent what that order would be.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant

1. All of the relevant facts and circumstances are discussed elsewhere in these reasons.

Parental responsibility

1. The parents were in agreement that they should have equal shared parental responsibility for [X] and [Y].  That is clearly in [X] and [Y]’s best interests.

Equal or substantial and significant time with each parent

1. Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of s.65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent. Subsections (1) to (5) inclusive of s.65DAA provide as follows:

   Equal time

   (1)… if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

   Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

   Substantial and significant time

   (2)… if:

   (a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; 

   the court must:

   (c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i)     days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends or holidays; and

   (b)the time the child spends with the parent allows the parent to be involved in:

   (i)         the child’s daily routine; and

   (ii)    occasions and events that are of particular significance to the child; and

   (c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)how far apart the parents live from each other; and

   (b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)the impact that an arrangement of that kind would have on the child; and

   (e)such other matters as the court considers relevant.

2. In view of [X] and [Y]’s young ages, equal time with each parent is not in their best interests at the moment.   Moreover, if [X] and [Y] were to relocate to (omitted), equal time with their father would be impracticable once they start school. 

3. The mother submitted that her proposal permitted substantial and significant time to be spent by [X] and [Y] with their father.  On the mother’s calculation, her proposal allowed [X] and [Y] to spend 11 days out of 30 or 31 with their father.  That was calculated on the basis of seven days, plus a four day weekend, each month. That amounts to about one third of the time.  As mentioned above, the mother’s proposal will not be viable once [X] starts school.

4. The father’s proposal would also allow [X] and [Y] to spend substantial and significant time with their father. His proposal will still be viable once [X] starts school.

Relocation

1. The mother sought orders that she be permitted to relocate to (omitted) with [X] and [Y].  The father sought orders that the mother’s application be dismissed.  He did not seek an injunction restraining the mother from relocating to (omitted) with [X] and [Y].

2. This is a difficult case.  However, taking into account all the relevant matters, and weighing them as best I can, I consider that it is not in [X] and [Y]’s best interests that they be permitted to relocate to (omitted) with their mother.  The reason for that is that a relocation puts at risk the quality of their relationships with their father.  That is particularly so in the case of [Y], who, at the age of 17 months, is still in the process of forming attachments. 

3. To see their father intermittently during a period of seven days once per month does not meet the reasonable minimum of fortnightly time discussed by Mr T, and is well short of the ideal for such young children.  The ideal for children of [Y]’s age is time with their non-primary attachment parent two or three times per week. 

4. The mother said that she would accommodate the father seeing [X] and [Y] on additional weekends if he wished to visit (omitted), and that would potentially give [X] and [Y] the fortnightly time with their father mentioned by Mr T.  However, it is an unrealistic proposal.  It would involve the father travelling to (omitted) three times in a two month period.  The trip is seven and a half hours each way.  It is too far and too expensive to be done as often as the mother’s proposal would require. 

5. Moreover, the mother’s proposal for the father to spend seven days a month with [X] and [Y] in alternate months in Melbourne will not be viable in two years when [X] starts school.  The mother, through her counsel, conceded to the court that she had not considered how her proposal would work once [X] started school.  That is reflective of how poorly thought through the mother’s proposal was.

6. I note Mr T’s evidence that the mother’s view of her prospective life in (omitted) was idealised.  That is, the mother has an unrealistic view of how idyllic life in (omitted) would be.  Clearly, the mother has left (omitted) before, presumably because it did not meet her needs.  However, I accept that she is in a very different position now than she was as an eighteen year old.  Suffice to say that Mr T’s observation that the mother has an idealised view of life in (omitted) is given some content by the mother’s failure to properly consider how [X] and [Y] would maintain a relationship with their father once [X] starts school.

7. I accept, in accordance with Mr P’s evidence, that relocation may help the mother, and that this in turn may help [X] and [Y].  However, Mr P also indicated that the mother could be successfully treated for her psychological conditions in Melbourne. 

8. In terms of social, emotional and physical support, the maternal grandmother indicated that she could come to Melbourne six to eight times a year to assist the mother here. In addition, the father was supportive of the mother, [X] and [Y] travelling to (omitted) frequently.  While that arrangement would not give the mother the same level of support as she would have in (omitted), it still amounts to a significant level of support.

9. I acknowledge that the mother does not presently have many friends in Melbourne.  However, I consider that this is something that the mother could successfully address, once it is clear to her that her future is in Melbourne.

10. I acknowledge that the mother’s financial position in Melbourne is not as strong as it would be in (omitted), at least while she continued to live with her parents.  I also accept that, if the mother is financially stressed, it will impact on [X] and [Y].

11. I also acknowledge that the mother has some physical issues following her pregnancies and deliveries that she has not yet been able to resolve with the necessary exercises. However, I consider that, once this matter is finalised, and the mother becomes more settled in Melbourne, she will be able to successfully address these issues.

12. All in all, I consider that the possible benefits to the mother, and, through her, to [X] and [Y], of relocating to (omitted) are outweighed by the risk that [X] and [Y] will not have sound relationships with their father, and will not have all that sound relationships with their father will give them, if the relocation goes ahead.

Orders if there is no relocation

1. The parents were in substantial agreement on the orders to be made if the mother did not relocate.  One part of the father’s proposals were as follows, with the mother’s alternatives underlined:

   3.That until [X] commences primary school, [X] spend time with the Father as follows:

   (a)from 8.00am each Tuesday until 5.30pm each Wednesday;

   (b)each alternate weekend, from 4.00pm Friday until 5.00pm Sunday;

   4.That until 1 June 2018, [Y] spend time with the Father as follows:

   (a)from 8.00 am until 5.30pm each Tuesday;

   (b)from 8.00 am until 5.30pm each Wednesday;

   (c)each alternate weekend:

   (i)         from 9.00 am until 5.00 pm Saturday; and

   (ii)    from 9.00 am until 5.00 pm Sunday.

   5.That from 1 June 2018 until 1 October 2018 or 1 November 2018, [Y] spend time with the Father as follows:

   (a)from 8.00 am Tuesday until 5.30pm each Wednesday;

   (b)each alternate weekend:

   (i)         from 9.00 am until 5.00 pm Saturday; and

   (ii)    from 9.00 am until 5.00 pm Sunday.

   6.From 1 October 2018 or 1 November 2018  until 1 February 2019 or 1 April 2019, [Y] spend time with the Father as follows:

   (a)from 8.00 am Tuesday until 5.30pm each Wednesday; and

   (b)each alternate weekend, from 9.00 am Saturday until 5.00 pm Sunday.

   7.From 1 February 2019 or 1 April 2019 until [X] commences primary school, [Y] spend time with the Father at the times set out in subparagraphs 3(a) and 3(b) of these Orders.

   …

   9.That the Children also spend time with the Father as follows:

   (a)each Father’s Day from 5.00 pm the preceding night until 5.00 pm Father's Day;

   (b)for a period of at least three hours on (omitted) each year as agreed and in default of agreement, from 4.00 pm until 7.00 pm if the Children are otherwise in the Mother’s care, unless the children are in New South Wales;

   (c)for a period of at least three hours on (omitted) each year as agreed and in default of agreement, from 4.00pm until 7.00pm if the Children are otherwise in the Mother’s care, unless the children are in New South Wales;

   (d)for a period of at least three hours on (omitted) each year as agreed and in default of agreement, from 4.00pm until 7.00pm if the Children are otherwise in the Mother’s care, unless the children are in New South Wales;

   (e)from 5.00pm on 24 December 2019 until 5.00pm on 25 December 2019 [and] in each alternate year;

   (f)from 5.00pm on 21 December 2020 until 5.00pm on 23 December 2020 [and] in each alternate year; and

   (g)such further or other times as agreed between the parties in writing.

   10.That the Children’s time with the Father be suspended at the following times:

   (a)each Mother’s Day from 5.00pm the preceding night until 5.00pm Mother's Day;

   (b)for a period of at least three hours on (omitted) each year as agreed and in default of agreement, from 4.00 pm until 7.00 pm;

   (c)for a period of at least three hours on (omitted) each year as agreed and in default of agreement, from 4.00 pm until 7.00 pm;

   (d)for a period of at least three hours on (omitted) each year as agreed and in default of agreement, from 4.00 pm until 7.00 pm;

   (e)from 5.00pm on 25 December 2019 until 5.00pm on 26 December 2019 [and] in each alternate year.

   (f)from 5.00pm on 21 December 2020 until 5.00pm on 23 December 2020 [and] in each alternate year.

   11.Changeover be effected at kindergarten or school where the relevant child is at kinder or school at the changeover time, and at (omitted) Park at other times.

2. There was not any substantial argument about whether the mother’s or father’s proposal for the underlined matters above were in the best interest of [X] and [Y].  Mr T’s evidence did not descend to this level of detail. It seems to me that it is in [X] and [Y]’s best interests to adopt the mother’s proposal on these issues.  On any view, the differences are minor.

The other issues in dispute

a)          once [X] commences primary school

1. The mother proposed the following orders in relation to the time [X] and [Y] spend with their father once [X] commences primary school:

   8.That from [X]’s commencement at Primary School, the Children spend time with the Father as follows:

   (a)During the school term

   (i)     [Y] to spend time with the Father as set out in sub paragraph 3(a) of these orders [ie, from 8am each Tuesday until 5:30pm each Wednesday]

   (ii)    On each alternate weekend the children spend time with the Father from the conclusion of school on a Friday until 6.00pm Sunday.

   (iii)   The father to spend time with the Children from the conclusion of school until 6.00pm up to three days a week, notwithstanding any extra-curricular activities.

2. The father proposed the following orders:

   8.That from [X]’s commencement at primary school, the Children spend time with the Father as follows:

   (a)During school term:

   (i)         In week one, from the conclusion of school on Wednesday until the commencement of school on Friday; and

   (ii)    In week two, from the conclusion of school on Friday until the commencement of school the following Monday.

3. The mother was basically proposing a 4:10 arrangement, with some after school time, and the father was proposing a 5:9 arrangement.  The father’s proposal is in accordance with the recommendation of Mr T in paragraph 48 of the second family report.  I see no reason to depart from that.

b)          school holiday time

1. The mother proposed the following for school holidays:

   8.That from [X]’s commencement at Primary School, the Children spend time with the Father as follows:

   …

   (b)In Victorian School Term Holidays, Term One, Term Two and Term Three:

   (i)     from the conclusion of the school Term until 6.00pm of the first Sunday of the School Holidays and

   (ii)    from 9.00am the last Friday until 6.00pm of the last Sunday of the School Holidays

   (c)In Victorian School Term Four Summer Holidays;

   (i)     Conclusion of the School year for one week, and

   (ii)    Final week of the School holidays.

   ·[X] to start with 4 consecutive nights 2018 and build to 7 nights 2021

   ·[Y] to start with 1 night on the first night of the week and 1 night on the 6^th night of the week in 2018 and build up to 7 nights by 2022

2. The father proposed:

   8.That from [X]’s commencement at primary school, the Children spend time with the Father as follows:

   …

   (b)During the first school term holiday period after [X]’s commencement at primary school, for four consecutive nights at times to be agreed, and in default of agreement, from 8.00 am on the first Wednesday of the holiday period until 5.00pm on the following Sunday;

   (c)During the second school term holiday period after [X]’s commencement at primary school, for five consecutive nights at times to be agreed, and in default of agreement, from 8.00 am on the first Tuesday of the holiday period until 5.00pm on the following Sunday;

   (d)During the third school term holiday period after [X]’s commencement at primary school, for six consecutive nights at times to be agreed, and in default of agreement, from 8.00 am on the first Monday of the holiday period until 5.00pm on the following Sunday;

   (e)For one-half of the first term holiday period in the calendar year after [X]’s commencement at primary school, and each school term holiday period thereafter at times to be agreed, and in default of agreement, the first half with changeover to occur at 5.00pm on the middle Saturday; and

   (f)For one-half of the long summer school holiday period by agreement, and in default of agreement, on a week-about basis with the children to spend time with the Father in the first week, and each alternate week thereafter, with changeover to occur at 5.00pm on Saturdays.

3. The mother’s proposal for school term holidays after [X] starts school was basically for [X] and [Y] to spend the first and last weekends of each term holiday with their father, being a total of four nights. 

4. The father’s proposal was basically for four nights in the first school term holiday, five nights in the second, six nights in the third and seven nights in the fourth, being the first school term holidays of the year after [X] started school.

1. The father’s proposal was in accordance with Mr T’s recommendation at paragraph 49 of his report.  I see no reason to depart from it.

2. The mother’s proposal for the summer holidays after [X] starts school was basically that [X] and [Y] have the first week with the father, and [X] have the last week with the father and [Y] have two separate nights in the first and last week with the father but build up to seven nights by 2022.

3. The father’s proposal for the summer holidays was half with each parent.

4. Mr T recommended in paragraph 49 of his report that [X] and [Y] spend half of school holidays with each parent by agreement. The father’s proposal is in accordance with that recommendation, save that the father also proposes a week about arrangement in the event that an agreement cannot be reached.  I consider that to be in the best interests of [X] and [Y].  The mother would probably like to have a continuous period in (omitted).  I would expect the father to agree to that, provided that the mother’s proposal is reasonable and fair.

c)           Christmas in 2018

1. The mother proposed the following for Christmas in 2018:

   [X] spend time with her father from 5pm on 21 December 2018 to 5pm on 23 December 2018 and [Y] spend time with her father from 9am on 22 December 2018 to 5pm on 23 December 2018.

2. The father proposed for both children to spend time with him at Christmas in 2018:

   from 5.00pm on 21 December 2018 until 5.00pm on 23 December 2018 … .

3. Mr T did not specifically deal with this issue.  He said that [Y] could start having overnights with her father in mid-2018, and would be able to cope with having a faster increase in her time away from her mother than [X] did because [Y] would have [X]’s support.

4. By Christmas 2018, [Y] will be just over two years old. I consider that it is in her best interests to spend the two nights with her father and her sister as the father has proposed.

d)          travel to New South Wales

1. The mother proposed:

   12.That the Mother be permitted to travel with the Children to New South Wales:

   (a) Prior to [X] commencing Primary School,

   (i)     For a period of up to two weeks, five times per year.

   (ii)    For a period of up to four weeks in 2018 commencing 24^th December 2018.

   (iii)   For a period of up to four weeks in 2019 commencing 28^th December 2019.

   (b) Once [X] commences Primary School

   (i)     For a period of up to eleven days, three times a year, in each the Term 1, Term 2 and Term 3 school holidays, commencing the first Monday and concluding the last Thursday of the school holidays.

   (ii)    For a period of up to four weeks, once a year, to take place in the Term 4 Summer holidays. To commence 24^th December 2020 and each alternate year. To commence second week of the school holidays 2021 and each alternate year.

   13.That the Mother provide the Father with 14 days’ notice of the Children’s travel to New South Wales pursuant to paragraph 12 of these Orders.

   (a)The Mother be able to travel with the Children to New South Wales at short notice in the event of an emergency with the Mothers’ family.

2. The father proposed:

   12.That the Mother be permitted to travel with the Children to New South Wales to visit the Mother’s family:

   (a)for a period of up to one week each alternate month until [X] starts school and then three times per year during Victorian Government school term holiday periods; and

   (b)for a period of up to two weeks once per year during the Victorian Government long summer school holiday period, with such period to include the Christmas period from 24 December to 26 December (inclusive) in 2018 and each alternate year thereafter, provided such period does not include time that the children are to be spending time with the Father pursuant to paragraphs 9(e) and/or 9(f). (i.e. the time [X] and [Y] are spending with their father for Christmas)

   13.That the Mother provide the Father with 28 days’ notice of the Children’s travel to New South Wales pursuant to paragraph 12 of these Orders.

3. On the last day of the hearing, the father, through his counsel, proposed that the mother be permitted to travel to New South Wales as follows:

   a)until [X] starts school:

   i)for two weeks in each school term holiday; and

   ii)four weeks over the summer holidays; and

   b)once [X] starts school:

   i)for one half of each school term holiday; and

   ii)for one half of the summer holidays.

4. It seems to me that these proposals are needlessly complicated.  I consider that it is in [X] and [Y]’s best interests that the mother can take them to New South Wales:

   a)whenever they are with her; and

   b)until [X] starts school:

   i)for two weeks in each school term holiday; and

   ii)four weeks over the summer holidays.

5. It also seems to me that 14 days’ notice is sufficient.

e)           medical treatment

1. In addition to the father’s proposed order 14, which was agreed to, the mother proposed additional orders in relation to medical treatment as follows:

   (a)That the parties are informed and agreed upon prior to treatment of the children, except in the event of a medical emergency.

   (b)Clause about Medications

2. The mother did not specify what the clause about medications was.

3. The father did not propose any other orders in relation to medical treatment of [X] and [Y], save those that were made by consent.

4. It does not seem to me to be necessary to have any additional orders about medical treatment.  The parents have equal shared parental responsibility.  That seems to me to be sufficient.

f)           travel overseas

1. The mother proposed additional orders in relation to traveling overseas with [X] and [Y] as follows:

   19.That each party be permitted to travel overseas with [the] Children during any period in which the Children are in their respective care provided that:

   (a)If the travelling party be the Father, that the Children have previously spent the same consecutive nights in the Father’s care at least three times in Australia prior to travel, until the Children are developmentally and emotionally mature enough to spend extended consecutive nights away from the Mother.

   …

   (e)The non-travelling party be able to contact the travelling party during the overseas stay.

   (f)In the event the Children do not have passports then the travelling party organise and pay for the Children’s passports?

   …

2. The father did not propose any other orders in relation to overseas travel, save those that were made by consent.

3. The mother’s proposed order 19(a) is unnecessary because [X] and [Y] will only be able to travel overseas during their regular or agreed time with their father.  The mother’s proposed order 19(e) is unnecessary because the consent orders require contact details to be provided and naturally the parents will be able to contact each other.  The mother’s proposed order 19(f) should not be made.  The parents should cooperate in the obtaining of passports and should pay half each.  However, as orders along those lines were not proposed by either party, I will make no order about those matters.

g)          make up time

1. The mother proposed the following order in relation to make up time:

   22.In the event that the parties are otherwise engaged in other activities at a time they are scheduled to care for the Children, as set out in paragraphs 3, 4, 5, 6, 8, 9, 10 and 12 of these Orders, then it is the parties responsibility to organise quality child care for the children.

   (a) no ‘Make Up Days’ are to be given to either party, except in the case of:

   (i)     The party is seriously ill and unable to care for the Children

   (ii)    Weddings/Funerals.

2. The father did not propose any orders in relation to make up time.

3. It seems to me that the mother’s proposals for make-up time are unduly restrictive.  It is preferable that the parents are able to deal with each other in a reasonable and flexible manner.

h)          schooling

1. The mother proposed the following in relation to schooling:

   23.The Children attend a state government school and that the parties share costs for all school and extra-curricular activities including but not limited to; uniforms, supplies, fees, excursions/incursions, books and stationery.

   (a)     The Children may attend a Private School if,

   -       The recipient of a full fee-paying and/or all expenses paid scholarship or,

   -       The party wishing the Children to attend a Private school pays in full the cost of all school associated expenses.

2. The father did not propose any orders in relation to schooling. 

3. I consider that schooling is a matter that should be left to the parents to work out between themselves closer to the time. The costs of education are arguably a child support issue rather than a parenting issue in any event.

1. new partners

1. The mother proposed the following in relation to the parties re-partnering:

   24.In the event the parties re-partner, then the Children are not to spend time alone in the new partner’s care until the other party is in agreeance.

2. The father did not propose any orders in relation to new partners.

3. For someone who accused the father of being controlling, this is an extraordinary proposal.  The court does not customarily make this sort of order.  There is nothing to suggest that either parent would find a new partner who would not be safe with [X] and [Y]. I do not consider this proposal to be in their best interests.

j)           [X]’s family name

1. The mother included a proposed order in her amended application filed on 31 January 2018 that [X]’s name be changed from [X] to [X]. However, the mother:

   a)did not cross examine the father on this issue;

   b)did not make any closing submissions about it; and

   c)did not include it in her minute of proposed orders handed up at the conclusion of the hearing.

   I assume the mother did not press the name change and I make no order about it.

Conclusion

1. There will be orders as discussed in the reasons above.

I certify that the preceding one hundred and eighty-three (183) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 6 April 2018