Garth and Hope - [2007] FMCAfam 677

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GARTH & HOPE

[2007] FMCAfam 677

FAMILY LAW – Children aged 11 and 9 – mother lives in Adelaide – father lives in Brisbane – final orders made in August 2003 – significant level of conflict between parties and extensive history of litigation – father wishes children to live with him in Brisbane on trial basis for one term in late 2007 or early 2008 – father asserts this is the desire of the children concerned – trial supported by court appointed expert – mother opposes trial and the court entertaining father’s application without any significant change of circumstances – rule in Rice & Asplund – best interests – should children be independently represented.

Family Law Act 1975 - ss.60B, 60C, 60CA, 60CC, 61DA

Rice & Asplund (1979) FLC 90-725
D & Y (1995) FLC 92-581 at 81,764
CDJ v VAJ (1998) FLC 92-828
King & Finneran (2001) FLC 93-079
Bolitho & Cohen (2005) FLC 93-224
H v W (1995) FLC 92-598
R & R: Children’s Wishes (1999) 25 Fam LR 712
Re K (1994) FLC 92-461

Applicant:

MR GARTH

Respondent:

MS HOPE

File Number:

ADM3970 of 2006

Judgment of:

Brown FM

Hearing dates:

23 and 24 August 2007

Date of Last Submission:

19 September 2007

Delivered at:

Adelaide

Delivered on:

28 September 2007

REPRESENTATION

Counsel for the Applicant:

Mr Baston

Solicitors for the Applicant:

Direct brief

Counsel for the Respondent:

self represented

ORDERS

The children Q born in 1996 and B born in 1998 (hereinafter referred to as “the children”) be independently represented in these proceedings and to this end the Director of the Legal Services Commission of South Australia is requested to make arrangements for the appropriate representation of these children as soon as is practicable.

UPON THE UNDERTAKING of the father that he will not seek an assessment of child support from the mother during the period of the trial referred to in order (3) hereof.

UNTIL FURTHER OR OTHER ORDER IT IS ORDERED:

The parties have equal shared parental responsibility for the children.
The children live with the father in Brisbane for a trial period to coincide with the fourth term of the Queensland school year in 2007 being from 8 October until 14 December 2007.
During the trial period referred to in order (3) hereof the children spend time with the mother as follows:
(a)In Brisbane for two weekends the weekends to be agreed between the parties and failing agreement to be on the third and seventh weekend of the fourth Queensland school term in 2007;
(b)For the first four weeks in the Christmas school holiday in 2007/2008 to commence on 15 December 2007.
The time specified in order (4)(a) is to take place in Queensland and the time specified in order 4(b) is to take place in South Australia.
The mother is to have liberal telephone communication with the children at all reasonable times when they are in the father’s care.
The father be responsible for all costs associated with the mother spending time with the children pursuant to order (4) hereof, however the father is not required to ensure the children are accompanied by an adult for the purposes of such travel.
The father be responsible for the payment of all the children’s school fees and other costs associated with the trial period referred to in order (4) whilst the children are living in Queensland and he ensure that all necessary fees are paid to ensure that the children retain a place at Sxxx School, South Australia during the aforesaid trial period.
Dr Savage, the family report writer herein update her family report dated 16 August 2007 during the period of time the children are in the mother’s care pursuant to order (4) and in particular interview each of the children concerned and ascertain their views regarding the trial period referred to in order (3) and any other matters she considers relevant.
The further hearing of this matter be fixed for 21 January 2008 in Adelaide and upon the completion of the trial period referred to in order 4 the children live with the mother in Adelaide.
The children spend time with the father in the final two weeks of the 2007/2008 Christmas school holiday period.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADM3970 of 2006

MR GARTH

Applicant

And

MS HOPE

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Garth and Ms Hope are the parents of Q aged eleven years and and B aged eight years. Mr Garth lives in Brisbane. He wants the two children to live with him, on a trial basis, for the final school term of 2007 or possibly the first term of 2008.
It is Mr Garth’s view that this is what the children want and the trial is a safe and sensible way to give accord to Q and B’s wishes. The trial is supported by the court appointed expert, Dr Savage.
If the trial occurs, it will necessitate the adjournment of the case until early next year, when Dr Savage would revisit the children and ascertain if their views remain the same or have changed after first hand experience of living with their father during school terms, when both they and he are busy with school and work commitments respectively. It being a different thing to live with a parent in holidays, as opposed to the more mundane and work day existence of the school year.
Since September of 2003, Q and B have lived in Adelaide with their mother. She has undoubtedly provided the children’s “nuts and bolts” parenting during this lengthy period. She is a loving and capable parent.
In such circumstances, Ms Hope is opposed to there being any significant change in arrangements for the care of the children, particularly that they go to live in Brisbane, whether on a trial basis or otherwise.
She has had enough of litigation and wants an end to it. From her perspective, there is no good reason to change the longstanding arrangements for Q and B’s care, as she has and will continue to provide them with a happy and stable home.

Background

The parties have been in almost constant litigation since early 1999 – in the Family Court; the State Magistrates’ Court; the Supreme Court of South Australia; and more recently this court. They have been in dispute about the division of their property; the payment of child support; above all about arrangements for the care of Q and B. The litigation has consumed them, both financially and emotionally.
Mr Garth went to live in Brisbane in early 2004, after obtaining employment there. He has since married and he and his wife are expecting a child in October of this year. After some initial difficulties, he has been seeing Q and B regularly, both in Adelaide during school terms and in Brisbane during school holidays. The payment of the airfares involved has been a considerable burden to him, although he is considerably better off financially than Ms Hope.
Mr Garth works in the Political Industry. He enjoys a salary of around $125,000.00 per annum. He regularly travels interstate for his work. A federal election campaign is imminent. Mr Garth will be heavily involved in it. The final quarter of 2007 will be a busy one in his household, particularly if Q and B join it.
Ms Hope works part-time for a major bank earning around $34,000.00 per annum. The children attend Sxxx School, a private school in Adelaide and have done for the last few years. The payment of the fees required has been a major issue of contention between the parties, as has the payment of child support generally, particularly whether there should be a departure from the current assessment because of the high costs involved in the children spending time with their father and the costs of their education generally.
For all sorts of reasons, the relationship between Mr Garth and Ms Hope is poor. They do not communicate directly but rather through emails and other written correspondence. Ms Hope is not willing to tell either Mr Garth or the court precisely where she lives with the children. It is not surprising that Ms Hope and Mr Garth find it very difficult to make joint decisions about what is likely to be best for Q and B and that they have often come to court to ask for a judicial resolution of their disputes.
For their part, Q and B’s life is fractured. They have to navigate between two households, which are mutually opposed. It is clear that the children love their parents very much. With love comes loyalty. What are the long term consequences for Q and B of the drawn out dispute between their parents is unclear. It is difficult to conceive that the results could be positive.
The history of litigation between the parties is complex. I provide its bare bones only. The parties finally separated in January 1999. In August 2000, following a lengthy trial before Burr J, they agreed to share the care of Q on a week about basis and that such an arrangement would commence for B, when she was five. At this stage, it was the parties’ intention, ostensibly at least, that both would be closely involved in caring for Q and B.
This arrangement broke down soon after and other proceedings began, culminating in a six day trial before Dawe J in 2003. This trial resulted in the discharge of the shared parenting regime and orders for the children to live predominantly with their mother and have contact with their father on weekends and school holidays.
The father was disappointed at this result, particularly as he had been closely involved in Q’s care and believed that he wished to live mainly with him. Arrangements had been a little different for B because she had been very young, when the parties separated and had spent more time in her mother’s care.
The father’s disappointment with the result was one factor in his decision to pursue employment opportunities in Queensland. He did not tell the mother of his plans and Dawe J’s orders did not envisage how the children would maintain their relationship with their father, if he moved interstate. This period was one of instability, for both the parties themselves and the children. It led to more litigation.
The father says the mother withheld the children from him. He was concerned that Q had reacted badly to the decision of the Family Court and was running away from school. In such circumstances, he wanted to spend more rather than less time with the children. The mother says that she could not provide the children for contact because she did not know where the father was living and what he proposed for contact in his now changed circumstances.
Dawe J’s final orders were made in August 2003. By March of 2004, following his move to Brisbane, Mr Garth began more proceedings. He wanted the children to live with him in Queensland. The mother opposed such a radical change for the children, particularly so soon after the long trial. On 20 July 2004, Strickland J dismissed the father’s application, regarding a change in the children’s place of residence, ruling it would not be in the children’s interest for the court to entertain it.
Difficulties remained as to how the father would maintain his relationship with the children. Proceedings continued. Interim orders were made in March 2005, which provided for the children to spend eight weeks of school holidays in Brisbane and two weekends during each school term in Adelaide with their father. At the mother’s instigation, the children were to be accompanied in their travel to and from Brisbane. The arrangements were expensive.
On 15 August 2005, Murray J made some orders dealing with the payment of child support and school fees by Mr Garth for the period of the next twelve months. On 22 November 2006, a registrar of the Family Court transferred what remained of the proceedings to this court.
At this stage, her note on the court file suggested that the matter concerned “really only contact issues”. This turned out not to be the case. By this time, the various documents filed by the parties, over the past seven years, filled three large storage boxes. The documents transferred to this court occupied three large files.
In recounting the parties’ litigation history, I have ignored the many contravention applications and appeals. I have ignored the parties’ property proceedings, which went to the Full Court of the Supreme Court of South Australia. I have not dealt with the proceedings between the parties in the Child Support Agency. It would be an understatement that these various proceedings have engendered considerable bitterness between the parties.
Over many years, the proceedings have been hard fought, sometimes with lawyers, sometimes without. It is difficult to see when the litigation will end, other than with the maturity of the children concerned.
The parties have at times called into question the mental health of the other. Allegations which still emotionally reverberate, particularly for the mother. Ms Hope has a poor view of Mr Garth, a feeling which is reciprocated.
As a result of the litigation, the various members of the family are no strangers to psychologists, psychiatrists and social workers, who work in the court setting. There have been several family assessments and expert’s reports. The views of the children, particularly Q have been previously canvassed. It seems clear that the children are well aware of the acrimonious dispute between their parents. How could they not be? The dispute has been the constant background noise of their lives.
The central issue in the case is how the children can be protected from the worst excesses of the litigation between their parents and maintain a meaningful relationship with them both. In such an environment, the expression of any views by the children, as to what they would prefer, is likely to be fraught with difficulty.
The case turns on the purported views of Q and B. Is it safer to leave things as they are or should an experiment based on what the children have said to Dr Savage be undertaken? Will such an experiment unleash a further storm of litigation around the children, to their ultimate detriment?
The transfer of the proceedings to this court precipitated an amended application by Mr Garth.[1] Mr Garth’s application had two facets. Firstly, he sought a departure from the current child support assessment, which requires him to pay Ms Hope a monthly amount of just under $2,000.00 for Q and B’s financial support. In lieu, he proposed that the court make an order he pay $500.00 per month and pay all the children’s school fees.
[1] Amended application filed 28 February 2007
The rationale for the departure is the high cost of travel between Brisbane and Adelaide, not only for the children but also for himself. In theory Mr Garth has no difficulty with paying for all the children’s education expenses, as from his perspective, an arrangement whereby the parties share these costs is a constant area of contention between them.
The other facet of his application, dealing with arrangements for Q and B, was presented in the alternative. The first alternative was not well developed. Mr Garth simply sought that all existing orders be discharged and that the children should live with him and spend time with their mother, as the parties agreed or as was ordered by the court. It has the features of an ambit claim.
The other alternative sought to maintain the existing arrangements for Q and B’s care, with some modest additions. Mr Garth wanted to be able to communicate with the children, via the internet, when they were in Adelaide and he was in Brisbane. Something the mother had previously vetoed, as she found the presence of a video camera in her home intrusive.
In addition, Mr Garth wished the children to be able to travel unaccompanied between Adelaide and Brisbane. He also sought orders which would allow him to have make-up time with the children, if he was unable to come to Adelaide during school terms on the specified weekends. Finally, he wanted the court to examine the issue of the children travelling overseas.
Ms Hope has not formally responded to this application. She did however set out her position in her answering affidavit.[2] Ms Hope believes that it will be in the children’s best interests if she alone has responsibility for making all significant decisions regarding B and Q. She characterises the father as being dismissive and undermining of her and the “stable, secure, and safe family life” which she provides for them.
[2] Affidavit of Ms Hope filed 20 March 2007 at paragraph 12
Ms Hope does not state specifically what orders she proposes for the children to spend time with their father, other than she wants orders that are more flexible and have “more input from the children into what they would like.” She indicates her requirement that the children should still be accompanied by an adult whilst travelling by air and her continued opposition to the children using video conferencing to remain in touch with their father. She wishes to defer the issue of the children having passports, until Mr Garth has some concrete proposal for the children to travel overseas.
I glean from Ms Hope’s affidavit that it would be her preference that the children spend less rather than more time with their father. She does not seem to be enthusiastic about the current school term arrangement, particularly because the father has changed them from time to time. This seems to be the basis of Mr Garth’s application for makeup time.
On 18 April 2007, the matter came before me in the duty list. I did not know much about it. It was not possible for me to familiarise myself with the voluminous documents and follow the intricacies of the litigation in the various courts concerned and the Child Support Agency. One thing however stood out.
In his most recent affidavit, Mr Garth deposed that both children had expressed a desire to spend more time with him and that Q had “continually expressed a desire to leave Adelaide and come and live with me in Brisbane.”[3] Furthermore, Ms Hope had indicated that she “would welcome the preparation of a full family report to assist the court in making a decision about future arrangements for the children and what is in their best interests.” She also alluded to the desirability of the court canvassing the views of Q and B, regarding arrangements for their school holidays.
[3] See father’s affidavit filed 28 February 2007 at paragraph 14
Accordingly, a family report seemed like a good idea and one on which the parties agreed. Ms Hope went so far as to say that she would be happy to abide by any recommendations made in such a report. Although Mr Garth had indicated in his application that he wanted the children to live with him in Queensland, it seems clear that Ms Hope did not view this as a realistic outcome but rather as extraneous window dressing to Mr Garth’s application regarding child support and arrangements for him to spend time with the children.
This picked up the registrar’s understanding that the case was primarily a “contact dispute”. It also seemed to me that, given the ages of Q and B, they would be mature enough to express some preference about their future arrangements, particularly what happened in school holidays. Accordingly, all were agreed on the utility of a family report in the case and one was ordered.
The family report was prepared by Dr Julie Savage, an experienced social worker and family consultant. Dr Savage recommended that Q and B go to Queensland to live with their father on a trial basis for the remainder of the year. To address the financial issues, she recommended that Mr Garth be responsible for all the costs of the trial and that Ms Hope be relieved of the obligation to pay child support, whilst it is in progress.
Dr Savage further proposed that Q and B should spend half of the October school holiday and the first four weeks of the Christmas school holiday with their mother in Adelaide and, if possible, a minimum of two weekends during the school term of the trial period.

As Dr Savage’s proposal is expressed as being a trial, it is implicit that she should revisit the children and see if they have changed their views about their father’s household, after having experienced it both during school holidays and term time.
Essentially, Q and B may have cause to revise what may be an idealised view of Mr Garth’s household, derived from spending time with him only during school holidays. Dr Savage believes her subsequent report could be prepared prior to the start of the school year in 2008 and the court could determine final arrangements then in light of it.
Not surprisingly, Mr Garth welcomes Dr Savage’s report and urges the court to adopt its recommendations. He is willing to accept its financial implications, particularly in regards to the child support moratorium and his responsibility for all costs, including flying

Ms Hope to Brisbane to spend time with the children on two term time weekends.
On the other hand, Ms Hope is dismayed by the report and thinks it is plainly wrong, going in the face of previous decisions made about the children, which were in turn based on other psychological recommendations. In such circumstances, she believes that if the court adopts Dr Savage’s recommendations, it would be disastrous for Q and B.

The Issues

From Mr Garth’s perspective, this is a case about preference and its importance for the children – the best way for the court to give effect to what Q and B would prefer.
From Ms Hope’s perspective, it is about stability and continuity of arrangements for Q and B and the absence of any compelling reason to revisit longstanding arrangements for their care.
The individual threads of these two major themes can be boiled down as follows:
·The father asserts the children’s views are clear. They want to give living in Brisbane a try. They are mature children, who are familiar with what Brisbane has to offer. If the court does not apparently listen to them, after having formerly canvassed their views, he believes it may do them long term psychological harm, if the court dismisses their preference.
·The mother asserts that the children do not have a sophisticated understanding of what it will mean to live away from her, their friends and the environment of home, church and school with which they are familiar.
·The mother also believes that both Q and B have been subjected to both subtle and direct pressure from their father to express the view they did to Dr Savage. Given this influence, it would be imprudent for the court to accept Dr Savage’s recommendations.
·Ms Hope asserts that the Family Court has already made a final decision about where Q and B should live. It did that in August of 2003 and reiterated its decision in July the following year.
·As such, it is not in the children’s best interests for arrangements for their care to be subject to endless revision. Her position is encapsulated in a phrase well known to family lawyers and, as a result of their extensive litigation experience, to the parties themselves – the rule in Rice & Asplund.[4]
·On the other hand, Mr Garth asserts that much has changed since August 2003. The children are older and particularly, so far as Q is concerned, his long term views have crystallised.
·On any view, the parties’ relationship with one another is poor and their ability to communicate imperfect. In such circumstances, considerable reservations must exist as to whether the parties will be able to implement the significant change recommended for the children, particularly as Ms Hope is vehemently opposed to it.
·It will be unsettling to the children’s education if they move from the school with which they are familiar to another one.
·From Ms Hope’s point of view, it is difficult to think of a more inopportune time for this significant trial to take place. Mr Garth will be busy with the election campaign. Mrs G will be distracted by the birth of her first child. The needs of Q and B are liable to be overlooked, particularly if they are unhappy with the outcome of the experiment.
·The outcome of the trial cannot be foreseen. The children may have different views about it, Q wanting to stay and B to return, raising issues of their possible separation.
·If the children are in Brisbane and say they want to return to Adelaide, Mr Garth may be unwilling to accept this outcome. There will be more pressure on the children. Once the egg is scrambled, it cannot be unscrambled. Given this uncertainty, why attempt the trial in the first place.
·Given the tyranny of distance; the poor relationship between the parties; and the financial considerations; the trial will be difficult to implement and may lead to more rather than less disputation between the parties. Can such an outcome be justified as being in the best interests of the children?
·What is the best means of protecting the children from the plethora of legal proceedings concerning them. What is the best way to quarantine the children from the deleterious consequences of their parents’ poor relationship with one another.
[4] Rice & Asplund (1979) FLC 90-725

The legal principles applicable

The service of Q and B’s best interests is the most important consideration in the outcome of this case. [Family Law Act section 60CA]. The rule in Rice & Asplund is an expression of the paramountcy principle. It is in the best interests of children for there to be an end to the litigation concerning them and for unnecessary litigation to be avoided. There needs to be a substantial change in a child’s circumstances before a court should revisit parenting orders recently made.
Whether a party should be barred from bringing a further application regarding children can be decided as a discrete preliminary issue or concurrently with the hearing of a final application.[5] In the circumstances of this case, it is convenient to adopt the latter course, particularly given the centrality of Dr Savage’s evidence.
[5] See D & Y (1995) FLC 92-581 at 81,764
The aims and principles of the part of the Family Law Act [section 60B] which deals with children, emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child. The starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence. The present case is not one which involves allegations of family violence or abuse.
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility.
In this case, it is Ms Hope’s position that the nature of the parties’ difficult and acrimonious relationship, extending over many years, should lead the court to the rebuttal of the presumption of equal shared parental responsibility, so far as Q and B are concerned. The application of the presumption not being in their best interests.
In considering Q and B’s best interests, I must look to a list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and secondary considerations.
There are two primary considerations – firstly the need to ensure that Q and B have a meaningful relationship with both their parents – secondly the need to ensure the children are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
Given the absence of any serious allegations of family violence and abuse and given Dr Savage’s finding that both parents are capable of providing a high standard of care for Q and B,[6] the former consideration must be given greater emphasis in the circumstances of this case.
[6] See Family Report at paragraph 27
The additional considerations [section 60CC(3)] are more numerous. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the family law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
In this case, the views of Q and B and the factors which give rise to them are central. It will also be necessary for the court to consider the children’s intellectual capacity to express any view and the level of their understanding of the implications of such view. These are all matters of weight for the court [section 60CC(3)(a)].
The court is required to consider the nature of the relationship the children have with each of their parents and other persons who are significant to them. [Section 60CC(3)(b)]. In this case, it is clear that Q and B have a loving relationship with both their parents. Both Mr Garth and Ms Hope have been extensively involved with caring for the children. Although, for historical reasons, Mr Garth has been more closely involved with Q. Given her “nuts and bolts” role, since mid-2003, Ms Hope places particular emphasis on her parenting role with the children.
I accept Mrs G has an appropriate relationship with the children. I do not think she would try to usurp Ms Hope’s maternal role with Q and B. The children are comfortable and familiar with her, from their visits to Brisbane. In her submission, Ms Hope refers to the children’s older half sister S, who is twenty and living in Adelaide. The nature of this relationship was not examined at the hearing. Dr Savage’s deposed that the relationships between the children and Ms Hope’s new partner’s children were sound. I accept this is so.
Given the emphasis the applicable legislation places on the joint involvement of parents, the court is required to examine how willing and able a child’s parents are to encourage the other to be closely involved in their child’s life [section 60CC(3)(c)]. Ms Hope points to the fact that, in somewhat difficult circumstances, Q and B have maintained a satisfactory level of relationship with their father. She is dubious that Mr Garth will be similarly respectful of her relationship with the children, if the boot is placed on the other foot.
Whatever is the outcome in this case, the result will be problematic. Given the entrenched nature of the dispute between them, neither party is well disposed towards the other. A state of affairs unlikely to change. These attitudes are likely to influence the capacity of both parties to facilitate the most optimal relationship between the children and the other parent concerned.
The parties’ critical and stilted relationship with one another must have implications in this regard. Accordingly, at this stage, I am unable to ascertain definitively whether Mr Garth or Ms Hope can be more favourably measured against this criterion. Accordingly, I do not propose to discuss this issue further apart from saying that I view Ms Hope’s decision to forbid Q a computer video link with his father to be petty and not in Q’s best interests.
Considerations of change are central to the court’s deliberation in this case [section 60CC(3)(d)]. From Ms Hope’s perspective, Q and B are likely to be emotionally devastated at being separated from her; their friends; their school; their church; and their recreational interests and pursuits based in Adelaide. In her view, the potential perils of the change advocated by the father and Dr Savage, do not justify the trial, notwithstanding any views expressed by Q and B.
Issues to do with the practicality and expense of Q and B maintaining a relationship with him caused Mr Garth to bring his application in the first instance [section 60CC(3)(e)]. Those issues remain. It is a long way from Adelaide to Brisbane. The airfares involved are expensive. The expense is compounded by the mother’s requirement that the children be accompanied by her.
Given Q and B’s ages; their familiarity with the travel involved; the fact that the commercial airlines in this country are both familiar with and prepared to accept unaccompanied child travellers over five years of age; and given the possibility that the risk of harm befalling such a child traveller is small; I do not think that any consideration of the best interests of either Q or B requires that they be accompanied in future, when they travel by air. Both are experienced travellers.
In terms of the trial, if Mr Garth is kept to his promise to pay for all of the travel involved, the practical difficulties will be reduced, although it may be problematic for Ms Hope to come to Brisbane, during school terms, because of her employment commitments. Clearly significant difficulties will remain, if and when the trial is concluded, depending on its result.
It is significant that over the past few years, the parties have been able to overcome the practical impediments involved in the children maintaining their relationship with the father over such a long distance. This has been due to the father’s financial resources and his commitment to spend time with the children, whenever possible. This is to his credit. It may be different, if the boot is on the other foot.
Both parties are competent parents, who are capable of meeting their children’s needs. I am also satisfied that both take their responsibility as parents seriously [section 60CC(3)(f)(i)]. It seems clear that both Mr Garth and Ms Hope wish the children to succeed at school.
The parties have different personalities and priorities in life. The mother has devoted her life to the care of the children. She has chosen not to work full-time. My impression is that she is a tender and protective parent.
The father is a high achiever. He is focused on both his career and his wish to be an involved parent for Q and B. He is not likely to have much thought for Ms Hope’s feelings. He is likely to be a less protective parent and wish the children to be more self-reliant.
The conflict between the parties has the potential to cause the children emotional harm. Mr Garth said one of the factors behind his decision to move to Queensland was his desire to end the “never ending conflict” between him and Ms Hope. In my view, the father is likely to have more capacity to put the parental conflict to one side and focus on the children’s best interests. However, he remains intent on achieving his preferred outcome from these proceedings.
The mother is a devout Catholic. The children attend a Catholic school and regularly attend church. Ms Hope wishes the children to be brought up in the Catholic faith. Accordingly, the children’s religious background is a matter of importance in this case. [Section 60CC(3)(g)].
Mr Garth does not share Ms Hope’s religious conviction. He describes himself as an Anglican. Mrs G is a Catholic, although she concedes that she does not currently practice as such.
If the children come to live in Brisbane, Mr Garth proposes that they should attend Wxxx School. Mrs G has deposed that she would take the children to Catholic services in Brisbane on a regular basis.
I accept that both Mr Garth and Mrs G would ensure that the children continue to be brought up as Catholics. However, I consider that the children’s experience of this religion is likely to be significantly different in the mother’s household, as opposed to the father’s. The mother’s level of devotion to her faith is profound. This is very significant matter from her point of view. However, it is also my view that the father is not merely paying lip service to this concern in his evidence.
Finality is desirable in children’s cases. This principle reaches its clearest expression in the rule in Rice and Asplund. The court is also required to look to the future and consider which order is least likely to lead to the institution of further proceedings. [Section 60CC(3)(l)].
In this case, it is difficult to assess which outcome is the least likely to lead to the institution of further proceedings, given both parties propensity to have recourse to litigation. Whatever is the outcome, one party will feel devastated and hard done by.
In rejecting the proposal for the trial, it is tempting to look to the fact that for much of the past couple of years, there has been an uneasy truce between the parties. I am concerned that one consequence of the trial is that it will inevitably lead to more litigation, particularly if the parties have radically different views as to its success or otherwise. This is a very strong factor in favour of the court leaving things as they essentially are.

a) The primary considerations

This is not a case involving allegations of family violence, neglect or abuse. Accordingly, the court is required to give significant consideration to the benefits of the children having a meaningful relationship with both of their parents. In this context, the use of the word “meaningful” is interesting.
The emphasis in the legislation is not only on the quantity but also the quality of the time the children concerned spend with each of their parents. This follows from section 65DAA.
If the presumption of equal shared parental responsibility is not rebutted, the court is required to consider first the children concerned spending equal time with both their parents, if this is both likely to be in the children’s best interests and reasonably practicable. If equal time is ruled out, then the court is required to consider “substantial and significant time”.
The implication of the legislation is that children benefit if their parental relationships are given depth and dimension if they are able to interact with their parents in a variety of roles and settings, which are not artificially confined to either weekdays or weekends or school holidays.
In this case, it is not possible for the children to have the most optimal level of relationship with both their parents given the geographical constraints which prevail. The children have a meaningful relationship with both their parents at present, but these respective relationships are qualitively different.
However, I accept that if they go and live in Brisbane, even for a short period, it is not beyond the bounds of possibility that their relationship with their mother will become less meaningful. Obviously, the children will not be able to interact with their mother, on a day to day basis, in the loving confines of a domestic setting. However if trial is curtailed, it will not have much significance. The children’s relationship with their father will stay as it is.
On the other hand, if the trial goes ahead, the children are likely to have an enhanced relationship with their father. He will not be a “holiday dad” or a parent they see on infrequent weekends. They are likely to get a more rounded view of him, seeing him going off to work daily and balancing the responsibilities of being a parent – taking the children to and from school; making meals; overseeing homework; attending at sporting events; and the other myriad responsibilities, which go with being the primary care providing parent.
It is Ms Hope’s case that the proposed trial is fraught with difficulty. She asserts that Mr Garth will simply be too busy to sustain the required level of meaning in his relationship with the children and the experiment will be unsuccessful, not only for the children so far as

Mr Garth is concerned, but also so far as she is concerned, as the children will be deprived of their meaningful relationship with her. By implication, she argues that this potential detriment to the children makes the experiment not worth the risk.

Obviously, there is no satisfactory outcome in this case. It is not possible, due to the geographical constraints, for Q and B to have an equally significant or meaningful relationship with both their parents. Certainly not in the terms envisaged by the presumption created by section 61DA and the provisions which flow from it, namely the children should spend either equal or substantial time with both their parents. This being the practical underpinning of what a “meaningful relationship” is taken to be.
In the context of this case, I do not regard it as useful to consider whether the children’s relationship, with either Mr Garth or Ms Hope, is the more “meaningful” one. The relationships are different for a variety of factors, many historical.
I consider that the children do have the prospect of enhancing their relationship with their father, if the trial goes ahead. I accept that he will be very busy from October 2007 onwards. He currently has an onerous job, which entails frequent interstate travel.
These pressures will intensify with the Federal Election campaign, which inevitably must coincide with the final quarter of 2007.

Mr Garth concedes that he will often work from 6.00am until 7.30pm on weekdays, during the election campaign. However, it is his evidence, which I accept that the campaign is likely to be around a month in duration.
He also deposed that, from his perspective, a Federal Election was not as onerous as a Queensland State Election, as Federal Elections are run from its Melbourne office. Mr Garth also deposed that once the campaign is concluded, he will take a period of extended leave.
The proposed trial also coincides with the birth of Mr and Mrs G’s first child. In his evidence, Mr Garth conceded that he would be highly reliant on his wife to assist him with the care of the children concerned in this case. At times, she will take the children to and from school and otherwise provide for their needs. In this regard, I note that the trial will coincide with the advanced stages of her pregnancy and confinement.
Mrs G deposed that she had many friends and sources of support in Brisbane. I accept that this is so. She and Mr Garth have a close relationship with another family, the E’s, who have children of the ages of the children concerned in this case. Both Mr and Mrs G struck me as capable people, who are able to balance the competing claims of work and family responsibility.
In his evidence, Mr Garth was unable to provide a definitive guarantee that there would not be any problems with the trial. He merely asserted that he and his wife would “cope”, as all families did with the pressures and strains thrown up by life.
On balance, I do not consider that the inevitable pressures which will arise in the Garth household, around October of 2007, are of such moment that the trial should be ruled out on the basis of them alone. In this case, there is never likely to be a perfect time for such a trial.
In the written submissions of his counsel, Mr Baston, which were received after the date specified for them, Mr Garth raised the possibility of the trial occurring in the first term of 2008. This would give more time for it to be organised and would avoid the election. On the other hand, it may be better that it occur sooner rather than later, as recommended by Dr Savage.
In my view, it is better that it is done sooner rather than later, particularly as both Q and B are aware that it has been canvassed by

Dr Savage.
Having considered the primary considerations, it seems to me that several of the additional considerations are likely to be pivotal in the outcome of this case. These considerations are:
·The views purportedly expressed by the children;
·The likely effect of any changes in their circumstances, particularly the consequences of being separated from their mother; and
·The outcome which is least likely to lead to the institution of further proceedings between the parties. [Section 60CC(3)(a), (b) and (l)].
Hereafter, I propose to emphasise these considerations in my analysis of the evidence. It will also be necessary for me to consider the application of the rule in Rice and Asplund.

The evidence

The issues in this case are subtle and complex. They have arisen over many years and evinced deep emotion on the part of the parties concerned. As a result of the level of complexity, which invariably arises in family law cases, it is often fatuous for the court to decide cases involving children on the basis of findings of credit relating to the parties themselves – that is the court believing one parent over the other. In effect determining one is truthful and the other not. That is often a simplistic reduction.
It is, I think, becoming increasingly recognised that it is impossible, or at the very least very difficult, for courts to make findings of fact about myriad issues which have arisen over many years, through the imperfect tool of assessing evidence provided in the artificial (and to many, intimidating) confines of the witness box and through the reading of formal and often professionally prepared affidavits.
In this case, I have not attempted to make any thorough survey of the past litigation between the parties. In my view, not a great deal will be achieved by undertaking such a survey. Its importance is now largely historical and it is more useful for the court to concentrate on the present and the near future. The past is important only to place the current difficulties between the parties in context. It is not useful to determine if one or other of them is more responsible for difficulties which have occurred in the past.
In addition, given the importance for children that their parents maintain at least the possibility of having a functioning parental relationship with one another, following court proceedings, the court should avoid making potentially hurtful findings of fact wherever possible, which will in future be damaging to such parental relationships, unless it is necessary to do so.
This is not a case where it is necessary for findings of credit to be made. Rather, the court should examine the pros and cons of each of the parties’ proposals, against the matrix provided by the Family Law Act 1975, particularly section 60CC, to achieve the result which it thinks is likely to be in the best interests of the children concerned.
In my assessment, both the father and mother were pleasant and honest witnesses, who attempted to tell the truth, as they each saw it, about the nature of their relationship with one another and their aspirations for Q and B. Clearly both the father and mother love Q and B very much indeed and both want the best outcome for them from these proceedings. I do not think that either Mr Garth or Ms Hope have adopted the positions, which they have in these proceedings for any other reason than they each think this will be the best outcome for the children.
Necessarily, the outcome in this case must be informed to some degree by my impressions of the parties themselves. I have already alluded to my impressions in this regard. The parties are quite different people by way of temperament and disposition. As a result, they have very different approaches to the responsibilities of being a parent and so different emphasises on what is important in life.
It is not my role to assess these differences in any determinative way, other than to say that both have much to offer the children. Sadly, at the present time, the parties have very great difficulty in realising this fact and have little if anything to say, in a positive sense, about the other.
Given the difficult and conflicted circumstances of the parties, particularly that they are likely to view the other through a distorting prism of hostility, the evidence of the independent and impartial expert, Dr Savage, assumes central importance.

Dr Savage

Dr Savage holds qualifications in education and social work. She has been involved in family dispute resolution, in the court context, since 1997. During that time, she has written many family reports. I accept that she has extensive experience in assessing the nature of children’s relationships with their parents and ascertaining the views and wishes of children, particularly in circumstances of parental conflict.
I asked Dr Savage whether she regarded this to be a difficult and finely balanced case. She did not see it as such, which I found interesting. To the contrary, she found it a fairly clear-cut case, particularly given the strength of the children’s views. At no stage did she resile from her recommendations.
Dr Savage found both parents to be articulate and well able to describe their respective perceptions of the children’s personalities and emotional needs. They agreed Q was somewhat introverted and B was more of the performer. As such, both Mr Garth and Ms Hope impressed Dr Savage as being “caring and interested parents who had a good understanding of their children.”[7]
[7] See family report at paragraph 6
This accords with my own impression of them. Whatever are the deficits in the parties’ personal relationship with one another, there is no doubt that they are both good parents, who love the children. It seems to me that both Ms Hope and Mr Garth are capable of offering Q and B a comfortable home environment, where the children will be loved and their physical, emotional and educational needs are met. The households are likely to be somewhat different in nature. However, the children are well aware of those differences.
As I have already indicated, the parties’ different personalities and perception of what is likely to be in the best interests of the children informed their respective discussions with Dr Savage. Ms Hope struck Dr Savage as stressed and worn out by the proceedings. She reported finding Mr Garth difficult to negotiate with because of his constant demands. Ms Hope’s proposal to solve this difficulty was to limit

Mr Garth’s involvement in decision making in respect of the children. In her view, this would make “life less stressful for everyone.”
Dr Savage was concerned that it was Ms Hope’s preference that

Mr Garth’s time with the children be decreased. This proposal was made notwithstanding Ms Hope’s recognition that the children loved their father and had a good relationship with him. At this point, it seems clear that Mr Garth cannot conceive, even in an abstract theoretical sense, any benefits the children would gain from the trial or indeed from spending more rather than less time with the father. This finding reinforced my impression that Ms Hope is opposed to Mr Garth playing a significant role in the children’s lives at a deep emotional level.
Dr Savage formed a more favourable view of Mr Garth. She assessed him as being “more guided by what the children wanted and of ensuring that they spent extensive time with Ms Hope.”[8] Dr Savage found Mr Garth’s expressed intention of being willing to facilitate the ongoing relationship between the mother and the children, if the trial took place and the children lived with him as being “genuine”.
[8] ibid at paragraph 11
As the finder of fact in these proceedings, I must make my own assessment of Mr Garth’s credibility in this regard. I appreciate

Dr Savage spent only a short period of time with the parties and, for obvious reasons, they were anxious to impress her with their bona fides. Given the parties’ long history of poor relations with one another, I acknowledge that I must be cautious in approaching this issue. Protestations of good faith are easy to make in order to achieve a long sought for outcome.
Dr Savage was well aware of this. She raised the question, which is to the forefront of my mind, as to whether Mr Garth’s currently professed sentiments would translate into action, if the children came to live with him and, from Ms Hope’s perspective, he was seized with the advantage.
Ms Hope’s criticisms of Mr Garth to Dr Savage, and indeed to the court, centred on his unreliability in regards to the payment of school fees and to sign the children’s necessary enrolment forms for Sxxx School. Dr Savage posited that if the mother’s criticisms were true, it would call into question how child-focussed Mr Garth actually is.
Financial issues have been at the fore of the parties’ dispute with one another. There is a marked disparity in their income. This has resulted in Mr Garth having a liability to pay Ms Hope slightly less than $2,000.00 per month by way of child support. There is not suggestion that this sum is not being paid as required.
I accept Mr Garth’s evidence that he is a frequent visitor at Q and B’s school and is well known to its administration. He is content for the children to continue at Sxxx School, if they remain living in Adelaide. Accordingly, I view the issue of his alleged failure to sign the children’s enrolment forms as a “red herring”. The issue appears to have importance only to Ms Hope and to have no administrative significance so far as the children are concerned.
It is Mr Garth’s position that he has not been asked to contribute towards the cost of the children’s school fees until shortly prior to the current proceedings.[9] Rather he had assumed the mother was content to receive child support from him, which she could utilise in part towards payment of the school fees. However, Mr Garth also deposed that it would be his preference that he pay half of the children’s school fees directly and this be taken into account in the child support assessment. From his perspective, this would lessen the scope for dispute between the parties.
[9] See Exhibit “A”
Overall, I am not satisfied that there is any substance to the mother’s criticisms of the father in regards to these matters. To the contrary, I am concerned that the mother is driving these disputes for her own motives. At this stage, I do not think that it can be said that the father is not committed to financially supporting the children. It is to his credit that he has maintained his relationship with the children, in the face of considerable practical difficulties, at his own expense, which has been significant.
Accordingly, although I am well aware that it is easy for Mr Garth to “talk the talk” and say the things that he knows will assist him with both the court and Dr Savage, I am not currently persuaded that his commitment to ensuring that the children maintain their relationship with their mother, in the event the trial goes ahead, should be discounted. I acknowledge that his resolve may weaken if the trial translates into something more permanent. I am not naïve enough to consider that Mr Garth can be considered to be generously disposed towards Ms Hope and her feelings.
It is in this context that I must make some assessment of Mr Garth’s undertaking that he would return Q and B to Adelaide, if they became unduly distressed during the proposed trial or indicated to him a wish to return. Although Mr Garth is not well disposed towards Ms Hope and is unlikely ever to be so, I do not think that he would jeopardise his children’s feelings or his relationship with them by acting against their wishes in the face of obvious emotional distress. In this regard, I accept that he is capable of focusing on the children’s best interests rather than his own needs.
The issues of the children’s views and forces shaping those views is central to these proceedings and was at the core of Dr Savage’s considerations. There was not as much dispute between the parties regarding this issue as one might have expected. Ms Hope conceded to Dr Savage that she expected Q might say that he wanted to stay with his father. She also indicated that although she thought B would most probably want to continue to live with her (Ms Hope), she (B) was excited about the new baby and felt torn as to where she wanted to be.
On the other hand, it Mr Garth’s belief that both children currently want to live with him. So far as Q is concerned, Mr Garth told

Dr Savage that he believes that Q’s views have become stronger since the end of last year. He also believes those views are influenced by the fact that Q lived with him, in an equal care arrangement, until August of 2003.
Dr Savage conceded that she did not spend an extensive period of time with either child – she estimated the time as being 20 minutes with each. Although this cannot be described as a long period, I am satisfied that it was adequate for Dr Savage to canvass the views of the children and both were aware of the significance of their conversation with

Dr Savage.
Q was positive about both his parents, describing each as “nice”. When asked directly about his residential preference, Q said he thought he would like to live with his father because, “Mum has had me and B for most of our lives and Dad hasn’t had us living with him for that long so I want to live with Dad.”
Dr Savage described the expression of Q’s views as being “quite definite”. However, she did not think that Q was taking emotional responsibility for his father by his apparent wish to be even handed with his parents.
Dr Savage indicated that Ms Hope had expressed concern to her about the level of pressure Mr Garth may have applied to the children, prior to the interviews, in respect of the issue of where they wanted to live. Dr Savage conceded that it was inevitable that the father would have discussed the issue with the children and they would have been influenced by him to some degree. However, Dr Savage distinguished this from “indoctrination”, which she did not think had occurred.
Dr Savage remained of the opinion that the views expressed by Q were essentially his own. She noted that it was very common for boys of the age of Q to identify strongly with their father. She also noted that up until mid 2003, Mr Garth had been a significant carer for Q.
In this regard, Dr Savage canvassed with Q the possible detrimental consequences of moving to Queensland. He acknowledged that he would miss his mother and would have to change schools. In regards to the latter issue, Q indicated that he had changed schools in the past and had a friend in Queensland.
Neither party has apparently previously indicated a trial in regards to the children moving to Queensland. This was an outcome raised by

Dr Savage herself. When she suggested it to Q, her apprehension was that he appeared relieved, particularly at the prospect that he could return to Adelaide, if he was unhappy.
It also seems to be the case that it would be Q’s preference to be able to spend no less time with his mother than he currently spends with his father in the eventuality the trial takes place. However, to Dr Savage, Q said that “if he could not see his mother as often he would still choose to live with his father.”
B is obviously considerably younger than her brother. It is also the case that she has never been cared for, in an equal time arrangement, as Q was until he was aged around seven years. Accordingly, the children have significant differences in maturity and experience.
Again, B was positive about both her parents describing them as “nice”. To Dr Savage, she indicated that she wanted to live with her father for two years to see how it went. The reason for this view was apparently that she had never previously lived with her father before. B indicated that she would miss her mother but would be able to see her whenever she wanted.
Clearly, this latter statement is indicative that B does not have a full appreciation of what is involved in moving to Queensland. Dr Savage pointed out to B that, if she went to Queensland, she would be unable to see her mother with such frequency. This disclosure caused B to become teary and indecisive.
As Ms Hope had indicated, B expressed excitement about the imminent birth of her half-sibling in Brisbane. This is clearly an influential factor in the shaping of B’s views. In this regard, I note that the excitement of the baby’s arrival maybe fleeting and the novelty may soon wear off for B. Obviously, B does not have an adult’s appreciation of the pressures involved in the birth of a baby.

It is of note that B expressed to Dr Savage her confidence in her father that he would return her to Adelaide if she was unhappy in Brisbane. Accordingly, it seems to be the case that B believes that she would be able to tell her father, if she was unhappy and accordingly there is some emotional intimacy and trust between the two. In my view, this is a significant matter.
As with Q, Dr Savage raised the prospect of a trial move to Brisbane. According to Dr Savage, B appeared relieved at the suggestion and thought that it would be a good idea. However, Dr Savage conceded that B was uncertain about the possible move. Certainly, it would be imprudent of me to discount the signs of distress B exhibited to

Dr Savage, when the reality of being away from her mother dawned upon her.
Having considered Dr Savage’s report and having viewed her in the witness box, I do not quibble with her overall assessment in the case. Certainly, I do not think that the assessment loses any of its force because of other evidentiary matters, which have been raised before me. Dr Savage’s assessment can be summarised as follows:
·The parties are equally competent and both are capable of providing a high level of care for the children.
·A shared care arrangement is not viable because of the distance between the parties’ respective homes.
·In Dr Savage’s assessment, both B and Q have expressed a “clear view” that they want to see what it is like to live with their father. Both are relieved that this can be on a trial basis and they can change their mind if it does not work out.
·Q was described as being more certain of his decision. However, given his introspective nature, Dr Savage was concerned that he may struggle with the change, particularly a change of school as he has some issues with academic performance.
·B is emotionally torn at the issue which confronts the court. If the trial goes ahead, she will miss her mother a great deal and so is uncertain about the trial. However, it is Dr Savage’s view that notwithstanding her realisation she will miss her mother, B still wants to give the trial a try.
·Dr Savage acknowledges that neither child can fully understand what it will be like to move from all that is familiar in Adelaide to what can only at this stage be imagined in Brisbane. The children have never lived with their father, in Brisbane, during the hurly burly of the school term.
·It is the import of Dr Savage’s report that any time the children spend with their father, in term times, will be qualitively different to the time they have previously spent with him during school holidays. This is self apparent. Indeed, the Family Law Act is posited on this fact.
·
Dr Savage also recognised that the children are likely to have an idealised expectation of what it will be like to live with their father during the school term because of their holiday experiences with him. During holidays, Mr Garth has been able to spend extended and relaxed periods of time with the children.

Mr Garth’s job and the new baby may cause them to re-evaluate their preferences in the light of these changed circumstances.
·However, notwithstanding these provisos, Dr Savage considered it important that Q and B be given an opportunity to experience life with their father “for themselves to help them decide what they wished to do, provided that this could be done with as little disruption as possible.”[10]
·It is the implication of Dr Savage’s report and evidence that her proposal of the children going to Brisbane, on a trial basis, for the last term of 2007 is the least disruptive way to give accord to the children’s professed views, particularly to allow them to experience real life in Brisbane, with their father, for themselves.
·It is implicit from Dr Savage’s report that she anticipates that the children may very well change their minds in future. She also recognised that it is not beyond the bounds of possibility that the children may indeed have different views at the end of the trial. Dr Savage did not seem unduly disturbed at this prospect, as she believed that the children had a strong relationship with one another, which could be maintained in future through periods of holiday contact. However, at this point, this issue is conjectural.
·In order to safeguard the interests of the children, particularly if either of them experience a change of mind, Dr Savage proposed the safety net of a further canvassing of their views by her in December of 2007, when she proposed the children would return to Adelaide to spend an extended period of time with their mother.
·In her report, Dr Savage emphasises that her proposal is a trial only. Accordingly, it is her view that it would be prudent for the parties (and the court) not to make any changes in respect of financial arrangements for the children, until the trial is completed.
[10] ibid at paragraph 31
Mr Garth has indicated his willingness not to seek child support from Ms Hope, if the court embarks upon on the proposed trial. He has also indicated his willingness to pay all the costs involved in it, including flying Ms Hope between Adelaide and Brisbane to spend two weekends with the children. Ms Hope is not without family support in South East Queensland, where she has close family members living.
Dr Savage’s assessment of the family led her to make the following formal recommendations:
“•Q and B go to Queensland to live with their father on a trial basis for the remainder of the year.
•The children spend half of the October school holidays and the first four weeks of the Christmas school holidays with their mother in Adelaide.
•The children spend a minimum of two weekends per term with their mother, if possible.
•The children have unlimited internet and telephone contact with their mother.
•Mr Garth be responsible for the payment of all school fees and costs associated with the children’s education in Queensland.
•Ms Hope be granted a reprieve from child support obligations until final orders are made.
•An updated assessment and report be provided to the court in mid December 2007.”[11]
[11] ibid at page 8
In regards to the fifth recommendation, I am uncertain what ramifications there would be from the trial of the children retaining their respective places at Sxxx school. I cannot imagine that the children would lose their places, if away from the school for one term only. I am also uncertain as to whether there would be any fee involved in retaining the children’s places, in these circumstances and whether Mr Garth’s undertaking includes such a fee.

The application of the rule in Rice and Asplund

In all matters concerning parenting orders, the best interests of the children concerned is the paramount consideration. As the circumstances of both parents change from time to time, parenting orders are never final in the sense that the court always retains a jurisdiction to deal with such changed circumstances.
However, some degree of change is a necessary corollary of life and should not of itself allow parenting orders to be easily revisited. Otherwise to allow further applications, on the basis of a change of circumstances alone, would be likely to be an invitation to never ending litigation.
For that reason, a court will not readily re-open a case concerning parenting orders recently made. There needs to have been a substantial change in circumstances before a court will do so. This is the basis of the rule in Rice & Asplund.
The principle which underlies the rule is that, generally speaking, it is not in the interests of children to have repeated applications before the court concerning arrangements for their living arrangements. Litigation is not helpful to children. It is desirable that arrangements for their care be stable and so final. For obvious reasons, children are not well served by frequent displacements or being subject to uncertainty about where they will be living in future.[12]
[12] See CDJ v VAJ (1998) FLC 92-828 at 85,449
It will frequently be the case that there is much controversy between the parents concerned as to whether there has been a change of circumstances of such moment as to justify the court re-opening proceedings. This issue must be determined within the matrix of Part VII of the Family Law Act 1975. The question essentially being whether it is likely to be in the children’s best interests to allow further litigation.
In arriving at its decision, the court must look to the following matters:
·The importance or seriousness of the issues raised, both individually and where necessary collectively;
·The impact that the issues are likely to have on the best interests of the children concerned;
·Whether the issues raised relate to change or new issues, which render it necessary to revisit the earlier decision.[13]
[13] See King & Finneran (2001) FLC 93-079 at 88,367
The test is a strong one. The change or fresh circumstances must be of such significance that, once the court has become aware of it, it is left in “no doubt” that it is necessary to re-litigate the parenting issue in dispute between the parties. That is not to say, upon becoming aware of the change of circumstances, the court reaches the conclusion that there must inevitably be a change in orders previously made. That would be putting the test too strongly. Rather, the change of circumstances must be such that there is a “real likelihood” of a change.
The change can be made of component parts or it can relate to one major event. In assessing the significance of the change, I must above all remember that the purpose of the rule is to protect the children from exposure to further unnecessary litigation.[14]
[14] See King & Finneran (supra) at 88,368-9
The Full Court of the Family Court approved King & Finneran in Bolitho & Cohen.[15] The latter case concerned two children who had been eight and six when their parents had agreed that they should live with their mother in Sydney. Orders were made to this effect in 1999. The father lived in Japan.
[15] See Bolitho & Cohen (2005) FLC 93-224
In 2003, the father filed an application seeking orders that the children should live with him Japan, citing a change in the children’s wishes as the basis for his application. An expert witness supported his view.
At trial, the Judge concerned considered that there had been a sufficient change of circumstances to warrant the reopening of the issue of where the children should live.
In Bolitho, the Full Court of the Family Court approved the approach taken by Collier J in King & Finneran. In the case, the Full Court accepted that a change in a child’s wishes and the maturation of the child concerned, particularly in regards to his or her capacity to express a concluded view, were factors which, in appropriate circumstances, could amount to a change of circumstances of sufficient weight for a court to be justified in examining afresh the living situation of the child involved.
Obviously, in Bolitho the change advocated by the father was a momentous one for the children concerned. It envisaged moving from a home in the northern beaches of Sydney to a flat in Tokyo. The children concerned did not speak Japanese and had never lived permanently in Japan. In addition, it was a concern that the children’s impressions of living in Japan may have been unduly influenced by the fact that they had experienced Japan only during holiday periods.
In the period between the original consent orders and the further hearing, the children concerned had aged from eight and six years to twelve and ten years respectively. In all the circumstances of the case, the Full Court did not accept that the trial Judge had given undue weight to the children’s professed wishes and had erred in not rejecting the father’s application at the threshold to the litigation.
It is now over four years since the orders of Dawe J. Her Honour’s orders did not envisage Mr Garth living in Brisbane. That is a major change. Both children have matured in the intervening period, particularly Q.
Over the last few years, the children have become accustomed to visiting Brisbane regularly. They have formed connections with the father’s friends in the suburb where he lives. Mr Garth has re-married. The children have a significant and close relationship with her. Mrs G is expecting a child. These are significant changes, which have arisen since 2003.
Above all, the children have expressed a wish to experience what life is like living in Brisbane, for periods other than school holidays.

Ms Hope does not dispute that Q has expressed such a view, although she believes that B is more equivocal.
In addition, the proposed change is supported by an independent expert, at least on a trial basis. Dr Savage has said that it is likely to be in the children’s best interests for their views to be acceded to, albeit on a provisional basis, with them each to be given the opportunity to re-evaluate their views, in a professional setting, in the light of their experiences in Brisbane.
Dr Savage has also expressed the opinion that it may be detrimental to Q’s wellbeing if he feels that his views are being disregarded or unnecessarily impeded by his mother. Dr Savage is concerned at the implications this may have for Q’s relationship with his mother in the longer term.
In my view, the various changes which have occurred – be they characterised as changes alone or completely fresh issues – are so significant that I have no doubt that it is appropriate that they be litigated.
That is not to say the father is guaranteed of success in his application but there is a real likelihood of it, particularly on a trial basis. In addition, I think for the court not to consider the issues raised by

Mr Garth may have some detrimental consequences for Q in particular.
The issues raised are so serious that they outweigh the potential detriment to the children, which will inevitably arise from the continuation of litigation between the parties themselves. Accordingly, I am not persuaded that Mr Garth’s application should fail at the threshold.

The children’s views

The applicable legislation requires me to consider any views expressed by the children and any factors which may affect the weight to be given to those view, such as the child’s maturity or level of understanding. The legislation speaks of views rather than wishes. The latter is a more concrete concept, the former is more addressed to perceptions and feelings.[16]
[16] See Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 at paragraph 56
Accordingly, a child is not required to make a decision about what is the appropriate outcome for him or her in the particular case. Nor is he or she required to express an explicit wish as to which parent he or she wants to live with or spend time with.
However, it seems that the court is required to explore a child’s perception of what he or she feels is likely to be best for him or her. Very often these perceptions will be ambivalent and difficult to express or quantify. This is particularly so with younger children. This does not mean that a child’s view should be disregarded.
To the contrary, over time, there has been an increase in the judicial regard given to the rights of children in proceedings such as these. It is often said that children have a right to be heard. Certainly children’s views are important and requiring of being given “proper and realistic weight” rather than token regard.[17]
[17] See H v W (1995) FLC 92-598 at 81,944
It is also impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case. Matters of individual preference are idiosyncratic but no less important for that. It has been said that the process of weighing up a child’s professed view is “a process of intuitive synthesis”. What is done with those views is a matter of common sense in the overall assessment of what is likely to be in a child’s best interests.[18]
[18] See R & R: Children’s Wishes (1999) 25 Fam LR 712 at 724
Q and B are intelligent children. I accept that they were aware, in general terms, why they were coming to see Dr Savage. It was to discuss their views about spending more or less time with their father, including the possibility of living with him. I do not think that the children have been tricked in any way, certainly not by Dr Savage.
In these circumstances, I accept that both children raised the prospect of living with their father in Brisbane, without prompting by Dr Savage.
It was Dr Savage’s perception of Ms Hope that she was at times tired and stressed. Dr Savage believed that the children would pick up on this and this might be one of the factors influencing their professed view to her. Times with dad being “fun and holidays” and something of a “relief” from where they live on a day to day basis.
Certainly, I think I have to be careful about the possibility that the children may have an unrealistic view of what it will be like living with their father on a day to day basis, with all the pressures and discipline this is likely to involve. It will not be the fun of the holidays.
Dr Savage was aware of this and so indeed were the children. It was Dr Savage who raised the prospect of a trial, rather than a permanent move. Both children greeted this prospect with a sense of relief.
In my view, this indicates that the children are aware of the magnitude of the decision, which confronts them. Their preference is to see what it will be like. “To try before they buy”, if you like. This seems to me to be a considered and insightful response to the issue.
It is also clearly the case that the children were not being asked to make an assessment of something which was entirely unknown. Clearly both children have extensive experience of living with their father in Queensland, albeit during school holidays.
Dr Savage’s perception was that the children were excited about the prospect of living in Queensland and excited about the new baby. However, it was Dr Savage’s view that no-one can ever really understand such a significant move, until they experience what the change actually means. This is axiomatic.
This is particularly so with B. She does not know what it will be like to be away from her mother for extended periods of time. The prospect distressed her. However, she maintained her enthusiasm for the trial.
Dr Savage was concerned at the protracted nature of the conflict between the parties, which she described as “intense”. In such circumstances, she considered it likely that the children would be very aware of what had been going on between their parents. However, it was also her opinion that the children were travelling “reasonably well” emotionally and they had not been exposed to the worst aspects of the conflict between their parents.
Dr Savage did not think that Q was influencing B’s view. In her assessment, the children had quite separate views and needs. She described Q as being “quite sure in his own mind, as much as he can be at 11, that that’s what he wants to do…”. On the other hand, B was described as being “much more unsure”, but still wanting to give it a try but not sure if she would like to stay.
The age gap of three years, Dr Savage considered as significant developmentally. She also noted that boys of Q’s age tended to identify more with males and very often wished to have a stronger bond with their fathers.
Ms Hope specifically asked Dr Savage if she thought the children had been influenced by their father. Dr Savage’s view was that the children had most probably been influenced by both their parents.
This is not a case where the children can be expected to be oblivious of their parent’s relationship with one another and how they are likely to respond to the possible outcomes available. Nonetheless, it was

Dr Savage’s opinion that the children’s view that they would like to try living with their father was a clear and genuine desire, which was expressed sincerely by the children alone. I accept that this is so.

The likely effect of any changes in the children’s circumstances, particularly the consequences of the children being separated from their mother for the period of the trial

I cannot know, nor can the parties themselves or indeed the children, how the trial will resolve. Too a certain extent that issue can only be resolved if and when the trial is concluded. I suppose I must make some form of assessment of whether the potential detriments outweigh the likely positives.
Q, the more mature child, is the more enthusiastic about it. However, given his diffidence, he may experience the greater difficulty in adapting to a new school. B, who is more anxious about the move, being more outgoing, is likely to deal with it more easily.
Undoubtedly however both children, but particularly B, will miss their mother and friends in Adelaide. However the trial advocated by

Dr Savage is “relatively short”. If it goes wrong, it seems that it could be undone. Certainly, Mr Garth said he would return B to Adelaide if she became distressed at missing her mother. I do not disbelieve his assurance.
Although obviously the children have never experienced living with their father for more than two or three weeks, during school holiday periods, the trial does not envisage a transition to an environment completely unknown to the children. Q and B have a strong and loving relationship with both their father and Mrs G. They know the father’s house in Brisbane and have made friends in the area. Too a large extent, they know what they are in for.
In my view, considerations of this kind considerably discount the likely negatives of the trial and significantly reduce the likely prospects of the children being emotionally traumatised for no good reason. On the other hand, there is a good reason for the trial, the children are expecting it and are relieved, as Dr Savage has explained it to them, that is has a built in safety net. The children can change their minds about it and return to Adelaide, if they wish.
Whenever the trial occurs, be it in the last term of 2007 or the first term of 2008, it will be disruptive for the children’s education. They will have to start at a new school, potentially with the prospect of being there for only one term. Accordingly, they will lose a sense of continuity with their friends and teachers at Sxxx’. There may well be differences in curriculum.
However, at this stage, I do not think that these obvious difficulties outweigh the potential benefits of the trial. The greatest benefit is that it is what the children want. For reasons of personal preference, the children want to see what it is like to live in Brisbane for a period longer than a school holiday. They have a natural and understandable human curiosity about it.
One of the major negatives of not allowing the trial is that Q may well become disaffected by such a decision. He will feel he has not been listened to. In the longer term, Dr Savage believes that Q, as he got older, was most likely to “vote with his feet [and] just go” to Brisbane.
Accordingly, Dr Savage thought that Ms Hope risked having her relationship with Q affected by her refusal to allow him to try living with his father. Dr Savage thought B would be more accepting of such a decision, because of her greater youth, but she also thought that B would be somewhat resentful at not being given the opportunity of trying life with her father.
Mr Garth, in the short term, is willing to bear the financial costs of the trial, including the expense of Ms Hope coming to Queensland on two weekends during the trial period. This will ease the possibility of the children becoming distressed. It will also alleviate the financial pressures on Ms Hope.

The outcome least likely to lead to the institution of further proceedings

It is my perception that both parties have had ready recourse to litigation, in the past, to resolve issues between them regarding the care of Q and B. Whatever is the outcome of these proceedings, I fear that this mutual propensity remains. Whatever is the outcome, one of the parties will feel disaffected and hard done by.
As I remarked earlier, it seems there has been an uneasy truce between the parties for the last couple of years. The orders made by Registrar Kelly (as she then was) have largely been successfully implemented. There was much truth in the registrar’s observations, when these proceedings were transferred to this court, that what remained in dispute between the parties was about “contact issues” only. All this has changed with Dr Savage’s report, upon which Mr Garth has seized with enthusiasm, for obvious reasons.
There is a great temptation to see if, by rejecting Dr Savage’s recommendations, there could be a return to the somewhat uneasy truce between the parties, which has prevailed since around 2005. But is this realistic? I suspect not. Whatever I do in this case, I think I would be naive to think there will not be an appeal. Dr Savage has let “the genie out of the bottle” with the inevitable consequence that the mechanisms of litigation have been reengaged between the parties.
The particular genie is the views of the children concerned. Undoubtedly a matter of considerable controversy between the parties, although perhaps less so, so far as Q is concerned. I am fearful that whatever is the outcome of these proceedings, the parties will want to re-litigate the issue of the degree of weight to be given to the views of the children in the case and how those views are to be balanced against consideration of stability in respect of arrangements for their care.
The purpose of this consideration is to protect children, so far as is possible, from the deleterious effects of litigation concerning them. On the other hand, it is important that children, particularly older children, feel that they have a say in the outcome of proceedings concerning them and, if they wish, can influence arrangements for their care. Considerations of this kind clearly informed Dr Savage’s report, particularly so far as Q was concerned.
Accordingly I do not believe there is an ideal outcome, so far as this consideration is concerned. Sadly the dominoes of further litigation are likely to fall against each other, whatever is the outcome.

Conclusions

Given the intractable nature of the conflict between the parties in this case and the fact that it is also one which certainly involves one child (Q) who is of mature years and who is expressing a strong view, which if given effect to would involve a change of long standing arrangements for his care, I think that this is a case, which warrants the appointment of an independent children’s lawyer.[19]
[19] See Re K (1994) FLC 92-461
I appreciate that neither party has sought such an appointment. However, as I have come to the view that it is in the children’s best interests that the proposed trial go ahead, I think such an appointment is warranted. It will assist the children to have a sense that their views are important and are being canvassed by the court. More importantly, it may protect them from the deleterious consequences of the litigation regarding them, particularly because the trial must envisage the adjournment of the case and the continuation of the proceedings.
Above all the independent children’s lawyer can ensure that the trial takes place in the way envisaged by the court and Dr Savage, as outlined by her to the children. That is with the assurance that the children will be consulted again after the trial has been completed, about their perceptions of it and more importantly what they wish to occur in future.
Pursuant to section 68LA(5) of the Family Law Act, independent children’s lawyers are required to act impartially when dealing with the parties to proceedings and ensure that any views expressed by the children concerned are placed before the court. They are also required to minimise any trauma which may be occasioned to the children involved.
In my view this will ensure that the trial takes place with the safety net described by Dr Savage and the best interests of the children protected in future.
Before making any parenting order, I am required to consider the presumption arising from section 61DA. Neither party raises issues of family violence or abuse and neglect. Accordingly, the question arises as to whether it would be in the children’s best interests for the presumption not to apply.
Both Ms Hope and Mr Garth are good parents, who are interested in and capable of providing care for their children. The only ground for not applying the presumption would appear to be their poor parenting relationship with one another.
I am not persuaded that this is a sufficiently sound reason for the presumption to be rebutted. Clearly, whatever criticisms the mother has of the father, he has been consistently involved in the lives of both children, both before and after the parties separated. Q has lived with him for extended periods of time.
For the foreseeable future, both parties will remain vitally interested in all aspects to do with the care of these children, particularly issues to do with their long term development.
“Major long-term issues” is an expression defined within the Family Law Act. It encompasses matters of education, religious and cultural upbringing, health and changes to living arrangements that make it significantly more difficult for the child concerned to spend time with one or other of his parents.[20] This latter aspect is of some moment to the parties in this case.
[20] See Family Law Act at section 4
An order for equal shared parental responsibility requires the parties to it to consult each other regarding decisions to be made regarding long-term issues for the children concerned and to make a genuine effort to come to a joint decision as to these issues. Although I have reservations about the parties’ capacities in this regard, given their past level of involvement with the children, I would think it would be retrograde and contrary to the spirit of the applicable legislation, if one parent was to be imbued with more parental authority than the other.
Although the parties’ parenting relationship is currently very poor and is likely to remain so for the indefinite future, I am not persuaded that this is the sort of case where it would be in the children’s best interests for one of their parents to be excluded from having equal shared parental responsibility for them.
In any event, pursuant to section 65DAE, parents do not have to consult on matters which are not concerned with major long-term issues, when the children are spending time with one or other of them. For these reasons, I propose to make an order that the parties have equal shared parental responsibility for Q and B.
In this case, given the obvious geographical constraints, which exist, it is not possible for the children to live either in an equal time arrangement or for substantial and significant periods of time for both their parents. However, to my mind, this is not sufficient grounds to disallow the trial.
The South Australian school holidays this year start on 28 September 2007 and conclude on 15 October 2007. In Queensland the school holidays start a week earlier and school recommences on 8 October 2007. Regrettably, this judgment has been delayed by a week, largely by reason of the late delivery of submissions by the parties.
The time frame is short. I have not been advised as to what arrangements the parties have made for the forthcoming school holiday period. In particular when the father’s week will fall. Obviously I hope it is in the second half. I hope the parties have factored this into their deliberations, pending the outcome of these proceedings.
Dr Savage can see the children again on 18 December 2007 and up-date her report in light of the children’s experiences of the trial. I can allocate time to resume the hearing of the matter on 21 January 2008 at 10:00am. I hope the independent children’s lawyer appointed can confer with the children in the intervening period, when the children are in Adelaide over Christmas time.
I will make order as Dr Savage recommends. These will require an undertaking from Mr Garth not to seek child support from Ms Hope. After the trial has finished the children will spend the first four weeks of the Christmas holiday with their mother and the final two with their father. Thereafter it is implicit that the orders of 8 March 2005 will be re-engaged until other orders are made, if necessary.
The most important factor, which has influenced me in reaching this conclusion that the trial should be allowed, is that it is the outcome which accords with the children’s views. For natural and understandable reasons, the children want to give life with their father in Queensland “a try”. This feeling is particularly pronounced in Q, who identifies with his father and lived with him, in a shared care arrangement, for many years.
The children’s views are important. The legislation and the relevant authorities emphasise their importance. Both children have a close and loving relationship with their father. His home in Brisbane is comfortable and familiar to them. Accordingly, the trial does not constitute a complete jump into the dark. At the end of the day, it will take up a school term only. Its implications and what should happen next can be assessed when it is completed.
Although, it is a very long way from Adelaide to Queensland, I do not think that the trial can be characterised as a rash or ill-conceived experiment. If the children live with their father only for a term in Queensland, their relationship with their mother will not be substantially altered. I have also endeavoured to ensure that the trial takes place in the least disruptive manner possible. There will be the safety net of a further family report and the appointment of an independent children’s lawyer.
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 two hundred and twenty-five (225) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: P Smith

Date: 28 September 2007