GOLDSTEIN & HOPKIRK

[2010] FMCAfam 469

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GOLDSTEIN & HOPKIRK [2010] FMCAfam 469

FAMILY LAW – Parenting – history of drug addiction – perpetrating family violence – relocation order – behaviour of party’s partner – relocation opposed by Family Consultant and Independent Children’s Lawyer – parental responsibility – Part VII, Family Law Act 1975 – s.60CC primary and additional considerations – equal shared parental responsibility.

Family Law Act 1975, ss.4, 13C, 60B, 60CA, 60CC, 61B, 61C, 61D, 61DA, 62B, 64B, 65DA, 65DAA, 68B, 68C

AMS v AIF (1999) 199 CLR 160
Bennett v Bennett [2001] FamCA 462, (2001) 28 Fam LR 231; (2001) FLC 93-088
F v F (2007) 38 Fam LR 52
Flanagan & Hancock[2000] FamCA 150; (2000) 27 Fam LR 615; (2000) FLC 93-074
Illidge & Norton [2008] FMCAfam 1255
In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713
In the Marriage of Wood (1976) 2 Fam LR 11,182
Lindell v Ranteri [2010] FamCA 52
Morgan v Miles (2007) 38 Fam LR 275
Newlands v Newlands [2007] FamCA 168; 37 Fam LR 103
Ryder & Roby [2009] FMCAfam 416
U v U (2002) 211 CLR 238

Applicant: MS GOLDSTEIN

Respondent: MR HOPKIRK

File Number: SYC 5722 of 2007

Judgment of: Monahan FM

Hearing date: 23 November 2009

Date of Last Submission: 28 April 2010

Delivered at: Sydney

Delivered on: 24 September 2010

REPRESENTATION

Counsel for the Applicant: Mr Kelly

Solicitors for the Applicant: Fowler Predny Solicitors

Counsel for the Respondent: Mr Friedlander

Solicitors for the Respondent: Aubrey Brown Partners

Counsel for the Independent Children’s Lawyer: Ms Castle

Solicitors for the Independent Children’s Lawyer: Redleaf Family Lawyers

THE COURT ORDERS THAT:

1. All previous orders in relation to the children, [X] born in 1999 and [Y] born in 2004 (‘the children”) be discharged.

2. The parties have equal shared parental responsibility for the children.

3. Unless otherwise agreed, the children live with MS GOLDSTEIN (“the Mother”) within a twenty-five (25) kilometre radius of Suburb A.

4. The children spend time with MR HOPKIRK (“the Father”) as follows:

   (a)commencing 11 October 2010, during school terms

   (i)in week one, from after school Thursday until before school on the following Monday (or Tuesday if a long weekend); and

   (ii)in week two, from after school Thursday until before school Friday;

   (b)commencing 24 September 2010, for half of all school holiday periods (“the holidays”) as agreed or, failing agreement:

   (i)for the first half of the holidays in odd numbered years; and

   (ii)for the second half of the holidays in even numbered years;

   (c)where not already spending time with the Father, from 2:00pm Christmas Day until 2:00pm Boxing Day in even numbered years;

   (d)on the Father’s birthday from after school until 6:30pm if a school day or from 10:00am until 2:00pm if a non-school day; and

   (e)on Father’s Day at times as agreed between the parties or, failing agreement, from 6:00pm on the Saturday prior until 6:00pm Fathers’ Day.

5. Where not already spending time with the Mother, the children spend time with the Mother from 2:00pm Christmas Day until 2:00pm Boxing Day in odd numbered years.

6. Where not already spending time with the Mother, the children are to spend time with the Mother on Mother’s Day at times as agreed between the parties or, failing agreement, the children shall be returned by the Father to the Mother’s care at 6:00pm on the Saturday evening prior to Mothers Day.

7. On each of the children’s birthdays, the children spend time with the party whom they are not otherwise living with or spending time with on those days at times as agreed between the parties or, failing agreement, from after school until 6:30pm on school days or from 10:00am until 2:00pm if a non-school day.

8. In the event that changeover does not occur at the children’s school, then unless otherwise agreed, changeover occur at Meeting Place A.

9. The children are to communicate with both parents by telephone, or internet equivalent, (“telephone time”) at any reasonable time as agreed or, failing agreement: 

   (a)when the children are otherwise living with or spending time with the Mother, the Father can nominate a half hour period between the hours of 5:00pm and 7:00pm three evenings per week for telephone time;

   (b)when the children are otherwise living with or spending time with the Father, the Mother can nominate a half hour period between the hours of 5:00pm and 7:00pm two evenings per week during school terms and three evenings per week during school holidays for telephone time;

   (c)each party will provide the other with their telephone time nominated periods in writing within 48 hours of the date of these orders and thereafter if either party wishes to change their nominated periods they shall provide the other party with at least seven (7) days written notice prior to any such change;

   (d)unless as otherwise agreed between the parties, each party will supply the other with a mobile telephone within seven (7) days from the date of these orders to be used for telephone time only, except in emergency situations, and further that:

   (i)each party is to ensure that the mobile telephone provided by the other is switched on and its battery is fully charged;

   (ii)the children are otherwise available and encouraged to make or receive the telephone call;

   (iii)the children are discouraged from making any other telephone calls or text messages not related to telephone time, except in emergency situations; and

   (iv)where a pre-paid mobile telephone is provided, the party providing such shall ensure that the account has sufficient credit to enable calls to be made and/or received during telephone time.

10. Unless otherwise agreed between the parties in writing, the children complete their primary school education at the [omitted] School.

11. Each party be entitled to receive all notes, reports, newsletters and the like from the children’s schools and participate in any meetings or events to which parents are invited to attend.

12. Each party be at liberty to attend the children’s schooling, sporting and extracurricular activities and each party ensure that the children attend all sporting and extracurricular activities in which they may be enrolled from time to time.

13. Each party forthwith, and from time to time as required, do all things and sign all documents necessary to enrol the children in agreed sporting and extracurricular activities.

14. Each party notify the other party of any change to his or her residential address and/or telephone contact details within 48 hours of such change taking place.

15. Each party notify the other party as soon as practicable of any serious illness, injury or medical emergency in respect of the children and for the purposes of obtaining non-urgent medical treatment, the parties shall take the children to Dr M or such other available doctor at the [omitted] medical centre.

16. Each party be restrained from denigrating:

    (a)the other party;

    (b)any partner of the other party; or

    (c)any family member of the other party

    in the presence of the children.

17. Each party be restrained from smoking or consuming alcohol to excess whilst in the presence of the children.

18. In the event that the parties are unable to reach agreement regarding the children’s long term care, welfare and development (including the children’s schooling, sporting and extracurricular activities) both parties participate in family dispute resolution.

19. Pursuant to s.13C of the Family Law Act 1975 (“the Act”) the parties:

    (a)attend and complete, as soon as practicable, a post-separation parenting program (“the Program”) at an organisation as agreed or, failing agreement, at an organisation nominated by the Independent Children’s Lawyer;

    (b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;

    (c)if applicable, pay and otherwise be responsible for all costs associated with the Program; and

    (d)provide an appropriate certificate of completion of the Program to the other party or the other party’s solicitor.

20. Subject to paragraph 19(a) herein, the appointment of the Independent Children’s Lawyer be discharged.

21. All extant applications be otherwise dismissed.

AND THE COURT NOTES THAT:

A.The purpose of paragraph 19 herein is to assist the parties to develop the ability to communicate with each other directly.

B.Pursuant to ss.65DA(2) and 62B of the Act, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and those particulars are included in these Orders.

C.Pursuant to r.21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 5722 of 2007

MS GOLDSTEIN

Applicant

And

MR HOPKIRK

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case involves an application by MS GOLDSTEIN (“the Mother”) for various parenting orders in relation to [X] born in 1999 (“[X]”) and [Y] born in 2004 (“[Y]”) (collectively “the children”).

2. The application is opposed by the respondent, MR HOPKIRK (“the Father”), who is seeking different parenting orders in relation to the children.

3. The parties have a long history of court proceedings between them with respect to parenting matters dating back to 2004. Prior to the transfer of the matter to the Federal Magistrates Court in 2007, various interim parenting orders were made in the [omitted] Local Court on 5 November 2004. These orders were discharged and replaced by orders made in the terms of settlement agreed to by the parties on 26 November 2004 (“the Terms of Settlement”).[1] These orders provided for, inter alia:

   ·each party to have joint parental responsibility;

   ·the children to live with the Father for specified periods, or as agreed; and

   ·the children to live with the Mother at all other times.

   [1] Affidavit of the Father sworn 30 March 2009 and filed 31 March 2009, annexure “A”.

4. On 28 February 2007 the parties prepared, and the [omitted] Local Court approved, consent orders (“the 2007 Orders”)[2] amending the ‘Schedule of Residence’ which had been attached to the Terms of Settlement. The amendments did not change the position that the parties would have joint parental responsibility for the children and that the children would primarily reside with the Mother. The amendments altered the school term spend time arrangements so that both of the children would spend time with the Father each alternate weekend from the end of school Thursday to 7:00 pm Sunday (or Monday if a long weekend), and in the alternate week from the end of school on the Thursday until their delivery to school on the Friday morning. 

   [2] Ibid, annexure “B”.

5. The 2007 Orders also included an order that should the Father be admitted to rehabilitation then the parenting routine would be suspended and the children would spend time with the Father’s parents in lieu on each alternate weekend from 5:00pm Friday to 6:00pm Sunday.

6. In this Court, the matter initially came before Kemp FM on 10 October 2007. The matter was adjourned on that date and again on 2 November 2007. The matter then came before Altobelli FM on 21 December 2007 and on that occasion his Honour made an order for the preparation of a Family Report and other consequential orders and adjourned the matter for mention on 10 June 2008. On 15 February 2008 Kemp FM further adjourned the matter as well as a contravention application to 10 June 2008. The Family Report of Ms M was released by the Court on 28 April 2008.

7. After a further adjournment on 10 June 2008, the matter came before Kemp FM on 11 June 2008. On that date his Honour made orders setting the matter down for a Final Hearing on 11 May 2009 with an estimate of two (2) days and made trial directions. His Honour made a further order in Chambers on 9 January 2009 listing the matter for callover on 12 February 2009.

8. Federal Magistrate Kemp made an order on 12 February 2009, requiring the Mother to notify the Family Report writer of any updated material so that an updated report could be provided at least 14 days before the scheduled hearing, with “any order to that effect to be sent to…Chambers.”

9. On 11 May 2009 the matter returned before Kemp FM and his Honour made various orders. While adjourning the applicable contravention application to the next day, his Honour made orders for the appointment of an Independent Children’s Lawyer (“the ICL”) and by consent, set the matter down for Final Hearing commencing 23 November 2009 and provided further trial directions including the preparation of a further Family Report. An order was made listing the issues the Family Consultant was to consider, and this list included, inter alia:

   ·domestic violence between the parties,

   ·the parties’ history and extent of drug use and

   ·the Father’s criminal history.

   The parties also agreed to an order providing that each had to, following a written request from the other, “submit to a chain of custody drug screen and provide the results of such screen(s) to the requesting party within seven (7) days of the receipt of results”.

10. When the matter continued on 12 May 2009 orders were made by consent making minor amendments to the 2007 Orders. The substance of the ‘live with’ and ‘spend time’ arrangements remained unchanged. The extant contravention application was dismissed.

11. Following further subpoena hearings, the matter returned before Kemp FM on 17 September 2009. Due to the Mother’s failure to comply with a subpoena served on her in August 2009, his Honour made an order for a warrant of arrest for the Mother, with the warrant to lie in Court for a month before being made available for execution, and the Mother was ordered to comply with the outstanding subpoena by 16 October 2009. The matter was adjourned to 19 October 2009.

12. On 19 October 2009 the Court made directions in relation to subpoena matters. Solicitors for the parties appeared and no order for the execution of the arrest warrant was made.

13. A further Family Report prepared by Ms K on 18 November 2009 was released to the parties. 

14. The matter came before me for final hearing from 23 to 26 November 2009. The matter did not concluded on 26 November 2009 and was adjourned part heard to 27 April 2010 for an estimated one to two days. Orders were also made substantially by consent on 26 November 2009 as follows:

    a)for the current parenting orders to remain in force subject to certain variations in relation to changeover;

    b)the Father obtaining a Medicare card with the children’s name on it;

    c)arrangements for non-urgent medical treatment for the children; and

    d)for communication between parties to be via a communication book, to be purchased by the Father.

15. The matter returned before me on 27 April 2010 and the final hearing concluded on 28 April 2010.

16. All parties were represented by Counsel throughout the final hearing, with Mr Kelly appearing for the Mother, Mr Friedlander appearing for the Father, and Ms Castle of Counsel appearing for the ICL.

Proposals

The Mother’s proposal

1. In her Second Further Amended Initiating Application filed 11 November 2009 (“her application”), the Mother proposes orders that:

   ·the Mother have sole parental responsibility for the children;

   ·the children live with the Mother;

   ·the Mother have approval to relocate with the children to the Suburb C area;

   ·the children spend time with the Father from 6:00pm Friday until 6:00pm Sunday each alternate weekend during school terms and for one half of all gazetted school holiday periods;

   ·changeovers occur at Meeting Place A in Suburb A;

   ·the children communicate with the Father by telephone each Thursday evening between 5:00pm and 5:30pm;

   ·spend time arrangements for special occasions;

   ·a mutual non-denigration order; and

   ·a restraint on each party consuming alcohol to excess or using illicit substances for a period of 12 hours before and during any time spent with the children; and

   ·a restraint on the Father approaching the Mother except as provided for by the orders, going within five kilometres of the Mother’s home and from contacting the Mother by any means whatsoever unless in case of emergency relating to the children.

The Father’s proposal

1. In his ‘Minute of Proposed Orders’ submitted to the Court prior to the commencement of the final hearing the Father proposes orders that:

   ·the parties have equal shared parental responsibility for the children;

   ·the children live with each parent on a week-about basis, with the exception of the gazetted Christmas school holidays or in the alternative, should the Court find that an equal time arrangement is not in the best interests of the children, that the children live with the Father, during school term, each alternate week from the end of school Wednesday to the commencement of school Monday (or Tuesday if a long weekend);

   ·the children spend time with the Father for one half of all non-Christmas gazetted school holidays as well as one half of the gazetted Christmas school holidays and other special days;

   ·in the event that changeovers do not occur at the children’s school or at a place as agreed, then changeovers occur outside Meeting Place A in Suburb A;

   ·the children communicate by telephone with the parent they are not otherwise living with or spending time with “on a regular and reasonable basis”;

   ·the parties be restrained “from relocating with the children away from Suburb B of New South Wales”;

   ·a restraint on each party from smoking or consuming alcohol to excess in the presence of the children; and

   ·a mutual non-denigration order.

The ICL’s proposal

1. In a Minute of Proposed Orders, the ICL sought various orders including that:

   ·the parties have equal shared parental responsibility;

   ·unless otherwise agreed, the children live with the Mother within a five kilometre radius of Suburb A;

   ·unless otherwise agreed in writing, the children shall complete their primary school education at the [omitted] School;

   ·the children spend time with the Father during school terms in week one from after school Thursday until before school the following Monday (or Tuesday if a long weekend) and in week two from after school Thursday until before school Friday;

   ·the children spend time with the Father during half of all school  holiday periods and other special days;

   ·in the event that changeover does not occur at the children’s school, then unless agreed, changeover occur at Meeting Place A;

   ·the children communicate with both parties by telephone at any reasonable time, such communication to be initiated by either the child or the party;

   ·each party be entitled to receive all notes, reports, newsletters etc from the children’s schools and participate in any meetings or events to which parents are invited to attend;

   ·each party be at liberty to attend the children’s schooling, sporting and extracurricular activities and each party ensure that the children attend all sporting and extracurricular activities in which they may be enrolled from time to time;

   ·each party do all things and sign all documents necessary to enrol the children in agreed sporting activities, and failing agreement the Father be solely responsible for enrolling the children in sporting and extracurricular activities;

   ·each party notify the other party of any change to his or her residential address and/or telephone contact details within 48 hours of such change taking place;

   ·each party notify the other party as soon as practicable of any serious illness, injury or medical emergency in respect of the children and for the purposes of obtaining non-urgent medical treatment, the parties take the children to Dr M or such other available doctor at the [omitted] medical centre;

   ·each party be restrained from denigrating the other party or any partner or family member of the other party in the presence of the children; and

   ·each party be restrained from smoking or consuming alcohol to excess whilst in the presence of the children.

Background

1. The Mother was born in 1969 and is currently aged 40 years. The Father was born in 1967 and is currently aged 43 years.

2. The parties commenced cohabitation in late 1997 (as the Mother asserts) or early 1998 (as the Father asserts)[3]. The parties agree that they finally separated in September 2004.[4]

   [3] Affidavit of Mother sworn 1 April 2009 and filed 6 April 2009, paragraph 11; Affidavit of father sworn 30 March 2009 and filed 31 March 2009 (“the Father’s first affidavit”), paragraph 2.1.

   [4] The Father’s first affidavit, paragraphs 2.1, 2.6; Affidavit of Mother sworn 1 April 2009 and filed 6 April 2009, paragraph 24; Case Outline of Independent Children’s Lawyer (unfiled), page 2.

3. The Mother has re-partnered with a Mr C. Although the Mother and

   
   

   Mr C have separate residences, the Mother indicated that it was their intention to share a house together in the future.[5]

   [5] Affidavit of Mr C (also known as “Mr C”) sworn 8 November 2009 and filed 11 November 2009, paragraph 3; Affidavit of Mother sworn 9 November 2009 and filed 10 November 2009, paragraph 46.

4. The Father has not re-partnered since separation and currently lives in a public housing property in Suburb A.[6]

   [6] The Father’s first affidavit, paragraph 13.2.

5. As stated, there are two children of the relationship, namely [X] and [Y] who were aged 10 and 6 years at the time of the hearing.

6. Mr C has one child from a previous relationship, [Z], born in 1998 (“[Z]”).[7]

   [7] Affidavit of Mother sworn 9 November 2009 and filed 10 November 2009, paragraph 46.

7. The Mother is in good health although she states that she has suffered “battered wife syndrome” as a result of the domestic violence which she alleges occurred during the parties’ relationship.[8]

   [8] Affidavit of Mother sworn 1 April 2009 and filed 6 April 2009, paragraph 49.

8. Throughout the relationship the Mother worked in the medical industry and was the “sole financial provider” as the Father was unemployed.[9] The Father has been on a disability support pension since approximately 2005.[10]

   [9] Ibid, paragraph 11.

   [10] The Father’s first affidavit, paragraph 1.4.

9. The Father has an extended criminal history including findings of guilt for breaches of an apprehended domestic violence order (“ADVO”). He also has a long history of drug use. These respective histories are described in the Father’s affidavit sworn on 30 March 2009 and filed 31 March 2009 (“the Father’s first affidavit”),[11] and are also outlined in the Father’s Chronology.

   [11] See paragraphs 3.1-3.6 and 4.1-4.13 respectively.

10. The ICL also provided the Court with a chronology listing significant events in the parties’ lives and relationship. The parties are not in significant disagreement as to the following:

    ·1982:

    The Father begins using illicit substances;

    ·1999:

    [X] born;

    The Father spends five months in gaol;

    ·2003:

    The Father spends five weeks in gaol;

    The Father begins drug addiction counselling and suboxone[12] program;

    [12] Suboxone is a substitution treatment for opioid dependence.

    ·2004:

    [Y] born;

    The Father commences pharmacotherapy maintenance;

    Parties separate;

    The Mother and children spend three months in women's refugee;

    [X] injured after the Father knocked him over with car (incident reported to DoCs);

    Incident at parties’ home and police remove the Father from premises;

    The Mother obtains two year ADVO against the Father;

    The Father charged and convicted with ADVO contravention and he serves prison sentence;

    Parties enter into Terms of Settlement in relation to parenting matters at [omitted] Local Court;

    ·2005:

    The Father begins receiving disability support pensions due to diagnosis of depression;

    Interim parenting orders made at [omitted] Local Court;

    ·2006:

    The Father attends detoxification in [omitted] Hospital;

    ·2007:

    The Mother obtains further two year ADVO against the Father;

    [X] begins four sessions with child psychologist;

    Parties enter into amended “consent orders” to the schedule of parenting;

    The Father charged with five counts of contravening an ADVO but charges later dismissed;

    DoCs approaches the Mother in relation to the Father’s complaint against her;

    Incident outside [Y]’s day care and the Father arrested with breach of ADVO but charge later dismissed;

    ·2008:

    The Father charged with 13 counts of contravening an ADVO in late 2007;

    The Father subsequently convicted of four counts (the remaining nine counts were dismissed);

    The Father placed on “Section 9 Bond” for 12 months;

    Parties attend Legal Aid Conference to resolve their parenting dispute but come to no resolution;

    ·2009:

    The Mother’s ADVO against the Father expires;

    Following incident at the Mother’s home in late January, the Mother re-applies for ADVO against the Father;

    The Father secures permanent Department of Housing accommodation in Suburb A;

    ADVO obtained by the Mother for a further 6 months;

    Final hearing of parenting dispute commences;

    ·2010:

    Final hearing of parenting dispute concludes.

The issues

1. Broadly speaking, the following issues were in dispute at the hearing:

   ·whether the presumption of equal shared responsibility should apply or whether the Mother should have sole parental responsibility for the children;

   ·whether either party should be solely responsible for enrolling the children in sporting and extracurricular activities;

   ·whether the Mother should be able to relocate with the children from the Suburb A area to the Suburb C area; and

   ·depending upon whether the Mother’s proposed relocation is permitted, what parenting arrangements should be place, and in this respect, whether the Father should spend substantial and significant time with the children.  

Family Report

1. Two family reports were prepared in relation to this dispute. The first was prepared by Ms M, a Regulation 7 Family Consultant, and dated 28 April 2008 (“the first Family Report”). The second was prepared by Ms K and dated 18 November 2009 (“the second Family Report”).

The first Family Report

1. Ms M conducted her interviews with the parties and the children on

   
   

   26 March 2008.

2. Ms M describes her interview with the Mother in paragraphs 3 to 13. In paragraph 3 and 4 she states:

   “3. Ms Goldstein (38) resides in Suburb B with her two children. She has lived there for the last 2 years and has no plans to move away from her current location in the near future. She works during school hours with an [omitted].

   4. Ms Goldstein has a partner 'Mr C' (33) for the last 12 months. He resides in Suburb D [sic], situated 300 km away from her current location. The couple spend time together on a fortnightly basis. The Mother further shared that she wanted to relocate to Suburb D however in recent times has decided to not move and expressed a view that in the future Mr C may move to live with her.”

3. In paragraphs 12 and 13 she states:

   “12. Ms Goldstein informed that currently the Father spends time with the children from Thursday night to Friday morning one week and Thursday night to Sunday night in the other week. She felt that this regime was not working in the best interests of the children because the Father refused to take [Y] to preschool and their son to school on the fortnightly Fridays on many occasions. She shared that she would present evidence to Court that the Father was not taking [X] to school on the fortnightly Friday and she was concerned that same problem would apply to [Y] when she commences grade prep [ie. kindergarten] next year. She was aware that when he took them to school he was often late.

   13. The Mother was also concerned that the Father did not have adequate accommodation and did not have a car or a valid licence to transport the children. She expressed a view that the Father was often homeless because he did not relate well with people in general. Ms Goldstein proposed that in the future the children spend time with the Father on the fortnightly basis from Friday to Sunday”.

4. Ms M describes her interview with the Father in paragraphs 14 to 20. In paragraph 18 to 20 she states:

   “18. The Father expressed a view that the Mother was trying to send him to jail. He did agree that he had broken the Intervention Orders on several occasions by approaching the Mother, but each time it was about the issues related to the children such as to request more time with the children or to get some clothes for the children etc. When asked if it was reasonable behaviour on his part the Father responded that 'I am like that. I am slowly learning my lessons now.' His children particularly his son often asked to spend more time with him but the Mother disagreed.

   19. Speaking about his future plans the Father shared that he wished to have equally shared time with the children. Currently he had the children for 4 nights per fortnight which was each Thursday overnight and fortnightly from Thursday to Sunday. He wished to have the children in his care for a week at a time with Monday changeovers. Mr Hopkirk explained that his son wanted him to become involved with him playing footy and attend his school etc. The Father complained that the Mother never provided him information about children's schooling. He regularly spoke to the school principal and helped the children with their homework at home.

   20. Mr Hopkirk explained that he strongly opposed the idea of his children moving to Suburb D [sic] and he was seeking an order to stop the Mother from relocating the children. He further expressed some fears about Mother's capacity to provide protective care for the children. He shared that he was aware that the Mother had endured sexual abuse as a child and he was worried when in recent times when [Y] had told him that she had 'a sore fanny' however he was informed by the children's day-carer that she had received injuries in an accident. On the other hand the Father also shared that Ms Goldstein generally was a good Mother and provided adequate care for the children.”

5. Ms M describes her observation and discussions with the children in paragraphs 21 to 25:

   “21. [X] is 9 years and is in grade 3. Ms Goldstein shared that [X] was a dreamer and sensitive child. Sometimes he emotionally withdrew and in the past he had presented self harming behaviour and she had taken him to a psychiatrist. She felt that the Father often let him down by being inconsistent and unpredictable with regard to his parenting responsibilities.

   22. [X] reported that he liked spending time with his father as they both spent time together fishing, swimming and other outdoor activities. He liked to spend increased time with his father and at least wanted to spend some time alone with his father so that both of them could do some mutually likable activity together without his little sister tagging along unwillingly.

   23. [X] did confirm that at times his father did not take him to school and sometimes he attended late. He informed that his father rented a room in a house where there were other people. [X] loved his father and wished that he could spend more time with him.

   24. [Y] is 4 years old and she commences school next year. [Y] seemed physically very petite but with a stubborn nature. She was quite clinging to her parents and was not interviewed on her own. Her play with the toys mainly consisted of two animals fighting with each other saying 'you go away' and 'you go way first'

   25. The children particularly [Y] seemed to have a closer and dependent relationship with their Mother. Both parents were affectionate and attentive. The children seemed to have fun in the company of each parent.”

6. Finally, Ms M provides her evaluation and recommendations in paragraphs 26 to 34:

   “26. [X] and [Y] in this case are 9 and 4 years of age. The children have always resided in the primary care of the Mother and have spent 4 days in a fortnight with their father. In the recent past the Mother had a plan to relocate the children to Suburb D [sic] which is 300km away from her current location. The Father strongly opposes such move. The Mother however in recent items have made a decision not to relocate and informs that her current partner might be moving in with her instead.

   27. There needs to be an order to stop the Mother from relocating the children to a location 25 km away from her current location until she obtains a further order to do so or a written consent from the Father.

   28. Although relocation is not an issue anymore the Father is seeking increased time with the children. He believes that the children particularly his son wishes to live in a week about regime with him. The Mother does not deny that their son enjoys the time spent with his father. However she does not believe that the shared care regime would be suitable and healthy for the children. She has several concerns about the practicability of a joint care arrangement apart from her belief that the children will not be able to feel a sense of belonging in a regime where they lack a basic sense of belonging as they constantly shift between two homes.

   29. The writer is of the view that the children are very young and they need a constant carer and consistent parenting arrangements. [X] may be wishing to have more time with his father but [Y] is still much attached to her Mother and likely to experience difficulties if away from her Mother's care for extended periods particularly on a regular basis.

   30. The Mother also alleges that she has the evidence to prove that the even at the current time the Father does not take the children to kinder and school on his days, has no permanent adequate accommodation or transport to provide for the children which is likely to cause disruption to the settled life of the children if they are placed in the Father's care during school days.

   31. Furthermore given the drug history of the Father it is also prudent that Mr Hopkirk submits a random supervised drug screen result to Court to establish that he has quit drug taking. It is essential that the Father does not drive the children around whilst he is unlicensed. If there are concerns established in the above areas the Father will need to address the problematic issues with professional support.

   32. The writer believes that the children could continue the current Court orders provided that the Father gives an undertaking that he takes responsibility for the children to attend kinder and school regularly and on time. However if it is proven that the Father has difficulties in ensuring the school attendance of the children, the current arrangements could be changed and the children could spend time with their father from Friday after school to Monday morning to school on a fortnightly basis and the Thursday overnight visit in the other week is cancelled. This might reduce the disruption to the children's routine, cut down travel, enhance the quality of time spent between the Father and the children with the long weekend and ensure that the children are at school on each Friday.

   33. If the current orders are changed [X] should be allowed to speak to his father twice on the phone particularly in the alternate week when he spends no physical time with his father.

   34. The Court orders need to strongly stipulate that both parties particularly father needs to follow the Court orders strictly in terms of when he spends time with the children as well as when and where the children are retuned to the Mother's care in the future years. This might reduce the occurrence of further litigation in the matter.”

The second Family Report

1. Ms K conducted her interviews with the parties and the children on 13 November 2009. On this occasion Mr C and [Z], were also interviewed. The Father’s mother, Ms T (“the paternal grandmother”) and her partner were also present and were observed in the presence of the children.

2. Throughout her report, and for reasons associated with his alleged fear of the Father, Ms K refers to Mr C by the alias “Mr C”.[13] Ms K also states that Mr C is himself involved in Family Law proceedings in relation to his now 12-year-old son, [Z], whom she states lives with

   
   

   Mr C.[14]

   [13] Second family report, paragraph 2.

   [14] Ibid.

3. Ms K outlines the current arrangements, applications and proposals of the parties in paragraphs 4 to 7. In paragraphs 6 and 7 she states:

   “6. During the interviews Ms Goldstein advised that she is now seeking that: the children be able to relocate to the Suburb C area, and thus change schools; spend time with their father, fortnightly, from 6 pm Friday until 6 pm Sunday; school holidays be shared. It is not clear as to whether or not she will continue to seek sole parental responsibility from the children. She is also considering whether, should the children be permitted to relocate, the address not be disclosed their father.

   7. During the interviews Mr Hopkirk said that he seeks that: the parents have equal shared parental responsibility for the children; the children live in an equal time parenting arrangement; the children not being moved from the Suburb B area. Mr Hopkirk said that, provided the children remain in Suburb B, he might consider the current parenting arrangements continuing, albeit with the block period extending to before school on Monday. He also seeks to be able to enrol each of the children in a sporting or similar activity and take them to and from that activity.”

4. Apart from the major issues in dispute, Ms K identifies the following additional issues as relevant:

   “9. Issues identified during assessment:

   ·   Impact of poor communication on parenting arrangements

   ·   Impact on parenting arrangements as a result of the Mother’s allegations the Father continues to harass her and her partner

   ·   Issues for Mother as a result of her partner’s concerns about the Father’s alleged threats and harassment

   ·   Impact on children and their relationships with their father and paternal grandmother should they be permitted to relocate

   ·   Impact on Mother’s parenting ability and ability to continue to foster children’s relationship with the Father should children not be permitted to relocate

   ·   What impact, if any, there is on the Mother’s current proposals as a result of her partner’s family law proceedings regarding his son”

5. Ms K describes her interview with the Mother in paragraphs 10 to 12:

   “10. Ms Goldstein (aged 30 years) [sic] is a parent who, despite prior concerns regarding the suitability of the accommodation which Mr Hopkirk had, nonetheless supported the children spending time with him and acknowledges that they love him and he them. According to Ms Goldstein the children's relationship with their father now seems more settled than it has been in the past. In part she attributes this to the fact that Mr Hopkirk has obtained stable accommodation and she expressed a sense of relief that this had occurred after him experiencing a period of, what she described as, 'homelessness'. She clarified this statement by explaining that Mr Hopkirk was renting rooms from various friends/acquaintances for several years.

   11. According to Ms Goldstein she has been, and continues to be, harassed by Mr Hopkirk. She alleges that: he has made threats to her partner, including a threat to kill him; has driven past her home shouting abuse; has collected [X] from school and walked him home without her knowledge; and that, in the past, Mr Hopkirk has refused to return the children to her care in accordance with Court orders. She said that she experiences a significant degree of stress as a result of Mr Hopkirk’s behaviour and thus seeks to relocate to the Suburb C area. She believes that she will be able to continue to work for her current employer, should she relocate to the Suburb C area. On the day of the interviews Ms Goldstein said that she has looked at rental property in the area as well as schools for the children and believes that she will be able to obtain appropriate accommodation and enrol the children in local schools. Should she and tile children relocate she said that she would take responsibility for driving the children to and from Suburb B, on those weekends on which they spend time with their father. She is adamant that it is not her intention to disrupt the children’s relationship with their father rather, she seeks to alleviate tile stress which she says she is suffering from, as a result of the close proximity of her home to that of the Father.

   12. Despite Ms Goldstein seeking sole parental responsibility it seems that, after discussing the parenting aspects to which this relates, she might reconsider whether or not she will continue to seek sole parental responsibility. Ms Goldstein, however, does not believe that communication between her and Mr Hopkirk is likely to improve in the foreseeable future. Ms Goldstein expressed concern that Mr Hopkirk uses the children, and thus communication between the parents, in order to retain 'a hold on' her. Ms Goldstein said that she would like Mr Hopkirk to behave towards her, and communicate with her, in a manner which mirrors how she believes she behaves towards, and would like to communicate with, him.”

1. Ms K describes her interview with the Father in paragraphs 13 to 16:

   “13. Mr Hopkirk (aged 32 years) [sic] described having a positive relationship with each of his children and described Ms Goldstein as a good Mother. He said he does not understand why she will not communicate with him and denies all her allegations regarding harassment of either her or her partner. He, however, admits that he has told [X] and [Y] that he does not like their Mother’s partner, albeit that he has not met him. Mr Hopkirk believes that Ms Goldstein's partner's name is 'Mr C' asserting that the children told him that this was his name.

   14. According to Mr Hopkirk the children are settled in the current parenting arrangement and thus he wondered whether or not, despite him seeking an equal time arrangement, the current arrangement ought to remain in place. Should the current arrangement continue, however, he said that he preferred to extend the children's time with him until commencement of school on Monday. In part this was related to more time with the children and, in part, to reducing the contact between the parents.

   15. Mr Hopkirk does not support the children relocating to the Suburb C area, or to any area outside of Suburb B. He is concerned that, after meeting her current partner, Ms Goldstein, initially, proposed to relocate to Suburb D. He does not understand why she wishes to move to the Suburb C area, particularly as [X] is settled in school. Mr Hopkirk also expressed concern that, should the children move from the Suburb B area, Ms Goldstein would not be committed to the children spending time with him on a consistent basis.

   16. Ms Goldstein declined to take part in a joint interview with Mr Hopkirk. Each parent accuses the other sending inappropriate text messages and photographic images to the other and each believes that such messages and images are deliberate attempts to undermine/harass the other.”

2. Ms K describes her joint interview with the Mother and Mr C in paragraphs 17 to 21:

   “17. Ms Goldstein and her partner explained that her partner is fearful of Mr Hopkirk, as a consequence of the alleged threats Mr Hopkirk has made on her partner’s life.

   18. On her arrival Ms Goldstein advised that her partner was waiting outside the Registry as he was concerned that he might come into contact with Mr Hopkirk. When he came into the secure area he would identify himself only as 'Mr C', and exhibited behaviour consistent with being highly anxious. He advised that he did not want either himself or his son to come into contact with Mr Hopkirk or any member Mr Hopkirk’s family. Nor did he want any information regarding him or his son revealed to Mr Hopkirk or members of his family. When his son needed to go to the child care room, and he was thus required to complete the child care form, he was informed that Mr Hopkirk had advised that his name was Mr C*, he agreed that this was the case. His son, who was present during this conversation, giggled and asked his father why he said that his surname was ‘Mr C’. Mr C* informed him that he ought to recall that, when they were with Ms Goldstein and her children, they had agreed that this was the name he would use. His son is known by his Mother’s surname.

   19. Mr C* confirmed Ms Goldstein’s history of their relationship: they met on the internet in about 2006 and have been spending time together for the last two and a half years. They described their relationship as 'committed' and confirmed that they propose to live together. At this stage it is not certain when this will occur, however Mr C* said that he and his son will move to live with Ms Goldstein in the Suburb C area. Should Ms Goldstein not relocate but remain in Suburb B whether or not Mr C* will move is not clear.

   20. An exploration of Mr C* high level of anxiety, in response to Mr Hopkirk’s alleged threats failed, from the writer’s perspective, to elicit any factual basis for his level of anxiety. According to Mr C* he has never before experienced any threats directed towards him and it seems he believes that Mr Hopkirk is, or could be, capable of acting on the threats. He attributes these concerns to the level of anxiety which he experiences both for himself and his son.

   21. 1t is apparent that, at this stage, Mr C* has not considered what the issues will be should his son’s Mother not agree to the child relocating with his father. His son was described as: settled in school, where he is in Year 5; doing well academically; and being liked by his teachers. Mr C* also described his son’s relationship with his Mother in positive terms, adding that his son currently spends time with his Mother, each fortnight, from Wednesday until Monday. There was a general discussion around the issues for this child, in terms of the couple's proposal to both live together and all of the children being required to change schools, lose friendships and move away from one of their parent’s [sic]. Ms Goldstein and Mr C* said that they have considered all these issues and believe that they will be able to support their respective children in relation to such a move.”

3. Ms K describes her observation and discussions with the children in paragraphs 22 to 27:

   “22. Ms Goldstein and Mr Hopkirk each described each of their children in similar terms. Both said that [X] is the more sensitive of the two and 'cries easily', and that [Y] is a child who tells people what she thinks. Ms Goldstein described [X] as loving his friends and acknowledges that he would find it difficult

   leaving his friends and changing schools. According to Ms Goldstein, [X] had been self-harming (scratching his arms with his nails; punching himself in the face; hitting his head) in 2007. He was referred to Clinic A. It seems that this did not result in any on-going intervention. The Court is likely to be assisted by the records from this centre being subpoenaed.

   23. [X] (aged 10 years 9 months) and [Y] (aged 5 years 7 months) were observed informally throughout the day with their father; their Mother’s partner’s son, when he joined them in the child care room; their Mother and Mr C*; and their maternal grandmother [sic] and her partner. At all times the children's behaviour indicated they were happy, relaxed and have a warm and affectionate relationship with each other and each of their parents. [X] takes on a protective and supportive role in relation to [Y]. His response, on greeting his paternal grandmother, was spontaneous and affectionate and more akin to what one would expect from a much younger child. It was evident that, for [X], she is, and has been, an important adult in his life. While [Y]'s response to her grandmother was similar it lacked the intensity of [X]'s response. There was only minimal interaction between the children and Mr C* [X] and Mr C’* son were observed to be relaxed with each other and their play was co-operative.

   24. [X] spoke positively about his life at school and the friends he has there. He is in Year 4 (having, according to his parents, repeated Kindergarten). [X] made positive statements about his relationship with each parent and said that he feels he can trust each of them and thus confide in them both. He said that he has told each of them that he wishes to live in a '50:50' arrangement and believes that they each support this. [X]'s comments regarding Mr C* indicate that he is likely to have an ambivalent relationship with him, and does not consider him a part of his family. He described having a positive relationship with Mr C’* son.

   25. [X]’s wish is for his parents to 'get back together' although he understands that this is not going to occur. In the alternative his wish is 'for them to be friends ... see each other sometimes'. Despite the lack of communication between his parents [X] does not believe either of them is angry with the other parent. He, however, thinks that making a decision about the parenting arrangements 'is hard' for each of his parents.

   26. [Y] made positive comments regarding each parent and further exploration of her relationship with each of them elicited responses which indicated that she is loyal to them both and experiences each of them as being emotionally available to her. She included her paternal grandmother and her partner in her family drawing, although not Mr C* or his son. She volunteered that she did not want Mr C (Mr C*) to live with them as 'Daddy doesn't like him'. Her wish is to live with her family i.e. all those people she put in her family drawing.

   27. [Y] thinks that: her father is a 'bit' angry (although she said she does not know why); her Mother and Mr C* are angry with each other; and that [X] is also a 'bit' angry (again she does not know why).”

4. In relation to the specific list of questions referred to the Family Consultant by the orders made, by consent, by Kemp FM on 12 May 2009, Ms K states at paragraph 28:

   “A. Domestic violence between the parties: each parent denies that she/he was violent towards the other parent. Ms Goldstein said that Mr Hopkirk’s violence towards her was always linked to his drug use and/or his demands for money to purchase drugs. Mr Hopkirk alleges that there were several incidents of physical violence by Ms Goldstein directed towards him. No allegations are made by either parent regarding any violence being directed towards either child.

   B. Father’s history and extent of drug use: Mr Hopkirk admits to drug use in the past (‘smoked pot a fair bit … injected heroin and took amphetamines’) but asserts that he has not used any illegal substances for ‘the last two years’ and the results are clear. He is currently on a suboxone program.

   C.  Mother history and extend [sic] of drug use: Ms Goldstein admitted to ‘trying pot’ when she was living with Mr Hopkirk but asserts that she last used an illegal substance ‘about six months prior to becoming pregnant with [Y]’.

   D. Compliance with existing orders: Information provided by each parent seems to indicate that, since early 2009, the current Orders have been complied with. Mr Hopkirk, however, admits that, in the past he has, on some occasions, failed to return the children at the specified time; not taken [X] to school as they  were visiting his parents in Suburb F; and that he has, on occasions breached the be apprehended violence order, as according to him, that he has been unable to contact Ms Goldstein and consequently had gone to her home.

   E. People with whom children live or spent time: It seems that, from the children’s perspective, the only significant adults, apart from their parents, are the paternal grandmother and, to a lesser extent her partner. Neither the parents nor either of the children made any adverse comments regarding the relationships of the children with either of these adults.

   F. Fathers criminal history: According to Mr Hopkirk his police record will show that he was disqualified from driving (until 2026) ‘about six years ago’ and has breaches for various Apprehended Violence Orders. He denies having any convictions serious offences.

   G. Communication between the parties: Both parents agree that their communication is poor and thus a problematic area in terms of their parenting of the children.

   H. Any views expressed by the children: See paragraphs 24, 25 and 26.”

5. Ms K provides her evaluation in paragraphs 30 to 40. In summary she states that:

   ·     the children “experience positive, supportive and affectionate relationships with each of their parents” and present as “being settled in the current parenting routine”;[15] they have a good sibling relationship and appear to be progressing well emotionally and academically;

   [15] Second Family Report, paragraph 30.

   ·     the Father’s proposal for an equal time parenting arrangement is not, at this stage, appropriate;[16] the children’s young ages, and the poor communication between parties, “would not normally support a recommendation favouring an equal time parenting arrangement”;[17]

   [16] Ibid, paragraphs 30 and 36.

   [17] Ibid, paragraph 30.

   ·     the children “will benefit from a continuation of the current stability they enjoy” in terms of:

   othe Father being able to provide appropriate housing for them when they are with him;

   othe current pattern of spending time with their father each week;

   o[X] being able to continue in the same school, and [Y] also being able to attend school with him;

   othe children remaining in an area with which they are familiar; and

   othe children being able to continue to have regular contact with their paternal grandmother.[18]

   [18] Ibid, paragraph 35.

   ·     the children are not aware of either their Mother wishing to relocate them to the Suburb C area or her plans to cohabit with Mr C;[19]

   ·     given that each party agrees that [X] is a ‘sensitive’ child, and given the Mother’s admission that [X] ‘loves’ his friends, [X] will “find it difficult to change schools”;[20]

   ·     the Mother’s relocation plans are “puzzling” and “do not indicate that she has properly reflected on what such a change will mean for the children”, and in particular, [X]; her plans seem more to reflect what she and her partner want, rather than what will be in the best interests of the children;[21]

   ·     the Mother’s wish “to put more distance between her home and that of the Mr Hopkirk is not an unusual wish for a parent to express” and is perhaps motivated by Mr C’s anxiety regarding the Father’s alleged threats;[22]

   ·     should the children move to the Suburb C area then the Mother’s spend time proposal is appropriate, yet some consideration ought to be given to the children spending other time with their father if he is able to travel to their local area;[23]

   ·     if the proposed relocation also coincides with Mr C and [Z], moving to live with the Mother and the children, “there are likely to be significant tensions in the household in terms of the children’s adjustment to each other and, for [X] and [Y], a possible sense of being disloyal to their father”; the Mother and Mr C “will, in these circumstances, benefit from professional assistance to help them to deal with the issues which are likely to flow from the large number of simultaneous changes the children will be required to adjust to”.[24]

   ·     many of the issues raised by the Mother about the Father “seem more related to issues from their relationship and the early years of their separation”; despite her allegations that the Father “continues to harass her”, the Mother “is also able to acknowledge that many of the issues ‘have settled down’ this year, particularly in relation to the children and the parenting arrangement”; this is likely to be due, in part, to the Father “securing appropriate accommodation and also abiding by the terms of the current Apprehended Violence Order”;[25]

   ·     despite “the poor communication between the parents”, it appears “that the children have, to a large extent, been protected from this”; and as such the parties are likely to benefit from completing a parenting orders program that will assist them with their inter-communication;[26]

   ·     the level of anxiety which Mr C seems to be experiencing is of concern and what impact this anxiety has had on the Mother’s  decision to seek to relocate is not known;[27] and

   ·     it is “troubling that Mr C* wishes to ensure that neither the writer, nor the Father, and thus also [X] and [Y] know his name”; this deliberate deception creates problems for [Z].[28]

   [19] Ibid, paragraph 30.

   [20] Ibid, paragraph 31.

   [21] Ibid, paragraphs 31-32.

   [22] Ibid, paragraph 32.

   [23] Ibid, paragraph 36.

   [24] Ibid, paragraph 37.

   [25] Ibid, paragraph 34.

   [26] Ibid, paragraph 33.

   [27] Ibid, paragraph 39.

   [28] Ibid, paragraph 40.

6. Finally, Ms K provides the following recommendations in paragraphs 41 to 46:

   “41. It is recommended that the parents have equal shared parental responsibility for [X] and [Y].

   42. It is recommended that the children live with their Mother in Suburb B.

   43. It is recommended that the children’s time with their father continue as is but extend to Monday morning on each alternate weekend.

   44. It is recommended that the children remain at the current school (with [Y] commence there in 2010).

   45. Should the Court deem it appropriate that the children relocate to the Suburb C area then their time with the Father ought to commence at the conclusion of school on Friday until the commencement of school on Monday, provided that Mr Hopkirk is able to collect and return them to school. If this is not possible it is suggested that the changeover venue be a Contact Centre in either Suburb C or Suburb E and that such changeover occur on Friday and Sunday.

   46. It is recommended that school holidays continue to be shared provided that Mr Hopkirk is available to personally supervise the children.”

Evidence of the parties

1. Both parties provided the Court with affidavit and oral evidence.

2. In addition Mr C gave evidence on behalf of the Mother and the paternal grandmother gave evidence on behalf of the Father.

Applicant Mother’s evidence

1. In support of her application, the Mother relied upon the following documents:

   ·Second Further Amended Initiating Application filed 11 November 2009;

   ·Mother’s Affidavit sworn on 1 April 2009 and filed 6 April 2009 (“the Mother’s first affidavit”);

   ·Mother’s Affidavit sworn on 9 November 2009 and filed 11 November 2009 (“the Mother’s second affidavit”);

   ·Affidavit of Mr C sworn 8 November 2009 and filed 11 November 2009; and

   ·Affidavit of Dr M sworn 16 November 2009 and filed 20 November 2009.

2. The Mother presented as a capable parent who demonstrated her clear love and affection for the children. That said, she had difficulty in acknowledging or accepting that the Father should play any major role in the child’s lives and not all her responses were child-focused.

3. Mr C presented as a polite witness who took time to answer the questions put to him. He did not, however, appear to appreciate his own misguided and immature behaviour in sending unsolicited and anonymous text messages and photos to the Father that resulted in a ‘tit for tat’ response. While Mr C clearly desires to further his relationship with the Mother, this does depend on the outcome of his own Family Law dispute with the mother of [Z]. While Mr C described himself as a “trusted male” in the children’s lives, he did not see himself as a father figure for them.[29]

   [29] Transcript, 25 November 2010.

Respondent father’s evidence

1. In support of his response, the Father relied upon the following documents:

   ·Response filed 4 May 2009;

   ·“the Father’s first affidavit”;

   ·Affidavit of the paternal grandmother sworn 1 May 2009 and filed 5 May 2009;

   ·Affidavit of the paternal grandmother sworn 22 October 2009 and filed 26 October 2009;

   ·Father’s Affidavit sworn on 22 October 2009 and filed 26 October 2009 (“the Father’s second affidavit”);

   ·Father’s Affidavit sworn on 19 November 2009 and filed 25 November 2009 (“that father’s third affidavit”); and

   ·Chronology and “Minute of Proposed Orders”.

2. Generally speaking, the Father presented as a polite witness who appeared genuinely concerned for the children’s welfare. However he was at times a little evasive about his past behaviour.

3. The paternal grandmother presented well and is clearly a positive influence on both the Father and the children.

ICL’s evidence

1. The ICL relied on her ‘Outline of Case Document’ and her ‘Orders Sought by the Independent Children’s Lawyer’ as well as the first Family Report and the Second Family Report (collectively “the Family Reports”).

2. Ms K, writer of the second Family Report was also required for cross-examination purposes.

Ms K’s evidence

1. Ms K was examined by Counsel for the ICL and cross-examined by Counsel for the Father, and at some length by Counsel for the Mother. She did not change her recommendations in her oral evidence.

2. The Full Court of the Family Court’s decision of In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713; contains an authoritative statement about how reports such as the Family Reports should be treated in proceedings such as these:

   “In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.

   (a)  There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities In the Marriage of Wood (1976) 2 Fam LR 11,182, In the Marriage of Harris Fam LN No 33; (1977) 29 FLR 285.

   (b)  Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.

   (c)  While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.

   (d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.

   (e) Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.

   (f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.

   (g) It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.”

   (h) Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation …

   (i)  Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied …”[30]

   [30] In the Marriage of Hall (1979) 5 Fam LR 609 at 614-615; (1979) FLC 90-713 at 78,819-78,820 (per Evatt CJ, Asche SJ and Hogan J).

1. In this matter Ms K’s evidence was tested and not found wanting in relation to her recommendations. Given her expertise and independence, the Court must give the second Family Report and her oral evidence considerable weight.

Law

1. Parenting orders are defined in s.64B of the Family Law Act 1975 (“the Act”) and provide for, inter alia:

   (a)where a child is to live;

   (b)the time a child is to spend with another person; and/or

   (c)otherwise allocate parental responsibility in relation to a child.

2. Section 60CA of the Act makes it clear that, for the purposes of making a parenting order, the Court must regard the best interests of the child, or the children in this case, as the paramount consideration. What is considered to be in the best interests of a child in parenting disputes depends on the particular circumstances in each case; different circumstances require different resolutions. That said, to determine the best interests of a child, the Court must consider the primary and secondary considerations under s.60CC of the Act and these specific provisions will be considered in light of the evidence shortly.

Relocation

1. Relocation cases are not a special category of parenting orders. The Act does not contain any presumption against a relocation order and nor is there any presumption that favours the parent that the children have been primarily residing with.[31] What the Act does is provide the Court with a structured discretion to determine what order is appropriate in the circumstances.[32]

   [31] Morgan v Miles (2007) 38 Fam LR 275 at 289 (per Boland J sitting as the Full Court).

   [32] Ibid.

2. The impact of the 2006 amendments to the Act in relation to relocation cases was described in the following terms by Boland J in the case of Morgan v Miles(2007) 38 Fam LR 275 at paragraphs [79] to [81]:

   “[79] In considering whether the child should live with the parent who proposes to relocate a court:

   ·Must be satisfied the parties have, unless an exclusionary        circumstance applies, genuinely attempted to resolve the      dispute.

   ·Make orders having regard to the child’s best interest as the    paramount, but not the sole consideration.

   ·Be guided in its determination by the objects and principles     underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations   to inform that consideration against a background of the          objects including having regard to both parents having a        meaningful involvement to the maximum extent consistent     with the best interests of the child.

   ·If making a parenting order, or proposing to make an order,    apply the presumption, unless excluded by reason of abuse     or family violence or rebutted as not in the best interests of   the child, that the parties have equal shared parental responsibility for a child.

   ·In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.

   ·When dealing with an application involving an intrastate,    interstate or international relocation of a child may, in some   circumstances, have to craft orders for the allocation of     aspects parental responsibility if it is impractical for the    parties to equally share parental responsibility, and     particular aspects of parental responsibility may, in some   cases, need to be exercised solely by the relocating parent if    the orders sought are made.

   ·Will careful [sic] weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s   best interests, make such order which may provide:

   -   that the child lives with the parent who wishes to      relocate and spends time with, and communicates with, the other parent;

   -   that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;

   -   that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing    locale;

   -   the non relocating parent moves to the venue chosen by   the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the     other parent.

   ·Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.

   [80] It follows from my exposition of the legislation, that earlier core principles:

   ·that the child’s best interests remain the paramount but not sole consideration;

   ·that a parent wishing to move does not need to demonstrate “compelling” reasons;

   ·that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and

   ·the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,

   remain valid.

   [81] What the legislation now requires is:

   ·consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;

   ·if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility.

   but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.” [33]

   [33] Ibid, pp 290-291.

3. In the case of Illidge & Norton [2008] FMCAfam 1255,[34] Neville FM acknowledges that while “freedom of movement of parents is a significant priority” in parenting disputes, the outcome must be “to ensure that any parenting order is in the best interests of the child” and freedom of movement “takes a second place to the paramount interests of the child.”[35] Whilst a parent seeking to relocate is not under an obligation to establish “compelling reasons” to support the move, any relocation must advance the welfare or best interests of the children.[36] As his Honour observed, given the authority of the High Court’s decision in U v U (2002) 211 CLR 238:

   “In determining a relocation case that involves changed circumstance, a Court must evaluate each of the proposals advanced by the parties, without necessarily being bound by them…Put another way, without embarking upon “some roving inquiry”, and subject to the evidence led - and affording procedural fairness to all - a court will not necessarily be constrained solely by the proposals of the parties in determining what is in the best interests of the child.”[37]

   [34] See also F v F (2007) 38 Fam LR 52.

   [35] Illidge & Norton [2008] FMCAfam 1255 at [13]; F v F (2007) 38 Fam LR 52 at 56; see also AMS v AIF (1999) 199 CLR 160.

   [36] Ibid.

   [37] Illidge & Norton [2008] FMCAfam 1255 at [13]; F v F (2007) 38 Fam LR 52 at 56.

Parental responsibility

1. Section 64B(2) of the Act stipulates that a parenting order may include the allocation of parental responsibility for a child. That order may deal with the allocation of responsibility for making decisions about major long term issues in relation to a child. In the absence of a parenting order, s.61C of the Act stipulates that “each of the parents of a child who is not 18 has parental responsibility for the child”.

2. Section 61B of the Act states that parental responsibility “means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. This not only includes those duties and responsibilities relating to such matters as health and education, but also, as stated in the recent case of Lindell v Ranteri [2010] FamCA 52, “the general direction in life that is so important for children in teenage years”.[38]

   [38] Lindell v Ranteri [2010] FamCA 52 at [31] (per Cronin J).

3. In s.4 of the Act, the relevant definition as to what the law expects of parents in relation to this decision-making states:

   “major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

   (a)the child's education (both current and future); and

   (b)the child's religious and cultural upbringing; and

   (c)the child's health; and

   (d)the child's name; and

   (e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.”

4. Section 61DA of the Act requires the Court to presume that it is in the best interests of the children for their parents to have equal shared parental responsibility.

5. Section 61DA(2) of the Act makes it clear that the presumption does not apply if there are reasonable grounds to believe that there has been abuse of the children or family violence.

6. In addition, under s.61DA(4) of the Act, the presumption may be rebutted if its application could be contrary to the children’s best interests, those interests being determined by reference to the matters in s.60CC of the Act in light of the evidence. If the presumption is not applied or is rebutted then the Court must still make an order which is in the best interests of the children, again taking into account the considerations in s.60CC of the Act.

7. As indicated, there is a dispute between the parties that each should have equal shared parental responsibility for the children. The Father and the ICL support an outcome favouring equal shared parental responsibility whereas the Mother is seeking sole parental responsibility for the children.

8. As already noted, in the second Family Report Ms K also recommended an outcome favouring equal shared parental responsibility.[39]

   [39] Second Family Report, paragraph 41.

9. In his proposed orders, the Father is seeking an order for sole parental responsibility in respect of the choosing of, and enrolment in, [X]’s “sporting and other extracurricular activities.” He proposes a similar order that would give the Mother similar sole parental responsibility in respect of [Y]’s sporting and other extracurricular activities.

10. In appropriate cases it is, of course, open to the Court to decide that one or more aspects of parental responsibility may be given to one party alone. This is clear from the terms of s.61D of the Act, and in particular s.61D(1) which states “that an order can confer on a person particular duties, particular powers or particular responsibilities”. This was considered by the Full Court of the Family Court in Newlands v Newlands [2007] FamCA 168; 37 Fam LR 103. which stated at paragraph [84] that:[40]

    “We accept that it was open to her Honour, if she concluded, on the evidence, that it was in the best interests of the children that an aspect of parental responsibility be exercised solely by one parent, to make such an order provided the parties were afforded procedural fairness by raising with them her intention to do so and inviting submissions …”[41]

    [40] In the context where the trial judge (Lawrie J) “allocated one portion of parental responsibility (education) to one party only” (at paragraph [88]).

    [41] [2007] FamCA 168 at [84] (per Bryant CJ, Finn & Boland JJ).

11. The Full Court went on to comment that where a Court proposed an order be made to allocate one aspect of parental responsibility to one parent alone, then two possibilities arose in respect of the remaining parental responsibility:

    1.   There could be an order “that the parties have equal shared parental responsibility for the remaining aspects of parental responsibility, which would require them to make decisions about those remaining aspects jointly as is required by s 65DAC”;[42] or

    2.   The order could “be silent as to the remaining aspects of parental responsibility in which case s 61C and s 61D would have effect and the remaining aspects of parental responsibility would be exercised by both parents either jointly or independently”.[43]

    [42] Ibid, at paragraph [90].

    [43] Ibid, at paragraph [91].

12. The Mother is seeking an order for sole parental responsibility that would, in the absence of any other order to the contrary, allow her to make changes to, inter alia, the children’s living and schooling arrangements, including a relocation. That said, in these proceedings the Mother is also seeking an order to enable her and the children to relocate to the Suburb C area. Apart from making her position clear, such an order recognises, of course, that the Court could restrain the children from relocating despite giving the Mother’s sole parenting responsibility, or giving the Mother a certain aspect or aspects of parental responsibility. A sole parental responsibility order would, of course, enable the Mother to decide matters that would include the children’s sporting and other extracurricular activities.

Equal time or substantial and significant time

1. If a parenting order is to provide for the children’s parents to have equal shared parental responsibility, then the Court is required under s.65DAA of the Act to consider whether the children’s best interests would be served by making an order that they spend equal time,[44] or alternatively substantial and significant time,[45] with each of the parents. Either outcome requires the Court to consider whether the children spending equal time, or substantial and significant time in lieu, with each of the parents would be in the “best interests of the child” and is “reasonably practicable” given the circumstances.

   [44] Section 65 DAA(1) of the Act.

   [45] Section 65 DAA(2) of the Act.

2. This consideration is a major issue here because the Mother is seeking an order that would significantly limit the children’s time with the Father compared to that currently provided for in the relatively long-standing interim orders. As previously stated, the Mother proposes that the children spend time with the Father from 6:00pm Friday until 6:00pm Sunday each alternate weekend during school term and for one half of all gazetted school holiday periods.

3. Although the Father commenced these proceedings seeking equal time, he now proposes, in the alternative, that the children’s best interests may be served by them living with the Mother and spending substantial and significant time with him. More specifically, the Father proposes that during school terms the children live with him each alternative week from the end of school Wednesday to the commencement of school Monday (or Tuesday if a long weekend). He also proposes that the children spend time with him for one half of all non-Christmas gazetted school holidays as well as one half of the gazetted Christmas school holidays and other special days.

4. Similarly, the ICL also proposes that the children remain primarily living with the Mother but spend substantial and significant time with the Father during school terms in week one from after school Thursday until before school on the following Monday (or a Tuesday if a long weekend) and in week two from after school Thursday until before school Friday. She also agrees that the children should spend time with the Father during half of all school holiday periods and other special days.

5. The abovementioned proposals are, of course, made in the context of a proposed relocation by the Mother with the children to the Suburb C area which is opposed by both the Father and the ICL. Neither the Father nor the ICL propose alternate orders should the Court agree to the Mother’s request to relocate. The Mother also proposes no alternate orders in the event that the Court declines her request for an order permitting her to relocate with the children to the Suburb C area.

6. Section 65DAA(3) of the Act stipulates that a child will only be taken to spend “substantial and significant time” with a parent if:

   “(a)the time the child spends with the parent includes both:

   (i)days that fall on weekends and holidays; and

   (ii)days that do not fall on weekends or holidays; and

   (b)the time the child spends with the parent allows the parent to be involved in:

   (i)the child's daily routine; and

   (ii)occasions and events that are of particular significance to the child; and

   (c)the time the child spends with the parent allows the child to  be involved in occasions and events that are of special significance to the parent.”

7. In considering the reasonable practicality issue, s.65DAA(5) of the Act requires the Court to have regard to:

   “(a)how far apart the parents live from each other; and

   (b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)the impact that an arrangement of that kind would have on the child; and

   (e)such other matters as the court considers relevant.”

8. Clearly the separate spend time orders proposed by the Father and the ICL are reasonably practicable if the Mother does not relocate with the children from the Suburb B area. If the Mother is permitted to relocate with the children to the Suburb C area, then an issue arises as to whether the spend time orders as proposed by either the Father or the ICL would be reasonably practicable. The issue is, of course, far less problematic if the children remain at their current schools. That said, the Mother was not proposing an outcome that the children could remain at their current school should the Court permit the relocation to the Suburb C area. 

Injunctions and restraining orders

1. The parties, and the ICL, are all seeking various restraining orders against one or both of the parties. All, for example, seek a similar restraint against both parties in relation to non-denigration and the consumption of alcohol in the presence of the children. These restraints would be extended to any relevant third parties. The Mother seeks to extend the alcohol consumption restraint to include the period of 12 hours before the children come into the care of the relevant parent, and also to expand the prohibition to the use of “any illicit substance”. Both the Father and the ICL seek to expand the prohibition to “smoking”.

2. In her Second Further Amended Initiating Application, the Mother is also seeking three specific restraints against the Father:

   “17. That the Father be restrained for approaching the Mother except as provided for in these orders.

   18. That the Father be restrained from contacting the Mother by any means whatsoever unless in case of emergency relating to the children.

   19. That the Father be restrained from going within five (5) kilometres of the Mother’s home.”

3. As indicated previously, the Father is also seeking an order that would restrain either party from “relocating with the children away from Suburb B of New South Wales”.

4. The ICL is also seeking a restraint that would prevent the Mother from relocating to the Suburb C area. Indeed, the particular restraint sought by the ICL “that, unless otherwise agreed, the children live with the Mother within a 5 km radius of Suburb A” is narrower than the one sought by the Father and would prevent the Mother from relocating to various locations within New South Wales. The ICL is also seeking an order to the effect that, unless the parties otherwise agree, the parties will be restrained from enrolling the children in any primary school other than the [omitted] School.

1. In this context, the power of the Court to grant injunctive relief in areas relating to children arises from s.68B of the Act. This section is directed at children and includes adults in a situation associated with a child. Section 68B states:

   “(1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:

   (a)  an injunction for the personal protection of the child; or

   (b)  an injunction for the personal protection of:

   (i)a parent of the child; or

   (ii)a person with whom the child is to live under a parenting order; or

   (iii)a person with whom the child is to spend time under a parenting order; or

   (iv)a person with whom the child is to communicate under a parenting order; or

   (v)a person who has parental responsibility for the child; or

   (c) an injunction restraining a person from entering or remaining in:

   (i)a place of residence, employment or education of the child; or

   (ii)a specified area that contains a place of a kind referred to in subparagraph (i); or

   (d)  an injunction restraining a person from entering or remaining in:

   (i)a place of residence, employment or education of a person referred to in paragraph (b); or

   (ii)a specified area that contains a place of a kind referred to in subparagraph (i).

   (2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.

   (3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.”

2. There is an overlap between s.68B(1) and s.68B(2) in that similar orders may be made under either provision. That said, s.68B(1) is a stand alone or independent power meaning that there is no necessity for the existence of other proceedings. In contrast, s.68B(2) is ancillary in that it only operates in the context of existing proceedings and would be in aid of those proceedings. It appears that in the exercise of these injunctive powers, the ‘best interests of the child’ is an important, but not paramount, consideration, unless the order or injunction is a parenting order.[46] Clearly, an order requiring the children to live in a particular area, and consequently restraining a parent from relocating the children away from that area, is a parenting order.

93.Section 68C of the Act grants to police a power of arrest without warrant where the police officer believes there has been a breach of a s.68B injunction. However, for this to be effective, s.68C(2) requires that the order itself must be “expressed to be for the personal protection of” the relevant person.

[46] Flanagan & Hancock[2000] FamCA 150; (2000) 27 Fam LR 615; (2000) FLC 93-074; Bennett v Bennett [2001] FamCA 462, (2001) 28 Fam LR 231; (2001) FLC 93-088.

Best interests of the children

1. As stated previously, the Court is under an obligation to make parenting orders that it determines are in the children’s best interests. For this purpose, the Court will now turn to consideration of the factors in s.60CC of the Act, in particular subsections (2), (3) and (4) in the context of this case.

Primary considerations: section 60CC(2)

Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents

1. It is clear from the evidence of both parties that they accept the need for the children to have a meaningful relationship with the other party, yet they differ on how this can be achieved.

2. It is also clear from the evidence of Ms K, that any outcome should not jeopardise the children’s current wellbeing including their ongoing and long term relationships with the Mother, the Father and the paternal grandmother.

3. There is an issue in this case that any reduction in the time the children currently spend with the Father, which will occur if the Mother’s proposals are adopted, would have a significant impact on the children’s relationship with him.

4. The Court agrees with the ICL’s submission that the evidence militates against the Mother’s proposed relocation as it would not serve the best interests of the children. Apart from the considerable distance that would need to be travelled by children to facilitate their time with him, the children have no other family in the Suburb C area. Moreover, the children would be required to leave their current school and move to a new school yet to be identified.

5. The Court also agrees with the ICL’s submission that the proposed relocation also makes little sense when one considers that the Mother’s partner does not work in the Suburb C area or have any immediate plans to move there. Moreover, there is no evidence before the Court that the Mother’s employment prospects or economic circumstances will improve as a consequence of relocating.

6. In contrast, there is evidence before me that the Father has obtained public housing with a long lease that is close to the children’s current school. There is also evidence that the Father would be reliant upon the use of multiple forms of public transport in order to visit the children’s school and extracurricular events should the proposed relocation be permitted. That said, in respect of changeovers, the Mother is proposing to deliver the children to, and collect the children from Meeting Place A at Suburb A. Clearly changeovers at the children’s school, which is favoured by Ms K, the Father and the ICL, would be problematic if the children relocated to the Suburb C.  

Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. No allegations are made by either parent regarding any violence or abuse being directed towards either of the children. Nevertheless, there is a history of family violence orders favouring the Mother and against the Father that are relevant to the relationship between the parties.

2. The Court is satisfied that an outcome limiting the need for the parties to come into physical contact with one another at changeover would be in the children’s best interests.

Additional considerations: section 60CC(3)

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

1. This matter is complicated by the reality that the children are unaware of the Mother’s proposal to relocate to the Suburb C area. Consequently neither the ICL, nor Ms. K, was able to ascertain the children’s views in relation to this key aspect of the Mother’s case.

2. The Court also has before it the views of the children as expressed to the Family Consultants.

3. In the first Family Report, Ms M states that [X] had indicated to her that

   “he liked spending time with his father as they both spent time together fishing, swimming and other outdoor activities. He liked to spend increased time with his father and at least wanted to spend some time alone with his father so that both of them could do some mutually likable activity together without his little sister tagging along unwillingly”.[47]

   [47] First Family Report, paragraph 22.

4. In the second Family Report Ms K states that [X] “spoke positively about his life at school and the friends he has there” and that he “made positive statements about his relationship with each parent and said that he feels he can trust each of them and thus confide in them both” including telling them both of his wish to live in a “'50:50' arrangement”.[48]

   [48] Second Family Report, paragraph 24.

5. In relation to [Y], Ms K reports that “[Y] made positive comments regarding each parent” and that she had included her paternal grandmother and her grandmother’s partner in her family drawing, but not Mr C or [Z].[49] [Y] also indicated to Ms K that her wish is to live with all those people she had included in her family drawing.[50]

   [49] Ibid, paragraph 26.

   [50] Ibid.

6. The Court was also advised by the ICL that she had met with the children as recently as 23 April 2010 and that they both appeared happy and well.

Section 60CC(3)(b): the nature of the relationship of the child with each of the child’s parents and other persons

1. There is no doubt that both parties love their children. In addition there are no concerns about the nature of the relationship of the children with each of the parties.

2. The children appear to have a good relationship with the paternal grandmother who resides with her partner in the Suburb F area.

3. The children also have a relationship with the Mother’s partner, Mr C. It is of some concern that the children were not aware of Mr C’s real name at the commencement of this hearing. I will return to this aspect of the case shortly. In relation to the nature of their present and future relationship, the Court notes the comments expressed by Ms K that there is “likely to be significant tensions in the household in terms of the children’s adjustment” if the Mother and Mr C commence living together and that they “will, in these circumstances, benefit from professional assistance to help them to deal with the issues which are likely to flow from the large number of simultaneous changes the children will be required to adjust to”.[51]

Section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent

[51] Ibid, paragraph 37.

1. While both parties argue that they have individually been willing to encourage a closer relationship between the children and the other party, they make criticisms of each other in this regard. That said, Ms K was of the opinion that there were examples of the parties' co-operation and her observation of the children in the company of both parties was positive.[52]

   [52] Ibid, paragraph 30.

2. Ms K spoke further about this in answer to a question from me about whether she would still favour an outcome of equal shared parental responsibility following her reading of the latest affidavit material and her cross-examination. Ms K responded:

   “In fact, your Honour, I read something that reinforced that view. At the time the Mother took [X] to the Clinic A in 2007, and I think that’s the year when the Father was charged with three breaches of the AVO, the Clinic A recommended that in terms of [X]’s anger, I think this was it, he had four sessions, they discussed some – I think the Clinic A suggested – the Mother and I are just, sort of, communicating here, boxing, but the Mother and the Father discussed it and agreed that he’d go to karate, and I think that if, at that stage, they could agree on that, it rather indicates to me that – and they are both child focused, but it rather indicates to me that in major areas of these children’s lives, these parents can cooperate.”[53]

   [53] Transcript, 27 April 2010.

3. The Court also agrees with Ms K’s recommendation that the parties are likely to benefit from completing a parenting orders program that will assist them with their inter-communication.[54]

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

[54] Second Family Report, paragraph 33.

1. There will be a significant change to the children’s circumstances if the orders sought by the Mother are made. It would significantly reduce the time the children currently spend with the Father and their paternal grandmother. In contrast, the proposed orders sought by the ICL, which generally reflect Ms K’s recommendations, and to a lesser extent the alternate orders sought by the Father, would slightly increase the status quo that has been in existence for some time and ensure that all changeovers during school term occur at the children’s school.

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

1. Currently, the parties live quite close to each other and to the children’s school. Section 60CC(3)(e) becomes a live issue if the Mother’s proposed relocation is permitted. While the cost of travelling from the Suburb B to the Suburb C area is not cost-prohibitive, it is likely that extra car-related expenses will be incurred by the Mother in driving the children to and from Suburb A for changeover. The Father would be largely reliant on public transport to travel to the Suburb C area for school related and extracurricular activities. If these travel costs become a financial burden then there is a risk that the frequency of the travel proposed may have to be reconsidered, in particular the Mother’s offer to facilitate all changeovers if she is living in the Suburb C area. [55]

Section 60CC(3)(f): the capacity of each of the child's parents, and any other person, to provide to the needs of the child, including emotional and intellectual needs

[55] See Ryder & Roby [2009] FMCAfam 416 at [114].

1. The Court is satisfied that both parties have the capacity to provide for the children’s needs and generally demonstrated a positive attitude to the responsibilities of being a parent. 

2. The evidence is also clear that the Father has made some serious errors in his parenting of the children post-separation but, of course, he claims to have learnt from his mistakes and to have significantly expanded his parenting capacity. The Mother does not readily concede this.

3. The continued use of a communication book will assist the parties into the future in dealing with the responsibilities of parenthood.

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

1. There are no specific matters here that assist the Court.

Section 60CC(3)(h): if the child is an Aboriginal child or a Torres Strait Islander child

1. This consideration is not relevant to the present dispute.

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

1. Both parties question the other’s parenting ability and comments with respect to this have been made above.  

Section 60CC(3)(j): any family violence involving the child or a member of the child's family

1. Unfortunately, the history of the parties’ relationship prior to final separation was marred with family violence perpetrated by the Father. While the Father’s heroin addiction was no doubt a factor that negatively impacted upon his ability to appreciate the full extent of his behaviour, it does not excuse it. Apart from destroying the parties’ personal relationship, it has contributed to the poor parenting relationship between them. Despite the children’s apparent resilience in being able to develop and enjoy a warm and loving relationship with both parties, the Father’s past behaviour certainly robbed them of a peaceful and loving family unit.

2. That said, it is clear that the Father has taken positive steps to beat his drug addiction and to better understand and appreciate the destructive nature of his selfish and destructive behaviour in the past.  

Section 60CC(3)(k): any family violence order that applies to the child or remember of the child's family

1. While there is no issue of abuse directed at the children, the Mother has needed to secure family violence orders in the past to secure her own personal safety from the Father. She has also had to involve the police and the courts in dealing with past breaches by the Father of the apprehended violence and restraining orders she has obtained. It is to her credit that she has continued to foster a relationship between the children and the Father despite this history.

2. Despite these breaches, the Court is satisfied that the positive steps taken by the Father to overcome his drug addiction and to better understand and appreciate the impact of his past abusive behaviour will ensure no repeat of such behaviours. If the Father were to relapse into drug addiction, and/or re-embark on a path of family violence, then his future parenting of the children, and his relationship with his children, would be in serious jeopardy.

Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. While the Court proposes that any order that it makes be subject to any agreement between the parties that benefits the children, it is clear that the parties will require specific Court orders to assist them in their future parenting.

2. The Court is confident that once these parenting proceedings are resolved and defined orders are in place, there is a reduced likelihood in any further proceedings in the immediate future. That having been said, the Court believes the parties would be assisted by a Court order that would require the parents to resolve any future difficulties with the assistance of a Family Dispute Resolution Practitioner.

3. As already noted above, it is clear to the Court that both parties will benefit from a post separation parenting course. This should assist them to deal with the inevitable parenting problems that will arise in the near future

Section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant

1. There are three particular circumstances that the Court thinks are also relevant in this dispute. They are:

   a)the parenting dispute between Mr C and the Mother of his son [Z] and his own relationship and care of [Z]

   b)Mr C’s reasons for using the surname “Mr C”; and

   c)the poor relationship between the Father and Mr C.

2. In his evidence, Mr C disclosed that he is currently involved in proceedings with his son’s Mother over which parent [Z] should primarily live with. He was not aware whether he would be able to relocate with his son to the Suburb C area or need to remain in the Suburb D area. That said, Mr C stated under cross-examination from Mr Friedlander that should the Court permit the Mother’s relocation he will “sit down with my son … and have a good long discussion and see what he wants, whether he wants to live with her or whether he wants to live with me, and then I would go from there.[56]

   [56] Transcript, 23 and 24 November 2009.

3. Mr C also acknowledged under cross-examination from Mr Friedlander, and later from Ms Castle, that his son had been diagnosed with attention deficit hyperactivity disorder (ADHD) and oppositional defiance disorder (ODD).[57]

   [57] Transcript, 24 November 2009.

4. Under cross-examination from Ms Castle, Mr C admitted that [Z] had been “selected” for a two week stay at Location A which is located in Sydney.[58]  He also admitted that he was unaware that Location A is a place for children in need and designed to provide respite for the children’s carers.[59] Mr C denied or had no knowledge as to whether Location A is a place for students who are considered to be in some way disadvantaged or for students who have behavioural problems.[60] His belief or understanding does not accord with the purpose described on the website for Location A.[61]

   [58] Ibid.

   [59] Ibid.

   [60] Ibid.

   [61] See

5. Mr C also acknowledged under cross-examination from Ms Castle that he had spoken to [Z] about his reasons for pretending that his family name was “Mr C”. He said his reasons included his desire to protect both himself and [Z] from the Father. It is difficult for the Court to accept this evidence given Mr C’s subsequent acknowledgement that [Z]’s family name was not “Mr C” in any event.

1. Lastly, Mr C must assume some considerable responsibility for the juvenile and nasty text messages which he forwarded to the Father following the commencement of his relationship with the Mother. While the Court finds that the Father’s response was immature, it also finds that Mr C’s actions were provocative. The Mother must shoulder some responsibility for this poor behaviour. Moreover, the subsequent sending of photographs to the Father only served to further sour the relationship between the parties, and between the Father and Mr C.

2. The Court is also required under s.60CC(4) to consider the “extent to which each parent has fulfilled, or failed to fulfil, his or her responsibilities as a parent”. In this case both the Mother and the Father have been actively involved in the children’s lives and, despite this particular parenting dispute, the evidence suggests they have been generally able to make the necessary major long-term decisions in relation to the children.

Conclusion

1. The parties should have equal shared parental responsibility for the children. While the Court is satisfied that the presumption favouring equal shared parental responsibility should not apply in this case because of the past history of family violence, that does not mean that the Court cannot make an order allocating parental responsibility equally where it is satisfied that such an outcome is in the best interests of the children. In this respect the Court agrees with the submissions of the ICL.[62] Neither of the parties in this case are, to quote Counsel for the ICL, “perfect candidates for parents”,[63] yet as stated, the Court is satisfied that they have the capacity to make the necessary major long-term decisions in relation to the children.

   [62] Transcript, 28 April 2010.

   [63] Ibid.

2. The Court is also satisfied that the children’s best interests would not be served by allowing them to relocate to the Suburb C area as proposed by the Mother but rather that they should remain living in the Suburb B area. In this respect, the Court is also satisfied that the children should remain enrolled at the [omitted] School until they each complete their primary school education.

3. That said, the Court considers the restriction sought by the ICL that would require “the children live with the Mother within a five (5) kilometre radius of Suburb A” unduly restrictive. I also consider the Father’s proposed order that “each party be restrained from relocating with the children away from Suburb B of New South Wales” somewhat vague and, despite support from Ms K, likely to provoke future argument. The Court considers the restriction of 25 km, as proposed by Ms M,[64] more appropriate.

   [64] First Family Report, paragraph 27.

4. The Court agrees with the submissions of the ICL, and the recommendations in the Family Reports, that an equal time parenting arrangement, although reasonably practicable, would not be in the children’s best interests. The children should remain primarily living with their Mother and, subject to agreement between the parties, spend defined periods with the Father.

5. The Court further agrees with the submissions of the ICL, and the recommendations in the Family Reports, that the Father should spend substantial and significant time with the children. There will be orders that during school term the children spend time with the Father from after school Thursday in week one until before school on the following Monday (or a Tuesday if a long weekend) and from after school Thursday until before school Friday in the following week.

6. In addition, the children will spend time with the Father or the Mother as follows:

   ·for one half of all school holiday periods each as agreed or, failing agreement, the children will spend time:

   owith the Father for the first half of the holidays in odd numbered years and for the second half of the holidays in even numbered years; and

   owith the Mother for the first half of the holidays in even numbered years and for the second half of the holidays in odd numbered years;

   ·for the Christmas/Boxing Day period as agreed between the parties or, failing agreement, from 2:00pm Christmas Day until 2:00m Boxing Day with the Father in even numbered years and with the Mother in odd numbered years;

   ·unless otherwise agreed, on each of the children’s birthdays and the parties’ birthdays as agreed, and failing agreement, the party with whom they are not otherwise living with or spending time with on the day the birthday falls, such time to be from after school until 6:30pm if a school day or from 10:00am until 2:00pm if a non-school day;

   ·where the children are not otherwise spending time with the Father, on Father’s Day as agreed or, failing agreement, the children will spend time with the Father from 6:00pm on the Saturday evening prior to Fathers’ Day until 6;00pm on Fathers’ Day; and

   ·where the children are not otherwise spending time with the Mother, on Mother’s Day as agreed or, failing agreement, the children will spend time with the Mother from 6:00pm on the Saturday evening prior to Mother’s Day until 6:00pm on Mother’s Day.  

7. Changeovers occur on school days at the children’s school, and on non-school days, at a public location as agreed or, failing agreement Meeting Place A at Suburb A;

8. The children are to communicate with both parents by telephone, or internet equivalent, (“telephone time”) at any reasonable time as agreed, and failing agreement: 

   ·when the children are otherwise living with or spending time with the Mother, the Father can nominate a half hour period between the hours of 5:00pm and 7:00pm three evenings per week for telephone time;

   ·when the children are otherwise living with or spending time with the Father, the Mother can nominate a half hour between the hours of 5:00pm and 7:00pm period two evenings per week during school term and three evenings per week during school holidays for telephone time;

   ·each party will provide the other with their nominated periods for telephone time in writing within 48 hours of the date of these orders and thereafter if either party wishes to change their nominated periods they shall provide the other party with at least seven (7) days written notice;

   ·unless otherwise agreed, each party will supply the other with a mobile telephone within seven (7) days from the date of these orders to be used for telephone time only, except in emergency situations, and further that:

   §each party is to ensure that the mobile telephone provided by the other is switched on and its battery is fully charged;

   §the children are otherwise available and encouraged to make or receive the telephone calls during telephone time;

   §the children are discouraged from making any other telephone calls or text messages not related to telephone time, except in emergency situations; and

   §where a pre-paid mobile telephone is provided, the party providing such shall ensure that the account has sufficient credit to enable telephone time calls to be made and/or received.

9. There will also be orders that, subject to any contrary agreement between the parties, each party be:

   ·entitled to receive all notes, reports, newsletters and the like from the children’s schools and participate in any meetings or events to which parents are invited to attend;

   ·at liberty to attend the children’s schooling, sporting and extracurricular activities and each party ensure that the children attend all sporting and extracurricular activities in which they may be enrolled from time to time;

   ·required to do all things and sign all documents necessary to enrol the children in agreed sporting and extracurricular activities;

   ·required to notify the other party of any change to his or her residential address and/or telephone contact details within 48 hours of such change taking place;

   ·required to notify the other party as soon as practicable of any serious illness, injury or medical emergency in respect of the children and for the purposes of obtaining non-urgent medical treatment, the parties are to take the children to Dr M or such other available doctor at the [omitted] Medical Centre;

   ·restrained from denigrating the other party or partner or family member of the other party, or allowing any third party to do so, in the presence of the children; and

   ·restrained from smoking, or consuming alcohol to excess, or allowing any third party to do so, in the presence of the children.

10. There will be also orders that the parties use a communication book and, in addition, exchange travel plans and contact details in advance of all travel with the children.

11. In addition, the orders will include a requirement that both parties participate in family dispute resolution in the event that they are unable to reach agreement relating to the children’s long-term care, welfare and development.

12. The Court does not propose making the order sought by the Father that would give him sole responsibility in respect of the [X]’s sporting and other extracurricular activities, and the Mother similar sole responsibility in respect of [Y]. Nor does the Court propose making the similar order sought by the ICL that would give the Father sole responsibility for enrolling the children in sporting and extracurricular activities should the parties fail to agree. These are decisions that the parents should make jointly in the best interests of the children and following discussions with the children themselves. If the parties fail to agree, they are to refer that dispute to family dispute resolution.

13. Lastly, the Court has formed the view that the parties would benefit from undertaking a post-separation parenting course to better understand the responsibilities of parenthood. In this respect, the orders will include a notation that the purpose is to assist the parties to develop the ability to communicate with each other directly.

14. Although the Court does not propose making an order, in the event that the Mother ever cohabits on a fulltime basis with Mr C, then they should take the advice of Ms K and undertake a parenting course to assist with blended families.

15. There will be final orders and notations of the Court to reflect this decision.

I certify that the preceding one hundred and fifty-one (151) paragraphs are a true copy of the reasons for judgment of Monahan FM

Date: 24 September 2010