Joyner & Joyner - [2022] FedCFamC2F 510

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Joyner & Joyner [2022] FedCFamC2F 510

File number: PAC 6442 of 2019

Judgment of: JUDGE TURNBULL

Date of judgment: 26 April 2022

Catchwords: FAMILY LAW – CHILDREN – relocation – family violence – mental health– unacceptable risk – where mother wishes to return to her home in the Northern Territory with the children – where the children and the parents have lived only in New South Wales since commencement of cohabitation – effect of and response to family violence trauma – substantial and significant time

Legislation:
Australian Constitution s 92

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC

Cases cited:
AMS v AIF [1999] HCA 26; 199 CLR 160

KB & TC [2005] FamCA 458

Bondelmonte v Bondelmonte [2017] HCA 8; 259 CLR 662

Boxer & Boxer [2021] FedCFamC1F 340

Boyce & Boyce [2015] FamCAFC 60

Briginshaw & Briginshaw [1938] HCA 34; 60 CLR 336

Cole v Whitfield (1988) 165 CLR 360

Dundas & Blake [2013] FamCAFC 133

Godfrey & Sanders [2007] FamCA 102

Goode & Goode [2006] FamCA 1346

Hill & Weston [2021] FedCFamC1F 174

Isles & Nelissen [2021] FedCFamC1F 295

Koyroyshs & Koyroyshs [2020] FamCA 626

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

Morgan & Miles [2007] FamCA 1230

MRR & GR [2010] HCA 4; 240 CLR 461

Murphy & Murphy [2007] FamCA 795

Robertson & Sento [2009] FamCAFC 49

Sampson & Hartnett (No 10) [2007] FamCA 1365

Scott & Scott [1994] FamCA 12

Tabac & Kelmer [2016] FCCA 1937

U & U [2002] HCA 36; 211 CLR 238

Withers & Russell [2016] FamCA 793

Division: Division 2 Family Law

Number of paragraphs: 416

Date of hearing: 1-3 November 2021

Place: Hobart

Counsel for the Applicant Mr Scarlett

Solicitors for the Applicant Duffy Law Group

Counsel for the Respondent Mr Blackah

Solicitors for the Respondent Marsdens Law Group

Counsel for the Independent Children’s Lawyer Mr Schroder

Solicitors for the Independent Children’s Lawyer Sydney West Family Lawyers
ORDERS

PAC 6442 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS JOYNER

Applicant

AND:
MR JOYNER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE TURNBULL

DATE OF ORDER:

26 APRIL 2022

THE COURT ORDERS THAT:
1.The parents, Ms Joyner (‘the Mother’) and Mr Joyner (‘the Father’), shall have equal shared parental responsibility for the children W born in 2009, X born in 2012, Y born in 2014, and Z born in 2016 (‘the children’).
2.The children shall live with the Mother.
3.The children shall spend time with the Father as follows:
(a)During the school term and until the commencement of Term One in 2023 as follows:
(i)from the conclusion of school on Friday to the conclusion of school Monday (or Tuesday morning if the Monday is a public holiday or non-school day) each alternate week, with such time to commence on the second Friday of each school term; and
(ii)from the conclusion of school on Thursday to the commencement of school on Friday each alternate week, to commence on the first Thursday of each school term;

(b)During the school term commencing on day one of Term One in 2023 as follows:
(i)from the conclusion of school on Thursday to the conclusion of school Monday (or Tuesday morning if the Monday is a public holiday or non-school day) each alternate week, with such time to commence on the second Thursday of each school term; and
(ii)from the conclusion of school on Thursday to the commencement of school on Friday each alternate week, to commence on the first Thursday of each school term;

(c)During the school holidays:
(i)at the conclusion of Term One, Term Two and Term Three, for one half of the school holidays, being the first half of the holidays in odd years and the second half of the holidays in even numbered years;
(ii)at the conclusion of Term Four, for one half of the holidays, being the first half of the holidays in odd numbered years and the second half of the holidays in even numbered years;

(d)Notwithstanding any other Order:
(i)the Father shall have care of the children:
A.from 4:00pm on Christmas Eve until 4:00pm Christmas Day in odd numbered years;
B.from 4:00pm on Christmas Day until 4:00pm on Boxing Day in even numbered years;
C.on Father’s Day from 8:00am to 6:00pm;
D.from 4:00pm on Holy Thursday until 4:00pm on Easter Saturday in even numbered years; and
E.from 4:00pm on Easter Saturday until 4:00pm on Easter Monday in odd numbered years; and

(ii)the Mother shall have care of the children:
A.from 4:00pm on Christmas Eve until 4:00pm on Christmas Day in even numbered years;
B.from 4:00pm on Christmas Day until 4:00pm on Boxing Day in odd numbered years;
C.on Mother’s Day from 8:00am to 6:00pm;
D.from 4:00pm Easter Saturday until 4:00pm on Easter Monday in odd numbered years; and
E.from 4:00pm on Holy Thursday until 4:00pm on Easter Saturday in even numbered years; and

(e)At other times and with variations of the above Orders as agreed between the parents in writing including text message.

4.For the purpose of these Orders, the school term and school holidays are deemed to commence at the conclusion of the last day of school and conclude at the commencement of the first day of the next school term on which the children are to attend school, and changeovers shall occur at 6:00pm on the day in the middle of the school holiday period.
5.For the purposes of any changeover which does not take place at the children's school/s, the parents are to meet at Suburb B McDonald's at the commencement and conclusion of the children's time with the Father unless otherwise agreed between the parents including text messages.
6.For the purpose of any changeover which takes place at the children's school, only the parent who is collecting the children from, or delivering the children to, the school shall attend the school and the other parent is restrained from being in attendance at that time.
7.The parents shall communicate with each other directly via text message about the children and in circumstances of urgency or emergency via telephone.
8.The children shall have virtual communication with the Father, whether by telephone or video call, each second night between 6:00pm until 6:30pm, commencing the second night that the children are in the Mother’s care.
9.The children shall have virtual communication with the Mother, whether by telephone or video call, each second night between 6:00pm until 6:30pm, commencing the second night that the children are in the Father’s care.
10.Each party shall at all times:
(a)be courteous and respectful to the other parent and their family members;
(b)not denigrate the other parent or their family members;
(c)not discuss these Court proceedings; and
(d)be restrained form using profane language and making derogatory comments about the other party, or their family members, to or in the presence or hearing of the children, or any other third parties, and shall remove the children from the presence of any person who is denigrating the other parent or the other parent’s family in the presence or hearing of the children.

11.Both parents are at liberty to liaise directly with the children's school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children's progress.
12.Both parents are at liberty to attend upon the children’s schools for events which parents are ordinarily invited to attend and, for the purpose of parent-teacher interviews, as they may arrange.
13.Each parent shall ensure that the children attend their extra-curricular activities whilst in their respective care, and the other parent shall be permitted to attend such extra-curricular activity whilst the children are in the care of the other parent, including annual awards and end of season events at which both parents shall be entitled to attend.
14.The parents are restrained from further enrolling the children in extra-curricular activities that would impact on the other parent's time save and except by agreement.
15.In the event of a medical emergency concerning the children, or either parent, the parent with whom the child or children are with at that time shall contact the other parent forthwith by telephone call if possible or otherwise by text message to inform them of the nature of the emergency, and the address and telephone number of the hospital emergency department to which the child or children are to be or have been admitted.
16.Each parent shall give the other parent fourteen (14) days’ written notice prior to any change in residential address or mobile number.
17.In the event either party wishes to travel with the children outside the Commonwealth of Australia, then the party proposing such travel shall notify the other party in writing no less than sixty (60) days prior to the departure date of such proposed travel, and shall provide to the other parent:
(a)particulars including the proposed itinerary and proposed period of such trip at least sixty (60) days prior to departure;
(b)a final itinerary, including contact telephone numbers and full street addresses of where and with whom the children are staying, at least ten (10) days before departure; and
(c)copies of return airline tickets and detail of flights once booked and irrespectively at least ten (10) days before departure.

18.Unless otherwise agreed by the parents, if a parent is to travel internationally with the children pursuant to Order 17 above, that travel must occur during the travelling parent’s regular scheduled time with the children during the gazetted school holidays and, in the event that such time transgresses upon the non-travelling parent’s scheduled time with the children, the non-travelling parent’s time is to be compensated within twelve (12) calendar months of the date upon which the travelling parent returns to Australia with the children and, if the non-travelling parent wishes to exercise that compensatory time, is to give at least 14 days’ written notice to the other parent of their intention to exercise the same.
19.Whilst travelling outside the Commonwealth of Australia with the children, the travelling parent shall use their best efforts to facilitate a telephone or televisual call such as by FaceTime or Skype with the non-travelling parent at least once each seven (7) days.
20.In the event that either party wishes to travel with the children outside the Commonwealth of Australia during their time with the children or at other times as agreed, then the parents shall do all things and sign all documents necessary to obtain Australian passports (‘passports’) for the children and shall equally share the cost of the passport applications, and also shall do all things and sign all documents necessary to obtain any other documents required to allow the children to travel internationally.
21.The children’s passports shall initially be in the possession of the Mother, and thereafter ordinarily be in the possession of the parent with whom the children most recently travelled internationally, but shall be made available to the other parent who intends to travel internationally with the children not less than fourteen (14) days prior to the notified date of departure (or earlier with written evidence that it is required to be made available earlier for the purposes of obtaining a visa).
22.In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
23.All extant orders be discharged.
24.All outstanding applications be dismissed.

THE COURT NOTES THAT:
A.These Orders were amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 2 May 2022.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Joyner & Joyner has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TURNBULL
Overview

Ms Joyner (‘the Mother’) wishes to relocate with her children. Mr Joyner (‘the Father’) opposes that application.
Both parents and their children currently live in the general Suburb B area in New South Wales. The Mother wishes to relocate, with the children, to Darwin in the Northern Territory.
There are four children subject to these proceedings:
·W, born in 2009 (‘W’);
·X, born in 2012 (‘X’);
·Y, born in 2014 (‘Y’); and
·Z, born in 2016 (‘Z’).
This case presents this Court with two central issues for determination:
(1)Should the Mother be permitted to relocate, with the children, to Darwin?
(2)If (1) above is answered in the negative, meaning the Mother and the children will not relocate to Darwin, should the children live in an equal-time arrangement between their parents?
The Mother and the Father presented two proposals each — one for either contingency resulting from issue (1) above. The Independent Children’s Lawyer (‘ICL’), on the other hand, did not endorse the Mother’s relocation application and therefore did not propose orders for that eventuality.
The ‘overarching issue’ for this Court, with respect to the parties’ relocation and time proposals, is whether the ultimate parenting orders are in the children’s best interests.[1] I note this here to foreshadow discussions yet to come concerning the unique issues raised in relocation applications.
[1] U & U (2002) 211 CLR 238, 260 (Gummow and Callinan JJ); KB & TC [2005] FamCA 458, [71]-[72]. The Full Court in KB & TC explain, with respect to relocation applications, that a court should weigh competing proposals having regard to the child or children’s best interests (as described in s 60CC(2) and (3), and as relevant) and other relevant factors including the parents’ constitutionally-enshrined freedom of movement. Their Honours state, however, that this assessment should be undertaken ‘bearing in mind that ultimately the decision must be one which is in the best interests of the child’. See also Boxer & Boxer [2021] FedCFamC1F 340, [16], at which his Honour Hogan J confirms that ‘[w]here there is an issue of relocation, a parent’s right to freedom of movement is just one of the factors to be weighed, together with all other relevant factors, in deciding what is in the children’s best interests’.
For now, however, it is beneficial to summarise the inciting events of this litigation and this family’s past and current circumstances.
A brief procedural history
The Mother instituted proceedings on 23 December 2019. At that time she sought, in addition to final orders permitting her relocation, a recovery order and substantive interim orders pending final determination.
The parents had, between separation and the commencement of proceedings, agreed upon and implemented an equal-time arrangement for the children. On 22 December 2019 the children were in the Father’s care. The Father did not, pursuant to the parties’ agreed arrangement, return the children to the Mother on this day. Several people expressly advised him, or otherwise indicated to him, that she may imminently relocate to Darwin.[2] He says that he retained the children out of fear that the Mother intended to relocate ‘without [his] knowledge or consent’.[3] The Father, via his sister Ms C, informed the Mother that he intended to retain the children.[4] Hence the Mother, the next day, sought a recovery order.
[2] Affidavit, Mr Joyner, 30 July 2021, [58]-[64]. This includes the Father’s sister Ms C (having been in contact with Ms D, who had been in contact with the Mother), the children themselves (with W, X and Y allegedly telling the Father of the Mother’s intention), one of Y’s teachers (having heard the same from Y), and the Mother herself (with the text messages extracted at annex -11).
[3] Ibid [58].
[4] Ibid [65], annex -12.
Pursuant to an order of his Honour Judge Newbrun, the Father returned the children to the Mother on 24 December 2019. No recovery order issued. His Honour also ordered the appointment of an ICL at this time.
On 6 February 2020 his Honour made interim consent orders providing for, inter alia, the children to live with the Mother, spend supervised time with the Father each alternate weekend, and communicate daily with the Father over the telephone. The Father’s weekend time was to be supervised by the children’s paternal grandmother and take place between 8:00am Saturday and 6:00pm Sunday. His Honour further ordered on 24 April 2020, again by consent, that the Father’s time would build throughout 2020-2021 and incorporate communication through Skype. This was, however, on the conditions that he continue therapy and complete hair panel testing for alcohol consumption.[5] A further interim consent order dated 3 December 2020 clarified aspects of the interim arrangements — the Father’s time during the school term would continue as previously ordered, he would spend half of all holidays with the children, and each parent would communicate daily with the children when not in their care. The current arrangement, having progressed to its present form in term four 2020, involves a two-week structure in which the Father spends time with the children on Friday until Monday in week one and on Friday 3:30pm until 7:00pm in week two.[6]
[5] The hair panel testing conditions of 24 April 2020 and 3 December 2020 were suspended on 31 March 2021.
[6] The Father’s time in week one currently occurs from 3:30pm on Friday until the commencement of school on Monday although, if Z was not in school on Mondays, she would remain with the Father until 3:30pm on Monday.
His Honour also ordered a Family Report on 24 April 2020. That report, prepared by Family Consultant Mr E (‘Mr E’), was released on 4 February 2021.
The final hearing commenced on 1 November 2021, via Microsoft Teams, and concluded on 3 November 2021.
The children
All of the children attend school and play sport. They are, in the circumstances, progressing well and in good health. Y and Z are, however, more reserved than W and X.[7]
[7] Family Report, Family Consultant Mr E, 29 January 2021, [42].
W, 13, attends F School and is in grade 8. He plays a variety of sports.
Mr E (adopting the Mother’s words) described W as a happy, healthy, and quite adaptable boy.[8] He has difficulties with his speech and has required speech therapy in the past.[9] Mr E noticed a ‘persistent stammer’ that made W hard to understand and, as such, he recommended that W may benefit from re-engaging in speech therapy.[10] Shortly after the Family Report was released W recommenced speech therapy.[11]
[8] Ibid [39].
[9] Affidavit, Ms Joyner, 2 August 2021 [127]-[130].
[10] Family Report, Family Consultant Mr E, 29 January 2021 (n 6), [72], [95].
[11] Affidavit, Ms Joyner, 2 August 2021 (n 8), [129]; Affidavit, Mr, 30 July 2021 (n 2), [141]. The parties appear to disagree as to how frequently the Father takes W to his speech therapy appointments.

In 2021 W experienced some difficulties at school including disruptive behaviour, inattention to schoolwork, and generally getting into trouble.[12] Under cross-examination the Mother agreed that she and the Father have managed to communicate effectively in relation to W’s behaviour and, as a result, adopt a unified approach. The parents’ cooperation in this respect has, as agreed by them, led to a substantial improvement in W’s behaviour at school. His behaviour has now settled considerably — it is a testament to his parents that they were able to work together, in a child-focussed way, to achieve this outcome.
[12] Affidavit, Ms Joyner, 2 August 2021 (n 8), [116]-[122].
The rest of the children attend Suburb B School (‘Suburb B Primary’).
X, 10, plays a variety of sports. She is in grade 6. She is, in Mr E’s account, considered the most outspoken of the children.[13]
[13] Family Report, Family Consultant Mr E, 29 January 2021 (n 6), [40].
W and X attended trauma counselling sessions with Ms G (‘Ms G’) from Victims Services between April and November 2020. The Mother enrolled them in the counselling because they, in her own words:
130. …required assistance to deal with the trauma they had witnessed …
The trauma to which the Mother refers is that of W and X witnessing the Father’s anger. The parties disagree in some respects about the extent of any anger or family violence and whether the children witnessed the same.
W and X’s trauma counselling took place over the telephone. The Mother says (as reported by Mr E) that they told Ms G that the Father ‘had been very angry with them in the past’.[14] The Father agreed in March 2020 that trauma counselling was appropriate for his eldest children. He was not, however, consulted prior to the initial enrolment therein nor was he (in his account) aware that it was ‘ongoing’.[15]
[14] Ibid [41].
[15] Affidavit, Mr Joyner, 30 July 2021 (n 2), [143]-[144]; Family Report, Family Consultant Mr E, 29 January 2021 (n 6), [58], at which Mr E notes that the Father doubted the need for W and X to attend further counselling sessions at the time of the Family Report interviews.
Y, 7, is in grade 3. He plays sports and, in Mr E’s view, is in good emotional and physical health.[16] Mr E does, however, note Y’s diagnosis of attention deficit hyperactivity disorder (‘ADHD’) in 2020.
[16] Family Report, Family Consultant Mr E, 29 January 2021 (n 6), [40].
The parents have managed Y’s ADHD under his paediatrician, Dr H, with a combination of prescription medications. Dr H’s letter dated 1 May 2021 also outlines that Y has two other previous diagnoses — emotional dysregulation disorder and oppositional defiant disorder (‘ODD’).[17] Dr H described Y as being ‘fidgety, impulsive and inattentive’ at school.[18] Further, he recommended that the parties gradually wean Y off his prescribed dose of risperidone. The Mother confirmed during cross-examination that Y’s risperidone dose was reduced as recommended. Y still takes other prescription medication and, from Mr E’s report, it appears that both parties administer Y’s medications as prescribed.[19] Y was referred to a behavioural psychologist but, in May 2020, the psychologist discontinued these appointments.[20]
[17] Exhibit I2.
[18] Ibid.
[19] Family Report, Family Consultant Mr E, 29 January 2021 (n 6), [59]. Neither party alleged that the other is non-compliant with Y’s prescription medications.
[20] Affidavit, Ms Joyner, 2 August 2021 (n 8), [125]; Affidavit, Mr Joyner, 30 July 2021 (n 2), [229]. The Mother and the Father attended Y’s behavioural psychology appointment in April 2020 together. The parties appear to disagree as to whether there were two appointments (in the Mother’s account) or whether there was only one appointment (in the Father’s account).
Y’s behaviour and mental health have, through his own and his parent’s efforts, improved. He is ‘doing well emotionally and educationally’, notwithstanding his hyperactivity at school and difficulty sleeping, and sports is a ‘good outlet’ for his energy.[21] The parties’ efforts to cooperate and effectively communicate with respect to Y’s treatment and care is also demonstrably instrumental to the improvement in Y’s condition. The Mother conceded, in a sense, that Y’s health was better managed in person with the Father. She recognised that relocating would require the parties to find a new paediatrician and behavioural psychologist. Further she recognised that, despite the success of the parties’ face-to-face communication and joint attendance at most appointments, they would have to manage Y’s health remotely instead of in person upon her relocation. Mr E expressed during cross-examination that the effect of the proposed relocation upon each child, and each child’s response to a significant change in their living arrangements, is uncertain. In this respect the Mother, at least in part, concedes that her relocation application may specifically disrupt Y’s current progress with his ADHD and general mental health.
[21] Exhibit I2 (n 16). The Mother stated during cross-examination that Y’s sports was a ‘good outlet’ for him. The Father did not challenge this claim and, as such, I accept it.
Z, 6, is in grade 2. She currently enjoys dance lessons.
Both Y and Z held ‘very little awareness’ of the parties’ separation at their interview with Mr E. They did, however, know of the Mother’s proposed relocation to Darwin and say that it would be ‘good’.[22] Generally they were curious and happy but, due to their young age, Mr E could not discuss their feelings about their circumstances in great depth.
[22] Family Report, Family Consultant Mr E, 29 January 2021 (n 6), [81].
The Father is heavily involved in the children’s sporting activities and, as conceded by the Mother during cross-examination, engages with activities including various sports activities.
Both parties, evidently, profoundly love their children. They have taken considerable steps to adapt to a post-separation life — not only for the children, but for themselves. The core of this case, despite its multiple factual aspects, remains directed to the parties’ genuine disagreement as to the appropriate course of action to serve the children’s best interests with respect to relocation or alternative time.
Facts
The Mother, born in 1989, is 32 years old. She works full-time as a professional at a local employer.
The Father, born in 1982, is 39 years old. He works full-time as an manager at a company in Suburb B. The parties and their children lived in the house for the entirety of the parties’ relationship prior to separation.
The parties met in 2007. The commenced cohabitation in August of that year.
I note here that, when the Father left his then-partner to be with the Mother, an Apprehended Violence Order (‘AVO’) issued against him.[23] He admits the same. The parties disagree, however, as to the nature and intent of the threat which ultimately resulted in the AVO. The Father admits making a threat against his ex-partner’s cat out of frustration but denied any intention to act on it. The Mother, on the other hand, says that he threatened his ex-partner personally — not the cat. She further alleges (and he denies) that he possessed, and evidenced an intention to use, firearms after making the threat. The parties’ disagreement on this point, among several factual disputes within the chronology of their relationship, foreshadows their general dispute as to the degree of risk posed by the Father to the children.
[23] Affidavit, Mr Joyner, 30 July 2021 (n 2), [34]; Affidavit, Ms Joyner, 2 August 2021 (n 8), [94]-[97]; Exhibit M4, 9-10.
The parties were married in 2011 and separated on a final basis on 1 November 2019 — their marriage endured for just over eight years.
Their relationship began to deteriorate in late 2019. The Mother alleges that the Father’s behaviour, escalating in the months prior to separation, included extensive harassment, abusive text messages, pushing her, yelling at her when intoxicated, and demanding sex from her. She further alleges that the children were present on some of the occasions when he yelled at her.[24]
[24] Affidavit, Ms Joyner, 2 August 2021 (n 8), [48]-[56].
The Father, as admitted by him, did send several inappropriate text messages to the Mother. The Mother sets out the following instances prior to separation:
·21-24 October 2019 — the Father sends messages to the Mother asking her for sexual intercourse, with varying degrees of assertiveness, which the Father agrees was ‘excessive’;[25]
·28 October 2019 — the Father sends a number of harassing and, at times, vulgar messages, some of which threatened self-harm or insinuated suicidal intent, and a video evidencing him driving at a dangerous speed, which resulted in the Mother contacting the police, and the Father being scheduled by police under the Mental Health Act and spending approximately 10-13 hours at Suburb J hospital.[26]
[25] Affidavit, Mr Joyner, 30 July 2021 (n 2), [121]; Affidavit, Ms Joyner, 2 August 2021 (n 8), [50]-[53].
[26] Affidavit, Ms Joyner, 2 August 2021 (n 8), [58]. The Father denies that he was admitted to hospital.
The text messages received by the Mother at this time were annexed to her affidavit.[27] They evidence the Father’s deep distress about the breakdown of their marriage. His language was at times vulgar, abusive, and threatening. His intimations of suicide were, without doubt, distressing for the Mother — it is understandable that she called the police.
[27] Ibid annex -2.
Following the incident on 28 October 2019 the Father, upon release from hospital, returned to the house.
The Mother says that the Father’s messages, alongside his other conduct as alleged, contributed to their final separation on 1 November 2019. The other alleged conduct — not admitted by the Father — includes pressuring the Mother for sex, pushing her head into a wall, and yelling at her in the house and in the street.[28] He does, however, agree that he followed her to the bathroom in an attempt to ‘rejuvenate [their] relationship’ and that he behaved somewhat erratically on 26 October 2019 en route to Town K from a party.[29]
[28] Ibid [55]-[58].
[29] Affidavit, Mr Joyner, 30 July 2021 (n 2), [122], [124].
Following separation, but before the Mother moved out of the house, the Father continued to send messages to the Mother. Between 12-15 November 2019 the Father texted the Mother asking for sexual intercourse and the parties discussed, among other things, their separation, living arrangements, and the prospect of the Mother relocating to Darwin.[30] With respect to the messages about sexual intercourse, but not with respect to messages on other topics, the Father acknowledges that he should not have sent them. It was, in his words, ‘not the best way to deal with the separation’.[31]
[30] Affidavit, Ms Joyner, 2 August 2021 (n 8), [64], annex -3.
[31] Affidavit, Mr Joyner, 30 July 2021 (n 2), [128].
The Mother vacated the house on 15 November 2019 and has, since that time, lived in rental accommodation. She agrees that the Father financially assisted her in setting up her new residence.[32]
[32] Affidavit, Ms Joyner, 2 August 2021 (n 8), [66]; Affidavit, Mr Joyner, 30 July 2021 (n 2), [127]. The parties disagree as to the extent of assistance rendered by the Father to the Mother.
Both parties’ mental health suffered post-separation. The Father’s mental health, in particular, deteriorated and his behaviour worsened.[33] The parties continued to text each other and, under cross-examination, the Mother admitted that some of her messages from this time were also unhelpful. This included telling the Father that she could not cope looking after the children and asking him to take them into his care.[34] She claims that she felt overwhelmed at this time due to the Father’s ongoing harassment.
[33] Affidavit, Ms Joyner, 2 August 2021 (n 8), [63].
[34] Ibid [71].
The parties’ post-separation lives were further disrupted on 14 December 2019 at which time the Father, admittedly affected by alcohol,[35] sent a number of text messages and videos to the Mother. The videos depicted the Father breaking wedding memorabilia and poking his arm with a knife. The latter videos show the Father puncturing his skin causing his arm to bleed.[36]
[35] Affidavit, Mr Joyner, 30 July 2021 (n 2), [51].
[36] Affidavit, Ms Joyner, 2 August 2021 (n 8), [81]-[86], annex -5. The Mother describes the Father sending approximately 322 text messages and leaving 48 missed calls over a period of eight hours to which she did not respond out of fear of his behaviour. She further describes that some messages were threatening in nature, including photographs of smashed beer bottles, and in one of these messages the Father said that he was going to turn up and that it is in the children’s best interests to keep them away because they do not need to see him ‘like this’. She further describes the videos of him destroying wedding memorabilia and self-harming, repeating words to the effect of ‘just call me, and I won’t come around’.
He expressed regret for sending these videos and, with respect to the second-mentioned videos, accepts that puncturing his skin and bleeding would have caused the Mother concern.[37] Police were again involved and, on this occasion, the Father was charged with using a carriage service to menace/harass/offend.[38]
[37] Affidavit, Mr Joyner, 30 July 2021 (n 2), [52]-[53].
[38] Ibid [53]; Exhibit M4 (n 22), 4.
A provisional AVO, naming the Mother as the person in need of protection, issued on 17 December 2019 against the Father.
At trial the Father admitted to perpetrating family violence towards the Mother — despite his denials to the contrary in his affidavit.[39] That violence included abusive language and text messages and, crucially, the videos containing self-harm. During cross-examination he admitted that the messages and videos were ‘designed to terrify’ and they would have been ‘horrible’ for the Mother to experience. The Mother was, pursuant to the Father’s intention for her to apprehend fear, ‘extremely scared’ and called the police.[40] His behaviour had, by that time, escalated to a point where the Mother felt the need to obtain an AVO for her protection. As such I find, in the terms of s 4AB(1) of the Act and as conceded by the Father, that his threatening conduct in this respect caused the Mother to be fearful — he perpetrated family violence.[41]
[39] Affidavit, Mr Joyner, 30 July 2021 (n 2), [33]. The Father denied the Mother’s allegations of family violence and, with respect to the specific instances admitted at trial, acknowledged his actions and expressed regret for the same but did not admit to that conduct constituting family violence as defined in the Act.
[40] Affidavit, Ms Joyner, 2 August 2021 (n 8), [85].
[41] Family Law Act 1975 (Cth) s 4AB(1). I note the Mother’s subjective account of her fear and the Father’s subjective (albeit retrospective) account of his intentions and that, while s 4AB(1) does not import a mental element to be proven by the party alleging family violence, the evidence from both sides clearly indicates fear as an intention and result of the Father’s behaviour.
Family violence, as it concerns the risks associated with the parties’ proposals, is addressed further with respect to s 60CC(2)(b) commencing at paragraph 220 of these Reasons.
The Father commenced the first of seven sessions with Ms L (‘Ms L’) on 20 December 2019. He attended these sessions to help him deal with the breakdown of the relationship.[42] He also continued to attend individual counselling sessions with Ms M (‘Ms M’) of N Counselling, with whom the parties had previously attended one joint marriage counselling session, throughout 2020 and 2021. The Father’s sessions with Ms M, which he continued to attend at the time of the final hearing, served to assist him with separation and his approach to parenting.[43] The Father also commenced the EQUIPS Domestic & Family Violence Program (‘the EQUIPS program’) around this time and completed the same on 16 April 2021.[44] He stated during cross-examination that he commenced therapy because he ‘had to conduct himself better’ and that he was ‘disgusted’ by his behaviour. The Father’s mental health, as it concerns the risks associated with the parties’ proposals, is also addressed further with respect to s 60CC(2)(b).
[42] Affidavit, Mr Joyner, 30 July 2021 (n 2), [107].
[43] Ibid [108]; Affidavit, Ms M, 30 July 2021, annex B.
[44] Affidavit, Mr Joyner, 30 July 2021 (n 2), [110], annex -28.
Upon separation the children initially lived in an equal time week-about arrangement between the parties. The procedural history of this case, set out at paragraphs 8-13 of these Reasons, foreshadows that this arrangement was disrupted on 22 November 2019. To briefly revisit the events — the Father received from the Mother a message that she intended to relocate ‘with or without the children’ and, on the basis of this and other information, retained the children. The Father admits that he engaged his sister Ms C to message the Mother notwithstanding the AVO of 17 December 2019. During cross-examination the Father confirmed his deep regret for sending the Mother the distressing videos and text messages and, further, he recognised that retaining the children was a gross breach of trust which caused more distress to the Mother and the children.
Shortly after separation, in February 2020,[45] the Father commenced a relationship with Dr O — hereinafter referred to as ‘Dr O’, noting that she is involved in this litigation personally and not as a treating professional. Dr O works full-time from home for a Queensland-based company and, as of January 2021, has lived with the Father at the house.[46] They now have a child together.
[45] Affidavit, Dr O, 30 July 2021, [6].
[46] Ibid [11]-[13].
As at the date of Ms M’s report the Father had attended on 26 occasions over nearly two years. The last session as at the date of final hearing occurred on 15 July 2021.[47] Some of these sessions have also involved Dr O.
[47] Affidavit, Ms M, 30 July 2021 (n 42), 9, annex B.
The Mother also appears to have been in a post-separation relationship with Mr P (‘Mr P’ or ‘Uncle P’ to the children).[48] The Mother does not mention this relationship in her affidavit. During cross-examination she clarified that Mr P was from Darwin, that she was seeing him in 2020, and that the relationship had since ended. She and Mr P are, in her view, more like friends. The Mother is not currently in a committed relationship.
[48] Affidavit, Mr Joyner, 30 July 2021 (n 2), [11].
A final AVO, again for the Mother’s protection, issued on 26 March 2020 and expired on 25 March 2021. No further AVO has issued.
The Mother commenced psychological therapy with Dr Q (‘Dr Q’) on 23 October 2020. Dr Q’s letter of this date outlines that, like the Father, she also sought counselling to help her cope with the breakdown of the parties’ marriage. The Mother’s clinical presentation also, however, notes her social isolation and the absence of a local support network.[49] She does not maintain scheduled appointment with Dr Q but maintained during cross-examination that she would return to Dr Q or another practitioner in Darwin if she required further treatment.
[49] Exhibit M3, 1.
The facts of this case reveal the veracity behind each party’s position with respect to the issues for determination. The Mother, as conceded by the Father, has been subject to instances of harassment. She may reasonably be worried about the children’s welfare and, alongside some understandable homesickness, may wish to start over in Darwin. The Father, on the other hand, appears concerned as to the effect of the relocation upon the children and seemingly taken steps to improve his conduct.
ISSUES
Introduction to the parties’ proposals
There are five proposals for this Court’s consideration. Given the number and verbosity of proposals in this case it is beneficial to, at the outset, explain the priority order thereof for each party.

The Mother’s primary position is that she be permitted to relocate with the children. She proposes, in the alternative, that the children live with her and spend alternating weekends and half of school holidays with the Father.
The priority of the Father’s proposals runs directly opposite to the Mother’s proposals. His primary position is that the children remain in the Suburb B area and, from mid-2022, live in a week-about arrangement between their parents. His alternative proposal, in the event that the Mother’s relocation application succeeds, is that the children live with the Mother and spend school holiday time with him either in the Northern Territory or New South Wales.
The ICL, as stated above, presented only one proposal — that the children live in an arrangement in which they spend a little less than equal time with the Father.
In setting out the orders sought below, and throughout these Reasons, I will refer to the parties’ ‘primary’ and ‘alternative’ proposals as explained above (where applicable).
I note that the Father’s primary proposal, contained in Exhibit F5, is based on the ICL’s proposal in Exhibit I3. These Reasons extract, at paragraphs 94 and 96, the contents of each showing the differences in bold italicised text.
Finally I note that the Father’s alternative proposal, Exhibit F1, comprises a short minute of proposed orders. It confines itself to the amount and formulation of time, notice periods for exercising time, phone and video communication, and boilerplate orders with respect to the parties’ obligations and the dismissal of outstanding applications. Exhibits F1 is, as a result, silent on several other proposed orders. The Father’s alternative proposal was in other respects confirmed during final submissions.
Issues for determination
The two main issues for determination, as outlined at the beginning of these Reasons, are:
(1)Should the Mother be permitted to relocate, with the children, to Darwin?
(2)If (1) above is answered in the negative, meaning the Mother and the children will not relocate to Darwin, should the children live in an equal-time arrangement between their parents?
The parties’ proposals also reveal, in addition to the central issues above, various other issues:
(3)How frequently should the children communicate (by telephone or video) with each parent while not in their care and, further, how frequently should the same occur in the event that the children travel internationally with one of the parents?
(4)Should one or both of the parents be restrained from consuming, or otherwise being effected by, alcohol, drugs, or illicit substances while the children are in their presence, care, or control?
(5)In what proportion should the parents pay the children’s travel costs to facilitate the Father’s time if the Mother’s relocation application succeeds?
(6)In what arrangement, or by which parent, should the children’s passports ordinarily be held?
With respect to issue 3 above, the Father’s primary proposal seeks that the children have ‘liberal and flexible’ communication with each parent by phone or video on every second night as agreed.[50] The ICL, while seeking the same ‘liberality’ and ‘flexibility’ of communication, did not wish to be heard in relation to specific proposals of the parties in relation to telephone time. Both of the Mother’s proposals, and the Father’s alternative proposal, seek telephone or video communication at specific times and frequencies when the children are in the other parent’s care. However they do not, like the Father’s primary proposal, seek that the children’s communication be ‘liberal’, ‘flexible’, or any other descriptor to this effect. The Father’s primary proposal seeks that virtual communication obligations be reduced to once every seven days while travelling overseas. The Mother’s proposals are both silent on this point.
[50] Exhibit F5, [8]; Exhibit I3, [8].
With respect to issue 4 above, the Mother’s primary proposal seeks that the Father be restrained from consuming and being effected by substances while the children are in his presence, care, or control.[51] Neither of the Father’s proposals include any injunctive orders to this effect nor does the Mother seek the same in her alternative proposal. It is my view that, within the factual matrix of this case, I must determine the appropriateness of such an order notwithstanding that the Mother may have abandoned the same since filing her Amended Initiating Application.
[51] Amended Initiating Application, 14 January 2020, [16].
In relation to issue 5 above, the Mother’s primary proposal seeks that she fund the children’s travel to the Father’s residence. She seeks that, in turn, the Father fund the children’s travel to return to her residence.[52] Neither the Father nor the ICL propose orders about the payment of travel costs. Mr Blackah, on behalf of the Father, raised the issue of travel costs with the Mother during cross-examination. He asked the Mother about the logistics of air travel, including COVID-19 restrictions, the children’s confidence travelling by plane, and the cost of facilitating the Father’s time between Darwin and Suburb B. The Mother said that one-way fares for herself and the children were, maybe, $1,100.00. Mr Blackah put to the Mother that airfares change — she said in response that this was not an issue. There is an underlying tension around this issue but its relevance depends on the success or otherwise of the Mother’s relocation application.
[52] Ibid [12].
Finally, in relation to issue 6, the parties agree much of the orders concerning international travel save for those concerning passports and virtual communication. The latter is addressed within issue 3 above. The children’s passports should, in each parent’s proposals, be ordinarily held by them. I will determine this discrete logistical issue at the conclusion of these Reasons.
Matters agreed, substantially agreed, or peripheral to the issues in dispute
The parties’ proposals in this case are quite detailed and have, over the course of the litigation, markedly evolved. For this reason I have, wherever possible, distilled the orders sought by each party to those which touch and concern the issues for determination. The sub-headings and accompanying discussions below, between paragraphs 70-90 of these Reasons, briefly address matters wholly agreed, substantially agreed, or otherwise unnecessary to extract in full. Having addressed those matters I will, in the parties’ respective proposals, only extract the orders sought in relation to the contested issues.
Equal shared parental responsibility
All parties agree that equal shared parental responsibility should be ordered.[53]
[53] Ibid [20]; Mother’s Case Outline, 2. The Mother’s caveat with respect to equal shared parental responsibility (seeking sole parental responsibility with respect to major long-term decisions in relation to the children’s education) does not appear in her alternative proposal in Exhibit M1, and was conceded by Mr Scarlett on the Mother’s behalf during final submissions. See also Exhibit F5 (n 49), [1]; Further Amended Response, 31 May 2021, annex A, [1]; the Father and the ICL agree that there should be an order for equal shared parental responsibility in any event. I note that the Father’s proposal in the event that the Mother may relocate, Exhibit F1, does not propose the terms of an order with respect to parental responsibility.
The children’s living arrangements
There is also agreement between the Mother and the Father with respect to the children’s living arrangements if the Mother’s relocation application succeeds. They agree that, in those circumstances, the children should live with the Mother in Darwin.[54] This is a practical point of agreement but I note, perhaps pedantically, that it is not agreed between all parties. The ICL did not endorse the Mother’s relocation application and, as such, did not propose orders for that eventuality.
[54] Exhibit F1, [1]; Exhibit M1, [3]. The Father’s proposal does not explicitly include words to this effect but, by necessary implication, he agrees to the children living with the Mother if she is permitted to relocate to Darwin.
I further note that, while he proposed that the children live with the Mother in the event that she and the children remain in New South Wales, the Father ultimately seeks an equal-time arrangement in his primary proposal.[55]
[55] Exhibit F5 (n 49), [2].
The children’s time with the Father if the Mother’s relocation application is successful
The Mother’s primary proposal and the Father’s alternative proposal contain identical terms with respect to the children’s time:
·one week during the Northern Territory April school holidays;
·three weeks during the Northern Territory June/July school holidays;
·two weeks during the Northern Territory September/October school holidays;
·four weeks during the Northern Territory December/January school holidays with such time to involve the children spending Christmas Day with the Father each odd year; and
·at any other time as may be agreed between the Father and Mother.[56]
[56] Amended Initiating Application, 14 January 2020 (n 50), [11]; Exhibit F1 (n 53), [1].
Both parents’ proposals also allow the Father, with 14 days’ notice, to travel to Darwin to spend time with the children. The Father’s alternative proposal does, however, provide for two additional nuances. First, he proposes an additional obligation for the Mother to make the children available for this purpose if he has given notice in compliance with the order.[57] Second, he proposes that his time with the children may occur either in the Northern Territory or in New South Wales and that such time also be subject to 14 days’ notice.[58] This issue is one of logistics and, as it was not agitated at trial, will be addressed if the Mother’s relocation application is successful.
[57] Amended Initiating Application, 14 January 2020 (n 50), [17]; Exhibit F1 (n 53), [1.5].
[58] Exhibit F1 (n 53), [2].
Changeover arrangements if the Mother and the children remain in New South Wales
The parties agree that, if the Mother’s relocation application fails, changeover shall occur at the Suburb B McDonald’s at the commencement and conclusion of the children’s time.[59] The Father and the ICL’s proposed orders also provide for other changeover arrangements to be made in writing.
[59] Exhibit M1 (n 53), [7]; Exhibit F5 (n 49), [5]; Exhibit I3 (n 49), [5].
The Mother and the Father seemingly agree that, in the event the relocation application succeeds, they will organise changeover arrangements once the Father’s time with the children has been notified and confirmed between them.[60]
[60] Amended Initiating Application, 14 January 2020 (n 50), [13]; Exhibit F1 (n 53), [2].
Injunctions against denigration and discussion of litigation
It was not in contention at the trial that, regardless of whether the Mother’s relocation application succeeds, the children should not witness, hear, or otherwise be involved in any denigration of the other parent or any discussion about the litigation.[61] While the precise terms of these proposed injunctive orders differ slightly it was apparent at trial that their essence was agreed.
[61] Amended Initiating Application, 14 January 2020 (n 50), [7], [8]; Exhibit M1 (n 53), [10]; Exhibit F5 (n 49), [9]; Exhibit I3 (n 49), [9]. The Father’s alternative proposal, Exhibit F1, did not contain orders to that effect. All proposed orders are the same except for that contained within the Mother’s primary proposal in which, in summary, she expressly includes an injunction against denigrating through social media in addition to the injunction against doing so in the presence or hearing of the children.
Communication between the parents
The parties agree that, if the Mother’s relocation application fails, the parents shall ordinarily communicate through text messaging and only by telephone in circumstances of urgency or emergency.[62]
[62] Exhibit M1 (n 53), [4]; Exhibit F5 (n 49), [7]; Exhibit I3 (n 49), [7].
The Mother’s primary proposal includes a substantially similar order, at least initially, but further seeks that the Father be restrained from directly contacting her if she tells him she does not wish to speak to him.[63] The Father’s alternative proposal does not include orders in response or, indeed, with respect to the parents’ routine communication at all. At trial the Mother did not push her position on this specific issue. It appears that, since filing her Amended Initiating Application in January 2020, the Mother no longer requires an order in those terms.
[63] Amended Initiating Application, 14 January 2020 (n 50), [5].
Medical emergencies and illnesses
The Mother and the Father substantially agree that if one or more of their children becomes subject to illness or medical emergency while in their care they must contact the other parent. The haste with which they must do so, and the information they must provide, varies between the proposals.[64] The essence of the order appears to be uncontentious — neither the Mother, Father, nor the ICL sought to agitate the issue.
[64] Ibid [19]; Exhibit M1 (n 53), [12]; Exhibit F5 (n 49), [14]; Exhibit I3 (n 49), [14]. The Mother’s primary proposal does not specify the time at which the other parent must be contacted and only requires details of the child’s treating medical practitioner or facility. Her alternative proposal specifies that the notification must be immediate. The Father’s primary proposal (and the ICL’s proposal) specifies that the contact shall be ‘forthwith’, if possible by phone, and inform of the nature of the emergency and details of the treating professional or facility.
Changes of address or contact details
The parties’ proposals differ somewhat in relation to their obligations to notify the other upon changing their address or contact details. The Mother’s primary proposal seeks that, following relocation, she immediately notify him of her new address and notify him within 24 hours of any changes to her address or other contact details.[65] The Father’s primary proposal and the ICL’s proposal, on the other hand, seek that the parties give one another 14 days’ notice of any changes to their addresses or phone numbers.[66]
[65] Amended Initiating Application, 14 January 2020 (n 50), [10].
[66] Exhibit F5 (n 49), [15]; Exhibit I3 (n 49), [15].
The issue was not greatly focussed upon at trial. The appropriate form of such an order, at least to a degree, depends upon the success or otherwise of the Mother’s relocation application.
Parents’ liberty to liaise with the children’s schools and attend school and extracurricular activities
The parties substantially agree that both parents shall be at liberty to attend and liaise with the children’s schools and extracurricular activities.[67] The extent of their liberty to do so is described by the parties’ proposals somewhat differently. In essence the Mother seeks a broad non-descript liberty and the Father and the ICL propose a liberty which is specific and itemised.
[67] Exhibit M1 (n 53), [11]; Exhibit F5 (n 49), [10]-[11].
The Father’s proposal in this respect amends that of the ICL with these Reasons, at paragraph 94, showing the same in bold italicised font. The Father and the ICL further seek that, except by mutual agreement, the parents be restrained from enrolling the children in extracurricular activities that would impact the other parent’s time.
The parties’ minor disagreement on this point will arise if the Mother’s relocation application fails.
Notification of intention to visit Darwin
The Mother and Father agree that, if the Mother’s relocation application succeeds, the Father may travel to Darwin to spend time with the children upon 14 days’ notice to the Mother.[68] The Mother in those circumstances also seeks 14 days’ notice of the Father’s alternative residence in Darwin and any other persons with whom the children may be staying.[69] The relevance of this slight misalignment in the parent’s agreement will, again, become relevant if the Mother’s primary proposal succeeds.
[68] Amended Initiating Application, 14 January 2020 (n 50), [17]; Exhibit F1 (n 53), [1.5].
[69] Amended Initiating Application, 14 January 2020 (n 50), [18].
Mother’s caveat to equal shared parental responsibility order in Amended Initiating Application
The Mother’s primary proposal originally sought that she have sole parental responsibility with respect to the children’s education.[70] Mr Scarlett, on her behalf, conceded this point during final submissions.
[70] Ibid [20].
Overseas travel and the children’s passports
Both parents’ primary proposals expressly include terms with respect to overseas travel. Such issues are important but, in the landscape of these Reasons, they are one of several logistical background concerns.
In essence the parents agree to 60 days’ notice of an intention to travel overseas and that, upon notification, the non-travelling parent cannot unreasonably withhold consent to the travel.[71] Further they agree to facilitate the travel by signing all relevant and necessary documentation, share the children’s passport costs equally, and provide the other with intended itineraries, accommodation details, and proof of return airfares before departure.[72]
[71] Ibid [24]; Further Amended Response, 31 May 2021 (n 52), [18].
[72] Amended Initiating Application, 14 January 2020 (n 50), [21]-[25]; Further Amended Response, 31 May 2021 (n 52), [18], [20].
There are two minor points upon which there is no apparent agreement — first, the travelling parent’s obligations with respect to telephone or video communication during overseas travel and, second, which parent is to ordinarily possess the children’s passports.[73] I will specifically determine these issues, included at issues 3 and 7 above, at the conclusion of these Reasons.
THE MOTHER’S PROPOSALS
[73] Further Amended Response, 31 May 2021 (n 52), [19], [21]; Amended Initiating Application, 14 January 2020 (n 50), [26].
Primary proposal
The essence of the Mother’s primary proposal, omitting agreed or peripheral issues, is that:
…
2.The Father be responsible for the day-to-day decisions about the children’s care and welfare when they are in his care, and that such decisions be the Mother’s responsibility at all other times.
…
9.The Mother and the children may permanently relocate and change residence from the Suburb B area in New South Wales to the geographical area of the Northern Territory known as Darwin.
…
12.To facilitate the Father’s time … the Mother is to arrange at her own expense for the children to travel from her residence to the Father’s residence, and at the conclusion of the visit the Father is to arrange necessary travel arrangements for the children to return to the mother’s residence at his own expense.
…
14-15.The children, when residing with one parent (‘parent A’), have telephone or video-call communication with the other parent (‘parent B’) each evening between 6:30pm and 7:00pm, with parent A to initiate the call to parent B’s mobile telephone, and for parent A to facilitate the call by ensuring the availability of the children and a switched-on, charged mobile phone.
16.The Father not consume (or be in any way effected by) alcohol, drugs or any illicit substances in the presence of the children or which they are in his care or control.
…
Alternative proposal
Exhibit M1 is, of course, substantially different from the Mother’s primary proposal with respect to the Father’s time and any changeover arrangements. The extract below, again, omits matters agreed or peripheral including a final boilerplate order discharging all previous parenting orders.
…
3.The Respondent father is to have responsibility for decisions as to the children’s day to day care welfare and development during periods when they are spending time with him and the mother has that responsibility at all other times.
5. The children are to spend time with the father as follows:
i.During the school term from the conclusion of school on each alternate Friday to the conclusion of school on the Monday commencing on the second Friday of the school term;
ii.Each other Thursday from immediately after school to the commencement of school on the Friday;
iii.On Father's Day from 8:00 am to 6:00 pm; and
iv.During the school holidays for half of the mid-year school holidays and for the school holidays at the conclusion of Term 4 in each year as agreed between the parties in writing, and, failing agreement, on a week about basis, with the father's time commencing at 8:00 am on 26 December 2021 and each alternate week thereafter; and
v.At other times and with variations of the above Orders as agreed between the parties in writing.
6.The father's time in accordance with Order 5(i) is suspended at 8:00 am on Mother's Day in each year.
…
11.Both parents are at liberty to attend upon the children's schools and extracurricular activities and shall be at liberty to liaise with the schools.
…
THE FATHER’S PROPOSALS
Primary proposal

The essence of the Father’s primary proposal is that the children should not relocate to Darwin with the Mother. Exhibit F5 also sought, in addition to the amended terms of Exhibit I3, orders from the Further Amended Response and a s 106A order.[74]
[74] Only order [17] of the Further Amended Response is extracted below as [18]-[21], concerning overseas travel, have already been addressed in these Reasons. It is also unnecessary to extract in full the terms of the s 106A order sought which, in summary, allows a Registrar of this Court to execute deeds, documents or instruments to give effect to the orders if a party has failed to do the same and the Registrar has been provided with evidence thereof.
Exhibit F5 is relevantly extracted below and, where changes have been made to Exhibit I3, these are shown in bold italicised text.
…
3.        That the children shall spend time with the father as follows:
a.During the school term and until the conclusion of Term Two in 2022 as follows:
i.from the conclusion of school on Thursday to the conclusion of school Monday (or 3:30pm if it is a non-school or public holiday) each alternate week, with such time to commencing on the first Thursday of each school term;[75]
[75] Exhibit F5 (n 49), [3(a)(i)], [3(b)(i)]. I note that where the extract above says ‘first Thursday of each school term’ the document itself refers to the ‘first Friday of each school term’. I have amended the text of the document to reflect the reality of the Father’s proposal since, in my view, and in the context of the orders as proposed, it is impossible for him to have amended the first-mentioned instance of the word ‘Friday’ without also wishing to amend the second-mentioned instance thereof.
b.During the school term commencing on day one of Term Three in 2022 as follows:
i.from the conclusion of school on Thursday to the conclusion of school Tuesday (or 3:30pm if it is a non-school day or public holiday) each alternate week, with such time to commencing on the first Thursday of each school term;
c.        During the school holidays:
i.at the conclusion of Term One, Term Two and Term Three, for one half one the school holidays, being the first half of the holidays in odd years and the second half of the holidays in even numbered years;
ii.at the conclusion of Term Four, for one half of the holidays being, the first half of the holidays in odd numbered years and the second half of the holidays in even numbered years.
d.        That the notwithstanding any other Order:
i.        the father shall have care of the children:
1.from 5:00pm on Christmas Eve until 5:00pm Christmas Day in even numbered years;
2.On Fathers' Day from 8:00 am to 6:00 pm.
3.From 3.30pm on Holy Thursday until 3.30pm on Easter Saturday in odd numbered years.
4.From 3:30pm on Easter Saturday until 3.30pm on Easter Monday in even numbered years
ii.        the mother shall have care of the children:
1.from 5:00pm on Christmas Eve until 5:00pm on Christmas Day in odd numbered years;
2.On Mothers' Day from 8:00 am to 6:00 pm.
3.from 3.30pm Easter Saturday until 3.30pm on Easter Monday in odd numbered years.
4.from 3.30pm on Holy Thursday until 3.30pm on Easter Saturday in even numbered years.
e.At other times and with variations of the above Orders as agreed between the parents in writing including text message.
4.That for the purpose of these Orders, the school term and school holidays are deemed to commence at the conclusion of the last day of school and conclude at the commencement of the first day of the next school term on which the children are to attend school, and changeovers shall occur at 6.00pm on the day in the middle of the school holiday period.
…
6.That for the purpose of changeover at the children's school, only the parent who is collecting the children from, or delivering the children to, the school shall attend the school and the other parent is restrained from being in attendance at that time.
…
8.That the children shall have liberal and flexible communication on every second night with each parent via telephone or Skype as agreed.
…
10.That both parents are at liberty to liaise directly with the children's school and sporting bodies to receive school notices,, information, newsletters, school reports, school photographs and any other necessary information about the children's progress.
11.That both parents are at liberty to attend upon the children’s schools for events at which parents are ordinarily invited to attend, for parent teacher interviews as they may arrange, and to attend non-urgent medical appointments, which as far as possible, shall be scheduled at times convenient to both parents.
12.That each parent shall ensure that the children attend their extra-curricular activities whilst in their respective care, and the other parent shall be permitted to attend such extra-curricular activity whilst the children are in the care of the other parent, including annual awards and end of season events at which both parents shall be entitled to attend.
13.That the parents are restrained from further enrolling the children in extra curricular activities that would impact on the other parent's time save and except by agreement.
…
[+ paragraphs 17-21 of the Further Amended Response]
17.That both parties are at liberty to attend any school based event, sporting event and extracurricular activity that the children may undertake regardless of whose care the children are in at the time that the event or activity takes place.
[+ s 106A order]
Alternative proposal
The Father’s position in the event that the children are permitted to relocate to Darwin with the Mother is contained in Exhibit F1. As mentioned above this proposal is short and, with respect to the issues in contention, only contains a proposal about telephone and video communication.
…
3.That the children shall have telephone or video chat communication with the Respondent father when in the Applicant mother's care three (3) days a week as agreed between 6.30pm and 7pm, according to the location of where the children are at the time of the telephone or video chat communication, with the Respondent father to initiate the call to the mother's mobile telephone and the mother is to facilitate the call by ensuring that the children are available and that her mobile phone is switched on and charged.
4.That the children shall have telephone or video chat communication with the Applicant mother when in the Respondent father's care three (3) days a week as agreed between 6.30pm and 7pm, according to the location of where the children are at the time of the telephone or video chat communication, with the Applicant mother to initiate the call to the father's mobile telephone and the father is to facilitate the call by ensuring that the children are available and that his mobile phone is switched on and charged.
…
THE ICL’S PROPOSAL
Exhibit I3 contains the ICL’s single proposal which was, as explained above, edited by the Father to create his primary proposal contained in Exhibit F5. The contents of Exhibit I3 is extracted below omitting matters agreed or peripheral and, again for convenience, showing where it differs from Exhibit F5 in bold italicised text.
…
3.        That the children shall spend time with the father as follows:
a.During the school term and until the conclusion of Term Two in 2022 as follows:
i.from the conclusion of school on Friday to the conclusion of school Monday (or 3:30pm if it is a non-school or public holiday) each alternate week, with such time to commencing on the second Friday of each school term;
ii.from the conclusion of school on Thursday to the commencement of school on Friday each alternate week, commencing on the first Thursday of each school term.
b.During the school term commencing on day one of Term Three in 2022 as follows:
i.from the conclusion of school on Thursday to the conclusion of school Monday (or 3:30pm if it is a non-school day or public holiday) each alternate week, with such time to commencing on the second Friday of each school term;
ii.from the conclusion of school on Thursday to the commencement of school on Friday each alternate week, commencing on the first Thursday of each school term.
d.        That the notwithstanding any other Order:
i.        the father shall have care of the children:
1.from 2:00pm on Christmas Eve until 2:00pm on Christmas Day in even numbered years;
2.On Fathers’ Day from 8:00 am to 6:00 pm.
3.from 3.30pm on Holy Thursday until 3.30pm on Easter Saturday in odd numbered years.
4.From 3:30pm on Easter Saturday until 3:00pm on Easter Monday in even numbered years
ii.        the mother shall have care of the children:
1.from 2:00pm on Christmas Eve until 2:00pm on Christmas Day in odd numbered years;
2.On Mothers’ Day from 8:00 am to 6:00 pm.
3.from 3.30pm Easter Saturday until 3.30pm on Easter Monday in odd numbered years.
4.from 3.30pm on Holy Thursday until 3.30pm on Easter Saturday in even numbered years.
4.That for the purpose of these Orders, the school term and school holidays are deemed to commence at the conclusion of the last day of school and changeovers shall occur at 6.00pm on the day in the middle of the school holiday period.
…
8.That the children shall have liberal and flexible communication with each parent via telephone or Skype as agreed.
…
11.That both parents are at liberty to attend upon the children’s schools for events at which parents are ordinarily invited to attend, for parent teacher interviews as they may arrange.
12.That each parent shall ensure that the children attend their extra-curricular activities whilst in their respective care, and the other parent shall not attend such extra-curricular activity whilst the children are in the care of the other parent, save and except for annual awards or end of season events at which both parents shall be entitled to attend.
…
DOCUMENTS RELIED UPON
The Mother relied upon the following documents:
·Amended Initiating Application filed 14 January 2020;
·Affidavit of Ms Joyner filed 2 August 2021;
·Affidavit of Ms R filed 30 July 2021;
·Affidavit of Ms S filed 30 July 2021;
·Affidavit of Ms T filed 30 July 2021;
·Notice of Risk filed 23 December 2019;
·Exhibit M1 — Mother’s minute of proposed orders in the event that she is not permitted to relocate to Darwin with the children;
·Exhibit M2 —Ms G’s psychological notes, dated between April and November 2020, from victim trauma counselling sessions with W and X;[76]
·Exhibit M3 — Dr Q’s psychological notes, dated between October 2020 and June 2021, with respect to the Mother; and
·Exhibit M4 — New South Wales Police reports, including records from September and October 2007, April 2008, December 2019, and February 2020.
[76] Extracts of this document throughout these Reasons shows the text exactly as it appeared in the document itself. This includes instances in which parts of certain words were not visible in the copy provided in court.
The Father relied upon the following documents:
·Further Amended Response filed 31 May 2021;
·Affidavit of Mr Joyner filed 30 July 2021;
·Affidavit of Mr U filed 30 July 2021;
·Affidavit of Ms M filed 30 July 2021;
·Affidavit of Mr V filed 30 July 2021;
·Affidavit of Dr O filed 30 July 2021;
·Exhibit F1 — Father’s minute of proposed orders in the event that the Mother is permitted to relocate to Darwin with the children;
·Exhibit F2 — School reports, internal correspondence, and caution notices produced by F School, dated between 18 May 2021 and 8 June 2021;
·Exhibit F3 — one page of Ms M’s psychological notes, dated 1 November 2019, with respect to the Mother and the Father;
·Exhibit F4 — Extracts from the AA Early Learning sign-in sheets, including records from 1 February 2018 to 4 July 2018, 25 October 2018 to 30 November 2018, and 21 May 2019 to 19 June 2019; and
·Exhibit F5 — Father’s minute of proposed orders in the event that the Mother is not permitted to relocate to Darwin with the children, as amended from Exhibit I3, and an email from the Father’s solicitor to the Court dated 3 November 2021.
The ICL relied upon the following documents:
·Family Report, prepared by Family Consultant Mr E, dated 29 January 2021;
·Exhibit I1 — single page headed ‘New South Wales Government Education’, dated 20 May 2021, extracting case note number …with respect to W;
·Exhibit I2 — single page headed ‘BB Paediatrics’, dated 1 May 2021, extracting correspondence from Dr H to the Suburb B Healthcare Centre with respect to Y; and
·Exhibit I3 — the ICL’s minute of proposed orders.
EVIDENCE
The Mother
The Mother was cross examined by Mr Blackah, Counsel for the Father, and Mr Schroder, Counsel for the ICL. While she did occasionally volunteer information she generally answered questions calmly and responsively and, at times, against interest.
The Mother has, and continues to make efforts towards, a cooperative relationship with the Father notwithstanding her allegations of family violence. She believes that the children benefit from their relationships with the Father and, in my view, she genuinely holds this position. Further she conceded that the children are happy living in New South Wales.
It appears that the Mother harbours mistrust of the Father. She remains impacted by his behaviour at the time of separation and, seemingly, that experience forms part of her desire to return to the Northern Territory.
With respect to the Mother’s presentation as a witness she appeared to be genuine and truthful. She earnestly believes that relocating to Darwin will be a fresh start and allow her to follow her dream of becoming a public servant.
I was, however, left with the impression that the Mother had not fully considered the practicalities of her primary proposal. In particular I refer to the impact upon the children, who are well settled in their home environment, of the proposed relocation.
Ms S
Ms S is the children’s maternal grandmother and resides in Darwin. She was cross-examined by Mr Blackah.
Notwithstanding the distance, Ms S said, she and the children have a close relationship and communicate every day. She presented as a supporter of the Mother and the children and, in the event of relocation, appears able to help the Mother.
Ms S’ presentation under cross-examination does, however, leave me concerned that she has a negative attitude towards the Father. Such an attitude would affect her ability to promote the children’s relationships with him. For example she was asked whether she could positively comment on, or acknowledge the benefit to the children of, the Father’s relationships with them. Ms S gave an indirect answer by saying that ‘I assume that the children enjoy their time with him’. She was reluctant to say that the children benefitted from their relationships with the Father.
Ms S’ attitude towards the Father has some relevance to the outcome of these proceedings since, if permitted to relocate, the Mother and the children will spend significant time with Ms S. This is particularly true if they reside with her for a period of time.
Ms R
Ms R — the self-described ‘best friend’ of the Mother — works as a public servant in Darwin. She was not cross-examined.
The affidavit evidence from Ms R corroborates the Mother’s evidence in several respects. Ms R says she was with the Mother when, on 14 December 2019, the Father sent a number of abusive text messages.[77] She says that at this time she, the Mother, Ms S, and the children were present when the Father arrived at the property wanting to talk to the Mother. In her account the Father raised his voice, upset the children, and was met by a yelled plea from Y — ‘please stop fighting daddy please leave’.[78]
[77] Affidavit, Ms R, 30 July 2021, [6]-[7].
[78] Ibid [8].
Ms R also states that the Father continued to contact the Mother on 14 December 2019. She and Ms S monitored the Mother’s phone over the following five hours during which time the Father sent text messages, voice messages, photographs and videos.[79] Ms R says she viewed the videos — namely, those depicting the wedding memorabilia and self-harm — and witnessed how upset the Mother became after viewing the same.[80]
[79] Ibid [9].
[80] Ibid [11].
Ms R further witnessed W, on 17 December 2019, become distressed about having to spend time with the Father. She says that he was reluctant to do so and that the Mother was visibly distressed to hand the children over.[81]
[81] Ibid [13]-[17].
Consistently with the Mother’s evidence Ms R states that the Mother has no family support in New South Wales. She says that throughout their friendship, and in particular during this litigation, she is an important support figure for the Mother.
Ms R also relevantly states that her daughter and son have ‘great relationships’ with W and the younger children (particularly Z) respectively.[82] She expressed a belief that, if permitted to relocate, the Mother and the children will be ‘flooded’ with support making the transition easy. She further states her confidence that, despite the distance, the children’s relationship with the Father will not deteriorate if the Mother’s relocation application succeeds.[83]
[82] Ibid [23]-[24].
[83] Ibid [25].
The evidence of Ms R was unchallenged by the Father or the ICL. I am not, however, bound to accept evidence purely because it is not challenged. The Full Court in Scott & Scott [1994] FamCA 12 explains, with some qualification and exploration of authorities, that there exists no rule of law in Australia that a primary judge must accept unchallenged evidence.[84]
[84] Scott & Scott [1994] FamCA 12, [53]-[54]. Their Honours qualify that if an appellate court determines that such evidence was in the circumstances of the case wrongly, unreasonably or perversely rejected it may overturn the primary decision on an error of fact. Their Honours explain the basis of this principle in the rule in Browne v Dunn, specifically the aspect therein relating to the weight to be afforded to evidence unchallenged in cross-examination. Their Honours further explain that the existence or otherwise of an error of fact depends on the circumstances of the case and whether the primary Judge gave reasons for rejecting the evidence in question (e.g. whether the evidence is inherently credible or incredible).
Ms R’s evidence has some relevance to the issues to be determined and, in particular, has some weight as to the impact of the Father’s poor behaviour towards the Mother at the time of separation.
Ms T
Ms T is the Mother’s step-mother. She lives with the children’s maternal grandfather in the Northern Territory and, in her account, visited the Mother and the Father in New South Wales every year. Ms T was not required for cross-examination.
Ms T’s lengthy affidavit paints a somewhat negative picture of the Father. Her claims against him include that he dedicated himself to his work over his family, drank too much, yelled, was often angry and the children, and increasingly controlling of the Mother.
In effect, Ms T concludes that the Father is incapable of simultaneously caring for the children and maintaining his work and that, if the Mother relocates, her many family members will assist with the children.[85]
[85] Affidavit, Ms T, 30 July 2021, [44]-[45].
Ms T’s evidence, like that of Ms R, was unchallenged. It does not follow, by virtue of that fact alone, that such evidence should be wholly accepted. I refer again to Scott & Scott as cited and discussed at paragraph 115 above.

The operation of the presumption of equal shared parental responsibility is significant. The line of authority from the Full Court suggests that, if the presumption remains in place, equal shared parental responsibility must be ordered.[171] Section 61DA makes clear, however, that this outcome may not always be appropriate.
[171] Koyroyshs & Koyroyshs [2020] FamCA 626, [84] (Harper J), at which his Honour cites Marvel & Marvel (No 2) [2009] FamCAFC 101 and states that ‘if the presumption applies, an order for equal shared parental responsibility will generally be made, thus displacing s 61C and triggering consideration of the provisions of s 65DAA’, and further stated his own view that trial judges should order equal shared parental responsibility when the presumption applies.
Sections 61DA(2) and 61DA(4) provide for two ways by which equal shared parental responsibility may not be ordered, as are relevant to the case at hand.
Section 61DA(2) provides that, from the outset, the presumption will not apply if there are reasonable grounds to believe that a parent (or someone who resides with a parent) has engaged in child abuse or family violence. The standard set out in s 61DA(2) is important. It does not require proof of the fact that, on the balance of probabilities, child abuse or family violence took place. It requires only that the evidence provides reasonable grounds to believe that a person has engaged in child abuse or family violence. The wording of subsection (2) indicates a legislative intention to, in limited circumstances, prevent the application of the presumption notwithstanding that there may be no evidentiary finding of child abuse or family violence. Any actual finding of child abuse or family violence itself activates s 61DA(2), at which point there becomes no need to explore whether or not the presumption applies. Once s 61DA(2) is enlivened, whether through reasonable grounds of belief or a factual finding on the balance of probabilities, the presumption is excluded as a matter of law. In those circumstances there is no discretionary power by which the presumption may be revived.[172]
[172] Ibid [85].
The enquiry as to an order for parental responsibility always, with the exception of s 61DA(2) and 61DA(3) (noting that subsection (3) is irrelevant in this case), commences with the presumption that equal shared parental responsibility is in the child or children’s best interests. This is not to say that the presumption, once in place, is set in stone.
Section 61DA(4) accounts for instances in which, although the presumption applies from the outset of the enquiry, an order for equal shared parental responsibility may nevertheless not serve the child or children’s best interests. If s 61DA(2) applies, s 61DA(4) never comes into operation.[173] Subsection (4) provides for the presumption to be rebutted — namely, for it to be ousted from consideration, despite the fact that it was initially applicable. To rebut the presumption a judge must determine, on the balance of probabilities, that it would not be in the child or children’s best interests to order equal shared parental responsibility. The grounds upon which the presumption may be rebutted are significantly broader than those given in s 61DA(2). A court must, therefore, reach ‘a level of satisfaction on the evidence … that it would not be in the interests of the child for [the presumption] to apply’, and must give ‘explicit and cogent reasons why the presumption should be rebutted’.[174]
[173] Boyce & Boyce [2015] FamCAFC 60, [21]-[22] (Bryant CJ, Ryan and Kent JJ).
[174] Dundas & Blake [2013] FamCAFC 133, [57], [61] (Bryant CJ, May and Ainslie-Wallace JJ). See also Withers & Russell (n 102), [426]-[428], in which the presumption was rebutted on the basis of the parties’ ongoing disagreements about major long-term issues, to the extent that an order for equal shared parental responsibility would not be in the best interests of the children subject to those proceedings.
Applicability of the presumption of equal shared parental responsibility in this case
The presumption of equal shared parental responsibility has, in this case, been ousted before it ever came into play. This is because my findings of family violence — the instance found at paragraph 236 of these Reasons and the instance admitted by the Father and found at paragraph 46 — enliven s 61DA(2)(b) of the Act.
This does not, however, mean that I no longer have jurisdiction to make an order for equal shared parental responsibility as agreed by all parties. Warnick J in Robertson & Sento [2009] FamCAFC 49, though in dissent, plainly sets out the operation of s 61DA(2) by reference to the words therein:
41.[s 61DA(2)] does not say that, if there are reasonable grounds to believe one of the nominated circumstances exists, equal shared parental responsibility, qualified or unqualified, shall not be ordered, but merely that the presumption does not apply (at all).[175]
[175] Robertson & Sento [2009] FamCAFC 49, [41]. His Honour dissented on limited grounds; I have extracted his reasoning because his assessment is consistent with the wording of s 61DA(2), and with the concept of the presumption as a legal mechanism which does not prevent an order being made in pursuance of s 60CA.
This Court remains bound under s 60CA to consider the children’s best interests as a paramount consideration in making any parenting order. If the evidence suggests that it is in the children’s best interests for there to be an order for equal shared parental responsibility then I may make that determination and craft an order accordingly.
Discussion of the parents’ abilities to consult and make a genuine effort to come to joint decisions about major long-term issues
The Mother, in the past, has not genuinely consulted the Father about all matters concerning the children’s major long term decisions since separation. It is noted here that, in her Amended Initiating Application filed 14 January 2020, she sought to carve out sole parental responsibility for decisions with respect to the children’s education. She since moderated her position and agreed to unqualified equal shared parental responsibility at trial.
Under cross-examination the Mother was taken to Ms G’s notes and interviews and she gave evidence about W and X’s Victims Services trauma counselling between April and November 2020. The Mother intimated that the children required the counselling after becoming aware of the Father’s apparent suicidal intentions and tendency for self-harm.
Importantly the Mother agreed that she did not inform the Father that the children were involved in the trauma counselling sessions. She said, however, that her communication with the Father was not strong at the time she enrolled W and X. As mentioned throughout these Reasons the parents’ communication has improved markedly since this time. The Mother says that, in particular, this improvement has taken place over the last year.
The Mother conceded that the Father had been involved in parent-teacher interviews and with the school generally and that, if she relocated, this would become harder to achieve. Further she agreed that W, in light of his recent behavioural difficulties at school, would have to adjust to a new school if he moved to Darwin. In those circumstances the Mother agreed that the Father would not be as ‘hands-on’ if W had issues adjusting to his new school.
Determination with respect to order for equal shared parental responsibility
I find that, notwithstanding the presumption of equal shared parental responsibility being ousted, it is in the children’s best interests for there to be an order for equal shared parental responsibility. This is my determination irrespective of where the children ultimately reside.
My determination is based on the high level of involvement of the Father in the children's lives, the strong level of communication between the parents, and the need for the parents to make joint decisions in relation to medical and educational issues in particular.
EQUAL OR ‘SIGNIFICANT AND SUBSTANTIAL’ TIME?
I will make an order that the parties have equal shared parental responsibility for the children. I must, therefore, consider whether I should order an equal time arrangement, with reference to two considerations. First is, predictably, the children’s best interests, and secondly, I must assess whether the children spending equal time with both parents is reasonably practicable. If both considerations are assessed in the affirmative I must then consider making an order for equal time.[176]
[176] Family Law Act 1975 (Cth) s 60DAA(1). See also the meaning of ‘reasonable practicality’ (sub-s (5)).
If I am to make an order for equal shared parental responsibility, but do not order equal time, I must consider whether there should be an order for substantial and significant time instead. I will undertake this assessment, again, with reference to the children’s best interests and whether the children spending substantial and significant time with each of their parents is reasonably practicable.[177]
Equal time
[177] Ibid s 65DAA(2). See also what constitutes ‘substantial and significant time’ (sub-ss (3), (4)).
If the Mother’s relocation application succeeds
If the children relocate to Darwin, with the Father remaining in Suburb B, an equal time arrangement is neither practicable nor in the children’s best interests.
If the Mother’s relocation application fails
Neither parent seeks equal time if the Mother and the children remain in New South Wales.
Mr E also did not believe an equal time arrangement would benefit the children in those circumstances. His evidence was that it is important for the children to know that they live with their Mother — there needs to be no confusion as to that fact. For this reason Mr E also did not support an arrangement in which the children would spend six nights per fortnight with the Father. He believed that the children would, in effect, experience that arrangement as splitting their time between their parents instead of living with the Mother.
Mr E was convinced that the children want to live primarily with the Mother and those views should be respected.
The parties do hold a level of distrust towards one another, particularly the Mother towards the Father, emanating from the family violence that she experienced. An equal time arrangement is not an optimal one for the children in those circumstances. It is also, for those reasons, not reasonably practicable in that it may agitate this distrust and cause the children to become unstable as a result of the arrangement. I will not order equal time.
Substantial and significant time
If the Mother’s relocation application succeeds
If the children live in Darwin and the Father lives in Suburb B a substantial and significant time arrangement, as defined, is not reasonably practicable nor is it in the children’s best interests. The two localities are thousands of kilometres apart. By reasons of time, cost, and sense I cannot, in those circumstances, order an arrangement of the frequency and variety set out in s 65DAA(3).
If the Mother’s relocation application fails
All parties propose a substantial and significant time arrangement in the event that the Mother and the children remain in New South Wales.
The Mother’s alternative proposal seeks a 4/10 arrangement in which the Father spends time with the children each alternate Friday until the following Monday and one night in the off-week.
The Father’s primary proposal seeks a 5/9 arrangement in which the children spend time with him for five nights in one week without any time in the off-week. He is content for the 5/9 arrangement to commence in mid-2022 and for a 4/10 arrangement to be in place until that time.
The ICL also proposes a 5/9 arrangement, with four nights in one week and one night in the off-week, again for it to commence in mid-2022. This is in line with Mr E’s recommendation.
The parties’ proposals meet the definition of significant and substantial time because all of them provide the children’s time with the Father both on weekends and during the week. There are also accommodations made for special days and holiday time. Importantly, this allows the children to experience time with their Father outside of weekends and holidays. It allows the Father to engage with the children’s school and the day-to-day chores of school term time.
It is in the children’s best interests for a substantial and significant time arrangement to be put in place if they remain living in Suburb B. That arrangement also must be reasonably practicable.
The reasonable practicability of a substantial and significant time arrangement are, to some extent, still impacted by the Mother’s distrust of the Father. This issue is less impactful here, as opposed to its impact upon an equal time arrangement, since the children would still remain primarily in the Mother’s care. An equal time arrangement requires high-level communication and, while a substantial and significant time arrangement also requires this, it does not have to exist to the same extent if the Mother remains the children’s primary carer.
That said, and as found, the parties communicate very well about parenting matters and their interactions with each other are now cordial. In addition to their functional communication they live close to one another and would, if the Mother remained, be able to continue living at their current residences and using the same changeover point.
I am satisfied that, if the Mother’s relocation application fails, a substantial and significant time arrangement with the Father is in the children’s best interests and reasonable practicable.
I am further satisfied that such an arrangement should adopt the structure suggested by Mr E and the ICL — that is, an arrangement building from 4/10 to 5/9 over a six-month period. The children’s time with the Father should occur in each week because they have become accustomed to such an arrangement. Further, and despite Mr Blackah’s submission with respect to parental conflict at changeover, there is not a need to mitigate the risk of conflict at changeover by adopting strict block time. There is no evidence of any conflict or difficulty at changeover.
CONCLUSION
I find that it is in the children’s best interests to remain in the Suburb B area and spend substantial and significant time with the Father. The Mother’s relocation application, therefore, fails.
I make this finding having considered and weighed the parties’ competing proposals with regard to s 60CC(2), relevant s 60CC(3) factors, s 65DAA and s 60CA.
There are some advantages to the Mother’s relocation application. The Mother has a long-held desire to work in the public service in the Northern Territory and desires to be close to her Darwin-based family and friends. Remaining in New South Wales totally or at least partially prevents these desires from being realised.
That said her family have visited, and will continue to visit, Suburb B. Furthermore there are holiday periods which will allow the Mother to visit her family and friends in Darwin. The Mother and the children will maintain enduring relationships with friends and family in Darwin and will not have to risk the financial instability maintaining the Father’s relationship with the children halfway across Australia. If the relocation occurs the Mother will be subject to the burden of expensive long flights for the children to and from New South Wales. Without certain employment that adds another complexity to her proposition.
The Mother has, without doubt, suffered significantly as a result of the family violence that she experienced. It is understandable that moving back to the Northern Territory would provide her some respite from that experience, the support and familiarity of home, and the chance to effectively start again. The difficulty is that, if she still harbours trauma from family violence, moving to the Northern Territory may not overcome the impact of family violence. The Mother needs ongoing therapy and, as Mr E opines, her trauma will necessarily not be resolved by the move alone.
In addition to her family and friends in Darwin the Mother also has friends and support in New South Wales. She has been leaning on those friends recently for support with the children. The Father's increased time with the children, pursuant to a substantial care arrangement, will also provide the Mother with support in this respect. With this support she can keep in contact with her friends and family, undertake further work, or spend time with those visiting from the Northern Territory.
The advantages to the children if they remain in New South Wales are significant.
Firstly, in remaining in New South Wales, they will remain in the only environment which they have ever called home. In doing so they will maintain their ongoing connection and time with their Father and, in time, build to spending more time with him. This will allow them to maintain a close connection with someone that has always been involved in their lives.
They will also be able to maintain their connections with their schools, doctors, therapists and, for Y specifically, his paediatrician. Given some of the children’s special needs this is vitally important.
Remaining in New South Wales will provide certainty and stability for the children. Given the disruptions the children (and W in particular) have already experienced it is important to now allow the children to settle in the home they know.
The ongoing presence of the Father in their day-to-day life will also benefit the children. The Father is in a settled and stable relationship and the children will be able to enjoy and further build their relationships with Dr O.
In essence the Mother’s primary proposal is not sufficiently advantageous to outstrip its own disadvantages and, ultimately, it cannot compete with the Father’s primary proposal, the ICL’s proposal, or her own alternative proposal with respect to the children’s best interests. The children view New South Wales as their home, have had the Father actively involved in their lives, and have experienced disruptions which have sometimes been exacerbated by specific needs and circumstances. The Mother’s proposal for relocation is not particularly detailed or thought-through and, in particular, she made no significant inquiries as to the children’s school, possible housing, doctors, therapists or other relevant resources or professionals. She just wishes to move back to the Northern Territory but, in my view, she has to some extent felt hamstrung in making too many plans because of the uncertainty of this litigation. Nevertheless she has had ample opportunity to provide a well thought-out plan and corroborative information to confirm the same, particularly in relation to employment, medical and educational issues. She did not do so. This did not assist her case since, as a result, the evidence remained unclear.
Having considered the abovementioned reasons, alongside all the other considerations involved in the holistic assessment of determining parenting orders, I find that the advantages of the children remaining in New South Wales and their current environment far outweigh the risks of uncertainties and unknowns inherent in the Mother’s proposed relocation to Darwin. It is, therefore, not in the children’s best interests for them to live with the Mother in Darwin.
CONCLUSION IN RELATION TO OTHER OUTSTANDING ISSUES
Having determined the Mother’s relocation application the following issues, as initially set out at paragraphs 63-64 of these Reasons, remain:
(2)Should the children live in an equal-time arrangement, or some other arrangement of time, between their parents?
(3)How frequently should the children communicate (by telephone or video) with each parent while not in their care and, further, how frequently should the same occur in the event that the children travel internationally with one of the parents?
(6)In what arrangement, or by which parent, should the children’s passports ordinarily be held?

I note that issue 5 is not addressed at this point because the Mother’s relocation application has failed. Issue 5 has, in any event, been generally addressed at paragraph 67 of these Reasons. Issue 4, too, is omitted, having determined the same at paragraph 250 above.
I further note that, with respect to the minor issue of liberty to attend the children’s schools and activities (introduced at paragraphs 83-85), I intend to adopt terms from the ICL’s proposal and the Father’s primary proposal.[178] The children will remain in New South Wales and the parents have demonstrated their cooperative co-parenting style. It is, therefore, appropriate that they both be permitted to liaise, attend, and otherwise be involved in the children’s schooling and other activities without exclusions to the other parent.
Substantial and significant time arrangement
[178] Exhibit I3 (n 49), [10], [11], [13]; Exhibit F5 (n 49), [12].
Time during school terms
Further to my determination with respect to the Mother’s relocation application I find that, for the reasons contained at paragraphs 201-348 above, it is in the children’s best interests to spend significant and substantial time with the Father, commencing with a 4/10 arrangement and building to a 5/9 arrangement commencing at the start of term one in 2023. The Father’s primary proposal and the ICL’s proposal both include a six-month transitionary phase between the 4/10 and 5/9 arrangement. The children currently spend three nights per fortnight with the Father. It is, therefore, in the children’s best interests to order a six-month adjustment period of 4/10 time before progressing to 5/9 time.
Holiday time
Both parents agree that the children should spend equal time with each of their parents during school holidays. The Mother, however, seeks a ‘week on’ and ‘week off’ arrangement for these holidays and even during the Christmas/New Year holidays.
It is, in my view, important for the children to spend extended time with their parents in the summer school holidays. I will therefore adopt the ICL’s proposal in this respect.
Christmas Day and Easter time
The Mother’s alternative proposal is silent as to Christmas and Easter time arrangements.
It is important for the children to spend time with both of their parents on these special days and I will make orders accordingly.
Telephone and video communication
The Mother proposes that virtual communication should occur every day. The Father, having submitted that her proposal is excessive, proposes that the same occur every second day.
I intend to adopt the Father’s proposal in this respect. It is important that virtual communication does not unnecessarily impose on the in-person time the children spend with their parents and, given the parents’ cooperation to date, virtual communication every second day is appropriate.
With respect to international travel I also consider it appropriate to adopt the Father’s proposal. It is important to make pragmatic orders which can be attained and, in the context of international travel, it may be difficult to maintain virtual communication at least once every two days. As such I will order that, in those circumstances, the non-travelling parent will communicate with the children at least once per week.
Passports and international travel
Both parties agree on a suite of orders allowing them to travel overseas with the children. They also both seek an order that the children’s passports ordinarily remain in their care and possession.
I will not make the order as sought by either party and, instead, will order that the children’s passports remain with the parent who most recently travelled internationally with the child or children. An order in these terms is more reasonably practicable than appointing a ‘caretaker’ of the passports although I will order that, initially, the Mother possess the children’s passports.
I also intend to provide, in the ultimate orders, that international travel occur during gazetted school holidays and that, if necessary, the non-travelling parent be compensated for any time lost by virtue of any international travel occurring.

I certify that the preceding four hundred and sixteen (416) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull.
Associate:
Dated: 26 April 2022

File number:	PAC 6442 of 2019
Judgment of:	JUDGE TURNBULL
Date of judgment:	26 April 2022
Catchwords:	FAMILY LAW – CHILDREN – relocation – family violence – mental health– unacceptable risk – where mother wishes to return to her home in the Northern Territory with the children – where the children and the parents have lived only in New South Wales since commencement of cohabitation – effect of and response to family violence trauma – substantial and significant time
Legislation:	Australian Constitution s 92 Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC
Cases cited:	AMS v AIF [1999] HCA 26; 199 CLR 160 KB & TC [2005] FamCA 458 Bondelmonte v Bondelmonte [2017] HCA 8; 259 CLR 662 Boxer & Boxer [2021] FedCFamC1F 340 Boyce & Boyce [2015] FamCAFC 60 Briginshaw & Briginshaw [1938] HCA 34; 60 CLR 336 Cole v Whitfield (1988) 165 CLR 360 Dundas & Blake [2013] FamCAFC 133 Godfrey & Sanders [2007] FamCA 102 Goode & Goode [2006] FamCA 1346 Hill & Weston [2021] FedCFamC1F 174 Isles & Nelissen [2021] FedCFamC1F 295 Koyroyshs & Koyroyshs [2020] FamCA 626 Mazorski & Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 Morgan & Miles [2007] FamCA 1230 MRR & GR [2010] HCA 4; 240 CLR 461 Murphy & Murphy [2007] FamCA 795 Robertson & Sento [2009] FamCAFC 49 Sampson & Hartnett (No 10) [2007] FamCA 1365 Scott & Scott [1994] FamCA 12 Tabac & Kelmer [2016] FCCA 1937 U & U [2002] HCA 36; 211 CLR 238 Withers & Russell [2016] FamCA 793
Division:	Division 2 Family Law
Number of paragraphs:	416
Date of hearing:	1-3 November 2021
Place:	Hobart
Counsel for the Applicant	Mr Scarlett
Solicitors for the Applicant	Duffy Law Group
Counsel for the Respondent	Mr Blackah
Solicitors for the Respondent	Marsdens Law Group
Counsel for the Independent Children’s Lawyer	Mr Schroder
Solicitors for the Independent Children’s Lawyer	Sydney West Family Lawyers

PAC 6442 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS JOYNER Applicant
AND:	MR JOYNER Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE TURNBULL
DATE OF ORDER:	26 APRIL 2022