Highs and Lloyd

[2007] FamCA 604

FAMILY COURT OF AUSTRALIA

HIGHS & LLOYD [2007] FamCA 604

FAMILY LAW - CHILDREN - With whom a child lives - With whom a child spends time - Best interests

APPLICANT: MR HIGHS

RESPONDENT: MS LLOYD

FILE NUMBER: NCF 1568 of 1999

DATE DELIVERED: 2 May 2007

PLACE DELIVERED: Newcastle

JUDGMENT OF: MULLANE J

HEARING DATE: 2 May 2007

REPRESENTATION

COUNSEL FOR THE RESPONDENT: Ms D. Burns

SOLICITOR FOR THE APPLICANT:	Messrs Avern McIntyre & Co, Solicitors
SOLICITOR FOR THE RESPONDENT:	There was no appearance by A.W. Simpson & Co, solicitors

COUNSEL FOR THE INDEPENDENT

 LAWYER FOR THE CHILDREN :

Mr T. Bates

SOLICITOR FOR THE INDEPENDENT

 LAWYER FOR THE CHILDREN :

Mr A. Scally, Legal Aid Commission

Orders

1. All prior parenting orders are discharged.

2. The children B born …/4/95) and C (born …/11/96) (“the children”) are to live with the father.

3. The parents have equal shared parental responsibility for the children.

4. The children are to spend time with the mother:

   4.1     For the term 1 and Term 3 school holiday periods, from 12 noon on the first Saturday until 12 noon on the last Saturday of such periods.

   4.2     For the Term 2 school holiday period, from 12 noon on the first Saturday until 12 noon on the middle Sunday of such holidays.

   4.3     For the Christmas school holidays, from 12 noon on the first Saturday until 12 noon on the second Sunday in January in such years that the holidays commence in an odd numbered year, and when holidays commence in an even numbered year, from 12 noon on the second Sunday in January until 12 noon on the last Sunday of such holidays.

5. To facilitate time with the mother pursuant to Order 4 herein, the mother must collect the children from the residence of the father at the start of each period, and the father must collect the children from the mother’s residence at the end of each period, unless otherwise agreed by the parties.

6. The father must use his best endeavours to provide additional time with the children to the mother:

   6.1     whenever the mother attends the I/T area;

   6.2     whenever the children attend the A/O area;

   6.3     each Mother’s Day weekend;

   as requested by the mother.

7. The mother is to have telephone communication with the children each Thursday between 6.30pm to 7.30pm, facilitated by the father allowing and ensuring the children to telephone the mother.

8. The mother may telephone the children at any other reasonable time.

9. When the children are spending time with the mother, the father is to have telephone communication with the children each Thursday between 6.30-7.30pm.

10To facilitate communication pursuant to Order 8 herein, the mother must ensure the children telephone the father.

11In addition to Order 10 herein, the father may telephone the children at any other reasonable time when the children are with the mother.

12Each party is restrained from taking either child to or allowing either child to attend upon licensed premises, except for the purpose of dining.

13These orders are authority for the mother to obtain information from any school or medical practitioner upon whom the children attend, relating to the children.

14Each party is restrained from denigrating the other party, or allowing any other person to do so, in the presence or hearing of either child.

15Each party must ensure the children have privacy for any telephone communication with the other party.

1. Any outstanding applications between the parties are dismissed

   IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Mullane delivered this day will for all publication and reporting purposes be referred to as HIGHS & LLOYD.

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 1568 of 1999

MR HIGHS

Applicant

And

MS HIGHS

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This was a hearing of proceedings regarding the care, welfare and development of the parties' two sons, B, who is 12, and C, who is 10. 

EVIDENCE

1. In these proceedings the following evidence has been read and relied upon:

   (1)the exhibits F1 to F4;

   (2)the mother's amended application filed 23 November 2006;

   (3)the father's amended response filed 3 November 2006;

   (4)the father's affidavit sworn 26 October 2006;

   (5)the welfare report of Mr N released on 16 February 2007.

BACKGROUND

1. The parents cohabited from January 1995 and married in September 1995.  They separated in June 1997and divorced in 2001.  The boys have lived with the father on a rural property in the I area since January 2000, and during that period have had regular and reasonably frequent contact with their mother, and half-sister, T, who is about 14 now.

2. The mother and T have during that period resided in the R district, which is more than an hour's drive from where the father and the boys reside.

3. The mother remarried in 2005.  Earlier this year, after the interviews for the welfare report, the mother, her husband and T moved from R to O near A and have since resided there.  It appears that it is intended by them that they will permanently reside in that area.

4. Mr N, the psychologist who prepared the welfare report, made the following conclusions and recommendations at the end of his report.

   Evaluation:

   7.1 The Court documents made available to assist in the preparation of this report detail circumstances of the parties largely in their past circumstances. There are issues raised about the well­ being of the boys in the father's household when he was with [Ms W]. [The mother’s] difficulties with substance abuse and consequent difficulties in her care of the boys are also detailed. While these issues provide the background to the development of each parent's situation, each is now in changed circumstances. [The father] now has the principal care responsibility of [the children] on his own. [The mother] is now drug and alcohol free and is in a stable and supportive marriage.

   7.2     The mother raises some more recent concerns about the father's care of the boys in terms of his driving with them after drinking. The father discounts the seriousness of this allegation. Beyond that there do not appear to be any concerns raised by either parent against the other in terms of care of [the children]. [The father] did not challenge the view that the mother appears to be drug and alcohol free.

   7.3     [The mother] is pursuing her application for the boys to live with her because she believes she is available to provide for their full­time care while their father is divided between caring for [the boys] and maintaining his job. The father's position is that the boys have, in the main, lived with him since he and their mother separated and he sees no reason for that situation to change.

   7.4     Given the geographical separation of the parents there will need to be a decision that [the children] live principally with one parent. Equal time or something approaching that is not possible. Even had [the mother] remained living in [R], a similar outcome would have resulted, only perhaps with more time spent with the non-residential parent. [The parties] do not appear to communicate closely on issues concerning the boys in such matters as health and education. Both stated their preparedness to work co-operatively with the other in sharing parental responsibility. It may be a matter where each parent might benefit from some short counselling intervention to help them translate their stated willingness into actual co-operation.

   7.5     As to the question of where the boys should live, in my assessment I found no compelling information to suggest [the children’s] care with their father was deficient. I formed the view that [the father] has found adjusting to caring for the boys by himself over the past nine months, together with getting over his relationship breakdown have been a challenging time. [C] was able to verbalise these thoughts in his comments to me about how things had gradually gotten better with his father.

   7.6     During the past few years, [the mother] has consolidated her own stability and through regular contact with the boys has developed a strong and positive relationship with them. The stability of her life and household has allowed [the children] to feel safe and secure with her. It is difficult to know what weight to place on their stated wishes to live with their mother. This may have been partly "holiday effect" after an exciting time spent at the coast. There were some indications in both their comments however that there was some more substantial reason for their view. In my view, these seemed to be a feeling that their mother was attuned to their needs and had time for them.

   7.7     While [the boys] have their half-siblings, [T] and [E], the relationship with [E] does not appear to be strong. He is not a part of the mother's household and it is unlikely the relationship with develop further. The relationship between [T] and [the boys] is more significant. Both boys and [T] describe a good relationship. It has developed through their living in different households. In my view there is no strong feeling from either [T] or the boys that they need to live together to maintain the closeness of their relationship.

   7.8     In evaluating the relative care the boys receive with their father and might receive with their mother, I would give a very slight preference to [the mother] in that she is not divided in her time between caring for the family and maintaining a job. She also seems to have developed a positive and receptive relationship with them over her more recent period of stability. Opposed to this is the stability [the father] has provided [the boys] during the mother's past instability. To use a colloquialism, he has done the "hard yards". The issue will be whether in testing the evidence the Court sees a compelling reason to alter a currently satisfactory situation. From [the boys’] perspective also, they have had continuity in their schooling at I Public School and relationships with paternal extended family and their maternal grandmother. Relocation of the boys would mean the likely loss of their community relationships and weakening of their extended family network.

   7.9     Whatever the decision of with which parent the boys live, arrangements for time spent with the other parent will need review given the greater distance between their residences. In my discussion with both parents they want to maintain or allow the other parent as frequent contact as is practical. This is matter which will require some further negotiation between the parties. [The boys] want contact as frequently as possible but understand the distance makes the past fortnightly arrangements unworkable. Both parents indicated that extension of school holiday periods such as the full period of the Easter and October holidays could be acceptable.

   7.10 The frequency and flexibility of telephone calls between the non­residential parent and the boys has mixed views from the boys. [C] would like a phone call nearly every day while [B] is happy with a once a week call. Allowing the boys to initiate calls as they wish may be an option to be considered. One issue which does need a decision is the fact that at the father's home they speak to the mother on a speaker phone so conversations are monitored. This apparently arose from advice [the father] obtained from DoCS some time ago when the mother was less stable than now. [The father] concedes there is probably no need to monitor calls. In my opinion if there is no particular risk, the boys should be allowed their privacy in talking with their parent and the use of the speaker phone should end.

   Recommendations:

   8.1 While I have suggested that the mother might provide a marginally better standard of care than the father in his current situation, I would support a change from [the boys’] residence with their father only if the Court becomes aware of some significant deficiency in the father's care.

   8.2     With the mother's relocation to [O], there will need to be re­negotiation of arrangements of the time [the boys] spend with the parent with whom they are not living. The practicalities of travelling, time involved and cost are factors to be considered. I strongly recommend that the parents negotiate these matters with a view to maximising the opportunities for [the boys] to maintain close and regular contact with that parent and their household.

   8.3     With regard to phone calls I recommend that the boys be able to initiate phone calls to their parents as they wish and that the calls be made privately.

5. The mother did not appear in person or by a legal representative at the hearing.

6. O is five to six hours from where the boys reside.

7. B is in year 6 at I Public School and C is in year 4 as the same school.  They have each attended that school for the whole of their schooling since they were enrolled in kindergarten.

ORDERS SOUGHT

1. The father seeks the following orders as set out in exhibit 4

   A.That all prior parenting orders be discharged.

   1That the children [B] born […]/4/95) and [C] (born […]/11/96) (“the children”) live with the father.

   2That the parents have equal shared parental responsibility for the children.

   3That the children spend time with the mother:

   3.1      For the term 1 and Term 3 school holiday periods, from 12 noon on the first Saturday until 12 noon on the last Saturday of such periods.

   3.2      For the Term 2 school holiday period, from 12 noon on the first Saturday until 12 noon on the middle Sunday of such holidays.

   3.3      For the Christmas school holidays, from 12 noon on the first Saturday until 12 noon on the second Sunday in January in such years that the holidays commence in an odd numbered year, and when holidays commence in an even numbered year, from 12 noon on the second Sunday in January until 12 noon on the last Sunday of such holidays.

   4To facilitate time with the mother pursuant to Order 3 herein, the mother shall collect the children from the residence of the father at commencement, and the father shall collect the children from the mother’s residence at conclusion or as agreed between the parties.

   5That the father shall use his best endeavours to provide additional time with the children to the mother:

   5.1whenever the mother attends the [I]/[T] area;

   5.2whenever the children attend the [A]/[O] area;

   5.3each Mother’s Day weekend;

   as requested by the mother.

   6That the mother shall have telephone communication with the children each Thursday between 6.30pm to 7.30pm, facilitated by the father allowing and ensuring the children to telephone the mother.

   7That the mother may telephone the children at any other reasonable time.

   8That when the children are spending time with the mother, the father shall have telephone communication with the children each Thursday between 6.30-7.30pm.

   9To facilitate communication pursuant to Order 8 herein, the mother shall allow and ensure the children to telephone the father.

   10That in addition to Order 9 herein, the father may telephone the children at any other reasonable time when the children are with the mother.

   11That neither party shall take nor allow the children to attend upon licensed premises, save for the purpose of dining.

   12That these orders shall be authority for the mother to obtain information from any school or medical practitioner upon whom the children attend, relating to the children.

   13That neither party shall denigrate the other party, nor allow any other person to do so, in the presence or hearing of either or both children.

   14That each party shall ensure the children have privacy for any telephone communication with the other party.

   15That wherever the word “party” appears in these orders, such reference shall be limited to the mother and father.

RELEVANT LAW

1. The objects of the children’s provisions of the Act are set out in Subsection 60B(1) which provides:

(1)      The objects of this Part are to ensure that the best interests of 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.

1. Subsection 60B(2) provides:

(2)      The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

(a) children have 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; and

(b) children have 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); and

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

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

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

1. Subsection 60B(3) provides:

   (3)      For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)      to maintain a connection with that culture; and

   (b) to have the support, opportunity and encouragement necessary:

   (i)       to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)      to develop a positive appreciation of that culture.

2. Subsection 60CC provides:

   Determining child’s best interests

   (1)      Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)      The primary considerations 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.

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   Additional considerations

   (3)      Additional considerations 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;

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

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

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

   (c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

   (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; or

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

   (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;

   (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;

   (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;

   (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;

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

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

   (k) any family violence order that applies to the child or a member of the child’s family, if:

   (i)       the order is a final order; or

   (ii) the making of the order was contested by a person;

   (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;

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

1. There is an issue as to parental responsibility.

2. Section 61DA of the Act provides:

(1)      When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

(2)      The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

(b)      family violence.

(3)      When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4)      The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

1. Subsections 65DAA(1) & (2) provide:

Equal time

(1)      If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

Substantial and significant time

(2) If:

(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

the court must:

(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable

1. As Subsection 65DAA(1) applies, the Court must consider equal time.  In doing so the Court must have regard to the provisions of Subsection65DAA(5) which are:

(5)      In 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, the court must have regard to:

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

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

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

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

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

Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:

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

(b)        the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).

Note 2: Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

SUBSECTION 60CC(3) FINDINGS

1. The findings under subsection 60CC(3) are as follows:

a)       Expressed wishes of the children

1. B expressed a wish to live with his mother.  But not a lot of weight can be given to that in this context that he just had his first holiday at O on the coast and he has never lived there and attended school there.

2. C did not express a preference between his parents.  He expressed a preference for 3 phone calls per week with his non-residence parent.

b)       The children’s relationships

1. For each boy the main attachments are with the parents.  The relationships are close and positive.  The mother, however, appears to have in the past been better able to listen and talk with the boys.  But, if the boys live with her, she is likely to have other pressures on her time, such as if she attends a TAFE course and/or undertakes employment.

2. The next most valuable relationship the boys have is with each other.  Despite sibling rivalry and occasionally squabbles, it is a positive and close relationship.

3. On a lesser level they have positive relationships with T and the mother’s husband, who live at O, and the maternal grandmother and members of the extended paternal family who live in the I area.  The boys also have friends from school (and it is likely some of these friendships are close, and some have endured over the period of more than 7 years they have lived in the area.

c)Willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent

1. Subsection 60CC(4) provides:

4)       Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

(a)      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; and

(b) has facilitated, or failed to facilitate, the other parent:

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

(ii)      spending time with the child; and

(iii)     communicating with the child; and

(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

(4A)     If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

1. The father over the last 7 years has established that he has a willingness and ability to facilitate such a close and continuing relationship with the mother.  The mother for her part has taken the available opportunities to spend time with the children and communicate with them.  The mother’s move to O and the consequent distance of 5 to 6 hours drive between the parents’ homes will limit the frequency of time the children spend with the non-residence parent.

d)       Likely effect of any changes including any separation

1. If there is a change of residence and the children reside in O, there will be a separation of the children from the father, their school friends and other friends, and to some extent from the maternal grandmother, when they visit frequently in I, and also from members of the extended paternal family.

2. It will also be separation from their school friends and their other friends and associates in the I area.  It is likely that such changes will be quite traumatic, at least in the short term.  It is likely the boys would react to the separation from the father with real concern for him and possibly a sense of responsibility for him and his happiness and that this will stress them.

e)Difficulty and expense of spending time with and communicating with a parent and whether they will substantially affect the right to maintain personal relations and direct contact on a regular basis

1. The mother’s move to O has created a geographic impossibility in terms of any arrangement where the boys have equal time with the parents or live with one parent and spend significant time with the other.  It is not viable for them to attend 2 schools, as it is likely to be damaging to their progress at school.

2. Because of the travel time of 5 to 6 hours each way and the cost of the travel, the distance between the households prevents an arrangement where the children live with one parent and spend time frequently with the other.  It would be contrary to the boys’ interests, for example, to have weekend contact on a 2 day weekend, that involved them spending 10 to 12 hours travelling in a motor car.

3. The only viable approach is to spend longer periods with the non-residence parent in school holidays and when that parent can travel to the I area, spend weekends or perhaps other time with that parent in the I area.

4. One effect of the geographic problem is to make it very difficult for the boys to maintain their relationship with the non-residence parent.

f)Capacity of each parent and any other person to provide for the child’s needs

1. Apart from that geographic problem, each of the parents appear to be able to adequately provide for the boys’ needs including their emotional and psychological needs.

2. It appears thought, that the father at times has difficulty meeting the demands of his job as a farm hand and the boys’ needs.  On the other hand, it appears that in the past and presently he has been better able to provide materially for the boys from paid work and that is likely to continue in the future.

3. Because of the geographic problem, regardless of which parent the boys live with, it is likely the relationship with the other parent will not be maintained and will not be as close as it has been in the past.

g) Maturity, sex, lifestyle and background of the child and of either parent, and any other characteristics of the child

1. As male children the boys each have a need for a close and positive relationship with a suitable adult male role model.  The father is likely to do that better than the mother’s husband.

2. The boys have also a background of growing up in the I area, an inland rural area, and participating in the sorts of activities boys enjoy in such an area.  It is quite a different environment and community to that of O, a coastal village near A.  Even the climate is very different.

3. The move will involve a change from many things that have been familiar to the boys for more than 7 years.

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. This does not apply.

1. Attitude to the child and the responsibilities of parenthood 

1. Subsection 60CC(4) provides:

4)       Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

(a)      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; and

(b) has facilitated, or failed to facilitate, the other parent:

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

(ii)      spending time with the child; and

(iii)     communicating with the child; and

(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

(4A)     If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

1. Both the parents appear to have adequate attitudes to the children and attitudes to the responsibilities of parenthood.

j)        Any family violence

1. There is no such issue.

k)Any family violence order that applies to a child or a member of the child’s family

1. There is no such order.

l)Whether it is preferable to make the order that would be least likely to lead to the initiation of further proceedings in relation to the child

1. There is no evidence to suggest that if the boys reside with one parent rather than the other there is less likelihood of further proceedings except that the mother’s failure to appear suggests that she probably has decided to no longer seek to have them live with her and her circumstances may be such that if the Court ordered that the boys live with her, further proceedings to reverse that are likely.

m)Any other fact or circumstance the Court thinks is relevant

1. There is no other such circumstance.

PRIMARY CONSIDERATIONS

1. The findings as to primary considerations under Subsection 60CC(2) are: 

a)The benefit to the child of having a meaningful relationship with both of the child’s parents

1. This is best served if the boys continue to reside with the father and spend time with the mother as the father proposes.

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. There is no such issue.

CONCLUSIONS

1. The boys' interests are best served if the parents have equal shared parental responsibility as the father proposes.

2. It would be impractical and contrary to the boys' interests for them to spend equal time with each parent and it would also be impracticable or in contrary to their interests for them to spend substantial and significant time with each parent.

3. The children's interests are best served if they continue to live with their father and spend time with their mother and communicate with her, as the father proposes.

4. The remaining orders proposed by the father are also in the boys' best interests.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mullane

Associate: 

Date: