JOLLY & LEE

[2012] FMCAfam 1018

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JOLLY & LEE [2012] FMCAfam 1018

FAMILY LAW – Interim relocation.

Family Law Act 1975, Part VII, ss.60CC, 61D, 65DAA
Family Law Amendment (Shared Parental Responsibility) Act 2006

Morgan v Miles (2008) 38 Fam LR 275, (2007) FLC 93-343
Goode v Goode (2006) 36 Fam LR 422, (2006) FLC 93-286 [2006] FamCA 1346
Deiter & Deiter [2011] Fam CAFC 82
AMS and AIF (1999) 24 Fam LR 756 at 792
Taylor v Barker (2008) 37 Fam LR 461
U v U (2002) FLC 93-112
KB & TC (2005) 38 Fam LR 74
B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755
A v A: Relocation Approach (2000) FLC 93-035
AIF & AMS (1999) FLC 92-852, (1999) 24 Fam LR 756
Hepburn & Noble [2010] Fam CAFC 111, (2010) FLC 93-438
C & S [1998] FMCA 66

Applicant: MR JOLLY

Respondent: MS LEE

File Number: NCC 2197 of 2012

Judgment of: Myers FM

Hearing date: 4 September 2012

Date of Last Submission: 4 September 2012

Delivered at: Newcastle

Delivered on: 4 September 2012

REPRESENTATION

Solicitors for the Applicant: Aubrey Brown Partners

Solicitors for the Respondent: Legal Aid NSW

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. Leave to the solicitor for the father to make an oral application to dispense with the requirement for service upon the biological father of [X] born [in] 2005 in circumstances where the mother in the proceedings represents that the biological father of [X] is unknown. 

2. By consent the applicant be restrained from injunction from selling, mortgaging, assigning, alienating or further encumbering the property at Property W, [K] in NSW, being Lot [omitted] Plan DP [omitted], Folio Identifier [omitted] (the property) except by order of the court.

3. There be no orders as to parental responsibility.

4. Within 28 days from the date of these orders the mother shall return the children [X] born [in] 2005, [Y] born [in] 2010 and [Z] born [in] 2012 to the Central Coast area for the purposes of residing with the children at Property W, NSW.

5. Upon the mother returning the children, the mother is restrained from relocating the children’s residence from an area outside a 25 kilometre radius from the former matrimonial home at Property W, NSW.

6. The children live with the mother.

7. The father shall spend time with the children pending the mother returning the children to the Central Coast area as follows:

   7.1On Sunday 16 September 2012 from 1.15pm to 4.15pm in [F] with changeovers to occur at [F] McDonald’s Family Restaurant.

8. Following the children returning to the Central Coast area the father shall spend time with [X] and [Y] as follows:

   8.1Each alternate weekend from 4.00pm Friday to 4.00pm Sunday commencing Friday 21 September 2012;

   8.2Each alternate Friday from 4.00pm to 6.30pm;

   8.3Each Monday from 4.00pm to 6.30pm;

   8.4From 1.15pm to 6.15pm on Christmas Day.

9. 9.  Following the children returning to the Central Coast area the father shall spend time with [Z] as follows:

   9.1 Each Friday from 4.00pm to 6.30pm;

   9.2 Each Sunday from 10.15am to 2.15pm with such time extended to 4.00pm on the weekends that [Y] and [X] spends overnight time with the father pursuant to Order 8.1;

   9.3 Each Monday from 4.00pm to 6.30pm;

   9.4 From 1.15pm to 6.15pm on Christmas Day.

10. The father’s time with [Y] and [X] pursuant to Order 8.1 shall be suspended on the weekend commencing Friday 5 October 2012 and in lieu thereof the father shall spend time with the [Y] and [X] from 10.15am to 2.15pm on Sunday 7 October with the father’s time pursuant to Order 8.1 recommencing on Friday 12 October 2012.

11. To facilitate these Orders the father shall collect the children from the mother at the mother’s residence at the commencement of his time with the children and return the children to the mother’s residence at the conclusion of the father’s time with the children.

12. Each parent forthwith advise the other of their respective residential addresses and mobile telephone numbers and further advise of any change to same within 24 hours of such change.

13. Each parent is to advise the other as soon as possible in the event of any of the following occurring:

    (a)Either of the children being seriously injured or falling seriously ill;

    (b)Either of the children requiring urgent medical treatment from a doctor or ambulance crew;

    (c)Either of the children being admitted to hospital.

14. Each parent is to notify the other of any specialist medical appointment either of the children are required to attend and each parent is to authorise such treating specialist medical practitioner, to discuss the child’s treatment with the other parent and service of a sealed copy of these orders upon such treating medical specialist is sufficient discharge of this order.

15. Upon the mother returning to live in the property at Property W, NSW the mother is to reside in the property and have exclusive occupation thereof on the following basis pending orders being made with respect to sale or transfer of the property:

    15.1The mother shall contribute the sum of $400.00 per week to the mortgage repayments on the property after the mother’s lease of premises in [F] ends on 14 November 2012 for her residence in [F].

    15.2The mother make all payments with respect to electricity, gas, telephone and water usage;

    15.3The mother maintain the property in a good state of repair.

16. The father forthwith do all things necessary to clean, mow and maintain the property at Property W, [K] so that it is in a neat tidy and habitable condition prior to the mother moving into the property with the said children and thereafter maintain the property until such time as the mother moves to reside in the property.

17. The court reserves the father’s costs of the interim proceedings today.

18. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child/ren of the relationship attend upon a family consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular:

    (a)to consider the factors in sections 60CC, 61DA and 65DAA of the Family Law Act1975;

    (b)to profile of the parties

    (c)to assess the parties interactions;

    (d)to assess the child/ren’s developmental and emotional state;

    (e)to assess the relationship of the child/ren to the parties and other significant persons in the child/ren’s household;

    (f)to ascertain the wishes of the children unless inappropriate by reason of age or other special circumstance;

    (g)to assess the proposed and actual home environments;

    (h)to assess the proposals of each party as to the child/ren’s future.

19. The Court requests the said report be released by 25 January 2013.

20. The family consultant is granted leave to inspect all documents produced in response to subpoena.

21. If the family consultant is unable to inspect documents produced in response to subpoena at the Newcastle Registry of the Commonwealth Law Courts, the Registry Manager upon receiving a request from the family consultant, is to forward such documents to the Registry nominated by such consultant to permit such inspection.

22. The matter is adjourned to 7 February 2013 at 9.30 am for a directions hearing.

23. The parties are to file and serve any amended application or response within 60 days.

24. The father cause to be filed and served a reply and an affidavit with respect to property and a financial statement within 35 days.

25. Both parties be restrained from discussing the current court proceedings with any of the children including [X].

26. Liberty is granted to the parties to restore the matter on 14 days notice.

27. Leave is granted to the parties to issue more than 5 subpoenas that are relevant to the proceedings.

THE COURT NOTES THAT:

1. The usual undertakings as to damages with respect to the injunctive orders such undertakings offered by the mother.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT NEWCASTLE

NCC 2197 of 2012

MR JOLLY

Applicant

And

MS LEE

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. This is a matter that was commenced by way of initiating application filed by the applicant father, Mr Jolly, on 13 August 2012. These proceedings are filed following the amendments of the Family Law Act that took effect on 7 June 2012 with respect to new definitions of family violence, the changing of the considerations at section 60CC, notably the removal of subparagraph (4), the placing of section 60CC subsection (2)(b) as the primary consideration to be considered and given weight above that of section 60CC(2)(a), and, of course, the changes to section 60CC, subparagraph (3).

2. I won’t go through the orders sought by the father as the father caused to later be filed in the proceedings a short minute of order setting out the orders sought by him.  In support of the orders sought by the father, he caused to be filed in this Court on 13 August 2012 an affidavit affirmed by him on 9 August 2012.  The father deposes that he is the applicant father in the matter, that he was born [in] 1977, that the respondent mother, Ms Lee, was born [in] 1974, that on or about 22 August 2009, the parties became romantically involved.

3. There is a dispute between the parties as to the absolute date of commencement of the relationship.  I do not find it necessary to make a final determination today as to the date on which the relationship commenced.  There seems to be no argument between the parties and the father deposes that there are two children of the relationship, namely [Y], born [in] 2010, and [Z], born [in] 2012. 

4. At the commencement of the relationship, living with the mother was a child of a previous relationship to a father unknown, namely [X], born [in] 2005.  [X] is now aged seven years of age.  The father deposes that he is employed on a full-time basis as a [omitted] and that during various times during the course of the relationship, the parties have had financial problems.

5. The father deposes to a series of times in which he provided care for the children.  Particularly in August of 2010, the father deposes he had three weeks leave from work and primarily cared for [Y] while Ms Lee rested following the birth of [Y] and that he continued to work at that time on a full-time basis.  The father further deposes that on some weekends, he would work at a [omitted] in order to assist in what he describes as the “financial point of view” and that this also included staying away for nights as the [workplace] was over an hour away.

6. The father deposes that on or about December 2010, the mother travelled to Thailand for 16 days and that during that time, he was the primary carer for [Y] and [X] and during that time, he travelled to Queensland to spend time with his parents and that he also travelled to Queensland with [L] and [P], being his children of a previous relationship.

7. The father deposes that at about the beginning of April 2012, there was an argument between himself and the mother with regards to the disciplining of children, and they did not talk for two days.  The father deposes that the mother was aggressive in nature – that he would say, “Good morning” to her and she was simply stare at him.  The father deposes that he left the former relationship home on or about 1 April 2012, moving into his mother and father’s home at [E] and moved back to the family home after the mother moved to [F].

8. The father deposes that he felt it was in the best interests to stay away from the home, as he deposes the children did not need to be exposed to an aggressive environment.  The father deposes that the mother moved to [F] on or about 16 May 2012.  On [date omitted] 2012, [Z] was born at the [omitted] Hospital.  The father deposes that he was not present at the birth as he was contacted by the mother telephoning his mobile telephone while she was in labour, but the father did not hear the telephone ring as he was asleep.

9. The father deposes that he was able to see [Z] on 28 April after contacting the mother and that he stayed at the family home for that night to care for the children.  The father later deposes that whilst the mother was in hospital, he stayed at his parents’ apartment at [E] with the children.  Father deposes that on or about the time the mother came home from hospital, there were discussions with respect to her moving to [F].

10. The father deposes that the mother stated:

    “I have had some time to think and I don’t want to stay in this house, and the only place I can get a house is [F].”

    The father deposes that he said words to the effect:

    “I don’t want you to go to [F], as I’m not going to see the kids.”

11. The father deposes the mother said to him:

    “You can come and see the kids whenever you want, and it will allow each of us to have a break from each other and work on the relationship.”

12. The father deposes that at that point he walked out of the home, as he was very upset, but later that day, they agreed that the separation would be for six months so the parties could work on their relationship, and that at the conclusion of that time, the mother and children would move back to the Central Coast.

13. The Court has read and considered the residential tenancy agreement in place that the mother caused to be signed.  The Court notes that the residential tenancy agreement forming exhibit B in the proceedings is a six-month lease, starting on or about 16 May, ending 14 November 2012.  The term of the lease would give weight to the argument there was some thought given that the arrangement would only be for a six-month period.

14. The father deposes that on or about June 2012, he travelled to [F] to collect [X] and [Y] and [Z], as he says that Ms Lee was not coping with the children, and she had no support in [F].  The father deposes that on 12 June, he said words to the following effect:

    “I will come and collect the children so you can have a break and a rest –“

    to which the mother is alleged to have responded:

    “That’s fine.  That would be great, as I need some rest.”

15. Father deposes that he returned to the Central Coast where he cared for the children at the family home until he returned them on 17 June 2012, as agreed between the parties.  The father deposes that at this time the mother became aggressive via text messages and refused to talk to him.

16. The father deposes on or about 9 July 2012 he called or attempted to telephone the mother so they could talk and, upon trying to telephone the mother, found out the telephone number had been changed and that the only way he could contact the mother was via Facebook.  Father deposes that on or about 9 July 2012, he made contact with the mother via Facebook, that the mother was evasive and refused to give him her new number so that they could make arrangements for him to see the children.

17. The father deposes that he said, or presumably sent, a message to the effect:

    “Why have you changed your number, [Ms Lee]?  I can’t get in contact with you or the kids.”

    The respondent is alleged to have responded:

    “You just did.”

18. The father deposes that he said:

    “What’s your new number so I can make arrangements to see the kids?”

    The father deposes that on 10 July 2012 he was informed by the mother via Facebook when the mother wrote words to the effect:

    “You can make arrangements through here”

    meaning via Facebook.

19. The father deposes that at this time, it became clear to him the relationship was over, and the mother said to him words to the effect:

    “Actually, I see you are single again on your profile.  So much for a break then.  Thanks for telling me.  As usual, Facebook finds out first.  Go and fuck yourself and any of your Facebook friends.  Put the house on the market as I will be needing all that is owed to me.  And believe me, [Mr Jolly], it’s not going to be 93,000, as I will seek legal advice.  You can also file at Court to see the kids because you are no longer welcome at my home, and I will no longer reply to anything you send me.  Fuck you, [Mr Jolly], you bastard.”

20. The father deposes that at that time, the mother cut him off Facebook so that the only way that he was able to contact the mother in order to spend time with the children was via email.  Father deposes that on or about 10 July, he sent an email to the mother with proposed care arrangements for the short term and was told by the mother she would not be accepting any care arrangements and he would have to take her to Court.

21. The father deposes that on 12 July 2012, he sent the mother an email with contact details regarding a mediator in [omitted] and that the mother responded:

    “We can’t talk, and I don’t want to see you again.  Answer me about the house.”

22. The father deposes that he responded with words to the effect:

    “My only focus at the moment is seeing the kids again.  You are denying me seeing.” 

23. The father deposes that on or about 25 July, he sent the mother and Ian Graham of Stacks The Law Firm, who the father identifies as the mother’s solicitor, an email confirming that mediation had been arranged and wished to discuss options to see the children in the meantime and that he received no response.

24. On 3 August 2012, it would appear that the father received an email from the mother which stated words to the effect:

    “[Mr Jolly], I refer to your email yesterday and the other recent emails.  I’m happy for you to see the children and suggest we meet at [F] McDonald’s tomorrow, 12 pm Saturday, where we can discuss the children’s time with you and start working out parenting agreements which I can discuss with the mediator who I’m seeing next week.”

25. The father deposes that he attended [F] on or about 4 August.  When he arrived, [Y] and [X] were happy to see him.  He spent the day with the children where it was clear that the children had a strong relationship with him.  The father deposes that on the evening of 4 August when he had discussions with the mother, the mother said to him words to the effect:

    “I don’t know when you will see them as we have to go through mediation.”

26. The father deposes he said:

    “You can’t deny me access to my children without a plausible reason.”

    The father deposes the mother said:

    “I have my reasons, and I’m not telling you.”

27. The father deposes that he said words to the effect:

    “Are you moving back to the Central Coast at the end of six months as we agreed?”

    And that the mother responded with:

    “No, I’m not.  I’m staying here in [F].”

28. The father deposes that he said:

    “I never agreed for you to stay in [F] permanently.  You can’t deny me access to my children.  The children have a right to have a meaningful relationship with their father, brother and sister and their grandparents.”

29. The father deposes that the mother said:

    “I don’t care.  I’m not moving back to the Coast.”

30. The father continues to depose in his affidavit those matters relating to his relationship with the children, that the children have been exposed to the following people namely the father, the children’s half-brother and sister, [L] and [P], the children’s paternal grandparents, [names omitted] and the paternal uncle and aunt, [names omitted].

31. The father deposes that in his current position at work he spends a lot of time working from home and a little time travelling interstate and that he has the full support of his parents who are located 15 minutes from the former relationship home.  The father deposes to evidence with respect to the child, [X], and the Court notes the father now seeks orders with respect to spending time with [X] namely, that when he first met [X], he was two years of age and he had some involvement with [X] prior to the parties entering into the relationship.  

32. The Court notes the parties were indeed next door neighbours and that after moving in with the mother in or about December 2009, [X] began calling the father “dad”, and the father began being involved in the day-to-day activities with [X] which included preparing meals, bedtime activities, taking [X] to football training, taking [X] to football games on the weekend, picking up and taking [X] to school when he was able to do the same.

1. The father deposes as to the current housing arrangements within the property at Property W, [K].  The Court notes the criticisms made of the representations with respect to the home, particularly those relating to the number of bedrooms.  The father deposes the house has six bedrooms, one for each of the children.  Criticism is made of the father with respect to this description in circumstances where the mother deposes that there is no furniture in the children’s’ bedrooms.  Particularly, the Court notes paragraph 35.5 of the husband’s affidavits that says:

   “Each bedroom has its own furniture for the children.”

2. The father has caused to be provided to the Court a minute of orders sought by him with respect to the children – namely, that the parents have equal shared parental responsibility for the children [Y], born [in] 2010, and [Z], born [in] 2012.  The father with leave of the court made application orally to amend his application, seeking to include orders relating to the child, [X].

3. Leave was granted to the father to include orders with respect to [X], and the father submits that any orders with respect to [X] should mirror those orders with respect to [Y], and I take it that the father seeks equal shared parental responsibility with respect to [X]. 

4. The father seeks orders that within 14 days from the date of these orders, the mother return the children to the Central Coast area, that upon the mother returning the children, the mother is restrained from relocating the children’s residence from an area outside of 25 kilometres from [K], a suburb on the northern part of the Central Coast in the [W] Shire: an order that the children live with the mother, that the father spend time with the children pending the mother returning the children to the Central Coast, on Sunday 16 September from 1.15 pm to 4.15 pm in [F] with changeovers at the [F] McDonald’s Family Restaurant, and that following the children being returned, he spend time with [Y] and I note also, [X] each alternate weekend from 4 pm Friday to 4 pm Sunday, each alternate Friday from 4 pm to 6 pm, each alternate Saturday from 10.15 am to 2.15 pm and each Monday from 4 pm to 6.30 pm and from 1.15 pm to 6.15 pm on Christmas Day.

5. The Court notes the time equates to approximately two nights a fortnight and a number of days, including six days a fortnight.  The father seeks orders that following the children’s return on the Central Coast the father spend time with [Z] each Friday from 4 pm to 6.30 pm, each Sunday from 10.15 am to 2.15 pm with such time extended to 4 pm on the weekends.  That [Y] spends overnight time with the father each Monday from 4 pm to 6.30 pm and on Christmas Day from 1.15 pm to 6.15 pm.

6. The father seeks that in the event the mother returns to the Central Coast area the mother is at liberty to reside in the property and have exclusive occupancy thereof on the following basis pending orders being made with respect to sale or transfer of the property.  That the mother shall contribute the sum of $400 per week to the mortgage repayments on the property.  That the mother make all payments with respect to electricity, gas, telephone and water usage.  The wife maintain the property in good repair then in the event the mother wishes to reside in the property pursuant to these orders the mother shall notify the father within 72 hours of the making of these orders.  That the mother pay the father’s costs of the interim application.

7. Ms Harris, solicitor for the father sought to amend the orders with respect to the payment of $400 a week in that $400 a week is only sought following the ending of the mother’s lease in [F] in on or about 14 November 2012.  The father has caused to be filed an outline of case document in the proceedings.  I have read and considered the outline of case document including the chronology and summary of argument contained within the case outline document. 

8. The mother caused to be filed in the court a response on 29 August 2012 I won’t canvas the orders sought in the response as the mother  caused to be provided to the court a minute of order on which she seeks to rely at the hearing today.

9. In support of the orders sought by the mother she caused to be filed in the court two affidavit namely, her first affidavit filed on 29 August 2012 sworn on 28 August 2012 at [omitted].  The mother deposes in that affidavit that she commenced a de facto relationship with the father on about October 2009 and they finally separated on 16 April 2012.  The mother deposes that at the commencement of the relationship she owned a property at Property L, [B] which at the time was worth approximately $345,000 and that there is one child from a prior relationship namely, [X] and that the applicant has two children from a prior relationship namely, [L] and [P].  The mother deposes that initially the parties resided together at the [B] property and that [L] and [P] spend time with them on alternate weekends and resided with their mother Ms J who lives in [omitted] on the Central Coast.

10. That shortly after that time the parties decided they would rent out [B] and move into a bigger home as the [B] property only had three bedrooms and at that time they then rented a property at [omitted] until about January 2011.  Whilst they were living at the property their parties first son [Y] was born and until she was about nine months pregnant she worked with [omitted] as a [omitted] ending approximately three weeks prior to [Y]’s birth.  The mother deposes that she would care for the children including feeding them, washing them, washing their clothes, taking them to any appointments, taking them to school, spending time with them, teaching them to speak, read, write and disciplining them.  The mother deposes that throughout the relationship the father was employed as a [omitted] and his involvement with the children was that he would help out when he came home from work.  The mother indicates that the father would finish early and come home and help and that their relationship was good at that point.

11. The mother deposes that in about January 2011 they moved to Property H, [H] which was a rented property and they lived there to about October 2011 and at that time the mother was pregnant with the parties’ second child.  The mother deposes that from the time they left [B] until about October 2011 she was receiving $400 per week in rent in respect of the [B] property and that in about October 2011 the applicant spoke to her about selling the [B] property.  She was reluctant to do so especially as the father insisted her to purchase a home and because she was receiving a good rental return from the property.  The mother deposes that the father was insistent and that they should sell the property as they would purchase a property together to live in and eventually she agreed to despite what she describes as her reservations.

12. The mother deposes that she sold the [B] property for $320,000 and that prior to the commencement of the relationship with the father the property was not unencumbered.  That on or about August 2010 the parties applied for a line of credit from [omitted] using the [B] property as security.  This was for an amount of $200,000 and the mother deposes she understood this was to be used to be repaid credit card debts and purchase a seven seated vehicle.  The mother deposes the father convinced her this was the best way to go about it and to her knowledge they never planned to use the entire amount and it would just be there in case.  The mother notes that since about that time she found further paperwork discovering that in September 2010 a loan in the amount of $99,000 was obtained from [omitted] also security against the [B] property.

13. The mother annexes a copy of a loan statement and deposes she can identify the payment of $24,601.87 would have been for her credit card and a payment of $14,825.25 would have been for the applicant’s credit card and that she presumes $60,000 was used to purchase a new seven seated vehicle which she has referred to for $44,500.  The mother deposes she has no knowledge of where the remaining $15,000 went.  That the father took care of all the finances and didn’t disclose to her the full details.  The mother deposes at the time the property at [B] was sold it was encumbered in the amount of $197,997.35.  The mother deposes as to the history of the finances following the sale of the property including the purchase of the property at [K].

14. The mother deposes that she had believed that the [K] property, and the loan for the [K] property was in both their names but she has since discovered this was not the case and the property and the loans are in the applicant’s sole name.  The mother deposes that the father said “something” to her “like there was a credit card issue with you” that “we would have had to pay $7000 to have the deed amended”.  The court notes the submissions made from the bar table by the solicitor for the mother today that indeed the mother was aware that there were issues with the loan and that when she attended upon a mortgage broker that there was an issue with respect to the mother’s credit rating as a result of the non-payment of a telephone bill.  The mother in the course of her solicitor’s submissions sought to sheet home to the father the failure to pay the telephone bill.  The mother deposes in about December 2011 they attended [F] for a two week holiday.  That on [date omitted] she was due to give birth to the second child in nine days.  The parties had an argument at the way in which the father was speaking to the mother’s son [X].

15. The mother deposes as to an argument that centred around [X] eating.  It appears the parties then engaged in what can be best described as an argument.  The mother deposes that the father shouted at her, “I can’t stand you any longer, [Ms Lee], you’re a fucking nutter.  I want you to get the fuck out of my house.”  To which the mother replied, “Your house?”  And the applicant is to have said, “Yes my fucking house.  My name is on the deed.”  The mother deposes this was the first time she became aware the property was in the applicant’s sole name.  The mother deposes that she said to the father, “Where do you expect me to go?”  And he said, “I don’t care as long as it’s as far away from me as possible.”  That the father then took [L] and [P], his two children who were visiting and said, “Come on kids, pack this up we’re out of here.”  The mother deposes she did not hear from the applicant for three days until when he texted her and said “have you had the baby?”.  To which she replied, no.  The mother deposes the father then asked whether she wanted him to be at the birth.  To which she said, “No I don’t.”  The father then offered to look after [Y] and [X] while she had the baby and she deposes she replied, “Thanks.”

16. The mother deposes that on or about 5 May 2012 she invited the father over to see the children and said to him, “I have found a house but it is in [F] and I need your help with the bond.”  The mother sets out that she had been looking since he left for alternative accommodation – so the mother deposes that she was looking for alternate accommodation but had been unable to find accommodation which was nearby in my price range.  That she attended a couple of inspections of houses on the Central Coast.  That there was always over 20 people at the inspections.  She looked throughout the [locations omitted] and they had been to [F] on a family holiday in December 2011.  She liked the [F] area and thought it would be a good area to raise the children.  The applicant deposes the father then said to her when discussing issues relating to removing to [F].  “You want my fucking money to help you take my kids away.”  The mother deposes she said, “I can’t find anything else.  I’ve been looking and you, no I can’t do it without you.  All my money is tied up in this house.”  The mother deposes the father said, “No you can fuck off.  I’m not going to give you a cent.”  But at that time he threw the baby and stormed out.  He returned several hours later and his eyes were red and she believed from crying and he said, “I’ve had a good think about it.  I want you to be happy.  If you are happy then my kids will be happy and that’s the most important thing.  I will also help you with the bond.”

17. The mother deposes that the father deposited the sum of $1,000.00 into a bank account which was the day before she moved to [F].  The mother deposes the father also said, “It’s not as though I’m not going to see them (meaning the kids) I’ve got clients at [locations omitted] and so I will just drop in on my way up and down the coast.”  The mother then deposes to the history between the parties and the relationship following the removal to [F].  The mother deposes at paragraph 32(k) in response to the father’s affidavit at paragraph 29 namely that the father asked when he could see the children again and she responded, “I’m not sure, I want to discuss a few things with the mediators.  I’m seeing them next week.”  And at that the father said, “Are you moving back to the Central Coast, [Ms Lee].”  And the mother deposes she replied, “No we are not together.  I am not moving back with you.”  The mother deposes the father said, “I never gave you permission to move to [F].  Tomorrow I’m filing to have you return to the Central Coast.”  The mother deposes she said, “Actually you did.  You paid my bond, remember.”

18. The mother deposes that the father got up and shouted, “Fuck you.”  And snatched [Y] off the lounge.  [Y] became upset shouting out “mummy, mummy” that she yelled at the father “let go, you’re scaring him” and that the father then threw [Y] on the lounge and said, “I hope you have lots of money bitch because I’m going to use all the house money fighting you in court.  So you will get nothing.”  The mother deposes the father then left and she consoled [Y].  The court notes that the mother indicated that permission was granted by the provision of money, and that further the mother did not say to the father any words to the effect of “you verbally gave permission” nor did the mother seek to recite to the father a conversation which the parties were alleged to have had with respect to the mother moving to [F].

19. At paragraph 32(n) the mother deposes in response to the father’s paragraph 33 that [X] has expressed to her that he doesn’t want to see his stepfather any more. The applicant has always been verbally abusive to [X] calling him, “Princess” when he cries. And [X] is also treated differently by the father and paternal grandparents in comparison to [L]. The mother deposes this has always had a negative effect on [X] when he is competing for attention and [X] has said to her he does not want to spend any time with the paternal grandparents. The court notes that [X] is now aged seven years. I will refer further to the views expressed by [X] when taking into account those matters set out at section 60CC.

20. The mother further deposes that [X] has been enrolled in [F] School.  He is doing well.  He has a male teacher and he is doing better academically than at his previous two schools on the Central Coast being [B] and [omitted] Public School.  The mother deposes that she is currently receiving $655.80 per week from Centrelink and rents the property at Property T, [F].  That the property has been fully furnished with her furniture which she collected from the former relationship home and has a pool.  The father has been assessed to pay her the sum of $165.85 per week in child support.  The mother understands this payment is due to begin in the third week of September and that since separation the father has not paid her any money for the children at all with the exception of a thousand dollars for the bond and $200 towards a double pram for [Z] and [Y] after she begged for his help.

21. The mother deposes that she is receiving financial support from her best friend and that in total the best friend has given her $900 to assist in paying bills and everyday expenses and that the Salvation Army has paid $400 towards her electricity bill and a $150 in food vouchers for Coles.  The court wonders what might happen in circumstances where the mother finds further difficulties financially and whether or not it will be necessary for the mother to continue to rely on the Salvation Army for electricity costs of food vouchers.  The mother deposes the children are more settled in [F] although the court knows that it has been probably only some nine weeks maybe ten since the children first moved to [F].  The court notes at paragraph 48 of the mother’s affidavit she deposes the children especially [Z] do not really have a bond with the father.  I believe it is important that the father spend short and regular time periods with the children to create and maintain this bond.

22. The mother proposes in her draft minute of order that the children live with her.  She does not seek any orders for the assignment of parental responsibility.  That [X] spend time with the applicant only by agreement with the mother and it has been submitted by the mother’s solicitor today that perhaps there will be no permission given as it’s the view of the mother that [X] doesn’t want to have a relationship with what can only be terms as his stepfather.  That the father’s time spent with [Y] and [Z] be by agreement which is evidenced in writing including text message or email but failing agreement the father may spend day time with the children [Y] and [Z] in the [F] area on any day including days in which the children may be attending a day care centre provided the father provides the mother with not less or no less than 48 hours written notice of his intention to do so.

23. The court notes the mother does not seek orders that would allow the father to spend overnight time particularly with [Y].  The mother will forthwith do all things necessary to authorise [omitted] day care at [omitted] and any other day care centre in whose care the children may be from time to time to allow the father to collect [Y] and [Z] from day care.  That the father to collect and return the children at the centre for the purposes of the father spending time with the children pursuant to these orders and the father may spend 2.5 hours with the children each week on Saturday with the changeovers to occur at 10 am and 12.30 pm at [H] McDonald’s family restaurant.  The court notes [H] is a suburb adjoining the Pacific Highway.

24. There has been some discussions with respect to the McDonald’s Family Restaurant at [H] and the Court, now having heard from the parties with respect to the McDonald’s at which the handovers are suggested, the Court understands the position of the McDonald’s Family Restaurant.  Further orders are sought until [Z] is 30 months of age, the father may spend time with the child, [Y], for a maximum of 24 hours with such time to be spent an hour’s drive of the mother’s home.

25. From [Y]’s third birthday, the father may spend time with [Y] each alternate weekend from Friday at 5 pm until Sunday at 2 pm with the changeovers to occur at the McDonald’s Family Restaurant at [omitted].  When the father is spending time with the children, he is restrained from leaving the children in the care of any other person for periods exceeding a total of three hours.  On any occasion, the children or either of them spend time with the father in the [F] area and they become ill or inconsolable for any reason, the father is to communicate this to the mother immediately upon him becoming aware of it and cause the children to come into the presence of the mother. 

26. When the father is spending time with the children, he will provide their food, nappies and other incidentals required for their day to day care.  The parties will notify each other as soon as possible by phone call and text message and in any case within 15 minutes of any event requiring the emergency admission to hospital or if any of the children require emergency or medical treatment at hospital.  If either party cannot care for the children when the children are in their care because they are admitted to hospital or due to unforeseen circumstance, that party will cause the other to be notified of the same and offer the opportunity to care for the children until time in accordance with these orders can be reasonably resumed.

1. The mother seeks orders that pending further order, the applicant be restrained by injunction from selling, mortgaging, assigning, alienating or further encumbering the property at Property W, [K], New South Wales being Lot [omitted], Deposited Plan Number [omitted], being Folio Identifier [omitted] except by order of the Court.  The Court notes the agreement of the parties with respect to that injunction.

2. With respect to the orders sought by the father that should the mother return to live on the Central Coast, that she pay the sum of $400 a week, the solicitor for the mother suggests that she would be capable of doing so in circumstances where the father is paying child support but that the mother would not choose to reside in what can be best described as the former relationship home; for clarity such ability contingent upon the father paying child support in accordance with the child support assessment.

3. The mother caused to be filed with leave of the Court a further affidavit sworn by her today.  I have read and considered the mother’s affidavit.  She deposes that she has significant support people in the [F] area who have assisted her financially, practically and emotionally since she moved into the area on 18 May after what she describes as the father ordering her out of his house. 

4. The mother deposes as to evidence with respect to proceedings before the Court on 29 August 2012 in which the Court made notations that the mother was required to return to [F] as she had nobody to collect the children from childcare.  The mother deposes that she did not realise she would be required to remain beyond 4 pm which she had understood was the time the Court finished each day.  The Court does, however, note that the mother did not have any person that she could ring in [F] to collect the children and it was necessary for the mother to return to [F], on her evidence, to collect the children.  The Court take judicial notice that in some circumstances, there can be emergencies in which parties must rely on friends and/or relatives to collect children and/or do other things with respect to the children and it would be apparent from reading the mother’s affidavit that there was no such person available.

5. The mother does depose that she was able to arrange for [Y] to be collected from day care by Ms M and she had arranged for Ms M to take [X] after school on 29 August when she was in Court.  The mother deposes as to a number of support people living in the [F] area including Ms M and Mr M who live at [O]. 

6. Cause to be tendered in the course of the proceedings are printouts from the Google website, Whereis.  The Google website shows the distance between [F], where the mother resides, and [O] as some 41.6 kilometres.  The Whereis website notes the travel time is about 48 minutes.  It is the mother’s evidence that the travel time is approximately 26 minutes by road.  The Court notes that Ms M and

   
   

   Mr M do not live in [F], they indeed live in [O].  The mother deposes that Ms M stayed at her home overnight on 28 August so that she could assist with caring for [Z] and that Ms M and Mr M paid her car insurance on or about 28 August as she does not have a credit card but she reimbursed them with money and that she speaks with Ms M on the phone or texts every day when they meet up in [omitted] or each other’s home with the children regularly.

7. The mother deposes that she has another support person in the [F] area including Ms G.  Ms G is a high school friend; they kept in contact ever since high school and they visited each other about two or three occasions each year in [T] by arranging to visit their parents or respective families at about the same time.  The mother deposes that Ms G lives in [A], which is about 40 minutes drive away.  Having regards to the Whereis website on Google, the Court notes that [A] is some 60.4 kilometres away, that Whereis indicates the driving distance is some one hour, two minutes away.  The mother suggests that the time is more approximately 40 minutes having regard to the time it has taken her to drive between the homes.  It is questionable whether or not one could class [A] as being in the [F] area.

8. The mother deposes that Ms G has two daughters, aged six and two years of age, who are good playmates with [X] and [Y].  Since they have moved to the area, they have visited with Ms G on about five occasions since she moved to [F] and she is visiting Ms G this Sunday, 8 September.

9. The mother deposes that her best friend is Ms K and she lives at [M], that she has known her for 23 years and that Ms K has four children aged 21, 16, 5 and 3 years, that they talk to one another each day and visit each other at least weekly since she moved to [F] and since she has been in the area Ms K has loaned her $500, $400 and $200 to help her to meet expenses because the father did not provide any child support or other financial assistance;  that Ms K has attended with her at court on at least two occasions and that Ms K assisted her hiring a truck to travel between the former relationship home and the property in [F].

10. The mother lists Ms K as being a support person in the [F] area.  The court notes, having regard to the Whereis website, that [M] to [F] is some 134 kilometres in distance, that the Whereis website lists the driving as approximately 1 hour and 50 minutes.  The mother indicates the timing or distance is 1 hour and 20 minutes.  The court does not find that Ms K is a person who lives in the [F] area.  She is a person who lives a considerable distance away, in fact, more than 100 kilometres away and the court wonders whether or not the distance between the mother’s old home in [K] would have been a similar distance, perhaps, to [M] as it is between [M] and [F].

11. The mother deposes that there are next-door neighbours to the home in which she lives, namely, Mr and Ms W;  that [X] attends the same school as their children and that they are happy to care for [X] after school to help her on occasions if she has other appointments or commitments after 3 pm or just because the children might play together after school and that they will care for [X] on 4 September 2012 until she gets back from court, as they did on Friday, 31 August 2012.  The court does note, however, that this relationship is only a relatively new one and the mother has been residing in [F], at the most, for probably nine to ten weeks in time.

12. The mother further deposes that she attends mothers’ group once per week and that she was invited to attend because she was new to the area; that she has made friends through the group and she is able to assist the first-time mothers with advice and suggestions when they have problems managing their infants.  The mother deposes that there are few people in what she classes as [W] to support her; that her mother has passed away; that her close relatives are her father and her two brothers all of whom live in Sydney; that she moved to [B] in October 2004 because she was pregnant with [X] on her own; that her brother, at that time, lived in [G].

13. The mother deposes she initially moved to [omitted], an adjoining suburb to [G], but her brother now lives in [omitted], a suburb on the northern beaches of Sydney.  That her mother passed away seven years ago; that her father then sold his three-acre property in [T] and purchased a home in [B] for the mother outright in 2007 and that she settled on the home only at that time because it was next to the adjoining suburb to where Ms M and Mr M were then living who, the court notes, live in [O], some distance, perhaps 25 minutes to 40 minutes drive between the mother and her current home in [F].

14. The mother deposes that she never felt settled on the Central Coast and she did not particularly like living on the central coast but lived in the home because it seemed the most economical sensible thing to do at the time.  The court notes, however, that the father purchased the property for her in [B] on an unencumbered basis and that the mother would have had some choice, the court expects, as to the suburb in which the home was purchased and, indeed, the court notes that at least the mother made a decision to move there mainly because at the time the mother deposes it was in the adjoining suburb to Ms M and Mr M.

15. It’s apparent from the mother’s evidence that she continued to live there and that the applicant was her next-door neighbour at [B] for two years.  She sets out in her affidavit that she was aware that the father understood that the property was owned outright as she recalled a conversation they had in 2007 regarding mortgage rates; that the parties commenced a sexual relationship about three months after the father and his wife separated and he moved out of the home next to hers at [B].

16. The mother deposes that the father and his former wife have parenting orders or arrangements for the father to spend time with [P] and [L] each Thursday evening from after school, and alternate Tuesdays, Fridays, Saturdays and Sundays to 6 pm with changeovers to take place at McDonald’s at [omitted]. The mother says that from the commencement of the de facto relationship the father has never collected the children on alternate Thursdays and on more than half of the father’s weekends [P] and [L] have spent their weekends with the paternal grandparents because the father has elected to spend his weekends [activity omitted] including staying at the [omitted] on Saturday nights.

17. The mother says that since the home at Property W, [K] was purchased solely in the father’s name and without her consent “to my name not being on the title the father spent time with [P] and [L] on about one-quarter of the weekends that were available to him and none with [name omitted] and [X] on other weekends that [P] and [L] were not with us” and further said that this was a unilateral decision by the father.  To the best of her knowledge, the mother deposes the father’s employer does not have an office on the Central Coast.  She sets out that she understands the only New South Wales office is in the Western Suburbs of Sydney, and the father is employed as a [omitted].  The father travels for work, and she understands this because he has told her so, that he drives to see clients in New South Wales, in [locations omitted], as well as fly to visit clients interstate. 

18. The mother deposes that when she caused to visit the former relationship home that she noted that that the property was in a general state of neglect and that she took photographs on 22 August and the children’s bedrooms were emptied.  The court notes that the evidence is contested by the father in the proceedings today in circumstances where the father is unable to put any evidence properly before the court.  Having regards to the leave granted to the mother this morning to file her affidavit in court, the court can place little weight on the evidence of the mother with respect to the general state of the property, or further with respect to the photographs taken of the bedrooms.

19. The mother, again, says that the father consented to her moving to the [F] area and that he gave her $1000 for the bond.  The mother attaches an email sent by the father to the mother that she says evidences the father’s consent to the mother’s removal to [F].  I have read and considered that email.  I have read and considered the photographs attached to the mother’s affidavit and the annexures to the mother’s affidavit.  Again, the mother complains that the father is at [R] most weekends for his work as a [omitted]. 

20. The mother deposes the father continues to travel frequently with his work and maintaining client relationships, that the expenses are paid for by his employer and that she receives no child support.  The mother further deposes that the father receives approximately $95,000 per annum and that she’s unsure whether this includes income from his [omitted].  The court has read and considered the family consultant’s memorandum to the court prepared by family consultant Ms C, prepared on 29 August 2012 at 10.30 am.  Such report forms exhibit A in the proceedings.   

21. The court notes that the mother indicated that she was happy for the father to spend regular time with the children in excess of that provided for in her response, so long as it was in [F] and did not involve overnight time at this stage.  The court notes that the mother indicated that there are no allegations of family violence within the relationship.  The parties relationship is reported to have deteriorated post-separation, particularly in relation to whether the mother is to live in [F] or the Central Coast. 

22. The family consultant notes the mother has concerns about the emotional security of the father and that the mother reports the father having been verbally abusive to her older son.  The mother is also concerned as to the father’s capacity to cope with the children.  The court notes the issues relating to the children set out by the family consultant, namely, that the subject children are very young and this is likely to have an impact on the nature of the parenting arrangements which are likely to be in the best interests.  Specifically, considerations need to be given to each child’s pre-existing relationship with the father, and whether this is of such a strength that they are able to use him for comfort and as a safe base in the mother’s absence.  If this is the case, then the children may be able to emotionally manage a lengthier period of time away from the mother.  However, if this is not the case, then the shorter period should be considered.  It is noted that the family consultant suggest that given [Z]’s young age and lack of more recent time with the father would tend to suggest the latter at this stage.  In any case the family consultant sets out to build an attachment and a bond for the children with the father, short, more frequent periods of time with him are preferable to longer and less frequent periods of time with him. 

23. The court has read and considered the other exhibits tendered in the proceedings, notably exhibit G, being the letter of [omitted] Childcare, and the letter of the [F] School.  The court has read and considered exhibit F, being the child support assessment application acceptance, dated 27 July 2012.  The court has read and considered exhibit G, being a chain of emails.  The Court read and considered exhibit C. Exhibit C is a seven-page printout from the web site, realestate.com, with respect to the availability of properties in or around the [K] area.  The Court notes some 20 pages of results containing possibly 99 results.  The document tendered shows properties for rent in [locations omitted].  With the exception of five properties, all properties are listed for rent at a price less than $400 per week.

24. The Court notes that there are some properties listed, particularly a brand new four bedroom residence in [H], for $430 per week;  a four bedroom, all with built in – main bedroom has robe and en suite, home in [H] for $460 per week.  Another brand new four-bedroom residence in [H] for $420 per week.

25. I turn to the submissions made during the interim hearing.  During the course of the submissions by Ms Harris, solicitor for the father, she made submissions with respect to the failure to name [X] as a child in the orders that were sought, namely as the biological father had not been served, no orders were therefore sought with respect to [X].  Discussions were then held between the parties as to the identity of the biological father.  A concession was made by the solicitor for the mother that the father of [X] was unknown and, in such circumstances, the Court made a determination that the Court should dispense with the requirement for service upon [X]’s father and accordingly did so.  The Court notes that the father now seeks orders for [X] to spend time with the father at the same time as [Y].

26. The solicitor for the father submits that the father will continue to pay the mortgage until such time as the mother was released from her rent requirement in [F]. Submissions were made in relation to parental responsibility. The Court is not requested by the mother to make any orders however the father’s solicitor submits that there is nothing in the evidence that would displace the presumption found at section 61D under the Family Law Act. The Court, however, notes the later submissions made by the solicitor for the mother with respect to issues relating to family violence, particularly financial control.

27. It is submitted on behalf of the father that he seeks age appropriate orders and age appropriate time and that this could not take place with the mother living in [F] with the children.  It is submitted on behalf of the father that he did consent to the mother’s relocation to [F] but it was only for a short period of time.  Submissions are made with respect to the case of Morgan & Miles[1] and that given the children’s age, it is difficult and harder to communicate with the children by phone because of their age.

    [1] (2008) 38 Fam LR 275, (2007) FLC 93-343

28. Submissions are made that the mother went overseas to stay in Thailand for 16 days in December 2002 and that the mother’s concerns about the father’s ability to parent the children should be measured against the mother’s travel to Thailand in circumstances where the mother allowed the children – that is the elder children – to remain in the father’s care.

29. Ultimately the submission of the father is that the children need to be returned to allow the children to develop and build a relationship with the father.  Ms Brooks, solicitor for the mother, made submissions on the relevant case law including Goode v Goode[2], Morgan v Miles.  Submissions were made that the father paid the mother’s bond. 

    [2] (2006) 36 Fam LR 422, (2006) FLC 93-286 [2006] FamCA 1346

30. Significant submissions were made by the mother’s solicitor with respect to family violence perpetrated – or alleged to have been perpetrated on the mother by the father with respect to financial control.  It is submitted that the father convinced the mother in 2010 that she should take out a line of credit over her home then in [B].  Submissions were put that a further loan was obtained without the mother’s knowledge of the loan being taken out or being signed.  Submissions were put that the father had paid for the holiday to Thailand and that it was an unsolicited gift and that while the father had the opportunity to care for the children he chose to spend the time with the children at his parents.

31. Submissions were made on behalf of the mother that the parties moved to a larger five‑bedroom house and at that time there were talks about marriage and the mother was persuaded by the offer of marriage, was gullible and agreed to sell her home.  Submissions were made by the mother’s solicitor that at the time the home was purchased in [K] that it was the mother’s understanding the home would be purchased in joint names and then a mortgage broker representative said to her at the time of purchase that the mother had a bad credit rating and the solicitor for the mother seeks to sheet home the poor credit rating on the father as a result of his failure to pay the mother’s telephone bill.

32. Submissions were made on behalf of the mother that between October 2009 and October 2011, the mother was relieved of $360,000 of assets by the father.  Submissions were made that from the time after purchase of the property in [K] the father spent less and less time at home as he was a [occupation omitted] and that on most nights the father was due to spend time with his children, [P] and [L], they spent time with his parents whilst he, the father, spent overnight time in [R].

33. There were further submissions made by the mother’s solicitor that this is a case of economic violence perpetrated on the mother and that the father has acted in an unconscionable way; that the father has been scant on details about the argument between the parties.  Further that the mother did not realise that she would need to stay on in Court and, as a result of that, had not made arrangements for the children to be cared for in [F] and was required to return to [F].  It is submitted by the solicitor for the mother that the father would be unable to spend consistent time with the children as his work and sporting endeavours would not allow it.

1. Submissions were made with respect to the father’s failure to pay child support.  Submissions were made with respect to the father’s control of the mother’s finances during the course of the marriage, namely that prior to the sale of the property at [B], the mother was receiving $400 per week income and that following the sale, the father then paid the mother $900 per week towards household expenses and that on occasions when the mother ran short, she would ask for money from the father and he would say he does not have any.  Submissions were made by the solicitor for the mother that the father travels away and when he does so, all expenses are paid for him and that the father has failed to take the opportunity to spend time with the children, and that the children would be able to maintain their relationship with the paternal grandparents if they were to visit [F].

2. Submissions were made on behalf of the mother that it would be easy for the parties to afford the costs of travel to [H] and that matters relating to family violence should be considered.  I am asked by the mother’s solicitor to consider the case of Deiter & Deiter[3] and I have considered that case.  Submissions were made on behalf of the mother that once the mother receives child support payments from the father, she could pay $450 per week in rent.  Submissions were made with respect to the state in which she found the home, although the Court notes such evidence is disputed by the father.

   [3] [2011] Fam CAFC 82

3. In response, Ms Harris on behalf of the father submits that there was no family violence mentioned during the course of the section 11F child dispute conference and that this is only a recent thing.  In response, Ms Brookes on behalf of the mother submits that the mother only now says there was family violence, as she did not realise it previously and that this sort of family violence is insidious and often in this sort of family violence one does not understand they had a domestic violence relationship or a violent relationship. 

4. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975.  In determining the outcomes of parenting matters, the Court must consider the best interests of the child as the paramount consideration.  Whilst that is the paramount consideration it is not the only consideration.  In AMS & AIF[4], Kirby J held:

   A statutory instruction to treat the welfare and best interests of the child as the paramount consideration does not oblige a Court making the decision to ignore the legitimate interests and desires of the parents.  If there is a conflict between these considerations, priority must be accorded to the child’s welfare and rights.  However, the latter cannot be viewed in the abstract separate from the circumstances of the parent with whom the child resides.  The objects of Part VIIA are to ensure that the best interests of the child are met by the both parties having a meaningful involvement in their children’s lives and the children are protected from physical or psychological harm, that they receive adequate and proper parenting and that parents fulfil their duties and meet their parenting responsibilities.

   [4] (1999) 24 Fam LR 756 at 792

5. In determining what is in a child’s best interests, the Court must consider the matters set out section 60CC. When making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the parent to have equal shared parental responsibility. This presumption may not apply or may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s interest for it to apply. In the event that the Court orders the parties to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA, which provides for a consideration of the children spending time with the parents.

6. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending significant and substantial time with the parents.  This legislative approach must be followed in all parenting cases.  This particular case has, as one of its elements the issue of relocation.  Much has been written and said about relocation cases, such as there may be a perception that they are a unique type of case to be determined differently from others.  The juris prudence, however, is clear: that such cases remain to be determined like all parenting matters by considering the best interests of the child in the context of the legislative framework.  In Taylor &Barker[5], Bryant CJ and Finn J said:

   When dealing with a case concerning the future arrangements for a child and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principles has been not to deal with that change or relocation as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least insofar as that approach is possible.

   [5] (2008) 37 Fam LR 461

7. The Court recites the cases of U v U[6] and KB & TC[7].  Their Honours went on to say:

   However, consistent with what the Full Court said in Goode, the options of the child spending equal time or substantial and significant time with each parent must now be given separate and real consideration notwithstanding that a relocation proposal may also have to be given subsequent consideration, the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of equal time or substantial and significant time arrangements.  Not to approach a case involving a relocation proposal in this way would devalue the imperative imposed by the Act to consider whether it is in the best interests of the child in a case to spend equal time or significant and substantial time with each parent.

   [6] (2002) FLC 93-112

   [7] (2005) 38 Fam LR 74

8. The Court notes the case of Goode & Goode, particularly at paragraph 82 that provides:

   An interim case would involve the following:  identifying the competing proposals of the parties, identifying the issues in dispute in the interim hearing, identifying any agreed or under contested relevant facts, considering the matters in section 60CC that are irrelevant, if possible, making findings about them.  In interim proceedings there may be little uncontested evidence to enable more than a limited consideration of those matters to take place.  Deciding whether the presumption in section 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption. 

9. This is a matter in which there is now evidence put before the Court that, on both views, is contested.  On the mother’s case she suggests that there has been a long systematic period of family violence perpetrated upon her by the father during the course of the relationship as a result of financial matters, particularly the father withholding financial assistance to her and, what can be best described by the mother as the father relieving her of the bulk of her estate.  The Court notes the father disputes this evidence and the Court is unable to make any finding on an interim basis as to whether there has been family violence and in such circumstances, the Court finds that there is insufficient evidence available to it to make any finding as to the apportionment of parental responsibility between the parties.

10. In B & BFamily Reform Act 1995[8] Nicholson CJ and Fogarty and Lyndameyer JJ made it clear that relocation cases are not a separate category within the Family Law Act 1975.  Each case under Part VII relates to the best interests of the children but with a particular context and is to be determined in accordance with the principles contained within that Part.  On 1 August 2000 the Full Court of the Family Court delivered its reasons for judgment in A & A[9] relocation approach and formulated a guideline judgment to be applied when determining parenting cases of this sort.

    [8] (1997) 21 Fam LR 676, (1997) FLC 92-755

    [9] (200) FLC 93-035

11. That decision draws together principles enunciated by the Full Court in B & B Family Law Reform Act 1995 and the 1999 High Court decision in AMS & AIF and then subsequent appeal of AIF & AMS[10].  The decision in A & A is authority for the principles that in reaching a decision in a case where one party proposes to relocate with a child or children of the relationship the Court cannot proceed to determine the issue in a way that separates the issue of relocation from that of residence and the best interests of the child.  Compelling reasons for and indeed, against the relocation need not be shown.  The best interests of the child are to be evaluated taking into account considerations including the legitimate interests of both the resident and non-resident parent.

    [10] (1999) FLC 92-852

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

13. In Hepburn & Noble[11] the Full Court of the Family Court of Australia discussed whether the application of the principles in A & A relocation approach is still appropriate in light of the amendments introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006.  Their Honours stated that:

    There were concerns that the decision in A & A relocation approach was still being referred to and given that since the Act has been substantially amended there has been a number of significant decisions of the Full Court addressing the issues of relocations.

    [11] [2010] Fam CAFC 111, (2010) FLC 93-438

14. And their Honours noted:

    It would be more relevant to the Federal Magistrate to have regard to the guidelines and principles enunciated from subsequent Full Court decisions.

15. Notably Taylor & Barker which I have referred to previously in this judgment.  In the matter of Morgan & Miles Bowen J set out at paragraph 80 of her reasons the four principles, namely:

    That a child’s best interests remain the paramount but not sole consideration.  That a parent wishing to move does not need to demonstrate compelling reasons that a judicial officer must consider all proposals and may, himself or herself, be required to formulate proposals in the child’s best interests.  The children’s best interests must be weighed and balanced with the rights of the proposed relocating parent’s freedom of movement.

16. At paragraph 88 Bowen J stated:

    It appears to me that the very difficult issue in cases involving a relocation which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation:  A Report to the Attorney General Prepared by the Family Law Council make it highly desirable that, except in the case of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing and the type of case in which the child’s present stability may be extremely relevant on an interim basis.  It further appears to me the comments of Warnick J in C & S remain apt and relevant in determination of these cases.

17. Her Honour had earlier referred to the comments of Warnick J and in C & S[12] in paragraph 27 of Morgan & Miles where she quoted the following from his Honour with whom Ellis and Lyndameyer JJ agreed:

    In my view, it is clear that the interests of any children or children, including the children here, are very much connected with any question directly affecting those children such as relocation being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents from what it or they had been immediately beforehand.

    [12] [1998] FMCA 66

18. I give considerable weight to the decision of C & S, particularly the views expressed within that case with respect to the impediment of a situation of recent development. This is, in my view, in a situation of impediment of recent development. I am required to consider those matters set out at section 60CC of the Family Law Act 1975 and I now do that. I turn firstly, to the additional considerations at section 60CC, namely 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 the children’s views.

19. With the exception of [X], who the Court notes was born [in] 2005, now aged seven years, the Court notes that there is limited if no evidence before the Court as to the views expressed by any of the other children.  [X] is seven years of age and it is difficult to give any weight to the views expressed by [X] as contained within the mother’s affidavit taking into account his age, his level of maturity or understanding of what it is that is being proposed in relation to the matter, particularly that there is a proposal before the Court based upon his views that he not spend any time really with what could be best described as his stepfather or, indeed, that he be separated from the father’s two children of a previous relationship.

20. I am asked to consider the nature of the relationship with the child with each of the child’s parents and any other person including even a parent or any other relative of the children.  This is a matter involving very young children.  [Y] was born in 2010 in [month omitted] and [Z] born [in] 2012.  This is a matter in which there is a developing relationship between the father and the children.  It is a difficult matter in that if the children continue to live in [F] there will be some impediment to the father developing that relationship, but, more importantly, the children developing that relationship with their father. 

21. I am asked to consider the relationship with any other person.  This is a matter in which the children had spent some time with the paternal grandparents who, the Court notes, live in [E], and indeed there will be some difficulty occasioned with respect to the children maintaining a close or strong relationship with the paternal grandparents where they live a considerable distance away. 

22. The Court is asked to consider 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 and to spend time with the child.  The parties are present before the Court today.  They are certainly interested in participating in making decisions about major long term issues in relation to the children and the Court draws no criticism of the parties in that regard.  There is criticism levelled at the father with respect to the opportunities he has taken to spend time with the children particularly during the course of the relationship in which the mother alleges that the father spent a considerable amount of time [occupation omitted] staying overnight at [R] rather than spending time with the children.

23. The Court notes, however, that those circumstances occurred largely during the course of the parties’ relationship and it may have been when and the Court could make no finding of it that that was simply something that the parties agreed to during the course of their relationship.  In those circumstances, whilst there are criticisms of the father that the father failed to spend time with the children, it is not a matter the Court can give considerable weight, nor can the Court give considerable weight to circumstances with respect to the parties communicating with the children.

24. The Court is required to consider the extent to which each of the child’s parents has fulfilled or failed to fulfil their parental obligations to maintain the children.  There are circumstances in this matter that cause the Court some concern with respect to the payment of child support by the father.  The father must begin paying child support in September, although there is no clear evidence before the Court as to why such payment is due to begin in September, but it is certainly a matter which the Court will take into account on a final basis if indeed the father fails to continue to pay child support long term.  Given this is an interim matter, the Court can give that matter some but little weight in the ultimate determination to be made before the Court today.

25. The Court must consider the likely effect of any change in the child’s circumstances including the likely effect on the child of any separation from either his or her parents, any other child or person including any grandparent or other relative of the child with whom he or she has been living.  This is a matter in which the children have travelled away to [F].  They have been living in [F] now for some nine to 10 weeks.  Prior to their move to [F] they were spending time with the father.  They were living in a household where they were exposed to their half siblings, the father’s elder children.  The mother has moved to [F] and the children will have less exposure to the father, but more particularly less exposure to their siblings, their half siblings who, no doubt, they’ve known during the course of their life as their brothers and sisters.

26. The likely effect and the change in the child’s circumstances, including their separation from the father causes me considerable concern in this matter on an interim basis.  It is difficult to see how the father can – or the children can maintain a relationship, how they cannot be affected by the change in their circumstances where the parties must now, on the mother’s case, meet on the roadside at McDonald’s at [H] where it would be difficult for the parties to make other arrangements, given the great distance between them and, most notably, given the state of their relationship and their lack of communication, it is unlikely the parties will be able to reach any further agreement with respect to extra time.

27. Of course there is the separation of the children from their paternal grandparents which, on the mother’s case, suggests that they have had a liberal exposure.  There is of course the practicable difficulty and expense of the child spending time with, and communicating with a parent, and whether that difficulty and expense will substantially affect the child’s right to maintain personal relationships and direct contact with both parents on a regular basis.  Whilst the expense is not an issue, the difficulty is.  There is a real difficulty in this matter caused by the distance between the parties.  That difficulty will, in the view of the Court, substantially affect the children’s rights to maintain personal relations and direct contact with both parents on a regular basis.  Indeed, the children are so young, in my view, it would be difficult for the children of the relationship to maintain a relationship with the father using such things as Skype or telephone, that the distance between the parties would prevent the children maintaining a personal relationship with both parents.

28. I do not find that I need to consider the maturity, sex, lifestyle or background of either parent. I am not aware that either child is an Aboriginal or Torres Strait Islander child. On that basis, I do not consider those matters set out in subsection (h) of subparagraph (3) of section 60CC.

1. I am asked to consider the attitude to the child and the responsibility of parenthood demonstrated by each of the child’s parents.  This is a matter in which there is criticism levelled at the father with respect to his responsibilities towards parenthood and that on the mother’s case the father has during the period of the relationship chosen to pursue his sporting endeavours, [omitted] both in Australia and overseas, though, on an interim basis, it is not a matter I can given considerable weight.

2. I am asked to consider any family violence involving the child or a member of the child’s family.  This is a matter in which there are considerable submissions made by the solicitor for the mother that family violence was perpetrated upon the father in respect of financial control and domination.  These are interim proceedings and the Court notes the family consultant’s memorandum in which the mother gave evidence to the family consultant in which she indicated there was no family violence.  The Court can make no finding either way as to whether there was any family violence perpetrated during the course of the marriage in circumstances where the evidence is untested.

3. I am asked to consider whether there is any family violence order which applies, or has applied to the child or a member of the child’s family.  The Court is not on notice that there is any family violence order affecting the children or either of the parents. 

4. The Court is asked to consider whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the children.  These are interim proceedings and by their nature whatever orders are made today they will not be permanent.  They are temporary and there will be further proceedings with respect to orders sought on a final basis.

5. I am asked to consider any other fact or circumstance the Court considers is relevant to the proceedings. This is a matter that comes under the provisions of the new amendments to section 60CC of the Family Law Act 1975.  Previously the Court was required to consider the willingness or ability of each party to facilitate and encourage a close and continuing relationship with the other parent.  It is a fact or circumstance, I think, is relevant to the current proceedings.  On the submissions made by the mother there are real concerns by her that there is family violence.  It would appear that on the face of it the parties’ relationship is shattered.  It has irretrievably broken down and the Court wonders in circumstances where the mother views the financial relationship as one where the father has relieved her of all her worldly wealth that the mother has any ability or willingness to continue to facilitate and encourage a close and continuing relationship between the children and the father.  It is a matter though that I give little weight as it is not a matter I can make any finding about on a final basis in circumstances where the evidence is untested, but I raise it as an issue because it is something that I consider is relevant.

6. I am not required to consider subparagraph (5) or (6) as they relate to consent orders, but I am required to consider those matters set out at section 60CC(2)(a) and (b). I consider firstly the primary consideration of section 60CC(2)(a), the benefit to the child of having a meaningful relationship with both of the child’s parents. This is a matter in which I find that there is a benefit to these children having a meaningful relationship with both of the parents. Indeed, on an interim basis it would appear that there are some advantages. There are things to be gained by these children maintaining their relationship with their father. It is difficult to understand how the children given their age are able to maintain a meaningful relationship with both parents in circumstances where the children are living a considerable distance away between [F] and the Central Coast of New South Wales.

7. I am asked to consider, and give greater weight to that primary consideration at section 60CC(2)(b), being the need to protect the child or children from physical or psychological harm, from being subject to or exposed to abuse, neglect or family violence. As I said, this is a matter which came before the Court initially at which time the Court ordered the parties attend a reportable section 11F child dispute conference and, indeed, the parties attended upon a section 11F child dispute conference with family consultant, Ms C, on 29 August 2012. Again, the Court notes under the heading Family Safety Factors it was reported there are no allegations of family violence within the relationship. The Court accepts that the mother is able to reflect on the relationship and has chosen to do so and now fairly and squarely puts before the Court submissions to the effect that she was the victim of a long series of family violence with respect to the father’s financial control and manipulation of her. Nevertheless, this is a matter that the Court is unable to make any finding about on an interim basis in circumstances certainly where the evidence is contested. The evidence has not been tested. The parties have not had an opportunity to test one another’s evidence and certainly in light of the fact that before the Court there are the submissions of the mother with respect to family violence and, in stark contrast, there is the evidence contained within the family consultant’s memorandum that there are no allegations of family violence, this is a matter that will need to be determined on a final basis. The evidence with respect to any family violence perpetrated during the course of the relationship will need to be weighed and measured and tested at a final hearing.

8. Having regard to the matters set out at Part VII of Family Law Act 1975, having regard to the case law, particularly section 60CC of the Family Law Act 1975, I find that it is not in the best interests of the children that they continue to reside for the moment in [F].  I make orders in accordance with the orders suggested by the father, but I will go through the orders now with respect to timing, but I make these orders saying this is not a final hearing.  This is an interim determination only.  It does not mean that the Court has formed any final view about the merits of the mother’s application to relocate to [F] or, indeed, relocate anywhere outside of the Central Coast area.

9. I will turn to the orders sought by the father, and I want to go through those so that the parties are properly accorded procedural fairness if the parties wish to make any submissions particularly with respect to timing.  I am not going to make any order for equal shared parental responsibility.  I have set out in my decision that I am unable to make any finding about family violence. 

10. For those reasons I make the orders set out at the beginning of this judgment.

I certify that the preceding one-hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of Myers FM

Date:  4 September 2012