HUTCHINSON & HUTCHINSON

[2016] FCCA 2110

FEDERAL CIRCUIT COURT OF AUSTRALIA

HUTCHINSON & HUTCHINSON [2016] FCCA 2110

Catchwords:
FAMILY LAW – Parenting – relocation.

Legislation:

Family Law Act 1975, ss.60CC, 60CD, 61DA, 65DAA, 66G, Part VII

Family Law Rules 2001, r.11.17

Cases cited:
B v B Family Law Reform Act 1995 (1997) FLC 92-755
MRR v GR (2010) 240 CLR 461
A v A Re Location Approach (2000) FLC 93-035
AMS v AIF (1999) 24 Fam LR 756 at 792
AIF v AMS (1999) 199 CLR 160
U v U (2002) FLC 93-112
Hepburn v Noble (2010) FLC 93-438

Applicant: MR HUTCHINSON

Respondent: MS HUTCHINSON

File Number: NCC 706 of 2016

Judgment of: Judge Myers

Hearing date: 21 July 2016

Date of Last Submission: 21 July 2016

Delivered at: Newcastle

Delivered on: 21 July 2016

REPRESENTATION

Solicitors for the Applicant: Hannaway Lawyers

Solicitors for the Respondent: Whitelaw McDonald & Associates

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. Conditional upon the mother continuing to engage with mental health care professionals and maintain a mental health plan , following any treatment recommended within such plan and otherwise remaining compliant with any medication prescribed to the mother, the children X born (omitted) 2011 and Y born (omitted) 2012 live with the mother.

2. The mother shall be entitled to cause the children’s residence to remain in or around the (omitted) area in Victoria.

3. The mother have sole parental responsibility for the said children.

4. The children spend time with and communicate with the Father as follows:

   4.1When the father is in the (omitted) area:

   4.1.1Each alternate weekend from 3.00pm Friday to 5.00pm Sunday;

   4.1.2Each Wednesday from 3.00pm to Thursday 9.00am;

   4.1.3On the children’s and father’s birthdays from 3.00pm to 7.30pm if on a school day and from 1.00pm to 7.00pm if on a weekend which is not the father’s normal weekend;

   4.1.4During the first week of school term holidays from 5.00pm from the last Friday of the school term to 5.00pm the following Friday;

   4.1.5For half of the Christmas school holidays as agreed between the parties but failing agreement on a week about basis;

   4.1.6From 1.00pm on Christmas Day to 1.00pm on Boxing Day;

   4.1.7All changeovers are to be at the mother’s residence or as agreed between the parties;

   4.1.8The children shall have liberal telephone and Skype communication with the father at such times as agreed between the parties but failing agreement for two nights each week at times designated by the father provided that all calls are made before 7.30pm.

   4.2If the Father remains in the (omitted)/(omitted) area:

   4.2.1The children shall have liberal telephone and Skype communication with the father as agreed between the parties but failing agreement on 3 nights each week designated by the father with such phone calls to be made before 7.30pm.

   4.2.2For the first 9 nights of each of the term 1, 2 and 3 school term holidays from 5.00pm from the last Friday of term until 5pm the following Sunday

   4.2.3For four out of the six weeks of the Christmas school holidays as agreed between the parties but failing agreement 4 weeks that are not continuous as nominated by the father.

   4.2.4Upon the father visiting (omitted) in accordance with Order 4.1 as otherwise agreed between the parties.

5. The parties be restrained from criticising, denigrating one another or making derogatory comments or allegations against one another in front of or within hearing of the children or allowing any other person to do so.

6. The parties keep one another informed of any change in telephone number or address and shall inform the other party within a reasonable period of such change.

7. The parties will give the children’s schools and pre-schools all consents necessary so that the school may send copies of weekly notices, reports and photograph application forms to both parents.

8. The father will to inform the mother of any medical issues that might arise during the course of his time with the children.

9. The mother will inform the father of any medical issues that might arise with the children or if the children are admitted to hospital during her care of the children.

10. For the sake of clarity the changeover point for the children shall be the mother’s residence if the father is living in the (omitted) area or otherwise living in the (omitted)/(omitted) area.

11. The matter be transferred to the Melbourne registry of the Federal Circuit Court of Australia for consideration of allocation of the matter into the Morwell circuit of the Federal Circuit Court sittings.

12. The Court obtain a copy of the transcript and settle the reasons for the decision made.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 706 of 2016

MR HUTCHINSON

Applicant

And

MS HUTCHINSON

Respondent

EXTEMPORE` REASONS FOR JUDGMENT

1. This is a decision in the matter of Hutchinson & Hutchinson following an interim hearing on 10 June 2016.  The proceedings relate to two children of the applicant father and respondent mother, being X aged five years and Y aged three years.

2. The applicant father, Mr Hutchinson, commenced proceedings filing an initiating application on 22 March 2016, in which he sought the following orders: 

   (1) The parents have equal-shared parental responsibility for the children, X born (omitted) 2011 and Y born (omitted) 2012; 

   (2) Within 14 days the mother will take all steps necessary to cause the children to be returned to live in the (omitted), (omitted) area;

   (3) Should the mother comply with order 2; the children live with the mother in the (omitted), (omitted) area, the children will spend time and communicate with the father as follows: 

   (a)every alternate weekend from after school or pre-school on Friday until before pre-school on the following Monday; 

   (b)every week from after school or pre-school on Wednesday until before school or pre-school Thursday; 

   (c)during the first week of the school term holidays from after school or pre-school on the last Friday of school until –

   (d)the school term until 5.00 pm on the middle Sunday of the holidays;  during the Christmas holidays and odd-numbered years from after school or pre-school on the last Friday of the school term, until 5.00 pm 19 days later, and even-numbered years from 5.00 pm on the 19th day of Christmas school holidays until 5.00 pm on the last Sunday of this Christmas school holidays; 

3. The changeover place at the pre-school or school, upon a school or pre-school day, or otherwise the father will collect the children from the mother’s residence at the start of time; 

   (a)has the care of the children and the mother will collect the children from the father’s residence at conclusion of time.

4. To be clear, in the proceedings the father indicated he is happy to allow the mother to relocate back from Victoria and reside in the home in which the parties had been residing, being a rental property located in and around the (omitted) area, namely (omitted). 

   (a)In the even-numbered years from 5.00 pm on Christmas Day until 5.00 pm on Boxing Day and the children will be with the mother in odd-numbered years from 5.00 pm on Christmas Day until 5.00 pm on Boxing Day; 

   (b)by telephone every Tuesday and Wednesday at 6.00 pm, with the father to initiate the call to the mother’s mobile phone, and the mother to make the children available to speak with the father in privacy.

   (c)On the children and father’s birthday, from after school or pre-school, until 6.00 pm on a school day, and from 1.00 pm until 7.00 pm upon a non-school day or school day.  And if the children are spending time with the father in accordance with these orders on the children or mother’s birthday, then the children will be with the father from after school or pre-school until 6.00 pm if on a school day, and from 1.00 pm until 7.00 pm on a non-school day.

   (d)The children will be with the father from 9.00 am until 5.00 pm on Father’s Day, and with the mother from 9.00 am until 5.00 pm on Mother’s Day. 

   (e)Both parents may attend all school and extra-curricular activities and sporting activities involving the children, or otherwise agreed between the parties in writing. 

   (f)If the mother does not comply with order 2, the children will live with the father in the (omitted), (omitted) area; 

   (g)the children will spend time and communicate with the mother when the mother is in (omitted), (omitted) area not more than once – more often than every alternate weekend from 5.00 pm, Friday, until 9.00 am Monday, and every Wednesday from 5.00 pm until 9.00 am, Thursday; by telephone every Tuesday and Thursday at 6.00 pm, with the mother to initiate the call, and the father to make the children available to speak with the mother in private.

   (h)On the children and mother’s birthday from after school until 6.00 pm if on a school day and from 1.00 pm until 6.00 pm if on a non-school day; 

   (i)during the first week of the school holidays from 5.00 pm on the last Friday of the school term until 5.00 pm the middle Saturday of the school holidays;  during the first half of Christmas holidays in even-numbered years and during the second half in odd-numbered years.

   (j)The children will be with the father from 1.00 pm on Christmas Day until 1.00 pm on Boxing Day in even-numbered years and with the mother from 1.00 pm on Christmas Day until 1.00 pm on Boxing Day in odd-numbered years. 

   (k)The changeovers will be at the father’s residence. 

   (l)The parties keep each other informed of their current telephone number, residential address and email address, and shall inform the other within 24 hours of such a change of those details.

5. In a response filed by the mother, she sought the following orders: 

   (a)that the mother have sole parental responsibility for making decisions concerning the children in respect of issues that are not major long-term issues, being those relating to the day-to-day care, welfare and development; 

   (b)the parents shall have equal-share parental responsibility for the children in all other aspects; 

   (c)the children live with their mother in Victoria;

   (d)the respondent mother provide the applicant father copies of all notices received from school and details of all functions, parent and teacher nights and other activities which parents are invited to as they arise.

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

   (a)when the father is in the (omitted) area, not more than each alternate weekend from 5.00 pm, Friday until 2.00 pm, Sunday; 

   (b)that there be liberal telephone and Skype communication between the father and children, provided that all calls to the children are made before 7.30 pm and provided the father does not make allegations the mother to the children or denigrate the mother or her family to the children in the presence of the children.

   (c)The children and the father’s – so on the children and father’s birthday from 5.00 pm until 7.30 pm if on a school day, and from 1.00 pm to 7.00 pm on a weekend which is not the father’s normal weekend; 

   (d)during the first week of school term holidays from 5.00 pm from the last Friday of term till 5.00 pm the following Friday;

   (e)for the last two weeks of the Christmas school holidays that the children spend time with their father from 1.00 pm on Christmas Day to 1.00 pm on Boxing Day and all changeovers be at the mother’s residence by agreement.

   (f)The father remains in the (omitted) area.  There shall be liberal telephone communications, Skype communication between the father and children, provided that all calls to the children are made before 7.30 pm and provided the father not make allegations against the mother to the children or not denigrate the mother or her family to the children or in the presence of the children. 

   (g)During the first week of school term holidays from 5.00 pm until the last Friday of school term, 5.00 pm the following Friday;

   (h)for the last two weeks in  the Christmas school holidays.

   (i)On the father’s visit at (omitted), in accordance with order 4.1, the children are to be collected from the mother’s residence at changeover, with the father being restrained by injunction from allowing the children to be on motorbikes without appropriate attire and helmet; 

   (j)the father be refrained, by injunction, from using his (indistinct) mobile telephone whilst driving his motor vehicle with children in that vehicle; 

   (k)the parties are restrained from criticising or making derogatory comments or allegations against one another in the presence or hearing of the children; 

   (l)the parties will keep one another informed of any change in telephone number or address and shall inform the other within a reasonable period; 

   (m)the parents will give the children school and pre-school all consents necessary so the school might send copies of weekly notices reports, photographs, application forms for both parents; 

   (n)the father will inform the mother of any medical issues that might arise during the course of his time with the children; 

   (o)the mother inform the father if the children are admitted to hospital or have any major health issues; 

   (p)the father be prevented by injunction from removing the children from Victoria without the permission of the mother; 

   (q)The applicant father provide full disclosure documents to the mother prior to the next return day.

   (r)Pursuant to section 66G of the Family Law Act, the applicant father pay the mother by way of child maintenance in respect of the children, namely the sum of $100.00 per week.

   (s)The child maintenance referred to in order 13 shall be paid by way of bank transfer directly into the respondent mother’s account on a weekly basis; 

   (t)The first payment of child maintenance to made on or before 5 April 2016 and thereafter on Thursday of each week.

   (u)Pursuant to rule 11.17 of the Family Law Rules, the court change venue for the proceedings to Morwell Registry of the court, and the proceedings be adjourned to the date to be fixed by the registry. 

7. It should be noted that in circumstances where the mother’s solicitor indicated the mother had obtained employment in Victoria, the mother did not seek to press her child maintenance application made pursuant to section 66G of the Family Law Act 1975.

8. By way of background the father was born on (omitted) 1983 and the mother was born on (omitted) 1985.  The parties commenced living together in on or about 2008 and moved into a rental property at the (omitted), Victoria.  It is not disputed as a fact in these proceedings that both of the parties’ families lived around the (omitted) area.  At the time the parties commenced their relationship, the father was working for (employer omitted) and the mother was working for (employer omitted).

9. The parties married on (omitted) 2010.  At about that time the parties purchased a block of land in (omitted), Victoria and thereafter constructed a home on the said land.  The parties moved into their new home in or around late 2010.   At that time the mother was pregnant with X.  The mother gives evidence that she continued working up until she was 35 weeks pregnant.  On (omitted) 2011, X was born.  The mother deposes to the father rarely being at home when X was two or three years of age and that the father pursued (hobby omitted) and was undertaking (hobby omitted) lessons at an (omitted) some one hour’s drive away from where the parties were living in (omitted), Victoria.

10. The mother gives evidence of the father prioritising his financial desires over that of the family’s finances including purchasing many rifles where there were insufficient funds to do grocery shopping.  In early 2012 the mother suffered a miscarriage.  The mother complained in her affidavit that despite the father being provided a medical certificate to take time off work to assist the mother, the father returned to work the following day.  The father suggests no medical certificate was obtained and that he took a number of days off from work.

11. On (omitted) 2012, the parties’ daughter Y was born.  Shortly after her birth the parties sold their home at (omitted) and moved to (omitted), Victoria, where the father had obtained employment in (omitted) some 25 minutes’ drive away.  The mother gives evidence that the parties frequently returned to (omitted) to spend time with friends, some six hours’ drive away and that the frequency of their visits was close on every fortnight.

12. When Y was some five months of age, the mother gives evidence of having been diagnosed with post-natal depression.  It is an agreed fact that the mother sought medical help for her post-natal depression and for some period the mother moved back to live with her parents.  Ultimately the mother returned to reside with the father in (omitted).  The mother deposes that upon returning to live with the father she cried every day and that the father would not arrive home from work until 6.00 pm at night and would say to the mother words to the effect, “You’re crazy”, or “there’s something wrong with you; you need more meds.”

13. The mother deposes to having a meal ready for the father to be reheated or microwaved upon his arrival home.  The mother makes complaint that the father went away on business trips three out of four weekends per month.  The father deposes the mother rarely had dinner prepared, the home was a mess and that the mother was depressed and needed additional medication.  The mother gives evidence that for the last six months prior to the parties moving from (omitted), the mother ran a community play group once a week; that the children had play dates with other children; that they had made friends with other children and that the mother had what she described in her affidavit as four very close friends from her employment.

14. By contrast the father gives evidence that the mother only ran the play group for a few months, took on a number of committee positions as treasurer and secretary of the (omitted) and was a play group coordinator.  The father concedes at paragraph 24 the mother “didn’t have any close friends”.  The mother gives evidence of the parties moving from (omitted) at the father’s insistence and that she was not happy with the move as she and the children were settled in (omitted) and she had employment.  The father deposes at paragraph 25 of his affidavit that the parties moved to (omitted) in Victoria, one hour’s drive away from (omitted) as the parties had been given notice to vacate their rental home in (omitted).

15. At the time the father was working at (omitted) some 30 minutes’ drive from (omitted).  (omitted) is also some 30 minutes’ drive from (omitted).  At paragraph 25 of the father’s affidavit he is dismissive of the impact of the move on the mother and deposes, “Ms Hutchinson did not have many friends locally in (omitted).”  The father’s lack of empathy around the impact of the move on the mother is demonstrative, in the view of the Court, of his lack of support for the mother personally and in her role as a parent.

16. The mother gives evidence of the father spending moneys on pursuits beyond the parties’ means such as purchasing guns, (hobbies omitted), a Harley Davidson motorcycles as a 30^th birthday gift for himself, a $75,000.00 Audi motor vehicle and an expensive scuba diving holiday that the father attended without the mother or the children.  By contrast the father makes complaint that the mother had what he describes as “a penchant for spending on clothes, makeup, haircuts and random kitchen appliances, including a $2000.00 robotic mop”.

1. The mother deposes that on 17 July 2014 she found messages on the father’s mobile phone that indicated the father was having an affair.  The mother deposes to finding motel receipts and invoices for the Ashley Madison website.  The mother deposes to confronting the father about her findings and that he admitted that he was having an affair. The mother deposes that an argument started whereby she was assaulted by the father and that she hit the father with a child’s toy vacuum giving him a black eye in defence.

2. The mother deposes to the father bruising her when he was restraining the mother during the course of the assault.  It would appear the police were called and the police made an application for an apprehended domestic violence order for the mother’s protection.  The father gives evidence of the mother having assaulted him.  The mother deposes, at paragraph 28 of her affidavit, the father went before the Wangaratta Court on 23 July 2014 where the father was convicted of assault and a final ADVO order made against the father for the protection of the mother.  By contrast the father deposes that police withdrew an assault charge against him and the AVO application against him was also withdrawn by the police.  It would appear that the mother later returned to the parties’ home and some form of incident occurred whereby the police were called. 

3. Thereafter the mother moved out with the children to live with her parents in (omitted).  The mother and children remained living with her parents in (omitted) for some eight to nine months.  It is difficult to make findings in respect of the allegations and denials of family violence in this matter where the records of the Victorian Police were not subpoenaed by either party.

4. It is not controversial that during the period of the parties’ separation X was diagnosed with autism by Dr J, and that the mother sought out appropriate treatment for X.  The mother suggests that through coercion and threats the father convinced her to move with him to (omitted) on the (omitted) of New South Wales.  The father suggests the mother agreed to the move to (omitted) without coercion or threats for a fresh start where the father had obtained employment.

5. The mother deposes that after residing in (omitted) for some nine months she found out the father was having affairs and that such affairs were taking place after the parties had relocated to (omitted).  The father suggests the mother did not cope well in (omitted) and suffered what he describes as a couple of mental breakdown episodes whilst in (omitted) including one where she required hospital admission.

6. The medical notes of the mother tendered by the solicitor for the father forming exhibit B of (omitted) Medical Centre evidence the mother’s difficulties.  They include Consultation 15 September 2015:  “Bad night last night;  self-harm last night;  put her head through a wall;  took herself off antidepressants one month ago,” that being the mother.  Under a heading Long History the following is recorded:

   Talking; seen lots of psychiatrists and psychologists in the past; lots of different diagnosis have been discussed; was on Sertraline for six months this year; was doing pretty well on it; took herself off one month ago and has become more depressed since; no thoughts of harming kids; self-harm; put her head through a wall last night; lots of trouble with her relationship with her husband.  She has been physically abusive to the husband;  lots of trust issues with the husband;  thoughts of killing herself;  modus suicide, hanging lights, and thought of a rope around her neck when she feels like killing herself. 

   When asked, “What stops you killing yourself?” cannot name anything.  She does not say her kids or her husband or family, etc;  says nothing;  after some time her thoughts go away;  has lots of stress with mum as well, physically and emotionally;  father not supportive and was physically abusive once before when she had mental health problems;  very stressful relationship with her husband currently.  Discussed concerns about safety with Ms Hutchinson today.  Impression:  extremely depressed and currently in crisis; currently very high risk of suicide; not safe to go home. 

   Discussed case with supervisor;  patient needs to go to ED;  definite grounds to schedule her as mentally disordered;  convinced patient to go to ED;  rang husband to come and get her to take her to ED;  discussed with psychiatrist on call.  Further consultation, 30.09.2015, notes previous consult involving suicidal ideation;  referred to Mental Health Service after cessation of antidepressants;  discharged from ED on Sertraline, 50 milligrams two weeks ago;  review by psychiatrist, Dr J  post discharge, and Sertraline increased 100 milligrams four days ago;  ongoing psychiatrist assessment required, but preliminarily diagnosed as a depressive episode, possible bipolar and underlying personality issues;  has been stable for the previous two weeks;  no self-harm or suicide ideation demonstrated;  good insight today;  admitted to feeling anger towards Dr H and Ms L about referral to hospital;  long discussion and reassurance that it was necessary and in her best interests.  Reason for visit, depression; plan to continue on Sertraline; printed prescription

7. Surgery consultation record by Dr C, 6 January 2016:

   Recall for discussion mental health discharge summary.  However not indicated on paperwork, was for mental health community ASC team;  officially discharged from their care from incident that happened in September;  mental health remains stable.

8. Surgery consultation record visit, 24 February 2016, “Prescription renewal without consultation; prescription printed; Sertraline 100 milligram tablet, one daily.”  Surgery consultation, 2 March 2016:

   Manicured and pulled off toenail, but otherwise says currently separated from husband; due to move to Victoria where parents live, not sleeping for the last week, planning separation;  nil suicidal ideation;  has seen Ms L in the past for anxiety and depression.

9. The Court has otherwise read the material with respect to the mother having being diagnosed with bipolar type 2 disorder.  On a letter dated 1 July 2015 it sets out:

   Thank you for seeing Ms Hutchinson, aged 29 years, regarding her psychological management as outlined in attached Mental Health Care Plan.  Ms Hutchinson has been recently diagnosed with bipolar disorder type 11.  Her mood is currently stable.  However, she has a lot of stressful situations surrounding her, including the recent move to (omitted) with her family and arranging appropriate care for a son with autism.  Could you please assist Ms Hutchinson with coping mechanisms to navigate through life?

1. Further letter of (omitted) Medical Centre, 1 July 2015, that states:

   Thank you for seeing and reviewing Ms Hutchinson, aged 29 years.  She informed me she was recently diagnosed with type II bipolar disorder.  This diagnosis was confirmed by a psychiatrist, Dr M at (omitted), Victoria.  We’re awaiting medical letter to be forwarded.  This is on a background of post-natal depression, alcohol misuse and eating disorder; teenage anorexia, early adulthood bulimia.

   Ms Hutchinson is currently stable on Valium, 5 milligrams, and Sertraline 50 milligrams daily.  She was unable to tolerate Olanzapine due to weight gain. I’d appreciate if you could please review Ms Hutchinson to confirm the bipolar diagnosis and provide suggestions on optimising her medication as I would prefer not to prescribe Valium in her situation. 

2. Further letter, 15 September 2015:

   Thank you for seeing and reviewing Ms Hutchinson, aged 30 years.  Ms Hutchinson has a long history of mental illness with various diagnoses, including depression, bipolar disorder, and possible personality disorder.  Ms Hutchinson was fairly well controlled on Sertraline for about six months earlier this year.  She took herself off;  major difficulties in her relationship with her husband.  Most concerning is Ms Hutchinson’s thoughts of harm.  She had thoughts of killing herself by hanging.  She cannot described the reasons not to end her own life today.  She has also harmed herself last night.  I have marked concerns for Ms Hutchinson’s safety today and I’ve explained to her there’d be grounds for me to schedule her as mentally disordered if she does not go to ED willingly.  I’ve called her husband to take her to ED.

3. On 10 September 2015 there was a letter of Dr J to Dr C.  The letter sets out:

   Thank you for referring this 30-year-old woman who has removed with her husband and two children from Victoria to (omitted) for her husband’s job.  When I saw her today Ms Hutchinson was taking diazepine, 5 milligrams at night, but had ceased Sertraline, 50 milligrams.  She’d also just started to see a psychologist, Ms L.  At the time of this consultation I had no access to previous medical records. 

   Ms Hutchinson lives with her husband, Mr Hutchinson, an (occupation omitted), and their two children, one of whom has apparently been diagnosed with autism.  Ms Hutchinson has told me that she was well, was sleeping well, had been a little bit irritable about a week ago, but had settled, and was not suicidal.  She described no current psychotic symptoms, but complained that sometimes her energy fluctuates.  She gave a history of eating problems and deliberate self-harm as a teenager.  There have been no suicide attempts.

   She suffered post-natal depression following the birth of each of her two children.  There’s been no history of psychosis.  She told me that Sertraline, 50 milligrams, seemed to help her previously;  Baxphinlaxophine had possibly caused a hyper-manic episode involving excess purchasing, and volunteered for a multiplicity of committee jobs which she was unable to actually take on.  There may have also been other bouts of elevated mood, however this was not clear.  There is no history of hospitalisation. 

   Ms Hutchinson was apparently treated by Dr M at the (omitted) Family Clinic in (omitted), Victoria, who allegedly diagnosed her with bipolar effective disorder.  However, I have no record of this consultation.  There was a history of problem drinking, now ceased.  It appears to have been self-medication from what she labelled as stress.  There is a family history of alcohol dependence.  Ms Hutchinson was brought up at (omitted).  Ms Hutchinson did well at school.  When she was 15 she started truanting school and failed to complete the HSC.  She was subsequently qualified as a (occupation omitted) and has worked. 

   On mental state examination Ms Hutchinson presented well and emotional but not clinically depressed.  She gave a good account of herself and displayed good insight.  My impression is that Ms Hutchinson has suffered depressive episodes and may suffer from bipolar effective disorder and some other underlying personality issues.  I’ve taken the following approach:  I recommended Ms Hutchinson continuing seeing the psychologist.  I recommended that for the time being Ms Hutchinson continue on the same dose of diazepam, although it’s not usual practice to prescribe diazepam. 

   However, currently with no clear diagnosis and no corroborative history I did not wish to change her medication.  Hence I have not made any other prescription at this moment.

4. The Court has read and considered the material produced on subpoena that has been tendered.  It would appear the mother did have what might be described in lay terms as a mental breakdown.  The mother was what the Court might best describe as suicidal in circumstances where she had ceased taking her medication.  It appears as though the mother recommenced her medication.  The mother’s medication was increased until she became mentally stable. 

5. Ultimately the parties separated.  The Court notes there is disagreement between the parties about whether the mother moved with or without the father’s permission to (omitted), Victoria.  The mother moved to (omitted) with the children on or about 5 March 2016.  At the time of swearing the mother’s affidavit on 21 April 2016 she was residing with her parents and had obtained a part-time job.  The mother deposes at the time of leaving (omitted) she felt isolated in an unfamiliar town; she had no contacts and no family.  The mother deposes to needing assistance of her family.

6. The Court does not accept the submissions made on behalf of the father to the effect that there are questions about the mother being able to obtain appropriate treatment for herself in respect of mental health issues in Victoria, or for X’s autism spectrum disorder in Victoria.  The Court notes particularly that the mother had previously sought treatment with respect to her mental health issues in (omitted).  The father suggests that he is able to care for the children full-time should the mother fail to relocate back to (omitted), residing in the parties’ rental property, working what he describes as flexible hours, rostered days off and placing the children in long day care.

7. The Court has read and considered the documents tendered in respect of X’s pre-school records.  The Court has serious concerns about X’s capacity to cope with long day care, noting his needs occasioned by his autism spectrum disorder. 

8. No specific section of the Family Law Act 1975 refers to the difficult subject of relocation. In B v B Family Law Reform Act 1995 their Honours Nicholson CJ and Fogarty and Lindenmayer JJ, made it clear that relocations are not a separate category of cases within the Family Law Act1975.

9. Each is a case under Part VII of the Family Law Act1975 related to the best interests of the child but within a particular context and is to be determined in accordance with the principles contained within that part.  As a result of what the Court might describe as complexities associated with parenting cases involving a proposed relocation, the Full Court of the Family Court and the High Court of Australia have given careful and repeated considerations to the approach to be adopted in these difficult cases.

10. The law applied in cases involving relocation was set out by the High Court in MRR v GR (2010) 240 CLR 461.

11. On 1 August 2000, the Full Court of the Family Court delivered a decision in a judgment called A v A Re Location Approach and formulated a guideline judgment to be applied when determining parenting cases of this sort.  That decision draws together the principles enunciated by the Full Court in B v B Family Law Approach 1995 (1997) FLC 92-755, and the 1999 High Court decision of AMS v AIF and AIF v AMS (1999) 199 CLR 160.

12. The decision in A v A is the authority for the principle that in reaching a decision in a case where one party proposes to relocate with a child or children of the relationship, the following must occur:  (1) the Court cannot proceed to determine the issue in a way that separates the issue of relocation from that of residence in the best interests of the child;  (2) compelling reasons for and indeed against the relocation not need be shown;  (3) the best interests of the child are to be evaluated taking into account the considerations including the legitimate interests of both the resident and non-resident.

13. Neither the applicant nor resident parent bears the onus.  Treating the welfare or best interests of the child as the paramount consideration does not oblige the Court to ignore the legitimate interests and desires of the parents.  If there is a conflict between these considerations, however, priority must be accorded to the child’s welfare and rights.  If the parent seeks to change arrangements affecting the residence or contact with the child, he or she must demonstrate the proposed arrangement, even if the new arrangement involves a move overseas, is in the best interests of the child.

14. In 2002 the High Court again had the opportunity to consider the approach to be undertaken in relocation cases, this time in respect of international relocations in U v U (2002) FLC 93-112. In the case of U v U the High Court left the approach taken and articulated in A v A unchallenged but considered in detail the Court’s power to make orders not sought by either party which are ultimately in line with the particular facts of the case and the best interests of the child.

15. The Court considers the decision in Hepburn v Noble (2010) FamCAFC 111. In Hepburn v Noble the essential issue for the appeal was the potential importance of the relocation decision on any disappointment that might well be suffered by the residential parent restrained from relocating with the child.  The Full Court considered the extent to which such disappointment might diminish that parent’s capacity and any consequence or adverse effect upon the child.

16. The Full Court recognised there was a material difference between disappointment simpliciter and disappointment that manifests itself in behaviour that undermines the child’s best interests.  Only the latter is particularly influential, and there must be good evidence of it. 

17. The Court turns to those matters set out at section 60CC. The Court considers the benefit of the children, having a meaningful relationship with both parents.

18. The Court finds that there is a benefit in these children having a meaningful relationship with both parents.  The Court considers the need to protect the child from physical or psychological harm; from being subjected to or exposed to abuse, neglect or family violence.  The Court is conscious of the fact that the mother had previously determined to cease her medication, but it is the view of the Court that the mother’s mental health is now controlled in circumstances where she is medicated.

19. It is the view of the Court that in order to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence, the Court ought to make orders with respect to the mother doing such things as undertaking a mental health plan, undertaking any counselling or treatment as recommended within the mental health plan and being compliant with her medication.

20. The Court has considered the concerns of the mother with respect to such things as the children wearing helmets; the children not engaging in motorcycle activities with the father and the father otherwise lawfully complying with rules relating to road use.  It is the view of the Court that the orders sought by the mother effectively represent things the father should know well he should or should not do and it is the view of the Court the Court need not make the injunctive orders sought by the mother.  The mother has raised the issues with the father previously and it is the view of the Court the father has taken those issues on notice. 

21. It is the view of the Court that the children will not be exposed to or subjected to abuse, neglect or family violence causing them physical or psychological harm if they are in the mother’s care where the mother is compliant with the orders made by the Court with respect to her engaging with a mental health plan, undertaking any counselling or treatment recommended within the mental health plan and thereafter remaining compliant with such medication.

22. The Court otherwise finds, having regards to the father’s household that the children will not suffer physical or psychological harm, from be subjected to or exposed to abuse, neglect or family violence in the father’s care. The Court does not have before it any views that the Court might take into account or give weight having regards to the way in which the Court obtains the children’s views, particularly at section 60CD of the Family Law Act1975.  The Court considers the nature of the relationship between the children and their parents.  The court accepts the children are primarily attached to the mother.  She has been their primary carer for the whole of their lives.  There was a period of nine to ten months where the children lived with the mother and the father lived a number of hours away.

23. The nature of the relationship between the children and the mother is one of primary attachment.  The children are, in the view of the Court, secondarily attached to the father, noting that the father has historically, throughout the period of the relationship, worked full-time and it has been the mother who has primarily provided for the needs of the children;  the father has but very much in the view of the court to a limited extent.

1. The Court accepts that the children would have a strong relationship with the maternal grandparents in circumstances where they have at least resided with them for a period of some nine to ten months within the last 12 months prior to the parties relocating to (omitted).  The Court does not have any other information that is available to consider the nature of the relationship between the children and, for instance, the paternal grandparents, although the Court does note the paternal grandparents reside in the (omitted) an area where the mother currently resides.

2. The Court considers the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child or to communicate with the child.  It is the view of the Court that the parties have done things necessary to make decisions about major long-term issues in relation to the children, to spend time with and communicate with them.

3. The Court notes that the father indicated in his affidavit that he had not paid any child support.  The Court does not know the current situation with respect to the payment of child support.  The Court does not find that the parents have failed to fulfil their obligations to maintain the children in the proceedings.  The Court must consider the likely effect of any change in the child’s circumstances, including the likely effect of the separation from either his or her parents, or any other child or other person, including grandparent.

4. The father importantly seeks orders in this matter that the children live with him in circumstances where the mother does not return from living in (omitted) in Victoria to reside in (omitted).  The Court will deal with issues relating to the mother’s capacity and the reasons why she might wish to reside in Victoria further on in the judgment but for these purposes it is the view of the Court that the children would not cope well with living with the father full-time in circumstances where the mother remained living in Victoria.  That is the effect of the separation on the children from the mother, particularly on X, in circumstances where he suffers an autism spectrum disorder and in relation to Y, noting her age would cause detriment.  It would be detrimental to the children’s best interests if they were separated from the mother.  The Court considers the separation of the children from the father.  Historically the father has worked.  It is the mother’s evidence that he did work away and worked away on weekends.

5. There have historically been periods of time when the children have not lived with the father and he has been a considerable distance away; that being when the mother moved to her parents for a period of some nine to ten months before the parties ultimately reconciled their relationship and moved to (omitted).  It is the view of the Court that if the father remained living in (omitted) and the children remained living in Victoria the effect of the separation on them would be less detrimental than a separation from the mother where the children lived with the father and the mother remained living in Victoria.

6. The Court otherwise does not give weight to the effect of any separation on the children from the grandparents.  The children’s relationship with the grandparents is very much a secondary relationship when compared to that of the children and the mother and the father.  There are practical difficulties and expenses of the children spending time with and communicating with both parents in this matter.  The mother lives in Victoria; the father is currently living in (omitted).  It would be more difficult, in the view of the Court, for the mother to visit (omitted) in circumstances where, for instance, the children lived with the father and where the mother does not have any family support or family accommodation available in (omitted). 

7. The father has family in (omitted).  If the father were to travel down and spend time with the children and the mother remained living in (omitted), the father could spend time with the children whilst staying at his parents.  It is the view of the Court the father has available to him a range of opportunities to spend time with his family in (omitted) in accommodation of a type that is not available to the mother if the children are living in (omitted) and the mother remains living in Victoria.

8. The Court notes the father’s income in the circumstances where these are also property proceedings.  It is the view of the Court that the father has a greater capacity to pay for accommodation or travel to Victoria than the mother would have capacity to pay for travel and accommodation if the children lived with the father in (omitted) and the mother remained living in Victoria.

9. The Court must consider the capacity of each of the parents to provide for the needs of the children, including their intellectual and emotional needs.  Historically the mother has suffered from depression following the birth of the children.  She has otherwise suffered mental illness.  The mother was living in (omitted) where, on the face of the material, she was without family support.  The Court accepts that it was a difficult time for the mother in circumstances where she knew nobody in (omitted), she had no family around her and historically she has had difficulties with mental health.

10. It is the view of the Court that the mother’s capacity to provide for the needs of the children, including their intellectual and emotional needs, is significantly bolstered by the fact that she has now moved from (omitted) to Victoria to be around her family.  The Court notes that the relationship between the parties ended in difficult circumstances.  The Court is unable to make findings about whether or not the father did or did not have affairs.  It is a fact that is largely irrelevant.

11. The parties had reconciled for a period of some nine months living in (omitted).  Their relationship ended again.  The mother was – for want of another expression – marooned in a town where she knew nobody, where her relationship had ended.  She has suffered mental health issues and was requiring the assistance of her family so that she could bolster her capacity sufficiently to a level where she is able to provide for the needs of the children, including their intellectual and emotional needs.

12. X is a child who has greater needs than other children in circumstances where he has a diagnosis of being on the autism spectrum.  The mother has been able to provide for the children’s needs, including their intellectual and emotional needs, previously in (omitted) where she had the support of the father.  The Court has read some of the subpoenaed material that indicated the father had attended upon X’s pre-school in circumstances where X was being difficult.

13. Noting the disintegration of the parties’ relationship, the father’s support of the mother in (omitted) really has gone.  The Court must consider the capacity of the father to provide for the needs of the children, including their intellectual and emotional needs, where he proposes they live with him in (omitted).  The Court is concerned about the father’s capacity to provide for the needs of the children, including their intellectual and emotional needs, where he does propose to continue to work full-time.

14. Despite the father deposing that he has flexible hours and times off, it is his proposal that he would place the children in long day care.  Noting X’s needs, it is the view of the Court that placing X in long day care would not be in his best interests as he has had previous difficulties in day care.  So much is in evidence having read the pre-school notes tendered during the course of the proceedings.  X’s special needs cause the court concern about the father’s capacity to provide for the needs of the children, including their intellectual and emotional needs in circumstances where the father too has no family members available to him to assist him in their care in (omitted).  The father’s family are in (omitted), Victoria.

15. The Court does not consider the maturity, sex, lifestyle and background of the parents as having weight in the proceedings.  The Court is not aware that the parties or the children are Aboriginal or Torres Strait Islander.  The Court must consider the attitudes of the parents and the responsibilities towards parenthood demonstrated by each of the parties.  The Court does not criticise the parties with respect to their attitudes towards the children.

16. The Court notes the allegations of family violence involving the children and a member of the children’s family.  The children have been exposed to family violence.  There was family violence between the parties prior to the mother separating from the father in Victoria and moving to live with her parents for some nine to ten months.  The Court is unable to make findings as to who was the perpetrator of the family violence, whether it was the mother towards the father, the father towards the mother, or whether it was mutual partner violence.

17. The point is that there was violence in the parties’ relationship.  The relationship was and continued to be a difficult relationship where there was family violence.  The police had been called to the parties’ home, it would appear, probably on two occasions and the father was charged with respect to an assault and there was an ADVO application.  The Court notes the disagreement between the parties as to whether the father was convicted or not convicted and as to whether the ADVO application and the charges against the father were withdrawn.

18. The Court notes there being family violence and notes a difficult relationship between the parties.  That difficult relationship is such that impacts upon the support the father might provide to the mother.  It is difficult to expect the father and mother would be able to rely upon one another for support, caring for their children in circumstances where they have a fractured relationship where there has historically been family violence.

19. The Court, is not aware as to whether there has been an apprehended violence order in the circumstances where there has been no subpoenas issued to the police in Victoria. 

20. The other fact or circumstance relevant in the proceedings is the disappointment that might be suffered by the mother if she were forced to relocate back to (omitted) with the children.  It is the view of the Court that a forced relocation of the mother and the children back to (omitted), where the mother has little support, would diminish her capacity to provide for the needs of the children, including their intellectual and emotional needs.

21. The mother has historically moved around following the father’s employment.  The parties have lived in multiple towns.  The father has seen little benefit, or otherwise given little priority to the needs of the mother with respect to her ending her friendships, particularly her friendships and employment in (omitted).  The father, in his material, seeks to minimise that impact and otherwise dismissive of her friendships in circumstances where the mother gave strong evidence with respect to there being connections both through her work and with other friends through the children.

22. The Court considers those matters set out at section 61DA of the Family Law Act1975. Section 61DA provides a presumption in favour of equal-shared parental responsibility rebutted by reasons of family violence, abuse of a child or other child in the parties’ household, or otherwise where it is not in the best interests of the child. The Court notes that the parties both seek equal-shared parental responsibility for the children. Noting that the Court cannot make findings about family violence and in circumstances where the parties reconciled following the events of family violence, the Court does not propose to rebut the presumption in favour of equal-shared parental responsibility by way of family violence.

23. The Court does not find that the children, or any other children in the parties’ household, have been abused and does not rebut the presumption in favour of equal-shared parental responsibility on that basis.  The Court is concerned, though – having regards to X and his need for medical treatment that the parties live a significant distance apart and these are interim proceedings.  The Court also notes the communication between the parties is considerably lacking; that is there are real difficulties in the parties’ communication.

24. The Court considers the provisions of section 61DA of the Family Law Act1975 and particularly section 61DA(3) that provides:

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

25. The Court considers in these circumstances, where X lives with the mother in Victoria – the father continues to live in (omitted) – that it is difficult for the parties to exercise parental responsibility perhaps with respect to X undertaking any courses or otherwise any treatments as a result of his diagnosis of autism spectrum disorder.  The Court notes the difficult communication the parties have with one another and in that regard it is the view of the Court that it would not be appropriate in the circumstances to apply the presumption in favour of equal-shared parental responsibility.

26. The Court, however, still turns to section 65DAA. The Court considers whether or not equal time, or substantial and significant time, would be in the best interests of the children and otherwise reasonable practicable. The Court turns to equal time. The Court, having considered those matters set out at section 60CC(2)(a) and (b), 3(a) through to (m), the Court notes the age particularly of the children; the effect of the separation of the children from their primary, the mother.

27. The Court finds that having regard to the effect of separation it would not be in the best interests of the children that there be equal time.  The Court otherwise considers subparagraph (5) as to whether equal time might be reasonable practicable.  The parties live simply too far apart for there to be equal time.  If one lives in Victoria and one lives in New South Wales, equal time would not be reasonably practicable.  If the father were able to travel down to Victoria, for instance, every second week, it is still the view of the Court that it would not be reasonably practicable because the parties current and future capacity to communicate with each other and resolve difficulties that might arise and implementing an arrangement of equal time is so lacking that, equal time would not be practicable.

28. Currently it would appear that the parties would not be able to implement an arrangement of equal time noting the distance the parties live apart. Otherwise the impact of an arrangement of equal time on the children would be detrimental noting their ages and the difficulties with respect to X being diagnosed with autism spectrum disorder. The Court considers whether or not there should be substantial and significant time. It is the view of the Court that having regard to the definition of “substantial and significant time” found at section 65DAA(3), it would be in the best interests of the children to spend substantial and significant time with the father; that is the children spend time with the father not only on weekends and holidays but days that do not fall on weekends and holidays.

29. So much is proposed by the father if the mother were to return to live in (omitted).  It is the view of the Court that it would be in the children’s best interests that an arrangement of that type take place, noting that an arrangement for alternate weekend time and a night a week might fall under the definition of “substantial and significant time”.  It is the view of the court that such time would not cause the children detriment by reasons of their separation from the mother.

30. The Court considers the children would be old enough to cope with an arrangement of each alternate weekend and a night a week. It is the view of the Court that having regards to subparagraph (5) of section 65DAA, the parties simply live too far apart to implement an arrangement of “substantial and significant time”. However, if the father were to be in Victoria particularly in the (omitted) area, it is the view of the Court he would not be too far away from the children and in that regard it would not be impracticable.

31. The Court determines that if the father could facilitate that time – that is he were able to move down to, or be around the (omitted), Victoria area the parties have the current and future capacity to communicate sufficiently to overcome issues that might arise in implementing that arrangement.  Otherwise if the father remains living in the (omitted) area it is the view of the Court that the parties are simply too far apart for there to be substantial and significant time arranged by such things as air travel, or otherwise.  The court finds that where the father remains in (omitted) the children should spend time with the father for periods over the school holidays, perhaps for nine-day periods in circumstances where it is the view of the Court that the children would cope with the separation from the mother from such a period and where it would be in their best interests as it would facilitate the children maintaining a meaningful relationship with the father.

32. Having considered those matters set out at section 60CC(2)(a) and (b), (3)(a) through to (m), section 61DA, section 65DAA and having given consideration to the case law surrounding cases involving relocation, giving particular weight to the mother’s difficulties with respect to her mental health, the treatment that she has had and the necessity for the mother to obtain support from her family, the Court considers that the following orders are in the best interests of the children and the Court makes the following orders.

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

Date: 18 August 2016.