HARRIS & DUERR - [2014] FamCA 127

FAMILY COURT OF AUSTRALIA

HARRIS & DUERR

[2014] FamCA 127

FAMILY LAW – CHILDREN – Relocation – Where the parties met, married and had the children in the mother’s country of origin – Where the mother seeks to return to her country of origin – Equal Shared Parental Responsibility – Where the presumption is rebutted – Family Violence – Meaningful relationship – Where the court is satisfied that should the mother be permitted to relocate it would adversely affect the children’s relationship with the father – Where the father seeks that the children change school – Where an order is made conferring sole parental responsibility on the mother in relation to the education of the children – With whom the children live – With whom the children spend time –Where an order is made for the children to live with the mother – Where an order is made for the children to spend time with the father – Where the mother’s application for relocation is denied.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65AA, 65DAA, 65DAC

B & B: Family Law Reform Act 1995 (1997) FLC 92-755
Heath & Hemming (No 2) [2011] FamCA 749
Preston & Preston [2011] FamCA 618

APPLICANT:

Mr Harris

RESPONDENT:

Ms Duerr

INDEPENDENT CHILDREN’S LAWYER:

Patricia Keyworth

FILE NUMBER:

BRC

7472

2011

DATE DELIVERED:

14 March 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

16 & 17 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Shoebridge

SOLICITOR FOR THE APPLICANT:

Hartnett Lawyers Group

FOR THE RESPONDENT:

Ms Duerr in Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Anderson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Keyworth Harris & Lowe
Family Lawyers

Orders

That save as otherwise provided for herein, the mother and the father shall have shared parental responsibility for the children, L born … June 2004 and N born … August 2007 (“the children”).
That notwithstanding paragraph 1 hereof, the mother shall have sole parental responsibility for the children where the exercise of that parental responsibility involves making a decision about the particular school that the children or either of them shall attend, subject to the mother:
(a)Writing to the father and informing him of such a decision having to be made, proposing options to him as to how that decision might be made, and asking him for his views or proposals as to how the decision should be made and to send her any such views or proposals in writing, or, if she requests, to tell her of any such views or proposals; and
(b)Considering and taking into account any views or proposals about the decision to be made that have been expressed to her by the father; and
(c)Advising the father in writing of the decision that she actually makes, including as to the reasons why she made that decision.
That the children live with the mother provided she continues to live with them in Brisbane, Queensland.
That the children spend time with the father as may be agreed between the mother and the father, but in default of agreement they shall spend time with him as follows:
(i)Until such time as the father has a driver’s licence and use of a motor car, from Saturday at 9.00 am until Sunday at 5.00 pm each alternate weekend;
(ii)On the giving of one week’s written notice to the mother that he has obtained a Queensland driver’s licence and the use of a motor car for transporting the children during the time they spend with him, from the close of school on Friday until the start of school on the following Monday each alternate weekend during school term and from the close of school on Monday until the start of school the next day in the other week during school term and for a block of four days and nights every two weeks during school holidays;
(iii)The alternate weekends during school term that are provided for in paragraph (4)(ii) of these Orders shall, once they have commenced, always begin with the first weekend in each school term;
(iv)Subject to the father providing written evidence to the mother that he has completed a Triple P Parenting Course and a Post-Separation Parenting Orders Program offered through, or to which he is referred by a Brisbane Family Relationship Centre, the time the children spend with the father during their school holidays shall increase to half of each of the school holidays from and including the September/October school holidays in 2014 and shall be the first half of the school holidays in even numbered years and the second half of the school holidays in odd numbered years;
(v)For two (2) hours on each of the children’s birthdays and the father’s birthday if the day is a school day or four (4) hours on any of those days if not a school day, if they are not otherwise with him on those days pursuant to the provisions of these Orders;
(vi)For all of Father’s Day (from 6.00 pm the evening before until 6.00 pm on the night of Father’s Day) if they are not otherwise with him that day pursuant to the provisions of these Orders.
That if the children are not otherwise with the mother pursuant to the provisions of these Orders on these days they shall spend time with the mother:
(i)For two (2) hours on each of the children’s birthdays and the mother’s birthday if the day is a school day or four (4) hours on any of those days if not a school day;
(ii)For all of Mother’s Day (from 6.00 pm the evening before until 6.00 pm on the night of Mother’s Day).
That notwithstanding the other provisions of these Orders, the mother shall be entitled to take the children on holidays to Germany during the children’s Summer school holidays and during one other end of term school holiday period each year if she wishes, subject to the giving of three months’ notice in writing to the father prior to each such holiday.
That if the mother decides to take the children to Germany for a holiday during their Summer school holidays she shall do so only during the weeks that they will be with her as otherwise provided for in these Orders, save for the ability, if she decides to go for four weeks, to use one week of the time that they would be spending with the father otherwise provided for in these Orders, such week to be at the end of that time if they are with him during the first half of the Summer school holidays or at the beginning of that time if they are with him during the second half of the Summer school holidays, so that the children still spend at least two weeks and each alternate Christmas with their father during their Summer school holidays, and the children’s time with their father pursuant to these Orders shall be suspended for any such week of his holiday time that the mother decides to use for her trip to Germany with the children.
That if the mother decides to take the children to Germany for a holiday during any of their other end of term school holidays and decides to go not just for the time they would be with her pursuant to these orders but for the entirety of that holiday period, she may use the time that the children would otherwise be spending with the father pursuant to these Orders and the children’s time with their father pursuant to these Orders is suspended for any such part of his holiday time that the mother decides to use for such trip to Germany with the children during such holidays.
That the mother shall within six (6) months of the date of these Orders provide the father with written evidence of attendance at and completion of a Post-Separation Parenting Orders Program offered through, or to which she is referred by a Brisbane Family Relationship Centre.
The father shall neither consume nor be under the influence of alcohol or any other intoxicating substance at any time the children are in his care pursuant to the provisions of these Orders.
That the children shall communicate with the parent in whose care they are not at the time in such manner and at such times as the mother and the father agree.
That unless the mother and the father otherwise agree in writing, the mother shall ensure that the child, L, undertakes counselling with a counsellor approved by the Independent Children’s Lawyer to help him deal with anxiety, particularly any he is experiencing in respect of his relationship with his father, and should the child’s counsellor consider it appropriate to engage the father in such counselling, the father shall involve himself in that counselling as requested by the counsellor and any cost of such counselling, after consideration of any Medicare benefit received in connection with it, shall be shared equally by the parents.
That any transitions of the children between the care of the parents pursuant to these Orders that do not take place simply at the commencement or conclusion of their attendance at school, shall take place just outside the entrance to Coles Supermarket at the corner of B Street and C Street, Suburb D or at such other place as agreed in writing between the mother and the father.
That at the discretion of the administration of the school or schools the children attend from time to time, the mother and the father shall be entitled to attend at the children’s school or schools, including at any school events, as parents of the children at such school are invited to or welcome to attend.
That each parent shall take all steps necessary to authorise the school or schools that the children attend to provide each parent, at that parent’s request, with any information about the school and the children’s educational progress at the school as is usually provided to parents of children attending at that school.
That each parent shall keep the other parent informed as to his and her residential address, landline and/or mobile telephone number, and an email address at which he or she can regularly receive emails and shall advise of any change in any of these details as soon as practicable after such change occurs.
That each parent shall keep the other parent informed as to the general health of the children whilst in his or her care, and as to any developments or changes therein, as well as providing to the other parent the names, addresses and contact details of any medical or allied health practitioners that either or both of the children attend at any time as well as the reason for any such visit, and each parent shall authorise any such medical or allied health practitioner to provide any information to the other parent as may be requested by the other parent about any such visit that such practitioners are lawfully entitled to provide.
That both the mother and the father are restrained from denigrating or abusing the other parent or any person related to or associated with the other parent to or within the hearing of either child.
That the father is restrained from harassing, intimidating, threatening or assaulting the mother.
That the Independent Children’s Lawyer is discharged after completion of the tasks assigned to her pursuant to paragraph 12 of these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7472 of 2011

Mr Harris

Applicant

And

Ms Duerr

Respondent

REASONS FOR JUDGMENT

After living in Town F, Germany for a couple of years, the father in this parenting orders case, an Australian man, Mr Harris, formed a relationship with the mother, a German woman, Ms Duerr, and married her there.
The mother was training for employment in the education field but gave that up before completing her training and joined the father in the Town F business he owned and operated, providing tours. The business was, apparently, successful enough to provide them with a reasonable income whilst they lived in Town F. Two children, both boys, were born of their marriage there.
The business was sold for around €70,000 when they left Town F to migrate to Australia in February 2009.
The couple’s two boys, L and N, are now 9 and 6 years old respectively.
The couple’s relationship was, according to the mother, generally troubled. She attributed that to the father’s inability to control his anger. She says she thought that the move to Australia might make him happier and help things in their relationship. Ultimately, it did not have that result.
In June 2010, police were called to the couple’s Brisbane home by the mother complaining that the father had threatened her with physical violence as he had become aware that she wanted to separate from him. The father had gone from the home before police arrived.
The mother did finally separate from the father in August 2011, taking the children with her from the rented family home and setting up home elsewhere. The couple have been in conflict about parenting the children ever since that separation.
The father applied to the Federal Magistrates Court (as it was then called) in the immediate aftermath of that separation. He sought parenting orders providing for shared care of the boys and restraining the mother from taking the boys out of the country. The mother responded, seeking orders that permit her to relocate with the boys back to Germany, to live in Town F. The father opposes that. He does not want to go back to live in Germany himself and he does not want the mother to take the two boys back there to live.
In October, 2011, orders restraining the parents from taking the boys out of the country were made, as well as orders for equal shared parental responsibility and for the boys to spend some limited time with their father. In November 2011, an Independent Children’s Lawyer was appointed and the proceedings were transferred to this Court.
In preparing the matter for trial, the ICL engaged a Consultant Social Worker, Mr E, to prepare a family report. That was done and filed on 15 October 2012. Interim orders were made by Bell J with the consent of the parties in August and again in late October 2012. Those orders permitted the mother to take the boys for a holiday to Germany for six weeks over Christmas and New Year of 2012/2013, increased the time the boys were to spend with the father, including during school holidays, restrained the parents from consuming alcohol whilst the children are in their care and provided for the father to undertake counselling on alcohol related issues.
The matter came before me for trial over two days on 16 and 17 May, 2013. The mother had no legal representation at the trial, whilst the father was represented by solicitor and counsel. The ICL also instructed counsel to appear at the trial.

The competing proposals of the parties

Although the father came into the trial seeking equal shared parental responsibility and an equal shared care arrangement, sensibly, having regard to all of the evidence, he modified that approach during the course of the trial. In the end, the father sought orders that restrain the mother from relocating the boys’ residence back to Town F, Germany that still provide for equal shared parental responsibility, but also provide for the boys to continue living with the mother and to spend time with the father from after school on Thursday to before school on Monday each alternate week and one other overnight visit in the other week. He also sought orders that the boys spend time with him during half of their school holidays after an initial gradual introduction to spending block times in his care.
The father had also come into the trial seeking an order that the boys’ schooling change from the private school they attend in Suburb D on the outskirts of Brisbane to a State school within Brisbane. However, that was also a position that he sensibly moved away from during the course of the trial. He ultimately sought an order that neither parent be able to change the school enrolment of either child without the consent of the other parent.
The mother sought orders that permit her to relocate the boys’ residence to Town F, Germany conferring sole parental responsibility upon her and that provide for the boys to spend time with the father for six weeks in Australia each northern Summer and three weeks in Germany each northern Winter. She sought orders providing for the children to live with her and to spend from Thursday after school to Monday before school each second week, in the event that she was not allowed to relocate the boys to Town F, Germany. She proposed they spend only the first week of the school holidays with the father if they remain in Australia.
At the end of the trial, the ICL proposed that the parents have equal shared parental responsibility for the children, save for the responsibility for major long-term decisions about their schooling. The ICL proposed that those decisions be the sole responsibility of the mother. The ICL proposed that the mother be restrained from relocating the boys’ residence back to Town F, Germany with the boys continuing to live in Brisbane with the mother and spending time with the father from after school on Fridays to before school on Mondays each alternate week as well as one overnight on the Monday of the other week.

By what principles is this dispute to be determined?

Although this case is one in which one of the parents seeks orders that permit her to relocate the permanent place of residence of the two children half-way around the world from Australia, it is, nevertheless, to be determined in the same way as all parenting orders cases are determined.[1]
[1]See the discussion by Murphy J in Cowley & Mendoza [2010] FamCA 597, the discussion by Kent J in Heath & Hemming [2011] FamCA 749 and the discussion by me in Preston & Preston [2011] FamCA 618 and all the authorities referred to in those decisions.
The parenting orders that the Court makes must be made with regard to the best interests of the two little boys as the paramount consideration.[2] Although a broad discretionary exercise, the process of determining what is in the best interests of the children is to be undertaken in accordance with the express provisions of the Family Law Act. In this process, consideration must be given to a list of “primary” and “additional” considerations expressly set out in the Act,[3] including one as broad as “any other fact or circumstance that the Court thinks is relevant”.[4]
[2] Family Law Act 1975 (Cth) s 60CA and s 65AA.
[3] Family Law Act 1975 (Cth) s 60CC(1), (2) and (3).
[4]Family Law Act 1975 (Cth) s 60CC(3)(m)
Determination of the parenting orders must also be made in the light of the expressly listed “Objects” of Part VII of the Act and the “Principles” underlying those Objects. These Objects and Principles are set out in s 60B. They include ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child, and recognition of the principle that children have the right to know and be cared for by both their parents and to spend time with both of their parents on a regular basis. I consider it particularly important for the Court to remind itself of these Objects and Principles in a case where one parent seeks to relocate a child to another country that is half the world away and the other parent opposes that relocation.
In Preston & Preston, I discussed the application of these Objects and Principles in parenting cases and the relationship between them and the matters required by s 60CC to be considered when determining the best interests of the children in question.[5] The Court’s task is to apply, in a commonsense way, the individual sections of the Act guided by what it considers is in the best interests of the children in each particular case. The actual weight to be attached to the individual components of the statutory provisions will vary, sometimes significantly, from case to case.
[5]Preston & Preston [2011] FamCA 618, at paragraphs [37] – [47]

In B & B,[6] the Full Court of this Court observed that it is well accepted that in most cases meaningful contact by a child with both of their parents is important to the child’s welfare in the short and long-term. Of course, the Court also acknowledged there are always cases where the best interests of the children will require contact with a parent to be curtailed or even terminated.
[6] B & B: Family Law Reform Act 1995 (1997) FLC 92-755.
Ultimately, answers to questions such as with which parent a child lives, in which country or city a child lives, and how much time they spend with the other parent where ever they live, are matters to be determined having regard to the evidence that is presented in the particular case considered against the paramountcy of the best interests of the child, the Objects and Principles set out in Part VII of the Act, the rights of parents to choose where they live, and in accordance with the statutory pathway also provided for in Part VII of the Act.
It is important to acknowledge that this discretionary exercise of power may result in a determination that the children’s best interests are actually served by parenting orders which do not give either parent their preferred or “optimal” outcome.[7] Parents, of course, must realise that when they put the determination of what is in the best interests of their children in the hands of the Court, the outcome, with the Court doing as well as it can, may be one that does not necessarily please either of them entirely or at all.
[7]Heath & Hemming (No 2) [2011] FamCA 749 at [101] per Kent J.

The evidence in this case and my findings as to the relevant matters

Only three people gave oral evidence and were cross-examined in this case; the two parents and the family report writer. Their evidence and my observations of the two parents confirmed that there is an enormous amount of conflict between them.
The report writer described the parents’ relationship as “caustic” and expressed the opinion that they appear “almost to have a desire to have conflict with each other.”
At the outset, I state that I am satisfied that there was family violence between the couple during their marriage. I accept the mother’s evidence that the father had hit her on a couple of occasions; one of those being a time when she had first hit him in an attempt to stop him from “nagging” her whilst driving. I am satisfied that the father also used abusive language to the mother and has done this since they separated as well.
I viewed and listened to video and CD audio recordings that were put into evidence by the mother of a couple of occasions when the parents had come into contact with each other in the later part of 2012. The tapes reveal the father, seemingly unaware that he was being recorded, being disgustingly abusive to the mother in the presence of one or both of the children. On one of those occasions, namely 13 October 2012, I am satisfied that the father was under the influence of alcohol when the mother arrived at his front door at around 10 pm one Saturday night to collect the two boys from his care after he had simply decided to hold onto them for the night instead of returning them to the mother at 5 pm as the orders required at that time. The mother says he was “drunk”. He says he was “tipsy” having had “two beers” after the boys went to bed. However, the evidence readily persuades me that he had more than two beers that day and was far more intoxicated than he would have me believe. His false denials do him no credit.
The parents’ relationship is clearly a volatile and problematic one, particularly for the two little boys to have to negotiate their way around, and the parents seemingly had little insight into the impact of their open conflict upon their boys. It was particularly troubling to hear, on one of the recordings, the 8 year old crying and complaining to his mother that he hated both of his parents for being “so careless”. The mother herself gave evidence that her 8 year old son had told her that he hated them both, though she said he attributed that to his father being so mean and his mother making him go to spend time with his father.
Each parent had a fairly firm view that the other parent was the person responsible for the conflict between the two of them. The mother blamed the father for his non-compromising, selfish, arrogant approach to her and to parenting their children, whilst the father blamed the mother’s desire to control him and his relationship with the two children and to exclude him from a meaningful role in their lives. Having seen them both give evidence, I am satisfied that there is some truth in each of their respective positions.
Even within the confines of the courtroom, the father demonstrated little self-control and a lack of respect for the mother and the solemn process he was involved in. As was conceded by counsel who appeared for the father, the father was “demonstrative and emotive in his communication”. Not only that though, he was also not responsive to the questions that he was asked and he used cross-examination by the mother as an opportunity to speak at length about matters that he considered important whether that was in answer to the question she asked him or not. His counsel conceded that as well. According to the family report writer, Mr E, that is exactly what he was like when interviewed by him in the preparation of the family reports.
As to the evidence given by the father, I was not convinced that it was all truthful. I perceived him to be falsely denying facts that were put to him by the mother when he considered that a truthful response might hurt his case. The denial that he was “drunk” already referred to is but one example. In addition, I do not consider that he was entirely honest and truthful when giving evidence himself about matters pertinent to his care of the children. His minimisation of the level of his alcohol consumption and its impact upon his parenting capacities is a good example of that. So, too, was his evidence about leaving the boys on their own in a cinema whilst he went outside to take a phone call and also his evidence about the occasion when he left the boys on their own in a hotel room on the Gold Coast when they were staying there while he went downstairs to “the reception area” for some time.
On the other hand, I got a sense that the mother was being quite honest in the giving of her evidence. Sometimes that honesty was even to the detriment of her case. A good example of that is the affirmative answer she gave to the question as to whether she wants to return to Germany just to get away from the father. I got the distinct impression that the mother was completely frustrated in her interaction with the father, fed up with it and keen to end it if she could. Whilst I am satisfied that she has some legitimate reasons for wanting to return to Germany, I am satisfied that her desire to leave Australia is substantially fuelled by a wish to get herself and the two boys as far away from the father as possible.
However, that said, I observe that Mr E expressed the opinion in his first report that both boys related very affectionately with each of their parents. He noted nothing unusual or out of the ordinary in their familiarity and responsiveness to each parent. He recorded the eldest boy as describing his father’s place as fun and saying that he likes to go there as there are lots of things to do. He recorded the boy as saying that he likes the amount of time that he spends with each of his parents but that he thought it would be fine if he was to spend a little more time with his father than he was spending with him at that time. Mr E recorded the youngest boy as presenting as a happy little boy, comfortable with both of his parents and happy with the time that he spent with each of them.
In his second report, Mr E again confirmed his view that the children have a bond with their father but went on to say that he considered it had been interrupted since separation and clearly not developing as “one might hope”. Mr E concluded his updated report with the expression of the view that if the children were allowed to relocate to Germany it would “impinge further upon the fragile bond between themselves and their father and it is questionable whether it would be a bond that could be sustainable over the long term”. That concern of the expert’s is one that I consider to be rightly held in this case.
The mother agreed that she had consented to the boys spending a block of two weeks at the end of the 2012/2013 Australian summer school holiday period with their father without truly considering it was in their best interests to spend that time with him. She agreed that she did that simply to extract his consent to her proposal to take the boys to Germany for six weeks prior to that time. She took the boys on that holiday and upon her return, for reasons that she would have the Court accept were child focussed, interrupted the boys’ holiday time with their father so that they only ended up spending four days of the two week block in the father’s care. Additionally, there is evidence which I accept that whilst she was in Germany the boys did not have the communication with their father that he was expecting or that they should have had. This included a failure to have the boys speak with the father on his birthday. Neither of these factors provide cause for satisfaction that the mother is appropriately committed to promoting and facilitating the boys’ relationships with their father.
In circumstances where the mother has not been able to facilitate the boys spending more than four days in one block of time with their father since separation, she quite extraordinarily asserts that if she is allowed to relocate with the boys to Town F, Germany, she will facilitate a six week block of time that they spend with their father in the middle of each year when she says she will bring them out to Australia, stay here herself for the six weeks then return with them to Germany. She says that she will then facilitate another three week block half a year later, if the father comes to Germany. In the face of evidence that Skype internet telephonic communication did not work to each party’s mutual satisfaction during the six week Christmas holiday, the mother proposes that the boys’ relationships with their father will be encouraged and facilitated between block visits by way of Skype internet telephonic communication.
I am satisfied that Skype communication will not be sufficient and is unlikely to work as between these two parents and these boys. I am also not convinced that the mother will, if she was firmly ensconced in Town F, Germany, facilitate long block visits for the boys with the father.
I accept there are a number of factual matters in this case that do point towards relocation to Germany being beneficial to these boys. The mother is German and lived, studied and worked in Town F, Germany for many years. They were born in Town F, Germany themselves. German is their first language and they speak it at home with their mother. They have a loving grandmother who lives in Germany, albeit some four hours travel from Town F where the mother wishes to return to. The grandmother has re-partnered to a man who the mother and the two boys apparently have high regard for. The mother is an only child and wants to return to Germany to be able to have more contact with and be more supportive to her mother. She perceives better employment prospects in Town F, Germany. She would be able to obtain employment in the education field with only a further six months of training. She asserts the cost of living in Town F, Germany is lower than it is here in Australia and she would not have to struggle financially as much as she has been here, particularly where she has been receiving no financial support at all from the father. The mother asserts that she would be happier and therefore a better parent to the boys if she was back in Germany.
I am also mindful of the fact that the father lived for 14 years in Town F, Germany, operated a business there, speaks fluent German and has a right of permanent residency in Germany, obtained when he lived there previously and married the mother.
However, notwithstanding the fact that he has the right to return to, and live and work, in Germany, I am satisfied that he does not want to and that he will not, even if the mother was allowed to relocate the two boys back to Germany. As such, I am quite satisfied that if I made orders that permitted the mother to relocate the two boys back to Germany, that their relationships with their father would probably be fairly quickly severed. I do not consider that their relationships with their father are currently secure enough or that the relationships are supported enough by their mother, in any event, to be able to sustain the impact that will be caused by a move to Town F, Germany without their father at their age, where they would then only get to spend very infrequent time with him at best.
I do not consider it to be in their best interests to lose their relationships with their father and I am satisfied that these two boys will benefit from a meaningful relationship with both of their parents, including particularly their father, in circumstances where the conflict between their parents that they are exposed to is minimised as much as possible and their father takes up a more active and responsible role in their parenting including, particularly, by way of the provision of more financial assistance to their mother in respect of their support. Greater financial support is likely to be provided in the future as the mother made it clear that she would make application to the Child Support Agency for an administrative assessment of the father’s liability for child support for the two boys, something she had not ever done before the trial.
My views about the probability of the boys’ relationships with their father not continuing if they return to Germany are strengthened when I give consideration to the parties’ financial positions. Since the family came to Australia in 2009, the father has had several different jobs. At trial in May, 2013 he had been in his then current position since February of 2013. On his evidence, he was being paid a gross annual salary of somewhere in the mid $30,000’s in his then current employment. On such an income, I do not consider that he would be financially able to pay for or contribute significantly to the substantial costs of travel required for the boys to maintain meaningful relationships with him if they were to relocate to Germany. In the same vein, the mother says that she would go back to employment in the education field in Town F, Germany after another six months of training upon return there. She did not say what sort of an income a person with that employment in Town F, Germany earns, but again I am not at all satisfied that she would earn sufficient income to enable her to support herself and the two boys as well as paying for or contributing significantly to the cost of the regular long distance travel that would be required to maintain the boys’ relationships with their father.
Each of the parties seemed satisfied that the amount of parental conflict that the boys were being exposed to could be minimised with them staying in Australia by putting in place parenting arrangements that provide for the transition of the boys from one parent’s care to another through their normal schooling arrangements. It seemed agreed that this could be simply achieved by having the boys go into their father’s care directly at the conclusion of school one day and returning to their mother’s care by being dropped at school by their father at the beginning of another school day and going back into their mother’s care at the end of that day. In this way, the parents need not come into direct contact with each other on such occasions. Of course, whilst this would not address the underlying reasons for the conflict, it would reduce the potential for the boys being exposed directly to open hostility. In my view, that would be a good start.
Mr E made the point in his reports that the mother’s capacity to care for the children here in Australia does not appear to be compromised by unhappiness or emotional turmoil that she may be experiencing. I accept that opinion and add my observation that the mother herself did not really attempt to make out a case that her parenting capacity is so currently compromised by her living circumstances in this country that it is in the boys’ best interests to allow her to return to Germany and to regain emotional equilibrium away from the conflict with the father.
Indeed, in his first family report, Mr E observed that the mother had informed him that the proposed move back to Germany was much to do with the fact that she was having to pay all of the children’s private school tuition fees here in Brisbane and, as such, was unable to afford regular visits back to Germany to see her mother. Mr E reported her as having told him that if the father paid half of the school fees she would happily stay in Australia and do regular trips back to Germany. In Mr E’s second report, his observations reflect the mother firming in her desire to return to live in Germany after she and the two boys spent several weeks there over the 2012-2013 school summer holidays. In her oral evidence at the trial, the mother asserted her position was no longer that if he paid half of the school fees she would happily stay in Australia. She asserted that the father had told her she would never see any money from him. She asserted that she now wanted to return to Germany regardless of the school fee issue.
In cross-examination, the father asserted that he had never been asked to pay any child support or to contribute to the school fees. He indicated that he would happily pay if he was asked. I consider that response to be a convenient means of simply denying responsibility for not having contributed to the costs of their education or their mother’s care of them. Any parent knows the cost of caring for children on a day to day basis and hardly needs to be asked to contribute to know that they have a responsibility to contribute. I consider that he has simply been content not to pay anything towards the mother’s financial support of the children or towards their school fees. In any event, as I have said, the father was employed at the time of the trial and the mother said she would apply to the Child Support Agency for child support, so it can be expected that the father will be required to pay child support for the two boys and perhaps even paying something towards the cost of their schooling before long, if he has not already, whether he likes it or not. Once that is happening, I consider it should make a significant difference to the mother’s feelings about staying here in Brisbane.

Parental Responsibility

The mother submitted that the presumption that it is in a child’s best interests for its parents to equally share parental responsibility in respect of the child is rebutted in this case because of the “family violence” the father has engaged in. I have found that he did engage in “family violence” and, accordingly, I accept the submission that the statutory presumption does not apply.
The mother went on to submit that the ongoing conflict between the parents means that it is not in the boys’ best interests for their parents to share parental responsibility in respect of these boys. Naturally, she submitted that she should have sole parental responsibility for them instead.
The father sought equal shared parental responsibility for the boys and the Independent Children’s Lawyer also supported that outcome, save that she submitted that the mother should have sole parental responsibility for decisions about the children’s schooling.

Clearly, once the statutory presumption is rebutted, the Court must be satisfied that it is in the children’s best interests for their parents to share parental responsibility before making an order that confers parental responsibility equally upon them. Where the statutory presumption is rebutted by findings of family violence having been made, the Court must, of course, carefully consider the question having regard to the findings of family violence before determining to confer shared parental responsibility.
In this case, the father has pushed and hit the mother. He has verbally abused her in a vile way, including in front of the children. None of this is commendable behaviour and is condemned. However, apart from criticising the father for this behaviour, for drinking too much alcohol at times when the boys have been in his care, and for leaving the boys in a movie cinema whilst he went outside to take a phone call and for leaving them asleep in a hotel room whilst he went downstairs, the mother expressed general approval of the father’s capacities as a father, saying “he is a good father” at one point in her oral evidence and being reported as having said a similar thing to Mr E.
Although the parents do have quite a degree of conflict in their relationship, I am satisfied their relationship should improve and that improvement in their communication with each other can be expected once these proceedings are finalised and arrangements for the children to spend regular time with their father are put in place in a way that reduces the occasions that the parents come into direct physical proximity of each other. I am not satisfied that the history of “family violence” in this case is such that the best interests of the boys would be met by completely excluding their father from being involved in decision making about most major long-term issues in their lives and by just letting their mother make all of those herself.
Both of the parents appeared to me to have reasonably good intelligence and some capacity to develop understanding of the impact of ongoing conflict between them on their children. I am optimistic that the conferral of shared parental responsibility on the parents will encourage the father to be more responsible himself in respect of the way in which he conducts himself around his boys and in his interaction with their mother. That optimism leads me to determine that he should be given that chance at least.
I am satisfied that conferring shared parental responsibility on the parents is in the boys’ best interests in this case. Such an order, of course, carries with it the statutory requirement for consultation, with genuine effort and for the parties to make a joint decision concerning the major-long term issues with respect to which the parental responsibility is conferred. (s 65DAC) Failing the ability to reach a joint decision, the ultimate recourse is to seek an order from a court to break the impasse. If the parents want to avoid having to come back to court they must reach the decision jointly. I expect the parents in this case should be able to do that in respect of most major long-term issues, even if they ultimately need to resort to mediation to assist them so as to avoid further court proceedings.
However, I accept the submission of the ICL that it should not be equal shared parental responsibility. Equal shared parental responsibility should only be conferred if shared parental responsibility for all major long-term issues is being conferred on both parents.[8] The ICL submitted that parental responsibility for decisions about which school or schools the children shall attend should be conferred solely on the mother. I agree that it should and the orders I make will do that.
[8]See the decision of Watts J in Poulos & Bucci [2013] FamCA 144 with which I respectfully agree.
At the trial, the parents were in dispute about the school the children should be attending. The eldest boy had started attending a State primary school near to where the family lived after they arrived in Australia and he began school. However, whilst they were still together the parents agreed with the mother’s proposal to send him (and also the youngest boy when he started school) to M School. That is a school where teaching is done in accordance with a certain style and where, amongst other things, there is a particular emphasis on teaching foreign languages to students throughout the entire curriculum. The mother was very interested in the boys being exposed to this type of teaching and, particularly, to the German curriculum at that school. Clearly, the father had agreed with those sentiments when they decided to send the boys there. The mother’s wishes in that regard are completely understandable and far from unreasonable.
On the evidence, I am satisfied that the father ceased having any involvement with that school at the time the parents separated. The mother has reached an agreement with the administration of the school that she provides voluntary services to the school as some sort of assistant in return for a better deal in respect of the school fees. The father considers that the school is her “territory” as a result and says that is why he has stayed away from it and had nothing to do with the boys’ education there since the separation. Now, he says he wants the boys to go to a different school, one closer in to town, closer to where he lives.
I was not persuaded by any argument advanced on behalf of the father that it is in the boys’ best interests to move them to a different school in Brisbane if they are not to be permitted to be taken to Germany. I consider the fact that the parents reached considered agreement about their attendance at that school whilst they were still together is indicative of an agreed position that it would be good for their development to be educated at that school and exposed as much as they can be to the German language and culture whilst living in this country. I consider the father’s change of heart on this to be opportune and more self-focused than child focused. I will not make any orders that the children change schools.
Indeed, as a consequence of the evidence that I heard, I accept that it is in the children’s best interests for the mother to have sole parental responsibility for the long-term decisions to be taken about the school the children attend. The father agreed in cross-examination that it would be most unlikely for an agreement to be reached about the children staying at M School. I expect that difficulty would be likely to spill over to any other school that each parent proposed the children attend at any point in the future. My orders will leave any decision about the school the children attend to the mother, subject to her asking the father for his input in respect of any such decision before it is made, and the mother giving it appropriate consideration before making the decision herself.
Accordingly, there will not be an order for equal shared parental responsibility. Consequently, the provisions of s 65DAA of the Act do not apply and the Court does not have to mandatorily consider whether the children spending equal time or substantial and significant time with each parent is in the children’s best interests or ‘reasonably practicable’ (as that term is defined in the section).

What other parenting orders will be made?

Although the father came to the trial seeking an order that the children spend equal time with him, at the end of the trial his counsel submitted that the father proposed that the children continue to live with the mother provided she continued to live in Brisbane and that they spend time with him during school term from after school on Thursday afternoon to before school on Monday each alternate week and on from after school on Monday to before school Tuesday in the other week. The father’s counsel’s submissions also included the proposal that the boys spend time with the father on special occasions and, after a graduated introduction of block times, they start spending half of their school holidays with him as well.
I agree with both parents and the ICL that it is in the best interests of the boys for them to continue to live with their mother and to spend time with their father. I do not accept that the boys’ best interests will be served by permitting their mother to take them back to live in Germany. If that was permitted, as I have already observed, I would expect their relationship with their father would quickly be severed and become non-existent. I do not consider that as a development that would be in their best interests. I accept the submission of the ICL to this effect.
Although there was some evidence of the mother asserting that she may return to Germany even if she is not permitted to take the boys, I was not convinced that is a real likelihood at all and, on the balance of probabilities, I do not consider it will happen. She did not say that she intended to and I sensed it was just the mother venting her frustration at the nature of her relationship with the father. I considered the mother would focus on these boys’ interests in such circumstances and stay here with them. She told the Court that if she was not permitted to take them to Germany she would look to obtain qualifications that would allow her to obtain employment in the education field here in Queensland so that she could secure employment. She expected that might take 18 months once she commenced it. I consider it likely that this is what she will do. The mother is clearly a person with some ambition and drive.
There was evidence at the trial that the father did not have a driver’s licence or a motor car. Having regard to that evidence and the difficulties it presented to the father being able to drive out to M School to collect the boys and to return them to that school at the conclusion of their time with him, the ICL submitted that the orders providing for the children to spend time with the father only provide for time to be from Saturday morning until Sunday evening each alternate weekend until the father obtains a driver’s licence and a motor car that he could transport the boys in. The ICL submitted that once the father has done that the children spend time with the father during school term from after school on the Friday until before school on the Monday each second weekend and also overnight on the Monday night each other week.
I consider there is merit in that submission and I will make orders that reflect that. I am not satisfied that the boys’ time with the father should be extended to commence on the Thursday after school just at this point in their lives. I accept the ICL’s submission that fixing it at four nights per fortnight but in a weekend block of three nights and one other night in the other week is more appropriate for them at this point.
I also accept the ICL’s submissions in respect of the attendance by the father at a Triple P Parenting course and a Post-Separation Parenting Orders Program and the linking of an increase in the time the boys spend with him in the school holidays to his completion of those courses. Similarly, I accept that the boys’ best interests would be served by the mother also attending and completing a Post-Separation Parenting Orders Program and will also order that she do so. The ICL’s proposal that the eldest child’s attendance at some counselling to help him with anxiety is also one that I consider appropriate. That too will be provided for in my orders.
The boys spending special days with each of their parents will be provided for as will most of the other relatively uncontroversial matters that the ICL proposed be made the subject of the parenting orders.
Finally, my orders will provide for the mother to be able to travel with the boys to Germany for holidays on a regular basis and I record the father’s commitment, given in the witness box at the trial, that he would contribute to the cost of airfares for the mother and children to travel to Germany on holidays if they continue to live in Brisbane.
My orders will also restrain the father from consuming or being under the influence of alcohol or any other intoxicating substance whilst the children are in his care and I will restrain the parents from abusing or denigrating each other to or in the hearing of the children. Conscious that there is a domestic violence protection order currently in place, I consider it appropriate to also restrain the father from unacceptable violent behaviour towards the mother.
I make the orders that are set out at the commencement of these reasons for judgment.

I certify that the preceding sixty nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 13 March 2014.

Associate:

Date: 13 March 2014