Gair & Bayles
[2023] FedCFamC2F 522
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gair & Bayles [2023] FedCFamC2F 522
File number(s): ADC 1478 of 2022 Judgment of: JUDGE JENKINS Date of judgment: 12 May 2023 Catchwords: FAMILY LAW – parenting – relocation – two children aged 9 and 10 – children with Autism Spectrum Disorder – mother in the Armed Forces and will shortly be posted to City B – neither party has significant ties to Adelaide – relocation allowed – increase in time spending prior to relocation Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 60CC, 65DAA
Cases cited: A & A: Relocation Approach [2000] FamCA 751
Adamson & Adamson [2014] FamCAFC 232
AMS v AIF [1999] HCA 26
Godfrey & Sanders [2007] FamCA 102
Heath & Hemming (No 2) [2011] FamCA 749
KB & TC [2005] FamCA 458
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Morgan & Miles [2007] FamCA 1230
Taylor v Barker [2007] FamCA 1246
U v U [2002] HCA 36
Division: Division 2 Family Law Number of paragraphs: 81 Date of last submission/s: 23 March 2023 Date of hearing: 20 – 23 March 2023 Place: Adelaide Counsel for the Applicant: Mr Tredrea Solicitor for the Applicant: Stanley & Co Lawyers Counsel for the Respondent: The Respondent in person ORDERS
ADC 1478 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GAIR
Applicant
AND: MR BAYLES
Respondent
order made by:
JUDGE JENKINS
DATE OF ORDER:
12 MAY 2023
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.By consent, the parties do have equal shared parental responsibility for the children X born in 2012 and Y born in 2014 (“the children”).
3.The children live with the mother.
4.As and from 1 July 2023 the mother be permitted to relocate the permanent residence of the children to City B.
5.The children spend time with the father as follows:
(a)Until the mother’s relocation to City B on:
(i)Each weekend from 4:00pm Saturday until 6:00pm Sunday;
(ii)Each Wednesday during school term from the conclusion of school (or 4.00pm if a non-school day) until 6:00pm; and
(b)As and from the mother’s relocation to City B:
(i)In City B, during school terms, on the third weekend of each month commencing on Friday from the conclusion of school (or 4:00pm if a non-school or childcare day) until the commencement of school on Monday (or 9:00am if a non-school day);
(ii)For one half of the short-term school holiday period, commencing in the third term school holidays, at times to be agreed between the parties in writing, or failing agreement, with the father for eight consecutive nights commencing at the conclusion of the last day of the school term;
(iii)For three consecutive weeks in the long-term school holidays as agreed between the parties; and
(iv)Otherwise as agreed between the parties in writing, with the mother to facilitate the father spending additional time in City B with the children upon at least 14 days’ notice of a reasonable request.
6.Any time the father spends with the children in City B pursuant to these orders is subject to the father providing 14 days prior written notice of his intention to spend time with the children as well as the full address of the accommodation at which the children will be staying.
7.That handovers do take place as agreed between the parties or failing agreement as follows:
(a)If a school day, at the children’s school;
(b)If a non-school day, pending the mother’s relocation to City B, with the mother delivering the children to and collecting the children from the father’s residence at the commencement and conclusion of time spending;
(c)If a non-school day, following the mother’s relocation, in City B at the mother’s home; or at a location agreed between the parties approximately half-way between Adelaide and City B upon the parties agreeing to the precise time and location not less than 14 days prior to handover.
8.That the children shall have FaceTime communication with the father on two non-consecutive days each week, to be nominated by the mother and the mother shall facilitate such communication and afford the children privacy during the calls.
By Consent
9.That each party advise and keep the other party advised of their current address and telephone contact number and advise the other party within 24 hours of any change of address or telephone contact number subject to each party and each party be restrained thereafter from disseminating the other party’s contact details to a third party.
10.That in the event either party experiences a mental health episode including but not limited to:
(a)An admission to hospital for mental health reasons; or
(b)A change in medication.
That party is to inform the other party in writing within seven days of such event and, in any event, prior to any time spending with the children occurring.
11.The parties shall be restrained, and an injunction shall be granted restraining each of them from:
(a)Denigrating the other party to or in the presence of the children or allowing any third party to do so; and
(b)Discussing these proceedings or the allegations made in these proceedings to or in the presence of the children or allowing any third party to do so.
12.All extant applications be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Gair & Bayles has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS
INTRODUCTION
This is a parenting dispute regarding the care arrangements for the two children X aged 10 years and Y aged 9 years.
The parties and children currently live in Adelaide. The mother is in the Armed Forces and has been posted to City B and therefore seeks to relocate with the children to that location. The posting was due to begin in early 2023 however the mother has been granted the ability to work remotely until July 2023. The father opposes the move and seeks that the children remain in Adelaide with a view to a gradual increase in his time to a shared care arrangement.
Both children have special needs and have been diagnosed as having Autism Spectrum Disorder (“ASD”). A large part of the evidence in this matter focused on Y as her needs are greater. She is non-verbal, requires a high level of one-on-one assistance and requires constant supervision to ensure she does not “escape” from the care of home or school. She is also prone to tantrums.
Neither party has any ties to Adelaide; they do not have any family in South Australia or own any property or are currently employed in South Australia. However the children have lived for most of their lives in Adelaide, attend school there and their current treating health practitioners are located there.
BACKGROUND
The applicant mother is 33 years of age. She currently resides in armed forces housing in Suburb C. She has not re-partnered.
The father is 38 years of age. He resides in Suburb D and is on a disability pension. He has also not re-partnered.
The parties met in 2012 in City B. The father was in the armed forces and the mother was also in the armed forces. They commenced a relationship soon after meeting and the mother became pregnant very early in the relationship. They subsequently obtained postings in City E and commenced co-habitation there in 2012.
In 2014 the father was medically discharged from the armed forces as a result of multiple injuries, and consequent mental health issues, including depression and anxiety.
The parties separated in October 2014.
The mother was reposted shortly thereafter to Adelaide and moved there with the children in 2015. She says the father also chose to relocate to Adelaide. He says they moved as a family.
The father lived with the mother and children until he could find accommodation in Adelaide. Thereafter he spent irregular time with the children however the parties were ultimately able to agree that the children would live in a shared care arrangement between them. This continued until September 2016 when the father absconded with the children to City F, where he had purchased a home. He says the mother originally agreed to him moving there with the children when she was posted to City G but that she later cancelled this posting. This is denied by the mother. In any event, it is common ground the father’s ultimate move was unilateral. The mother consequently filed an application for recovery and the children were returned to her care in Adelaide. The father eventually returned to live in Adelaide in mid-2018.
Final orders were then made by consent which provided for the children to continue living with the mother and to spend time with the father every second weekend from Friday to Monday and in the other week, X on Tuesday nights and Y on Thursday nights.
In or about January 2019 the mother left the children with the father whilst she attended a three month course and again from January 2020 to November 2021 whilst she was posted to Sydney. During the latter period she was only able to travel back to Adelaide to spend time with the children on about six occasions, due to COVID restrictions.
The mother returned to Adelaide in October 2021 and after quarantining returned to live with the children in her armed forces home. In January 2022 the father returned to live in City F. The parties agreed the father would spend time with the children every second weekend in Adelaide. The father spent time with the children on about 12 occasions. The father returned to live in Adelaide in or about September 2022.
In mid-2022 the father’s mental health deteriorated and in 2022 he voluntarily admitted himself to a military based mental health facility.
The father currently spends time with the children pursuant to orders made 6 December 2022 which provide for each Sunday from 9:00am until 4:00pm and each Wednesday from after school until 6:00pm.
THE ISSUES
Is it in the children’s best interests to live with the mother in City B, particularly given she works fulltime and there is the possibility of future redeployment and/or the requirement to go to postings?
Would it be in the children’s best interests to live in Adelaide, given the mother says she would return to Adelaide if the children were not permitted to relocate?
If the children were to live in Adelaide, what time arrangements would be in the children’s best interests?
THE EVIDENCE
The matter proceeded by a face to face hearing. The mother was represented by Counsel and the father represented himself.
It has not been possible to include every aspect of each of the parties’ evidence in these reasons. However, I have taken all the evidence into account. While I may not mention something specifically in these reasons, that does not mean I have not considered it.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
THE RELEVANT LEGAL PRINCIPLES
Relocation cases are particularly difficult cases for Courts to decide.
I cannot determine the matter in a way which separates the issue of relocation from the ‘best interests’ considerations.
As observed by Kent J in Heath & Hemming (No 2) [2011] FamCA 749 at par 101:
In some cases, the determination of “best interests” may well mean that one party’s choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child’s “best interests” being served by Orders which do not give one parent “optimal” arrangements or outcomes.
I note the observations of the Full Court in Adamson & Adamson [2014] FamCAFC 232 at par 66 where their Honours said:
These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.
The following propositions can be distilled from the authorities, including AMS v AIF [1999] HCA 26 (“AMS”), A & A: Relocation Approach [2000] FamCA 751 (“A & A”), U v U [2002] HCA 36 (“U v U”), Taylor v Barker [2007] FamCA 1246, KB & TC [2005] FamCA 458 and Morgan & Miles [2007] FamCA 1230:
(a)The best interests of the child are the paramount, but not the sole consideration;
(b)The person seeking to move does not need to provide compelling reasons for the relocation sought;
(c)The Court must evaluate the competing proposals, giving consideration to how each proposal will provide advantages and disadvantages for the child’s best interests;
(d)The question of whether there should be a relocation cannot be treated as a separate or discrete issue to that of the question of residence;
(e)Neither party bears an onus to establish that an order permitting or restraining relocation is in the children’s best interests; and
(f)The Court must weigh the competing proposals and consider all the relevant factors, including the right of freedom of movement of the party who wishes to relocate.
PARENTAL RESPONSIBILITY
Both parties seek an order for equal shared parental responsibility. Although the parties agree that they have poor communication and a poor co-parenting relationship this does not appear to have impacted their ability to make significant decisions with regard to the children. Accordingly I will be making an order for equal shared parental responsibility.
As I am to make an order for equal shared parental responsibility, pursuant to s 65DAA of the Family Law Act 1975 (Cth) (“the Act”) I must now consider whether it is in the best interests of the children to spend equal time or substantial and significant time with each parent and whether this is reasonably practicable.
BEST INTERESTS OF THE CHILDREN
Section 60CC(2) of the Act sets out the two primary considerations I must consider in determining what orders are in the best interests of the children namely:
(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.
In applying the primary considerations, I am required to give greater weight to the need to protect children from harm.
Meaningful relationship
In the case of McCall & Clark [2009] FamCAFC 92 (“McCall & Clark”), the Full Court observed that whilst the Act does not provide a definition of the word “meaningful”, they noted with approval the view of Brown J in the decision of Mazorski & Albright [2007] FamCA 520, in which her Honour said the term was synonymous with notions such as “significant”, “important”, “of consequence” and “valuable to the child”. Furthermore it is a qualitative and not a strictly quantitative adjective.
In the case of Godfrey & Sanders [2007] FamCA 102, Kay J noted that:-
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
Protection from harm
The children, Y in particular, have very high needs. There is a certain attraction to the children living in a shared care so the parties can share the load. This was the initial evidence of Ms H who prepared the Family Report in this matter, and her primary reason, it would appear, for recommending that the children remain in Adelaide.
The children’s needs would be difficult for any parent to manage. However, the evidence does not show that the mother has had the same difficulties as the father.
Previous evidence has shown that when the children were in the father’s care, Y escaped no less than nine times. Of significant concern, on one occasion she was found face down in a neighbour’s pool and on another occasion there was a fire in the father’s house when X placed something in the toaster whilst the father was asleep.
In addition the records from the Department for Child Protection (“the DCP”) show the father has had difficulty coping with the children, including getting X to school on time in 2020 and 2021.
I have some sympathy for the father, who was left to care for the children on his own for substantial periods with little or no assistance. The mother had intended to return to Adelaide frequently but was unable to do so due to the COVID-19 restrictions. In addition, the father was taking medication to help him sleep which made it difficult for him to wake up on time. Further to this, his sleep was often disrupted at night by Y who would stay up late and jump on him. He also had greater difficulties entertaining Y during the day as the usual play centres and swimming pool activities were not available due to COVID and ordinary playgrounds were not a safe option for her. It is important to note that the DCP recorded that the father was doing his best and was seeking support.
Furthermore, although the mother’s evidence is that after the 2018 orders were made she had concerns about the father’s ability to care for the children, it is common ground she left the children in his sole care for three months from January 2019 (only a couple of months after the pool incident) and for some 22 months from January 2020.
Nonetheless, the DCP notes show there were serious concerns about the father’s ability to care for the children during both those periods and the mother’s evidence is that the first time she was made aware of any ongoing concerns was in March 2021. She says that upon becoming aware of the extent of the concerns she applied to be discharged from the armed forces. However she was informed of options to transfer to a Unit in City B, the Department J, which would not require her to deploy off shore. She applied and was ultimately transferred to that Unit.
In addition, Ms H was of the opinion that the father did not seem to recognise the seriousness of some of these incidents, in particular the house fire. This was consistent with my observations of him in the witness box in which he appeared to find it somewhat amusing.
Moreover, even on the father’s evidence, he has a limited capacity to deal with stress and conflict. For example, he conceded under cross-examination that he was involved in five or six incidents of road rage in 2020. He has also had clashes with his neighbour and a teacher at school. Furthermore, the father takes issue with the Suburb K Police and is estranged from most of his family. Adding to this, he was involved in an incident in which he was assaulted in 2016 and the discharge summary for his stay in the mental health facility in 2022 indicated that he had violent impulses towards another patient.
I am therefore concerned about how the father will respond to the children as they grow older and become more confrontational. My observations of the father were that when challenged during the proceedings, even in the most inoffensive manner, he became heightened emotionally and frequently wished to withdraw from the process. Indeed on the first day he left the Courtroom and later advised that he suffered an anxiety attack.
The father has filed a report from his treating psychiatrist who has diagnosed him with major depression and Post-Traumatic Stress Disorder (“PTSD”). That psychiatrist notes that he had a relapse of his depression in the context of significant stressors.
The mother is concerned and I accept that the father did not notify the mother of the difficulties he was having with the children in his care or of the nature of his stay at the psychiatric facility. Whilst he is to be commended for seeking help and admitting himself for treatment, the lack of information provided to the mother did not enable her to act protectively if required.
In contrast with the concerns about the father, there has only been one reported incident of concern which directly involved the mother. This involved Y escaping from her care in November 2021. The mother’s evidence was that since the incident in November 2021 the children have settled and she has put in place routines and boundaries. There is no basis on which to doubt that evidence. Furthermore, there is no evidence of any further incidents since that time. I do not accept the father’s submission that the mother would be able to hide incidents by not reporting them as it is likely that Y would come to the attention of third parties.
I accept the submission that the mother does not need the same level of assistance in caring for the children as the father and that there is therefore no need to “spread the burden” of the children’s care between the parties. I find that the mother is able to manage the primary care of the children without risk to them. As the father does not seek primary care it is not necessary for me to make a finding about the risk to the children if they were placed in his primary care. Nor does the mother ask me to find that the children would be at unacceptable risk in the father’s care on a shared care basis. In any event, she proposes large periods of care during the holiday periods. The mother’s argument is that shared care of the children during the school term is not in the children’s best interests because of the co-parenting relationship.
The additional considerations
I must also weigh and consider the additional considerations as set out in s 60CC(3) of the Act.
Any views expressed by the child and any factors (such as the child’s maturity level or understanding) that the court thinks are relevant to the weight it should give to the child’s views
Both children have been diagnosed with ASD. Y is non-verbal and was not interviewed.
X was interviewed for the Family Report however given his age and special needs, I have placed limited weight on his views.
The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
The children have close and loving relationships with both parents. I note that in the Family Report observations Y struggled to separate from the father and was quite distraught.
The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of their parents or any other child, or other person (including any grandparent or other relative of the child), with whom they have been living
I accept that as the children are close to each parent, and given the observations of Y with her father, if the Court makes orders for the children to live in City B, they will necessarily be impacted by not seeing their father as frequently.
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
The distance between Adelaide and City B is approximately a 12 hour drive. Driving is the preferred method of transport for the children, particularly for Y who does not cope with confined spaces. This trip will necessitate a number of breaks and an overnight stay and thus in reality will take two days.
The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
I have already discussed concerns about the father’s ability to meet the children’s day to day needs.
The mother on the other hand has proven her ability to care for the children, albeit even in her care, there was an occasion when Y was able to escape.
The main concern regarding the mother is that she works fulltime in City B and she would have limited supports. Nonetheless, the mother has made a number of enquiries into the supports she would have available to her. Her evidence, which was not challenged, is that there is a specialised respite centre available for Y. Furthermore, she has struggled to find an equivalent centre or respite carers generally in Adelaide for Y.
I also accept the mother’s evidence, which was again unchallenged, that she has located specialists to assist the children in City B and has a plan for a continuity of care between the current practitioners in Adelaide and the new treating allied health professionals. I also accept her evidence that there is a regular turnover of allied health professionals undertaking this work in any event.
The mother has also provided evidence of suitable schools for the children in City B which are able to meet their special needs as well as out of school and holiday care. In addition she attests to support groups and programs for children, and parents of children, with ASD.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The father is to be commended for his strong commitment to the children in 2019 and from the period in 2020 to 2021 when the mother lived interstate.
REASONABLE PRACTICABILITY
Section 65DAA of the Act sets out the following:
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.
Clearly, if the mother relocates to City B, and the father remains in Adelaide or even moves to City F, then equal time cannot occur. The practical reality is that time would necessarily be limited at most to weekends and school holidays.
If both parties remained in Adelaide, it would be practical, in terms of the distance, for the parties to share the care of the children, however I must also consider the impact of that decision on the children, as well as the other sub-sections of s 65DAA (5).
FREEDOM OF MOVEMENT
The best interests of the children are the paramount consideration however they are not the sole consideration in parenting matters. The Court must also consider the right of the parents to live where they wish. It is also clear that a parent does not need to show a compelling reason for this wish. However the reason for the move may be relevant if, for example, it goes to a parent’s ability to promote a relationship with the other parent, or the parent’s insight into the needs of the children.
In this case, it was made very clear that the mother’s sole reason for moving to City B is because of her career. Her evidence is that she holds the highest possible security clearance in the armed forces and has specialised skills in warfare. She says the types of jobs suitable for her qualifications “are all (or mostly) located in City B and not in Adelaide”. She says that although she could find a position with the armed forces in Adelaide, in City B she is not likely to be sent on duties and is not likely to be reposted. Furthermore, the mother’s evidence is that she will be posted to City B for a minimum of 12 months and up to 2 years and that there would then be the option of a second posting which she believes is likely. If not, her evidence was that there was also the option of a compassionate posting and failing that, the opportunity to work in the private sector in City B is greater because firms seek veterans with her security clearance.
The father asserts that because there is a shortage of staff with the mother’s qualifications, she is more likely to be deployed on duties. However, I accept the mother’s evidence that if that became a reality she would leave the armed forces and pursue options in the private sector.
The father also gave evidence that when the mother was posted to City G she encouraged him to buy a property in City F and agreed that the children could live there with him during the posting. His evidence is that upon buying the property, the mother cancelled her posting, knowing he would be obliged to move there, and sought the return of the children. The inference being she intentionally set up a situation where he was removed from the children’s lives. However, this allegation was not put to the mother and did not form the basis of any submissions by the father.
Having heard the evidence of the mother, I accept she is motivated to move to City B solely for her career and with no intent to impact the relationship between the father and the children. Furthermore, I find that the mother has facilitated a relationship between the father and the children, despite her concerns about the father, even bringing the children to see him in an acute psychiatric facility within a day of being asked.
CONSIDERATION OF THE COMPETING PROPOSALS
Consideration must be given to each of the proposed arrangements of the parties. I am, of course, not bound by those proposals.
Advantages of the children staying in Adelaide:
(a)The children would have the benefit of spending substantial and significant time with each parent;
(b)The parents would be able to provide respite to each other to assist with the high care needs of the children;
(c)The children would be able to continue seeing their current health professionals;
(d)The children could continue attending their current schools and to socialise with their current friends;
(e)The children could stay residing in a home which is familiar to them.
Disadvantages:
(a)The father has no ties to Adelaide and may decide to move to City F. In 2016 he clearly thought this was the best place for the children. His evidence was that he dreamed of living there and providing a place for the children to run around. Although he said he would not do so because the children were in school, this was less than convincing. The father has spent two significant periods of time in City F since separation, owns property there and has long term friends and supports there and has none of these things in Adelaide;
(b)If the mother is deployed off shore or reposted interstate there are less options for her to move to civilian employment in Adelaide;
(c)There are less options for third party respite care and out of hours care in Adelaide for Y.
Advantages of move to City B:
(a)The mother will have ongoing opportunities for employment in City B, whether in or out of the armed forces which will ensure she does not have to move again and is not deployed offshore;
(b)The children will have certainty as to their living arrangements and thus the schools they attend and the supports they are linked in with;
(c)There are more options for respite and out of hours care for Y;
(d)The father can spend time on the mother’s proposal from either Adelaide or City F, which are similar distances to City B;
(e)The father could spend substantial and significant time with the children if he moved to City B. The only reason given for not being able to move was a financial one and there was no evidence to corroborate the father’s assertion that it would be more expensive to buy property in City B than Adelaide;
(f)The period proposed by the mother for the children to spend with the father is less likely to cause the father stress;
(g)If the father does experience a mental health episode this will have less of an impact on the children’s day to day living arrangements.
Disadvantages:
(a)The children will not be able to spend substantial and significant time with the father during term times unless he moves to City B;
(b)The children would have to move to a new and unfamiliar house in City B;
(c)The children would have to start new schools and make new friends;
(d)The children would have to change treating health professionals – although the mother’s evidence was that this was a frequent occurrence in any event due to the nature of the work.
DETERMINATION
Balancing all the considerations, I am satisfied that the children’s best interests are met by moving to City B with the mother and spending time with the father as proposed by the mother. However, it would be in the children’s best interests to start spending time with the father on an overnight basis before they move.
The children are currently spending each Sunday from 9:00am until 4:00pm as well as each Wednesday afternoon with the father. I propose to order that until the relocation the weekend time be extended such that it commence from 4:00pm each Saturday and finish at 6:00pm Sunday in addition to the current Wednesday time. However I do not propose to order block holiday time to commence until the third term holidays as the father will only have been having overnights for a relatively short period by the second term holidays.
I note the father also proposed FaceTime with X in accordance with X’s wishes. This in my view would be too disruptive to X and too difficult to enforce. I find that it would be in X’s best interests to have set periods of time each week for FaceTime given routine is important for him. Moreover, twice per week would be less disruptive to X’s routine and yet sufficient to maintain his relationship with the father. As the mother works and will otherwise be responsible for the children’s routines, these days and times should be nominated by her. Finally although it is understood that Y will have difficulty in participating in FaceTime calls, I have decided to include both children in the order as she may be able to have limited involvement from time to time.
I accept that the concerns about the father can be ameliorated through limited periods of term time. As such, the stress of time spending with the children will be limited.
I note this is different to the arrangements recommended by Ms H in her report, however this recommendation was based on two assumptions – that the parties were equally able to care for the children and that they would be able to work together to share that care and only then if they attended upon counselling to improve that ability.
Having had the benefit of the totality of the evidence, I do not accept that the parties are equally able to care for the children, nor that they will be able to work together to facilitate shared care, with or without counselling.
I do not propose to makes the orders restraining the father from removing the children from City B as I expect both parties to comply with these orders which provide for the children to live there.
I will also make certain other orders, as indicated, by consent.
For all the foregoing reasons, I make the orders as are set out at the beginning of this judgment.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 12 May 2023
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