HILLMAN & HILLMAN

[2014] FCCA 1524

FEDERAL CIRCUIT COURT OF AUSTRALIA

HILLMAN & HILLMAN [2014] FCCA 1524

Catchwords:
FAMILY LAW – Parenting dispute – mother seeking to relocate from Melbourne to Adelaide – mother’s family in Adelaide – children opposed to moving – matrimonial home being sold in any event – mother not able to remain in area previously lived in – matter finely balanced according to family report writer – mother permitted to relocate at the end of school year.

Legislation:

Family Law Act 1975, ss.60CC(2), 60CC(3)

A & A (2000) 26 FLR 382
U & U (2002) 211 CLR 238
Goode v Goode [2006] FamCA 1346
Kagan v Echlin [2014] FCCA 853

Applicant: MR HILLMAN

Respondent: MS HILLMAN

File Number: MLC 770 of 2014

Judgment of: Judge Burchardt

Hearing dates: 6 & 7 May 2014

Date of Last Submission: 7 May 2014

Delivered at: Melbourne

Delivered on: 21 July 2014

REPRESENTATION

Counsel for the Applicant: Mr James

Solicitors for the Applicant: Privitelli Solicitors

Counsel for the Respondent: Ms Glaister

Solicitors for the Respondent: Barbayannis Lawyers

FINAL ORDERS

1. All previous parenting Orders be discharged.

2. The Husband and Wife have equal shared parental responsibility for the children X born (omitted) 2004 and Y born (omitted) 2007.

3. The children live with the Wife.

4. The children be permitted to relocate with the Wife to Adelaide following the conclusion of the 2014 school year.

5. Pending the children and Wife relocating to Adelaide, the children spend time with the Husband as follows:

   (a)Each alternate week from the conclusion of school on Thursday until the commencement of school on Monday;

   (b)Each alternate week from the conclusion of school on Thursday until the commencement of school on Friday;

   (c)For the first half of the September/October 2014 school holidays from the conclusion of school on the last day of school term until 5:00 p.m. on the middle Saturday;

   (d)Further by agreement.

6. Upon the children and Wife relocating to Adelaide, the children spend time with the Husband as follows:

   (a)For the first half of each of the South Australian school term holiday periods from 5:00 p.m. on the first Saturday until 5:00 p.m. on the middle Saturday;

   (b)For a period of four weeks during the long summer holidays each year being the first four weeks in 2014/2015 and in each alternate year thereafter and the last four weeks in 2015/2016 and in each alternate year thereafter, provided that the children are returned to the Wife’s care no less than two days prior to the commencement of Term One;

   (c)On the Adelaide Cup weekend each year from Friday evening to Monday afternoon;

   (d)On the Queen’s Birthday weekend each year from Friday evening to Monday afternoon;

   (e)For a weekend during the last two weeks of August each year from Friday evening until Monday afternoon;

   (f)For the Melbourne Cup weekend each year from Friday evening until Tuesday afternoon;

   (g)Further by agreement.

7. The weekend periods referred to in sub paragraphs 6(c), (d), (e) and (f) be conditional upon the children arriving in Melbourne no later than 7:30 p.m. on the Friday evening and returning to Adelaide no later than 6:00 p.m. on the last day of said period.

8. For the purpose of the children’s time with the Husband pursuant to paragraphs 6(a) and 6(b), the Wife shall be responsible for the cost of the children travelling to and from Melbourne (whether it be travel by car or aeroplane).

9. For the purpose of the children spending time with the Husband during the weekend periods, referred to in sub paragraphs 6(c), (d), (e) and (f) herein, the Husband be responsible for the cost of the children’s return airline tickets between Adelaide and Melbourne and the Wife be responsible for the cost of her return airline ticket, until such time as the children are able to travel as unaccompanied minors, at which time the Wife will not be required to travel with the children.

10. All changeovers occur at Adelaide and Melbourne airports unless otherwise agreed.

11. In the event that the Husband travels to Adelaide, the children be permitted to spend time with him on the following conditions;

    (a)The Husband provide to the Wife at least 21 days written notice of the intended travel dates;

    (b)The children’s time with the Father is to occur on weekends, from 5:30 p.m. Friday until 5:30 p.m. on Sunday;

    (c)Said periods be limited to no more than three occasions each school term;

    (d)Said periods shall not occur during the school holidays when the children are to be in the care of the Wife;

    (e)Said periods shall not occur on consecutive weekends; and

    (f)The Husband shall ensure that the children attend all of their extra-curricular activities during said periods.

12. Each party keep the other informed of their current residential address and telephone number at all times and advise the other of any change to these details within 24 hours.

13. The children be permitted to communicate with the Husband by Skype and/or telephone on a regular basis during periods that they are in the Wife’s care.

14. The children be permitted to communicate with the Wife by Skype and/or telephone on a regular basis during periods that they are in the Husband’s care.

15. Pursuant to S65DA(2) and S62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet annexed hereto and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 770 of 2014

MR HILLMAN

Applicant

And

MS HILLMAN

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a parenting dispute about the interests of two children, X, born (omitted) 2004, and Y, born (omitted) 2007.  Although there are a number of important subsidiary matters, the main battleground in this proceeding has been whether or not the mother should be permitted to relocate, with these children, to live in Adelaide as she desires, or whether she should be compelled to remain in Victoria. 

2. As the writer of the family report, Mr L, correctly, in my view, observed, this is a finely balanced case.  Nonetheless, and for the reasons that follow, I have decided that it is in the best interests of the children that the mother be permitted to relocate as she desires. 

Agreed Matters

1. Although, inevitably, there was much disputation as to the facts, a number of pertinent facts in this case are not the subject of dispute.  The father was born on (omitted) 1963 and is self-employed.  He says he has considerable flexibility in his working hours. 

2. The mother was born on (omitted) 1963 and is a (occupation omitted) who works for (employer omitted).

3. The parties married on (omitted) 1992 and the two children were born as indicated in 2004 and 2007 respectively.

4. The father is part of a close-knit (country omitted)-Australian family.  His own mother lives very close to the former matrimonial home.  He is of (religion omitted) faith. 

5. The mother is of English-Australian heritage, if I understand the matter correctly and is not (religion omitted).  

6. The mother is from Adelaide.  Her mother and sister live there.  She has at least one friend there with whom she has been friends since a very early age and with whom she is still close.

7. It is absolutely apparent that the mother has a considerable sentimental attachment both to Adelaide as her home and as the home of her family.

8. I do not understand it to be controversial that during the currency of the relationship, she returned to Adelaide on every school holidays, including the term holidays, and her own mother routinely drove to Melbourne to assist with these visits. 

9. Although each side saw fit in their affidavit material to question the mental health of the other, it is clear that that is not an issue with which the Court is now concerned.  The father’s witness, Dr D, expresses a clear opinion in his affidavit filed on 5 March 2014 that the father is not depressed.  The father also conceded readily under cross-examination that he accepted the mother’s denials of depression. 

10. The parties married in Adelaide, and the mother was living there when they met.  Although the father did not agree that Adelaide had always been the mother’s home, he did concede that when the parties were separated between October 1997 and January 1999, the mother returned to Adelaide for that time. 

11. Separation took place in January 2014.  The parties had been to Adelaide for Christmas, as was their wont, and as was always customary, the father returned to Melbourne relatively quickly, leaving the mother to stay longer with the children in Adelaide.  She effectively over-held the children.

12. Although there was some toing and froing thereafter, in due course the mother returned to Melbourne and resumed occupation of the former matrimonial home, which is now to be sold pursuant to consent property orders already made.  That return to Melbourne, however, did not in any way constitute any admission against interest on the part of the mother.

13. Although, as is very frequently the case, there was a measure of difference between the parties as to degree, it is beyond doubt that the mother was the primary carer of the children throughout their lives. 

14. The father’s work is a (business omitted) business, called (employer omitted), which the father conducts together with an associate, Mr N.  In 2008 the father (and I infer Mr N) were made redundant from (employer omitted) and they therefore established this new business.  The business took some time to pick up but it is clearly an ongoing one.

15. The mother commenced her employment with (employer omitted) in 2012 when Y began kindergarten.  She had worked for (employer omitted) before. 

The parties’ affidavit material

1. It is not necessary, given the matters in issue in this proceeding, to spend overmuch time paraphrasing the parties’ affidavits.  The father’s first affidavit, filed on 31 January 2014, set out details of the past background of the parties’ relationship, their family histories and the way in which separation came to pass in January 2014.  It also traversed the mother’s return with the children to Melbourne, the separation in 1997 to 1999 and the birth of the children and their educational development.  I note that the father deposed to an extremely close bond with his children and stated at paragraph 40:

   “I believe the best and most stable arrangement for the children is that they live in Melbourne in the home and attend (omitted) Primary School.  Ms Hillman can live in Adelaide if she wishes.  I would prefer that she lives in Melbourne and spends regular time with the children.”

2. The mother’s affidavit, filed 25 February 2014, raised issues of the father’s health (now abandoned) and dealt with the then living arrangements.  The mother traversed the materials in the father’s affidavit in terms which in my view merely reflect the differing perspectives of the parties.  I note that the mother complained that during the course of the relationship, the father was dismissive of her importance as a mother and he would often yell at her in the presence of the children.  In paragraph 11 of the affidavit she deposed:

   “… For almost all of the marriage, Mr Hillman led a separate life, coming and going from the home as he pleased.”

3. At paragraph 29 of the affidavit, the mother asserted that she was the primary caregiver of the children during the marriage, and deposed to the father having two gym sessions per day, one each in the morning and evening, and thus rarely being involved with the children.  In effect she was deposing that the father led a parallel life.  The affidavit asserted that the father had a temper and often yelled and screamed at the mother and made an allegation of an incident in early 1999 when he assaulted her in front of his own mother.  The mother deposed to another incident later in 1999 when she was assaulted by the father and the father’s sister, Ms E, pulled him off her.  Apart from generalised complaints about the father (including an assertion, which I am unable to decide, that he threatened to have the mother assassinated) the most important matter otherwise asserted is an assertion at paragraph 49 that the child, Y, had seen sexually inappropriate material at the father’s mother’s home. 

4. The father’s affidavit filed 5 March 2014, responded to the mother’s affidavit.  This affidavit in part was concerned with who would remain in occupation of the matrimonial home.  In general terms he denied those things alleged against him and asserted that he would be available and able to look after the children were they to live in his primary care.  He did, I note, deny any physical force, threatening or intimidating behaviour.  Indeed, he accused the mother of being aggressive, abusive and screaming and referred to her having a brown belt in karate.  He asserted assaults by the mother on himself.  He denied having been banned from going to two gyms, but admitted an alleged dispute with (company omitted), to which I shall return.  He denied that Y had seen any pornographic material at his mother’s home. 

5. The mother’s further affidavit, filed on 15 April 2014, dealt with her work history, and responded to the father’s affidavit.  In particular she deposed, at paragraphs 20-25, as to the close support available to her in Adelaide, including family friends.  She referred again to a three bedroom apartment in (omitted), available to her for reduced rent, from her sister and brother–in-law. 

6. I will pass over the affidavits filed by family members which, in my view, add little to the debate.  I will deal with their evidence when I deal with the oral evidence.  An exception to this, however, is the affidavit of Mr G, the father’s brother who relevantly, for these purposes, asserted at paragraph 10:

   “I do not keep and have never have kept any pornographic material on my computer and I do not own and never have had in my possession any pornographic magazines.”

7. He denied that Y could have seen any pornographic material on his laptop computer. 

8. The father’s affidavit, filed 30 April 2014, is his trial affidavit.  It traverses a response to the mother’s materials and set out at paragraph 38 why he thought it was not in the best interests of the children to be relocated to Adelaide.  I note that he referred first to the fact that the children have always lived in the (omitted) home and identified it as their home.  He asserted that he would buy the mother’s interest out as part of the property settlement.  Additionally, for these purposes (and making it clear that I have had due regard to all the matters asserted) he raised the loss of friends, loss of contact with his (country omitted) family and his (religion omitted) background that would occur if the children were to move to Adelaide. 

9. I note that the father expressed inter alia concern that difficulties would occur because of the poor relationship he has with the maternal grandmother.  

Oral evidence – the father

1. In evidence-in-chief, the father confirmed that he is a (occupation omitted).  He conceded that in conversations more recently, his brother Mr G admitted he had possessed pornographic material, contrary to his sworn denial. 

2. Under cross-examination by counsel for the mother, the father readily conceded that the mother was an excellent parent and that the children’s primary bond was with her. 

3. He had confirmed he had not paid any Child Support but said no application had been made.  He confirmed that he had not offered the mother any financial assistance and said that he was not aware that the mother was under any financial pressure at all. 

4. The father did not agree that Adelaide had always been the mother’s home, although she had returned there during separation, but conceded that she now sees Adelaide as where her home is.  There was cross-examination about the mother’s application for sole use and occupation of the matrimonial home and the father said that he had changed locks on legal advice.  He had to concede that the mother would not have been impressed at being locked out, but said he left keys for her and the doors open.  He denied seeking to exercise control over the mother in these acts.  There was cross-examination about the father’s visit on 14 January 2014 to Adelaide.  A dispute as to whether the father had been taken to a proposed school in Adelaide and agreed to it, in my view, is of no real assistance. 

5. When cross-examined about the likely property outcome, the father seemed hesitant to concede that the mother was badly off, something that was all too clear.  He confirmed that neither party would be in substantial funds following the sale of the family home, which was now agreed to be sold.  He would not accept that Adelaide was likely to be cheaper than Melbourne and did not accept that the mother would have to move to an outer suburb if she was to remain in Melbourne.  He did not accept that their children would have to go to a new school in Melbourne and said there was affordable property in (omitted) and that he would support the mother.  He did have, however, to concede that he had not supported her thus far.

6. The father was cross-examined about the mother’s allegations of violence.  He denied physical assault, a matter to which I will return.  He denied being angry and volatile.  When cross-examined about an incident involving a word “sex” written on the hand of a female friend of X’s, in my view, his answers as to whether he thereafter tried to prevent the children from speaking together were evasive. 

7. He was cross-examined about the incident with (omitted).  He said that he had expressed displeasure and conceded that he was no longer able to fly on (airline omitted).  He denied losing his temper and said “I expressed a view” because of a change of price in a ticket.  He had to concede the authenticity of exhibits A1 and A2, which were respectively the letter from (airline omitted) cancelling any travel with that airline and his own apology for his conduct.

8. He was cross-examined about the suspension from a gym, and conceded that he attended twice a day for an hour.  He said he went to the gym before he collects the children from school, or after they were dropped off.  He denied leaving the children while he was at the gym.

9. During the course of further cross-examination about an incident when he took the children to the gym, I should make it clear that the father’s tendency to ill-temper became very evident.

10. The father conceded he had travelled frequently interstate for work in the past but said that he could rearrange his work practices now.  With video-conferencing and Skype and his partner travelling more, he would be travelling far less.  Nonetheless, the father asserted, and I will accept, that he has minimal Frequent Flyer points available to him to use to visit Adelaide. 

11. When cross-examined about the pornography on his brother’s computer, the father conceded that he had been told of this very recently, but went so far as to opine that he thought the mother would have raised this issue directly rather than by email.  He said that his brother’s computer was password coded and locked. 

12. When cross-examined about his dispute with two gyms, he said he was suspended and reinstated and subsequently left to his own accord.  There had been a dispute about somebody not wiping down, which had led to a complaint. 

13. Nothing of any great moment emerged in re-examination, save that when questioned, he indicated that he had turned his mind to where he would be living and this would be in (omitted) or (omitted).  Somewhat strikingly, however, he said he had done no research up till now as to the likely costs of such property because he had not had sufficient time to do so. 

The evidence of Ms E

1. Ms E is a principal at a school and is the sister of the father.  Her affidavit, naturally enough, deposed to a good relationship between the father and his children, and made some criticisms of the maternal grandmother, whose behaviour she described as bizarre, and generally supported her brother’s case.

2. More particularly, Ms E denied the alleged incident in 1999 when it was asserted by the mother that she had pulled her brother off the mother.

3. She maintained this denial under cross-examination.

4. She said that while her mother’s (the paternal grandmother’s) health involved some arthritis and a pacemaker, she was nonetheless generally in good health.

The evidence of Ms L

1. The next witness called was Ms L, the paternal grandmother.  Her affidavit deposed to her age (79) and her family.  She denied ever seeing the father slap the mother.  This of course had been asserted in the mother’s earlier affidavit.

2. Otherwise the affidavit was unremarkable in that it was generally supportive of the father’s case, but I note that it was not overly critical of the mother.

3. When cross-examined about her health, Ms Hillman replied, “For the time being, thank God, its okay.”  She admitted she had some aches and pains.  She also deposed that she still cooks every Sunday for a family gathering and is still doing what she used to do.  She denied ever telling the mother that her own husband had hit her. 

4. I will deal further with the evidence of the witnesses in due course, but I would interpolate and say that Ms Hillman was a quite excellent witness who was clearly not only telling the truth, but recalling accurately the matters she was asserting. 

The evidence of Mr G

1. The next witness called was the father’s brother, Mr G.  He conceded that his earlier affidavit denying pornography was incorrect.  He said he had reread it in the previous week.  He conceded that there is pornography on his laptop and that he had not read his affidavit properly before swearing it.

2. Under cross-examination, Mr G maintained that he does not leave his laptop open and that his computer is password locked.  He said it locks after about 20 seconds. 

3. He said he had told his brother about pornography on his computer when the brother asked in February 2014 and denied that it was correct that the first time the father had learnt about this matter was on the day of the trial.

The evidence of the mother and her witnesses

1. The mother gave evidence-in-chief as to her research into the relevant cost of housing in both Adelaide and Melbourne and asserted that Adelaide was approximately three quarters cheaper in (omitted), where her sister lives, than (omitted), where she lived in Melbourne.  She gave details of house prices in the area or areas where she might wish to live in South Australia and said that she could obtain a property for $300,000 - $350,000 in these areas. 

2. Under cross-examination, it emerged that this research had been conducted recently.  It was put to the mother that she would obtain a substantial settlement from the sale of the matrimonial home, but the mother computed her likely outcome as approximately $250,000.  The mother asserted that rent in (omitted) was too expensive for her to afford it.  She said that in South Australia she would live in her sister’s holiday apartment at a reduced rental, possibly paying $100 - $150 per week. 

3. The mother confirmed that she usually stayed some two to three weeks with the children in Adelaide at Christmas and that she had made the decision to separate finally between Christmas Day 2013 and 7 January 2014.  She said she had told the father numerous times that she was not happy in the relationship.  She said the father never seemed to take her seriously when she did so.  However, she said, “When I told him on
   7 January, he knew I meant it.”

4. There was further cross-examination about the father’s visit to Adelaide on 14 January 2014.  The mother maintained her version of the events but as I will make clear, I do not think anything turns on this aspect of the dispute. 

5. I note that when cross-examined about the father’s response to separation, the mother said words to the effect that given the time he had spent with the children, she did not think he would mind.  This answer demonstrated, at least in this instance, a striking lack of insight. 

6. The mother confirmed that she wishes to live in Adelaide.  She said that the emotional support she would receive was the main thing and it was not so much about the financials.  She confirmed that she has lived in Melbourne for the last 21 years (apart, obviously, from the period of separation, when she lived in Adelaide) and that the children had lived all their lives in Melbourne and had friends here.  She said she had some emotional support but her friends were working and friends were not the same as family.  She said she had a great relationship with her family, as did her children.  She said over the years she had visited Adelaide most school holidays, usually four times per year but sometimes three.  Her mother would come to and from Melbourne and drive them to Adelaide. 

7. The mother was cross-examined about her relationship with her sister, with whom she is close, although she sees her much less than her mother.  The mother confirmed that her sister could provide assistance, as the business at which she works (she is self-employed as I understand it) is only five minutes from the children’s proposed school in Adelaide. 

8. The mother was cross-examined about her part-time work with (employer omitted), which she recommenced when her son started kindergarten in 2012.  She presently works 15 hours per week but will probably work for (employer omitted) in Adelaide.  She expressed very high confidence that she would obtain up to 20 hours work during school hours in this regard.  I should interpolate and say this evidence was given convincingly. 

9. The mother confirmed that the orders she was proposing for the father to spend weekend time with the children would be practicable.  She had offered to pay for adult travel and the father to pay for children’s travel during term visits, and she will drive in the holidays.  When it was put to her that she travel times by air that she had mentioned or either very early in the morning or late at night, the mother said she had done this before, although it was clear that she had not done all that much research into this aspect of the matter, as she herself conceded. 

10. The mother expressed confidence that the father would return to substantial travel and would obtain frequent flyer points, although she conceded that the cost of the three children coming from Adelaide to Melbourne and back would be $1,000. 

11. She further confirmed she only proposed to leave Melbourne at the end of the school term.  She said she expects to clear $200,000 - $250,000 from the sale of the family home and would buy in Adelaide for under $300,000.  If necessary, she could go to a cheaper area but this would still be not even 10 minutes from school. 

12. The mother confirmed that the children had overheard arguments but had not seen physical violence perpetrated on her by the father because this was more in the past.  She confirmed that the child, Y, seeing pornographic material was, in her view, an act of neglect and that the father would never compromise the children.  The mother confirmed that she simply cannot afford to live in (omitted) and will have to move.  She says if she goes to Adelaide, the father can travel to visit.  She said that the children would not see a lot less of the father because historically he had come home from gym at a time when the children were already in bed.  She said that the proposed move would enrich the children’s relationships with the father, although they would miss him initially but would get over it. 

13. She confirmed that the father had been spending a lot more time with the children recently and that the children are uncertain and apprehensive about their move to Adelaide. 

14. She confirmed that she and the father had taken the children to a counsellor approximately two weeks ago.  She agreed that the father cannot live in Adelaide.  She said she was not used to having the children away from her at all, although she would accept Mr L’s recommendation for a nine-five regime reluctantly. 

The evidence of Ms A

1. The mother’s sister, Ms A, was called and adopted her affidavit.  She confirmed she has her own business and works six days per week but is flexible.  She has not visited Melbourne in the last five years. 

2. She confirmed that her own husband has flexible working arrangements as well and that she is very close with the mother, with whom she speaks regularly, and also the children. 

3. Ms A confirmed that she and her husband own a holiday apartment in (omitted) and have agreed that her sister can rent it at the cost of the rent assistance she receives from Centrelink.  She confirmed that (omitted) was a good suburb and the unit concerned was worth approximately $600,000.  The mother would be living eight minutes by car from where she herself lives. 

The evidence of Ms D

1. The maternal grandmother, Ms D, was called and adopted her affidavit. 

2. Under cross-examination, Ms D confirmed that she has very close relationships with both the mother and the children and that they visit on school holidays.  She says she mostly communicates daily with the mother and provides a lot of emotional support.  This would continue if she moved to Adelaide.  She said that the mother has good friends and support in Melbourne, and she thought she had quite a good relationship with the father and was surprised by his criticisms of her in his affidavit.  She said the father only comes to Adelaide at Christmas and she did not dislike him.  She said she was not rude to him or his family and did not make racist comments.  She said as a (charity omitted) member, she would never make such comments.  She denied drinking to excess and an insult said to have occurred at a wedding.  She said she had often spoken with the paternal grandmother and got along quite well with her.  She denied an alleged incident with the paternal grandmother.  She similarly denied an asserted incident at a hospital with the father’s sister.  I do not propose to traverse this evidence in greater detail.  From what the witness said and the way that she said it, it is clear that she does not like the father’s family. 

The evidence of the Family Report writer, Mr L

1. Mr L adopted his report.  Under cross-examination by counsel for the father, Mr L emphasised that the children are comfortable with both parents.  Both children had emphasised “what was fair” to him.  He confirmed that neither parent had sought to influence the children’s view seriously but said that the children do listen.  Neither child appeared to have a strong sense of the parents’ separation.  He said it was quite clearly a finely balanced case with two good parents, both of whom were involved with the children, although the mother was the main carer.  Nonetheless, the father was not an absent parent and had become more hands on since separation. 

2. Mr L said that it is not the frequency of interaction that is important but the quality of it and recommended the use of long weekends.  He recommended a nine-five arrangement if the parties remained in Melbourne.  He said that the parties’ therapist he had consulted would be able to report on the children’s progress.  He said that it would take perhaps some six to 18 months for the children to come to terms with their parents’ separation, but this would depend upon how the children reacted. 

3. Under cross-examination by counsel for the mother, Mr L confirmed that financial security for the mother was important and that none of the family has really experienced separation.  He said the sooner the relationship was terminated the better and that both parents were child focused.  He said that X now sees her father more and values this extra time. 

The Family Report of Mr L

1. Mr L’s report dated 5 May 2014 noted (paragraph 2.3) that the marriage had been under considerable strain for some years before separation.  He noted the mutual allegations of domestic violence and the absence of any application for an Intervention Order arising from the alleged violence.  Mr L recorded the parties’ views of the marriage in terms essentially consistent with the evidence they gave to the Court and set out the history of the events from separation onwards. 

2. I note that Mr L saw the children on two occasions and had felt the second occasion was one with better engagement, noting that this took place at the family home. 

3. At paragraphs 6.5-6.7, Mr L wrote:

   “I asked X why she would like the time with her father to be ‘equal’.  Her answer was one that is fairly common among children of her age:

   ‘We didn’t use to see him so much and now we see him equal and that’s fair.’ 

   I had a strong sense that she was balancing the competing expectations of her parents as their disagreement continues, and was, in her perception, ‘trying to be fair’ to resolve the matter while she knows that the adults on whom she relies for care and support cannot.  This phenomenon is well known in the research literature. 

   6.6  I tried to speak with X about how matters might be organised with her mother and father had (sic) separate homes.  I do not think she had any developed sense of the difficulties that this would entail. 

   6.7  She did however have quite a strong view about whether she wanted to move to Adelaide or not:

   “I am sticking with “No.”” 

   I said that I knew what her mother and father wanted and that it would help if she could give me her reasons why this would be best for her.  X said:

   “Because Melbourne is my home… This is where my friends are and my family and my school and my tennis club are.”

4. I note that Y expressed a similar desire to live in Melbourne.  Y also knew that his father proposed to try and buy the family home so that the children could stay there.  At paragraph 7.4 Mr L wrote:

   “In my view, it is unfortunate that Y, and probably his sister, know this and, without ascribing that knowledge to any source, it certainly impacts on Y’s understanding of what might be possible in the future.”

5. In his “Conclusions and Recommendations”, Mr L said, in my view, entirely correctly at paragraphs 8.1-8.4:

   “8.1  This is the difficult matter: despite the claims made in some of the affidavit materials by each parent about the other, it is my view, confirmed in substance by both Mr Hillman and Ms Hillman at interview, that both are good, committed parents with developmentally significant relationships with the children and an important contribution to make to the care, welfare and development of X and Y. 

   8.2  But each has different views of the impact that a prospective move to Adelaide by Ms Hillman and the children would have on these relationships: 

   8.2.1 Ms Hillman sees such a move as important for her and the children to obtain the practical and personal support she and they will need from her family as they adjust post-separation.  She feels that without this her parenting generally and her capacity to provide the emotional stability that the children now need will be affected detrimentally; while,

   8.2.2 Mr Hillman understands that, if Ms Hillman and the children relocate to Adelaide and he does not (as he says he cannot), this will change the nature of his interactions with the children substantially and he is apprehensive that this will diminish the quality of their relationships. 

   8.3  From my interviews and observations, and from the history of their care, I would conclude that X and Y formed their primary attachments to their mother, Ms Hillman.  X has now individuated herself significantly from her mother emotionally; the attachment relationship remains of greater significance for Y. 

   8.4  X and Y have robust father-child bonds with Mr Hillman that also has considerable moment for their affective and social development.”

6. Mr L went on to recommend joint parental responsibility for the children and that the children have a stable base living with their mother, and spend substantial and significant time with their father in what effectively would be a nine/five regime.  He also recommended half-holiday contact, the sharing of special family and cultural events, and liberal voluntary telephone or internet communication with the other parent.

7. Mr L noted these sorts of arrangements would not be possible if the mother relocates with the children to Adelaide.

8. At paragraphs 8.9.1-8.9.3.3, Mr L set out a number of considerations that the Court would be likely to consider as relevant to the relocation decision, and stated:

   “8.9.1 Parental separation is not a brief crisis in a child’s life, but rather children grieve the loss of their intact home and family, and children cope with this in more or less resilient ways. 

   8.9.2   In my observation, X and Y have not yet adjusted to the reality of their parents’ separation.  Because of this, I would have some reservations about the timing of the proposed relocation only some 4 months after separation, when the living arrangements for the children have not meant that they will have a real sense of what it will entail.  This leaves them uncertain and apprehensive about a proposed move. 

   8.9.3   3 key factors can mitigate or exacerbate the psychological outcomes for children attempting to cope with separation:

   8.9.3.1     The most critical of these factors is the psychological health and parenting practices of the parent with whom the children live, usually the one with whom the children had their primary attachments.  If this relationship is stable and secure, it is vital that it is protected;

   8.9.3.2     The second is the post-separation relationship between the parents.  There are 2 points to be made here:

   ·The research showing that children benefit from participation of both parents in their lives after separation deals, without exception, with mothers and fathers who voluntarily make and agree to cooperative arrangements; however,

   ·Children who are raised in post-separation families where parental disputes and conflict continue actively are likely to suffer with psychological and learning problems.  Increased contact with high-conflict parents or where disputes are chronic may aggravate conflict, fear, and suffering in children.

   8.9.3.3     The third factor is the economic stability of the post-separation family and its ability to provide adequately for the nurturance and education of the children and an adequate lifestyle for the parent with whom the children live.”

9. Mr L went on at paragraph 8.10 to refer to important but less significant matters including the support of extended family and the psychological health and adjustment of the parent with whom the children do not live.  He noted at paragraphs 8.10.3-8.13:

   “8.10.3 This would lead me to the view that the children’s relationships with their father will be able to be sustained well at a distance, once stable post-separation arrangements allow relationships to re-consolidate. 

   8.11     The evidence about re-location itself or are about re-marriage is either compete or inconclusive.

   8.12    It is fairly clear then that, from a psychological perspective, there is no one best outcome in this matter.  On balance, I would recommend a longer period where the children adjust to separation with separate living arrangements before considering a relocation. 

   8.13    If the Court decides, however, that it would be appropriate for Ms Hillman to relocate with the children now, or in the shorter term, I recommend making some professional assistance available to them to help them with their unresolved emotions and an arrangement where they spent time with their father in Melbourne of the order of:

   ·   half of each of the school term holidays,

   ·   4 weeks of the long summer holidays, and

   ·   at least one extended weekend in each school term. 

   I would supplement this with the provision of further provision that further visits could occur of the order fortnightly if and whenever Mr Hillman were to travel to Adelaide.”

Findings about the credit of the witnesses

1. I should make it clear at the outset that all of the witnesses from whom I heard impressed me as being decent individuals, although of course, not perfect.

2. The father was a less impressive witness than the mother.  It is sufficient to say that his denials of temper are just not sustainable.  The correspondence with (omitted) (Exhibits A1 and A2) speaks for itself.  Further, Mr Hillman’s tendency to ill temper was vividly evident when he was being cross-examined.

3. The mother was a careful and clearly honest witness.  I have referred to one of her answers as showing a lack of insight, and I would say that that lack of insight about the father is significant, but she was clearly a witness of truth. 

4. The other family members who were called were all evidently telling the truth and reliably so.  The paternal grandmother impressed me as a particularly good witness.  The maternal grandmother was less impressive and her answers in relation to questions about her view of the father’s family were completely unconvincing.  She clearly does not like the father or his family at all.  Whether this goes so far as to the racist matters asserted by the father’s family, I am not able to say with certainty, nor is it necessary for me to make a finding about this matter in the circumstances of the case. 

The facts as found

1. The parties lived in what was plainly an unhappy marriage for some considerable time.  The mother separated for two years and returned to Adelaide. 

2. The mother has a particularly close relationship with her family, especially so with her own mother and her sister.  She has returned regularly and frequently to Adelaide which is a city with which her children are far more familiar than ordinarily would be the case in respect of an interstate capital.

3. The mother has been the primary carer of these children and, although he obviously loves them dearly, the father was not, until separation, greatly involved in the children’s lives, at least in terms of time spent.  I accept that the father spent a lot of time at the gym and would frequently not have been very much with the children, at least in the evenings.  Similarly, his time travelling on his business interests must have made him often an absent figure. 

4. Nonetheless, it is beyond doubt that the father has a close and well-established relationship with both of his children.  This puts the mother’s criticisms of his capacity as a parent in proper focus.  His relationship would not be as good as it is if he was not a sufficiently committed and present figure in the children’s lives to engender that measure of secure relationship.

5. The family home is in the process of being sold and only then will the parties know how much money they have to commit to the purchase of any other property.  It would seem, however, likely that the amounts the mother will receive will be something in the order of $200,000 to $250,000. 

6. I would take judicial notice of the fact that house prices in a general way in Adelaide are less than those in Melbourne.  Surveys are published routinely which show that this is the case. 

7. Whether the father will be able to purchase a dwelling in (omitted) (he presently lives with his mother) is open to question but I accept the evidence of the mother that she will not be able to remain in that area.  Her earnings and likely future income are simply not going to be great enough.  One cannot say with certainty how she will cope but it is far more probable than otherwise that if the mother remains in Melbourne she will have to move to an outer suburb to obtain a property that she can purchase or even rent. 

8. The children not only have a good relationship with their father but I see no reason to doubt that they also have an excellent relationship with their paternal grandmother who has and will continue, until the sale of the former matrimonial home, to have lived very close to them and whom I have no doubt sees them regularly. 

9. I am not able to make a conclusive finding about whether Y saw pornographic material at the father’s house.  I suspect that he did since it is unlikely that he would have invented it.  At the worst, though, as the mother herself conceded, this was an oversight.  She concedes that the father would never compromise the children.  It will not be repeated.

10. I note that the father’s brother had to concede his false denial of possession of pornography.  The suggestion that he did not read his affidavit before he signed is entirely discreditable.  I also do not accept that he told the father about this in February 2014.  The father would never have been so stupid as to have denied it otherwise.

11. Despite the various criticisms the parties made of one another, in my view the start and ending point of all these criticisms is that both these parents have no mental health problems, are devoted and loving parents and well able to cope with the children when in their care.

12. If the mother relocates to Adelaide she will unquestionably have the emotional assistance and support of her mother and family much more readily available to her.  I note she said that this was really the main thing and that the financial matters were secondary.

13. I further note that although these are not matters that can be put with absolute certainty, it is more probable than otherwise that the mother would be able to obtain satisfactory housing in Adelaide than she would do in Melbourne.

14. I further note and accept the force of Mr L’s view that this family has not yet really adjusted, and more particularly the children, to the reality of the separation. 

The submissions of the parties

1. The submissions made by both counsel reflect their seniority and good sense.  I do not propose to traverse them in any detail because naturally enough they put their client’s case as best it was capable of being put on the material.  Counsel for the mother concentrated upon the benefits that would flow to the mother and therefore through her to the children if the mother relocates to Adelaide. 

2. Counsel for the father, not surprisingly, referred to well-known cases such as A & A (2000) 26 FLR 382 and U & U (2002) 211 CLR 238. He sought that the Court make orders consistent with those proposed by Mr L for time in Melbourne. If the mother relocates, he supported the time proposed by the mother although he noted that three visits per school term, while desirable, would not be practicable.

3. He laid emphasis upon the children’s expressed views and countered the assertion that the father did not pay Child Support by pointing out that the father has been paying the mortgage on the former matrimonial home. 

4. He criticised the evidence given about house prices and also the mother’s evidence about her likely work in Adelaide.  While I accept that information about housing was scarcely of the highest, I do not accept the criticisms made about the mother’s likely employment.  I have no doubt that she will obtain work in Adelaide if she relocates.

5. I accept counsel for the father’s submission that this case is all about the best interests of the children. 

The statutory pathway

1. The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65], despite some subsequent statutory amendment, is as follows:-

   “Summary

   [65] In summary, the amendments to Pt VII have the following effect:

   1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).

   7. The concept of “substantial and significant” time is defined in s 65DAA to mean:

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

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

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

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

   (i) the child’s daily routine; and

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

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

   8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11. The child’s best interests remain the overriding consideration.”

Equal shared parental responsibility 

1. Mr L has recommended this and neither party opposes it. 

2. I should make it plain that although I have no doubt the father yelled at the mother during the relationship (and she must have answered back at least on occasions), I do not accept either party’s allegations of physical violence. The father’s sister and mother gave credible evidence refuting the mother’s assertions of assault, and the father’s assertions of assault by the mother on him were simply not convincing. I do not accept that either side has been violent in the sense of physical assaults. While it is possible that the yelling and screaming that went on might be said to constitute family violence within the extended definition within the Family Law Act, the parties will no longer be living together and I think there is no need to protect the children from psychological or other harm in the care of either parent, simply because I do not think it will occur.

The presumption being applied

1. The Court is required to consider equal time, but in the context of this case that must take second place to the primary issue as to whether the mother should be permitted to relocate.  I note that Mr L had not recommended equal time and no party has sought it in any event.  

2. On the question of substantial and significant time, the orders proposed by Mr L would achieve this.  Obviously this cannot occur if the children live with their mother in Adelaide.

3. The question of relocation cannot be further avoided.  It has to be addressed in terms. 

The relocation issue

1. Mr L said that this was a difficult matter and an on-balance case, and I agree.  On the facts as I find them, there is no doubt that the mother will be very substantially benefited if she is allowed to return to Adelaide.  She will receive the emotional support she craves, together with a measure of financial support which is not to be underestimated post-separation given the mother’s limited earning capacity. 

2. The children will doubtless benefit from yet closer ties with the mother’s family in Adelaide if that is where they live. 

3. While the evidence is by no means conclusive, I am satisfied that the mother’s chances of obtaining satisfactory accommodation owned by her are substantially greater in the suburbs of Adelaide she has identified than what would be the case in Melbourne. 

4. This brings me to a matter which, in my view, is important.  The parties have not yet really got to grips with the fact of separation.  This is more so in the case of the children, but obtains with the adults also, not least because, as I understand it, the mother has not yet vacated the former matrimonial home with the children.

5. The father may or may not be able to purchase property in the (omitted) area, but I accept that the mother will not be able to do so.  One only has to look at the value of the relatively modest (as it would appear from the photographs attached to the valuation report) home presently occupied with a value of some $800,000 to immediately appreciate the difficulties the mother would be likely to face.  Given that she will have to move in any event, much of the benefits the children obtain from living in the familiar environment they are now in and attending the school they have always attended are more likely than otherwise to be lost in any event.

6. True it is that if the mother relocates to Adelaide the father’s time with the children will change.  Their relationship with the father’s family will be necessarily of a different character than it would be if the children were to remain living in Melbourne.  

7. Nonetheless, as Mr L says, and I accept, it is not the amount of time the children spend with their father, but the quality of it that is important.  Mr L is of the view that the relationship would be maintained even if the children were to relocate to Adelaide. 

8. I accept as the father asserts that there is a risk that if the children relocated to Adelaide, the mother will not promote, as it were, the (country omitted) heritage the children enjoy and the observance of (religion omitted) religious practice may also diminish.

9. Nonetheless, Mr L has recommended time at special events, and (religion omitted) Easter is certainly one such event.  The times proposed by the mother to be spent with the father in Melbourne are such that the father’s cultural concerns, if I may so describe them globally, are not likely to be borne out. 

10. It is important to note that a relevant consideration is the mother’s entitlement to freedom of movement.  As Judge McGuire said in Kagan v Echlin [2014] FCCA 853 at [55]:

    “There are, however, advantages for the children on the mother’s proposal. She is their primary parent and the Court must consider her right as an adult to freedom of movement and her right to pursue her own happiness which would arguably has vicarious benefits for the children.”

11. In the particular circumstances of this case, the mother’s desire to relocate to Adelaide is not capricious or misconceived.  While I have no doubt that part of her desire to move to Adelaide springs from her concern over the father’s allegedly controlling behaviour, the more important aspects of the move are the emotional support and stability it will give her, together with ancillary financial benefits.  The long history of the mother’s frequent returns to Adelaide suggests that this is important and necessary for her.   

12. On balance, to repeat again Mr L’s important observation, I think that the benefits to the children will be greater if the mother returns to Adelaide rather than staying in Melbourne where she will have to move and will face greater financial difficulty in any event.  The benefits to the children of the assistance that the mother will obtain in returning to Adelaide, put shortly, outweigh the difficulties the children will undoubtedly face in relocation.  These difficulties, which are undoubtedly reflected in the children’s clearly expressed views, will include the disruption to their regular and frequent contact with their father and his family (although this would occur in any event once the parties move out of the matrimonial home).  They include also the disruption of school, the loss of friends and the familiar Melbourne environment.  These are all significant and important matters to which I give weight, but in the ultimate, as I say, the children’s best interests will be best promoted by permitting the mother to relocate. 

13. The next question that arises is whether relocation should take place straight away or at a later date. 

14. This issue cannot be confronted in isolation.  I note and accept Mr L’s view that the children not having yet absorbed the reality of separation, it would be preferable for relocation to take place at a period some 6 to 18 months from now, when the children have adjusted to the reality of it. 

15. Nonetheless, the mother is not sufficiently in funds readily to be able to afford rental in the (omitted) area. 

16. It would self-evidently be desirable for the children to move once only if they are going to move to Adelaide and not have some interim re-adjustment in Melbourne.  Once again this is a finely balanced matter, but doing the best I can in the particular circumstances, in my view the mother should relocate to Adelaide following the end of this school year.  Given the sale of the house, she would presumably not be moving for some two to three months from now at the earliest, which would take us through, or at least well into term 3, in any event.  She will have to make interim arrangements until the end of the school year. 

17. I think it would be preferable to give the children some 6 or 7 months (this being at the bottom of the time schedule suggested by Mr L) to re-adjust to the reality of separation.  It should be possible for the mother with her share of the proceeds of sale of the home to rent property in the (omitted) area and keep the children in the same school during this time.  I note that her family is prepared to offer financial assistance in any event.  

The form of orders made

1. The time for which the mother contends is essentially supported by the father (in the sense that while he opposes the move to Adelaide, the particular arrangements proposed are acceptable to him).  I will order that the children spend half school holidays, term holidays and four weeks of the long summer holidays with the father in Melbourne, together with liberal telephone and Skype contact. 

2. The children should also spend at least one long weekend with the father per term.  It might well be appropriate for the children to spend (religion omitted) Easter with their father and I will give the parties an opportunity to consider the practicalities and nuts and bolts of travel during school terms.  I would indicate that I would have no hesitation in taking the children out of school once per term for a day or two if it is necessary to facilitate this sort of regime. 

1. It will be noted that I have not traversed seriatim the various considerations contained in matters such as s.60CC(2) and (3) of the Family Law Act 1975 (“the Act”).  I have dealt with those aspects of the matters those sections raise where they are necessary to be referred to in what I have already said.  To the extent that these reasons for judgment are silent, the parties may infer that there is nothing in the positions put by either parent that operates against any of the criteria in sub-s.60CC(2) or (3) in any negative or significantly negative way against either parent.  I emphasise that I have regard to the difficulties that the move to Adelaide will cause, but repeat that I am convinced that the orders I make are in the children’s best interests for the reasons that are expressed in this judgment. 

2. I have drawn up a preliminary set of draft orders, but in view of the uncertainty about term-time and special events, I will give the opportunity to each party to consider them and to make any further submissions. 

I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  21 July 2014