Goddard and Hilditch

FAMILY COURT OF AUSTRALIA

GODDARD & HILDITCH

[2016] FamCA 631

FAMILY LAW – CHILDREN – relocation – where the mother seeks an order that she be permitted to relocate with the child – where the father opposes the application – where consideration is given to the legal principles relevant to relocation proceedings – where consideration to the child maintaining a meaningful relationship with both parents – where consideration is given to the best interests of the child – where it is ordered that the parties have shared parental responsibility but the mother have sole parental responsibility in respect of health and education – where the child is to live with the mother and spend substantial and significant time with the father.

Family Law Act 1975 (Cth) s 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN, 69ZQ, 69ZR, 69ZT, 69ZV, 69ZX

AMS v AIF (1999) 199 CLR 160
Beckham & Desprez [2015] FamCAFC 247
Blanding & Blanding (2016) FamCAFC 21
Eddington & Eddington (No 2) (2007) FLC 93-349
Mazorski & Albright [2007] FamCA 520
MRR v GR (2010) 240 CLR 461
Starr & Duggan [2009] FamCAFC 115
U v U (2002) 211 CLR 238
Zahawi & Rayne [2016] FamCAFC 90

APPLICANT:

Ms Goddard

RESPONDENT:

Mr Hilditch

FILE NUMBER:

ADC

3960

2010

DATE DELIVERED:

5 August 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

1, 2, 3 and 6 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Dickson

SOLICITOR FOR THE APPLICANT:

Norman Waterhouse

COUNSEL FOR THE RESPONDENT:

Mr McGinn

SOLICITOR FOR THE RESPONDENT:

Westley DiGiorgio

Orders

That the parties have shared parental responsibility for E born … 2007 (“the child”).
That the mother have sole parental responsibility in respect of matters relating to education and health issues affecting the child.
That in respect of education and health issues, the mother will advise the father in writing (electronically or otherwise) and provide her views about any major issues affecting the child’s education and health and shall consult with the father about such issues in a genuine effort to come to a joint decision, but if no agreement is reached between the parties THEN the mother shall make the final decision and advise the father in writing (electronically or otherwise) of that decision.
That the child live with the mother.
The child shall spend time with the father as follows:-
(a)During term times, each alternate weekend from the conclusion of school on Wednesday until the commencement of school on the following Monday;
(b)For one half of the school holiday periods as agreed, or failing agreement for the April, June/July and September/October school holiday periods, the father shall spend time with the child for the first half of each period from the conclusion of school on the last day of term until 12 noon on the midpoint day of the school holiday period PROVIDED THAT the mother shall spend time with the child from 12 noon from the midpoint day of the school holiday period until the commencement of school on the first day of term.
The parties shall spend time with the child as follows:-
(a)For the December/January school holiday periods, the parties shall spend time with the child on a week about basis as follows:-
(i)The father shall spend time with the child from the conclusion of school on the last day of term until 10 am on the second Saturday of the holiday period that shall continue each alternate week thereafter;
(ii)The mother shall spend time with the child from 10 am on the second Saturday of the holiday period that shall continue each alternate week thereafter;
(iii)Save and except that the party with the care of the child during the last week of the school holiday period shall continue to spend time with the child until the conclusion of school on the first day of the new school year;
(b)On special occasions as follows:-
(i)For Christmas as agreed between the parties or failing agreement as follows:-
A.In 2016 and each alternate year thereafter, the father shall spend time with the child from 3 pm on 24 December until 3 pm on 26 December; and
B.In 2017 and each alternate year thereafter, the mother shall spend time with the child from 3 pm on 24 December until 3pm on 26 December;
(ii)For Easter as agreed between the parties or failing agreement as follows:-
A.In 2017 and each alternate year thereafter, the mother shall spend time with the child from 6 pm on Maundy Thursday (or the conclusion of school if such day is a school day) until 6 pm on Easter Monday; and
B.In 2018 and each alternate year thereafter, the father shall spend time with the child from 6 pm on Maundy Thursday (or the conclusion of school if such day is a school day) until 6 pm on Easter Monday;
(iii)For Mother’s Day and Father’s Day as agreed between the parties or failing agreement as follows:-
A.The mother shall spend time with the child from 9 am until 8 pm on Mother’s Day;
B.The father shall spend time with the child from 9 am until 8 pm on Father’s Day;
(iv)For the child’s birthday (being …) as agreed between the parties or failing agreement the party with whom the child is not spending time shall spend time with the child as follows:-
A. When such day is not a school day for a period of four (4) hours from 12 noon until 4 pm; and
B. When such day is a school day from the conclusion of school until 6 pm.
That handovers which do not occur at the child’s school take place at the Mobil Service Station in G Town.
That the father be restrained and an injunction be granted restraining the father from possessing a firearm or any other offensive weapon in the presence of the child or taking the child hunting until the child shall attain the age of 12 years.
That the parties are restrained from discussing these proceedings with the child or in the presence of the child or allowing any other person to do so or from denigrating the other party in the presence of the child or allowing any other person to do so.
That in the event of an emergency concerning the child the party with the care of the child shall contact the other party as soon as possible.
That each party shall do all acts and things necessary including the provision of all authorities to enable the other to communicate with the child’s school and to request all information and copies of documents from such school as he or she may request in relation to the child.
That the mother shall do all acts and things necessary including the provision of all authorities necessary to enable the father to obtain information and communicate with any doctor, dentist, specialist or any other medical practitioner who has or may provide treatment to the child.
That a copy of this order be provided to the proper officer at the child’s school and to any of the child’s treating health professionals if deemed necessary.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Goddard & Hilditch has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3960 of 2010

Ms Goddard

Applicant

And

Mr Hilditch

Respondent

REASONS FOR JUDGMENT

Introduction

By final order made 7 February 2011 in the Federal Magistrates Court (as it then was) Ms Goddard (“the mother”) and Mr Hilditch (“the father”) concluded their parenting dispute in respect of E born in 2007 (“the child”).
The final orders provided that the parties have equal shared parental responsibility for the child and that the child live with the mother but spend five nights per fortnight and half school holidays with the father. Orders were also made for time spent on special occasions and the parties were restrained from consuming more than four standard alcoholic drinks on any one day the child is in that parent’s care.
By Initiating Application filed 15 June 2015 the mother now seeks an order that she be permitted to relocate with the child to H Town in New South Wales. Her primary motivation for the application is her relationship with Mr F. Mr F is the mother’s partner and the father of her two youngest children.
A summary of the orders sought by the mother are as follows:-
(1)That the order of the Federal Magistrates Court (as it then was) dated 7 February 2011 be discharged.
(2)That the mother be at liberty to relocate with the child to H Town.
(3)That the mother have sole parental responsibility.
(4)That the child live with her.
(5)That the father spend time with the child for the entirety of the April and September/October school holiday periods, for half of the June/July school holiday period and for 28 nights during the December/January school holiday period.
(6)That the mother book and pay the cost of all airfares between Sydney and Adelaide for the child.
(7)Various injunctive orders including those restraining the father from consuming alcoholic or illicit substances in the presence of the child or for 12 hours before spending time with the child or from possessing a firearm or any other offensive weapon in the presence of the child or taking the child hunting.
(8)That the parties keep each other informed of any medical related issues concerning the child while in their respective care.
(9)That the father be permitted to communicate with the child’s school and that both parties be permitted to obtain information from any medical practitioner who has involvement with the child.
The mother also outlines the orders that she seeks in the event that relocation is not permitted. She maintains that the orders of 7 February 2011 be discharged and that she have sole parental responsibility for the child and that the child live with her. In terms of time spent with the father she seeks that the child spend every alternate weekend for three nights with the father and that school holiday time be shared between the parties. Further orders are sought in relation to special occasions, handovers and injunctions including those relating to alcohol and illicit substance consumption and firearm possession and use.
By Amended Response filed 26 April 2016 the father opposes the mother’s application for relocation and seeks orders as follows:-
(1)That the parties have equal shared parental responsibility.
(2)That the mother be restrained from changing the child’s principal place of residence from the South East region of South Australia.
(3)That if the mother relocates to H Town the child live with the father and spend time with the mother during school holiday periods.
(4)That if the mother does not relocate to H Town the child live with her and spend time with the father for five nights per fortnight and half school holidays.
The mother relies upon the following documents:-
(1)Initiating Application filed 15 June 2015
(2)Affidavit of the mother filed 20 October 2010
(3)Affidavit of Ms I filed 19 November 2015
(4)Affidavit of Ms I Filed 25 November 2015
(5)Affidavit of the mother filed 15 June 2015
(6)Affidavit of Ms J filed 29 April 2016
(7)Affidavit of Mr F filed 29 April 2016
(8)Trial Affidavit of the mother filed 26 April 2016
(9)Affidavit of Ms I filed 29 April 2016
(10)Affidavit of the mother filed 1 June 2016
In addition the mother relies upon a Case Outline document filed 2 May 2016 and a List of Authorities document that was provided by counsel at trial.
The father relies upon the following documents:-
(1)Amended Response filed 26 April 2016
(2)Trial Affidavit of the father filed 26 April 2016
(3)Affidavit of Ms K filed 26 April 2016
In addition the father relies upon a Case Outline document filed 2 May 2016.

Procedural background

The mother initiated proceedings for the second time in the Federal Circuit Court on 15 June 2015. On 8 October 2015 Judge Mead listed the matter for trial to commence on 4 May 2016 in the T Town Circuit with three days allowed. Judge Cole made further trial directions on 23 February 2016. On 4 May 2016, upon noting that the estimated length of trial was anticipated to be four or five days, Judge Cole transferred the matter to the Family Court. The matter was subsequently listed for trial before me for four days commencing 1 June 2016.
The proceedings were conducted pursuant to the provisions of s 69ZN of the Family Law Act 1975 (Cth) (“the Act”) and in determining and giving effect to the principles set out therein, I advised the parties of the general duties and powers as set out in s 69ZQ and the ability that I have to make determinations, findings and an order at any stage of the proceedings if it will assist in the better management of the trial pursuant to s 69ZR.
I considered that I should not deviate from the provisions of s 69ZT and accordingly the parts of the Evidence Act 1995 (Cth) (“the Evidence Act”) as set out in s 69ZT were not the subject of further application.
I reminded the parties of s 69ZV which relates to my ability to hear the evidence of children in matters which would ordinarily contravene the rules of hearsay and importantly s 69ZX which relates to my ability to truncate, limit and manage what might be described as the routine aspects of the trial.
The matter proceeded and was heard over four days concluding on 6 June 2016.

Background

The mother was born in 1981 and was 34 years of age at the time of trial. She is unemployed and engaged in home duties. She resides in L Town.
The father was born in 1973 and was 42 years of age at the time of trial. He is a self-employed farmer. He resides in G Town.
The parties commenced cohabitation in 2001. They were married in 2005, separated in April 2009 and were divorced on 1 December 2012.
There is one child of the relationship. Currently, the child lives with the mother and spends five nights per fortnight with the father pursuant to the consent orders of 7 February 2011.
Since January 2010 the father has been in a relationship with Ms K. There are two children of that relationship, M born in 2011 (“M”) and N born in 2015 (“N”). The father and his family live on a farm located 10 km outside of G Town.
The mother and Mr F have been in a relationship since January 2011. There are two children of that relationship, B born in 2013 (“B”) and C born in 2014 (“C”). B and C live with the mother and the child in L Town. Mr F lives in H Town.
Mr F was previously married and has one child of that relationship, D born in 2008. (“D”). D lives with his mother in O Town, New South Wales. Mr F has another child, P born in 2012 (“P”), with whom he has no contact. P lives with his mother in L Town.
Mr F lives and works in H Town. It is the mother’s position that Mr F struggled to obtain employment in the South East area and therefore she and Mr F decided that he should seek employment in the H Town area where his immediate family resides. Mr F was successful in obtaining permanent employment and in late 2014 he moved to H Town.
The mother proposes that if she and the child are permitted to relocate the child will spend time with the father for the entire April and October school holiday periods, for half of the July school holiday period and for four weeks over the Christmas holiday period. She details a proposal for travel and other arrangements in her trial affidavit.
Central to the mother’s case however are her concerns regarding the father’s engagement with firearm possession and use. She says that at the time the consent order was made she was unaware of the extent of the father’s criminal antecedents, particularly as they relate to firearms. She further alleges that the father was physically violent and controlling throughout their relationship, engaged in animal cruelty and would consume alcohol and other illicit substances to excess.
The father denies the allegations of family violence and controlling behaviour on his part. He acknowledges that in the past he consumed alcohol to deal with stressors in his life but maintains that he now controls and regulates his alcohol intake to an appropriate level. He admits to having been convicted of multiple driving and firearm offences. In his trial affidavit he outlines his avid interest in hunting and competitive shooting and the necessity of firearm ownership through the course of his employment as a farmer. However, he says that he is no longer in possession of firearms. He has retired from the local gun club and says that he has no desire to use firearms on his property in the future.

EVIDENCE

The mother

The mother’s evidence is presented in her trial affidavit filed 26 April 2016. Her affidavit details numerous examples of what she considers is controlling and aggressive behaviour by the father. She complains of being isolated from her friends and family and was wary of the father’s temper and unpredictable conduct.
She also provided examples of being subjected to demeaning and offensive language.
She alleges that much of the father’s adverse and aggressive conduct can be connected to his excessive consumption of alcohol.
Her affidavit focuses on allegations of animal cruelty including shooting and killing the mother’s pet dogs.
The mother witnessed what she considers to be shocking behaviour of the father in 2003 or 2004 when he deliberately ran over sheep.
His aggressive conduct included throwing objects at the mother in the early years of their marriage.
The mother was pushed and shoved by him and there is considerable emphasis on the father’s drug and alcohol use during the relationship. The mother alleges that the father consumed methamphetamines, speed and cocaine on a regular basis and at least monthly.
He would regularly smoke cannabis and would become drug affected.
It is the concern of the mother that the father continues to consume alcohol and drugs following separation.
In paragraph 19 of her trial affidavit she refers to conversations with the child that indicate the father still drinks to excess and may well be smoking cannabis.
A further concern of the mother focuses on the father’s interest in and ownership of guns and hunting. It appears uncontroversial that he is actively involved in a local gun club and has a familiarity with guns developed over his lifetime.
During the marriage the father possessed guns and would usually have a gun with him when he was working on the farm.
The father was lax in respect of gun security and whilst he had the secure storage facility available, the mother alleges that it was rarely utilised by the father to store his guns safely.
The mother alleges that during the marriage that the father was not interested in looking after the child and it was only following separation that a relationship between the father and the child developed.
In summary, the mother considers that she had the primary care for the child.
Following an alleged assault in September 2009, the mother applied for a restraining order which necessitated the involvement of the mother’s stepfather to supervise and conduct handovers.
The child’s time with the father gradually increased to an arrangement that approximated shared care. At two and a half years of age, the mother considered that the extended time away from her was causing significant anxiety and distress to the child and she informed the father that the arrangement would revert to one or two overnights per week.
The father resisted the mother’s decision and refused to return the child to the mother’s care. According to her this then prompted the commencement of proceedings on 20 October 2010.
Despite what the mother says were her significant misgivings, a final order was made on 7 February 2011 which provided for the parties to have equal shared parental responsibility and for the child to live with the mother and spend five nights per fortnight with the father.

The mother now says that she did not understand that “consent” meant that she had agreed to the orders being made. She now takes issue with the advice that her solicitor had provided to her and considers that she fundamentally misunderstood the nature of the proceedings.
At paragraphs 36 to 43 of her trial affidavit, the mother sets out in some details the father’s criminal history. Some of the information is from her own knowledge but significantly, the evidence is provided from a consideration of subpoenaed material. If the provisions of the Evidence Act were applied, much of the information gleaned from the subpoenaed materials would be inadmissible or of little weight.
The father does not resile from his antecedent criminal history, but does not concede that the subpoenaed materials, particularly where they include police apprehension reports, accurately reflect the circumstances of the alleged offending.
The personal experience of the mother is obviously a relevant consideration.
The mother alleges that following separation the father would harass her by telephone, text message and uninvited attendance at her home.
In 2009, the mother records that the parties met in order to celebrate the child’s second birthday. The father was serving a period of disqualification for drink driving and accordingly the mother agreed to drive the father to lunch and then back home thereafter.
Whilst the father’s behaviour was initially civil, the mother says that upon her attempt to leave the former matrimonial home the father initially refused to give her the car keys and then following an altercation, the father threw himself onto the bonnet of the vehicle demanding that the mother and child not leave the premises.
The father was arrested and disqualified from driving having been assessed at having an excessive blood alcohol limit.
On 23 July 2010 the mother obtained a domestic violence restraining order which expired on 23 July 2013.
An obvious response by the father is to question the mother’s assertion that she did not understand the nature and consequence of the Court hearing on 7 February 2011 and the resultant final orders. He argues that the mother is disingenuous as to the circumstances of the making of the final orders and could not have misunderstood the orders given as they were made with her informed consent. Accordingly, in making the consent order, she did so fully cognisant of the father’s offending and his conduct towards her.
The mother contends that the child has not coped well with the current arrangements. He is easily frustrated and she observes that he bursts into tears seemingly without good reason. There have been various incidents at school where the child has been bullied by other children and has engaged in violent conduct in the class room.
As at the conclusion of semester 2 for the 2015 academic year the child is performing below average, but with some positive signs that he is developing his work and social skills.
Of greater concern is the mother’s report that the communications between the parties have broken down almost entirely. The parties are not able to communicate with each other directly. Fortunately the mother has a civil relationship with the father’s de facto partner and there is a reasonable level of communication between them. Communication between the father and the mother is currently non-existent.
It is not only in respect to communication that the relationship between the parties is dysfunctional. The mother complains that there are difficulties with school uniform exchange and the return of books, in particular library books which the mother alleges the father retains well beyond their expiry date.
Of greater concern is the practical consequence of the current mechanics of the parenting orders. The final order provides for the child to spend time with the father for five nights per fortnight from 12 noon on Wednesday until 5 pm Friday in week 1 and 12 noon on Thursday until 5 pm on Sunday in week 2. The mother considers that rather than a handover at 5 pm on the Friday, it would be less disruptive for the mother’s time to commence at the conclusion of the child’s school. The mother says that the father has refused to countenance this change and the consequence is that the child then must catch the school bus from L Town to the father’s home, then spends a half an hour at the father’s home and then is drive by the father back to L Town or G Town for handover. Irrespective of the impact and disruption to the parties, the consequence for the child is that he spends a significant amount of time in unnecessary travelling.
The mother highlights that because the child was with her during the family assessment conducted by the family consultant in 2016, the father insisted that he receive make-up time for the 3 hours that the child had spent with the mother.
A dispute arose and the mother records that when she refused to agree to the father’s proposal, he retained the child on 21 February 2016 for an extra three and a half hours.
It is likely that the father recognises the current arrangements are unsatisfactory. Whilst he opposes the orders sought by the mother that would see the child relocate to H Town, he considers that if the orders were changed to reflect shared care, this would substantially remove the areas of conflict between the parties.
On 10 April 2013 the father was charged with a number of offences involving failure to comply with the restraining order involving the mother.
The nature of the alleged offending involved the possession by the father of unregistered firearms, a firearm loaded with three live rounds of ammunition, and failure to keep a Class A firearm secure.
The father was sentenced on 4 March 2016 and received a sentence of imprisonment which was suspended upon the father entering into a bond to be of good behaviour for a period two years and to be under the supervision of the care of the corrections officer and to obey the directions as to undergoing drug and alcohol treatment and counselling, psychological and psychiatric treatment, counselling and drug testing as may be required. The mother also alleges that in October 2013 the father was detained with respect to mental health concerns following his expressions of suicidal ideation.
The mother obtained the information following a subpoena issued to the Q Hospital. She argues that notwithstanding the care arrangements in respect of the child at the time, the father did not make his involuntary detention, suicidal ideation and mental health risk assessment which indicated that the father was at high risk of self-harm, suicidal and harm to others known to her.
The mother properly acknowledges that the child loves the father and clearly enjoys his time with him. The mother records that the father is an avid hunter and engages the child in hunting activities, fishing and motor bike riding.
Whilst the mother acknowledges that the child is very happy to engage in outdoor activities with the father, it is the mother’s concern that there has not been an emphasis on the child’s education and learning.
The mother expresses concern that the activities in which the father engages the child, whilst exciting, may well be unsafe. The child is nearly nine years of age. In particular, the mother is concerned that he is taken hunting and is encouraged to use a bow and arrow.
At the commencement of the proceedings, the parties were able to reach agreement that would restrain each of the parties from possessing a firearm in the presence of the child.
The mother acknowledges that the child would miss the father, but considers that her proposal which is that the child would spend significant periods with the father during school holidays, would facilitate, foster and maintain a meaningful relationship.
The mother re-partnered with Mr F in 2009. Mr F and the mother have now been together for five years and there are two children of their relationship.
Mr F has a professional occupation and the mother asserts that he was not able to easily find employment and during 2014 was only able to obtain part time work which required extensive travel both to Adelaide, but also interstate.
Mr F originally came from H Town and has extended family still residing in the area. When he was not able to find employment locally, he made application to in the H Town area and was successful. Mr F now travels between H Town and the South East. The mother and Mr F considered that if the family were to consider relocation to H Town, it was important that Mr F have secure employment,
It is the mother’s position that sufficient time has now elapsed that the family can have confidence that Mr F’s employment is permanent, stable and well-remunerated.
The consequence of the employment arrangements for Mr F is that he is only able to return to the family home three or four days per month. The mother is concerned that as more time passes, Mr F’s relationship with their children namely B and C is potentially at risk. Obviously Mr F would wish to spend more time with the mother and their children.
The mother’s circumstances are also of concern. She says that she now cares for three children effectively without assistance. There are financial difficulties and even though Mr F resides with his parents whilst working in H Town, nonetheless he makes reasonable contribution to his living expenses and taking into account travelling and the costs of the family home, she considers that their present situation both emotionally, but also financially, is not sustainable.
There is a child support assessment in place as between the parties which requires the father to pay 58 cents per month child support. It is acknowledged by the mother that the father has other dependent children to support.
Not surprisingly, under cross examination the mother was challenged as to her assertion that she did not understand the nature of the proceedings which resulted in the final orders.
She conceded that she prepared an affidavit filed 20 October 2010 which raised a number of allegations in respect of the father namely:-
·Family violence
·Cannabis use
·The child’s behaviour
·Drug use by the father’s partners
·Poor parenting
The mother accepted that she said nothing good about the father and confirmed that she agreed to equal shared care.
At paragraph 26 of the affidavit the following is recorded:-
My concerns about [the child] increased after he began to exhibit severe anxiety about separating from me, each time he was due to live with the father under the aforesaid ‘week about’ arrangements.
Paragraph 30 refers to the negotiations that proceeded between the solicitors and the understanding by the mother that the “holding” arrangements resulted in the child spending time with the father every second weekend from Friday to Sunday and of recent date further time comprising one half of each school holidays.
Noting that the orders were made on 7 February 2011, the mother agreed that she had four and half years to apply to discharge or very the final orders and had not done so notwithstanding that she saw her solicitors in May 2014.
The Court file also reflects that the mother filed contravention proceedings alleging that the father had contravened the order of 7 February 2011.
All of these matters were put to the mother with the clear suggestion that she well understood the consent orders.
The mother was not prepared to concede that she had any knowledge or had been informed as to the effect of a consent order. She was aware that orders had been made, but according to her was uncertain as to their effect.
I have little difficulty in finding that at all relevant times the mother was clearly aware both of the nature and effect of the consent orders.
The mother conceded that at the time of the final orders she had not advised the Court that she had commenced a relationship with Mr F in January 2011.
The mother was challenged as to the purpose of her extensive reference to the offender history of the father. Much of the history predates the commencement of the parties’ relationship and given the mother’s reluctant acceptance that she consented to final orders providing the father with significant and substantial time with the child, she ultimately conceded that the majority of the father’s criminal history was irrelevant.
Obviously if it was intended as to matters of credit or character, then it is either inadmissible or not to be given any weight.
What is important is the mother’s acceptance that the child and the father have a loving a close relationship, although the mother could not concede that the father presented as a good role model.
The mother drew a distinction between the activities engaged by the father and the child which she considered to be worrying namely hunting and motor bike riding as distinct from the child’s beneficial enrolment in sporting activities such as Auskick and Little Athletics.
Notwithstanding the father’s assertions that he is now diligent and rigorous in the avoidance of any firearms, the mother clearly harbours ongoing concerns. She does so because until the proceedings which resulted in a suspended sentence period of imprisonment, the father seemed incapable of recognising that his continued use and possession of firearms was irresponsible.
The mother was challenged as to her version of the events leading up to the father being charged and ultimately a restraining order being put in place. The mother agreed that the father was cooperative when apprehended by the police and that he did not behave as aggressively as the mother was alleging.
Whilst the mother did not concede a more benign version of the incident, nonetheless she did concede that it has occurred prior to the consent orders.
Similarly, notwithstanding the father’s denials that he engaged in animal cruelty, even on the mother’s case this also occurred prior to proceedings being resolved.
A consequence of cessation of all meaningful communication between the parties has now resulted in each of them dealing with the child’s health and developmental issues without reference to the other.
Whilst the mother conceded that information could be sent by text messaging to the father’s partner Ms K, there were aspects which clearly highlighted for the child to be adversely affected by the parties mistrust of each other.
The parties consent to the report of Ms R, psychologist, dated 26 April 2016 being before the Court.
The reason for the referral was because “[the child] presented for a psychometric-educational assessment due to concerns regarding some literacy difficulties”.
It appears that the history had been provided by the mother.
Whilst the report considered that the child’s full scale intellectual ability was within the average range, the same could not be said in respect of educational attainment involving phonological processing and literacy assessments.
The child was assessed at demonstrating minor to moderate weakness in reading, with spelling skills assessed within the low average range and his phonemic encoding skills within the borderline range.
The overall summary was that the child demonstrates minor weakness in reading, spelling and general literacy skills.
Whilst there is no challenge to the report, the father and Ms K took the child to a speech pathologist arranged through the Department for Education and Child Development. The father received a report dated 15 August 2014.
He did not discuss the contents of the report with the mother, nor to the best of his knowledge did Ms K. The father considered the report important and utilised the recommendations to try and assist with the child’s speech pathology.
There is no challenge to the content of either report, but given that the mother was unaware that a speech pathology assessment had been conducted and that recommendations for the child’s speech management had been made, whatever implementation of the recommendations took place in the father’s household, their impact on the child must have been diminished by the mother’s lack of knowledge and therefore her inability to replicate the father’s efforts.
The mother was challenged as to her clear opposition to the father engaging the child in hunting activities.
I am satisfied that the mother was not simply being difficult or was opposed to the father’s hunting activities simply for the sake of opposition.
The mother was clearly upset and had harboured her concern since June 2015 when she became aware that the hunting involved the child using a bow and arrow with the intention of an animal being killed.
Accordingly, the mother’s opposition was not born of safety concerns only, but was also philosophical namely, that an eight or nine year old child was too young to engage in those activities particularly where it was the intention that animals would be killed.
Doing the best that she could whilst she was unlikely to ever concede that hunting could be a beneficial activity to the child, with reluctance she agreed with the recommendation of the family consultant that the child could properly engage in hunting activities as and from age 12.
The mother was not cross examined on the potential inconsistency in the orders that she sought namely, that if permitted to relocate then the child would spend extended and lengthy periods of time in the care of the father to occur during school holidays.
It would seem to be demonstrably inconsistent for the mother to allege that the father is unsuitable in respect of the parenting arrangements that the father seeks by reason of his history of family violence, criminal offending, allegations of animal cruelty and episodic mental instability asserted by the mother to be a present and clear risk, but would not present as such if she was able to relocate the child’s place of residence to H Town.
It is therefore difficult to determine the weight that should be attached to the mother’s evidence of her concerns in respect of the father’s alleged or perceived conduct. There may be greater relevance if the effect of the father’s conduct reflects itself in an unnecessarily rigorous approach to the arrangements between the parties for the child to spend time in each of their care and the continued inability of the father to engage productively with the mother.
The mother was challenged as to the efforts that Mr F had made to obtain work locally rather than seek employment in H Town.
Whilst they were questions that should properly be put to Mr F, nonetheless, the mother had a good understanding of her partner’s employment arrangements and more importantly, was able to speak directly as to the impact on the three children and her of the extended periods of separation whilst Mr F lived and worked in H Town.
The mother was uncertain as to what she would do if she was not able to relocate with the child to be with Mr F.
She was uncertain what he would do, but she considered that it was important to him to work in his chosen field and it may well be untenable if he was placed in the invidious position of remaining in H Town and being separated from the mother and the children, or returning to the South East and being frustrated at not being able to find suitable employment.
Clearly the mother, B and C pine for Mr F during his long periods of absence.
Noting that B was born in 2013 and C born in 2014, it was put to the mother that Mr F did not have a strong or attached relationship with C. The mother was distressed at the suggestion but conceded both in her trial affidavit at paragraph 115, but also in her evidence under cross examination that continued separation between B and C and Mr F could easily result in a fractured relationship.
The mother finds herself in an invidious position. She recognised that whatever was the motivation for Mr F to find work in H Town, that is the reality of the situation. She loves Mr F and considers that they are in a committed relationship. There are two children aged nearly two years and three years respectively.

The mother considers that she should be entitled to have her family reunited.
She considers that the proposal for the child to spend substantial periods of time in the care of the father provides the appropriate balance between the child’s needs and those of her children with Mr F.
The mother was asked to reflect upon the child’s expressed wishes that he does not want things to change and that he is strongly bonded to his father. The mother considers that the child will adapt and that whilst he will miss his father, any distress or anxiety can be managed particularly given the extended time that the chid will spend with the father during school holidays.

Mr F

Mr F confirms that he commenced a relationship with the mother in January 2011 having relocated to the L Town region in South Australia in 2010. He commenced working locally. Mr F had been previously married and there is one child of that relationship namely, D born in 2008. D is seven years of age and lives in the H Town area.
Following a brief relationship with Ms S in 2012 she gave birth to a child in November 2012. It was agreed that Mr F would only have a relationship with that child if he asked to meet Mr F at some point in the future.
Notwithstanding the romantic complications experienced by Mr F in the early period of the relationship with the mother, he nonetheless considers that theirs is a stable and permanent relationship.
He confirms his current employment arrangements and his evidence is that he took the job opportunity in H Town in circumstances where he had not seen any senior management positions either in Adelaide or in the South East.
His level of responsibility also enables him to pursue challenges in his career and there exists future opportunities to acquire a financial interest in the business.
He remains concerned that the current circumstances sees him separated from the family and puts at risk his relationship both with the mother, but in particular their children B and C. Under cross examination Mr F confirmed that at the time of the commencement of his relationship with the mother he had some idea as to the parenting arrangements. He admitted to having limited knowledge of Court proceedings and orders and whilst he knew that proceedings were on foot, he did not know the details.
He worked in 2011, 2012 and 2013 in the South East and in 2014 undertook work in South Australia, New South Wales and Queensland.
He and the mother maintained separate houses until moving in together in 2013.
He conceded that in 2011 his income was about $50,600 taking into account deductions for motor vehicle expenses and other appropriate deductibles. In 2012 his income was $60,000 with deductibles of $10,656. In 2013 his income was $66,400 with deductibles of $11,000. In 2014 his income was $64,800 with deductibles of $10,000 and in 2015 his net tax was $78,016 after bringing to account deductibles of $6,700.
Whilst Mr F conceded that his income was reasonable and appeared to be increasing, in the latter years this was only achieved by him undertaking work which would see him away from the family for four to six weeks and then coming home for two to three days before being required to leave.
The witness was challenged as to the extent to which he sought employment in Adelaide and whilst he conceded that there was likely to be more opportunity for employment in Adelaide than in the South East, nonetheless the salary and management opportunities were inferior to that on offer in New South Wales.
Mr F considered that he did not intend his move to the South East to be temporary, but a difficult employment climate has required him to reconsider his position.
He advised that he and the mother had discussed the consequences arising from employment in New South Wales and it was agreed between them that he would take up the job offer in H Town and reassess his position after some months of employment. It was his position that it was important to be satisfied that if they were genuinely serious about relocating to H Town that his employment offered appropriate stability, remuneration and environment.
They agreed that they would not advise the father of their plans and did not consider that a discussion with the father was necessary until the arrangements or proposal was more certain.
Mr F was asked the direct question namely, whether he had discussed with the mother what he would do if her application for relocation was unsuccessful.
With some regret, he considered that he would give up his current position and career and return to live with the family.
It was put to the witness that if he gave up his employment and returned to the South East there was a high level of certainty that he would obtain a position. The witness disagreed with the assertion and did not accept that employment opportunities may arise in the short to medium term future.
Mr F denied that his move to take up employment in H Town was motivated by his desire to be closer to D. He conceded that it was a factor and even an important consideration but was not the main attraction. His employment was very much a career move and a desire for stable employment and greater work responsibility.
I consider that this witness was attempting to assist the Court and I am satisfied that weight can be given to his evidence.

The father

The father’s evidence was principally contained in his trial affidavit.
There is little disagreement with the history as provided by the mother, although where the mother seeks to minimise the extent of the father’s involvement with the child, his evidence is that prior to separation he maintained an active and interested involvement with the child’s day to day care and following separation in May 2009, he says that the parties agreed for the child’s time to be shared on a week about basis.
He sets out in some detail the care arrangements, in particular after he moved to G Town in 2012.
The father does not concede that there was any basis for the mother to change the arrangements from shared care to the child remaining primarily in her care from August 2010.
Contrary to the mother’s position, the father asserts that he has always tried to be flexible and accommodating in respect of any changes to the consent orders of 7 February 2011. By implication, the father is asking the Court to accept that the child transitioned easily between the parties although he does concede that at times there were difficulties especially at handovers.
In recognition of the potential for escalating conflict, by letter dated 6 March 2014 the father proposed a variation to the orders which would enable the mother to pick up the child at the completion of the school day on Friday, but to extend the time that the child spent with the father from Sunday 5 pm to the commencement of school on Monday.
The parties reached agreement on 18 November 2013 as to property settlement and spousal maintenance and they both entered into a binding financial agreement. Whilst there has been some delay, the final instalment of the settlement sum payable by the father to the mother has now been made.
The father is clearly upset at the prospect of the child being able to relocate to H Town and on the mother’s current proposal his time with the child would drop from 140 nights per year to about 70 nights.
If relocation is permitted the travel time for the child is in excess of 10 hours for him to travel from H Town to Adelaide and then from the airport to the father’s home. The cost would also be significant.
The father asserts that he does not have the necessary financial resources to enable him to fund the child’s travel costs between H Town and his property. Whilst he accepts that his farm is of significant value, he has a substantial loan to the Rural Bank, taxable income and other expenses. He does not consider that he would ever be in a position to take his partner and their children to H Town to see the child. Accordingly, the father is concerned that he will miss out on many milestones in the child’s life such as sports days, school assemblies, parent/teacher interviews and weekend sport.
The father does not agree that there are likely to be any better educational opportunities for the child in H Town. He considers that the local community school is able to provide an appropriate environment and education for the child with an emphasis and focus on rural aspects.
Notwithstanding that the mother has indicated she will not leave the child in the South East if she is not permitted to relocate, the father seeks to reassure the Court that he will facilitate and maintain the relationship between the child and the mother both by way of social media, mobile phone and direct physical contact as much as can be accommodated.
He promises to email the mother with information about the child’s school and would promote the child spending time with the mother on her birthday, Mother’s Day and on other occasions during school holidays.
I accept that the father is genuine when he expresses his extreme distress about the possibility of the child relocating to H Town. I accept his assessment that the child would be upset.
It is a relevant consideration that notwithstanding the child is struggling academically there are some signs of progress and this must be brought to account, particularly in terms of the potential disruption of the child going to an unfamiliar environment, a new school and a different circle of friends.
The father alleges that the child has some idea that there may be a relocation based upon a conversation in early 2014 where he is recorded as saying “We are moving to Queensland and my new house will be a big house with a big pool.”
Whilst it is true that the mother did not advise the father of the possibility of moving to Queensland, it is also correct that in 2014 she did not have any intention to do so and that the reference to Queensland was only to do with a holiday and not in any way associated with a genuine proposal to relocate.
I am however satisfied that the child is aware at least to some extent of the mother’s plans, but has little concept of the extent of impact upon him or his parents.
The father commenced his current relationship with Ms K in January 2010 with cohabitation commencing in August 2010. There are two children of the relationship namely M aged four years and N aged one.
The father and his family live on a property about 10 kilometres from G Town and it is clear that the child has a close connection and familiarity with the father’s farm.
It is hardly surprising that the child would enjoy his time with his father, particularly when engaged in normal farming activities.
Whilst there is little or no communication between the parties as to the child’s academic progress, I am satisfied that the father has engaged with the child’s life both academic and extra-curricular to a significant and appropriate level.
The father admits much of the mother’s allegations in respect of the depression that he suffered in 2012 was following the breakdown of the relationship and the difficulty in negotiating a property settlement with the prospect of the family farm being sold.
He also admits his various firearms offences and confirms his involuntary mental health detention for one day in October 2013.
There were clearly substantial stressors impacting upon the father’s ability to cope and a feature of the father’s conduct involved significant consumption of alcohol and drugs.
Arising out of an argument with the paternal grandfather, the father was arrested following an altercation with the police. The father alleges that he was assaulted by the police and because he considered that grounds did not exist for his involuntary detainment, he was discharged.
He currently sees a counsellor in order to cope with the stress of the current Court proceedings.
I accept the father’s evidence of the closeness of the relationship that he has with the child. It could hardly be controversial that the activities engaged in by the father and the child in and around the farm property would be exciting and engaging to an eight year old.
The father recognised that when the child commenced school, he had behavioural issues. He has noticed that the child suffers from short temper, back chatting and aggressiveness at times when there is a significant change in the routine of the child’s life.
To a large degree the father considers that the changes in the mother’s household which involve her moving house on occasion, commencing her relationship with Mr F and then her advice to the child that the family intends to move to H Town, are at the heart of the child’s at times aggressive and oppositional conduct.
The father refers comprehensively to his discussion with Ms K as to how to deal with the child’s at times difficult behaviour both in and out of school hours.
It seems that the father has a good understanding of his son’s conduct and is able to deal effectively with the child’s tantrums, low self-esteem and lack of confidence. The same is reflected in the father’s involvement with a speech pathologist arranged through the Department for Education and Child Development.
What has not changed is the inability of the parties to work in concert in respect of the child’s needs and difficulties.
The father considers that the mother remains unwilling to facilitate the child’s interests and will not encourage the child’s involvement in any activity that has been arranged by the father. Notwithstanding his criticism of her, it is noted that the father did not discuss the child’s enrolment in Auskick with the mother because it was an activity that occurred during his time with the child and not otherwise.
The father is critical of the mother alleging that she has no appreciation for the importance of the child’s education and learning. Such is his focus that the father noted that in 2014 whilst in the mother’s care, the child was absent from school on 11 days.
There is little concession by the father that the mother is able to exhibit appropriate parenting of the child. He is critical of her home environment, considers that she allows the child to watch too much television and does not attend to his grooming, maintenance or health issues.
He considers that the mother is cavalier with the child as evidenced by certain injuries that the child has experienced from time to time.
Whilst denying many of the mother’s allegations in respect of family violence, he does admit to consuming alcohol to excess. This occurred at times of stress involving the breakdown of his relationship with the mother in May 2009, the potential to serve a term of imprisonment in relation to firearm offences and the difficult financial position arising out of the breakdown of the family farm partnership in 2013.
He did however complete a drug and alcohol counselling course at the request of his correctional services officer, gained some assistance from psychological intervention and is generally now able to regulate his intake of alcohol given his acceptance that he has a family and a farming business to consider.
A similar story is told in respect of the father’s use of drugs. He candidly admits to using cocaine during his relationship with the mother, although he seeks to defer some of the attention by alleging that the mother whilst not taking cocaine, did consume ecstasy in 2003.
He has no explanation for why the child would have made reference to his use of marijuana to the family consultant. He does not smoke marijuana, has not done so since 2011 and refers to his clean drug test on 23 February 2016.
It is clear that the father’s criminal history involving driving and firearm offences has been problematic.
The father was in prison for a period of six weeks in March 2011 for driving whilst disqualified and admits that he did not inform the mother. He made arrangements that the child would stay with Ms K and his extended family.
The father freely admits that he has “an avid interest in hunting and competitive shooting”. Firearms has been a significant part of the father’s life and it seems only when he was sentenced to a term of imprisonment, then suspended, that he gained some insight as to his attitude towards his possession and use of firearms as being a right rather than a privilege.
Exhibit “1” in the proceedings is correspondence forwarded by the father’s solicitors to the family consultant referring to a reference on page 19 of the family report which stated:-
[The father] dismissing his need for therapy suggests a lack of insight regarding the potential for him to resort to maladaptive behaviour when facing stressful situations in the future. Unless [the father] is prepared to address his propensity to engage in maladaptive behaviour/manage his anger appropriately he will be unable to assist [the child] to do so.
The annexure also includes a response from the family consultant which provide some recommendations as to who the father may consult. The response from the family consultant was dated 26 May 2016 and the father was asked why it took three months to consider therapeutic options as suggested. The father’s response was that he was unsure as to how important the proposed counselling was, but it was when someone had indicated that it may be important in the context of the proceedings that prompted the father into action.
The father has apparently enrolled in a course that comprises a four hour session to help parents cope with parenting after separation. The father did not however impress as holding out any hope or confidence of the potential benefits of the proposed counselling.
This must be seen in the context of the father remaining highly emotional and upset at the mother’s behaviour and his view that she “had put him through a lot”. The father considered that the mother’s decision to end the relationship caused “a massive amount of hurt and damage”.
It is an indication of the depth of feeling against the mother that explains why the father will communicate with her only with great reluctance.
Notwithstanding that there was some suggestion that the father may now be prepared to open the lines of communication, I form the clear view that he has little or no interest in doing so and is happy to abrogate all responsibility in that regard to Ms K.
The father was questioned as to his view of the extent of child support currently assessed namely, $7 per annum or 27 cents per fortnight. He considered that the assessment was fair, but not because it reflects his other obligations, but because he considers that the settlement of property he was required to pay the mother was a sum to which she was not entitled and that it equates to $900 per week for every week of the relationship. The father considered that the mother had been overly remunerated in the property settlement that she received and accordingly was not entitled to anything further.
He was challenged as to the basis upon which the child support agency has assessed his obligation to pay child support taking into account “multi case children”. The father has no other children other than M and N with Ms K. Whilst they will be brought to account as a variable in the assessment, it is not the position that this would explain an assessment of 27 cents per fortnight.
Ultimately the issue was not the extent to which the father pays child support, but rather, that he deeply resents any further payment to the mother irrespective of the basis for assessment.
The resentment felt for the mother is a river that runs deep and with considerable force in the father.
It is unlikely given the surprising strength of the father’s view of the mother, that without the assistance of Ms K, or perhaps some other intermediary, no arrangement is likely to be easily achieved between the parties.
It is also demonstrative of the father being unlikely to support the mother’s relationship with the child.
To his credit however, under cross examination he conceded that the child has a good relationship with Mr F.

Upon the resumption of cross examination, the father was asked what he thought of the mother. His response was that he didn’t think much about her and considered that all he wants to do is get on with his life and she her own. He conceded that the mother is a good parent, that the child loves her and there is no difficulty with Mr F.
As far as the father is concerned school does not present any real difficulties. Whilst the father attends all school concerts and sports days, he is not critical of the mother’s failure to attend because he considers that she is simply keeping out of his way. Whilst he acknowledges that there are some issues in respect of school uniforms being returned to the mother, generally the problem is not insurmountable and the child’s toys and personal belongings transition easily from one parent to the other.
Paragraph 86 of the father’s trial affidavit refers to a conversation with the child in July 2015 when the child is reported to have said “Mum told me we are moving to Sydney and I don’t want to go.”
The father’s response was that “I don’t want you to go. I want things to stay the same as they are so that we could see each other all the time.”
The father’s evidence was impressive on this topic. He made a proper admission that he had engaged in a conversation with the child, but it could not be said that he was required to remain “sphinx like” in circumstances where the child was emotional and the father’s response appropriate.
I am satisfied that whilst the topic of relocation is raised by the child from time to time, it is not a matter that is pursued by the father, nor does he take advantage of any opportunity to persuade the child against any attempt at relocation.
The father acknowledges that there has been some poor behaviour by the child in class and agrees with the general assessment of the report of Ms R, psychologist. He does consider that there has been some softening of his behaviour both in terms of frequency and nature and the father refers to a more positive discourse with the child’s teach in a parent/teacher interview in 2015.
As was expected, the father was challenged strongly in respect of his alcohol consumption. The father was not suggesting that he no longer consumes alcohol, but rather has modified his drinking such that he drinks beer and in moderation. He admits that in 2009 he abused alcohol and that he had a history of driving under the influence of alcohol.
He did however undertake a six week program for alcohol abuse with South East Drug and Alcohol and considers that the program was helpful in him controlling his alcohol consumption.
At its worst, the father would consume 12 to 15 alcoholic drinks a day. He acknowledged that a psychologist cautioned him about his use of alcohol and considered that his consumption was serious. The father conceded that he was self-medicating.
He did counter the allegation of alcohol abuse by referring to the significant family and business stressors that were in play in early 2014. On a bad day he would consume a full carton of beer. On a better day only a half a carton.
He admitted that he had a history of smoking marijuana and whilst he had taken methamphetamines, the last occasion was in 2010.
It was put to him that in 2013 when the police attended his premises and he was charged with firearms offences, a search produced cannabis and cannabis seed.
The father admitted that he accepted responsibility for possession of cannabis and was given an expiration notice. He explained the presence of drugs and smoking equipment on his property as having been a leftover from a time when he would host parties at his premises.
The father was not able to resile from the circumstances in which semi-automatic shot gun loaded with live ammunition and assorted ammunition was discovered by the police when they attended the property. The shot gun was found lying next to the water tank, a silencer in the house and a box of assorted bullets and other ammunition was also uncovered.
The father’s difficulties in this regard were compounded by this police search and resultant charge occurring at a time when the father had admitted problems with alcohol consumption.
The father no longer uses firearms, but still does go deer hunting with a bow and arrow. He does not take the child in deference to the mother’s objections, but instead takes his own son M who is aged four.
The father admitted that he was wrong to have kept the fact of his imprisonment from the mother and that it was also deceptive of Ms K to pretend that the child was in the father’s care.
It was also relevant that arrangements were made for the child to be brought for visits with the father to the T Town prison and the father’s rationale was that he saw the child for three weeks for two hours duration, representing a total of six hours.
The real issue was not that the father was imprisoned, but it was a breach of trust not just by the father but also by Ms K in deceiving the mother as to the father’s whereabouts.
In circumstances where the father freely admits that he wants nothing to do with the mother and he is content for Ms K to communicate with her, it is vital that nothing impedes that relationship. The father’s conduct had the very real potential to place at risk the tenuous line of communication between the mother’s home and that of the father.
The mother has complained of the father’s refusal to engage in any flexible arrangement that should properly be considered from time to time.
A prime example was the mother’s request that her time with the child commence at the conclusion of school on Friday and the father’s refusal to countenance any variation to the order unless the order was extended so that the child would spend time with him from Sunday evening through to the commencement of school on Monday morning.
When the mother refused the father would countenance no change.
The father’s refusal made no apparent sense. Whilst it must be acknowledged that the father is keen to maximise the time that the child spends with him, this should not occur if there is a corresponding detrimental outcome on the child. That is the situation arising from the current arrangements between the parties. It makes good sense that the mother should pick up the child from school at the commencement of her time. It makes no sense that the child should be subjected to a further hour of travelling so that the father can spend an extra 30 minutes with the child.
The clear motive behind the father’s refusal has more to do with him not getting the change that he wanted namely, an extension of time through to Monday morning.
Even more puzzling was the father’s demand that there be make-up time to represent the period of time that the child was with the mother (in the father’s time) for the purposes of the family assessment report. The father conceded that he retained the child on 21 February 2016 until 8.30 pm notwithstanding that the child was to be returned by 5.00 pm.
Similarly, the father enrolled the child in Little Athletics but did not tell the mother. He was asked why he did not think it proper that she be informed and his trite answer was that he was not aware that consent was required.
A similar circumstance arises in respect of Auskick. Whilst training is certainly on a Thursday night, there are games on a Saturday which may well impact on the mother’s time.
It would have been a matter of common courtesy for the mother to be consulted as to whether she agreed that the child should be enrolled in Auskick or indeed any other extra-curricular sporting activity that was likely to impact upon the time that the child spends with her, or indeed with the father.
At first the father was not prepared to make any concession that the mother should have been informed of these matters. It was only when the father realised that his somewhat rigid and uncompromising position may well be adverse to the orders that he seeks that he recanted his opposition and conceded that perhaps it would have been better if he had spoken to the mother.
The father enrolled the child at a community centre. He did not seek the permission or approval from the mother and her details were not placed on the child’s enrolment. It was only that the mother had found out from a third party source that she was able to explore the arrangements by which the child was attending his school.
I find that the father took all necessary steps such that the mother was deliberately left off the enrolment form. The father’s behaviour was outrageous. The father did however provide a copy of the relevant Court order to the school.
The father admitted to a fractured relationship with members of his family. Whilst in dispute with his father over the running of the family farm, once that had been resolved he now has a more cohesive relationship with him. The same could not be said for his mother. He has not seen her for a couple of years and accordingly the child has no relationship with his paternal grandmother, nor indeed with the father’s sister or brother namely, the child’s aunt and uncle.
There is some uncertainty as to the reason for what appears to be an almost total breakdown in the father’s relationship with his extended family.
There were aspects of the father’s evidence which could be considered as disarmingly frank. I consider that he was generally truthful, but in that respect I am left in little doubt as to his attitude towards the mother. Any suggestion that his adverse view of the mother has ameliorated over time is lacking in foundation. His dislike for her and refusal to engage on any basis is palpable.

Ms K

Ms K formed a relationship with the father in mid-2010. There are two children of the relationship namely M and N.
Ms K has a family history of farming and has a good relationship with her immediate and extended family.
She is aware of the father’s history and of recent date has sought the assistance of a counsellor to help her cope with the current proceedings.
Ms K is aware of the father’s history of alcohol and drug abuse. I accept her evidence that she maintains a strict no-drug policy and that alcohol is now more closely monitored.
She was frank in admitting that she was concerned about the father’s mental health in the second half of 2013. This coincided with the breakup of the family farming enterprise. The parties have however moved into happier times and notwithstanding two relatively short periods of separation, she considers that the family is strongly bonded.
I accept that she has a good relationship with the child. It is not suggested by the mother otherwise. She was impressive in terms of her preparedness to communicate with the mother and she is happy to discuss matters with the mother both face to face but also by text message or email.
She did however admit that she was complicit in taking the child to see the father when he was incarcerated and sent text messages to the mother that did not disclose that the father was in prison.
She held the same view of the father in respect of the child’s enrolment in Auskick and the school namely, that she could not think of any reason why the mother should have been consulted before enrolment.
Moreover, she supported the father’s insistence upon make-up time to compensate the father for the period that the child was with the mother undergoing the assessment with the family consultant.
She could not see any difficulty with the father’s approach.
I consider that Ms K was keen to tell the truth. It was also apparent that she was highly supportive of the father.
Of greater importance however is that she has a positive and close relationship with the child.
It is a feature of this case that each of the parties’ current partners are entirely suitable to have a significant engagement with the child and I suspect that the child benefits from his association with them.

Ms U – family consultant

The evidence of the family consultant is contained in her report dated 10 February 2016 annexed to an affidavit of the mother’s solicitor filed 29 April 2016.
On the joint instructions of the parties she was requested to undertake an assessment “in relation to future care arrangements for [the child], the question of his mother’s proposed relocation to H Town and likely impact of relocation on his relationship with his father”.
At the time of assessment the child was eight years of age. He was able to engage appropriately with the family consultant and appeared to have a clear understanding about the issues that affected him namely “He was attending to talk about moving to Sydney as advised by his mother.”
The child enjoyed and was strongly bonded to each of his parents and their partners. Other than the father’s immediate family, he had a close and positive relationship with extended family and friends associated with the separate households.
It appears that the child had given some consideration to the issue of relocation and raised with the family consultant that he did not want to move to Sydney and would miss the father, his partner, friends, family and his current school.
He understood that his mother wanted to move to H Town in order to be with Mr F and not surprisingly he was torn by the thought of leaving his father if he were to relocate to H Town, but equally did not wish that his mother left him behind.
It was recorded that he would be “sad and disappointed” to be significantly separated from either of his parents.
The family consultant elicited a significant history from the child of the activities in each household. It is clear that the child is engaged in a close and loving relationship with his parents. There is nothing to suggest that he is more closely attached to one parent or another. The activities in each household are different but he is no less engaged. Broadly speaking, the attraction for the child in the father’s household is the emphasis on farm based activities, motor bike riding, hunting and a range of extra-curricular sporting activities.
The activities in the mother’s household, whilst less energetic, were nonetheless felt by the child to be important. It is recorded that the child related well with the mother and he said that he liked playing lego, reading and spelling.
But for the obvious conflict between the parties the current arrangements seemed to serve the child well. The support for that contention can be found in the results of the family relations test where the child assigned dependency items in approximately equal numbers to both parents, their respective partners and the maternal grandparents. He assigned positive items in approximately equal numbers, again to both parents, partners, his maternal grandparents and siblings.
Importantly the majority of negative items were assigned to Mr Nobody.
The child presented as happy and content with his life, having the support of his parents and their partners.
He was however aware that his parents were not friends and regrettably the conflict between the parties was at such an overt level that there were arguments and hostility. He recognised that his parents fought with each other and his observations were at a level that he formed the opinion:-
His father was the angriest person in fights and sometimes was angry with him”. The child reported his mother and [Mr F] did not like [Ms K] and told him to say nasty things about her so he could go to Sydney.
The family consultant formed an accurate assessment of the child’s current education milestones and recognised that the child achieved a reading accuracy of 6.7 years and reading comprehension of 6.11 years notwithstanding a chronical age of 8 years 4 months. Whilst the child recognised he had difficulties with articulation and spelling, it seems he considered he was popular at school and both parents were keen that time was necessary to improve his vocabulary and reading comprehension.
His principal worry was about going to H Town where he would miss his friends and family. He reported “His life was bad ‘because of going to Sydney or not’.”
The child recognised that at times he was not calm and he was quick to anger. He is clearly a worried child and as far as the parameters of the assessment are concerned, the worry appears to be related to the uncertainty of life should he be required to relocate to H Town.
Not surprisingly, there was nothing of concern that arose from the observations of the child in the company of his parents, their partners or his siblings. His assessment of the relationship and attachment to his parents was admirably demonstrated by the observations of the family consultant.
In the separate interviews the mother reported the history of her relationship with the father both pre and post-separation.
She considered that the child was an average student, but lacked confidence and was performing below average with his reading, writing and spelling. He had a history of speech difficulties which she understood had been the subject of at least some assistance via a speech pathologist.
There is apparent in the mother’s presentation a concern that the father has taken unilateral action in respect of the child consulting various health professionals without her knowledge or consent.
There appears to be a lack of communication or willingness on the part of the child’s school to provide current and ongoing advice to the mother.
Both the mother and Mr F referred to the child being quick to anger if he did not get his own way and that his tantrums had the capacity to quickly escalate. The mother perceived that the difficulty in the child’s behaviour was that it escalated after his visits with the father. As was apparent from the evidence of the parties, the mother confirmed to the family consultant that there was no communication between them. A communication book had been tried but was unsuccessful. Any communication that occurred was between the mother and the father’s partner. There had been difficulties in the parties reaching easy agreement as to mundane arrangements with respect of the child.
The concern of the mother is that absent the involvement of Ms K there could be no relationship with the father and communication would be non-existent.
The mother reported that she was anxious to relocate to live with Mr F and to be a family unit. Their two younger children did not see their father and this was a concern.
The mother expressed concern that the father was limited in his parenting skills, but that he presented an environment that was fun and in which the child could do whatever he liked. She remained concerned about the child’s focus on weaponry and on the use by the father of a bow and arrow to hunt.
The father described the child as emotional and prone to tantrums. There was concern that of recent date the child had been acting out at school and that his behaviour had become overtly aggressive involving throwing chairs, banging his head on the ground and stating that he wanted to die. The father considered that the child was demonstrating his active resistance to the potential for change by a relocation to H Town.
There was significant disagreement as to the ability of each of the parents to look after the child’s health needs. The father alleged to the family consultant that the mother was unconcerned about hygiene issues, had moved residence on eight occasions and had often left the child in the care of her parents when she went to H Town.
Any suggestion that the father and Ms K were less than diligent in respect of the child’s care, safety and hygiene requirements was strongly denied.
Whilst the father was not prepared to concede the history of family violence as reported by the mother, he did concede that at the time of separation he had grabbed the mother by the foot and pulled her out of the car. He considered that during their married life the mother had “put him through hell” and as such his preference was to promote communication between Ms K and the mother.

Whilst there is no specific principle of procedure that is required to be brought to account when relocation is either overseas or involves a substantial distance between the relocating party, relocating parent, the child or children and the remaining parent, nonetheless a tyranny of distance is likely to reduce the options available to the parties.
In the decision of Zahawi & Rayne (2016) FamCAFC 90 the Full Court considered a number of authorities both international and local and summarised the position as follows:-
[47]All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow & Callinan JJ said in U v U:
…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
[48]“Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
(Footnotes omitted)

PROPOSALS OF THE PARTIES

The mother’s proposal is as set out in the orders that she seeks. She would seek the ability to immediately relocate with the child to H Town and that thereafter the father’s time would occur during extended school holidays and on other opportune times when the mother would return to the South East to visit her parents.
Whilst it is difficult to assess with any precision the extent of time that the child would spend with the father, it is a reasonable assessment that it would reduce from the current 140 nights a year to approximately half that amount.
By necessary implication, it could not be said that the mother’s proposal would provide “significant and substantial time” with the father. It is likely that it would be time sufficient to maintain a relationship, but it would certainly be a substantial diminution of that which currently takes place.
The advantages of the mother’s proposal is not necessarily centred upon the child, but rather focusses on the difficult family situation which confronts her in that Mr F has secured permanent employment in H Town and at present he is separated from the mother and their children. It must be conceded that as far as those children are concerned it is not an appropriate arrangement.
The obvious disadvantage of the mother’s proposal is that it would fundamentally affect the relationship that the child has with his father.
The converse is likely to apply in respect of the father’s proposal. In opposing the relocation, he preserves the current relationship with the child but ignores the potentially deleterious effect on the mother.
A difficulty in the evidence is that the family consultant was of little assistance in determining what would be the likely effect on the child if relocation was permitted.
A further omission in the evidence was that there was nothing to assist the Court in determining whether if relocation was refused how that would impact upon the mother and then her ability to parent the child. It is not a matter for the Court to extrapolate beyond that which the evidence supports namely, that the mother would be clearly upset if her application is refused. What cannot be assumed is the magnitude of that upset and whether it would transition to something that would inherently and fundamentally affect her ability to parent the child.
In the circumstances of this case, I consider that the primary care has been the province of the mother and there is nothing in the report of the family consultant that would suggest that an alteration to the current parenting arrangements namely, to accede to the father’s proposal of equal time is indicated or warranted. The family consultant does not consider that it would be in the best interests of the child for his time to be shared equally between the parties given their conflict and hostility.

PARENTING CONSIDERATIONS

Meaningful relationship

In Mazorski & Albright [2007] FamCA 520 Brown J commented on the definition of “meaningful” and said:-
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn is generally used as a synonym for “important” or “of consequence”… when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equal shared parental responsibility and the requirements for the time with the children to be, where possible in their best interests, substantial and significant.
I consider that significant emphasis should be placed on the relationship that the child has with each of his parents.
Notwithstanding the protestations of the mother that she was not aware or did not appreciate the implications of the final orders made in 2011 (a contention that I find is not supported on the evidence) the reality has been that the child has spent significant and substantial time with the father.
Notwithstanding my criticism of the lack of assistance provided by the family consultant in terms of the likely or possible effect on the child if relocation is permitted, I am entitled to rely upon her evidence to support the proposition that there is a close relationship between the child and his father and that it is important to the child and of significant benefit.
The family consultant does not consider that there should be equal time spent, but at the very least would not support any diminution of the current arrangement if relocation is not ordered. The current circumstances provide for significant and substantial time. To put it into ordinary context, I am required to consider as a primary consideration the benefit to this child of having a significant and substantial relationship with both of his parents, but in terms of the parent most likely to be affected by the order of relocation, the father.
Whilst not dealing with the same point, the decision of the Full Court in Eddington & Eddington (No 2) (2007) FLC 93-349 is of assistance in terms of the meaning of substantial and significant time as provided for in s 65DAA(4). The Full Court said:-
[54]It is evident that, although orders for time to be spent with a parent fall literally within the provisions of s 65DAA(3)(a)(b) and (c), that does not mean that the orders thereby provide for substantial and significant time within the terms of the legislation. It is equally evident that orders made for time spent cannot satisfy the requirements of substantial and significant time unless they literally meet all of the requirements of those provisions. What constitutes substantial and significant time will vary from case to case. What is substantial and significant time in one factual context may well not be in another. Whatever their terms, orders for substantial and significant time will have in common that they literally comply with each of the requirements created by s 65DAA(3). There is no issue that the orders under consideration did so comply.
The family consultant considered that without an order for relocation it was important to this child that he continue to spend time with his father on weekends, school days and holidays. There was relevance that the father be able to engage in the child’s daily routine and in particular in respect of occasions and events of significance.
The orders sought by the mother would not appear to fall into the category of significant and substantial time. At best the child would spend holiday time with the father, but there would be no circumstance where the father could travel to H Town, or the child return to the South East on any basis that would enable the father to participate in the day to day activities of the child, or in respect of special occasions or important school events.
The evidence supports that in this case the interests of the child are likely to be served by an order which provides for a meaningful relationship, it is whether that can be satisfied by the proposal of the mother or of the father.
The father however seeks to increase his current time from five nights a fortnight to six nights. Clearly neither party seeks that the child spend equal time with each of them.

The need to protect the child

There is much evidence as to the history of the father’s criminal offending, drug and alcohol use and aggressive conduct. The father in general concedes that in the past his behaviour has not been without blemish. Nonetheless, other than the father’s apparent obsession with hunting, there is little of the father’s history or conduct that would impact upon the orders that should properly be made. The mother is not suggesting that the father’s time should be limited either by scope or condition other than because of her proposed relocation. Clearly, by her own proposal the mother contemplates the child spending extended periods of time in the father’s care. It is unlikely that any concern that the mother may harbour in respect of the father’s behaviour or history would be ameliorated by sheer dint of the child only spending holiday time in the father’s care as opposed to the current parenting arrangements.
Some of the matters of concern to the mother may be a relevant consideration in respect of parental responsibility, but it is difficult to see how they can have resonance where the mother’s proposal is predicated upon relocation and not as a response to concerns about the father’s parenting.
That does not ignore the genuine concern of the mother as to the father’s interest in hunting and his desire to include and involve the child in those activities. The family consultant does not consider that the child is able to emotionally cope with hunting activity which would see animals hunted with a bow and arrow. It must be remembered that this child has a certain behavioural fragility and that there are aspects of his behaviour which are aggressive in their display. The child is quick to anger and is difficult to calm down. It is reasonable to attribute the hunting activities engaged in by the father as an aggressive pastime, the effect of which on this child is unknown but unlikely to be of benefit.
It is reasonable to place weight on the recommendation of the family consultant that the child not engage in hunting activity until he is 12 years of age.

Views of the child

The child was clear and unequivocal to the family consultant that he does not wish to relocate to H Town. He seems to have a reasonable understanding of the concept and that it is enhanced by him having spent some time in H Town with the mother visiting Mr F. He has met Mr F’s extended family and his son. He has a reasonable basis for comparison.
Whilst he is not necessarily aware of the mother’s proposal should relocation be permitted, he is able to understand that there would be a substantial change in the current arrangements. He does not wish there to be a change and the family consultant has found that the child’s focus on relocation and its consequences have been an ongoing source of distress and anxiety to him.
The father does not support relocation and whilst the mother is anxious to reunite her family with Mr F, she recognises that the child has a strong connection with the father.
The child is aware that the issue of relocation weighs heavily on his parents and he observes the heightened conflict, anger and anxiety engendered by the mother’s proposal.
The child does not want to relocate to H Town if it means a change in the current arrangements. Equally, he does not want his mother to leave him behind, nor does he want to spend more time than presently is the case with his father.
It is reasonable to expect that this child would not have a sophisticated view of all of the issues involved. It might be said that neither does his parents. These are complicated and distressing issues to all involved. The mother’s anxiety is well understood. As was said in U v U (2002) 211 CLR 238 at [92]:-
… The reality is that maternity and paternity always have an impact upon the wishes and the mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
It is likely that there is no more difficult parenting consideration than when a party seeks to relocate.
I think it is reasonable to place weight on the views of the child as expressed to the family consultant. It is hardly surprising that this child would not wish to experience a change in a current arrangement where he enjoys the company of each of his parents and their involvement in a range of aspects of his life. He cannot necessarily understand the anguish of his mother in wanting her family to function as a single unit, but that does not diminish the obligation on the Court to consider the best interests of the child as the paramount consideration.

Nature of the relationship of the child with others

The child has a close relationship with his mother, father, their separate partners, his siblings and extended family and friends. There is no reason to doubt the findings of the family consultant following the administration of the various standardised tests which assist in determining the extent of the child’s relationship with significant adults. It is to be remembered that the child considered his parents and their partners as positive people in his life and was not able to ascribe any negative feelings towards any of those people that feature in the environment of his mother or his father.

The extent to which each of the child’s parents are involved in the child’s life

The mother has been the primary caregiver and has appropriately engaged herself in the necessary decision making in respect of the child. The father has also undertaken that role but has done so by abrogating his responsibility to that of his partner. Whilst that is not in and of itself problematic given my finding that Ms K is an appropriate person to be involved with this child, what comes with that approach is a deliberate intention by the father to have nothing meaningful to do with the mother. This has resulted in what might be considered as “parallel parenting” rather than any attempt at a cooperative and consensual approach to major issues that affect the child.
There is a high level of inflexibility that underpins the current parenting arrangements and whilst it could not be said that there is any issue of non-compliance with Court orders, the level of rigor and unyielding refusal to engage with the mother is a matter that I consider the father refuses to address.
Notwithstanding that the father considers that the mother has been the cause of significant distress both financial and emotional to him, the reasons given in evidence lack mature reflection and provide no basis for his rigid approach.
The consequence is that whilst I reject that there is any good reason for the father to maintain his entrenched position of hostility towards the mother, I am satisfied that it is nonetheless the father’s position and will continue into the future. I do not consider that the involvement of Ms K significantly ameliorates the adverse consequences of the father’s refusal to engage and communicate.

Likely effect of any change in the child’s circumstances

On the father’s case, there would be no change on the child’s circumstances other than an increase of one night per fortnight. That is not supported by either the mother or the family consultant. She is of the view that the father’s determination not to engage with the mother has the potential to adversely impact on the child in the sense that there is no likely of joint parenting decisions being made.
The child needs certainty rather than the uncertainty created by the continued conflict of his parents.
The mother’s proposal however has a far more dramatic effect. As discussed, the child’s time with the father would reduce from 140 nights per year to about 70 nights per year. In terms of the concept of whether the mother’s proposal would be sufficient to maintain a meaningful relationship with the father, I suspect that it would, but there would be a fundamental change in the relationship and that what this child needs is to maintain a relationship that is substantial and significant. Each case is different, but as presently indicated I am not satisfied that the mother’s proposal would represent a maintenance of the level of the relationship that the child requires with his father.
It is difficult to opine what might be the reaction of the child if the mother determined that she would relocate to H Town leaving the child in the primary care of the father. That is not her current position, nor indeed would I bring that issue into consideration given the mother’s evidence, but it is obvious that the child would be equally distressed if faced with any diminution of time with his mother.
There is always likely to be significant practical difficulty in a relocation case, particularly where the distance of removal is substantial. Whilst the mother proposes that the child’s travel to spend time with the father would be at her expense, the father does not consider that he would have the financial wherewithal to visit the child on a regular basis in H Town. Accordingly, whilst there may not be a practical difficulty in respect of the mother’s proposal in terms of returning the child to spend time with the father, any proposal by her that would enable the father to travel to H Town to spend time with the child is unlikely to be possible.

The capacity of the child’s parents and other persons to provide for his needs

Whilst each of the parties are critical of the other, the family consultant considered that each of the parties were able to provide for the child’s emotional and intellectual needs although it is more likely that the child’s education would be better catered for by the mother, whereas more active and outdoor activities are more likely to be supported by the father.
The mother does not consider the father to be an appropriate role model because of his history of criminal offending, alcohol and drug use and aggressive behaviour. I have already considered this aspect and whilst there may be some relevance to the mother’s concerns in terms of parental responsibility, I consider the mother’s focus on these issues to have been inconsistent with her own proposals.

Family violence

There are no issues in respect of family violence that impact upon the orders that should be made.

Parental responsibility

The parties presently enjoy equal shared parental responsibility. The father seeks that it continue, the mother seeks that in any event she should have sole parental responsibility.

Much has been said as to the ability of the parties to deal with each other. I do not consider that the child has been well served by the current orders in respect of parental responsibility. There is evidence of each of the parents treating various health and other considerations of the child separately and without advice to the other.
A communication book was tried and I accept the mother’s evidence that the father refused to cooperate.
There is no alteration to my finding that the father is steadfast in his refusal to engage or communicate with the mother and that his dislike for her is clearly evident. Whilst of some assistance, the involvement of Ms K cannot be seen as providing the necessary communication between the parties such that the father’s entrenched opposition to the mother can be ignored.
There is nothing in respect of the parties current parenting arrangements in respect of parental responsibility that could be seen as being in the best interests of this child.
Irrespective of where the child lives, I consider that the mother should have sole parental responsibility for matters of the child’s health and education, with the balance of issues being the subject of shared parental responsibility. The issues that are likely to then need discussion are matters that can properly occur between the mother and Ms K becoming what might be considered the more mundane day to day considerations rather than the major issues such as health and education.
The mother will of course need to consult with the father, but ultimately I have determined that she should have the ability to make the final decision in the absence of any agreement.
Notwithstanding that a decision against an order of equal shared parental responsibility would in the ordinary course relieve the Court of the obligation to consider the provisions of s 65DAA, nonetheless I have given consideration to whether the child should spend equal time with each of his parents. I do so because the father seeks something that approximates equal time and accordingly, each of the parties separate proposals must be considered and dealt with.
For the reasons that have been given, I do not consider that it would be in the child’s best interests for the child to spend equal time with each of them. The evident hostility and inability to reach consensus speaks against such a proposition and in any event, on this aspect, I am prepared to accept the evidence of the family consultant that speaks against any increase to the current arrangement.
The same cannot be said however for significant and substantial time. The current arrangements are supported by the family consultant and importantly provide what appears to be a sound basis for the child’s future development. Whilst there are difficulties at school, there are promising signs of improvement and importantly, the child appears content with the current arrangements. He does not want to spend less time with his father, nor with his mother.
The focus therefore is whether there are advantages to the child in the relocation to H Town.
Whilst I have no doubt that the mother is understandably distressed and anxious at the dysfunction in her own family, there is little or no evidence presented to the Court as to the effect upon her ability to parent the child in the absence of an order for relocation. I am obliged to consider the best interests of the child and unless there is evidence which suggests that the mother’s ability to parent the child would be so compromised that it becomes a factor to brought to account, the state of the evidence is that the mother will be distressed but not such as to diminish her capacity as a parent.

CONCLUSION

The Court is faced with an acutely difficult decision. Ultimately I have determined that the needs of this child are best served by maintaining a relationship with the father that could not be maintained on the mother’s proposal.
There does however need to be some change to the arrangements and in particular I propose that the mother shall have the sole parental responsibility for the child’s health requirements and education, but maintaining shared parental responsibility for other issues.
I am also not convinced that the mechanics of the current arrangements serve the child well. Whilst it may be considered of some advantage that the child spend time in each week with each of his parents, given the child’s age and the inflexibility instilled into the current process by the father, there would be advantage in the father’s time being spent as a block rather than divided up over two periods. The child will not be the subject of the current extended travelling and the transition by the child between his parent’s homes will be significantly reduced.
I note also that the parties at the commencement of the proceedings tendered orders that they sought to be made by consent. As discussed, I am not convinced that all of those orders are able to be made, particularly where it relates to the extent to which each of the parties should consume alcohol during any period of time that the child is in their care. Such an order has little chance of enforcement if one party alleges that it has been breached.
There is merit in an order restricting the child’s access to firearms and hunting whilst in the care of the father until he reaches the age of 12 years.
I make orders as appear at the commencement of these reasons.

I certify that the preceding three hundred and ninety two (392) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 5 August 2016.

Associate:

Date: 5 August 2016

[2016] FamCA 631

5 August 2016

Key Legal Topics

Areas of Law

Family Law

Negligence & Tort

Legal Concepts

Injunction

Natural Justice

Procedural Fairness

Remedies