Grande and Mort

[2014] FCCA 2072

FEDERAL CIRCUIT COURT OF AUSTRALIA

GRANDE & MORT [2014] FCCA 2072

Catchwords:
FAMILY LAW – Parenting – relocation – mother primary carer, both historically and currently – children settled in new environment – father can move – father refuses to move.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Caravaggio & Caravaggio [2011] FamCA 254
Collu & Rinaldo [2010] FamCAFC 53
McCall & Clark (2009) FLC 93-405
Re: F Litigants in Person Guidelines (2001) FLC 93-072

Applicant: MR GRANDE

Respondent: MS MORT

File Number: MLC 2745 of 2012

Judgment of: Judge Curtain

Hearing date: 11 August 2014

Date of Last Submission: 12 August 2014

Delivered at: Melbourne

Delivered on: 12 September 2014

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondent: In person

ORDERS

THE COURT ORDERS THAT:

1. All prior parenting orders be discharged.

2. The Report by Mr H undated but forwarded to the court on 11 August 2014 is admitted into evidence.

3. The father and the mother have equal shared parental responsibility for the children X born (omitted) 2007 (“X”) and Y born (omitted) 2009 (“Y”), collectively (“the children”).

4. The children live with the mother.

5. The mother be permitted to relocate with the children to the State of Western Australia.

6. The children spend time with and communicate with the father as follows:

   (a)for ten (10) days in each of the Western Australian school term holidays at times as agreed between the parties and failing agreement, the first ten (10) days from 10.00am the day after school ceases;

   (b)for three (3) weeks in the Western Australian Christmas school holiday period being the last three (3) weeks in the 2014/2015 period and each alternate year thereafter and the first three (3) weeks in the 2015/2016 period and each alternate year thereafter;

   (c)by telephone at least twice per week and by Skype/ webcam/ FaceTime at such times as agreed between the parties; and

   (d)other and alternative times as otherwise agreed between the parties including any period that the mother visits the Melbourne and metropolitan area with the children, upon twenty eight (28) clear days’ notice to the father in writing.

7. For the purposes of the children spending time with the father as referred to in order 6(a) and 6(b) above:

   (a)the father and the mother shall share equally the travel expenses with the father to make the booking arrangements after discussion with the mother;

   (b)the father and the mother shall share the travelling with the children until they both reach an age when they can travel unaccompanied; 

   (c)arrangements in relation to order 6(a) and 6(b) above shall be as agreed between the parties; and

   (d)the parties shall provide each other with an itinerary within seven (7) days of the proposed travel.

8. The father be at liberty to travel to Western Australia to spend time with the children:

   (i)as agreed between the parties;

   (ii)the father shall be responsible for his own travel expenses; and

   (iii)the father shall provide at least twenty eight (28) clear days’ notice in writing to the mother.

9. The father and the mother shall be at liberty to communicate with the children on a reasonable and regular basis when the children are with the other parent and the caring parent will facilitate the communication.

10. The father and the mother shall ensure that the other is informed by telephone as soon as practicable should some event or situation arise concerning the health or wellbeing of the children whilst the children are in their care.

11. The father and the mother shall promptly notify each other of any change of residential address, postal address and telephone number, as soon as it is determined.

12. The father and the mother be at liberty and at their own respective cost to obtain school reports, school notices, medical reports and the like in relation to the children.

13. The father and the mother be entitled to attend all of the children’s school, sporting or any other similar functions.

14. The mother be and is hereby restrained from allowing, requesting or encouraging the children to refer to anyone as “dad” or “daddy” save for the applicant father.

15. The father and the mother be and are hereby restrained from denigrating the other parent or their family members or partner to or within the hearing or presence of the children, or either one of them.

16. All extant applications be otherwise dismissed.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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 these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2745 of 2012

MR GRANDE

Applicant

And

MS MORT

Respondent

REASONS FOR JUDGMENT

1. The major difficulty in this case is that the mother has relocated to Western Australia with the children of the relationship and wants to remain there and the unemployed father chooses to remain living in Victoria, and does not wish to live in the same town as his children but remain in Victoria although he has few ties or commitments in Victoria.  This creates a significant geographical and potential financial barrier that makes successful parenting of the children by both the mother and the father difficult to achieve. 

Background

1. The applicant father, Mr Grande lives at (omitted) and is aged 31 years.  The respondent mother, Ms Mort lives at (omitted), Western Australia and is aged 30 years.

2. The parties lived in a de facto relationship from (omitted) 2006 to 27 November 2011 which was interrupted with a number of separations.  Those separations were frequently triggered by the negative effect of both of the parties’ use of illegal drugs, and sometimes, domestic violence.   

3. They have two children, X born (omitted) 2007 (“X”) who is now aged 6 years and 11 months and Y born (omitted) 2009 (“Y”) who is aged 5 years. 

4. Since separation, the mother married Mr S in (omitted) 2013 and has two children to him, Z who was born on (omitted) 2012 and is therefore aged 1 year and 9 months, and W who was born on (omitted) 2014 and is aged 5 months.  They live in (omitted), Western Australia as in intact family along with the two children of the parties to this dispute.

5. It is common ground that after these parents separated in November, 2011 the children remained in the primary care of the mother and the father saw the children regularly until February, 2012.  He said he would see them daily or no less than every second day.  In early 2012 the mother disappeared with the children from her accommodation in (omitted) and the next thing the father knew was that they were in Western Australia.  This triggered his application to this court which was filed on 28 March 2012, in which the father sought the following orders:

   “1. The mother be ordered to return the children, X, aged 4 and born on (omitted) 2007 and Y, aged 2 and born on (omitted) 2009 (“the children”) to the state of Victoria within 7 days and that the Mother be restrained from relocating the children outside the State of Victoria.

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

   3. The children live with the father in Melbourne, until the mother has obtained appropriate accommodation in Victoria.

   4. Until the mother obtains appropriate accommodation pursuant to paragraph (3) of these Orders, the children spend time with and communicate with the mother as agreed between the parties.

   5. Upon the mother obtaining appropriate accommodation in accordance with paragraph (3) of these Orders:

   a) The mother provide proof of the same (including lease) to the solicitors for the father;

   b) The children spend time with and communicate with the father as follows:

   i) at a minimum from 2.00pm until 2.00pm (three overnight stays) per week;

   ii) from 9.00am until 4.00pm on 5 days per fortnight;

   iii) as otherwise may be agreed between the parties [sic]

   6. That it be declared that the Father is in fact the Father of the children for the purposes of these court proceedings.

   7. As the address of the Mother is unknown, that service be substituted and this application be served upon the Maternal Grandmother at (omitted) in the State of Victoria.

   8. That the service period required under the rules be shortened or dispensed with.

   9. That the Mother be required to undertake a psychiatric assessment and provide a copy of the report to the Fathers [sic] solicitor.

   10. Any other Orders this Honourable Court deems appropriate.”

6. The matter came before me on 2 April 2012 in the duty list and I made the following orders:

   “1. The Respondent Mother is to deliver the children, X born (omitted) 2007 and Y born (omitted) 2009 (“the children”) to the childcare facility at the 5th Floor, Commonwealth Law Courts, 305 William Street, Melbourne Victoria by 9.45 am on 18 April 2012 and is not to remove the children from the childcare facility until further order.

   2. The matter be adjourned to this Court on 18 April 2012 at 10.00 am for an Interim Hearing, with respect to parenting matters only.

   3. There be interim parenting orders, in terms of the Minute of Orders and dated 2 April 2012 (“the Minute”).

   4. The solicitors for the Applicant Father do engross the Minute and provide a clean, duly certified copy of the same (“the Copy”) to the Registry of this Court within 7 days.

   5. The Applicant Father’s costs of this day be reserved.

   IT IS DIRECTED THAT:

   The Minute be placed upon the Court file and marked “Exhibit A”.

   AND THE COURT NOTES THAT:

   A. The legal representative for the Applicant Father advised from the bar table, in open Court today that she spoke with the Respondent Mother outside of Court today in relation to today’s hearing and the Minute.

   B. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 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 these particulars are included in these orders.

“Exhibit A”

1. That the Mother be ordered to return the children, X, aged 4 and born on (omitted) 2007 and Y, aged 2 and born on (omitted) 2009 [sic] (“the children”) to the State of Victoria by 17 April 2012.

2. That the Mother attend at the Federal Magistrates Court on 18 April 2012 with the children and that the children be delivered to the child minding centre at the Court on that date.

3. That the children are not released to either party until further order of this Court on 18 April 2012.

4. That service on the Mother occur via the Solicitor for the Applicant sending a copy of the Applicants [sic] affidavit, application and these Orders to the Mother and that otherwsie [sic] the Mothers [sic] address will not be released to the Applicant Father.

5. That this matter be adjourned to 18 April 2012.

6. The Applicant’s costs be reserved.”

1. Those orders were made on an urgent ex parte basis and the matter returned before me on 18 April 2012 when the following orders were made:

   “UPON THE UNDERTAKING GIVEN BY THE PATERNAL GRANDFATHER, MR G THAT:

   (a) He will be present at all times during the Father’s time with the children, X born on (omitted) 2007 and Y born on (omitted) 2009 (“the children”);

   (b) He will supervise the Father’s time with the children;

   (c) He will ensure that the children are not put at risk in any way; and

   (d) He will ensure that the children are never to be put at risk.

   THE COURT ORDERS THAT:

   1. Pursuant to section 11F of the Family Law Act 1975 the Father and the Mother shall attend an appointment on 30 May 2012 at 9.15 am with a Family Consultant of the Federal Magistrates Court of Australia (“the Family Consultant”).

   2. All extant applications be adjourned to the Duty List of this Court on 6 June 2012 at 9.45 am for Directions (“the next adjourned date”).

   3. Pursuant to s 68L(2) of the Family Law Act 1975 the children be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such:

   (a) Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service;

   (b) Within 48 hours of notification of such appointment the solicitors for the respective parties do provide to the Independent Children’s Lawyer copies of all relevant documents relied upon;

   (c)The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7; and

   (d) The Independent Children’s Lawyer do prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she will recommend be made as final orders at the final hearing.

   4. The Mother make, file and serve a Response and an Affidavit in support on which she intends to rely by no later than 4:00pm on 11 May 2012.

   UNTIL FURTHER ORDER THE COURT ORDERS THAT:

   5. The children live with the Mother.

   6. The Mother and her servants and agents be and are hereby restrained by injunction from removing the children from the State of Victoria.

   7. The children shall live with the Mother at the home of the Maternal Grandparents situate and known as (omitted), in the State of Victoria.

   8. The children spend time and communicate with the Father under the supervision of the Paternal Grandfather, Mr G as follows:

   (a) on  Wednesday 18 April 2012 from 1.00 pm to 2.30 pm;

   (b) on Saturday 21 April 2012 from 10.00 am to 6.00 pm;

   (c) on Sunday 22 April from 9.30 am to 6.00 pm;

   (d) each Saturday thereafter from 10.00 am to 6.00 pm on Sunday, commencing 28 April 2012; and

   (e) at any other times as agreed between the parties in writing beforehand;

   9. For the purposes of changeover in accordance with Order 8 herein the Mother is to deliver the children to the front of the (omitted) Police Station at the commencement of the Father’s time with the children and the Father is to deliver the children to the front of the (omitted) Police Station at the conclusion of his time with the children.

   10. The children communicate with the Father via telephone every second day between the hours of 6.00 pm and 7.00 pm commencing on Thursday 19 April 2012.

   11. To facilitate the Father’s telephone communication with the children in accordance with Order 10 herein, the Father shall telephone the Mother’s mobile telephone number and the Mother shall ensure the telephone is charged and ready to take the Father’s telephone call and the children are ready and settled to take the Father’s telephone call.

   12. The Father and the Mother and their servants and agents be and are hereby restrained by injunction from:

   (a) abusing, insulting, belittling, rebuking or otherwise denigrating the other parent, their family, partners and/ or friends directly to or in the presence or hearing of the children or any of them, and from permitting any other person so to do;

   (b) discussing these proceedings with or in the presence or hearing of the children and from permitting any other person to do so;

   (c) discussing any future long term parenting arrangements with the children or in the presence or hearing of the children and from permitting any other person to do so; and

   (d) behaving in an aggressive or provocative manner in the presence or hearing of the children and from permitting any other person to do so.

   13. The Mother and her servants and agents be and are hereby restrained by injunction from allowing the children to refer to her partner as “Dad” (or any other such variation) and from permitting any other person to do so.

   14. For twenty-four (24) hours immediately prior to the commencement of any time spent with the children (including any period during which the children live with him), and during all such time spent, the Father be restrained by injunction from ingesting, consuming, using, or otherwise being under the influence of, alcohol or any legal or illegal drug or substance, (or having a BAC above 0.05), save and except for:

   (a) any legal medication prescribed for the Father by a registered medical practitioner, and taken or used by the Father strictly in accordance with such prescription; and

   (b) any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets (which does not contain codeine), and taken or used by the Father strictly in accordance with the directions appearing on such medication or pharmaceutical substance.

   AND THE COURT NOTES THAT:

   A. The Father does not admit the necessity for his time with the children to be supervised by the Paternal Grandfather, Mr G.

   B. The question of whether the parties have equal shared parental responsibility for the children is to be considered on the next adjourned date.

   C. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 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 these particulars are included in these orders.”

2. Those orders of the 18 April 2012 limited to some degree the role of the father with the children as I was very concerned about the allegations of use of illegal drugs and family violence.  For the next 10 months the children regularly spent time with the father, pursuant to these orders.

3. Ultimately, this matter resolved with the parties entering into the following final consent orders on 27 February 2013:

   “THE COURT ORDERS BY CONSENT THAT:

   1. That the mother and the father (“the parents”) have equal shared parental responsibility for the children X born (omitted) 2007 and Y born (omitted) 2009 (“the children”).

   2. The children live with the mother.

   3. The children spend time and communicate with the father as follows:

   a) On alternate weekends from after school or 3.30 pm Friday until 6.00 pm Sundays commencing Friday 1.3.13

   b) During school term holidays in 2013 for a period of five (5) consecutive days at times to be agreed between the parents and in the absence of agreement from the first Saturday 9am of the after term breakup until the following Wednesday at 6pm, save for term 1 2013 it shall be 9.4.13 at 9am until 14.4.13 at 6pm.

   c) For one half of the 2013/2014 long summer holidays failing agreement the first two weeks commencing 9am on 20/12/13 and concluding at 6pm 3.1.14, and the long Australia Day weekend 9am Friday until 6pm Monday.

   d) From the 2014 school holidays and each school term holiday thereafter for one half of the school term holidays as agreed between the parties and in the absence of agreement the first half, from 9am first Saturday after school breakup until 6pm on second Saturday after school breakup.

   e) From the 2014/2015 long summer school holidays, for one half being the second half in the even numbered years and the first half in odd numbered years.

   f) By telephone on Tuesdays and Thursdays between 5.30 pm and 6.00 pm with father to initiate and the mother to facilitate the children receiving the telephone call, and by webcam/skype on days and times to be agreed.

   g) As otherwise agreed between the parties.

   3A. The father’s contact pursuant to paragraph 3 above be suspended during all school holidays and recommence on the same pattern as if they had not been suspended.

   4. When the children are in the father's care during the school term or summer holidays, the children communicate with the mother two times during those periods, on Tuesdays and Thursdays between 5.30 pm and 6.00 pm or as otherwise agreed between the parties with the mother to initiate and with the father to facilitate the calls, and by webcam/skype on days and times to be agreed.

   5. The children be at liberty to communicate with the other parent at any reasonable time and the parent with the care of the children will facilitate the placing of any such call.

   6. The parents do all things and sign all documents necessary to enrol X in counselling with (omitted) Community Health or a mental health plan through X's GP.

   7. The parties utilise a Communications Book to communicate about the welfare of the children including but not limited to prescribed medication for the children.

   8. That each parent notify the other in case of an emergency affecting either or both of the said children.

   9. All changeovers, subject to written agreement to the contrary, shall occur at the McDonald’s family restaurant in (omitted).

   10. Each party notify the other no less than 14 days prior to the children travelling interstate, including details of travel arrangements.

   11. The mother authorise the children’s childcare/school to provide to the father copies of any information including photos at the father’s expense, which the school prepares for release to parents in relation to the children’s social and academic progress.

   12. The father and mother, their servants and agents be restrained as follows:

   a) from denigrating the other parent or their family member or partner, to or within the hearing of the children.

   b) From discussing these proceedings with the children or within their hearing.

   c) From consuming alcohol to excess at any time the children are in their respective care for 24 hours before same.

   d) From consuming any illicit drugs, or prescribed medication in a manner not as prescribed, for any period when the children are in their respective care or for 24 hours before same.

   13. The mother will not request or encourage the children to refer to her partner as “Dad” or “Daddy”. (mother consents to this order without admissions as to her having so acted)

   14. The parents at their joint expense shall arrange for the father’s name to be included on the children’s birth certificates.

   15. Each parent keep the other informed of their residential address and contact telephone numbers at all times and notify the other in writing within 14 days of any change. 

   THE COURT ORDERS THAT:

   16. The Final Hearing dates of 28 February 2013 and 1 March 2013 be vacated.

   17. The Order of Curtain FM, dated 18 April 2012 appointing the Independent Children’s Lawyer be discharged.

   18. There be no order as to costs.

   19. All extant applications be otherwise dismissed.

   AND THE COURT NOTES THAT:

   A. For the avoidance of doubt, Orders 3 (c) and (e) provide that the father shall have the Christmas period in his holiday block this year (2013) and alternate years and the mother shall have the Christmas period in her holiday block next year (2014) and alternate years. 

   B. In the event of any dispute as to the interpretation implementation or enforcement of this Order (including any claim by a party that it should be varied) the parents shall first attend family dispute resolution (“FDR”) with an FDR practitioner appointed by the parents and make a genuine attempt to resolve the dispute. Failing agreement as to that appointment the parent raising the dispute shall nominate three FDR practitioners, one of whom shall be chosen by the other parent within 14 days. 

   C. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 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 these particulars are included in these Orders.”

1. After the parties entered into these final orders, the father initially saw the children regularly by travelling to and from (omitted) where the mother then resided.  Unfortunately in April 2013 he was diagnosed with an inflamed spleen which he says prevented him from driving, with the consequence that the children did not spend time with the father between April 2013 and June 2013, inclusive.

2. He says that when he tried to re-establish the time with the children it only occurred after much negotiation.  In September 2013 the children spent time with the father for 2 weeks over the school holiday period.

3. The mother started advising the father no later than September, 2013, and possibly earlier, that she wanted to live in Western Australia and he said he objected to her taking the children to reside there, and would not consent to the relocation.

4. The father alleges that in October and November he saw the children on weekends and it is common ground that he had a block period of care from 13 December 2013 to 1 January 2014.  It is also common ground that during that latter period the mother was in Western Australia.  What was allegedly unknown to the father was that she was in the process of relocating there, but I find that difficult to understand given he received written notice of her proposal in September 2013.

5. In early 2014 the father said he first became aware they were living in Western Australia and, for some reason that was not fully or properly explained to the court, he delayed bringing proceedings until 22 April 2014 when he filed a further application seeking the following interim and final orders:

   “Final orders sought

   1. That the children X, born (omitted) 2007 and Y, born (omitted) 2009 live with the Mother.

   2. That subject to the Court deeming it appropriate, the parties have joint parental responsibility for the children.

   3. That the Father spend time with and communicate with the said children as the Court deems it appropriate in the circumstances.”

   “Interim or procedural orders sought

   1. That all times be abridged and this matter be heard on an urgent basis.

   2. That until further order the children X, born (omitted) 2007 and Y, born (omitted) 2009 live with the Father.

   3. That until further order the Father have sole parental responsibility for the said children.

   4. That until further order:

   a. The Mother forthwith return the children to the Father at her address or such address as nominated by the Court.

   b. Pursuant to Section 67Q of the Family Law act, the Marshal of the Family Court of Australia and the Australian Federal Police, and all officers of the Police Forces of the States and Territories of the Commonwealth of Australia, recover the children and deliver the children to the Father, namely MR GRANDE, and for that purpose to stop and search any vehicle vessel or aircraft of [sic] enter and search any premises or place in which there is at any time reasonable cause to believe that the children may be found.

   5. IT IS FURTHER ORDERED that the Australian Federal Police place the names of the children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until further order of the Court.

   6. That the Mother forthwith deliver to the Registrar of the Family Court of Australia at Melbourne all passports issued in his [sic] name and in the name of the children.

   7. That the Secretary of the Commonwealth Department of Centrelink provide to the Registrar of the Melbourne Registry of the Family Court of Australia such information relating to the whereabouts of the children and/or of the Mother, namely MS MORT, as is contained in or comes into the records of the Department.

   8. The Mother, by herself, her servants or agents be and hereby are restrained from removing and/ or causing or allowing the children of the relationship X, born (omitted) 2007 and Y, born (omitted) 2009 to be removed from the Commonwealth of Australia.

   9. That the Mother be served as soon as possible with the following sealed documents;

   c. [sic] The Father’s Application for Interim and Final Orders;

   d. [sic] The Father’s Affidavit sworn in support; and

   e. [sic] These Orders.

   10. That the further hearing of the Father’s Application be adjourned to a date to be advised by the Court.

   11. That the Father’s costs of this Application be reserved to be determined on the next hearing date.”

6. It came before me on 10 June 2014 when I made orders for an urgent trial commencing 11 August 2014.  The father wanted further orders that the mother be ordered to bring the children back to Victoria and reside here pending the trial but I was not willing to do that given I was able to provide the parties with an urgent trial date, the mother had already been living in Western Australia for some 5 or more months and the children were said to have settled into their school and kindergarten.  It appeared to me that without a full investigation at trial, to order the return of the children to Victoria may have been more disruptive to them than could ultimately be justified. 

The evidence

The parties relied on the following documents:

A. Applicant father’s material:

a)Initiating Application filed 22 April 2014;

b)Affidavit in support by the father sworn/ affirmed 15 April 2014 and filed 22 April 2014; and

c)The Family Report of Mr H, undated but forwarded to the court on the morning of the first day of the trial.

B. Respondent mother’s material:

a)Outline of Case document filed 8 August 2014;

b)Response filed 4 August 2014;

c)Affidavit in support by the mother affirmed 30 July 2014 and filed 4 August 2014; and

d)The Family Report of Mr H, undated but forwarded to the court on the morning of the first day of the trial.

The applicant’s evidence

1. The applicant father, like the respondent mother appeared in person.  He was granted leave to make an oral application to amend his application filed 22 April 2014, and he now sought amended final orders as follows:

   “1. That the children, X, born (omitted) 2007 and Y, born (omitted) 2009 live with the Mother.

   2. That subject to the Court deeming it appropriate, the parties have joint parental responsibility for the children.

   3. That the Father spend time with and communicate with the said children as the Court deems it appropriate in the circumstances.

   IN THE ALTERNATIVE:

   4. If the Mother remains living in Western Australia, the children live with the Father.

   5. The children spend time with the Mother:

   (a) during all Victorian school term holiday periods;

   (b) half of the Victorian long summer vacation; and

   (c) upon 4 days’ notice in writing to the Father that she is going to be in Victoria, then when she visits Victoria.”

2. I advised the father that the alternative orders he sought had some serious problems:

   a)his only affidavit was silent on this alternative proposal;

   b)he was proposing to live with his parents but neither of them were on affidavit;

   c)he did not have a proposal about what school X should attend;

   d)he did not have a proposal about what kindergarten if any, Y should attend;

   e)he said that he would return to full time employment and that his mother, Ms E, would care for the children in his absence but she was not on affidavit which is significant given that the mother alleged that there are doubts about the paternal grandmother’s mental health;

   f)he did not raise this alternate proposal with the report writer and so it was not addressed by the author of the report; and

   g)the father admitted he still occasionally uses marijuana.

3. Notwithstanding some of my comments, the father did not seek an adjournment to give him the opportunity to cure the difficulties with his case. 

4. The father presented as very caring about his children and concerned for their welfare; he wanted the best outcome for them.  He did not have any clear, detailed proposals and often appeared anxious when discussing his children’s welfare.

5. I assisted him the best I could pursuant to Re: F Litigants in Person Guidelines (2001) FLC 93-072.

The respondent’s evidence

1. The mother appeared more focused and organised than the father, although her case also had some limitations.  For example she did not have her current husband on affidavit, nor call him to give evidence.

2. I accept that historically the mother has been the primary carer. Evidence of their exact roles in the parenting of the children during the periods of cohabitation was clouded by the parents’ limited memories which, I assume, was due to their mutual abuse of illegal drugs during those periods.

3. I also assisted her in the running of her case pursuant to Re: F Litigants in Person Guidelines (2001) FLC 93-072.

The family report

1. This undated document was forwarded to my Chambers on the first day of trial by email transmission on 11 August 2014 with a cover sheet which in part said:

   “…Here is the family report for [sic] as requested.  Please let me know if you have any queries. 

   Kind regards

   (unsigned)

   Mr H.”

   It appears it was prepared by a Mr H who operates or is employed by a business titled “(omitted) Psychology” at (omitted). 

2. This document should have been filed in compliance with my earlier order of 10 June 2014 in the normal, appropriate way but given the parties were in person and Mr H faxed it to the court on the first day of the trial, I allowed them to tender it by consent. 

3. The style and contents of this document headed “Psychological Report” was different to that normally expected by this court.

4. The report, whether titled family report or psychological report, in my view had the following shortcomings:

   a)commonly, these reports have sub-headings, such as, “…background to the dispute, current arrangements, applications and proposals, issues in dispute and issues identified during assessment, the adults, the children and their relationships, observations, evaluation, and recommendations.”  This report had none of those and whilst it is not necessary to rigidly follow this style, the purpose of such a structure is to provide the authors of these reports with a “road map” to better assist the court in its adjudication;

   b)the author did not undertake any observations of the children with each parent;

   c)there was no assessment of the importance or otherwise of the sibling and half sibling relationships;

   d)there was no interview with the current husband of the mother, nor any of the grandparents;

   e)there was no clear evaluation of the merits of each proposal; and

   f)there were no clear recommendations.

5. In the circumstances of the report being undertaken by an expert nominated by the parties it was accepted by them and in turn the court.  The parties never seriously criticised the contents of the report, nor did they require the author for cross-examination.  Therefore, it goes into evidence unchallenged.

Relevant legal principles

1. Section 60B(1) of the Family Law Act 1975 (“the Act”) sets out the objects of Part VII of the Act, to ensure the best interests of the child is met by:

   a)ensuring that child has the benefit of both their parents having a meaningful involvement in their life, to the maximum extent consistent with the best interests of the child;

   b)protecting the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

   c)ensuring that the child receives adequate and proper parenting to help them achieve their full potential; and

   d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their child.

2. Section 60B(2) of the Act sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):

   a)the child has the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;

   b)the child has a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);

   c)parents jointly share duties and responsibilities concerning the care, welfare and development of their child;

   d)parents should agree about the future parenting of their child; and

   e)the child has a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. Section 60CA of the Act directs that when deciding to make a particular parenting order the best interests of the child are the paramount consideration. Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the court in determining what is in the child’s best interests.

4. In making any parenting order, the court must to the extent it is possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence.

5. If the court is satisfied that the parents are to have, pursuant to s.61DA(1) of the Act, equal shared parental responsibility, then subject to s.65DAA(6) of the Act, it must turn to ss.65DAA(1) and (5) of the Act to consider equal time, and if that is not appropriate in all the circumstances then ss. 65DAA(2), (3), (4) and (5) of the Act requires the consideration of substantial and significant time.

   As stated by the learned Judge in Caravaggio & Caravaggio [2011] FamCA 254 at paragraph 35:

   “Where neither concept delivers an outcome that promotes the child’s best interests, the issue is at large and to be determined in accordance with the child’s best interests.  Goode & Goode (2006) FLC 93-286.”

Section 60CC factors

1. The two primary considerations are set out in s.60CC(2) of the Act and they are:

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

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

1. A recent amendment s. 60CC(2A) of the Act, provides that the court is to give greater weight to s.60CC(2)(b).

2. They will be considered after the relevant matters in s.60CC(3) are looked at (see Collu & Rinaldo [2010] FamCAFC 53).

Additional considerations are:

1. To the extent that they are relevant, the additional considerations in sub-section 60CC(3) of the Act are:

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

1. The report writer at page 13 under the heading of “4. Assessment Interview: X and Y”:

   “…Both children made good eye contact and did not appear distressed or agitated in any way. They are both currently living with Ms Mort and her husband Mr S. X was very outspoken and stated that he enjoyed living in Western Australia. X indicated that he had made friends in primary school. His 5 year old sister Y responded to questioning non-verbally shaking and nodding her head. On prompting from her mother she responded to questions with monosyllables. X and Y have two younger siblings from the relationship between Ms Mort and Mr S. Both children seemed happy and well adjusted and there was no evidence to suggest that the children had been subjected or exposed to abuse, neglect, or family violence…

   The children reported that they loved their father and that they wanted to spend time with him. It appears that they have good relationships with both parents and it is their wish is to have regular contact with both parents. The children are not capable of understanding the longer-term impact of the relocation on their relationship with their father…”

2. Neither party properly touched on this topic, nor did the report writer comment on what weight should be given to the children’s views.  In the circumstances of the contents of the report and the fact that the children are nearly 7 and 5, I acknowledge their views and wishes but do not put great weight on them, given their tender ages. 

(b) the nature of the relationship of the child with:

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

1. At page 14 of his report, the author says, “It is very apparent that despite their communication difficulties and conflict both Ms. Mort and Mr. Grande very deeply care for their children…”  In my view, each of the parents, given their history of care as best described to me, have a close and loving relationship with each child. 

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

1. Unfortunately I cannot assess this topic given no evidence was led and it was not assessed in the report.  I can say however, there was no criticism by either parent of each of the other’s extended family, save for the mother querying the mental health of the paternal grandmother.

(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

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

(ii) to spend time with the child; and

(iii) to communicate with the child;

1. It appears to me that both parents have tried to exercise opportunities to spend time with and communicate with their children but on occasions their health or other barriers have arisen.  Notwithstanding this it appears to me they have used their best endeavours to have an ongoing relationship with their children. 

2. One note of concern was the lack of consultation with the father about which school and kindergarten the children should attend in Western Australia.  This appears to underwrite the fact that historically the mother has made these major decisions in the past and has continued to do so since separation.  There is no suggestion that she has chosen badly, but there is no doubt she should have discussed this with the father beforehand.

(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

1. There is very little evidence in this area, it appears to me that both parties have attempted to or have maintained the children to the best of their ability and the extent of their relative capacity. 

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

(i) either of his or her parents

1. This is a very important issue for this case.  The mother proposes relocating to Western Australia permanently and the effect of this would mean that the father would not have frequent time with the children on weekends and mid-week.  Having said that, over the last 12 months there have been periods when weekends were not utilised by the father in spending time with the children, primarily due to his ill health, and he had block periods in September and late December 2013.  The children were interviewed by the report writer on 18 and 19 July 2014 and there was no suggestion in the report that the children’s lack of frequent contact with the father affected their relationship with the father.

2. In relation to the mother, a separation from her as primary carer would not in my view promote the best interests of the children.  It is common ground that historically she has been the person that looked after the children’s welfare on a day to day basis for most of their lives.   To be separated from this person save for holiday periods when they are so young, would be a serious step that cannot be justified in all the circumstances of this case.

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

1. The difficulty with this sub-heading is that again the parents did not lead much evidence on this topic.  The mother addressed me in final addresses about the half siblings and the importance of maintaining X and Y’s relationships with Z and W.  Unfortunately the expert did not turn his mind to this issue when preparing the report but it seems to me that there is a significant issue of the sibling relationship in this case that cannot be ignored by the court.  There was no detailed evidence about the grandparents or any other relatives of the children.

(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. The mother in her proposal suggested that children spend time and communicate with the father for 10 days in each of the school term holidays of Western Australia and for 3 weeks during the long summer vacation, as well by telephone twice per week and by Skype/ webcam/ FaceTime at such times as agreed between the parties.

2. She also proposed that the parents should equally pay for the travel expenses of the children.  She gave evidence that she works part time as a (omitted) and her husband is employed full time.  There is no suggestion by her that she cannot afford her half share and there was clear evidence from the father that he was going back to work full time in the very near future.  In all the circumstances, I am satisfied that they can afford to pay for their share of the airfares for the children to spend time with the father, particularly if they are organised and book well ahead of time in an attempt to minimise the cost. 

3. In relation to communication I accept that wherever the children would reside, both parents would be willing to ensure the children had regular communication with the other parent.

4. The mother says in her affidavit affirmed 30 July 2014, at paragraph 4 the following:

   “I deny that I have deprived the Applicant of telephone contact.  The Applicant has had regular weekly contact with the children on Tuesdays and Thursdays…” 

5. And she goes on to say in paragraph 15:

   “The Applicant and I have had weekly telephone contact since I moved with the children to (omitted) in January.  He speaks to the children every Tuesday and Thursday on the telephone.”

6. I note that the father never cross-examined the mother about this or challenged that part of her affidavit.  I accept that should the children continue to live in (omitted) Western Australia with the mother that she will promote regular communication between them and the father.

(f) the capacity of:

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

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

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

1. In my view the capacity of the parents to provide for the children’s emotional and intellectual needs is very similar and adequate if they remain drug free.  I cannot comment about any other person including any grandparent or other relative as there was no evidence about their roles.

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

1. Not relevant, save for the parents’ use of illegal drugs which I have commented on elsewhere.

(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

1. Not relevant.

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

1. A startling aspect of this case is that notwithstanding they brought two children into this world, both of these parents regularly used illegal drugs which must have had an adverse effect on their capacity to fully and properly parent their children.  There was no shame by either of them when we had this discussion in court and it disappoints me that adults in the 21^st century believe that they can properly parent children and still use illegal drugs. 

2. Having said that, it appears that both parents have moved on to some degree with the mother claiming she no longer uses illegal drugs although the father from time to time still uses marijuana.  I am satisfied that the mother probably now has the capacity to be more responsible in parenting these children and the father, when living with his parents, will also have a similar future capacity, if he remains drug free.

3. The mother gave evidence a number of times that from around September 2013 she gave the father regular and frequent notice that she was proposing to move to Western Australia.  He said he objected to it and told her clearly that she was not to take the children with her.  Notwithstanding this notice he figuratively ‘sat on his hands’.  She says in her evidence that she had his consent and annexed a document to her affidavit which purports to be a parenting plan signed by the father.  The father denies it is his signature.  The document is undated; it is open to a number of interpretations.  One fact is clear, that the father did not dispute that the mother had told him a number of times that she was planning to move to Western Australia.  He had clear notice.  He even annexed in his affidavit a letter she wrote to him on 3 September 2013 giving him clear notice, which said:

   “3/9/2013

   …

   Mr Grande

   Follow up to our discussions regarding the planned relocation of the family to Western Australia.

   I plan for the relocation to occur before start of the first term at school in western [sic] Australia.

   The school term starts on Monday the 3^rd of February 2014. It is my intention to relocate following your Christmas visit with the children. Relocating at this time will allow the children some time to settle before X commences the school year and Y commences Kindergarten.

   Sincerely

   Ms Mort.”

(j) any family violence involving the child or a member of the child's family;

1. During their periods of cohabitation, and early post separation, the parties’ relationship was dysfunctional, sometimes drug affected and involved violence by both of the parties.  They appear to have moved on but their past is certainly inappropriate, and at the very least was a threat to the emotional well-being of these children.

(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;

1. The mother filed an application for an Intervention Order in the Bairnsdale Magistrates’ Court which made the following order on 20 February 2013:

   “…Applicant     MS MORT

   The following person/s are protected by this order:

   First Named Affected Family Member     MS MORT

   Second Named Affected Family Member     MORT , X

   Third Named Affected Family Member        MORT , Y

   Fourth Named Affected Family Member          Z

   The Court orders that the respondent must not:

   1. commit family violence against the protected person(s).

   Note: The Family Violence Protection Act 2008 defines family violence as behaviour by a person towards a family member of that person that is physically or sexually abusive, emotionally or psychologically abusive, economically abusive, threatening, coercive, or in any other way controls or dominates a family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person. 

   Family violence includes behaviour that causes a child to hear or witness or otherwise be exposed to the effects of these behaviours.

   2. intentionally damage any property of the protected person(s) or threaten to do so.

   3. attempt to locate, follow the protected person(s) or keep him/ her/ them under surveillance.

   4. publish on the internet, by email or other electronic communication any material about the protected person(s).

   5. contact or communicate with a protected person by any means.

   6. approach or remain within 5 metres of a protected person.

   7. go to or remain within 200 metres of (OMITTED) or any other place where a protected person lives, works or attends school/ childcare.

   8. get another person to do anything the respondent must not do under this order.

   9. The respondent may:

   (a) do anything that is permitted by a Family Law Act order, a child protection order or a written agreement about child arrangements; or

   (b) negotiate child arrangements by letter, email or text message; or

   (c) communicate with a protected person through a lawyer or mediator; or

   (d) arrange and/or participate in counselling or mediation; or

   (e) go to the home of a protected person, in the company of a police officer or a person chosen by the applicant, to collect personal property.

   BUT ONLY IF the respondent does not commit family violence while doing so.

   This INTERIM intervention order will last until further order, unless varied or revoked; or if the application is withdrawn…”

(ii) the circumstances in which the order was made; and

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter;

1. The Court can infer that historically these parents have had a confrontational relationship.  The above intervention order noted that the respondent was not present at the hearing, nor did he consent to the order being made.

2. Much of their past anti-social behaviour appears to be drug driven and currently they have a respectful relationship given their courteous and appropriate behaviour with each other during the 2 day trial.

(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. It is clearly preferable to avoid further proceedings; I shall draft orders that will best comply with this.  The parties must view litigation as a last resort.

(m) any other fact or circumstance that the court thinks is relevant.

1. The father told the court he chose to be unrepresented as the mother was unrepresented.  He should have sought legal advice about the wisdom of this step.

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

1. In the case of McCall & Clark (2009) FLC 93-405 the Full Court considered this sub-section. At paragraph 109 the Court said:

   “The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life.  It does not give guidance to the interpretation of the phrase “meaningful relationship””.

2. It then went on to discuss in paragraph 115 the decision of Mazorski & Albright (2007) 37 Fam LR 518, where the Honourable Justice Brown said the following:

   “…I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.  It is a qualitative adjective, not a strictly quantitive [sic] one.”

3. At paragraph 170, the Full Court said as follows:

   “Bennett J discussed the terminology in G and C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child [sic].”

4. It then went on to say that there are three possible interpretations of section 60CC(2)(a) of the Act and concluded that it preferred the interpretation that was called the ‘prospective approach’ but also said that depending on the factual circumstances, the ‘present relationship approach’ may be relevant.

5. The ‘present relationship approach’ was defined by the court in paragraph 118 as follows:

   “(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”).”

6. The ‘prospective approach’, which I will apply in this case, was also set out at paragraph 118 as follows:

   “(c) the third interpretation is that the court should consider and weight the evidence at the date of the hearing and determine how, if it is in the child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).”

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. Although a serious problem in the past, there are no allegations that this is a current issue for these parents.

The authorities

1. In Caravaggio & Caravaggio [2011] FamCA 254 the learned Judge said as follows:

   “36. Since the 2006 amendments to Part VII there have been a number of cases in which the Full Court of the Family Court has discussed the approach to relocation cases.  In particular, Taylor & Barker (2007) FLC 93-345, Sealey & Archer [2008] FamCAFC 142, Starr & Duggan [2009] FamCAFC 115, McCall & Clark (2009) FLC 93-405 and Hepburn & Noble (2010) FLC 93-438.

   37. In Taylor & Barker their Honours in the majority (Bryant CJ and Finn J) referred to Goode & Goode where the Full Court set out the pathway to be followed in parenting cases.  The majority specifically adopted the now oft quoted par 65.    In the context of the appellant’s assertion that the trial Judge had erred in dealing with the issue of relocation and the reasons for it as a separate and determinative issue instead of following the course referred to in Goode & Goode, the majority in Taylor & Barker held there was no substance to this ground of appeal.  They held at par 60:

   In our view, his Honour dealt with the relocation proposed in the context of his consideration of s 60CC and s 65DAA, at least in so far as it was possible to do so.  It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, as far as possible, in the context of the making of the necessary findings in relation to the relevant s 60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s 65DAA.

   38. In McCall & Clark the Full Court discussed and incorporated the matters of principle from Sealey & Archer.  Relevantly their Honours said:

   60.    In Sealey & Archer [2008] FamCAFC 142 the Full Court (Bryant CJ, Finn and Thackray JJ) said at paragraph 63:

   While it has been recognised that the Act does not provide any express direction or guidance as to the overall order in which the provisions of Part VII must be applied (Taylor & Barker (2007) FLC 93-345 at [62]), the legislation does require in s 61DA that when a court makes a parenting order, it must apply the presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for the child (unless there are circumstances in which the presumption does not apply, or in which it would be inappropriate to apply it, or it is rebutted), and it further requires in s 65DAA that if there is to be equal shared parental responsibility for the child, consideration must be given to the child spending equal time (or if not, substantial and significant time) with each parent.

   39. And at pars 66 and 67:

   Again as was recognised in Taylor & Barker (supra, see in particular paragraphs 58 and 77-83), in a case which involves a proposal that there be a significant change in the place where a child lives, it is appropriate for a court in its application of s 65DAA, and particularly s 65DAA(5), to canvass the advantages and disadvantages of a proposal “to re-locate” the child.  We would also expect that the court would have addressed the matters arising under s 65DAA(5) in the context of its consideration of relevant s 60CC matters.

   In making the latter observation, we should say that we do not see anything said in Taylor & Barker as suggesting that a trial judge would ignore the relocation proposal when making the necessary s 60CC findings…

   No doubt frequently, as in the instant case, the non relocating parent’s proposal will be for an equal shared care arrangement, facilitating the consideration of matters under s 65DAA as one of the proposals, and not as an abstract exercise.

   In our view, it is inevitable, given the provisions of the legislation, that the exercise to be undertaken will, on its face, involve dual consideration of some matters.  For example, consideration of matters under s 60CC(3)(d) (the likely effect of any change in the child’s circumstances) and matters in s 65DAA(5)(a) and (b) and s 60CC(3)(e) (practical difficulty and expense of a child spending time with a parent) and s 65DAA(5)(a), (b) and (c) involve examination of similar criteria.

   40. Thus relocation cases are to be approached as follows:

   they are parenting cases to be determined in accordance with Part VII;

   the child’s best interests is the paramount but not the only consideration;

   a relocation proposal should be considered and evaluated in the context of making necessary findings in relation to the relevant s 60CC matters and, where relevant, s 65DAA;

   in its application of s 65DAA, and particularly s 65DAA(5), it is appropriate to canvass the advantages and disadvantages of a proposal to re-locate the child.

   41. It is still the case that neither party bears an onus to establish that a proposed change or the continuation of an existing arrangement will best promote the best interests of a child.  AMS v AIF (1999) 199 CLR 160.  Notwithstanding a parent’s right of freedom of movement, this must defer to the child’s best interests. (U & U (2002) FLC 93-112).  As with any parenting case subject to affording the parties procedural fairness, the Court is not restricted to their proposals. 

   42. More recently, the High Court published MRR v GR (2010) 240 CLR 461.  This relocation case related to a parent’s proposal to leave Mt Isa with the parties’ child and live permanently in Sydney.  The child’s other parent proposed to remain in Mt Isa and applied for equal time orders.  At par 9 of their reasons the High Court said:

   Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.

   43. At par 13 the High Court said:

   Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist[12]. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.

   44. And at par 15 the High Court explained:

   Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent.  The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1).  Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”

Section 65DAA

1. Equal time or substantial and significant time parenting is not feasible in this case nor is it in the children’s best interests where the parties have never recently lived near the other to carry this out, neither party sought it in their final orders and the criteria in s. 65DAA(5) are not satisfied to support such an outcome. Moreover, it is not reasonably practicable.

Conclusion

1. The father and I had a number of discussions about his mobility.  He gave evidence that at one stage he was seriously considering moving to (omitted) to live in that town where his children then resided.  This would allow him to be involved in their lives during the week, on the weekend and during holidays.  He said he was thinking of going to (omitted) because he also had some friends there. 

2. I raised with him that in my view should the mother’s proposal be accepted it would be relatively straightforward for him to relocate to (omitted) Western Australia.  He was unemployed, he had no ties to Melbourne, save for his parents and extended family who he could visit from time to time should he reside in Western Australia.  I indicated to him that if he did this he could probably get employment there and also develop a circle of friends over time.  This I said would provide him daily, weekly and holiday times with his children.  Notwithstanding the benefits of moving to (omitted) in relation to developing and improving his relationship with his children, the father consistently rejected my suggestion about the possibility of him moving there. 

3. In her affidavit affirmed 30 July 2014 the mother set out the following:

   “20. Mr S (her husband) is 34 years of age and was born in (omitted), WA.  All of his family live locally so we have a lot of contact with them.  Mr S works as a (omitted) for (employer omitted), Monday to Friday and occasionally on weekends.  Mr S gets along fantastically with X and Y and treats them as his own but he respects that they have a father and does not wish to take his place.  We have always maintained that the Applicant is “Daddy.”  Mr S and I have a very close bond and a loving and caring relationship with each other.

   21. We live in a 4 bedroom brick home in (omitted), in (omitted).  X and Y both have their own rooms which we have set up personally for them.  Z and W share a room.  The house has a very large front and back yard…There are parks, beaches and school close by and we have found the community around us to be very friendly, welcoming and helpful.

   22. I am currently working from home as a (omitted) on Monday, Tuesday and Wednesday evenings when Mr S is home to look after the children.  Otherwise I just enjoy being a Mum and spending time with the children.

   23. The 4 children get along great together.  They share a very special bond.  On weekends we like to spend time as a family.  We go fishing, play football, go bike riding, have family BBQ’s, go to the indoor play centre, go to the beach and also go to Mr S’s mother’s farm in (omitted), WA.

   24. X is currently enrolled at (omitted) Primary School which is only about a kilometre or so from our house.  He is doing very well at school…He has lots of new friends which he sees outside of school…He does swimming lessons and piano lessons after school, both of which he enjoys…

   25. Y is enrolled at (omitted) Kindergarten…Y never got the opportunity to attend kinder in (omitted) as there was a 2 year waiting list…She really loves kinder.  Y also does swimming and piano lessons.  She has started doing gymnastics on Saturday mornings which she enjoys…

   28. The children are now settled and happy in Western Australia and I do not believe it would be in their best interests to relocate back to Victoria and leave their school, friends, activities, plus my husband and their two brothers…”

4. This was effectively unchallenged by the father.  I noted that he told the court he did not want to separate siblings.  I took that to be a reference to not only his children but also their half-siblings.

5. Overall, I preferred the mother’s proposals to those of the father and make orders that I believe to be in the best interests of the children.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Curtain

Associate: 

Date:  12 September 2014