Kagan and Echlin
[2014] FCCA 853
•12 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAGAN & ECHLIN | [2014] FCCA 853 |
| Catchwords: FAMILY LAW – Parenting – relocation – best interests of the children. |
| Legislation: Family Law Act 1975 |
| MRR v GR (2010) 240 CLR 461 Champness & Hanson [2009] FamCAFC 96 Re F: litigants in person guidelines (2001) FLC 93-072 |
| Applicant: | MS KAGAN |
| Respondent: | MR ECHLIN |
| File Number: | DGC 683 of 2010 |
| Judgment of: | Judge McGuire |
| Hearing date: | 14 April 2014 |
| Date of Last Submission: | 14 April 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 12 May 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Unrepresented |
| Solicitors for the Respondent: | Unrepresented |
ORDERS
That all extant orders in respect of the children, [X] born [in] 2006 (“[X]”) and [Y] born [in] 2008 (“[Y]”) be discharged.
That the parents have equal shared parental responsibility for the children, [X] and [Y].
That the children, [X] and [Y] live with the mother and that she be permitted to relocate their primary place of residence to Queensland and that the mother notify the father of the children’s residential address and telephone and email contacts as soon as they are available to the mother;
That until the mother relocates to Queensland, the children spend time with the father as follows:
(a)each weekend from Friday at 5 pm until Saturday at 5 pm; and
(b)for one half of each Victorian gazetted school holidays from the first Saturday at 10 am until the second Sunday at 5 pm.
That for the purposes of time spent between the children and the father until the children relocate, then changeovers occur at the appointed times at McDonald’s car park, [address omitted].
That following the relocation of the children to Queensland, [X] and [Y] spend time and communicate with the father as follows:-
(i)in each of the three Queensland term holidays, from the first Saturday until the third Sunday;
(ii)for block periods of three weeks in each of the Queensland gazetted summer school holidays each year, such time to commence on or before 24 December 2014 and in each alternate year thereafter and to commence on or after 26 December in 2015 and in each alternate year thereafter with the precise dates to be at the election of the father;
(iii)at any reasonable time that the father might be in Queensland, but upon not less than 10 days notice in writing or email to the mother;
(iv)by telephone at any reasonable time, but specifically on each Monday and Thursday at 6 pm (Melbourne time) with the father to telephone the children at such time and the mother to make the children available to take the calls with privacy and for these purposes the mother is to keep the father informed of her landline telephone number; and
(v)by email and/or Skype at any reasonable time and that, upon the father making written request to the mother, she is to install Skype facilities for the use of the children.
That for the purpose of the father spending time with the children in Victoria in summer holidays he is to provide the mother with not less than five weeks prior notice in writing of the dates on which he prefers such time to begin.
For the purposes of the children spending time with the father in Melbourne, the mother is to be responsible for the purchase and payment of return air tickets for the children from Queensland to Melbourne and for term holidays such flights to be booked to leave in the morning of the first day and to return in the afternoon of the last day and that the mother advise the father in writing or by email of the children’s itinerary on each occasion.
That the children spend such other or varied times with the father as may be agreed between the parents in writing.
That the mother notify the father in writing or by email prudently of the name and address of the children’s school, their general practitioner, and any other medical or behavioural specialist attended by the children and, if necessary, provide written authorisation to the school, doctor or behavioural professional allowing the father full access to all information normally accorded parents.
IT IS NOTED that publication of this judgment under the pseudonym Kagan & Echlin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 683 of 2010
| MS KAGAN |
Applicant
And
| MR ECHLIN |
Respondent
REASONS FOR JUDGMENT
Applications
These are proceedings about the parties’ two children, [X] born [in] 2006 (aged eight years) (“[X]”) and [Y], born [in] 2008 (aged six years) (“[Y]”).
The mother wants to relocate with [X] and [Y] to [T] in Queensland. She is in a committed relationship with Mr S. He works in a senior role in the [omitted] field and expects to soon be based in [T].
Consent orders were made between these parents in respect of [X] and [Y] on 10 August 2011 whereby the children lived with the mother and spend time with the father as follows:
a)weekly between Friday evening and Saturday evening;
b)for Tuesday evening;
c)and for block periods in school holidays.
The mother now seeks an order for sole parental responsibility.
The father opposes the mother’s application. He asks that it be dismissed and that the status quo continue.
Background
The applicant is 48 years of age. The respondent is 51.
The parties commenced a relationship in January 2005. They separated in September 2009.
The father is currently unemployed. He most recently worked as a [omitted] in the [omitted] area.
The mother has tertiary qualifications in [omitted]. She has not been employed in her particular fields for many years. She is currently engaged in home duties and in parenting [X] and [Y]. She has older children from a previous relationship.
The father has a child, [name omitted], from a prior relationship. She spends regular and frequent time with him.
There is no evidence before me that Mr Echlin has re-partnered.
The parents agree that both [X] and [Y] present with features of attention deficit hyperactivity disorder, and oppositional/defiant behaviour. They do not necessarily agree on the proper course of therapy and/or medication for the children. Such lack of agreement grounds the mother’s application for sole parental responsibility. Together with what both parties concede, and I clearly observed, is a continuing conflictual and caustic relationship between them.
The Evidence
Both parties represented themselves. They did so in a competent manner. The Court followed the guidelines for judicial officers dealing with unrepresented litigants as set out in Re F: litigants in person guidelines[1]. Procedural fairness was afforded both parties. The procedure for the trial was explained in detail. An invitation was made to each party to raise any issues of procedure that arose during the trial. The parties were provided with copies of section 60CC of the Family Law Act 1975 (“the Act”).
[1] (2001) FLC 93-072
The mother relied on her three affidavits filed 22 October 2013, 9 December 2013 and 10 February 2014 together with a sworn financial statement of 14 December 2013. The contents of those documents were read into evidence.
The mother adduced evidence from Mr S, her partner. His affidavit was sworn 14 December 2013. He was cross-examined.
The father also relied on three affidavits, dated 9 December 2013, 14 January 2014, and 31 March 2014. They were read into evidence. He adduced no further evidence.
The Court had the benefit of a document purporting to be a “family report” prepared by Mr W, who is a clinical psychologist in private practice. His report and assessment is annexed to an affidavit sworn 7 April 2014. Mr W was not required for cross-examination. The report is focused on clinical assessments of [X] and [Y]. Mr W does, however, observe on page 1:
In the interviews separately conducted with Ms Kagan and
Mr Echlin, significant acrimony for each other was observed, consistent with what had previously reported by Psychologist,
Ms B and Psychiatrist, Dr E. Ms Kagan has re-partnered while Mr Echlin has not. Both parents, however, remain highly motivated and dedicated in the lives of the children, and attended all meetings and cooperated with all requests made by the writer.
An addendum and undated document was tendered by consent from
Mr W. It is titled “Opinion”. The contents of that addendum are worthy of transcription into these reasons, as they summarise succinctly the issues for this Court:
Ms Kagan and her new partner intend to be married and imminently relocate to Queensland with [X] and [Y]. From the children’s perspective, this change would present some challenges, including adjustment to a new school setting initially. As they settle, the move could potentially avail the opportunity of a new start with friendships, educational setting and acceptance by others of their challenges in general. Ms Kagan has indicated that the children have a positive bond with her partner, and she also indicated that financially it would be easier living in Queensland. This move potentially would reduce the exposure that the children have to their parents, in conflicting situations, and would permit access visits to be more positive for all parties.
Mr Echlin currently has regular unsupervised access with [X] and [Y] on weekends, evenings, special celebrations and long school holidays and he mostly has been using this access time with them. Whilst it is a matter for the Court, given that the children both seem to have a positive bond with their father, this access should be permitted to continue during holiday breaks when the children could travel to Melbourne or Mr Echlin travel to Queensland. The Court may consider arrangements of negotiated flexibility overseen by the Court in order in order that reasonable access arrangements are in place from the beginning. This would be to take into account the children’s access opportunities and consider travel and work leave accessibility for Mr Echlin.
Both parents should be encouraged to embark on parenting support programmes due to the significant behavioural problems that the children present.
Both children will require support from paediatric and psychological services to closely monitor current pharmacological and behavioural treatments. Given the extensive history of behavioural challenges, it would benefit the children’s adjustment in school by the school providing regular parent support meetings during the adjustment stage.
The Relevant Law
There is no specific category of “relocation case” in the legislation. The task for the Court, as in all parenting matters, is to make orders which are in the best interests of the children, and are reasonably practicable in their operation. In this sense the relocation of children is not prohibited nor is there a presumption against it.
The consideration of and determination of children’s best interests is not at large. The Court is obliged to reference the probative evidence and the parties’ proposals to a number of factors set out in section 60CC of the Act. A starting point, however, in that course of consideration is a presumption that parents have equal shared parental responsibility for their children[2] . That presumption does not apply if there are reasonable grounds for the Court to believe that a parent of a child (or a person who lives with a parent of a child) has engaged in abuse of the child, or another child in that home, or in family violence within the broad definition of that term in the Act[3]. Alternatively, the presumption may be rebutted by evidence satisfying the court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility. Notably in the matter now before me, the mother seeks an order for sole parental responsibility of [X] and [Y].
[2] section 61DA(4) of the Act
[3] section 61DA(2) of the Act
If the presumption applies or if the court determines that there should be an order for equal shared parental responsibility then a course of consideration of specific parenting regimes is to be addressed. Firstly, the court must consider whether the children spending equal time between their parents is both in their best interests and reasonably practicable. If the answer to either of those questions is in the negative then the court turns to consider whether the children spending “substantial and significant time” with each parent is both in the children’s best interests and reasonably practicable.[4] “Substantial and significant time” is defined in the Act in section 65DAA(3) as follows:
For the purposes of subsection(3) a child will be taken to spend substantial and significant time with a parent only if:
a)the time the child spends with the parent includes both:
i)days that fall on weekends and holidays;
ii)days that do not fall on weekends on holiday; and
[4] MRR v GR (2010) 240 CLR 461
b)the time the child spends with the parent allows the parent to be involved in;
i)the child’s daily routine; and
ii)occasions and events that are of particular significance to the child: and
c)the time the child spends with the parent allows the child to be involved in occasions and events that are a special significance to the parent.
The father in this matter seeks orders in accordance with the status quo from August 2011 whereby he spends time with the children each weekend from Friday evening until Saturday evening together with block periods in school holidays. Those orders also provide for him to spend Tuesday evenings with the children. As such, the orders that he seeks do perhaps fit with the definition of substantial and significant time, if only just.
The orders that I make must not only be in the children’s best interests but also reasonably practicable in their operation. The Act provides assistance in this regard as follows:
section 65DAA(5)
In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
how far apart the parents live from each other; and
the parent’s current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
the parents current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
the impact of an arrangement of that kind would have on the child; and
such other matters as the court considers relevant.
Despite their own antagonistic relationship these parents have operated within the court orders from 2011. They live in reasonable proximity and the father’s proposal for continuation of the status quo is obviously reasonably practicable. The question remains as to whether or not the mother’s proposal is in the best interests of the children and reasonably practicable or is the father’s proposal in the best interests of [X] and [Y]?
A long line of authority has attempted to extract a list of principles in relation to matters involving relocation and for the assistance of trial judges. That list of principles appears to have survived significant amendments to the Act and can be summarised as:
·the children’s best interests remain the paramount but not the sole consideration for the court and such interests must be considered within the context of section 65DAA of the Act (reasonable practicability);
·that a parent wishing to relocate children does not need to demonstrate “compelling” reasons;
·that the judicial officer must consider all proposals together with the advantages and disadvantages of each but may also formulate proposals himself or herself in the children’s best interests;
·neither party carries an onus of proof to convince a court either for or against the proposed relocation;
·that the children’s best interests must be weighed and balanced with the “right” of an adult parent to freedom of movement but such right must ultimately defer to the best interests of the children.
Children’s best interests
Section 61B of the Act sets out the objects and principles of the relevant legislation and which provides the framework for the more pragmatic considerations of the evidence and the parties’ proposals.
Section 60B provides the objects and principles of the relevant legislation in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Primary considerations
Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both parents.
I am satisfied that there are benefits for these children in having significant and meaningful relationships with both their parents. Such relationships and the parents’ roles must be seen within the context of the children’s particular difficulties and needs. There is a suggestion that the continuing acrimony between the parents contributes to the children’s conditions. Mr W notes at page 6 of his report:
The issues between [X]’s parents continue to be destabilising for him. Dr E’s report from June 2011 indicated that “Given the level of conflict and acrimony between Ms Kagan and Mr Echlin, the children’s difficulties are likely to be explained to a large degree by that alone”. Both parents, however, have a significant role to play in his life, and both have may positives to contribute, particularly in the context of modelling appropriate behaviours to him.
The father claims an ongoing and hands-on role with the children and says that the mother’s proposal will significantly change the frequency of time for him with them and that the children’s relationship will suffer accordingly. The mother does not concede the extent of the father’s involvement. He currently sees the children weekly over Friday night and during Saturday. Previous time agreed for Tuesdays could not continue because of the father’s work commitments.
These children are still young at just eight and six years of age. Their particular difficulties including probable ADHD, oppositional defiant behaviour and difficulties in social situations all combine to suggest that routine and order will be important in both their social education/adjustment and in their important relationships. Nevertheless, Mr Echlin claims to have an established and positive bond with his children which would argue for the children being able to endure a relocation and a different regime of time with him.
Taking all of these factors into consideration, it is well established that it is the prospective or future benefits for the children and the meaningful nature of their relationships which is relevant for the Court’s consideration whilst, of course, needing to assess the current state of such relationships. Importantly, it is the “quality” of those relationships which concerns the Court and not simply the collating of days, hours and minutes.
Further, whilst this consideration under section 60CC(2)(a) is a primary one, it remains but one among the many considerations to which the Court must attribute weight and balance in making a determination that is in the best interests of [X] and [Y]. The danger of attributing any special status to this consideration was noted by the Full Court in Champness & Hanson where their Honours observed:
The submissions of Counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make Orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make orders most likely to promote the child’ s best interest. In seeking to achieve that objective, S60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors.[5]
Section 60CC(2)(b) – the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
[5] [2009] FamCAFC 96 at 103
In her material the mother emphasised a history of family violence. The particulars mostly refer to incidents prior to the orders made in 2011. She says that she has been subjected to verbal abuse and denigration since.
The applicant says that he is provoked, bullied and intimidated by the mother. He does not concede his behaviour in the terms claimed by the mother. He says that he has been to two anger-management courses.
It is clear from my observations of the parents in court that there is continued antagonism between them. I suspect that their personal relationship was volatile if not violent at times. However, final orders were made in 2011 and the parties’ behaviour appears to have stabilised, if not their simmering acrimony. Given the making of the previous orders and the recent history, I place little weight on the mother’s claims of physical violence or her fear of repeat violence insofar as she lays it as a ground for her relocation.
Additional considerations
Section 60CC(3)(a) – any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views.
These children are too young to rationalise and express preferences as to their parenting or living arrangements.
Section 60CC(3)(b) – the nature of the relationship of the children with each of their parents and with other persons (including any grandparent or other relative of the children).
The mother concedes that the children have a loving and meaningful relationship with their father. It is a relationship in which there is direct contact on a weekly basis. I accept that the father has had some involvement in the children’s schooling and extracurricular activities.
The nature of the relationship between the children and their mother is that she is, in all respects, their primary parent.
I accept the evidence of Mr S that he has developed a good, comfortable and easy relationship with the children. Mr S impressed me as a stabilising and objective influence on the mother, whereas the mother and the father both tended to lapse easily into argument about financial or child support matters during cross-examination, Mr S presented as child-focused. He was of a calm demeanour and was able in his responses to paint full and descriptive pictures of his relationship with these children. He appears understanding and tolerant of their particular needs, and I am satisfied that he would be a beneficial adult figure in their household and in their lives.
Section 60CC(3)(c) – the extent to which each of the children’s parents have taken, or failed to take, the opportunity to participate in making decisions about long-term issues in relation to the children and to spend time and communicate with the children, together with the extent each of the parents has fulfilled, or failed to fulfil the parents’ obligations to maintain the children.
Whilst I am sympathetic to both parents representing themselves in these proceedings, it was easy to forget that the issue before me was one of the potential relocation of the children from Melbourne to Queensland and a change in living and parenting arrangements. Both parents, and in particular the father, were keen to a fault to raise matters of child support and aspects of their own personal financial relationship. I was required on numerous occasions to bring the focus of both parents back to the interests of the children which were at issue. I expect that financial matters have contributed to a large extent to the caustic relationship between these two parents.
The mother is currently the sole financial provider for these children excepting some statutory minimum child support contributed by the father due to him being unemployed. Not surprisingly, the mother argues that there will be a financial benefit to her and the children in a relocation and to receive the financial support of Mr S.
The nature of the relationship between the parents is that the mother was profoundly critical of the father’s contributions financially and generally to these young children’s lives. He, in turn, was critical of the mother in not encouraging his involvement. He argues that the distance placed between the parents by the mother’s proposed relocation will only emphasise the difficulties that he has endured thus far.
Section 60CC(3)(d) – the likely effect of any changes in the children’s circumstances, the likely effect on the children of any separation from either of their parents or from any other child, or other person (including any grandparent or other relative of the children, with whom they have been living).
The father says that the change in the nature of the children’s relationship with him will damage that relationship. [X] and [Y] currently spend each Friday night with their father. There is provision in the current orders for them to see him on Tuesday evening. The mother’s proposal would limit the time to school holidays albeit in longer block periods. She concedes that the children would miss their father but alludes to telephone and other media which would assist in maintaining a relationship. She says that the children would adjust and that the strength of their bond with their father would endure.
Section 60CC(3)(e) –the practical difficulty and expense of the children spending time with an communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relationships and direct contact with both parents on a regular basis.
The mother’s proposal is that the children spend “up to two weeks during each of the four school holiday periods” with the father. This would involve four return trips from Queensland to Melbourne each year. I have no evidence before me as to the cost but I am satisfied that it would not be prohibitive of such time occurring given the mother’s case being in part the financial benefits accruing these children from a relationship with Mr S. Whilst these children present with behavioural difficulties, there are children who use the airlines regularly to move between their parents and I am again satisfied that the logistics are achievable.
The father’s proposal, of course, removes the expense and logistical difficulties posed by the mother’s proposed relocation.
Section 60CC(3)(f) – the capacity each of the parents to provide for the needs of the children, including emotional and intellectual needs.
Each of these parents was keen to attack the capacity of the other be it in respect of financial capacity, understanding of the children’s particular needs, or commitment to their care. However, it is clear on the case posed by the father that he concedes the mother to have the capacity to care for the children. He does not seek orders whereby he be the primary carer, but rather that the orders of 10 August 2011 remain in full force and effect. These orders concede the mother to be caring for the children six nights per week. Similarly the mother proposes that the children spend four blocks each of two weeks with the father if she is permitted to relocate to Queensland. Such a proposal is at odds with the criticisms of Mr Echlin that she was so keen to on enlightening me of with during her evidence.
I am satisfied that individually these two parents have the capacity to care for the children and to attend to the children’s special needs.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background of the children and either of their parents.
This consideration is not relevant to the evidence given and adduced.
Section 60CC(3)(h) – if the children are Aboriginal or Torres Strait Islander.
Not relevant.
Section 60CC(3)(i) – the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents.
I am satisfied on the evidence that each of the parents have demonstrated a responsible attitude to parenting their children. Unfortunately, they have not been able to isolate their own personal difficulties from those responsibilities with the result that they have not been able to parent collaboratively or cooperatively.
Section 60CC(3)(k) – issues of family violence and family violence orders.
These matters have been referenced above.
Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.
Family law parenting orders are by their nature prospective. The Court considers the proposals of the parties and the evidence with a view to formulating orders that are, on balance, in the best interest of those children moving forward. It is not the ambition of Courts to make ideal or optimum orders. Such is simply not achievable. Hence, there are various unknowns which may impact on the future parenting of the children. The Court must consider whether children will settle into a new environment, school, family unit and social relationships should a relocation be permitted. The children in the matter now before me have special needs and behavioural problems which must be addressed in relation to this consideration. Children might develop views and preferences themselves as they become older and more mature. The practical and logistical arrangements should there be a relocation may become onerous or unworkable. Conversely, if a relocation is refused, then the very parenting capacity of the primary parent may be impacted.
All of these are issues which may ignite further litigation in respect of children. It is, however, for parents to understand that the Courts make orders which they determine as being in the children’s best interests and reasonably practicable on the evidence that is adduced and then for the mother and the father to parent to their capacity within any such limitations.
Discussion and Conclusion
There are advantages and disadvantages of both parents’ proposals for these children. The father offers the status quo. This will give the children regular contact with him. Their routines will be continued. They will not be required to confront the changes proposed by the mother, and particularly given their special needs. Schools, family and peer relationships can simply continue. Expense and logistics are avoided.
There are, however, advantages for the children on the mother’s proposal. She is their primary parent and the Court must consider her right as an adult to freedom of movement and her right to pursue her own happiness which would arguably has vicarious benefits for the children. On the evidence before me, I am satisfied that the relationship between the mother and Mr S is a committed and beneficial one. As I have said above, I find Mr S to be of real potential benefit to these young children. He presented as altruistic and understanding. He can provide a far greater financial support and benefit for these two children where unfortunately each of their parents is currently unemployed.
An advantage in the mother’s proposal is that these two young children do have an established, successful and bonded relationship with their father. It follows, in my view, that a change in the frequency or regime of their direct time with him would not present difficulties for the relationship as would a situation where the relationships themselves had been problematic. All of the evidence points to a good and secure relationship between these two children and their father.
There is no issue before me that the mother should not continue as primary parent. I am satisfied that she should do so. On balance, I am satisfied that the advantages for these children on the mother’s proposal for them to relocate with her to Queensland far outweigh the disadvantages. In summary, the financial and emotional prospects for them growing up in a secure family unit with Mr S are substantial. The mother will be more secure and happy in her parenting. The relationship for the children with their father will endure, albeit on a different regime. I am satisfied that spending almost the whole of the terms holidays as proposed by the mother and half of the summer school holidays with their father is in the children’s best interests.
I am satisfied that the mother’s proposal is a reasonably practicable one. The logistics of travel are not onerous and there are advantages for the children in spending longer block periods with their father when they would be able to settle into his care and particularly given their own behavioural problems.
On consideration of the parties current and potential financial circumstances and given that it is the mother who wishes to relocate, I am satisfied that it is appropriate for her to meet the costs of the children’s air travel on each of the four occasions per year. I am satisfied that such costs could be minimised by early bookings and the use of frequent flyer points. The father is currently unemployed and I have no evidence before me that satisfies me that this status will change in the near future.
I am satisfied that it in the best interests of the children for the parents to have equal shared parental responsibility. I am mindful of my comments as to their antagonism towards each other. I note, however, that Mr W observes positive input by each of them into these children’s lives and needs. The simple fact of antagonism between parents does not, in my view, remove the obligation for them to focus on cooperatively parenting their children. Observations of each of these parents suggest that they have much to offer their children. I note that the orders of August 2010 were made by consent and provide for equal shared parental responsibility. I also note my comments as to the particulars of the mother’s allegations in respect of family violence being mainly directed to before the current orders. Consequently, and whilst the presumption under section 61DA of the Act might not strictly apply given the allegations of family violence, I remain satisfied that the children’s best interests are served by the parents exercising that role equally.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 12 May 2014
Key Legal Topics
Areas of Law
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Family Law