HYLAND & VACEK

FEDERAL CIRCUIT COURT OF AUSTRALIA

HYLAND & VACEK

[2018] FCCA 2486

Catchwords:
FAMILY LAW – Parenting orders – relocation – young children with cystic fibrosis – family in rural town.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC & 65DAA

Cases cited:

Mallahan & Mallahan [2010] FamCA 631

McCall & Clark (2009) 41 Fam LR 483

Mazorski & Albright (2007) 37 Fam LR 518

Applicant:

MS HYLAND

Respondent:

MR VACEK

File Number:

ADC 3397 of 2016

Judgment of:

Judge Cole

Hearing dates:

19, 20 & 21 July 2017, 9 & 10 November
2017 & 20 February 2018

Date of Last Submission:

1 August 2018

Delivered at:

Adelaide

Delivered on:

6 September 2018

REPRESENTATION

Counsel for the Applicant:

Mr Dillon

Solicitors for the Applicant:

Bersee Legal

Counsel for the Respondent:

Ms Horvat

Solicitors for the Respondent:

Mahony's Lawyers

Counsel for the Independent Children's Lawyer:

Ms Lindsay

Solicitors for the Independent Children's Lawyer:

Nicola Atchison

ORDERS

That the parties have equal shared parental responsibility for the children [X] born 2011 and [Y] born 2013.
That the parties be restrained and injunctions are hereby granted restraining each party from changing the said children’s primary place of residence to a place outside a 10 kilometre radius of Town A without the prior written consent of the other party.
That the said children live with each of the parties on a shared care arrangement as follows:
(a)On a week about basis commencing Monday from the conclusion of school or 3:30pm until the conclusion of school (or 3:30pm) the following Monday and each alternate week thereafter with the said children to be cared for by the mother from the conclusion school (or 3:30pm) Monday until the conclusion of school (or 3:30pm) the following Monday every other week;
(b)The said children spend Easter with the mother each alternate year from 4:00pm Maundy Thursday until the commencement of school (or 9:00am) on the day following Easter Monday commencing Easter 2019, with the said children to spend time with the father every other year from 4:00pm Maundy Thursday until the commencement of school (or 9:00am) on the day following Easter Monday commencing Easter 2020.
(c)For the purposes of Christmas the said children live with:
(i)the mother from 4:00pm on 23 December until 4:00pm on 30 December and each alternate year, commencing Christmas 2018; and
(ii)the father from 4:00pm on 23 December until 4:00pm on 30 December and each alternate year, commencing Christmas 2019.
That the parent with whom the said children are not living spend time with the said children on each of the said children’s birthdays as follows:
(a)From the conclusion of school until 7:00pm if the birthday falls on a school day, and
(b)In the event of the birthday falling on a non-school day for four (4) hours at times to be agreed between the parties and failing agreement between 1:00pm and 5:00pm.
That handovers that do not take place at the said children’s place of education take place at the (omitted) Service Station in Town A or such other places as agreed between the parties in writing.
That the parent with whom the said children are not residing be at liberty to telephone or Skype the said children every second night the said children are not in his/her care for up to 20 minutes duration as long as such contact is initiated prior to 8:00pm, NOTING that the parent with whom the said children are residing shall ensure that their nominated telephone/device is available to receive such communication and that they will facilitate the communication between the said children and the other parent.
That until further Order each party, (MS HYLAND date of birth 1986 and MR VACEK date of birth 1986) their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said children ([X] born on 2011 and [Y] born on 2013) from the Commonwealth of Australia without the prior written consent of the other party for a period of seven (7) years.
IT IS REQUESTED that the Australian Federal Police give effect to the order contained in paragraph (7) above, by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist for the said period, or until the Court orders its removal.
That the parties have liberty to obtain information from the said children’s kindergarten or school that is normally provided to parents including but not limited to school newsletters, school reports and school photographs and to attend any events which parents are normally invited including but not limited to school assemblies, school concerts, sports days and parent teacher interviews.
That the parties shall keep each other informed of their current residential address and mobile telephone number and advise the other of any changes to same within twenty-four (24) hours.
That both parties shall keep each other informed in writing of all specialists, general medical practitioners, allied health professionals, psychologists, counsellors, or therapists whom the said children may consult with from time to time and advise as soon as is practicable of any appointment date and time, the name and contact details of the practitioner being consulted and the purpose of the consultation.
That both parties be at liberty to speak to, obtain information from and attend any consultation with any specialists, general medical practitioner, allied health professional, psychologist, counsellor or therapist whom the said children may consult with from time to time and this Order be hereby taken as authorising such attendance and/or consultation.
That each of the parties shall advise the other as soon as possible of any medical emergency or serious childhood illness affecting the said children whilst in his/her care.
That the parties be restrained and injunctions are hereby granted restraining each of them from:
(a)Consuming any illicit substance or misusing prescription medication for twenty-four (24) hours prior to or during any period the said children are in his or her care;
(b)Attending at any school that the said children may attend from time to time other than for events that the parents are normally invited to attend and/or at the specific request of the school, during the week the said children are not in their care;
(c)Insulting, abusing, denigrating or threatening the other party in the presence of or within the hearing of the said children or allowing any third person to do so;
(d)Insulting, abusing or using physical discipline on or in front of the said children or allowing any other person to do so;
(e)Discussing these proceedings with the said children or allowing the said children to read any document filed in these proceedings or allowing any other person to do so; and
(f)Posting any information on any social media platform regarding the other party, the other party’s family, these proceedings or any allegations made in these proceedings or allowing any other person to do so.
That the parties each take such steps as may be required to ensure the said children attend upon their South Australian treating health professionals at the earliest available date.
That the parties take such steps as are reasonably required to ensure that they follow the directions of the said children’s treating health professionals as to school attendance and otherwise in respect of their cystic fibrosis treatment.
That each of the parties be at liberty to attend upon the said children during any period of medical treatment, to attend any medical appointment and to attend upon the said children in hospital subject only to the direction of the medical provider and/or hospital to such attendances.
That each of the parties be at liberty to participate and engage in the said children’s education and medical treatment to such extent as the providers of the same may consider appropriate from time to time.
That in the event of the inability of the parties to agree as to medical treatment of the said children each party shall participate in family dispute resolution conferencing within the community prior to the commencement of further litigation other than enforcement proceedings upon which they may be advised.
That the proceedings be otherwise dismissed.
That the appointment of the Independent children’s Lawyer be hereby discharged.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3397 of 2016

MS HYLAND

Applicant

And

MR VACEK

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings relate to a dispute between the parties for parenting issues of their two children, [X] born 2011 aged seven this year and her brother [Y] born 2013 and aged five this year. Both children have cystic fibrosis.
There is no dispute that this means that they must live careful lives, attend regular medical check-ups, and may have a shortened lifespan.
They have a mild variant of cystic fibrosis. It is currently stable. There is no need for daily enzymes however daily physiotherapy and regular antibiotics along with chest percussion when necessary for respiratory issues is a requirement for both children. [X] takes iron tablets and appetite medication regularly[1].
[1] See family report of Ms M dated 31 January 2017, 3.
Unfortunately for [X] and [Y] they are in the middle of a dispute between their parents as to the parenting arrangements that should apply to them.
These proceedings commenced in September 2016 following the father moving with the children to Town B.

Background

The parties met during their adolescence in Town A. They commenced their relationship [in] 2009 shortly after the mother’s first marriage had broken down.
They were in a relationship from 2009 until on or about 2014.
Both parties are aged 32, the mother having been born 1986 and the father 1986. The mother is employed on a part-time basis with (employer omitted) and the father is employed as a (occupation omitted).
It is appropriate in these circumstances to set out some of the chronology of the litigation. The reason for this is that each party seems to have significantly changed their position from that which was initially presented to the Court and to the family report writer (“the report writer”).
Furthermore, there is a significant concern that the mother has either failed to inform the Court or deliberately withheld information as this matter has proceeded.
The proceedings commenced following the father relocating with the children to the town of Town B. The father following an argument with the mother had elected to move to live with his then girlfriend and her child in Town B. His argument at that time was that the children were better off in a major regional centre with better access to medical facilities and educational facilities amongst other things.
The mother filed an application for the return of the children to the township of Town A. The proceedings were instituted in September 2016.
It is appropriate to note that it is now known that at this stage (September 2016) the mother had formed a relationship with Mr R. Unbeknownst to the Court, the relationship was going well and according to Mr R's evidence, the parties had agreed that if the mother was allowed to relocate to Adelaide they had agreed that she would move into his property with the children.
This however was not the mother’s evidence in the affidavit she filed nor was it mentioned in the evidence she provided to the Court. The existence of Mr R was not disclosed nor was the desire to relocate to Adelaide nor was the agreement to move in with the children to his premises.
Her application was to have the children returned to Town A. This was where the children were settled and this was where she submitted, they should remain.
Mr R was not mentioned in the documents filed with the Court nor was the existence of any agreement to live with him with the children should the mother and children be allowed to relocate.
The competing applications were heard on an interim basis and the father was ordered to return the children to live in Town A. As a consequence he returned with them and the parties commenced a form of a shared care arrangement.
For a period of time, the father attempted to maintain employment in Town A and in Town B. This ceased with the breakdown of his relationship with his then partner.
In or about December 2016 the family took part in interviews with the report writer Ms M.
That report was subsequently published on 31 January 2017. The report notes that the mother sought sole parental responsibility, and orders that the children live with her and spend time with the father at such times and locations as the Court sees fit.
The father in his Response sought that the children live with him and spend time with the mother every alternate weekend with the parties to share the short school holidays and the long school holidays. In his assessment interview the father advised he wished for orders that provided for equal shared parental responsibility, the children live with the mother and that he spend time with them for the last weekend of every month with the option of the second weekend with three days’ notice to be provided to the mother. At that time, he clearly envisaged remaining in Town B.
Ms M notes that in a telephone interview with the father on 22 January 2017 the father expressed uncertainty about his proposal that he previously put to her and advised he wished to seek further legal advice, having returned to reside in Town A.
The report writer notes in the report the father’s reference to his relationship with his partner in Town B. She further notes his advice on the telephone call of 22 January 2017 that the relationship terminated in December 2016.[2]
[2] Ibid, 29.
The mother talked to the report writer of her relationship with Mr R, and it was noted that she regarded it as serious and they commuted regularly.[3]
[3] Ibid, 22 [40].
He was not however involved in the report. This it seems was at the instigation of the mother.
Further in the report, the mother spoke of her wish to be allowed to relocate to Adelaide.[4] There was no application by the mother to relocate at that time.
[4] Ibid, 53.
It does not appear that she was asked, nor does she tell the report writer about any agreement to move in with Mr R.
On 2 February 2017 the mother filed an Amended Application including orders seeking a division of the parties’ property in addition to parenting orders. No order for relocation was sought.
On 17 February 2017, a further Amended Initiating Application was filed seeking liberty to relocate to the Adelaide metropolitan area. The Amended Initiating Application was not accompanied by a supporting affidavit.
On 30 June 2017 a further Amended Initiating Application was filed seeking liberty for the mother to relocate her principal place of residence to the Adelaide metropolitan area with detailed orders covering the alternatives for the father remaining in Town A or the father relocating to Town A (which may have been a typographical error referring to him relocating to Adelaide as week about time is sought).
The Amended Initiating Application was accompanied by the mother’s trial affidavit. The affidavit is comprehensive and addresses reasons for application for relocation, benefits to the children’s health, and opportunities for the children, and the mother’s relationship with Mr R.
The mother in her trial affidavit she states as follows:
I do not envisage relocating to Adelaide to live with Mr R. However, I would like to reside in the Town C area with the children in close proximity to him. I had thought that if I am able to relocate with the children, then I will obtain a private rental in that area.[5]
[5] See mother’ trial affidavit filed on 30 June 2017, 121.
The mother was subjected to extensive cross-examination by counsel for the father and counsel for the Independent Children's Lawyer. At no stage did she acknowledge that there was any plan to move in immediately with Mr R.
Mr R did not provide an affidavit for the trial.
The trial started a day late because the mother attended in Adelaide for the first day thinking that the hearing was to be there. Her reasons as to how she got it that wrong remain at best confusing.
The mother’s relationship with Mr R was canvassed during the course of her cross-examination and the mother’s evidence remained in accordance with that in her affidavit, namely that she wished to move to reside with the children in the Town C area.
The issue of a significant adult who would be interacting with the children on a regular basis not providing evidence was raised and the parties agreed that an affidavit could be sought from Mr R and he be made available for cross-examination.
On Mr R giving evidence, it was apparent that he understood that he and the mother had agreed that should she receive permission to relocate to Adelaide that she and the children would reside with him. That agreement was reached in or about September 2016.
It was also apparent from his evidence, that he and the mother had discussed the evidence that she had given during the two days in which she was cross-examined with him, in his words, “on a daily basis”.
The evidence eventually concluded in February 2018. Written submissions were ordered and a timetable was agreed.
Submissions were received from the father and the Independent Children's Lawyer however none were forthcoming from the mother.
The matter was relisted on 1 August 2018 in Town D. The mother’s submissions were received shortly prior to that listing.

The orders sought

The mother still seeks to move with the children to Adelaide. In the event they are not allowed to move, the mother will remain in Town A.
The father opposes the relocation. In the event they are allowed to move, the father will remain in Town A.
The report writer whilst initially supporting the relocation based on the information concerning the medical needs of the children supplied by the mother however upon being presented with a revised version of the medical needs of the children (as presented by their treating health professionals which in effect meant they did not need to attend the Cystic Fibrosis clinic weekly (quarterly visits would be sufficient) amongst other things) did not support the relocation.
The Independent Children's Lawyer does not support the relocation of the children to Adelaide.
The parties to their credit have provided alternative orders that they are seeking should their primary position not be accepted. In the event they are residing in Town A or close to each other in Adelaide they agree that the children should continue to live with each of the parties on a week about basis.

The evidence

The applicant mother relies on:
a)Her trial affidavit filed on 30 June 2017;
b)Her Amended Application filed on 30 June 2017; and
c)The affidavit of Mr R filed on 30 October 2017.
The respondent father relies on:
a)His Amended Response filed on 29 June 2017;
b)His trial affidavit filed on 28 June 2017;
Both parties gave evidence and were cross-examined.
The report writer was called and cross-examined. It is agreed the family report is in evidence.
Counsel for the father submits that in the course of cross-examination of the report writer, Ms M accepted that:
a)The position of the mother had changed in that she now sought to live with her partner Mr R.
b)Anyone who had a role in caring for the children should have insight into the medical condition of cystic fibrosis and she would expect the gentleman to have more than an academic knowledge of the condition.
c)The medical evidence of Dr T and the children’s specialists were that the children’s medical needs did not require weekly attendances at the clinic in Adelaide.
d)The medical evidence was that the children’s medical needs were being met in Town A and a visit every three months to the clinic was required to monitor the children (unless they became unwell in which case the children may need to be hospitalised).
e)The children are well integrated into the Town A community and the Town A school and kindergarten.
f)The children lived in Town A along with another child [C] who suffers a more severe form of cystic fibrosis, and the small community of Town A had a heightened sense of awareness of the condition.
g)The principal and staff at Town A primary school had implemented a rigorous plan concerning the attendance of [X] and [C] at the school (as [C] was to commence there in 2018). This consultation had occurred with the parents and with the children’s specialists (Ms I, nurse consultant cystic fibrosis clinic and Dr B).
h)The mother agreed in her oral evidence that she had made up false allegations of domestic violence against the father in order to bolster a case in Court.
i)The bundle of Families SA documents that Ms M and secured from Families SA in preparation of the family assessment did not constitute the complete record.
j)Ms M was incorrect in asserting there was no record of a “tea towel” incident (as stated by the father in the report process) within the Families SA material that she had before her, when referred to the entry dated 23 November 2014 clearly showing a notification that the mother had flicked [Y] with a tea towel.

Counsel for the father also submits that Ms M agreed the mother had not informed her that:
a)The mother had been living with the children with her former husband Mr A very soon after the relationship between the mother and the father broke down. Mr A had a bipolar mental health condition. Ms M stated I would have expected to be told.
b)Mr A was in the mother’s home on 1 August 2016, the day of the “glass shattering” incident.
c)The mother was in fear of the father, had threatened to kill her. Indeed Ms M observe the opposite-that on “the day of the interview the mother invited the father that he join them (the mother and the children) for lunch”. Ms M had formed the view that the relationship was reasonably convivial.
I accept the submissions of Counsel for the father and I accept the submission that Ms M stated, “If I had the medical information I do not believe I would have supported the relocation”. Ms M confirmed that she supported shared care and the children remaining in Town A with both parents living in Town A.
It must be said at this point that the mother’s failure to provide evidence or slowly release it on what appeared to be a need to know basis combined with the fact that she appeared to be caught out in respect of amongst other things the medical information supplied to the report writer (that it would be best for the children to attend the clinic weekly) and her allegations in respect of the father’s conduct (which were subsequently retracted) cast a serious shadow over the evidence she provided.
The father gave his evidence in a forthright manner and was subject to robust cross-examination by the Independent Children's Lawyer. I will refer to the evidence of each party in the course of these Reasons.
The mother’s current partner, Mr R, gave his evidence and presented in an honest and forthright fashion. His evidence confirmed his position of limited involvement and awareness of the needs of the children, and limited awareness of the mother’s documents filed in support of her application before the Court. He appeared to have limited participation in the medical treatment, physiotherapy, and attending to the daily needs of the children and it would seem that limited enquiries have been made of the local availability of facilities for the children.
The concern about the mother’s proposal and the failure to properly provide particulars as to how it would all work, unfortunately remained.
In addition, the Independent Children's Lawyer notes the further information tended by the Independent Children's Lawyer and the applicant on 20 February 2018. That information addressed the steps that need to be taken and the steps that had been taken by the Town A primary school to allow for two children with cystic fibrosis to attend the same school.
That evidence would support the submission of the Independent Children’s Lawyer that a great deal of work had been undertaken by the Town A Primary School to facilitate the attendance and I accept that submission.

The law

I have had regard to the provisions of Part VII of the Family Law Act 1975 (“the Act”).
Section 60B of the Act sets out the objects of Part VII and the principles which underlie those objects. The objects are addressed in the considerations the Court must have regard to in s.60CC of the Act.
Section 60B(2) of the Act provides that:
The principles underlying those objects are that (except when it is or would be contrary to a child’s best interest):
(a)children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have the right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)the parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act states that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out how a Court determines what is in the child’s best interests and points to a consideration of the matters set out in sub‑ss.(2) and (3) (per s.60CC(1) of the Act).
Those matters will be addressed in these Reasons.
Should I decide that there be equal shared parental responsibility then I must, pursuant to the provisions of s.65DAA of the Act, consider whether in these circumstances these children should spend “equal time” or “substantial and significant time” with each of their parents. These considerations include whether such an order would be:
a)in the best interests of the children; and
b)whether the children spending equal time with each of their parents is reasonably practicable (see s.65DAA(1)(a) and (b) of the Act).
I will refer to these matters later in these Reasons.
The authorities are clear that:
A relocation case is not a specified sub-category of parenting cases and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.[6]

Section 60CC primary considerations

[6] Mallahan & Mallahan [2010] FamCA 631, 27.

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

It is not apparent in the case of either party that there is no benefit to the children having a meaningful relationship with both of the child’s parents set out above.
They cannot however, agree on how that should be conducted.
The Full Court in McCall & Clark (2009) 41 Fam LR 483[7] noted with approval the decision of Brown J in Mazorski & Albright (2007) 37 Fam LR 518 her Honour concluded that:
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective not a strictly quantitive one.
[7] McCall & Clark (2009) 41 Fam LR 483, 115.
The Full Court went on to conclude in McCall & Clark that:
The Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in the child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents.[9]
[9] McCall & Clark (2009) 41 Fam LR 483, 118.
The Independent Children's Lawyer refers me to the discussion and submits that the only cogent proposal afoot is that offered by the father.
There is no doubt that the children have a loving and close relationship with each of their parents. That relationship is meaningful and is likely to remain so whatever the outcome of these proceedings.
Both parties propose that in the event the parents live in different locations, there be arrangements that enable them to spend significant periods of the school holidays interspersed with weekends during the school term that would ensure their relationship with the other parent would remain important, significant and valuable to them.

(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

I acknowledge the provisions of s.60CC(2A) of the Act as set out above.

(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

Each party raises allegations against the other. The issue cannot be ignored however it must be considered in the context that the parties have managed since the father’s return from Town B to negotiate and maintain a shared care arrangement.
That arrangement has not only been subject to the usual challenges that come with two growing children but the additional challenges for children such as these with cystic fibrosis.
The mother cites as one of the reasons for the application to relocate the domestic violence perpetrated against her by the father and her living in fear of him.
The father’s counsel however points out that she conceded in the course of cross-examination by counsel for the Independent Children's Lawyer that:
a)She had made up false evidence concerning domestic violence by the father to bolster her case for relocation;
b)She had made false statements to the police;
c)She had made false statements to the social worker at the hospital and had tried to arrange service of documents on the father while he was attending there with the children;
d)Her allegations that he had threatened to kill her were false; and
e)Her allegations that he had physically harmed the children were false. He had never physically harmed the children.
Both parties concede there was an incident on 1 August 2016 when in the course of an argument, a glass pane was smashed. The father sustained injuries that required medical treatment.
Where the parties’ version of events differ, I accept that of the father. I consider this was matter of situational violence, and I have difficulty apportioning blame for the incident.
I also note the matters previously raised, including the interaction of the parties following the report process where they were able to have lunch together with the children, and their interaction as observed and commented on by counsel for the Independent Children’s Lawyer during the trial of this matter.
I remain puzzled at their apparent ability to cross the no man’s land between them and interact in a civil and appropriate manner, in contrast to their inability to reach a sensible decision in respect of this issue. I note and accept the comments of counsel for the Independent Children’s Lawyer on this matter.

Additional considerations are:

(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views

These children are very young. All parties appear to have taken the position that it is inappropriate to place any responsibility upon their shoulders at their relatively young age.

the nature of the relationship of the child with:

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

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

It does appear to be common ground that the children have a good relationship with each of their parents.
There is no dispute that these are children with high needs due to their cystic fibrosis and they rely heavily on the support of their respective parents and their families.
The maternal grandmother has also had a significant role with the children. She resides on a farm located outside of Town A. While she may well be able to maintain her relationship with the children should they move to Adelaide, the barrier of distance will make it that much harder.
The paternal grandmother resides in Adelaide however as at the date of trial still had a house in Town A. There was no adverse comment with respect to her relationship with the children.

(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

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

(ii) to spend time with the child; and

(iii) to communicate with the child

This issue was the subject of some controversy. Each parent raise concerns about the other’s attendance at essential medical appointments for the children.
Whilst the father missed two appointments during the time he was in Town B with the children, the evidence would support a conclusion that he has been a regular attender at the Hospital A with the children for the purposes of their check-ups and ongoing medical treatment. This does not appear to be the case with the mother.
I am not certain however that an extensive examination of this topic will get me past the concession that the children have a good relationship with each parent and enjoy the time in each parent’s company knowing that they are equally loved and cared for by each of their parents.

(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

This was not an issue that was pushed during the course of the trial.

(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

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

This is a significant issue for the children. The evidence would support a conclusion that they are well established within the township of Town A.
There is no dispute that Town A is a small rural community which has some reliance on seasonal tourist trade. The township is aware of the issues faced by the children with their cystic fibrosis.
The township also appears to be aware of the issues should the children come into contact with the child [C] who suffers a more severe form of cystic fibrosis.
The school appears to have taken significant steps to cater for both children being at school and that issue appears to be well in hand. I accept the evidence supports a conclusion that the school and community are alive to the issue and have systems in place to deal with it.
It is difficult to clearly identify which school the mother proposes the children attend should her application be successful. More importantly, I am unable to assess whether the school would have systems in place to deal with children with the needs of [Y] and [X], and if not, how long it would take to ensure that the school was a safe place for these children.
In the event of the children moving to reside in Adelaide, they would be leaving behind the community they grew up in, the friends they have made, and the support structures put in place to ensure that they could go and thrive as best as they may, in the face of the challenges they must encounter.
The submission of the Independent Children’s Lawyer that these children with the difficulties that they have facing them, need more than most the love and the support and the proximity of both parents. That is not something that will be available should the mother move to reside in Adelaide with the children.
I therefore have, for the Reasons set out above, a significant concern that the effect of the change will clearly outweigh any benefit the children may receive by moving to the metropolitan area.

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

The practical difficulty and expense of the children spending time is not insignificant.
It would appear to be common ground that the commuting distance from Town A to the southern suburbs of Adelaide where the mother opposes to live will be approximately three hours each way.
Care must be taken not to minimise the impact this will have. A regular routine for the children in visiting one or the other parent will involve a significant amount of travel.
This will incur not only a significant economic cost for the children’s parents but will also extract a physical toll on the parents and the children.
There is also the issue of weekend activities that will take on a greater importance as the children get older.
Should the mother choose to relocate without the children then clearly it is a burden that must be endured. I do not however accept that it should be sanctioned by the Court as a first option.

(f) the capacity of:

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

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

to provide for the needs of the child, including emotional and intellectual needs;

I have expressed in the course of these Reasons a number of concerns about the mother’s conduct. Prior to revisiting that topic however I do consider that the father had his own issues in the course of these proceedings.
The decision to take the children and unilaterally move with them to reside with his then girlfriend in Town B is not supported by any evidence that has come out in the course of these proceedings.
The father is correct to concede that it was a foolish move. Since that time however he appears to have focused on the children in his return to Town A and in his sharing of their care.
The mother however has cast a shadow over her evidence particularly in the way her case has unfolded and been slowly revealed through the course of these proceedings.
Furthermore, it has been revealed only after matters were put to her by either the report writer, the father’s counsel, or the Independent Children’s Lawyer.
As I have previously stated, her ability to be frank and open with this Court, has been highly questionable. I have noted and approved the arrangements that are currently working with the parties exercising shared care. I do however have strong concerns about how things will work should the mother have the primary care of these children.
The mother in her written submissions says:
It is open to the Court to find rather than any sinister motive for the way in which the mother developed her case or some process to mislead the Court it was simply that the mother needed to justify in her mind giving her own needs some priority.[10]
[10] See mother’s written submissions dated 1 August 2018.
I do not accept that submission.

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

[X] is aged seven this year and [Y] is aged five. Ms M in her report noted that the children had been with both parents at lunchtime at the Town D shopping centre, the mother having advised the father of the location and invited him to join them[11]. Therefore the children did not require the normal 10 to 15 minutes to settle with their father.
[11] Ibid, 38.
Clearly it is not been easy for the children and their parents in dealing with the issues they face with amongst other things the cystic fibrosis that each child suffers from.
There is no dispute that each child requires physiotherapy daily and that running and swimming are important aspects of the respiratory functioning. Chest percussion is a regular night-time event.
The children and their parents need to be vigilant to properly manage their needs. It is something that distinguishes this family and these children from others.

(h) if the child is an Aboriginal child or a Torres Strait Islander child:

The issue of aboriginality is not a matter that has relevance in these proceedings.

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

There are concerns in respect of both parents in these proceedings.
It was not a responsible act by the father to remove the children and reside with them in Town B.
At the same time, the approach of the mother to this litigation has already been the subject of adverse comment in these Reasons.
The mother’s relationship with Mr R now appears to be the main cause of the mother’s application to relocate to Adelaide.
I am not aware of any evidence that the mother will not cope, should she need to remain in Town A with the children and the father. There is no medical evidence produced to show any deleterious effect on the mother’s mental health.

There is no reason why, particularly when a shared care arrangement is being promoted, that the relationship with Mr R and the mother cannot be conducted over this distance rather than the relationship between the children and their father.

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

The allegations of the parties in respect of the issue of family violence have been previously discussed.
There are a number of concerns about the evidence provided by the mother that reflect on her credibility.
The issues raised by the father have pointed to situational violence while the parties were in the process of separating and as previously noted I cannot ignore that fact that the parties have been able to continue a shared care arrangement for in excess of 12 months.

(k) if a family violence order applies, or has applied, to the child or a member of the child's family - any relevant inferences that can be drawn from the order

I am unaware as to whether a family violence order applies and I am not referred to one by either party.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

I accept the submission of the Independent Children's Lawyer that the optimal solution for these two children is for them to remain in Town A and live with each of their parents in an equal shared care arrangement.
I have a concern that should the mother assume primary care of the children in Adelaide there is a potential for further litigation not only with the mother having the children live with her but also with the added complexity that the barrier of distance will bring to the situation along with any difficulties arising from that.
I therefore consider that the orders I will make have the least potential for further litigation.

Conclusion

Counsel for the Independent Children’s Lawyer submits that there is a compelling argument that with the such high needs children there needs to be a joint decision taken by the parties as to such an important matter as relocation. Both parties are required to be involved in the care of the children.
That is, if children such as these with all the difficulties they face are to have such a significant disruption in relocating to Adelaide, then it needs to be with the consent and support of both parents. With all that is involved in the care and maintenance, the best interests of the children require both parents to be ready and available to care for them. It was certainly not the case when the father chose to move to Town B, and it would not be the case should the mother be successful in her application to move to Adelaide.
I accept that submission.
It is telling that the Independent Children’s Lawyer submits that the application by the mother to relocate is unable to be identified with sufficient precision as to be recognised as a viable, considered and thoughtful alternative to the children’s present arrangement.
She notes the mother first proposed that she remain in Town A with the children and they be returned to her.
The mother then proposed that she be able to relocate to the southern suburbs of Adelaide but live independently with the children.
It then emerged in evidence that the mother sought to live with her partner. The partner was not produced to the report writer for the purpose of the family report and it would appear that his intervention in the proceedings in late 2017 was delayed because the mother did not want him involved.
I accept the Independent Children’s Lawyer’s submission that whilst the mother need not demonstrate compelling reasons as to why relocation should be supported, she does need, especially so in a situation where there are high needs children concerned, to put the complete proposal to the father and the Court for consideration. It is the submission of the Independent Children’s Lawyer that the mother’s proposal was ad hoc and variable. It did not amount to any coherent proposal for consideration. There is substance to this submission.
It is difficult as set out at the commencement of these Reasons to shake the impression that the mother revealed information on a need-to-know basis correcting any versions of the information supplied as and when required without remorse.
The mother’s concession that she will remain in Town A, should the children not be permitted to relocate is appropriate.
Her counsel submits that the father conceded he trusted the mother’s ability to promote the relationship between him and the children should they move to Adelaide. I do not share that confidence at all, particularly when consideration is given to the way the mother’s evidence unfolded and was revealed during the course of this hearing.
In so saying, I do not ignore the criticism of the father’s earlier evidence however I do note the protracted and reticent nature of the mother’s disclosure. The father I consider in amending his position revealed his cards in a more open and frank way than the mother such that at the date the trial commenced his position was relatively clear. The same cannot be said of the mother.
The parties are in basic agreement about what should occur if they remain in the same town. The Independent Children's Lawyer has proposed a minutes of order that covers that situation and with some small amendments I accept that proposal.
I therefore make the orders as set out at the commencement of these Reasons.

I certify that the preceding one hundred and forty-eight (148) paragraphs are a true copy of the reasons for judgment of Judge Cole

Associate:

Date: 6 September 2018

[8] Mazorski & Albright (2007) 37 Fam LR 518, 26.

[2018] FCCA 2486

6 September 2018

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Injunction

Remedies