HART & JERVIS
[2020] FamCA 447
•4 June 2020
FAMILY COURT OF AUSTRALIA
| HART & JERVIS | [2020] FamCA 447 |
| FAMILY LAW – CHILDREN – With whom a child lives and spends time – Relocation – Best interests of a child – Where the mother has unilaterally relocated the children to New South Wales – Where the father seeks the children be returned to the State of South Australia and the parties have equal shared care – Where prior to relocation the parties shared the care of the children on a week about basis in the former matrimonial home – Where the mother alleges a decline in the father’s mental health which the father denies – Where the mother alleges family violence and the father opposes the allegations – Whether the father could have a meaningful relationship with the children where the children are located interstate and COVID-19 restrictions are in place – Orders. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2), 60CC(3), 65DAA |
| Browne & Keith [2015] FamCAFC 143 Marvel & Marvel [2010] FamCAFC 101 Mazorski & Albright [2007] FamCA 520 Sayer & Radcliffe and Anor [2012] FamCAFC 209 Starr & Duggan [2009] FamCAFC 115 |
| APPLICANT: | Mr Hart |
| RESPONDENT: | Ms Jervis |
| FILE NUMBER: | ADC | 1576 | of | 2020 |
| DATE DELIVERED: | 4 June 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 25 May 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Bowler |
| SOLICITOR FOR THE APPLICANT: | Diane Myers Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Ross |
| SOLICITOR FOR THE RESPONDENT: | CJL Family Law |
Orders
That the mother do return the children to the State of South Australia within fourteen (14) days of the date of this order.
That until further order the mother shall have the sole use and occupation of the property situated at B Street C Town in the State of South Australia.
That the parties have equal shared parental responsibility for X born … 2010 and Y born … 2012 (collectively “the children”).
That until further order the children live with the mother.
That until further order the children spend time with the father as follows:-
(a)During school term periods, from after school on Friday to the commencement of school on the following Tuesday in each alternate week, commencing on the first weekend after the children have completed a fourteen (14) day period of isolation.
(b)For one week during each school term holiday period at times as agreed between the parties or failing agreement from the conclusion of each school term period.
That changeover shall take place at the children’s school where appropriate and otherwise the children will be delivered by the parent they are with to the maternal grandfather’s residence.
That each of the parties will facilitate regular telephone communication between the children and the other parent at times they are in their care, including upon the children’s request.
That each party forthwith advise the other party of any change of telephone number or change of residential location prior to such occurring, if practicable, and in any event not more than six (6) days after the change.
That each party notify the other in writing of any intention to move from their present address or any change to their telephone or email contact details.
That each of the parties be restrained and an injunction is granted restraining each of them from entering upon or remaining in the vicinity of any premises in which either party may be residing or any place of employment of each of them.
That each of the father and mother advise each other as soon as is practicable of any significant illness to or injury suffered by the children whilst they are in a parent’s care along with the names and contact details of any treating medical and/or allied health professionals so that each of the parties may liaise with same.
That the parties do all things necessary to cause the children to be re-enrolled at the D School unless otherwise agreed in writing.
That each of the parties be authorised:-
(a)To attend any school attended by the children or any of them and to communicate with teachers and school staff in relation to the children;
(b)To receive copies of school reports, school photographs and notices usually provided to parents, at their expense respectively;
(c)To attend all school functions and activities including extra-curricular activities to which parents are invited to attend; and
(d)To provide a copy of these orders to any school attended by the children or any of them.
That the parties attend upon such psychologist as may be agreed between them for the purpose of the preparation of a family assessment report as to the said psychologist’s opinion as to the living arrangements which would best promote the children’s best interests, with the cost of the report to be shared equally between the parties.
That each of the parties be at liberty to relist the matter either as to parenting or financial applications not less than twenty one (21) days after the publication of the intended family assessment report.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hart & Jervis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 1576 of 2020
| Mr Hart |
Applicant
And
| Ms Jervis |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Initiating Application filed 22 April 2020, Mr Hart (“the father”) seeks both final and interim orders in respect of the future parenting arrangements for X born … 2010 and Y born … 2012 (collectively “the children”).
By Response to Initiating Application filed 22 May 2020, Ms Jervis (“the mother”) opposes the parenting orders sought by the father and in addition seeks orders by way of settlement of property.
The parties commenced their relationship in or about August 2007. They married on 13 January 2017 and separated on 17 January 2020. They remained living separately and apart but under the same roof until 1 April 2020 when the father discovered that the mother and the children left South Australia and travelled to the E Town area on 31 March 2020.
The father seeks the return of the children to South Australia. The mother opposes the father’s application and seeks that the children live with her in the shire of E Town (“E Town”). The mother proposes that the children spend time with the father by frequent electronic communication and if practicable and subject to COVID-19 restrictions on interstate travel, for half of the school holidays.
If the children are ordered to return to South Australia then the mother seeks the sole use and occupation of the home situate at B Street, C Town (“the C Town property”) with the children to live with the mother. In such circumstances, the mother proposes the children spend time with the father as may be agreed or if no agreement, each alternate weekend from after school Friday until the commencement of school on Monday, for one week during each school term holiday and for two weeks in the December/January school holiday period.
The father seeks that upon their return to South Australia the children spend equal time with each of the parties. There is some uncertainty as to whether the father’s application seeks that each of the parties be permitted to reside in the C Town property during the period that the children are in that parties’ sole care.
At [49] of the father’s affidavit filed 22 April 2020 it seems that he contemplates each of the parties residing in separate accommodation.
The mother also seeks interim property and financial orders. The father has not had an opportunity to respond to the interim financial orders sought but agreement was reached that until further order the father would be restrained from dealing with the property of their self-managed superannuation fund without the mother’s written consent.
Background
The mother is 42 years of age and the father is 46 years of age. The parties separated on 17 January 2020. The mother is a senior manager with G Company whose head office is situated in Adelaide. The father is employed as a finance professional. Each of the parties receive a significant wage.
The mother concedes that she made a unilateral decision to relocate the residence of the children from South Australia to within the shire of E Town, New South Wales. Notwithstanding her move, the mother remains employed and presumably is able to undertake and satisfy her duties of employment without the need to be in close proximity to her employer’s head office.
Prior to the children’s departure from South Australia, the children were enrolled at the D School at H Town. They were in Grades 2 and 3 and it is common ground that the children attended the D School since the commencement of their school years.
At present, the children are being homeschooled by the mother, however it is her intention that upon the New South Wales government allowing children to return to an in-school setting, the children will be enrolled in a local school.
The circumstances between the parties are made more complex by the COVID -19 restrictions in respect of interstate travel. There is no impediment to the father travelling to New South Wales, however upon his return to South Australia, at present he would be required to self-isolate for 14 days. Conversely, if the mother and/or the children travelled to South Australia then they would also be the subject of a 14 day isolation condition.
Until interstate travel between South Australia and New South Wales is permitted without an isolation requirement it is impractical for the children and the parties to engage in frequent travel between the two states.
The father seeks the return of the children to South Australia so that he can resume the equal time arrangement that was in place for about six or seven weeks prior to the children’s relocation. The mother opposes the children’s return to South Australia but if unsuccessful, she proposes to return with the children and to remain their primary caregiver.
The mother considers that the shared care of the children prior to her departure to New South Wales was not working and did not serve the children’s interests.
The mother states that the following issues are relevant considerations in determining that the best interests of the children are served by them remaining in New South Wales:-
(1)That the mother is the children’s primary caregiver;
(2)That the mother considered that there was a decline in the father’s mental health over a period from 2018;
(3)That the mother alleges that the father exhibited controlling behaviour involving the family finances and excessive physical discipline of the children which constituted family violence;
(4)An incident of family violence on 19 January 2020 which marked the circumstances of the parties separation;
(5)That the father was unable to accept a breakdown of the relationship and was not prepared to vacate the C Town property enabling the mother to remain with the children.
Interim parenting
In Marvel v Marvel [2010] FamCAFC 101 the Full Court considered the approach to be adopted when presented with contested evidence on an interim hearing :-
120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (section 61DB).
I consider that a cautious approach should always be adopted in circumstances where the evidence has not been tested. That does not mean that the Court is not able to make an appropriate interim order. Whilst a Court should generally be risk-averse and cautious, that does not mean that I am obliged to only make orders consistent with the current practice of the parties or that mirrors the earlier arrangement.
The competing applications of the parties must be considered pursuant to s 60B of the Family Law Act 1975 (Cth) (“the Act”) which outlines the objects and principles underlying Part VII of the Act.
Section 60CA of the Act requires that in deciding whether to make a particular parenting order the best interests of the child is the paramount consideration. In order to determine what is in the child’s best interests, the Court must consider the provisions of s 60CC of the Act as to the primary considerations contained in s 60CC(2) and the additional considerations in s 60CC(3).
It is a trite observation that there is no provision or mention of “relocation” in Part VII of the Act. That observation does not ignore that a relocation of children without the remaining parents’ consent and knowledge is likely to engender strong opposition. Relocation cases and in particular where the issue is being dealt with on an interim basis are difficult and are likely to cause distress and upset.
Accordingly, it is important that the Court not be distracted by the heightened emotions of the parties nor there be any suggestion that the relocating party should be required automatically to return the children to their former place of residence other than in circumstances where they can provide “compelling reasons”.
In Sayer & Radcliffe and Anor [2012] FamCAFC 209 the Full Court restated their position as follows:-
47.It is a now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act.
In Browne & Keith [2015] FamCAFC 143 a mother who had moved a child from New South Wales to Western Australia was ordered to return the child. The Full Court found that the trial judge was in error in applying a test that unless in the case of emergency the Court should be reluctant to make orders which allow an interim relocation to occur in circumstances where the move was without the consent or knowledge of the remaining parent.
The concern of the Full Court was that it placed an onus on the mother to establish that her actions were occasioned by an emergency.
I am obliged to consider the practical consequences of a relocation of a child taking into account the impact on the child, the child’s circumstances in the new environment and the consequences of any reduction in the proximity to the remaining parent.
That exercise is to be undertaken by a consideration of the separate proposals of the parties and what is to be in the children’s best interests with a focus on what is practicable.
In Starr & Duggan [2009] FamCAFC 115 the Full Court gave clear direction as to the co-existent principle that the best interests of the child is the paramount consideration and the legislative framework will of necessity involve some overlap of a consideration of similar factors pursuant to s 60CC of the Act. The approach is not meant to be rigid such that:-
38.it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
·first make findings concerning the relevant 60CC factors;
·then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
·then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
Parenting considerations
I propose to adopt the following approach:-
(1)Give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act namely, the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;
(5)Have regard to the additional considerations under s 60CC(3) of the Act; and
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) of the Act are to be considered, and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation and comment.
The consideration of evidence adduced by each of the parties is necessarily tempered by the Court’s inability to test the evidence and as discussed, the evidence and issues raised by each of the parties are approached with caution.
Separate proposals of the parties
The father seeks that the children be returned to South Australia, that they spend equal time with each of the parties but with the children remaining in the C Town property and returning to their original school.
The mother seeks that the children remain living with her in E Town and will maintain a relationship with the father initially via electronic communication but upon COVID-19 restrictions being lifted allowing interstate travel to occur, the children will spend extended time with the father during school holidays and upon reasonable notice being given, with the father should he travel to E Town.
If the mother is unsuccessful in her application for the children to remain in E Town, then she will accompany the children upon their return to Adelaide and seeks sole use and occupation of the C Town property, with the children spending each alternate weekend and extended time during the school holidays with the father.
Meaningful relationship
Section 60B(1) of the Act provides that the aims and objects of the Act are to ensure that the best interests of a child or children are met by:-
(a)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
(b)Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)Ensuring that children receive 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 children.
In Mazorski & Albright [2007] FamCA 520 at [26], Brown J commented the definition of “meaningful” to be synonymous with “significant”, “important” or “of consequence”.
I consider that a further definition of “meaningful” should include the concept of a caring relationship.
A meaningful relationship does not connote an optimal relationship. It could never be said that the tyranny of distance provides the foundation for an optimal relationship between a child and a parent. What is required is not that the relationship be optimal but rather that it be meaningful.
The mother’s proposal is predicated upon an acceptance by her that the children need to have and maintain a meaningful relationship with the father but that it can be fostered and supported by the children remaining with her in E Town and the father presumably remaining in Adelaide.
For his part, the father points to the arrangements between the parties in the period leading up to the mother’s removal of the children from South Australia being a shared care and equal time arrangement.
Whilst the mother concedes that there was an initial agreement between the parties, it was her assessment that the children did not cope with the arrangements. That assessment is not conceded by the father.
The mother contends that she was the children’s primary caregiver.
Following the birth of X, the mother adjusted her employment to suit X’s and then Y’s needs. Up until 2014 the mother worked from home with the children attending part-time childcare.
Over a period of time the mother transitioned back to fulltime work commencing with her employment as a salaried special counsel.
The mother highlights that each of the children have presented with medical needs and health issues that have required them to be supervised by her. The mother speaks of Y having bronchiolitis and the medical consequences of Y’s eye disorders required significant involvement with various health and allied health professionals and specialists. The mother contends that the father rarely assisted in the care of Y which she describes as “a very challenging time”.[1]
[1] Affidavit of the mother filed 22 May 2020 at [23].
It is a relevant aspect of the mother’s position that she considers the father to have had a minimal relationship with the children. That proposition is the subject of trenchant denial by the father.
Whatever might be the evidence that provides an indication as to the extent of each parties’ involvement with the children, it is not suggested that the children would not benefit from maintaining a relationship with the father. His position is that the tyranny of distance together with the current restrictions on interstate travel would not enable the children to have a meaningful or caring relationship with him.
Are the children at risk?
The mother contends that the father exhibited signs of a decline in his mental health from 2018.
She supports her contention by highlighting observations of the father focussing on his “meditation and becoming very inward and self-focussed”.[2] The mother considers that the father became more reliant on meditation as he became more withdrawn. She formed the view that the father was not “fine” despite his assertions to the contrary.
[2] Affidavit of the mother filed 22 May 2020 at [29].
She highlights her observation that the father appeared disconnected from the family unit and other than his meditation would not engage in regular family activities. The mother considers that she undertook the majority of the parenting obligations in respect of the children and that the father would provide her with little assistance. She complains that the father did not appear prepared to adjust his work obligations and lifestyle considerations to support her and the children.
The father denies that he has a history of depression and relies upon a brief report from his general practitioner confirming that he does not have any medical impairment which would preclude him from properly parenting the children.
The medical report is brief and of no assistance. At a subsequent hearing the father’s counsel did not want to be heard in respect of a submission that little or no weight should be given to its content. I question why the medical report was tendered.
Nonetheless, I do not consider that the mother has presented evidence that would enable the Court to consider even the spectre of depression being self-evident in the father’s presentation nor the potential for such a diagnosis to adversely impact on the children.
Family violence
The mother strongly presses her allegation that the father was controlling of the family finances even though she was the primary income earner.
She considers that his insistence on making financial decisions for the family was present from the very start of the relationship and whilst he would allow the mother some control in their lives where it related to her role as a primary caregiver for the children, her career as a lawyer and her undertaking domestic and household duties, in respect of any other aspect the father would insist on making the final determination.
The father denies that he is financially controlling.
He denies that there is any alcohol or illicit drug use by him, nor that the children are at risk or have been exposed to any overt act of family violence.
The mother points to an incident on 19 January 2020 which marked the circumstances of the parties’ separation.
The parties were at the home of the maternal grandmother so that the father could see the children. The mother observed the father to be visibly upset in front of the children and following a discussion involving the maternal grandmother, he allegedly became angry and then confronted the mother.
The specifics of the allegation are set out at [40] and [41] of the mother’s affidavit filed 22 May 2020:-
40.The Applicant came downstairs and grabbed me by both my arms, eyeballed me and pulled me in to him so his face was right in my face, shaking me, continuing to escalate with threatening eyeballing behaviour very close to my face and a stern steady raised voice. He said something to the effect of “get your mother under control – I can’t deal with her”. X was crying hysterically trying to understand what was happening.
41.The Applicant was unable to communicate or deal with the children and their distress at this point and left taking Y with him. I went upstairs to comfort X as she was visibly shaken and in tears. I then travelled with X in my car back to the C Town property. X had many questions on the way back home. I could see that X would take a while to recover from the shock of witnessing the Applicant’s violent behaviour and being nearby during his physical violence towards me.
The father denies any allegation of family violence. It is likely that the circumstances of the parties’ separation was marred by anger and distress. I am not able to make a finding on the balance of probabilities that the father behaved in the manner as alleged by the mother.
In any event, the final and interim orders promoted by the mother do not appear to be predicated on the basis of a risk to the children but rather the alleged family violence was part of the reason for the mother deciding to relocate with the children to E Town.
Wishes of the children
The mother seeks that the parties jointly instruct a single expert psychologist to undertake a family assessment and to provide a report as to matters likely to impact upon the children.
Whilst there is merit in such a consideration, it is not the case that a court should decline from making parenting orders in the absence of a report.
The preparation of a family report is not an uncommon practice. It often informs a court as to matters that may be relevant, but should not be seen as being determinative of the orders made on an interim basis.
I am not satisfied that a report is necessary to determine the interim proceedings. It may well have some focus in assisting in the determination of interim arrangements either in the medium or long term.
COVID-19 considerations
Following the announcement of restrictions and conditions of social distancing and isolation, the parties found themselves in the invidious position of remaining in close quarters in the C Town property. It seems that the mother considered that remaining in close quarters with the father, initially following separation and then what she contends was the father’s insistence on the equal sharing of the care of the children and the C Town property, became unworkable.
The mother summarises her position at [78] of her affidavit filed 22 May 2020 as follows:-
The burden of all these extra stresses made the likelihood of achieving final physical separation from the Applicant impossible.
The current living arrangements of the parties
The mother acknowledges that she did not discuss her move to E Town with the father prior to her departure. She considered that she did not wish to leave the children at risk alone with him and that her move was predicated on her putting the needs of the children “for security and wellbeing first”.[3]
[3] Affidavit of the mother filed 22 May 2020 at [80].
The mother is further concerned that the father’s behaviour is such that he has not accepted that the relationship is over and that there are no prospects for a reconciliation. Her concern arising from that view was such that it was only by a move out of the C Town property and in this case, to E Town, that there would be sufficient physical distance between the parties that she would not feel under pressure from him and that the children would not be at risk.
The father denies that there is any proper basis for the mother to consider that he is not able to accept his relationship with the mother is at an end.
The father points to the joint attendance for counselling following separation and the agreement achieved in counselling that the parties reside week about with the children in the family home.
When it was the wife’s turn to remain with the children in the home the father stayed with his sister. When it was the father’s turn the mother stayed with her brother.
The father considered that the agreement “reflected [the parties] equal co-parenting of our children through their lives and to reflect the close and loving relationship [he] have with them”.[4]
[4] Affidavit of the father filed 22 April 2020 at [27].
The mother and children currently reside in a property in E Town owned by a friend of hers. At present the children are homeschooled but it is the intention of the mother that they be enrolled in formal school education once the restrictions on children returning to a formal school setting are removed.
The mother refers to a local community in which she and the children have now become involved.
If required to return to South Australia the mother seeks 14 days to do so, acknowledging that under the present interstate restrictions, she and the children will need to quarantine in self-isolation for a further 14 days.
The mother proposes that in addition to the father continuing to communicate with the children by Facetime, Whatsapp, Zoom, email and telephone on a daily basis, she will pay for the children’s travel to Adelaide in the July school holidays to enable them to spend a week with the father.
Parental responsibility
The parties each seek an order for equal shared parental responsibility.
That requires the Court to consider the requirements of s 65DAA of the Act as to whether there should be equal time and if not then whether it should be significant and substantial time with the parties.
It is also necessary to consider whether orders that are made are practicable in the circumstances in which the children find themselves.
Conclusion
The mother considers that the children residing with her in E Town best serves their interests. The father contends that the children’s removal from Adelaide has effectively terminated his ability to maintain a meaningful relationship with the children.
I am not able to determine the extent of the relationship that either party has with the children or in particular whether there is substance to the mother’s allegations that the father had little to do with the children. The father rejects such a premise and I am entitled to find that until the Court can hear and determine evidence on the point, it is not unreasonable that consistent with a concession of equal shared parental responsibility, the Court can find that the father had a meaningful relationship with the children and that it is important that orders be made to support that finding.
The mother’s proposition would not enable the father to be involved with the children at any meaningful level. His physical ability to interact with them would be restricted to school holidays even assuming that the children would be able to travel between New South Wales and South Australia.
At present the mother’s proposal is impracticable given the COVID-19 restrictions. The children will only be able to resume a meaningful relationship with the father by returning to an environment where there can be physical interaction.
The mother’s employment is not at risk. Her employer has its head office in South Australia and the mother concedes that she remains employed but is able to satisfy her employment obligations remotely.
The issue of the mother’s accommodation in South Australia may well be considered problematic, however, given that the children and the mother need to self-isolate I consider that it is a viable option for the mother and the children to return to the C Town property.
There may well be some significant period before the father can resume face to face contact with the children, but at least by their return to South Australia there is an element of certainty of outcome.
The father seeks that the parties return to the pre-relocation arrangements.
It is not in the interests of the children that the parties resume some form of cohabitation in the C Town property. Given the requirement for self-isolation, the children and the mother should return to the C Town property to the exclusion of the father.
It does not seem credible that the parties can return to some common accord that the C Town property can be shared between them.
The father may consider it onerous or unfair that he be required to find alternate accommodation. I must focus on the children and given the upheaval to their lives, the focus must be on a return to stability for them in circumstances where the inter-parental conflict will have the least adverse impact on them.
The father seeks a return to the shared care arrangement. I do not consider that to be practicable. At present the children are in a settled arrangement with the mother and I am satisfied that she is able to properly cater for their particular and special needs. That does not mean that the father could not do so, but it seems that the mother has a greater level of flexibility in terms of her work arrangements and there is some evidence that at the very least she adjusted her employment to accommodate the children’s needs.
The mother accepts that if the children are required to return to South Australia then it would be appropriate for the children to spend each alternate weekend and effectively half school holidays with the father.
I have determined that there is some merit in the long term interim arrangements being informed by a family report.
I propose to order that the mother have the sole use and occupation of the C Town property and that the children spend four days per fortnight with the father and half school holidays.
The interim proceedings will be further adjourned for a family report to be prepared whereupon the children’s living arrangements will be reconsidered.
I make orders as appear at the commencement of these reasons.
I certify that the preceding ninety eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 4 June 2020.
Associate:
Date: 4 June 2020
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