Gabler and Fuhrmann

CIRCUIT COURT OF AUSTRALIA

GABLER & FUHRMANN

[2017] FCCA 1534

Catchwords:
FAMILY LAW – Interim arrangements for care of children aged 2 & 3 – change of venue application – mother and children live in (Town A) – father lives in (Town B) – father commenced proceedings in Adelaide Registry – mother seeks transfer to Canberra Registry – matters to be considered – parties have previously lived in both (Town B) and (Town A) – father seeks that younger child live with him on a final basis in (Town B) – father not biologically related to older child – mother conceded father has played significant paternal role with older child – separation of siblings – arrangements for father to spend time with children pending final hearing – practical considerations relating to children maintaining meaningful level of relationship with individuals significant to them – best interests.

Legislation:

Family Law Act 1975, ss.60B; 60CA; 60CC; 65C

Federal Circuit Court Rules 2001, r.8.01(2)

Cases cited:

U v U (2002) FLC 93,112

Godfrey v Saunders 2008 FLR 287

Applicant:

MR GABLER

Respondent:

MS FUHRMANN

File Number:

ADC 646 of 2017

Judgment of:

Judge Brown

Hearing date:

22 June 2017

Date of Last Submission:

22 June 2017

Delivered at:

Adelaide

Delivered on:

5 July 2017

REPRESENTATION

Counsel for the Applicant:

Mr Roberts

Solicitors for the Applicant:

Black & Wood

Counsel for the Respondent:

Mr Lewis

Solicitors for the Respondent:

Legal Aid NSW Wagga Wagga Family Law

ORDERS

The proceedings be transferred to the Canberra Registry of the court and be fixed for a directions hearing on a date to be advised by the court.
The orders made this day together with the application filed 20 February 2017 and the response filed 24 March 2017 together with all relevant supporting affidavits be personally served on the father of the child [W] born (omitted) 2013, during the period prior to the first listing before the court in Canberra, by the solicitors for the applicant.

UNTIL FURTHER OR OTHER ORDER:

The children [X] born (omitted) 2015 and [W] born (omitted) 2013 live with the mother.
The children spend time with the father on a six week cycle commencing 10 July 2017 as follows:
(a)From 10:00am to 4:00pm on the Monday of each such six week period commencing 10 July 2017 and each six week period thereafter;
(b)From 10:00am on Tuesday until 4:00pm the following Thursday of each such six week cycle commencing 11 July 2017 and each six week period thereafter ; and
(c)From 10:00am until 4:00pm on Friday, of each such six week cycle, commencing 14 July 2017 and each six week period thereafter;
(d)At such other times and subject to such other conditions as the parties agree from time to time.
The time specified in order (4) above take place in (Town A) and at the father’s expense.
All handovers take place outside (omitted) directly between the mother and father unless otherwise as agreed between the parties via SMS.
The six week cycle specified in order (4) hereof be suspended for the week commencing 18 December 2017 and during this period the father spend time with the children in (Town B) as follows:
(a)From 10:00am to 4:00pm on Monday 18 December 2017;
(b)From 10:00am on Tuesday 19 December 2017 until 4:00pm the following Thursday; and
(c)From 10.00 am on Friday 22 December 2017 until 4:00pm on Saturday 23 December 2017.
The six week cycle specified in order (4) hereof be suspended for the week commencing 18 June 2018 and during this period the father spend time with the children in (Town B) as follows:
(a)From 10:00am to 4:00pm on Monday, 18 June 2018; and
(b)From 10:00am on Tuesday, 19 June 2018 until 4:00pm the following Thursday; and
(c)From 10:00am on Friday 22 June 2018 until 4:00pm on Saturday, 23 June 2018;
The time specified to take place in orders (7) and (8) above take place at (Town B) with the mother to be responsible for the costs of the children’s air travel between (Town A) and Adelaide with the father to be response for the costs of transporting the children and the mother between the Adelaide airport and (Town B).
The father communicate with the children via facebook messenger on each Wednesday and Sunday at 4:00pm during the fortnight the children are not in the father’s care commencing on Wednesday, 5 July 2017.
An injunction be granted restraining the mother from bringing the children into contact or communicating with Mr R.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 646 of 2017

MR GABLER

Applicant

And

MS FUHRMANN

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment are directed to determining the appropriate venue for the final hearing of the parties’ competing parenting applications. At present, the applicant father Mr Gabler lives in (Town B), which is approximately (omitted) of Adelaide. His preference is that the proceedings remain in the Adelaide registry of the court.
The respondent to the application is Ms Fuhrmann. She lives in (Town A), which is approximately (omitted) of Canberra. Her preference is that the proceedings be transferred to the Canberra registry of the court.
In this context it should be noted that the Canberra registry circuits to Wagga Wagga four times each year. Wagga Wagga is approximately (omitted) of (Town A). It is well over a (omitted) kilometres between Adelaide and (Town A).
The parties have a complex and muddled relationship with one another. They are the parents of [X] born (omitted) 2015. At present, [X] is living with her mother and half-sibling [W] born (omitted) 2013 in (Town A).
As a consequence of the parties’ geographical separation, logistical difficulties arise as to how Mr Gabler may maintain a satisfactory level of relationship with both [X] and [W], with both of whom he asserts he has a significant paternal relationship.
These difficulties of geography are further compounded by the fact that each party is in receipt of social security. As a consequence, neither is in a position to easily fund travel arrangements for the children.
The father commenced these proceedings, in the Adelaide registry, on 20 February 2017. On a final basis, he seeks the following orders:
·The parties have equal shared parental responsibility for [X];
·[X] live with him;
·[X] spend time with the mother at such times and on such conditions as ordered by the court;
·[W] spend regular periods of time with him.
Accordingly, it is implicit in Mr Gabler’s application that the two children should live in separate households. [W]’s father is a person who is identified in the relevant material only as “Mr R”. He was in prison (or soon to be released) at the time these proceedings commenced. He was not named as a party to the proceedings, by Mr Gabler, notwithstanding that he seeks orders in respect of [W].
It is Mr Gabler’s position that Mr R is a violent and antisocial person, who represents a threat to the safety of both children. As previously indicated, it is his case that he (Mr Gabler) has, in effect, performed the role of [W]’s father for a significant period of time, given [W]’s age now.
Ms Fuhrmann has deposed as follows in respect of Mr R:
“I don’t deny that Mr R is violent and that he has hurt me. It is for that reason that he doesn’t know that I live in (Town A) or the location of my house. His mum gave my mobile number to him and he has called me but I won’t be letting him see [W] because of how violent and abusive he has been in the past.
I would act protectively at all times with my girls and wouldn’t let them be in danger or around violent people.”[1]
[1] See mother’s affidavit filed 24 March 2017 at page 10 [76] – [77]
The mother responded to the father’s application on 24 March 2017. At the time, she was not in a position to put forward an extensive proposal as to the final orders sought by her. As will become clear, in due course, at the time of her response, previous arrangements for the care of the two children concerned were extremely confused.
In these circumstances, the mother proposed the following final orders:
·The two children live with her;
·The proceedings be transferred to the Canberra registry of the court;
·In the event Mr Gabler resided in the (Town A) area, [X] and [W] spend time with their father on each Monday, Wednesday and Friday between the hours of 10:00am and 4:00pm;
·Although the mother proposed the same time arrangements, if Mr Gabler did not live in (Town A), she did not propose how this should occur.

Background

The father is twenty-two years of age. The mother is twenty. The parties met in mid-2014, at (omitted), in South Australia. The parties formed a relationship, but did not live together for any extended periods of time.
[W] was a baby of seven or eight months of age, when the parties met. [X] was born at the (omitted) Hospital. After her birth, the mother, with [X] and [W], came to live in (Town B), where the father has significant family connections.
Ms Fuhrmann grew up in the (omitted) New South Wales. She had a difficult childhood, being removed from her mother’s care in 2006. She lived in foster care until she turned sixteen years of age, when she met Mr R. She concedes that she was subjected to significant family violence by Mr R.
The mother decided to move to (Town B), when she was eighteen, in May of 2014. She wanted to make a fresh start and to be closer to her sister Ms C, and her father, who were living in (Town B) at the time. Ms Fuhrmann’s mother lives in (Town A).
In February of 2016, the mother decided to move to (Town A) to be closer to her own mother. As he did not want to be separated from either [X] or [W], Mr Gabler elected to move in tandem with the family. Thereafter the parties lived in (Town A), with the children, in Ms Fuhrmann’s mother’s home.
It is the father’s case that there was a significant level of conflict between the mother and the maternal grandmother. In addition, it is his case that Ms Fuhrmann was a compromised parent, who had little understanding of the practical needs of the children, particularly in terms of providing them with a healthy diet and proper medical care.
The parties lived with Ms Fuhrmann’s mother for about three months. Thereafter, the mother lived with a friend in (Town A). Mr Gabler lived separately but saw the children daily. It was his position that Ms Fuhrmann was struggling to care for both [X] and [W]. In these circumstances, he asserts that the parties agreed that [X] would come into his primary care at some time in or about August of 2016.
It seems to be the case that around this time Ms Fuhrmann became involved with another person. This led to significant tension between the parties and they finally separated in November of 2016. Shortly thereafter, Mr Gabler and [X] left (Town A) and returned to (Town B). The parties have very different views as to how [X]’s removal from (Town A) came about.
It is Ms Fuhrmann’s evidence that she felt uncomfortable with the fact that Mr Gabler followed her to (Town A), in the first place. She portrays a relationship between the parties, which was extremely casual in nature. It is also her position that Mr Gabler had limited interaction, with the children, when he was living in the (Town A) area.
Most significantly, she asserts that she did not consent to [X] going into the father’s care. Rather, she asserts that Mr Gabler forcibly removed [X] from her care and took her to South Australia without her (the mother’s) permission.
Thereafter, the mother asserts that she sought legal advice as quickly as she could. However, this advice turned out to be inopportune and, given her geographical isolation and relative legal inexperience, she was not able to access other more useful legal advice, particularly in respect of securing [X]’s return to her care.
The father agrees that Ms Fuhrmann did not agree to him removing [X] from (Town A). However, it is his position that he was entitled to do so because the mother had earlier placed her in his care and executed the necessary social security document to evidence this arrangement.
He asserts that when he was packing the child’s things into his car, the mother violently assaulted him, including biting him on his upper arm, causing the skin to break, as well as deeply scratching his back and neck. This assault occurred in the presence of the children. This founds his assertion that she is an emotionally reactive and violent person, who is not a suitable role model for the children.
Between November 2016 and February 2017, [X] and [W] lived in separate states. It is Mr Gabler’s evidence that he continued to send money to Ms Fuhrmann and [X] remained in touch with [W] and her mother by means of video calls. He decided to visit Sydney between 7 and 9 February 2017, so that [X] could spend time with her mother and he could spend time with [W].
Ms Fuhrmann agrees that she told Mr Gabler that she would not attempt to take [X] away from him as a precondition to spending time with [X]. However, this is exactly what she did. On 9 February 2017, she, [W] and [X] left the house in which they were staying with Mr Gabler, whilst he was asleep. They have been in (Town A) ever since.
Ms Fuhrmann puts her position, in respect of this incident, in the following terms:
“I didn’t have a problem with Mr Gabler spending time with [X] at all and would be happy to ensure they have a relationship in the future. I didn’t know my dad until was 13 and it made me sad not to know him. I wouldn’t want that for [X].
Given [X] had been in my care though and then Mr Gabler took her, I couldn’t bear for her to go back to SA with Mr Gabler as I was worried about how it was impacting her being away from me and her sister and also how it was affecting [W] being away from [X].
[W] thinks of Mr Gabler as her dad in the way that [X] does. I want them both to be able to spend time with him and have a good relationship with him. I don’t want the girls separated, I think it is so important that they are together as I know how much I value the relationship with my sister.”[2]
[2] See mother’s affidavit filed 24 March 2017 at [49], [50] & [51]
Both parties now have many criticisms of the other’s behaviour and parental insight. It is the father’s position that Ms Fuhrmann has significant alcohol issues and uses cannabis on a daily basis. He also asserts that she is a violent and reactive person.
For her part, the mother asserts that Mr Gabler has only been [X]’s primary carer in the period during which he essentially abducted her. She asserts that she only agreed to Mr Gabler being able to collect the parenting payment relating to [X] because Mr Gabler asserted that he would commit suicide, if she did not. Essentially, the mother asserts that it is Mr Gabler who is the reactive, violent and manipulative person, rather than she.
It was against this muddled and troubling background that the court was called upon to make some interim orders in respect of the parenting of the two children concerned. At that early stage, it seemed to me that the only viable solution to the problem would be for one of the parties to elect to move closer to the other, in order to ensure that both children could interact with each of their significant carers.
Mr Gabler is supported in his application by his mother, Ms D. She speaks highly of her son’s capacity as a parent and his love for [X]. She asserts that she and other members of her family have a close and loving relationship with [X].
Mr Gabler identifies Ms D as being a great source of personal support for him, in his care of [X]. In these circumstances, and given his lack of family connection in (Town A), he does not believe that he could easily live in the town. It is his position that Ms Fuhrmann has some family, particularly her father and sister, in the (Town B) area. Accordingly, he believes that she could return to the town, with [X] and [W].
In the context of the first directions hearing, I indicated to the parties that I considered it appropriate an urgent family report be prepared. Necessarily, given that the children concerned were in New South Wales, the most appropriate person to prepare such a report was a family consultant attached to the Canberra registry of the court.
I was told that it would take around six weeks for such an urgent report to be prepared. In the meantime, I urged the parties to consider some consensual arrangements in respect of the children. In this regard, what I envisaged was that one party, most likely Mr Gabler, would consider moving closer to the other, so that the most serious logistic problems could be abated.
This did not occur. However, to their mutual credit, the parties agreed that [X] and [W] would continue to live with their mother in (Town A) and see their father on a three week cycle.
This arrangement required Mr Gabler to travel to (Town A) regularly by road, so he could spend time with the children from 10:00am to 4:00pm on Monday; from 10:00am on Tuesday to 4:00pm on Thursday and from 10:00am to 4:00pm on Friday; every three weeks. Otherwise, Mr Gabler has two video calls with the children on Sundays and Wednesdays, on the weeks he is not in (Town A).

The family report

The father told the family report writer that he and Ms D had driven thirteen hours overnight, a distance of some 1,100 kilometres from (Town B) to Canberra, in order to attend for the report process. Both expressed being tired as a result.
Mr Gabler further indicated that when he had visited (Town A), to spend time with the children, he had rented a cabin for the week, for their accommodation and had had the expense of his petrol for the drive. From Mr Gabler’s perspective, it had cost him a fortune to pay for this accommodation and his other travel expenses.
To the family report writer, Ms Fuhrmann indicated that she and Mr Gabler had had a very much on/off relationship. She indicated that she had moved away from (Town B) to get away from her own father. Ms Fuhrmann indicated that she did not get along with her father’s partner.
Ms Fuhrmann indicated that it would cost her around $300.00, in petrol, to travel between (Town A), (Town B) and return. She also anticipated that the journey would take her two or three days to complete and she did not believe that she would be able to drive for such a long distance.
The family report writer noted a positive relationship between [X], [W] and each of the parties. [X] told her father that she loved him. Both children were excited to see both the father and the mother. They were described to be happy and properly cared for children.
In addition, the family report writer noted that Mr Gabler and Ms Fuhrmann communicated reasonably effectively and respectfully with one another. She was also impressed with the father’s level of commitment to the children, as demonstrated by his willingness to drive such long distances to maintain his relationship with them.
The family report writer noted the youth of each of the parties concerned but was impressed with their respective level of commitment to the children. Undoubtedly, she considered that both Mr Gabler and Ms Fuhrmann had much to offer the two children concerned. In this context, there seems to be no controversy that Mr Gabler has played a significant paternal role, so far as [W] is concerned.
Under the heading evaluation, the family report writer wrote as follows:
“It was unfortunate that the parties lived so far apart. The distance, and their limited means, made contact recommendations highly problematic coupled with the need for Mr Gabler, in particular, to obtain employment.
Another compounding factor in my opinion, is the desirability of keeping these two little girls together to enable them to maintain a normal sibling relationship. Such relationships are of course important throughout a child's life.[3]
[3] See family report at paragraphs [55] & [56]

It is clear from reading the report that its writer viewed the case as being a highly problematic one because of the distance involved. That is axiomatically the case. Neither I, nor the family report writer, can think of any obvious solutions to the extreme logistical issues arising as a consequence of the distance between (Town B) and (Town A) and the fact that neither party can presently consider moving closer to the other.
From the perspective of the family report writer, it was imperative that [X] and [W] remained living together in the same household, given their sibling relationship. This factor militated in her recommending that the children remain in the mother’s primary care, particularly as, in the writer’s perception, the children presented well.
As a consequence, the family report writer opined as follows:
“There seems to be little choice other than that one or other parent travels the considerable distance to see the children, other than the parents meeting half way and incurring expenses for both of them. I would not favour such young children travelling excessively for contact purposes. Maybe a combination of each parent travelling, and meeting halfway could be instigated.”[4]
[4] Ibid at [61]
It is in this context that the court must determine the issue of where the final hearing will occur and what arrangements should be made for Mr Gabler to spend time with both [X] and [W].

The legal principles applicable

In deciding what order to make, the court must regard the best interests of the two children concerned as its paramount consideration [see Family Law Act 1975 section 60CA].
In applying this consideration, which lawyers refer to as the paramountcy consideration, the court must bear in mind the objects and principles underlying Part VII of the Act, which is the legislation specifically dealing with children, contained in section 60B.
The relevant principles [section 60B(1)] include ensuring that children have the benefit of both their parents having a meaningful level of involvement in their children’s lives; whilst ensuring that parents fulfil their duties and responsibilities towards their children. Parents are encouraged and supported to make parenting decisions consensually.
As a consequence of the various objectives contained in section 60B(2) , it is recognised that children have the right to know and be cared for by both their parents and, as a consequence, to spend regular periods of time with them and others who are significant to their care, welfare and development, such as grandparents and other relatives. Children also have the entitlement to be protected from coming to harm, as a result of being exposed to family violence, neglect or abuse.
In determining how a child’s interests are to be best met, the court is required to consider a long list of matters contained in section 60CC of the Act. These matters are divided into two primary considerations and a longer list of what are characterised as additional considerations.
The primary considerations are contained in section 60CC(2) and are as follows:
a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
As a consequence of amendment to the Act, contained in section 60CC(2A), the court is directed “to give greater weight” to protective considerations.
In the context of this particular case, the following additional considerations, contained in section 60CC(3), appear to me to be particularly germane:
(3)     Additional considerations are:
…
(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);
…
(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;
(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.”
Although both parties make trenchant criticisms of the other’s parenting capacity and assert that he or she represents a threat to the overall safety of both children, in my assessment, this is a case primarily centred on the benefits both [X] and [W] are likely to derive from having a meaningful level of relationship with Mr Gabler. In this context, I accept that he is a person who is significant to [W], notwithstanding the fact that he is not biologically related to her.
It also seems to be the case that [X] has significant relationships with her paternal grandmother and other relatives, based in the (Town B) area, which have the potential to grow in importance, as [X] matures. I also accept that both children have significant familial connections in (Town A).
On any view, the practical difficulties and expenses implicit in either Mr Gabler coming regularly to (Town A) or Ms Fuhrmann coming regularly to (Town B), are likely to substantially affect the children’s right to maintain close personal relationships with their parents, on a regular basis.
How could it be otherwise, given the huge distance between (Town A) and (Town B) and each parent’s limited financial means. This remains the position even if the parties elect to meet half way or to adopt some alternate mode of travel. It is trite but true nonetheless, but I reiterate, I have no magic solution to the problems which this case throws up.
It seems to be the case that Ms Fuhrmann has no history of regular paid employment. In addition, in the past, Mr Gabler has worked as a casual tree lopper. In these circumstances, it seems more probable than not that both parties will be reliant on social security for their financial support for the foreseeable future. It also seems likely that Mr Gabler has had some financial assistance, from Ms D, to fund his travel to (Town A), up to this stage.
The relevant considerations relating to the transfer of proceedings between registries of the court are contained in rule 8.01(2) of the Federal Circuit Court Rules 2001. In considering an application for transfer of proceedings, the court must have regard to:
“(a)   the convenience of the parties; and
(b)     the limiting of expense and the cost of the proceeding; and
(c) whether the matter has been listed for final hearing; and
(d)     any other relevant matter.”

The parties’ proposals

Mr Gabler receives $550.60 per fortnight by way of social security payments. Four night’s accommodation, in (Town A), costs him $380.00. He estimates his transport costs to be between $350.00 and $400.00 for each visit to and from (Town A). These do not seem to me to be improbable estimates of expenditure.
When the father’s other incidental expenses are taken into account, he estimates the cost of each trip to (Town A) to be approximately $1,400.00. Clearly, he is not able to fund this level of expenditure through social security payments alone. He has borrowed money from his parents to pay for the travel. It is his evidence that he is trying to find employment.
In these circumstances, he proposes four options for his on-going time with [X] and [W]. Firstly, if he does obtain employment, he proposes that his child support be ear-marked to pay his future travel expenses. I do not consider that I have the authority to implement such a scheme, which requires the imprimatur of the Child Support Registrar through an agency departure process.
Secondly, Mr Gabler proposes that the parties meet half way. His suggestion being somewhere in the (area omitted). He believes that this would reduce his current level of expenditure by a significant amount. His fuel costs would be less; and if he was able to take the children directly to (Town B) from the half way spot, he would not have accommodation expenses. Necessarily, Ms Fuhrmann would incur her own expenditure in travelling to the (area omitted) and possibly would require accommodation there, if overnighting.
Thirdly, Mr Gabler proposes that he would travel to Sydney, via a budget airline, to collect the children from the mother, prior to flying back with them to Adelaide. If he is careful and books in advance, Mr Gabler believes that he could obtain cheap fares, which would be within his finances, particularly if Ms Fuhrmann assisted.
Fourthly, Mr Gabler proposes that Ms Fuhrmann could travel, with [X] and [W], by air to Adelaide, where he could collect them and drive them to (Town B). During this period, the mother could either stay with her father or one of her friends from the area. Again, he considers that this would significantly reduce the level of expense from what is currently incurred by him having to travel to and from (Town A).
The mother asserts that the children driving long distances for handover, given their ages at present, is not a child focussed answer to the logistical issues arising in the case. In addition, she does not believe that this is a safe option, particularly given that she does not feel personally confident driving over long distances. For this reason, she is opposed to the parties meeting half way, in the (area omitted).
In addition, given that she is currently the children’s major provider of care and has a limited income, she does not believe that she has the financial resources available to make such an option viable. In particular, she does not believe that she would be able to afford the cost of accommodation for herself, whilst overnighting in the (area omitted).
Ms Fuhrmann also believes that the airline option is unworkable and not calculated to be in either [X] or [W]’s best interests. Firstly she is concerned at the prospect of the children being away from her – their primary carer – for periods of up to a week every eight weeks or so. She believes that this would be extremely unsettling for the children.
Secondly, Ms Fuhrmann believes that Mr Gabler has under estimated both the complexity and potential expense of the regime proposed by him. She would be required to travel by train, with the children, from (Town A) to Sydney. The train trip takes a number of hours and may entail overnight travel. From her perspective, this when combined with air travel and being away from their primary home, would be extremely disruptive for [X] and [W] and their regime.
In an ideal world, Ms Fuhrmann indicates that she would be open to travelling from (Town A) to Adelaide, by air, fairly regularly. However, she does not believe that she has the financial resources to make such trips with the degree of regularity sought by Mr Gabler. She summarises her position, as follows, in her affidavit material.
“From my perspective it is not reasonable or sustainable for Mr Gabler to be suggesting the girls, myself and Mr Gabler do so much travel. Mr Gabler moved to South Australia, a huge distance away from the girls. I support his relationship with them but it is unrealistic to think that either of us can make huge trips on a monthly or bimonthly basis. I only have $251 per fortnight left over from my Centrelink pay and this is for things like savings for emergencies or unexpected bills or expenses for the girls so I can’t afford the travel on a regular basis.
My proposal is that Mr Gabler be able to see the girls if he comes to (Town A). On an interim basis I could commit to taking the girls to South Australia for a week once per year. I would need quite some time to save this money though before I travelled there as I don’t have the money to afford it at the moment.”[5]
[5] See mother’s affidavit filed 15 June 2017 at [24] & [25]

Conclusions

This is a sad and perplexing case. Given the unwillingness of either party to contemplate moving closer to the other, I am unable to think of any obvious solutions to the logistical issues arising in the case. On the basis of the contents of the family report, the most obvious mechanism, through which [X] and [W] could have a significant and meaningful level of relationship, with both their parents, is if Mr Gabler moved back to the (Town A) area, where he has previously lived, albeit fairly briefly.
However, I have no authority to direct Mr Gabler personally to live anywhere. He is a free agent. My authority rests only with orders, which pertain to the care, welfare and development of [X] and [W]. In discharging this authority, in my view, I must remain focussed on the best interests of the children, rather than on the convenience of the parties themselves.
In this regard, it is timely to point out, as Gummow & Callinan JJ did in U v U, that becoming a parent has implications for a person’s freedom to do as he or she wishes, including very often where he or she chooses to live. Necessarily, being a parent imposes obligations and restrictions. Their Honours said as follows:
“… maternity and paternity always have an impact upon the wishes and mobility of parents; obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement having been incurred.”[6]
[6] U v U (2002) FLC 93,112 at 89,091
In the same case, Hayne J said as follows:
“… it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.” [7]
[7] Ibid at 89,103
At this stage, [X] and [W]’s most significant relationships are likely to be with their mother and one another. In particular, I accept that the relationship between siblings is an extremely important human relationship. The two children concerned in this case are close together in age and, as a consequence, are likely to share play and other activities together.
Although there can be no doubt that Mr Gabler is a person who has been concerned in [W]’s care, welfare and development and remains so [see section 65C], he is not her biological father. Both he and Mr R are entitled to apply for a parenting order in respect of [W].
Mr R has not yet been made aware of these proceedings. Accordingly, it is not known whether he will wish to pursue any parenting orders in respect of [W]. He needs to be informed of the proceedings and his attitude ascertained. This adds a further level of complexity to this already complex matter.
I am not sure of where precisely Mr R lives. However, he and the mother seem to have been involved with one another in New South Wales. Whether he remains in the state and is therefore closer to Canberra than some other location within Australia is unclear to me. However, it must be the case that he is a potential party to the proceedings.
I agree with the submissions of counsel for Mr Gabler, Mr Roberts that the change of venue considerations are very finely balanced. Whatever happens, one party will be significantly inconvenienced. In my view two factors militate in favour of the proceedings being transferred to Canberra.
Firstly, this location will be more convenient for Ms Fuhrmann. She is the current custodian of the two children concerned. Accordingly it will be less disruptive for [X] and [W] if the case takes place as close as possible to their home.
Secondly, the family report writer is attached to the Canberra Registry. She is likely to be a central witness if and when the case proceeds to final hearing. Her convenience and the ability of the trial judge to properly gauge her evidence are important considerations, which also favour a transfer of proceedings. On these bases, I will transfer the proceedings to the Canberra Registry of the court.
I agree with the family report writer that it is not likely to be conducive to the children’s best interests for them to be separated from one another. This is a significant factor which militates in favour of the mother’s position.
In addition, at this stage, Ms Fuhrmann is the children’s primary provider of care. It seems clear, from her own affidavit material and what the family report writer has said, that her parenting capacity is not without its challenges. Her present circumstances are stressful. She is a sole parent of two young children. She is not financially secure.
In these circumstances, it seems to me that whatever orders are made, at the interim stage, care should be taken not to place her under still more stress or pressure, as this is likely to undermine her parenting confidence and have adverse consequences for [X] and [W].
I accept that the financial burdens currently resting on Ms Fuhrmann are likely to be significant. Specifically, I accept that she does not have access to any obvious sources of money to fund regular travel to either Adelaide or the (area omitted).
I am also not in a position, at this stage, to reject her submission that the prospect of having to drive between (Town A) and the (area omitted) and stay overnight there is a source of significant anxiety for her because she lacks confidence in her driving abilities. I also accept that it would be daunting and expensive for her to have to embark on a train trip, with both children, between (Town A) and Sydney.
Accordingly, I accept the mother’s evidence that she finds the father’s proposals extremely difficult to countenance, both in a practical and emotional sense. As such, I do not consider that they are workable in the short to medium term. I am concerned that the father is being unduly optimistic in respect of the possible implementation of both the Sydney air and the (area omitted) option.
The children concerned in this case are of tender years – two years and three and a half years respectively. As such, I accept that it would not be easy for them to accommodate the vicissitudes of frequent long distance travel, either by aeroplane or motor vehicle. It is clearly much easier for one adult person to travel to be closer to the children than vice versa.
The problem, of course, is the expense. Australia is a large country. Its citizens move freely within it. The parties in this case began their relationship in South Australia and then moved to New South Wales. When relationships break down, it is a common phenomenon that those affected move closer to their most reliable sources of social support, most usually parents.
I accept Mr Gabler’s evidence that the current arrangement is financially unworkable, from his perspective, for anything longer than the extreme short term. It is clear that he is barely scraping by financially. Until such time as he gains paid unemployment, he will remain in receipt of social security, which is calculated only to support his direct and basic needs, with no capacity for surplus.
I have not been provided with information about Ms D’s financial circumstances. However, I doubt that she is in a position to subsidise Mr Gabler’s travel to (Town A) on any long scale basis. In all these circumstances, it is my assessment that the court does not have a great deal of latitude in fashioning the appropriate orders in this case.
Quite simply there is no obvious solution available to ensure the best possible outcome for the children concerned. In these circumstances, the court must do the best it can, whilst remaining focussed on what is likely to be best for the children and what is theoretically feasible to implement.
I accept that both children, but particularly [X], will benefit from having a meaningful level of relationship with their father. Given their currently tender years, these relationships are particularly susceptible to the vicissitudes of distance.

Young children, given the level of their intellectual maturity, do not have a well-developed sense of time and so cannot readily understand why there are large gaps in between the periods they interact with a parent. In these circumstances, the ideal is that children interact with frequency and predictability with an absent parent. However this ideal is not always achievable.
As Kay J pointed out in Godfrey v Saunders[8] “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”. With my focus on firstly, what is the best mechanism to achieve a meaningful level of relationship and secondly, on what is feasibly achievable, in this regard, given the logistical restraints, I have reached the following conclusions.
[8] See Godfrey v Saunders 2008 FLR 287 at 298
I accept that it is feasible for Ms Fuhrmann to come to Adelaide, at her own expense, on one occasion every six months, with [X] and [W]. I will stipulate that the first such period should coincide with the traditional holiday period in Australia occurring over the December/January and be for a week in duration.
I accept her evidence that she will be able to arrange accommodation for herself over this period in the (Town B) area. It will also enable her to re-engage with the children if, for any reason, they become distressed.
It also seems to me that Mr Gabler, at best, will be able to continue to visit the children, in (Town A), every six weeks or so, along the existing framework, until the trial can be held. For the reasons set out above, I do not consider that the train/air option via Sydney or the (area omitted) option are reasonable practicable. In these circumstances, the only viable alternative is to continue with the existing arrangement but reduce their frequency in recognition of Mr Gabler’s straitened financial circumstances.
I realise the disappointment and frustration this decision will accord to both Mr Gabler and Ms D. I also appreciate that their on-going commitment to this regime is likely to be financially demanding for them. However, in my assessment, it is the most child focussed outcome and, as such, the one best calculated to serve the interests of the children concerned, particularly given the inability of either party to consider moving.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 5 July 2017

[2017] FCCA 1534

5 July 2017

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