Kinnear and Chamberlain

FEDERAL CIRCUIT COURT OF AUSTRALIA

KINNEAR & CHAMBERLAIN

[2014] FCCA 632

Catchwords:
FAMILY LAW – Parenting – where the mother relocated from (omitted) to (omitted) with the parties’ child over twelve months ago – where the father seeks an order that the child live in a week about arrangement and in the alternative live primarily with him – where an order for equal time will only be reasonably practicable if the mother returns to (omitted) – where the mother said that she would return if the only alternative was the child living with the father - whether an order should be made which will effectively force the mother to return to (omitted).

Legislation:

Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA

AMS & AFS (1999) 199 CLR 160

Mazorski & Allbright (2007) 37 Fam LR 518

MRR & GR (2010) 42 Fam LR 531

Applicant:

MR KINNEAR

Respondent:

MS CHAMBERLAIN

File Number:

NCC 328 of 2013

Judgment of:

Judge Terry

Hearing dates:

27 & 28 February 2014

Date of Last Submission:

28 February 2014

Delivered at:

Newcastle

Delivered on:

1 April 2014

REPRESENTATION

Counsel for the Applicant:

Mr Davies

Solicitors for the Applicant:

Catherine Henry Partners

Counsel for the Respondent:

Ms Carty

Solicitors for the Respondent:

Jennifer Blundell & Associates

ORDERS

The parties have equal shared parental responsibilities for the child X born (omitted) 2007 (“the child”).
Until the commencement of Term 2 in 2014, the child shall live with the mother and spend time with the father in accordance with the interim orders made on 6 March 2013 as amended on 6 June 2013.
From the commencement of Term 2 in 2014 and provided that the mother has established a residence in the (omitted) area:
(a)the child shall live week-about with the parties during school terms with the party with the care of the child to deliver the child to school at the commencement of the school day on Monday of each week and the other party to collect the child from school at the conclusion of the school day on Monday of each week.
(b)the child shall spend time with the parties during the Term 1, 2 & 3 school holidays each year as follows:
(i)in odd-numbered years, with the father from the conclusion of school until 11.00am on the middle Saturday, and then with the mother until the commencement of school; and
(ii)in even-numbered years, with the mother from the conclusion of school until 11.00am on the middle Saturday, and then with the father until the commencement of school.
(c)the child shall spend time with the parties during the Christmas school holidays each year as follows:
(i)in odd-numbered years, with the father from the conclusion of school until 11.00am on the Saturday closest to the mid-point of the holiday period and with the mother from 11.00am on the Saturday closest to the mid-point of the holiday period until the commencement of school;
(ii)in even-numbered years, with the mother from the conclusion of school until 11.00am on the Saturday closest to the mid-point of the holiday period and with the father from 11.00am on the Saturday closest to the mid-point of the holiday period until the commencement of school.
(d)the child shall spend time with the parties at such additional or alternate times as may be agreed between the parties.
In the event the mother has not established a residence in the (omitted) area by the commencement of Term 2 in 2014 then until she does so:
(a)the child shall live with the father;
(b)the child shall spend time with the mother each alternate weekend during school terms from 6.00pm on Friday to 6.00pm on Sunday PROVIDED THAT if Friday is a public holiday the time shall commence at 6.00pm on the Thursday and if Monday is a public holiday the time will conclude at 6.00pm on the Monday.
(c)the child shall spend time with the parties during the Term 1, 2 & 3 school holidays each year as follows:
(i)in odd-numbered years, with the father from the conclusion of school until 11.00am on the middle Saturday, and then with the mother until the commencement of school; and
(ii)in even-numbered years, with the mother from the conclusion of school until 11.00am on the middle Saturday, and then with the father until the commencement of school.
(d)the child shall spend time with the parties during the Christmas school holidays each year as follows:
(i)in odd-numbered years, with the father from the conclusion of school until 11.00am on the Saturday closest to the mid-point of the holiday period and with the mother from 11.00am on the Saturday closest to the mid-point of the holiday period until the commencement of school;
(ii)in even-numbered years, with the mother from the conclusion of school until 11.00am on the Saturday closest to the mid-point of the holiday period and with the father from 11.00am on the Saturday closest to the mid-point of the holiday period until the commencement of school.
(e)the child shall spend time with the parties at such additional or alternate times as may be agreed between the parties.
(f)changeover between the parties shall take place at (omitted) shops.
Notwithstanding any other order, the child shall spend time with the parties as follows:
(a)in odd-numbered years, with the mother from 5.00pm on 24 December until 2.00pm on Christmas Day;
(b)in even-numbered years, with the father from 5.00pm on 24 December until 2.00pm on Christmas Day;
(c)in any year in which Easter does not form part of the school holidays over the Easter long weekend each year as follows:
(i)in even-numbered years, with the father from the conclusion of school on the Thursday prior to Good Friday (or 5.00pm if not a school day) until the commencement of school on the Tuesday after Easter Monday (or 9.00am if not a school day); and
(ii)in odd-numbered years, with the mother from the conclusion of school on the Thursday prior to Good Friday (or 5.00pm if not a school day) until the commencement of school on the Tuesday after Easter Monday (or 9.00am if not a school day).
(d)if Mother’s Day falls on a weekend when the child is not otherwise in the care of the mother, with the mother for that weekend from the conclusion of school on the Friday until the commencement of school on the Monday.
(e)if Father’s Day falls on a weekend when the child is not otherwise in the care of the father, with the father for that weekend from the conclusion of school on the Friday until the commencement of school on the Monday.
Each party is to keep the other informed of their residential address, mobile telephone number, landline telephone number and email address and inform the other of any change to those details within 24 hours of such change.
Each party is restrained and an injunction is granted restraining them from:
(a)leaving the child in the care of, or alone with, the paternal grandfather Mr G without direct supervision;
(b)denigrating the other party or the other party’s partner in the presence or hearing of the child;
(c)allowing the child to remain in the presence or hearing of any person denigrating the other party or the other party’s partner.
Each party may obtain from the child’s school copies of newsletters, school reports, order forms for school photographs and any other information usually provided to parents and may attend any event at the school normally attended by parents.
Each party shall advise the other as soon as reasonably practicable in the event that the child while in their care is involved in an accident or medical emergency requiring treatment at hospital or is diagnosed with a serious medical condition and each party shall be entitled to visit the child in hospital.
Unless the parties have already done so, each party is to promptly enrol in and complete all sessions of a Parenting After Separation Course.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT NEWCASTLE

NCC 328 of 2013

MR KINNEAR

Applicant

And

MS CHAMBERLAIN

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
I am required to make a decision about parenting arrangements for X, who will be seven in a little over a month’s time.
The father proposed that X live week about with the parents which would only be reasonably practicable if the mother moved back from (omitted) to (omitted). He proposed that X lived with him if the mother decided not to move back.
The mother proposed that X live with her in (omitted) and spend time with the father from Friday to Sunday each alternate weekend during school terms and for half of the school holidays. She would be prepared, her counsel said during final submissions, to agree to X spending more weekends with the father during school terms, perhaps two out of three and spending more than half of the school holidays with him if the court thought that this was better than what she initially proposed.
I said to the parents at the conclusion of the hearing last week and I want to repeat that I consider them both good parents. There are no drug, alcohol or parenting capacity issues in this case and that makes it a very difficult case. During the course of this judgment I will inevitably make some comments which are critical of the parents. I cannot avoid that because I have to make findings in order to make a decision but I am satisfied that both parents are very good parents.
Another thing which makes this a particularly difficult case is that the mother has been established in (omitted) for over 12 months now. She moved there with X in November 2012 and interim orders were made in February 2013 which permitted her to remain there pending a final hearing.
The mother lives in rented accommodation in (omitted) and works in the (employer omitted). If I order week about as the father proposed, the mother will be obliged to come back from (omitted) to give up her employment and to get alternative accommodation. She will effectively be returning under coercion and will be forced to live in a place where she does not want to live.

The evidence

The father relied on his amended application filed on 3 June 2013, his affidavit filed on 10 February 2014 and the affidavit of his partner Ms K filed on 7 February 2014.
The mother relied on her Response filed on 4 March 2014, her affidavit filed on 6 February 2014 and the affidavits of the maternal grandmother Ms P filed on 6 February 2014, her counsellor Ms S filed on 24 February 2010 and her GP, Dr S filed on 28 February 2014.
A Family Report was prepared by Mr N, a Regulation 7 Family Consultant.

An assessment of the witnesses

The father and his partner were satisfactory witnesses. The mother’s counsel pointed to the fact that during the hearing the father said that something was in his diary and it appeared later that it wasn’t. I am not convinced that this alone makes the father a witness of doubtful credit.
The mother was unreliable about dates, much more unreliable about dates than the father and I am concerned that not only was some of her evidence imprecise, it was imprecise in a way that made it look as if it was tailored to achieve an outcome. I am talking here for example about the evidence the mother gave about the father delivering some of her things to her in (omitted).
I accept the father’s evidence that he only delivered one or two items of clothing and that it was not possible to read into this some acquiescence by the father to the mother permanently living in (omitted). The mother’s affidavit made it look something different to what it actually was.
I indicated earlier that I had to make these comments. I am sorry if people feel themselves under criticism but it is a difficult matter and I have to make these kinds of distinctions to try and arrive at an outcome.
The maternal grandmother clearly supports the mother and I can indicate that I do not accept her evidence about why she made a comment to X along the lines of “Don’t forget who your mummy is.”

Background

The father is 39 and is a (occupation omitted). The mother is 36 and is a (occupation omitted).
The parties commenced a relationship in 2005 and moved to (omitted) in August 2005. The father has family in (omitted) and the parties bought a house there which I think had been owned by the paternal grandmother.
The mother grew up in (omitted), which is about an hour and a quarter north of (omitted) and is a much smaller town. She left (omitted) when she was 21 and was living in (omitted) when she met the father.
The parties have one child, X, who was born on (omitted) 2007.
The mother was X’s carer for the first 18 months. She then returned to work and from then until separation both parents worked in (omitted) I believe and X was in day care save that he spent one day a week with the paternal grandmother. The parents are not to be criticised for making a choice that they would both work. This made them both good role models for X and they made appropriate arrangements for his care. I am satisfied they were both good and committed parents to X when they were not at work.
The parties separated under one roof in September 2011. The separation was instigated by the father and came as a huge shock to the mother. It is not uncommon for that to happen. It is often the case that one parent is in a mental position where they have decided to separate long before they tell the other party and it does come as a shock to the other party and then the other party has a lot of catching up to do in terms of adjusting to the change in circumstances. It is not uncommon but there is no doubt that the mother found the situation very difficult.
In about January 2012, the mother moved out of the former matrimonial home and in February 2012, consent orders were made in the Local Court at Maitland. They provided for X to spend six nights per fortnight with the father and eight with the mother with the time being broken into two blocks with each parent each fortnight.
Everything suggests that this worked very well for X. The mother was working as a (occupation omitted) at (employer omitted). She had to do some afternoon and night shifts but she was able to fit those around either X’s time with the father or the availability of the paternal family to help provide some childcare.
The parties also agreed on a property settlement at this time and the result of that was that the father retained the former matrimonial home and the mother bought another house in (omitted).
The parties jointly enrolled X at (omitted) Public School to start in 2013 and he played soccer with the (omitted) soccer team in 2012.
Almost immediately upon separation the father commenced dating or communicating with potential partners on the internet or whatever it might have been. The mother was at a different point in the cycle of separation and found that very difficult to deal with because she still harboured some hopes of reconciliation.
There was an altercation between the parties in February 2012 which I will refer to again later during which the mother lost control and hit the father. I am satisfied that it was an isolated incident and that apart from that, things worked well for X after the consent orders were made.
Later in 2012 the father met Ms K on line. The mother became aware of this I think in about October 2012, although I will have to check that date.
Sometime in the latter half of 2012, the mother decided that she would like to go to (omitted) where the maternal grandmother still lives.
The mother said that she decided she would like to do this in late August and told the father about it in September. The father said that he heard a rumour about it in October and confronted the mother about it and that she denied it. He said that the mother did not actually tell him that she was going to (omitted) until just prior to when she actually moved which was on 9 November 2012.
I consider the father’s evidence more likely to be reliable on this point because he was generally more reliable about dates and I have less reason overall to be concerned about the accuracy of his recollections, but nothing turns on the issue of when the father was told about the mother’s wish to move to (omitted). The important issue is whether at this stage the father had any inkling that the mother intended to remain in (omitted) permanently.
I am satisfied that the mother did not tell the father at that time that she wanted to remain in (omitted) in the longer term and I cannot even be sure that this was the mother’s intention when she moved. I certainly cannot be satisfied that the father acquiesced in the move to (omitted) in the knowledge that the mother intended to remain there permanently with X.
The father’s evidence was that he considered that the move would be temporary and that is credible because he had good reason to believe that.
There were court orders in place for X’s time with the parents. The father was entitled to assume they would be complied with and while they could be complied with if the mother remained temporarily in (omitted) until X started school, they would not be able to be complied with once X started school.
The parties had jointly enrolled X at (omitted) Public School and he was due to start the following year and the mother owned a house in (omitted).
In my view it was entirely reasonable for the father to assume that the move to (omitted) was a temporary one and would remain in place only for so long as X was able to travel back and forth to (omitted) to spend time with the father in accordance with the existing orders.
The mother moved to (omitted) on 9 November 2012 and obtained work as a (occupation omitted) at (employer omitted). The parties agreed to do changeover at (omitted) shops half-way between the two locations. The mother enrolled X in preschool in (omitted) and he also attended preschool and day care while in (omitted) with the father.
The mother said that in 2012 after she moved, she sent the father a pack concerning transition from the pre-school in (omitted) to (omitted) Primary School. The father denied that he received the pack. The mother said that she sent the pack again in January 2013 through the maternal grandmother and I cannot be satisfied the mother did send the pack prior to January 2013.
On 27 December 2012 a confrontation occurred between the parties after the mother dropped X off to the father’s home for some holiday time.
The mother saw Ms K at the father’s home and she became extremely upset. The father said that the mother grabbed X by the arm, threw the toys he had in his hand to the ground, dragged him into the car and drove off with a screech of tyres. The mother said that she left calmly but I strongly doubt this and I find the father’s evidence on this point more credible.
I doubt that the mother left calmly firstly because she was on her own admission upset and secondly because of the evidence about what happened in February 2012 when she became upset over a similar issue.
Within an hour however the mother to her credit had calmed down sufficiently to want to sort things out with the father and she suggested that he collect X from her at a place in (omitted).
When the father arrived to collect X, the parties had a conversation about the future. The mother said that she told the father during that conversation that she intended to remain in (omitted) in the long-term and that X would be attending (omitted) Primary School. Her evidence was as follows:
Mr Kinnear and I had the following conversation with words to the effect:
Ms Chamberlain: “I am really sorry Mr Kinnear about what happened. I didn’t mean for this to happen. I was very distraught when you and everyone else started to threaten to take me to court. Why did you threaten to take me to court?”
Mr Kinnear: “I’m sorry too. I am not taking you to court, I just said it.”
Ms Chamberlain: “I feel that Ms K is moving into my role as mother. I feel very uncomfortable with Ms K being around X. Can we agree X does not spend time with Ms K?”
Mr Kinnear: “Sure I agree that X is not to be left alone with Ms K.”
Ms Chamberlain: “I have enrolled X at (omitted) Public School.”
Mr Kinnear: “Ok. How am I supposed to have half of my share with X?”
Ms Chamberlain: “You know I had to move to (omitted) to get support and to be happy. You know that seeing you and her around (omitted) caused me to feel distressed. You will have to see X every second weekend.”
Mr Kinnear: “I know.”
Ms Chamberlain: “Can we continue to meet at (omitted) rather than our houses?”
Mr Kinnear: “Yep.” [1]
[1] Mother’s affidavit paragraph 67 (2^nd occurring)

The mother then said in the following paragraph:
Mr Kinnear said to me words to the effect, “I agree that X will live with you in (omitted) and go to school in (omitted).”[2]
[2] Mother’s affidavit paragraph 68 (2^nd occurring)
In my view what the mother was attempting to do in paragraph 68 was to summarise what had allegedly been said as set out in paragraph 67, but paragraph 67 does not support the mother’s contention that the father agreed to X remaining permanently in (omitted).
I do not suggest for a moment that the mother is telling a deliberate untruth. I noticed when the father was in the witness box that he was a laconic man. He seemed very self-contained. His mother described him to Mr N as being placid. It might well be that given the heightened emotions that were in place at that time, with a big dispute having occurred only an hour before, that the father’s primary goal was simply to keep things calm, get X back into his care and go on his camping holiday. It may be that he did not make clear enough to the mother his opposition to her remaining in (omitted) with X but I am not satisfied that he agreed as the mother asserted to her remaining permanently in (omitted) with X.
Nothing the father is alleged to have said in paragraph 67 supports that interpretation.
It may be that the mother misunderstood. It may be that she heard what she wanted to hear and believed what she wanted to believe but I do not accept that at that time the father agreed to the mother remaining permanently in (omitted) with X.
The father did nothing further immediately in any way which would have been apparent to the mother about the issue of where X was going to live and the mother enrolled X at (omitted) Public School. She invited the father to attend X’s first day on 6 February 2013 and he did attend but on 15 February 2013 the father filed an application seeking an order that the child live in (omitted).
It is regrettable that it took the father that long to make crystal clear his opposition to the move because that and the fact that he attended the child’s first day at school in (omitted), may have lulled the mother into a false sense of security that she would be able to go ahead with her plans unopposed.
The delay was not an inordinate delay however. It is reasonable to suppose that there was some delay between the father seeing a solicitor and the application being filed because instructions have to be taken and documents prepared and it was only six weeks from the conversation on 27 December 2012 to when the father filed.
However, the fact that when the matter came before me on an interim basis there was conflicting evidence about whether the father had agreed to the move, that the mother had been in (omitted) for several months and that the father had attended the child’s first day of school without overt complaint, made it very difficult for me to determine where the truth lay or what I should do because I cannot determine disputes at an interim stage. I made an interim order that the child live with the mother in (omitted) and spend each alternate weekend from Friday to Sunday and half of the school holidays with the father.
The mother alleged in the witness box that she believed the father’s decision to commence proceedings was due to a concern about child support. She did not allege that in her trial affidavit and she did not say that to the family consultant and her counsel conceded that there was no evidence to support a finding that the father’s motivation in this matter was anything to do with child support.

The parties’ circumstances and competing proposals

The mother lives in rented accommodation in (omitted). She has recently exchanged contracts to sell her home in (omitted) but I am satisfied that she made the decision to sell her home for financial reasons and not for tactical reasons. The mother can rent a home even in (omitted), for some considerable amount less than she is currently paying in mortgage repayments and she commented that selling the home would relieve her of some of the other costs of home ownership.
The mother works four days a week at (employer omitted). Her work involves shift work as it has always done and she has the support of the maternal grandmother and a friend in (omitted) to help her out with the care of X if that is required because of her shift work.
The mother has friends in (omitted) but she has not re-partnered.
The mother has worked as a (occupation omitted) for most of her adult life. It is greatly to her credit that she has steadily increased her qualifications. She began as an (occupation omitted), then she was an (occupation omitted) and she has been a (occupation omitted) for four years. There is everything to suggest that she is a good (occupation omitted) with a good reputation. She has previously worked at (employer omitted) in (omitted) and she is currently employed under the same umbrella (omitted) at (employer omitted).
The mother did not suggest that she could not obtain work as a (occupation omitted) in (omitted) if she moved back to (omitted). There was certainly no suggestion that there was an oversupply of (occupation omitted) or that there would be any difficulty in the mother getting work.
The mother is concerned about how she would manage doing that kind of work if she returned to (omitted) because her (occupation omitted) involves shift work, at least it does when she is working in a (omitted) setting and that is where she has worked for quite some time.
Previously the father and the father’s family helped out but the mother may not I acknowledge, feel entirely comfortable about calling on them in the immediate future, although I would have thought that if X had a good relationship with his paternal grandmother and paternal aunt, that over time the mother asking them to help out might become possible.
I acknowledge that it will be more difficult for the mother in terms of her shift work if she has to return to (omitted). She will not have the comfort of being able to ask her mother or her friend to help her out.
The maternal grandmother is helping the mother at present. She is a (occupation omitted) and does some other work in (omitted) as well. She is likely to continue working I would assume but she visited the mother in (omitted) at least weekly when the mother lived there and she acknowledged that she would continue to visit her in the future if the mother had to live in (omitted).
I acknowledge though that having the maternal grandmother in (omitted) while the mother lives in (omitted) will not be the same as having her around the corner.
The father lives in the former matrimonial home in (omitted) which he owns I assume, subject to a mortgage although that was not gone into.
The father is a (occupation omitted). He is based in (omitted) but he goes out to sites, sometimes as far away as (omitted) but mainly around (omitted) and his work hours are 7.30am to 4.00pm. The travel time between (omitted) and the headquarters in (omitted) is half an hour.
The father and Ms K said that they commenced cohabiting in May 2013. Ms K is 40. She is doing some (occupation omitted) work at a (employer omitted) in (omitted) at the moment but she is not currently employed on wages and the father said that he and Ms K may start a family in the future.
The father was cross-examined at length about whether he could move to (omitted) or closer to (omitted). When this cross-examination was occurring, which was before the mother was cross-examined, I found it a bit curious that the father was being pressed about this given the mother’s evidence in her affidavit that she had moved to (omitted) because the idea of seeing the father out and about was unbearable to her. However during her cross-examination, the mother said that she had got over the separation and that she had no problem seeing the father or the father’s partner. I am not sure that this is entirely correct but I will return to it later.
In any event, this cross-examination of the father occurred and the father was adamant that it was not feasible for him to move to or closer to (omitted) and I accept that.
(omitted) is a small town. I indicated to the parties during the hearing that my Deputy Associate had gone onto the internet and found out that it had a population of 2800 in 2011. Nobody seemed to want to quarrel with that or bring any evidence to say that it was substantially wrong. So it is a small town, about a quarter of the size of (omitted) and with no large towns near it such as (omitted) has.
The father said that there would be no work available for him there. I accept that and I accept that it would not be feasible for him to relocate to (omitted).

X’s best interests

In deciding whether to make a particular parenting order about X, I have to treat his best interests as the paramount consideration and to determine his best interests, I must have regard to the matters in s.60CC(2) and (3) of the Family Law Act.
In relocation cases, however, and this is a relocation case because I have to decide whether to give a long-term tick of approval to the mother’s decision to move from (omitted) to (omitted), in those cases the best interests of the child are not the only consideration. The court must also have regard to the right which all people in Australia have, that is, the right of freedom of movement and there is a passage in the judgment of AIMS & AMF where Kirby J said as follows:
One of the objects of modern family law statutes….is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents.[3]
[3] AMS & AFS (1999) 199 CLR 160
That is an old case. The Family Law Act no longer talks about custodial parents and this is not a case where there is a custodial parent as such because the parents were effectively sharing X’s care in pretty close to an equal time arrangement prior to the mother moving to (omitted) and further, I have to follow the legislative pathway in the current legislation to arrive at an outcome. However the passage highlights the difficulty the court faces in trying to reconcile the best interests of the child with the right of both separated parents to be able to get on with their lives and with the fact that not every parent can comfortably remain in the pre-separation location.
I must start by determining X’s best interests and the primary considerations in s.60CC(2) are:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
I will not bother about s.60CC (2A) here, which says that in applying the two considerations I have to give greater weight to the second one, because the second one is not relevant in this case. This is not a case where there are allegations that X is likely to be exposed to abuse, neglect or family violence in the separate care of either of his parents.
The primary consideration which is important in the case is the benefit to X of having a meaningful relationship with both of his parents.
A meaningful relationship has been described as one which is significant, important and valuable to the child.[4] The mother’s counsel strongly pressed the point that the father could have such a relationship with X even if he lived in (omitted) and X lived in (omitted) and with one rider I accept that this is true.
[4]Mazorski & Allbright (2007) 37 Fam LR 518
The rider is that X will only be able to have a meaningful relationship with the father if he lives with the mother in (omitted) if the mother supports the relationship and the relationship it is not undermined by denigration of the father or anything that is happening in the mother’s household.
I do not consider that the mother would deliberately try to undermine X’s relationship with the father but an issue in the case is that the mother has had great difficulty accepting the father forming post-separation relationships and particular difficulty with his relationship with Ms K.
I prefer the evidence of the father and Ms K about the incident which happened at the (omitted). I accept that on that occasion the mother pulled X roughly from the car. This among other things would have amply demonstrated to X that the mother does not like Ms K.
We know that X is aware of this because it is what he said to Mr N and if X spends a great deal of time in the mother’s company and is exposed to the mother’s dislike of Ms K, as Mr N said it could over time have the potential to undermine X’s relationship with the father and his willingness to go freely to and from the father’s household.
The mother’s counsel submitted that I should take comfort from the fact that there had been no reported incidents of conflict between the mother and the father and Ms K since September 2013. She submitted that this was a sign that perhaps things had improved but I do not consider that I can draw too much from that. It could just be a lull in hostilities and there was a long break between the mother behaving in a way that I consider regrettable in February 2012 and again in December 2012.
In any event, while it is true that there was no evidence of any recent incident between the father, Ms K and the mother, there was also no evidence of any positive interaction between them. There was no evidence that they had been able to demonstrate to X that the parties were now on civil working terms and all accepted each other. I am not necessarily convinced that all the difficulties in relation to the mother’s attitude to the father’s girlfriend, or the father re-partnering, are in the past.
There is therefore some possibility that X’s relationship with the father and willingness to go to the father’s household could be affected if he lives mainly with the mother in (omitted) and only spends time with the father on the weekends.
There is a reference in the family report touching on this issue when Mr N was discussing what he considered to be a regrettable situation of X still sleeping in the mother’s bed and he said:
By having X sleep in the mother’s bed and making certain statements to him –
and I am reading into that that he is talking about statements which are not positive about the father’s girlfriend –
could eventually have psychological implications for X’s wellbeing. In no way should X ever be the mother’s primary support person.[5]
[5] Family Report paragraph 76
Therefore while it is true that if the father remains in (omitted) and X in (omitted), the father and son can have a meaningful relationship, that is only so long as it is not undermined by any actions of the mother’s and I have some concerns in this case that there could be some undermining of that relationship due to the mother’s difficulty over the breakdown of the relationship.
I must also have regard to the additional considerations in s.60CC(3) and the first of those is any views expressed by the child and any factors such as his maturity and level of understanding that the court thinks are relevant to the weight to be given to his views.
The father’s evidence was that X had said that he wanted to live in (omitted) but I cannot place any weight on that evidence. It coincides with the father’s preferred outcome. X must know that the father would prefer this. He may have said it to please and it could also have been one of those transitory things that children say only to say something different or feel differently about an hour later. I cannot place any weight on that evidence and X did not express any view or wish to Mr N.
The mother’s counsel suggested during cross-examination of Mr N that something could be read into the fact that X did not express a preference to Mr N, in other words, did not say to Mr N that he wanted to live in (omitted) rather than (omitted), but Mr N said that he did not consider it appropriate to ask X a directed question about that issue and I do not accept that anything can be read into the fact that X did not express a view one way or the other about where he wanted to live.
Even if he is only almost seven I could not have placed any weight on it. He is not mature enough to make decisions for himself about where he should live. He cannot foresee the consequences of things like an adult can.
The next additional consideration is the nature of the child’s relationship with each of his parents and any other relevant persons including grandparents of the child.
Mr N made reference to X’s relationships in the Family Report.
In regard to the father, Ms K and the paternal grandmother who attended the report interviews he said as follows:
X was positive about his relationship with his father describing him as a “good dad”. X stated that his father watches movies with him as well as doing school work with him. X indicated that his father plays games with him and tickles him. X was clear to say that he is not scared of either parent.
During my observation of the father spending time with the subject child, Mr Kinnear was warm and nurturing with X, whilst the subject child was responsive to his father. Mr Kinnear did some workbook activities with X, with the father certainly demonstrating an educational approach in his interactions with X. When the paternal grandmother entered the observation room with Ms K, the paternal grandmother initiated affection with X. Ms K sat on the sofa and was also warm and communicative with X.[6]
[6] Family Report paragraph 70 & 73
In regard to the mother and maternal grandmother he said as follows:
X described his mother as being “a good mum”, indicating that she “gets me toys”. X further stated that his mother allows him to have friends over to play with him, whilst he also said that he has sleepovers at friends’ homes. X further stated that he has sleepovers at his maternal grandmother’s home when his mother goes to work. X felt that he stayed at his grandmother’s home on approximately two nights per week. X informed the Family Consultant that his mother usually disciplines him by grounding him or taking toys from him, and occasionally “a little smack on the bum”.
During my observation of the mother spending time with X, Ms Chamberlain sat on the floor and engaged X in drawing. It was evident that X was relaxed and happy in his mother’s presence. When the maternal grandmother entered the observation room, she sat on the sofa, whilst X remained focussed on drawing with his mother. It was evident that X had difficulty in reciting his ABC. Ms Chamberlain was warm with X throughout the entire observation and subsequently engaged him in a card game. There were no overt child protection concerns during either of the two observations. [7]
[7] Family Report paragraph 70, 74
There is absolutely no question that X has a good relationship with each of his parents. He has been cared for by both of them throughout his life. They are both working parents. They shared his care while both of them worked for most of the period prior to separation except for the first 18 months of his life. He spent almost equal time with them from separation until November 2012, a period of 12 months.
It is true that in the last 12 months X has been primarily with the mother but this is not a case where one parent stands out overall in X’s life as his primary carer and nobody suggested to me that I should make a finding that one of the parents was X’s primary attachment figure.

The next additional consideration is the extent to which the child’s parents have taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child or to communicate with the child.
Neither parent can be faulted in this regard. They have both taken every opportunity. The father said that he has been deprived of some opportunities but that is a separate issue. They have both taken every opportunity to be involved in decisions and to spend time with and communicate with the child.
I must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil their obligations to maintain the child.
While the parents had the six-eight night arrangement in (omitted) neither of them paid child support to the other. No evidence was given about their incomes so I cannot determine whether this was consistent with their obligations under the child support legislation and nobody asked me to make a finding about this.
The mother filed an application for child support in January 2013 and the father is currently assessed to pay something over $300.00 a month. There was no suggestion that he was behind in his payments. That whole issue does not assist me to determine the appropriate outcome for X.
I must have regard to the likely effect of any change in the child’s circumstances.
This is an important issue in the case.
The mother said that if she was forced to move back to (omitted) it would have a significant negative effect on her and therefore on X. She would be forced to live in a town where she had no family or friends. She would be deprived of the support of the maternal grandmother if she needed assistance because of her shift work and she would just be miserable.
In her affidavit the mother said that it might mean that she would be unable to work as a (occupation omitted) at all and would be reduced to living on Centrelink benefits. In view of the mother’s working history however, I consider it most unlikely that she would let that happen.
The mother said that she had a history of depression and there is no doubt that this is correct and she said it meant that if she was forced to live somewhere other than where she wanted to live, this might have a very negative effect on her mental health.
I accept that any adverse effects on the mother’s mental health would have a negative impact on X but I am not satisfied that the evidence goes so far as establishing that the mother would be severely negatively affected if she was forced to return to (omitted).
I must have regard to the evidence and the evidence I have is this.
The mother provided a letter from her GP which was fairly brief and said as follows:
This is to certify that I have know[sic]Ms Chamberlain since Feb 2013 professionally and through work at (employer omitted).
I have been treating her depression with which I think she is doing quite well. It has been a pleasure to work with her at (employer omitted). I have never come across her being depressed or angry at work.
Given she was progressing well her medications, Ms.Chamberlain with my advice has elected to lower the dose of medication and will be see[sic] a Psychiatrist and/or Counselling.
If you have any questions feel free to contact me on 02-6558 1604.
There is nothing in that letter to suggest that the mother would be adversely affected if she had to move from (omitted) to (omitted).
I also have the evidence of Ms S and in her affidavit she included a paragraph about this issue as follows:
Based on my experience of Ms Chamberlain, as described, I would be seriously concerned about the emotional impact on her, both of having to leave (omitted) and of having to face living in proximity to her ex-husband again, particularly in light of the deterioration in their relationship in the past year. In addition, this move would also put Ms Chamberlain under significant practical, employment and financial stress which are in neither Ms Chamberlain’s nor X’s best interests. The decision to move was made with X in mind throughout the process.
That does not necessarily take me very far at all, especially in the light of the mother’s own evidence, although I have a little bit of reservation about how absolutely correct that evidence is, that she no longer had difficulty dealing with the fact that the father had re-partnered and moved on.
Ms S last saw the mother in a professional capacity in November 2012 and her opinion is based on her direct knowledge of the mother. Her knowledge of the mother was from seeing her in her rooms and talking to her during the period when the mother was still struggling to accept the separation. Ms S’s evidence does not greatly assist me as to the impact on the mother of returning to (omitted) when a lot more time has now passed since the separation.
The mother in her affidavit said that part of the problem from her perspective was that the relationship between she and the father had deteriorated in the last 12 months and Ms S also said that. Those assertions were not borne out by the evidence.
Therefore if you look at it closely, there really is not the evidence to enable me to find that if the mother was obliged to return to (omitted), it would have an immediate severe impact on her mental health.
During cross-examination, the mother said that the sexual abuse she experienced as a child was the foundation for her depression, not the father’s new relationship. She said that this would always be with her, which is sad, but that is what she said and the mother living in (omitted) rather than in (omitted) is not going to make any difference to that.
The mother can get the assistance of a psychologist if she returns to (omitted). She is a resourceful person. She has shown the propensity in the past to seek help when she needs it. I cannot be satisfied that being obliged to return to live in (omitted) would have a severe impact on the mother’s mental health.
I accept that the mother does not want to move back and would be unhappy about it and I also accept that she may and almost certainly will face some child care difficulties in her work as a (occupation omitted) if she lives in (omitted) rather than in (omitted). I do not accept that the situation is likely to be as dire as the mother suggested but I accept that there will be some difficulties for the mother.
I have to bear in mind also though the other things I know about the mother. She left her home town at 21 and she thereafter lived independently of her mother and the friends she had grown up with. She was living in (omitted) when she met the father and she was productively employed.
She has worked all of her adult life, mostly as a (occupation omitted) and she has progressively gained qualifications in (occupation omitted). She is a valued employee. She has maintained a social life since separating from the father. She has been on holidays to the snow and to (country omitted) and she goes out with friends. We know that because of the cross-examination over the Facebook entries which I considered a little regrettable
The mother is appropriately medicated for her depression and there was no evidence that her depression had ever interfered in the past with her employment or her parenting capacity.
I know that the mother does not want to return to return to (omitted) but it is a familiar place to her and I do not accept that the consequences of her returning there would be anything like as dire as the mother suggested. There is every reason to believe that the mother, for her son’s sake, would make the best of it if she had to go back.
This is only one issue I have to consider of course but those are my findings in relation to that issue.
Against the possible effects on the mother of returning to (omitted), I have to consider the benefits to X of returning to (omitted) and in my view those benefits are huge.
It is true as the mother’s counsel repeatedly submitted that X can have a meaningful relationship with the father if he lives in (omitted). What he cannot have with the father if he lives in (omitted) though, is a relationship which allows the father to be substantially involved in his day-to-day life, not just seeing him on weekends when he is relaxing but being closely involved in his week day activities, being able to do his reader with him, being able to kick a football around if this is what this father and son do, being able to play some games with him at home.
X will not have the experience of seeing the father coming and going from work. He may never tell the father, as I mentioned during submissions, some of those little things which happen on a day and then go out of a child’s mind and are forgotten by the weekend.
Only with great difficulty will the father be able to drop him off at school or pick him up at school. There will be continuing difficulties over the years with X playing sport and he may never be able to do it other than on each alternate weekend. X may get sick of the travelling, some children do, even if it is only an hour and a quarter each way.
The benefits to X in terms of having a relationship with both of his parents are huge if he returns to (omitted).
Another advantage of X living in (omitted) and spending more time with the father is that if there is some small tendency for the mother to use him as a support person and to expose him a little too much to her difficulties in accepting the father’s new relationship, that will be alleviated if X is spending more rather than less time with the father.
The father proposed that if X returned to (omitted) he live in a week about arrangement. The mother suggested that X might not cope with that but in my view that is not particularly supported by the evidence.
X is almost seven. He has a very good idea of time. He coped well previously with the six-eight arrangement, no one suggested he didn’t and there was no evidence to suggest that he would not cope with week about.
I must have regard to the practical difficulty and the expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
(omitted) and (omitted) are about an hour and a quarter’s driving distance apart, or two and a half hours for a return trip. It is not such a great distance that you cannot have alternate weekend time, but it does mean that X has to be returned on Sunday evening, not Monday morning to school.
I accept that X can talk to his father on the telephone but telephone communication is not always a good substitute for face-to-face contact.
The distance means the father will not frequently be able to get to school events at X’s school even if he can get to some and for the father, with that sort of a distance, it would mean writing off either half a day or a day at work because if you think about the distances it is half an hour from (omitted) to the father’s work. It is an hour and a quarter from (omitted) to (omitted) and then an hour and three-quarters back into (omitted). If the father was to make the trip to spend time with X at school during the day, he would have to write off a very large amount of his working day.
The distance also means that one parent will not easily be able to attend X’s extracurricular activities or he will be reduced to playing for a team on alternate weekends.
Therefore, although the distance does not mean there cannot be alternate weekend time, the distance does cause a lot of problems for X.
I must have regard to the capacity of each of the child’s parents and any other person to provide for the needs of the child, including his emotional and intellectual needs.
The mother has done a good job caring for X during the last year. He has had a good introduction to school which is so very important for children. He is doing well at school and from that perspective the mother is capable of providing for his needs.
I have some concerns about the mother’s capacity to provide for X’s emotional needs. I have already gone into that when discussing issues to do with what might undermine a meaningful relationship and I am not going to go into that again but I repeat that I have some concerns about the mother’s capacity to provide for X’s emotional needs; there are some limitations to it.
There is considerable merit in Mr N’s comment that the mother’s move to (omitted) was about the mother and not X. The mother said that she had thought about the impact on X of moving but it was restricted to thinking “happy mother, happy child.” There was no evidence that the mother considered the impact on X of having less frequent time and different time with the father. She simply did not set out in her affidavit how she had thought about that.
Ms S, her psychologist, said that the mother had thought about it, but that was just a bare assertion as well and in my view there was no evidence that the mother did think beyond the fact that she considered she would be happier in (omitted) therefore that would be a good outcome for X.
There was no evidence that she focused on the losses that X would sustain if that distance was created.
Although I have some concerns about the mother’s capacity to provide for X’s emotional needs, I want to stress that this does not make her a bad mother. No parent is perfect. Every single parent makes mistakes. They all have their limitations. It does not make the mother a bad mother but in matters like this, I have to closely examine these issues and make comparisons between parents and I have no option but to make the findings that I have.
The father is a capable parent. The mother made no complaint about his parenting.
I want to comment here on the fact that in some cases I am concerned when a parent, often a father but sometimes a mother, presses hard for equal time and the reasons I am often concerned about it are these.
Sometimes parents seek equal time in the face of very clear evidence that it would not be appropriate. They might for example ask for it for a two-year old child or ask for it in circumstances where there has been severe family violence and when they ask for it in those circumstances it shows very poor insight into a child’s needs and a focus on the parent’s own needs.
Sometimes parents ask for equal time because they know that they are not going to achieve a complete change of residence. The child is happy and settled with the other parent and the other parent is doing a good job looking after the child. They know it would be hopeless to seek a change of residence so they ask for equal time thinking that it is the absolute outer limit of what they can hope to get and they push for as much as they can possibly get and again prioritise their own needs over the child’s needs.
In this case however, I do not believe that either of those things applies. I believe that the father’s application for equal time indicates that he accepts that X needs both his parents in his life to the maximum extent possible and that it demonstrates that the father has respect for the mother as a parent and respect for her capacity as a parent and insight into X’s needs.
I must have regard to the attitude of each of the parents to the child and the responsibilities of parenthood.
In this particular case that is not relevant as a separate consideration.
I must have regard to the fact that the mother, and therefore X, identify as Aboriginal.
X has had his enrolment at school amended recently to reflect this. The father has not opposed that. X's Aboriginality is a factor in the case but it is not a factor which tips the matter in favour of X living primarily with one parent rather than the other, or should I put it in another way, in terms of X living with the mother in (omitted) rather than the father in (omitted) or with both parents in (omitted).
The mother will make sure that X maintains his contact with his Aboriginal heritage. The father is not opposed to that happening. This issue does not help me to determine which parenting orders should be made.
I must have regard to any family violence involving the child or a member of the child’s family.
As I mentioned during submissions, I am actually sad to have to make a finding about this but I feel obliged to.
I am satisfied that the mother committed an act of family violence as it is defined in the Family Law Act on the occasion when she stood in front of the father’s car to prevent him leaving and rained blows on him. The father pushing the mother was a defensive action. It does not come within the definition.
I do not want to make too much of it. I do not want either parent to walk out of court and think that one is better than the other because of that finding but I have to make the finding because that is how the facts present themselves.
I accept that the mother was stressed on that occasion. I accept that she was stressed on 27 December 2012 for that matter and that on both occasions her behaviour was out of character.
There are no family violence orders in this matter.
I must consider whether it is preferable to make the order least likely to lead to the institution of further proceedings.
An order that the mother be permitted to remain in (omitted) is probably marginally that order. If the mother is happy there and does not undermine the father’s relationship with X once the litigation is over and the father, while unhappy, accepts the outcome, then that may be the order least likely to lead to further proceedings, but it is very finely balanced and it is not going to help me greatly to determine the matter.
I must have regard to any other relevant matter.
There are two matters I want to raise.
It is regrettable that the father did not act more swiftly in late 2012 when it was clear that the mother was going to enrol X at (omitted) Primary School and was intent on trying to remain in (omitted) permanently. If he had acted more quickly, the outcome of the interim proceedings might have been different and who knows, we may not be sitting here today. However, I cannot go back and change that and it was not a deliberate act by the father, it was a fairly minimal delay and it is just a background fact that I have to deal with.
The other relevant matter is that the mother said that she would move back to (omitted) if she had to.
That is not something to be used against the mother. Her proposal is that she should be able to live in (omitted) with the child. But in any relocation case the court has to consider the issue of what a parent will do if the court makes a particular order and I am satisfied that the mother will move back to (omitted) if the court makes an order that can only be carried into effect if she does for example, equal time or a six-eight arrangement. It is a relevant factor that I can take into account in my view.

Parental Responsibility

Pursuant to s.61DA of the Family Law Act, I am obliged to apply a presumption that it is in the child’s best interests that the parents have equal shared parental responsibility for him, absent a finding that one of the parents has engaged in abuse of the child or family violence.
I have found that the mother committed an act of family violence so the presumption does not apply but I can still make an order for equal shared parental responsibility and both parents sought that.
It is entirely appropriate to make that order. The parents are not on the best of terms at the moment, they do not find it easy to talk to each other but they are intelligent people. They are under a lot of pressure at the moment with this litigation. They were able to reach agreement before this litigation commenced and I consider that they are people who can learn to productively communicate with each other, especially if they do a parenting after separation course.
The fact that they have a little bit of difficulty communicating at the moment should not deter me from making an order for equal shared parental responsibility and that is the order that I am going to make.

The family consultants recommendations

Mr N said as follows in his report:
It is the view of the Family Consultant that despite the distress that the mother will feel, that it is more important for the child’s relationship to be strengthened with his father, and that there is a return to an equal time arrangement which will accommodate X’s needs, whilst simultaneously ensuring that the father’s relationship with X evolves to the same strength and level that exists with his mother.
It remains specifically unknown whether a weekabout arrangement for X would be preferable to the arrangement that was agreed to by the parents in February 2012. [8]
[8] Family Report paragraph 78, 79
Mr N’s recommendations were as follows:
The subject child to live in the (omitted) area.
X to live in an equal time shared care arrangement with each of his parents.[9]
[9] Family Report paragraph 82 and 83
Mr N also recommended that the parties do a parenting after separation course and I will make an order for the parties to do one if they have not already done so.
I have a lot of respect for Mr N’s conclusions because I consider that there is validity in many of the views he expressed within his report, such as his concern that the mother may not in fact have entirely gotten over the father re-partnering and that she did not properly consider X’s interests when she relocated.
However, I cannot simply make a decision based on Mr N’s conclusions. I have to follow the legislative pathway in order to arrive at a conclusion and the legislative pathway starts at s.65DAA(1) of the Family Law Act because I intend to make an order that the parents have equal shared parental responsibility for X.

Conclusion

S.65DAA says that if I am going to make an order for equal shared parental responsibility, I have to consider whether the child spending equal time or alternatively substantial and significant time with each of his parents would be in his best interests and reasonably practicable and if I find that it would be, I have to consider making an order of that kind.
The father sought equal time. The mother’s proposal would not allow either of those things. If the mother remains in (omitted) with X there cannot be equal time and there cannot even be substantial and significant time because it does not matter how many weekends the father spends with X, the time is not going to come within the definition of “significant” in s.65DAA (3) and it would be lucky to come within the dictionary definition of “substantial.”
I will start by considering whether it would be in X’s best interests and reasonably practicable to spend equal time with each of his parents and I will consider the issue of substantial and significant time at the same time because another possible outcome of the matter of course, is a return to something like the six-eight division of time.
As far as the best interests considerations are concerned, X has a good relationship with each of his parents. There was no evidence that he favoured one of them over the other or that one was his primary attachment figure and he is beyond the stage of critical primary attachment anyway.
X is almost seven. He is conscious of time so he might well emotionally cope with equal time and he would certainly emotionally cope with the six-eight arrangement. He coped with it before.
Each parent is a good parent committed to his care and they each have the capacity to care for him in either of the time configurations.
Equal time would be a change for X and particularly so compared to what has happened in the last twelve months, but given that he has a good relationship with his father as well as his mother, that he does not favour one over the other and that he has a good concept of time, there is every reason to suppose that he would adapt to an equal time arrangement and would cope with it.
I must of course consider the effect on the mother of making that order but absent the issue of the mother having to relocate, I am not satisfied that making that order or an order for substantial or significant time would have a negative impact on the mother or the mother’s parenting capacity. I will consider that aspect of the matter further however when I come to consider the reasonable practicability aspect of making either of those orders.
Equal time or substantial and significant time in terms of a return to the six-eight arrangement, either of those, would in my view be in X’s best interests and preferable to a situation where he was spending each alternate weekend or even two out of three weekends during school terms and half the school holidays with the father and living primarily with the mother.
Either of those arrangements would also best ensure that the requirements of s.60B of the Family Law Act were met because what s.60B (1) says is that one of the objects of the children’s part of the Family Law Act is to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests. S.60B (2) says that one of the principles underlying this part of the Act is that children have a right to know and be cared for by both of their parents.
The objects and principles in s.60B would best be met for X if there was equal time or substantial and significant time and every other “best interests” consideration suggests that this would be the outcome which would be in his best interests.
However, before I even consider making an order for equal time or substantial and significant time, I also have to consider whether one of those would be reasonably practicable and the High Court in MRR & GR stressed that it was only if I found both of those things, namely, that equal time or substantial and significant time was in the child’s best interests and reasonably practicable, only then was I required to consider making one of those orders.[10]
[10] MRR & GR
To determine whether the time is reasonably practicable I must have regard to the matters in s.65DAA (5) of the Family Law Act and I must have regard to each of those matters. I cannot just pick and choose which sub-section I have regard to.
The first of the matters to which I must have regard is the distance the parents live apart.
If the mother remains in (omitted) and the father in (omitted), clearly equal time or substantial and significant time would not be reasonably practicable, not now X is at school.
Of course the issue then is whether the mother could in fact move back to (omitted), because if she did clearly either of those things would be reasonably practicable.
The mother said she would move if the alternative was a loss of her time with X. She would have to rent but she is renting in (omitted) and she would have to change her employment, but I am satisfied that she would be able to get other employment in the (omitted) area if she wanted it.
I cannot refuse to make an order for equal time or substantial and significant time, or refuse to consider it simply because one party has moved away after separation and while they remain away that time is not reasonably practicable. A parallel is with communication. Even if a court finds that communication is not particularly good, that is not the end of the matter, although s.65DAA (5) deals with that in particular.
If communication is poor the court can say, “Well, that’s not going to stop me making this order. The parties can attempt to improve their communication.” In my view, I should not be deterred from making an order for equal time or substantial and significant time simply because it can only become reasonably practicable if one party moves back to the location that they came from prior to the proceedings commencing. Equal time or substantial and significant time can be made reasonably practicable if the mother moves back to (omitted).
I have to consider the current and future capacity of the parents to implement an arrangement of this kind. I consider the parents have that capacity. They shared the care of X more or less equally before. They agreed that they should have equal shared parental responsibility. They have the capacity to implement either equal time or substantial and significant time.
I have to consider their current and future capacity to communicate and resolve difficulties that might arise in implementing an arrangement of that kind.
This is not a case where there was family violence during the relationship. These people do not have that difficulty in their background to impact on either their ability to communicate or their ability to implement the arrangement.
The parents’ capacity to communicate since these proceeding commenced has not been especially good but they have been under a lot of strain and stress while the proceedings have been going on. They were able to communicate well enough to make substantial and significant time work for X throughout 2012. They are intelligent people. They can do a parenting after separation course and in my view they have the capacity to communicate sufficiently well to make this arrangement work.
I must have regard to the impact that an arrangement of this kind would have on the child. I am satisfied that X would cope emotionally with either of those arrangements, equal time or substantial and significant time.
Of course equal time or substantial and significant time can only happen if the mother moves back to (omitted) and if coercing the mother into making that move was going to have a deleterious effect on her mental health, then it would follow that making an order for an arrangement of that kind would have a negative impact on X.
However I have considered that issue in some detail earlier and while I accept that the mother will not be happy about it, I am not satisfied that the evidence allows me to find that it would have a severe negative effect or a long-term negative effect on her mental health.
I am satisfied that the impact of making an order for equal time or substantial and significant time on X would not be a negative one.
I must have regard to any other matters the court considers relevant and as I have already discussed earlier in the context of how far the parents live apart the issue of whether the mother could move back, which potentially is simply an issue the court considers relevant, I am not going to go into that again.
In my view an order that X live in either an equal time or a substantial and significant time arrangement would be in his best interests and would be reasonably practicable.
S.65DAA though says that just because I arrive at that point does not mean I have to make the order. I simply have to consider making an order of that kind and before I make a decision about it I have to consider the mother’s alternative proposal and I have to give that proper consideration.
The mother’s alternative proposal was that she should live in (omitted) with X. The mother’s counsel pressed the point that this was good enough because X could still have a meaningful relationship with the father and the mother would be happy, or a lot happier in (omitted) than she would be if she lived in (omitted) so that outcome would be the preferable one for X.
Sometimes this is the best the court can do as I said during submissions. Sometimes there are a whole lot of reasons why people really need to move to another location. They might have re-partnered, they might be pregnant to their new partner, they might not be able to obtain accommodation in the place they came from or the place they want to leave, employment opportunities might pull them to a new location and it might be important post-separation that they be able to move to that new location and in those circumstances the balance may tip in favour of saying, “Yes, you can relocate,” or, “Yes, you can stay where you are,” even though the best we can do is to facilitate the child having a meaningful relationship and he will not necessarily be able to have the kind of close relationship he would have if the parent did not relocate.
Sometimes it is the best the court can do when everything is weighed and balanced. In my view in this particular case however the court can do better than that.
I am enormously sympathetic to the mother in wanting to remain in (omitted). She has been there for a year. She has her mother there to support her. She has just got a contract of employment there. She has a routine there. X is doing well at the local school. I am enormously sympathetic to the mother but in my view we can do better than that for X.
We can do better than that for X because if the mother moves back to (omitted), a place she is familiar with, a place it is true where she would prefer not to live but a place she is familiar with, a place where she can obtain accommodation for a reasonable rental, a place where she will be within reach of employment opportunities, if the mother does that then X can have the benefit of the father in his life not just as someone with whom he has a meaningful relationship but as someone with whom he has substantial involvement and it is important for X that we do that for him if we possibly can.
Sad as it makes me to make a parent unhappy, I am going to order that X live in (omitted) and I am going to make an order that he live in the equal time arrangement.
I have considered the issue of whether the parties should go back to the six-eight arrangement but X is older now than he was when that arrangement was in place. Week about is a neat arrangement. It means that the mother can organise her work knowing that in one week she will have this availability and in one week she will have another and it will mean X will not have to worry about changing over on school days.
The mother said she would move back and it is greatly to her credit that she is willing to do that for her son, but I have to say that in this particular case, finely balanced though it is, if I had to make a choice about whether X should live with the father in (omitted) and spend alternate weekends with the mother in (omitted) or the other way around, I would tip in favour of the child living with the father in (omitted) simply because of the issue to do with the difficulties the mother has had adjusting to the post-separation situation and the impact that may have for X in the longer term emotionally.
I am not however going to make an order that X immediately moves to live with the father. I indicated during submissions that what I would do was to give the mother time to organise her affairs and I am going to order that X be permitted to remain in (omitted) until the end of the school term. That will give the mother time to organise her affairs in terms of moving back and the new arrangement can come into place at the start of the new school term.
The father asked me to make an order that the child attend (omitted) School in (omitted). I am not going to do that. That issue was not explored during cross-examination. The mother was not asked about it. I have no idea about the cost and there was no proposal put forward about who was going to pay for it. There was no evidence the parties were (religion omitted).
The parents are going to have to sort out the issue of the school the child attends.
I will make an order as sought about the child not coming into contact with Mr G, the paternal grandfather. That was agreed and I will make that order even though issue was only lightly touched on during the evidence.
For all of the above reasons the orders of the court are as set out at the beginning of this judgment.

I certify that the preceding two hundred and nineteen (219) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 1 April 2014

[2014] FCCA 632

1 April 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness