Giffard and Giffard

[2017] FCCA 436

FEDERAL CIRCUIT COURT OF AUSTRALIA

GIFFARD & GIFFARD [2017] FCCA 436

Catchwords:
FAMILY LAW – Children – relocation – past difficulties with time arrangements, children’s relationship with father at risk if relocation occurs.

Legislation:

Family Law Act 1975, s.60CC

Cases cited:
Morgan & Miles [2007] FamCA 1230
Jones v Dunkel (1959) 101 CLR 298

Applicant: MR GIFFARD

Respondent: MS GIFFARD

File Number: SYC 3649 of 2014

Judgment of: Judge Boyle

Hearing dates: 18, 19 October and 9 November 2016

Date of Last Submission: 9 November 2016

Delivered at: Sydney

Delivered on: 10 March 2017

REPRESENTATION

Counsel for the Applicant: Mr Maurice

Solicitors for the Applicant: McDonell Milne Toltz Family Lawyers

Counsel for the Respondent: Ms Stolier

Solicitors for the Respondent: Sullivan Fernan Lawyers

ORDERS

1. That the Father and the Mother have equal shared parental responsibility for the two children of the marriage, namely X born (omitted) 2006 and Y born (omitted) 2007 (“the children”).

2. That the children live with the Mother.

3. That the children spend time with the father as follows:-

   (a)During school terms from after school on Friday to before school on Tuesday in each alternate week;

   (b)For one half of all the term school holiday periods being the first half of the school holidays in even numbered years commencing after school on the last day of the school term, and ending at 6:00pm on the middle Saturday of the holiday period, and for the second half of the school holidays in odd numbered years commencing at 6:00pm on the middle Saturday of the holiday period and ending at the commencement of the first day of the school term.

   (c)During the Christmas school holiday periods in even numbered years commencing after school on the last day of the school term and ending 6 January at 4pm, and in odd numbered years commencing 6 January at 4pm and ending at the commencement of the first day of the school term.

4. That the children spend time with the parties on occasions of special significance as follows:-

   (a)In the event that the children are not otherwise living with the Father on Father’s Day pursuant to these Orders, then the children spend time with the Father on the weekend which includes Father’s day from 6.00pm on Saturday until 6.00pm on Sunday.

   (b)In the event that the children are not otherwise living with the Mother on Mother’s Day pursuant to these Orders, then the children shall live with the Mother on the weekend which includes Mother’s Day from 6.00pm on Saturday until 6.00pm on Sunday.

   (c)With the Father on the Father’s birthday as agreed or in default of agreement from 9:00am until 6:00pm if the birthday falls on a weekend, or from after school until 7:00pm if the birthday falls on a weekday.

   (d)With the Mother on the Mother’s birthday as agreed or in default of agreement, from 9:00am until 6:00pm if the birthday falls on a weekend, or from after school until 7:00pm if the birthday falls on a weekday.

   (e)On each of the children’s birthdays as agreed or in default of agreement, with the parent with whom the child is not living on their birthday, from after school until 7:00pm if a weekday or from 9:00am to 3:00pm, if the birthday falls on a weekend.

5. That for the purposes of these Orders, on occasions when a changeover does not occur at school, the parent with whom the children are to be spending time shall collect the children from the residence of the other parent at the commencement of their time and shall return the children to the residence of the other parent at the conclusion of their time with the children.

6. That the parent who has the children in their care shall ensure the children telephone the other parent each Monday at 7pm, and shall facilitate the children telephoning the other parent at any reasonable time the children may request.

7. That the parties shall communicate with each other with respect to any issues concerning the care, welfare and development of the children by email only, except in the case of emergency.

8. That each of the parties keep the other informed of their telephone numbers (including landline and mobile) and addresses at all times.

9. That the Mother be and is hereby restrained from relocating the children’s residence outside of the Sydney Metropolitan area.

10. That each of the parties authorise the children’s schools to provide copies of all school reports, notices, information, newsletters and other school communications directly to each party.

11. That each of the parties may attend all events at the children’s school to which parents are invited.

12. That each of the parties are hereby restrained from denigrating the other or the other’s family in the presence or hearing of the children.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3649 of 2014

MR GIFFARD

Applicant

And

MS GIFFARD

Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings with respect to the two children of the parties, X, who is now aged 10 years, and Y, who is now aged 9 years. The mother wishes to relocate with the children to Melbourne. The father opposes the mother’s application.

The Evidence

1. Both parties have provided case outline documents setting out the material on which they seek to rely. Additionally the parties tendered various documents, as are set out in the list of exhibits.  

The Issues

1. At issue is whether the boys will be able to maintain their relationship with their father should they relocate with their mother to Melbourne. Resolving this requires a determination of the support the mother has provided for the boys in maintaining this relationship in the past, and consideration of her support in the future. The mother’s ability to find employment and afford accommodation in Sydney if she remains in Sydney is also an issue. 

2. The mother has made allegations to the Police that the father has abused the children. The mother’s involvement of the Police in the lives of the children and whether that was reasonable is an issue.

Parties’ Proposals

1. The mother made various proposals during the course of these proceedings for the children to spend time with the father if she resides in Melbourne, as referred to below. Her final position was that the children should have time with the father on two weekends each school term, and for one half of the school holidays.

2. The father’s proposal is that the children reside with the mother in Sydney and spend time with him from Friday to Tuesday in one week, and Thursday night in the alternate week. 

Background

1. The father is aged 44 years; the mother is aged 49 years. The parties were both residing in Melbourne at the time they met, and commenced cohabitation there in (omitted) 2001. They married in (omitted) 2003.

2. The two children were both born whilst the parties were living in Melbourne. The parties moved to live in Sydney in 2011. There are slightly differing versions of how that came about but I accept that it was regarded by the parties as a fresh start. Ultimately this was not successful, and the parties finally separated on 23 March 2013.

3. The children have attended primary school in Sydney, and the majority of their lives have been lived in Sydney.

4. The children have lived with their mother since separation, and spent time with the father. Each of the parties has a child from a prior relationship who lives in Melbourne. For the father that is Mr M, who is now aged 18 and has just completed school in Melbourne. For the mother that is Ms H, now aged 25. Ms H lived with the parties up until about 2008. Both parents have a good relationship with their respective older children and see them regularly. X and Y enjoy good relationships with both of their older siblings.

5. The father has been in a relationship with Ms J since 2014. The children were introduced to her at the beginning of 2015. She has 3 children aged 8, 11 and 14. The father has commenced a business in Sydney as an (occupation omitted).

6. The mother has a sister residing in the (omitted) suburbs of Sydney. Otherwise her mother and another sibling live in Melbourne.

7. Separation was extremely acrimonious. Unfortunately, the parties have not established a civil relationship since that time.

Involvement of New South Wales Police

1. Reports by the mother to the police commenced within two weeks of separation, and continued to 2014[1]. As is clear from the tendered material produced on subpoena by NSW Police, the mother’s complaints raise serious issues of physical and sexual abuse of the children by the father. Most of these complaints were not repeated by the mother in affidavit material to this Court, nor to Dr G who prepared the expert report. The complaints are in contrast to the mother’s evidence that the children enjoy a good relationship with their father, and wish to spend time with him.

   [1] Exhibit F4.

2. On 28 May 2013, the mother made a long and detailed complaint to the police about conduct of the father. Set out below in summary form are the salient details of the complaint.[2]

   [2] Exhibit F4.

3. In 2007 when she was pregnant with Y, the father was unfaithful, and used prostitutes. In about March 2009 he kissed two men at a wedding, and told her that he had some cocaine and taken one of the men’s telephone number.[3] They separated for about three months after this incident, and periodically thereafter.

   [3] Mother’s affidavit filed 12 October 2016, para 81.

4. The father has “inappropriately touched” the boys: at bath time he called to the boys “Come and wash your bottoms,” and washed the boys’ bottoms very roughly with his fingers. When she said he should not be so rough, and not to stick his fingers in the boys’ bottoms as “it will hurt them”, the father said “I’m just cleaning them properly. They need their bottoms washed.” She felt very uncomfortable, and at times felt sick.

5. There were occasions when there was bruising on the children’s legs from the father holding their legs too tight when he was changing nappies. She asked him to stop this and he did.

6. The children at times went into the lounge room to get dressed after a bath. The father asked the boys to bend over to touch their toes while they were nude. She yelled at him about that. He told her he wanted to see if the boys could touch their toes. This made her feel sick.

7. The father frequently walked around naked after a shower, including in the children’s rooms. She always told him not to do so in front of the children.

8. On Saturday nights the children were allowed to sleep in the lounge room on a fold-out bed and watch television. The father would get into bed with them, hug them, and wrap his legs around them. This made the mother feel uncomfortable.

9. Sometime in January 2013 the mother says she walked into her bedroom and saw the children behind her bed without pants on. One of the boys was crouching down kissing the other one’s penis. When she asked what they were doing, they said, “Just kissing each other’s doodle.” The mother was concerned that the boys may have seen pornography, as the father watched pornography, and sometimes left it up on the computer screen.

10. In about 7:30am Friday 22 March 2013 she woke, and noticed the father had not been home the night before. She decided to separate.

11. Since he moved out he has not seen the children on a regular basis. He telephones and makes demands, yelling and abusing her. She is concerned about him taking the children overnight as he will not tell her where he lives, and she is concerned that he is living in a studio apartment, which is not appropriate for the boys.

12. The police note that the mother did not appear to have any fears for her or her children’s safety. Her only concern was to ensure that the father was not residing in a studio, so the children have their own room. The police referred to the mother being “very determined for the father not to have any access with the children”. After questioning her numerous times about this she mentioned the allegations concerning the father and the children. The police asked why she had not reported any of these incidents in the past. She said, “I’ve always been around watching him and the children. Now that we have separated I don’t know what he’s doing with the children without me around.”

13. The mother told police the father had shown signs of mental illness including mood swings and possible drug addiction, and she felt intimidated by him and scared. The police noted that they do not hold any fears for her due to inconsistencies in her statement. The police officer recorded that she is making a report as she is commencing family law proceedings.

14. The mother refused to sign the statement taken by the police. She said she was concerned that the father would become upset if the police took any action. The mother left without signing the statement.

15. The mother attended the police station again the following day. She wanted to add more to the statement, but still did not sign it. She told the police the allegations she had made about the children would be very hard to prove. She said she would attend the police station sometime next week regarding the statement.[4]

    [4] Exhibit F4.

16. On 3 June 2013 the father spent time with the boys by agreement. The mother asked him not to take the children to his home. After the boys were returned, the mother contacted the police to report that when the father returned the boys, he used the computer and her telephone. She told the police all her messages and some of her contacts had been deleted.[5] The father was not cross-examined on this issue.

    [5] Ibid.

17. The mother raised with the police that on either 10 or 12 February 2013 the father was going out to have a drink with work colleagues, and yelled and screamed at her. X grabbed his leg to stop him from leaving, and the father kicked his leg so that X smashed his face on the couch. When cross-examined, she said she thought X told the police about this in the course of the Joint Investigation Response Team (“JIRT”) interview. I note that the mother makes no reference to that incident, nor to any JIRT involvement, in either of the affidavits relied on by her.

18. The mother did not advise the father that JIRT interviewed both children in August 2013. When cross-examined she said that the interview occurred because the father took the boys out of school. It is worrying that the mother did not let the father, nor the Court, know that had occurred.

19. I do not accept that the father has hurt X. The mother made no reference to this in her evidence filed in these proceedings, and it is inconsistent with her evidence about the boys’ relationship with their father, and the time arrangements she proposes for them.

20. The allegations related to use of prostitutes in 2007[6], and homosexual conduct at a wedding in 2009[7] appear in the affidavit of the mother. The father concedes that he used a prostitute during the marriage. Otherwise none of the allegations detailed by the mother to the police on 28 May 2013 appear in any affidavit relied on by her in these proceedings, nor were made known to Dr G.

    [6] Mother’s Affidavit filed 12 October 2016, para 50.

    [7] Mother’s Affidavit filed 12 October 2016, para 81.

21. The mother has been prepared to make baseless allegations to the police against the father about his conduct towards the children both of a sexual nature, and involving family violence. The mother has caused the boys to be interviewed unnecessarily by JIRT. The mother did not disclose to the father, nor the Court, the extent she had involved the police with the children.

Time between father and children following separation

1. The mother says that the father did not ask to see the children following separation; he suggested his one-bedroom studio apartment was not appropriate for overnight time with the children[8]. On 15 June 2013 she says she suggested that the father spend time with the children weekly, even if it did not include overnights. She says they agreed on Tuesday evenings, and that she would leave the home for him to spend time with the children there. She said the first visit went well. On the second visit the father was late by a few hours, and did not interact with the children. Thereafter he did not attend, and he often asked to change arrangements.

   [8] Mother’s Affidavit filed 22 December 2014, para 22.3.2.

2. The father was not cross-examined about these incidents nor generally about his attitude to spending time with the children following separation. It is his case that he tried to negotiate time arrangements with the mother, including making arrangements for counselling requested by her, however, the mother would not attend.[9]

   [9] Father’s Affidavit filed 5 October 2016, para 31 and 32

3. The father says from separation in March 2013 until December 2013 the mother prevented him from spending regular time with the children. There are a number of text messages in evidence[10] where attempts by him to make arrangements for the boys were not responded to favourably by the mother.

   [10] Ibid, Annexure B.

4. The evidence of email and SMS exchanges between the parties suggest that neither party communicated well following separation. On 23 April 2013, the parties made an attempt to organise time. The mother sent an SMS in response to a request from the father:

   No, does not suit. Need to C counsellor B4 U have my boys, not staying in bedsit.

   She goes on to say:

   U must organise a counsellor. I will not be bullied by you. I need two weeks notice 4 you to see boys for a play date. You cannot have them overnight until you have adequate sleeping arrangements. You could have at least got a one bedroom not in (omitted). Typically, you just selfishly pick something that was not taking into consideration the boys[11].

   [11] Ibid.

5. The SMS messages show the father asking for time, or to speak to the children, without agreement from the mother.

6. The father says there were about five occasions he was able to see the children between March 2013 and January 2014. He says that the children were crying and distressed when he left, and asked him to stay. This is consistent with reports made by the mother to the police.

7. On 9 November 2013 the mother made a complaint to the police that the father had come to the house unannounced to see the children. She said the children were happy to see him. The police spoke with the children who confirmed they were happy to see their father.[12] It is unclear why the mother involved the police.

   [12] Exhibit F4.

8. On 20 January 2014 the mother reported that the father came to the home without notice, when she refused to speak to him on the telephone.[13] He asked to see the children; the mother refused. The children ran out the back door, and around the side of the house to see their father.

   [13] Ibid.

9. On 19 January 2014 at about 6:30pm the father arrived unannounced at the mother’s home with Mr M, then aged 15. He asked to take the boys out to the park for an hour so they could see their brother. She declined as she was cooking dinner, and instead they played in the backyard.

10. The father walked out the front of the house with the boys, saying he was taking them to the beach for an hour. The mother refused. The boys became upset saying they wanted to spend time with their father, and started to cry and hit her in the legs. The parties had an argument and the father called her a bitch.[14]

    [14] Ibid.

11. On 16 December 2013 the father’s solicitor wrote to the mother to arrange time over the school holidays, and during 2014.[15] There was no response to that request. Text messages sent by the father over the Christmas period, including on Christmas Day, demonstrate the difficulties for the children in having any communication, or contact with their father.[16]

    [15] Father’s Affidavit filed 5 October 2016, Annexure C; Annexure H.

    [16] Ibid, Annexure D.

1. Attempts were made to arrange ongoing time between the father and the children in January 2014, after which there were some occasions of weekend time. That ceased following the weekend of 15 February 2014, and the boys did not see the father until 12 April 2014, following mediation with Unifam. It is clear from the evidence that the father was seeking time with the boys, the boys wanted to see the father, and the mother was not facilitating it.

2. Arrangements again broke down after the April 2014 school holidays. The father commenced proceedings on 16 June 2014. He did not see the children from 28 April 2014 until 7 July 2014.

3. There was an agreement between the parties for time between the children and father over the October long weekend. The unchallenged evidence of the father is that the arrangements were varied by agreement, so he would deliver the children to school on 7 October 2014 at the commencement of term.

4. The father asked the mother about collecting the boys’ school bags and uniforms. The mother refused. The father and his mother drove the children to the home, and remained outside while the boys entered the house. The mother was angry. I accept that she said to the paternal grandmother “[you’re] a fucking old tart… your son is a liar. You don’t know what is going on up here. Like father, like son.” This confrontation took place in front of the boys. The mother carried X inside. Y remained with his father and grandmother.

5. The mother then came out with X, and an ice-cream for each of the boys. She suggested she take them to the beach. The boys wanted to stay with their father and left with him.

6. On 8 October 2014 the mother filed a private application for an Apprehended Violence Order (“AVO”) in the Waverley Local Court. She withdrew the application when the matter was before the Court on 23 October 2014 on the father giving an undertaking, without admission, that he would not attend at her home.

7. Orders were made on 17 November 2014 for the children to spend time with the father during school terms from after school on Friday until before school Monday each alternate weekend, and each other week from after school Thursday to before school Friday. The orders also provided for half of all school holidays, and time on special occasions.

8. Unfortunately the consent orders did not resolve the issue of the children spending time with the father. Both parties complain about the other’s compliance with orders.

9. On 6 March 2015 the mother and Ms H came to the father’s home to collect the children during weekend time. The father disagreed with the children being taken, and asked her to leave. When she did not do so he called the police. The police requested the mother and Ms H leave the premises.

10. The mother complains that the father is inflexible with respect to time arrangements. The father complains that the mother seeks to vary times on short notice and without reason. By way of example, there is a series of emails annexed to the father’s affidavit[17] commencing 20 March 2015. The extent of the party’s inability to communicate effectively is demonstrated in this exchange. It also demonstrates the mother preventing the boys seeing the father when the arrangements do not suit her.

    [17] Father’s Affidavit filed 5 October 2016, Annexure U.

11. The mother advised that she wished to go to Melbourne on 6 April, during the school holidays, to attend an exhibition of Ms H’s work. She asked the father to care for the boys. The father responded that he had organised time off work to coincide with the holiday time specified in the orders, and could not change that. In response to a further request from the mother, he advised he was happy to look after the boys for extra time, however he needed enough notice to organise work arrangements so that he could do so. He asked for the specific dates.

12. The mother then complained that he would not care for the boys outside of the orders, amongst other issues. The father reiterated, “Do you want me to have the children while you go to Melbourne or not? I’m happy to have them. If so, please tell me the dates.” The mother suggests he have the boys from 3 April to 10 April, and she have them for the second week of the school holidays. The father was due to have the boys in the second week of the holidays, and did not want to vary the orders. He advised he was happy to have them for additional time.

13. The mother emailed on 31 March 2015[18] stating that he was incapable of caring for the children without assistance, and that the arrangements for the holidays needed to be reconsidered. The father replied that he was unaware of what additional time she wished him to have with the boys, and therefore expected time in accordance with the orders, for the second half of the holidays commencing 11 April 2015. The mother took the children to Melbourne so that the father spent no holiday time with them, despite orders to the contrary.

    [18] Father’s affidavit filed 5 October 2016, Annexure V.

Dr B's Evidence

1. Dr G provided a report, and was extensively cross-examined. The father provided the boys with a mobile phone in September 2015 to assist communication with him. Dr G set out X’s understanding of telephone communication:

   He was free to phone Ms R when in Mr Giffard’s care, and is allowed to use Mr Giffard’s phone to do so. When in Ms R’s care, X reported that while Mr Giffard has given him a mobile phone, but Ms R keeps it away from him;[19]

   [19] Family Report prepared by Dr G dated 7 December 2015, para 72.

2. This is consistent with the boys’ comments to the father, that the mother puts the phone on top of the fridge. Dr G’s evidence is that for both boys it was clear that when they are with their mother it is her time, which their father was not to invade. Dr G referred to the boys being free to communicate with their mother whilst with their father, as “not a strong push from the father to ring the mother, but no active restrictions.”

3. Unfortunately there is nothing in the material that suggests there has been an improvement in the relationship between the parties, their ability to communicate, or their appreciation of the boys’ needs as separate from their own. In particular it appears that the mother has involved the children in the parents’ dispute to the extent that X gave this account of his parents separation to Dr G:

   Mum thought dad had an affair with Ms J (Ms J), they started fighting then dad left. He moved to (omitted).[20]

   [20] Ibid para 70.

4. Dr G records Y’s understanding:

   Mr Giffard had stolen all of her money and that he spends that money on dogs and Ms J.

   Y reported that the father should give mum all the money back in her bank account. [21]

   [21] Ibid para 70.

5. Dr G referred to longitudinal studies, such as that of McIntosh and Smythe, looking at the effects on children of relocation in high conflict families. Dr G considered the risks of long‑term mental health problems for children when any of the factors of high level conflict, relocation and stressors on the care environment are present. The impact of these factors is multiplied when more than one is present. The circumstances for X and Y are, in Dr G words: “bringing together all the right factors for a perfect storm”.

6. It is noteworthy that the parties between them have been unable to organise communication via Skype or face time between the boys and their father. Each blames the other for this.[22] The father has recently provided the boys with an iPad which may assist, but no face time or Skype has yet occurred using that device.

   [22] Exhibit F3.

7. Dr G said the mother will be upset if her application to relocate is unsuccessful, and it will “only crystallise the conflict further”. He referred to the boys facing “a lose, lose, lose, on whichever view you take”. He opined that it is likely there will be ongoing conflict between the parties whether the boys remain in Sydney or move to Melbourne, as the conduct of the parties to date was the most reliable predictor.

8. Dr G referred to conflict witnessed by the children (the specific example was the incident involving the paternal grandmother in October 2014) as having the potential to be a life-long memory, adding:

   The children are of an age to know they are being battled over; that has an impact on them.

9. Dr G was cross-examined about the problems for children at the centre of conflict between their parents. His evidence is these parents should be able to appreciate and consider that the children are made up of half of each parent, so that if their father is run down by their mother, then it is running the child down. He referred to this having a profoundly damaging effect on children, and that it was particularly damaging for boys with respect to their father.

10. The children at their age and stage of development do not understand what changes relocation would entail. That is clear from the explanation given by Y to Dr G about alternate weekends because Melbourne and Sydney are about an hour apart. Relocation from Sydney to Melbourne will necessarily result in less time between the children and their father.

11. With respect to issues raised by the mother about sexualised behaviour of the children, she told Dr G that the father had viewed gay porn, but did not say it had been viewed by the children. Dr G regarded the boys’ sexualised play in January 2013 as being exploratory play given their ages, rather than coming from something inappropriate in their father’s conduct. I accept his evidence, particularly as there is no other example of it occurring.

12. With respect to the father’s application for additional time with the children to include one night in the ‘off’ week, Dr G was of the view that fewer changeovers would be more suitable for the children. If they remain geographically proximate, another night could be added to the father’s weekend time, so that there were not two changeovers each fortnight for the children. He was concerned changing configurations of time may exacerbate the conflict between the parties, particularly if it results in a financial detriment to the mother.

13. Dr G referred to the impact on children seen over decades of research into “fatherless” homes, that is, where father figures are absent. That research suggests a consistent father figure is critical, particularly for young male development, and their later relationships and interactions with women. This research, although not specifically examining separated families, is relevant as there is a greater risk in relocation cases of children losing their relationship with their father.

14. Dr G viewed these children as at the more sensitive/anxious end of the spectrum of personality, which is significant. He opined easy-going children tend to manage change better, including relocations, than sensitive/anxious children.

15. During the interviews when Dr G proposed seeing the children with their father, X asked him to inform the mother before that happened.[23] Dr G took this as X seeking permission from his mother. It is worrying that in the context of an assessment, with both his parents participating, he felt it necessary to do so.

    [23] Family Report prepared by Dr G dated 7 December 2015, para 75.

16. With respect to time arrangements with the father, Dr G thought that it was possible to move the father’s time with the children from four nights to five nights a fortnight. However, the assimilation of the children into a separated family is a matter he was not able to take into account having not seen these children with Ms J’s children. The father’s proposal is to live with Ms J in the near future.

17. Dr G stressed in his oral evidence that he had discussed at length with the parties things that they needed to do to make arrangements work for their children. That is, he encouraged them both to attend a Parenting After Separation program, and to attend mediation together.

18. It is clear, having regard to his evidence as a whole that he was not in favour of the relocation of the children.

The Law

1. Relocation cases are not a specific category of parenting cases under the Family Law Act and no specific provisions apply. The Court is required to apply section 60CC to determine the child’s best interests, and examine the competing proposals of the parties. The court is not bound by the proposals the parties put. The mother does not bear any onus, nor is she required to provide compelling reasons for her desire to relocate.[24]

Primary considerations

[24] Morgan & Miles [2007] FamCA 1230.

Section 60CC(2) The primary considerations are:

(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

1. The mother has been the primary carer of the children throughout their lives. Dr G commented on a very warm and loving relationship between them which is no doubt of benefit to the children.

2. The children have a meaningful relationship with their father which is of benefit to them. It is significant in this matter that both children have expressed to their mother a desire to spend time with their father. The mother is able to acknowledge that. Despite this, there are many occasions referred to where she has been unable to facilitate such arrangements for the children which she agrees would benefit them.

3. There have been significant gaps for the children since separation when they have not spent time with their father. In her evidence the mother took no responsibility for that. Should the children relocate to Melbourne there is a real risk that they will lose a meaningful relationship with their father as the mother has so far done little to promote it.

4. The mother’s preparedness to make false reports to the police about serious misconduct of the father towards the children is extremely troubling. It poses a real risk for the children losing their relationship with their father which is increased if the children are not in the same city as the father with the difficulties of transport and arrangements between parents who do not communicate.

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. These children have not been exposed to abuse, neglect, or family violence. The mother has raised allegations about the father’s conduct at times with the police as referred to above and then not pursued the allegations.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.

1. Neither of the children are of an age or maturity where their views are determinative of the matter nor can be given great weight. They do not understand the significance of moving to live in Melbourne, particularly how it would impact on their relationship with their father. It is clear from Dr G’s report that Y believes that Melbourne and Sydney are about an hour apart and they can continue to see their father fortnightly if they move.

2. Although the boys have travelled back and forth between Melbourne and Sydney to visit their extended families, they have not experienced this on a regular basis to maintain a relationship with their father. Both boys have clearly expressed the view that they want to be able to see their father and spend time with their father.

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

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

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

1. The children have a close relationship with each of their parents. They also have significant relationships with their extended families, particularly their older siblings Ms H and Mr M who live in Melbourne. Ms H and Mr M have spent time with the children in Sydney, and in Melbourne.

2. The mother says if she relocates it would be possible for the children to have regular communication with family members and their father. To date she has not facilitated communication between the children and their paternal family in Melbourne including their brother. On one occasion in the three years since separation the mother emailed Mr M, offering for him to take them out on a weekend whilst he was in Sydney.

3. The mother has not encouraged the boys to telephone their paternal grandmother or Mr M or any other paternal family member. She gave evidence of the boys initiating a telephone call recently with a relative in Melbourne. They did this in their bedroom and without reference to her.

4. I am not satisfied that the mother would be flexible in encouraging a relationship with the father by telephone and other means if she relocates to Melbourne.

5. The children have been able to communicate with their mother when with the father.

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

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

(ii) to spend time with the child; and

(iii) to communicate with the child.

1. The mother has participated in all of these matters for the children at times to the exclusion of the father. For example, she enrolled the children in school in Melbourne without proper consultation with the father.

2. Y required treatment for a squint. The mother had medical advice that he should have an operation. The father had medical advice to try glasses and other options prior to an operation. The mother simply arranged for the operation without the father’s consent.

3. It is clear from the evidence referred to that the father has made efforts to participate in making decisions and spend time with the children and has been thwarted by the mother.

Section 60CC(3)(ca) the extent to which each of the parents has fulfilled, or failed to fulfil the parent’s obligation to maintain the child.

1. The father makes child support payments in accordance with an assessment. The mother meets the needs of the children otherwise and has very limited financial capacity to do so. The mother says her financial situation would be improved by moving to Melbourne as rents are cheaper. Given the costs that would be incurred for flights and the likely reduction in child support as a consequence it is not clear how the mother reaches this conclusion.

2. The mother says she is assisted by $200 per week from her family and that they cannot continue to provide this help. There is no evidence from any family member about help provided or the conditions of such help.

3. It is not clear that the mother’s financial position would improve if she resided in Melbourne. Her evidence is she has better contacts to pursue her career as a visual artist in Melbourne. There is no evidence provided by the mother that details those contacts nor from any relevant people in support of this contention.

4. The mother’s evidence is that she and Ms H are developing a business together. There is no particularised evidence available about that proposal. The mother gave no evidence of steps taken by her to seek employment in Sydney or Melbourne. ^[25]

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

[25] Jones v Dunkel (1959) 101 CLR 298.

(i) either of his parents; or

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

1. This is a significant consideration. Dr G’s evidence was clear that the best predictor of future conduct is past and present conduct. If the mother were to relocate to Melbourne there is a real risk she would not support the children spending time and communicating with the father. The mother has not done these things to date when the parties have lived in close proximity.

2. The father seeks to spend time with the children from Friday to Tuesday in one week and an overnight in the other week. Dr G’s evidence is that fewer changeovers would be beneficial for the children. I am not satisfied that it is in the children’s interests for care arrangements to be altered in the manner sought by the father. The orders will allow for time each alternate Friday to Tuesday. The time occurring in a block will minimise the children’s exposure to parental conflict. Should the father move in with Ms J and her children the time should be more manageable for the children in terms of having to adjust to different households.

1. The father has been in a relationship with Ms J for about 3 years. She was not required for cross examination. She has children from a prior relationship and cannot move to Melbourne. The father is a self-employed (occupation omitted). He has established a business in Sydney which is not transferrable to Melbourne. I accept the father’s evidence that he cannot move to Melbourne given his commitments in Sydney.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.

1. There can be no doubt that it is more difficult for the children to spend time with their father if they reside in Melbourne. The children can travel as unaccompanied minors on the major airlines. They cannot travel as unaccompanied minors until the age of 12 with Jetstar and Tiger airlines, which have cheaper flights than other airlines between the two cities.[26]

   [26] Exhibits M3 and M4.

2. The mother’s proposal for the children to miss school Friday and Monday on two occasions each school term is not realistic. It would require the cooperation of the school which is unknown. Missing 16 days each school year for this purpose alone is not sustainable. It does not take into account, for example, the days that will be missed for ill health.

3. For the children to spend weekends in Sydney with their father without missing school is difficult, and truncates the weekend time significantly. The travel involves not only the length of the flight, but also the time taken to get to the relevant airport after school on Friday, and to be back in Melbourne early enough on Sunday to be ready for school on Monday.

4. The mother suggested that she could take the children on the overnight train between Melbourne and Sydney, as that would be less expensive than flights. Whilst she has done that on occasions, to do that regularly is imposing an onerous burden of travel on the children.

5. The mother made various proposals with respect to the children’s time with their father during the course of these proceedings. It is concerning that she had not given a great deal of thought to arrangements, in circumstances where on her proposal they would be living in a different city. The mother gave the impression in the witness box that she was prepared to say whatever was necessary to promote her being able to relocate without proper consideration of the impact of these arrangements on the children.

6. The mother when cross-examined, was not able to consider that lessening time to two weekends a school term and holidays would be likely to create a problem for the children in their relationship with their father. I am not satisfied that were the mother to move the children to Melbourne, that they would be able to maintain their relationship with their father.

7. No doubt the father would be able to travel to Melbourne to see the children from time to time. However the parties have not been successful at negotiating arrangements to date.

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

(i) each of the child’s parents; and

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

to provide for the needs of the child, including emotional and intellectual needs

1. The mother has the capacity to provide for the needs of the children and has done so extremely well. The issue is her ability to facilitate their relationship with the father. That she has not been capable of doing so suggests she has a limited understanding of their emotional need for that relationship.

2. The father’s capacity to care for the children is developing, he having had less opportunity to do so following separation. The father has been able to facilitate the children’s communication with their mother whilst in his care. He has demonstrated an ability to meet the boys’ needs.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

1. These are two young boys whose parents are both able to assist them in developing and maintaining their lifestyle, culture and traditions.

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

1. The mother has provided well for the children generally. She has not been able to demonstrate a support for the children’s relationship with their father.

2. The mother and father have both participated in placing the children in situations of conflict, as both have argued in front of the children, without either being prepared to walk away. This creates a real difficulty for these children who have witnessed disputes between their parents, and extended family members. Arrangements that are certain, where the majority of changes occur to and from school will lessen the children’s exposure to disputes.

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

1. The mother has made allegations of family violence against the father to the police. These are serious allegations not repeated in the material she has filed.[27] I do not accept that there has been family violence nor that the children are at risk of sexual or any other abuse by the father.

   [27] Exhibit F4.

2. In terms of the father’s conduct towards the mother, she complains that he has been rough with her, spoken to her in a demeaning and degrading way, and controlled finances. The evidence supports that both parents have spoken to each other in unacceptable ways, both directly and by text message. The mother has spoken to the father in a degrading and demeaning way frequently in the text messages following separation[28]. The father has also made degrading comments to the mother. Unfortunately there is little evidence of improvement in the parties’ communication.

   [28] Father’s Affidavit filed 5 October 2016, Annexure B.

3. The father has more recently contained his negative remarks in correspondence which may be his response to the spotlight of litigation. It is difficult to know if there is real change on his part. Unfortunately the mother has been unable to do so even in those circumstances.

Parental Responsibility

1. Both parties agree that there should be orders for equal shared parental responsibility, notwithstanding their poor communication. In all the circumstances, I accept that it is in the best interests of these children for their parents to have equal shared parental responsibility.

2. The legislation requires a consideration of an equal time arrangement. There is no evidence that the parents could sustain such an arrangement in terms of their capacity to communicate with each other, and I am not satisfied that would be in the children’s best interests. The orders I make provide for substantial and significant time for the children with their father.

Conclusion

1. Were orders to be made for relocation of the children to Melbourne with their mother, the children are at real risk of losing their significant relationship with their father. This would have life-long consequences for these children. The children are settled in Sydney, having lived there the majority of their lives. It is not in their best interests to move to Melbourne.

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Judge Boyle

Date:  10 March 2017