KIRIAKOPOULO & BRODY

[2018] FamCA 370

FAMILY COURT OF AUSTRALIA

KIRIAKOPOULO & BRODY [2018] FamCA 370

FAMILY LAW – CHILDREN – Application by mother to relocate with the children to metropolitan area from regional area – With whom a child lives – With whom a child spends time – With whom a child communicates – Allegations of violence – Which school a child should attend – Orders that children relocate to metropolitan area with the mother – Orders that children live with the mother and spend significant and substantial time with the father if he lives in Sydney – Orders by consent that parents have equal shared parental responsibility.

Family Law Act 1975 (Cth) s 60CC

A v A: Relocation Approach (2000) FLC 93-035

APPLICANT: Ms Kiriakopoulo

RESPONDENT: Mr Brody

FILE NUMBER: SYC 6903 of 2015

DATE DELIVERED: 25 May 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Newcastle & Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 7, 8, 9 March (F Town) & 23 March 2018 (Sydney)

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lethbridge S C

SOLICITOR FOR THE APPLICANT: G A Lawyers

COUNSEL FOR THE RESPONDENT: Mr Page S C with Mr Dwayne

SOLICITOR FOR THE RESPONDENT: Carroll & O’Dea Lawyers

Orders

BY CONSENT

1. Ms Kiriakopoulo (‘the mother’) and Mr Brody (‘the father’) shall have equal shared parental responsibility for X (‘X’) born … 2002 and Y (‘Y’) born … 2004 (collectively ‘the children’).

BY DETERMINATION

1. The children shall live with the mother.

2. The mother shall be permitted to relocate the children’s residence to the Sydney metropolitan area at the end of term 4 2018.

3. The parties shall do all things necessary to enrol Y at the B School.

4. The parties shall do all things necessary to enrol X in B School, C School or D School or such other school to which X choses to attend and is reasonably able to attend. This may include E School; in which case she will live primarily with her father and the time she lives with her mother during school term shall be the mirror of that provided for her father.  The parents shall ensure that the weekend school term arrangements are such that the children spend each weekend together.   

5. Up to the end of term 4 2018 and if the father resides within a 30km radius of B School the children shall live with the father:-

   (a)during school term as agreed between the parties from time to time;

   (b)in the absence of agreement then during the school term from after school, and if not a school day from 3.00pm, Wednesday to before school Monday and if not a school day, to 9.00am and each alternate weekend thereafter;

   (c)the time in Order 6(b) being the first weekend after the commencement of school term if the children were primarily with the mother the last week/s of the preceding school holiday and the second weekend if the children were primarily with the father the last week/s of the preceding school holiday.

6. If after the end of term 4, 2018 the father resides more than 30km from B School, the children shall live with the father:-

   (a)as agreed from time to time;

   (b)in the event that there is no agreement between the parties then the time shall be during the school term, from 6.00pm Friday to 4.00pm Sunday each alternate weekend;

   (c)the time in Order 7(b) being the first weekend after the commencement of school term if the children were primarily with the mother the last week/s of the preceding school holiday and the second weekend if the children were primarily with the father the last week/s of the preceding school holiday.

7. The children shall otherwise live with the father:-

   8.1.For half of the school holidays from the conclusion of terms 1, 2, 3 and 4 of the children’s school holidays at times as agreed between the parties. In the absence of such agreement:-

   8.1.1.the father is to spend the first half of the school holiday periods with the children in even numbered years and the second half in odd numbered years; and

   8.1.2.the mother is to spend the first half of the school holidays with the children in odd numbered years and the second half with the children in even numbered years.

8. Notwithstanding any Order to the contrary, the children shall spend the following special occasions in the care of each parent:-

   9.1.Christmas

   9.1.1.In 2018 with the mother from 9.00am Christmas Eve to 3.00pm Christmas Day and each alternate year thereafter;

   9.1.2.In 2018 with the father from 3.00pm Christmas Day to 6.00pm Boxing Day and each alternate year thereafter;

   9.1.3.In 2019 with the father from 9.00am Christmas Eve to 3.00pm Christmas Day and each alternate year thereafter;

   9.1.4.In 2019 with the mother from 3.00pm Christmas Day to 6.00pm Boxing Day and each alternate year thereafter.

   9.2.Easter

   9.2.1.With the father from 6.00pm Thursday before Good Friday to 5.00pm Easter Monday, except in years where Greek Easter falls on the same weekend as Catholic Easter, in which then the children will spend time with the father from afterschool Thursday to 7.00pm Easter Saturday;

   9.2.2.With the mother from the conclusion of school (or 9.00am if it is not a day on which the children attend school) until the commencement of school (or 9.00 am if it is not a day on which the children attend school) on the Greek Easter weekend;

   9.3.Father’s Day and Mother’s Day

   9.3.1.On Father’s Day between 5.00pm on the Saturday preceding Father’s Day until 5.00pm on Father’s Day of each year, and the mother’s time with the children shall be suspended and they shall live with the father; and

   9.3.2.On Mother’s Day between 5.00pm on the Saturday preceding Mother’s Day until 5.00pm on Mother’s Day of each year, and the father’s time with the children be suspended and they shall live with the mother. 

   9.4.Greek Name Day

   9.4.1.In the event that the children are not otherwise living with the mother on their Greek Name Days, being … for X and … for Y, they shall spend time with the mother:-

   9.4.1.1.For three (3) hours if the days fall on a weekday as agreed, but in default of agreement from 4.00pm to 7.00pm; and

   9.4.1.2.In the event that it falls on a weekend, then the children shall remain the care of the mother for the weekend and be with the father the following weekend in lieu.

   9.5.Children’s birthdays

   9.5.1.The children shall spend time with the parent whose care they are not in on their birthday for a period of two hours as agreed, but failing agreement, if it is a school day, from 4.00pm until 6.00pm and if it is on a weekend, from 11.00am until 1.00pm.

9. For the purposes of changeover, if it does not occur at the children’s school, then the father is to collect the children from the mother’s residence at the commencement of his time and is to deliver the children to the mother’s residence at the conclusion of his time.

10. In respect of any travel between their parents the children may travel unaccompanied by train to and from F Town:-

    11.1.The mother shall cause the children to catch a train from Central Station, Sydney to F Town at the commencement of the children’s time with the father, and shall notify the father via SMS of the departure time and anticipated arrival time; and

    11.2.The father shall cause the children to catch a train from F Town Train Station to Central Station, Sydney at the conclusion of the children’s time with him and shall notify the mother via SMS of the departure time and anticipated arrival time.

11. Each parent shall give all necessary consents in writing to the children’s school to forward to the other parent copies of all school reports and notices in relation to parent/teacher interviews, school photographs, concert nights, award presentations, open days, speech nights and sporting events.

12. Each parent is at liberty to attend all school events and extracurricular activities to which parents are ordinarily invited.

13. Pursuant to s 65Y(2)(b) of the Family Law Act 1975 (Cth) the parents be permitted to remove the children from the Commonwealth of Australia for such period as is agreed between the parties, but in default of agreement, during any period that the children are in that parent’s care pursuant to these Orders, provided that they provide to the other parent a minimum of twenty (28) days written notice of their intention to remove the children, or either of them, from the Commonwealth of Australia, such notice to include details of any flights, destination and the means by which the children can be contacted whilst they are overseas.

14. Each parent shall provide to the other parent within seven (7) days in writing details of their change of place of residence together with a mobile and landline telephone number and email address.

15. The parents are to notify each other as soon as possible upon the children suffering any serious medical emergency and/or illness whilst in their care.

16. Neither parent shall interrogate the children about events or conversations in the household of the other parent.

17. Both parents shall be and are hereby restrained from denigrating the other parent or any member of the parent’s family in the presence or hearing of the children and are to use their best endeavours to ensure that no other person denigrates the other parent or any member of the other parent’s family in the presence or hearing of the children.

18. The father is to provide the children’s passports to the mother within fourteen (14) days of the date of this Order.

19. Each parent shall do all acts and things necessary to renew the children’s passports.

20. Pursuant to s 65DA(2) and s 62B, of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

21. All extant parenting applications, other than costs, are dismissed.

22. Any costs applications relating to the parenting proceedings to be made in accordance with the Family Law Rules 2004 (Cth).

23. At the expiry of the appeal period all subpoenaed documents in relation to the parenting proceedings be returned to the persons or institutions from which they emanated and all exhibits in relation to the parenting proceedings are to be returned to the person or persons who tendered the same.

IT IS NOTED

1. The Court has made no orders as to telephone communication as each of these children have their own electronic devices they are free to communicate with either parent at any time.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage senior counsel and counsel to attend.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kiriakopoulo & Brody has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: SYC 6903 of 2015

Ms Kiriakopoulo

Applicant

And

Mr Brody 

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. X is aged about 15 and a half and is undertaking secondary school studies in year 10 in the F Town area.

2. She is a bright, bubbly and engaging young woman who, in keeping with her stage of development, is unafraid to express herself in clear and unambiguous terms to her parents and has strong views and opinions. She is in all respects a young woman who is ready to burst into adulthood full of ambition and dreams.

3. Her brother, Y has just celebrated his 14^th birthday.  He is in Year 9 and is attending private school in the F Town area.  He is keen on sport and like his sister is intelligent and bubbly.  He is gregarious, but perhaps a little less sure of himself and a little less forthright than his elder sibling.

4. It is about the parenting arrangements for these children that this Court was required to make Orders.

5. In July 2015 the marriage of Ms Kiriakopoulo (‘the mother’) and Mr Brody (‘the father’) came to an end and they separated under the same roof.  This relationship breakdown was a long time coming and was the pre-curser to the separation itself.  The events leading up to and following the separation have had a profound and adverse impact on this family.

6. What comes shining through, however, is the deep love each of these parents have for their children and the deep love each of these children have for their parents.

7. Y and X engage in sibling rivalry and argument, much of which has been exacerbated by their family circumstances and the parental conflict which they have endured.

8. What is clear from the reports and the evidence is that despite the overt signs of anger between siblings, X and Y each care for the other and love the other.

9. The mother was diagnosed with Bipolar Disorder in 2011 and has at times been non-compliant with taking her medication.

10. At present she is medication free, with the consent of her treating psychiatrist. She is maintaining her well-being and is coping with the stresses of life including this litigation.  I accept there has been no subjective or objective evidence of major depressive episodes, as the mother has been able to maintain psycho-social functioning throughout, including engaging with and meeting the children’s needs.

11. I accept the mother’s prognosis for maintaining her well-being is very good.  I accept that at times this has imposed difficulties in the context of this mental health issue and its symptomology has imposed difficulties on the family, including with X and Y, the father and to her. 

12. However, overall the evidence is that she is an effective, good and loving mother.  She has been the primary carer of the children throughout their lives and is focused on their needs.

13. The mother says, and I accept, that it is her desire to live in Suburb G where she can support herself following the failure of her marriage, help her aged parents and have the support and friendship of her extended family and friends.

14. The mother continues to work part-time.

15. The essence of the mother’s case is that both children should live with her at Suburb G and attend a local private school.  She is open to delay that change to the end of 2018 and accepts that given the age and maturity of the children, particularly X, that they may decide that other geographic areas are appropriate.

16. The mother is open to showing the children the local selective high schools at Suburb H and Suburb J, albeit the former is co-educational and the latter is a single sex school.  

17. The father is an enigma.  He is a devoted father.  He loves his children and he engages with them.  He has a temper and I accept, for the reasons later set out, that he is at times intimidating and bullying of the children, especially Y.

18. I accept that there has been violence between the parties during the marriage and that violence was likely to have been initiated by the father. 

19. There is no such thing as acceptable violence, however, the violence in this case seems to be situational given the father’s short temper and inability to acknowledge his actions.

20. The father has denied that he has tried to control or intimidate either the children or the mother.  Given the statements of the children to the mother, the family consultant and to their own therapist, I am satisfied, on balance, that the father loses his temper from time to time and in doing so acts out by yelling, threatening or intimidatory behaviour.

21. On the other hand, at times, he can show a generosity of spirit.  An example of this, for which he was given credit, was his decision not to cross-examine the mother’s psychiatrist given that it may undermine the relationship between the mother and her psychiatrist and may, in the longer term, destabilise the mother’s health condition.

22. For the father the correct outcome is for the children to continue to live in the F Town, Suburb N area, for X to attend the local selective high school and for Y to attend the private school.

23. The parties are in general agreement regarding other aspects of parenting such as equal shared parental responsibility, and regular and unrestricted electronic communication.  Further, that if the children are separated between Sydney and F Town the children should spend each alternate weekend from after school Friday to Sunday afternoon, or Monday afternoon if Monday is a public holiday or pupil free day, with the other parent; and, if they live in close proximity and the Court is satisfied that the mother’s mental health is stable, she is medicating and that she is accepting treatment from her psychiatrist, that the children live with her nine days a fortnight during school term and five days a fortnight with the other parent during school term.

ISSUES

1. The issue is whether the children should live with the father primarily in the F Town area, or live with the mother primarily in the Suburb G area which is south of the city of Sydney.

BACKGROUND

1. The father is aged 45.  He is a Director of a company which runs its own business and the business has a significant value and earns a reasonable income.  He works full time.

2. The mother is aged 43.  She works part-time in Suburb N area.

3. The parties married in 1997.  X was born in 2002 and Y was born in 2004.

4. The parties lived at the home of the maternal grandparents from 1997 until about 2004.  They lived at a home at Suburb K for a short period of time and then in late 2005 moved to Suburb N.

5. I accept on balance that the father assaulted the mother in March 2009.  The mother contacted 000, but she was embarrassed and ashamed. She did not make a report.

6. The mother had mental health issues and sought medical treatment from at least 2007 onwards.  The mother was diagnosed with Bipolar disorder in 2011 and was admitted to a private hospital for about three weeks.  At that time the father asserted that the mother had ceased medication.

7. The father also asserts that the mother ceased using her medication in 2014.

8. The year 2014 was a difficult year for the parties. I prefer, on balance, the mother’s evidence that in January 2014 the father rammed the mother’s bike and she fell off it into some bushes.  I accept that there were two instances in March 2014 where the father had arguments with X and pushed her into parked cars.  Further, that there was another incident in Western Australia in June 2014, and I prefer the evidence of the mother in that respect.  

9. In April 2014 the mother commenced consulting psychiatrist, Dr M at St John in Sydney.

10. On 27 June 2015 after a holiday in Western Australia the parties separated under the same roof.  Y had been accepted to attend a private school in F Town, for which the enrolment application was initially made by both parties.

11. In the same month, the mother deposes about another incident, saying:-[1]

    42.    In June 2015, around the time of separation, [Y] and [the father] had an argument. [The father] felt that [Y] was not listening to him and shook him by the shoulders repeatedly, saying, "You need to listen to me. I know what I am talking about". [Y] began crying; [Y] then went upstairs and [the father] followed him and was firmly saying to [Y], "You need to listen and pay attention and do as you are told." [The father] then grabbed [Y], whilst he was in the kitchen, by the arm and pushed him forcibly down the hallway. I heard the bang of [Y] falling and then him screaming at [the father] whilst crying. I ran upstairs and [Y] said to me "Dad hurt me". I then said to [the father] "Don't you ever touch me or the kids again otherwise I will call the Police."

    43.    [Y] slept with me in my bed that night. I believe it was because he was upset and scared. The following morning, [the father] and [Y] had a conversation. After this conversation, [Y] came to me and said, “Dad and I sorted it out. Dad said it will never happen again, as long as I just listen to him.

    [1] Mother’s trial affidavit, paragraphs 42 and 43.

1. The father denied this and the other allegations of violence.  I prefer the mother’s evidence for the reasons set out elsewhere.

2. The violence was not one sided.  The mother deposed that:-

   44.    Post separation, [X] became increasingly angry and volatile. Most of her anger was directed at me and [Y]. In June 2016, I went to pick up the children afterschool. Their respective school buses drop the children at the [Suburb L] Roundabout. [X’s] bus arrived but [Y’s] one was running late. [X] became angry and started to blame [Y], saying, …

   45.    [Y] arrived a few minutes later and as soon as he got in the car, she started repeating the things she said to me to [Y]. I told her to stop and threatened to take her phone off her as punishment. This made [X] even angrier and caused her to start yelling at me. [Y] had enough by that point and said, “Stop it, you’re being a cow.” [X] responded with, “Do us all a favour and go kill yourself, then you can be buried at Rookwood in your beloved Sydney.” I was so shocked and angry by what she said that I slapped her. I deeply regret my actions and I have since then never used any type of physical violence against the children

3. In September 2015 the mother was diagnosed with Hashimoto’s Disease.

4. The parties endeavoured to find ways to resolve their differences throughout the second half of 2015. 

5. In January 2016 the mother informed the father that she was thinking about living in Suburb G and wanted the children to attend the local private school in that area.

6. In late January 2016 the mother unilaterally relocated with Y from F Town to Suburb G.

7. The father commenced proceedings in the Federal Circuit Court in Sydney and after negotiations agreement was reached that the mother would return to Suburb N, would have sole occupation of that home with the children and that the children would continue to attend their schools in the F Town area.  The father agreed to vacate the Suburb N home and found accommodation in that area.

8. For a number of months in mid-2016 the mother took herself off medication without the approval of her psychiatrist.  She subsequently had discussions with her psychiatrist who approved of her being non-medicated.

9. In July 2016 the first Family Report was prepared.  In late 2016 the mother underwent some abdominal surgery and at the same time her mother (the maternal grandmother) was diagnosed with breast cancer and subsequently had a mastectomy.  This was a difficult time for the mother.

10. The relationship between the parties became more and more polarised with each blaming the other.  A second family report was prepared and released in September 2017 and the matter was heard before this Court in F Town in March 2018.

11. In December 2017 the trial of these proceedings was bifurcated.  The property matter remains outstanding and a hearing was listed in March 2018 in relation to the parenting matters.  It is of concern to the parties and to the Court as to the level of the costs which have been incurred or will be incurred by the conclusion of the parenting hearing.

12. The solicitors for the mother assert that their costs will amount to $258,704 and the estimate of the fees for the hearing are $69,000.  The total fees will therefore be about $327,704.

13. The father’s costs[2] at the conclusion of the hearing are likely to be about $187,681.  Between them the parties will have expended about $500,000 in legal costs and they are yet to resolve the question of property.

    [2] Exhibit E9.

14. These are not wealthy people; they are people of relatively modest means and the amount of costs will reflect a significant portion of the parties’ accumulated wealth.

15. The mother’s legal fees were funded by loans from her parents and her sister.  The father’s legal fees were paid from earnings and from advances against future drawings.

16. The parties’ financial circumstances are not easy given that the school fees for Y of about $24,000 per year are being drawn against a loan facility.

THE LAW

1. The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deals with children is set out in Part VII in particular s 60B articulates the objects and the principles underlying them as follows:-

   (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).

2. A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.

3. The terminology of the section is such that the Court is to presume that it is in the best interests of the child for their parents to have equal shared parental responsibility unless the Court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.

4. If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise, then:-

   (a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable; and if not

   (b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.

   (c)In the context of these determinations, s 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and s 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.   

5. The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-

   (1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   (2)The primary considerations 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.

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

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

   (3)Additional considerations are:

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

   (b)       the nature of the relationship of the child with:

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

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

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

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

   (ii)       to spend time with the child; and

   (iii)     to communicate with the child;

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

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

   (i)       either of his or her parents; or

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

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

   (f)       the capacity of:

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

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

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

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

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

   (i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

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

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

   (i)       the nature of the order;

   (ii)      the circumstances in which the order was made;

   (iii)     any evidence admitted in proceedings for the order;

   (iv) any findings made by the court in, or in proceedings for, the order;

   (v)       any other relevant matter;

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

   (m)      any other fact or circumstance that the court thinks is relevant.

THE EVIDENCE

Documents

1. The mother relied on the following documents:-[3]

   (a)    amended initialling application filed 4 May 2017;

   (b)    her affidavit filed 9 Feb 2018 (‘the mother’s trial affidavit’);

   (c)    an affidavit of maternal grandfather filed 9 February 2018; and

   (d)    an affidavit of Dr M filed 9 February 2018.

   [3] Mother’s case outline, Exhibit E3.

2. The father relied on the following documents:-[4]

   (a)    his response filed 5 February 2016;

   (b)    his affidavit filed 7 March 2018 (‘the father’s trial affidavit’); and

   (c)    a Notice of Risk filed 5 February 2016.

   [4] Father’s case outline, Exhibit E4.

3. Both parents relied on the Family Report dated 18 July 2016 and the updated Family Report dated 10 September 2017.

The mother

1. The mother relied upon her trial affidavit.  It was read in without objection, but subject to weight.

2. The mother was cross-examined by senior counsel for the father and accepted that she should be frank.  The mother acknowledged that she was not entirely frank with the family consultant in the first Family Report where she needed to be challenged to disclose that she was not medicating.  I have had regard to this in my assessment of the mother’s evidence.

3. The mother acknowledged that the unilateral relocation to Sydney was wrong and apologised.  She said she wanted to come to Sydney and she took Y.  She consented to orders for the return of Y and herself to Suburb N in February 2016.

4. The mother’s evidence is that the children, in particular Y, were fearful of the father when he became angry and lost his temper.

5. The mother gave evidence as to the living arrangements in Suburb G which were clearly satisfactory and provided photographs of the housing.  Her parents’ home is a large home that has two living spaces and the parties have lived there for the first seven or so years of their marriage.

6. The mother has had a meeting with the principal of the local private school and provided details of its curriculum.[5]

   [5] Exhibit E10.

7. The mother claimed a history of physical and emotional abuse by the father and sets that out in her trial affidavit.  As I have said earlier, I accept and prefer her evidence that there was violence during the marriage, however, I am satisfied that it is, at some levels, exaggerated.  This is because the mother’s evidence is that whilst the father is at times angry the children should continue to spend time with him including five days a week during school term, if he lives close to where the children live, or two nights every second weekend otherwise and half school holidays.

8. The mother has provided evidence as to the father’s treatment of the children, including the way he would physically discipline them.  She said it began when X was aged 11 and Y was 9.  She sets out a history of that, including that X has now been able to manage her father’s conflict by her determination and force of character.

9. Y is more exposed to the violence.  I generally accept the mother’s evidence in relation to that including her evidence of some unhappy times in January when the father and children had a holiday in Asia.  That evidence of the mother is, to some extent, supported by statements made by the children to their treating psychologist and to the family consultant.

10. The mother has made it clear that irrespective of the outcome of the proceedings, for her own health, family support and a variety of other reasons set out in her affidavits, she will move to Sydney, although she said she was open to delay that move until 2018, but would prefer it to occur in the middle of 2018.  I accept that evidence.

11. The mother said, and I accept, that Y wants to live with her.  It is clear that the mother has, to some extent, enmeshed the children and influenced the children.  I am satisfied that the father has done likewise.

12. The mother has maintained a relationship with the father’s family most of whom live nearby the Suburb G area.  She has facilitated time between the father’s family and the children when they were in her care.

13. The mother’s clinical notes[6] from O Hospital were exhibited in these proceedings and gave details of her condition in 2012.  I have had regard to those clinical notes and they have assisted me in the determination that the mother at times exaggerates or understates events given her objective views of the events. 

    [6] Exhibit E7.

14. I had regard to the notes of P School, in particular with regard to the struggles of Y in 2015.  That was hardly surprising given that the children were endeavouring to cope with the break-up of their parents’ marriage.

15. There was an issue between the parties as to whether the mother restricted the time the children spent with the father when they were both living at Suburb N.  What is clear is that the children have retained a close relationship with each parent. 

16. There was evidence about the mother caring for the children and the father adopting a laissez-faire approach to parenting, except where he loses his temper.  I accept that this is likely to continue to be the case.  That is however not a significant feature in this matter.

17. As I indicated earlier, the mother conceded against interest that in June 2006 she slapped X’s face when the child made a terrible comment in respect of her brother.  The mother apologised for that behaviour.

18. I raised with the mother whether the decision as to where X lives ought to be left to the child.  The mother said it should not as it would place too much pressure on the child.  That concern was also supported by the family consultant.

19. I find that the mother was generally a truthful witness. She made admissions against interest to the Court and the family consultant.  This included the assault on X and some of her interactions with the father.  She has facilitated the children’s contact with the paternal grandparents.

20. The mother gave her evidence carefully.  As such, I am satisfied that the mother is endeavouring to be generally frank in her evidence, although it is significantly coloured by her own perceptions. 

The maternal grandfather

1. The maternal grandfather gave evidence in accordance with his affidavit filed 9 February 2018.  He had the assistance of a telephone interpreter.  There was some implied criticism of him in relation to the interpreter.  Given his accent, I have given no weight to any such criticism.

2. His evidence served no significant value apart from the description of the home in which the mother seeks to live, and that he accepts that he still loves the father as he is the father of this witness’ grandchildren.

3. There is no evidence that the maternal grandfather will endeavour to poison the children against the father in his household.  In any event, the mother and children would live in a separate part of the home. I generally accept his evidence.

The father

1. The father gave evidence in terms of his very lengthy trial affidavit filed 7 March 2018.  The affidavit included some 79 or so pages of typed material.  The amount of information was disproportionate to that which was needed in this case.

2. It is the father’s case that the children will live with him and he proposes to retain the house in Suburb N.  He is currently staying in rented accommodation in F Town, for which company pays $1,200 per week in rent.

3. The father remains concerned about the mother’s ability to comply with medication.  He is concerned that she had stopped taking medication.  There was exaggeration in terms of his concerns in that regard.

1. There are some examples of the father being, at times, vindictive.  The father claimed his removal of the mother from their health insurance policy was done at her request, but there is no evidence of him informing her of his intention and the mother only found out that it had occurred when she needed medical treatment.  It seemed a somewhat petty and vindictive approach on his behalf.  The father’s evidence in paragraphs 397 and 398 of his trial affidavit were of a conversation where he simply cut the mother out of the insurance policy.

2. The father denied any violence to the children and minimised his violence to the mother.  His explanation as to why the children’s psychologist, selected by him and to which the mother eventually acquiesced, reported information on violence in regard to the children, was that it was likely that they have been coached by the mother.

3. The family consultant said the children, particularly X, were unlikely to have been coached. 

4. I am satisfied that the father is short tempered and uses intimidation and threats to try to achieve discipline with the children.

5. The father conceded that if the mother was stable the children should live with her primarily in F Town.  He agrees that there was substantial agreement between the parties in September 2017, when the family consultant reported:-

   Agreements reached:

   1.      The parties reached some agreement on the day of interviews as follows:

   On a final basis:

   ·the parties will have joint parental responsibility for significant decisions for the children

   ·the children will live with the mother if the mother's mental health is stable

   ·if the children remain living in the [F Town] area, they will spend time with the father as is currently ordered

   ·if the children live in Sydney and the father lives in the [F Town] area, the children will spend each alternate weekend from Friday to Sunday and half school holidays with the father

   ·If the children live in Sydney and the father relocates to live in Sydney, the children will spend time with the father as is currently ordered

   ·the father will not make physical contact with the children when verbally disciplining them

   ·the father will ensure he does not stand close to [Y] when verbally disciplining him, rather they will take seats when the father is verbally disciplining [Y]

6. The father was cross-examined about living in Sydney.  As I indicated earlier, the parties are educating Y at a private school in the F Town area at a cost of $24,000 per year.  The father is paying rent of $1,200 per week; previously it had been $550 per week.  The school fees are being drawn against the mortgage.  The father asserted in a financial statement that his living expenses exceeded his income by about $600 per week, making a total loss of about $30,000 per year.  The father is seeking to retain the Suburb N property if possible.  His interest in the business, at least some years ago, was about $650,000.

7. Senior counsel for the mother submitted that the father was prepared to lie for advantage. In this regard the father made serious complaints about the mother’s psychiatric stability and made serous allegations.[7]  The father consented to the children living primarily with the mother on an unsupervised basis in February 2016; he raised no serious concerns in his Notice of Risk filed in the Federal Circuit Court.  He did not seek to have the mother medically examined by a single expert psychiatrist.  Given those circumstances, I adopt the submission by senior counsel for the mother as to an adverse inference being drawn in relation to the genuineness of his asserted beliefs regarding the mother’s mental health.

   [7] Father’s trial affidavit, paragraphs 28.7 to 28.10 and 288 onwards. 

8. The other concern is the father’s blanket denial of violence.[8]  There are the concerns raised by the children on the recent trip to Asia and the evidence of the family consultant.

   [8] Ibid, paragraph 370 in general and 371 to 413.

9. Given the father’s history of working at times in Sydney and the nature of his business I am satisfied that if he chose he would be able to run the business and to live in the Sydney area.  It would not be easy, but it would be possible.

10. For the reasons set out earlier the Court has concerns about the reliably of the father’s evidence.  His suggestions of the mother coaching these children and the children, particularly X, acquiescing to such an approach is inherently implausible.  

The family consultant

1. The family consultant provided two Family Reports: the first in July 2016 with interviews in that month[9] and the second report was dated 10 September 2017.[10]

   [9] Exhibit E16.

   [10] Exhibit E17.

2. The qualifications of the family consultant were not challenged.

3. She said that the father’s failure to acknowledge his aggression was troubling or concerning.  She confirmed that when she last saw X that child wanted to stay at her current school in Suburb E.

4. In cross-examination by senior counsel for the father, the family consultant said that the mother taking the children to the medical appointment with her endocrinologist was a form of pressure.  The family consultant said that Y was subject to pressure and feels the need to support his mother.

5. The family consultant accepts that there have been episodes of past reluctance by the mother to medicate.

6. It is the view of the family consultant that Y was probably intimidated by the father at times.

7. I accept the family consultant’s evidence as reliable and of great assistance.  I note her recommendations in the second report.[11]

   [11] Exhibit E17, paragraphs 71 to 83.

8. The family consultant also said that X in particular could make decisions about where she would stay, but that the decision would not be about geography.  It was likely, from X’s point of view, to be about selecting one parent over the other which this young woman was, understandably, not wishing to do.

9. I accept the submission by senior counsel for the mother that the family consultant’s evidence supports the proposition that the children should live primarily with their mother.

Dr M

1. Dr M provided evidence contained in his affidavit filed 9 February 2018. He the mother’s treating psychiatrist.  His professional qualifications were not in issue.

2. The father did not accept the evidence of Dr M, but sensibly decided not to cross examine him given his professional relationship with the mother.

3. The approach was to the credit of the father in terms of his approach to parenting the children.   

4. Dr M’s affidavit contains his reports dated 29 January 2018 and 9 May 2017. Tendered in evidence was his report dated 5 December 2016.[12]  I have read that material and generally accept the reliably of it.

   [12]Exhibit E15, report of Dr M dated 29 January 2018, page 3, of the report and pages 14 of 19 of the affidavit.

5. Dr M does not believe that the mother constitutes a risk to the children.  He says the mother is generally compliant with medication and will benefit living closer to her family.  He opines that since April 2016 the mother has been managing her condition without medication, except for periods of stress with approaching Court events.  

6. Given the evidence of the mother and the family consultant, I am satisfied that the evidence of this witness is reliable.

Findings

1. The mother has family in Sydney who will provide financial and emotional assistance.  Importantly, the mother will have the support of her family in the context of her mental health concerns, which in turn will predicate against a relapse in her health symptoms.  In particular noting the opinion of Dr M when he observed of the mother:-[13]

   4.      … The self-care strategies are reliant on her close and trusted relationships with friends and family who are able to respond immediately to her needs and are strong protective factors against relapsing illness.

   [13] Ibid.

2. I am satisfied that the mother will facilitate the children’s time with the father and that she has shown willingness to facilitate time with the children and the father’s family in the Suburb G area.

3. The father has engaged in violence to the mother and children.  He has failed to acknowledge any level of this violence and intimidatory behaviour.  I am concerned that the father would have difficulty with his temper if the children were residing with him full time during school term, particularly with the vulnerability of Y given his gentle nature, and X with her spirited nature.

4. I accept that there are genuine and mature views of the children: X wishes to remain in the F Town area and Y wishes to live with his mother in Sydney.

5. Given the evidence of the family consultant and the mother it seems likely that X would be compliant with an order to relocate.

6. The father gave evidence of a dramatic event regarding Y in 2017, he said:-[14]

   313.  On 7 April 2017, while the children were living with me, I received a telephone call and an email from [Y’s school] advising me that [Y] and a number of other boys had suffered a needle stick injury while at school. One of the boys was ‘playing’ with a diabetic’s Accu view lancing device.

   314.  I emailed [the mother] as soon as I’d become aware of the situation and made a doctors appointment for a blood test the next day. [Y], [X] and I were in the car on the street out the front of my house headed off to do some stand up paddle boarding.  [The mother] drove her car around the corner at a furious speed & pulled up suddenly diagonally across the road and stopped in front of my car using her car to stop me.  She then used her hand to give me a signal to stop driving. Which, while in the middle of the road, I did.  [The mother] then drove her car so rapidly and violently forward up a gutter that she popped both front tyres.    

   [14] Father’s trial affidavit. 

7. The mother gave a more sober account of the event, which in balance I prefer.  I am satisfied that the father exaggerated and catastrophised this event.

8. The father’s nature, his false denial of violence and his assertions that the children’s statements about his evidence were coached or fabricated causes me to have concerns that he would not promote the relationship between the children and the mother. 

9. I add that both parties have at times exerted pressure upon the children to fashion their wishes to achieve the outcomes their parents seek.  

10. The children have a meaningful relationship with the both parents and the children want these relationships to continue.

11. I am satisfied that it is in the best interests of these children to live with their mother in the Suburb G area.  The mother will be better able to care for the children and meet her own health needs in that location.  I am satisfied that she is and has at all relevant times been the primary carer of the children.

12. Such a move would mean a change of school for the children.  In terms of Y he is well able to attend B School and I am satisfied, given the financial circumstances of the parties, that the parents would struggle to continue to meet the costs of private education in F Town.  X would be likely be able to attend B School or endeavour to transfer to C School or D School, both of which are selective high schools.   

13. The children, particularly X, ought not to be put in the invidious position of picking one parent over another.

14. However, given her age and high level of academic achievement, should X decide that she wishes to spend her final years at E School, the orders will accommodate that decision.  

15. I was conscious in making this decision that it would involve the children moving from Suburb N and from F Town, where they have friends and communities.  Y has been at his present school since February 2016.

16. As to the father, he has available to him the family home in Sydney and he has a history of working in Sydney, from F Town between 2006 and 2010 for two to three days per week.

CONSIDERATION OF S60CC FACTORS

1. I am required to consider the relevant factors under s 60CC of the Act in determining these parenting issues. In considering these factors, I have had regard to all of the relevant evidence provided during the hearing and findings made by me.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents;

1. These children have a close and loving relationship with both parents.  Irrespective of the outcome that circumstance will not change.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

1. Family violence plays a small part in these proceedings.  Neither parent asserts that the other presents as an unacceptable risk to the children.  Each contends that the other should spend significant unsupervised time with the children.

2. The violence and mental health issues are raised as a factor regarding with whom the children should primarily live during school term, given that the father proposes to live in F Town and the mother in Suburb G.  They are the two geographic constraints upon which this case is to be determined.

3. I have had regard to those violence issues raised by each party in this determination.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

1. X does not wish to move to Sydney, but will do so if orders are made.  I have given considerable weight to her views.  In doing so I have made the order enabling X to select a school, which may be her present school.

2. Y’s wish is to live with his mother, and that includes living with her in Sydney.

3. I have had regard to the evidence of the family consultant who says of Y’s views:-[15]

   59.    [Y] was able to state his clear views on the proposals of both parties. He states he would prefer to relocate with the mother to live in Sydney and spend two nights a fortnight and a greater portion of each school holiday period with the father.

   60.    These views are not developmentally appropriate as most adolescents become attached to their school and peer group relationships. [Y] appears to have a long standing significant wish to live in Sydney whether the mother lives in Sydney or not however he is still unable to clearly state the attraction living in Sydney has for him. It may be that [Y] is confident that the mother would relocate with him and as he has always felt a closer relationship with the mother than with the father and as he is aware that the mother is very keen to live in Sydney that this has become his clear stated wish.

   [15]Exhibit E17, Family Report 10 September 2017, page 14.

4. I accept that evidence and I have given his views significant weight.

Section 60CC(3)(b) the nature of the relationship of the child with:

(i)each of the child’s parents; and

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

1. Each of the children has a close relationship with the parents. I have found that the mother is their primary carer.  To a certain extent this is confirmed by the father in that if the mother remains in the F Town/Suburb N area, he proposes that the children live primarily with her.

2. The extended family of the children live primarily in the Sydney area and the children have close and ongoing relationships with the broader family. The mother supports these relationships.

3. I accept the observation of the family consultant when she said:-[16]

   62.    It is clear that both parties have love and affection for the children and the children have love and affection for both their parents. It is of concern that both parties continue to be critical of each other's parenting ability and of concern that they are still unable to communicate with each other about the children, unless via email. It is hoped once they have both competed the Parenting After Separation programs, that their co-parenting ability may improve. It is sad that (sic) the children that they are aware that their parents "hate" each other and this will likely cause a degree of ongoing psychological stress for the children. Neither child makes any significant complaints about either of the parties and both children report to enjoy the current time they spend with each parent.

Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

1. to participate in making decisions about major long-term issues in relation to the child; and

2. to spend time with the child; and

   [16] Ibid, page 15.

(iii) to communicate with the child;

1. I repeat that the mother has been and continues to be the primary carer of both children.  I accept counsel’s for the mother’s submission that the mother works part-time and is the parent most available for the day to day care of the children.

2. Each parent has participated in making decisions about major long-term issues in relation to the children.  The mother made a unilateral decision to relocate to Sydney in 2016 contrary to the wishes of the father.  The parents struggle to create a collaborative and joint approach to decision making.  Senior counsel for the mother said in his final submission and I agree that:-[17]

   The co-parenting relationship between the parents is poor and both parents criticise the other for having made unilateral decisions with respect to the children post separation. For example, the Father proceeded with the enrolment of [Q School] and have him attend upon a school counsellor contrary to the Mother’s wishes. Despite these obstacles, both parents agree that it is appropriate that they share parental responsibility for the children and for each parent to participate in decisions about major long-term issues for the children

   [17] Exhibit E18, mother’s outline of submissions, page 17.

3. Each parent spends time with the children and each communicates with the children. I am satisfied that each parent to a greater or lesser degree have sought to align the children to their cause.

Section 60CC(3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

1. This was not the subject of any meaningful submissions.

Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

1. either of his or her parents; or

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

1. Given the positions of each parent, the children will be geographically separated from one or other parent.  It may also be that the children are separated during school term weeks, if X choses to remain at E School.

2. I am satisfied that there is likely to be an impact on both children being separated from one or other parent as will inevitably be the case, whatever the outcome.  Y’s preference and his relationship with his father is as set out by the family consultant, which I accept:-[18]

   64.    It is pleasing that both children report a lessening of the denigration by each party of the other party and positive that [Y] reports to no longer feels fearful of the father when the father becomes annoyed/angry with him. It is important however that the father remains cognisant that [Y] can still feel intimidated, if he feels "cornered" by the father or if the father holds him, when verbally chastising him.

   [18] Exhibit E17 - Family Report 10 September 2017 – page 15.

3. On either parent’s case there will be an inevitable change in the children’s circumstances upon the making of final orders.  The future with respect to schooling is plainly unclear as the existence of an order requiring borrowings to meet the fees of a private school for one child is as unrealistic as it is unsustainable.

4. I have considered the impact of change of school on both children.  I am satisfied that there are schools available in the Suburb G area which can meet the educational needs of the children.  I will, however, delay the change until the end of the 2018 academic year.   

1. If I leave the children in the F Town area it will mean that that are separated from their primary carer and it will be contrary to the wishes of Y.  A change to Sydney will be contrary to the views of X, although it is likely that she will accept the change and adapt to it.

Section 60CC(3)(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

1. With either decision there will be practical difficulties and expense.

2. These children have spent significant time with each parent since separation.  This will change during the school terms.  It is impracticable for travel between Sydney and F Town during the school week as this would impose a significant travel burden on the children.

3. Travel between Sydney and F Town is serviced by train.  The children are old enough to use that mode of transport unaccompanied.  As such travel problems are relatively easily overcome.

Section 60CC(3)(f) the capacity of:

1. each of the child's parents; and

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

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

1. Both parents have the capacity to meet the needs of these children, including their emotional and intellectual needs.

2. Each parent has issues in terms of their parenting: the father with his quick temper, his violence and intimidatory behaviour, and the mother with her anger at times and at times her mental health symptoms and depression.  Each parent has spent time in this process trying to exploit and highlight the deficiencies of the other parent, and the perceived deficiencies of the other insofar as parenting is concerned.

3. On balance, I am persuaded that the mother has the superior capacity to meet the needs of these particular children.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

1. The maturity of each of these children has been a factor in this case and I have had regard to it.

2. I have had regard to their background in living in the Suburb N/F Town areas.  

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

1. the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

2. the likely impact any proposed parenting order under this Part will have on that right;

1. This is not a relevant consideration.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

1. Each parent, with their respective strengths and weakness to which I have referred elsewhere in these reasons, have demonstrated a strong and loving attitude to the children and to the responsibilities of parenthood.  

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;

1. I have considered the family violence to which I have earlier referred. I have had significant regard to it within the constraints of the various proposals open to me.

2. As to the mother, I accept she has taken responsibility for her conduct and has expressed remorse.  The father has not done so.  

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:

1. the nature of the order;

(ii)the circumstances in which the order was made;

1. any evidence admitted in proceedings for the order;

(iv)any findings made by the court in, or in proceedings for, the order;

1. any other relevant matter;

1. No submission or evidence was produced in this respect.

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 child;

1. In terms of X I have constructed the orders to meet her schooling needs. She attains the age of 16 years later this year.  Given her strong personality, she is likely to make up her own mind as she passes from her teen years into adulthood over the next few years.  I propose to make orders to enable her to complete year 10 at her present school.  There is unlikely to be further litigation regarding her.

2. As to Y, he will be living with his mother and seeing his father regularly.  If his father moves back to Sydney, which is a possibility, Y shall spend significant and substantial time with him.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant;

1. Senior counsel for the mother submitted and I accept that:-[19]

   In this case, availability to care for the children when not in school is a factor for the Court’s consideration.  When pursuing his case and resident in Suburb N, the Father’s position was that he could work from home, that his partner was prepared to stand-in for him when necessary to facilitate hands-on care of the children.  He has now relocated to F Town approximately an hour’s drive from his business premises.  That has not, apparently, impeded his capacity to satisfactorily undertake his work as a co-owner of the business.  Sydney is further away but the business has premises there.   Accepting the Father’s case and the children remain in F Town, then save for the Friday afternoon in each alternate week, if he is on-site in the business premises then the children will be unsupervised in F Town from after school until somewhere between probably 6.30 pm and 7.00 pm each night.  They will not have the support, as would be the case in Sydney, of maternal, paternal and wider family adult support.

   [19] Exhibit E18, mother’s outline of final submissions, page 22.

DISCUSSION AND CONCLUSION

1. I need to consider this as a parenting case which involves a relocation case within the construct of the competing parenting applications.

2. As to relocation the principles emanating from B v B Family Law Reform Act 1995 (1997) FLC 92-755, A v A: Relocation Approach (2000) FLC 93-035 and the High Court in U v U (2002) FLC 93-112 are that relocation cases are not a special category of parenting cases and the same statutory path ought to be followed. Further, in A v A: Relocation Approach (supra) the Full Court said the following matters need to be considered when dealing with such applications as set out in paragraph above:-[20]

   [20] Pages 87,531-87,533.

   ·The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.  

   ·A court cannot require the applicant for the child's relocation to demonstrate ''compelling reasons'' for the relocation of a child's residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances.  

   ·It is necessary for a court to evaluate each of the proposals advanced by the parties.  

   ·A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be ''permitted''.  

   ·The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.  

   ·It is necessary to follow the legislative directions espoused in s 60B and s 68F of the Family Law Act 1975 (Cth). The wording of s 68F(2) makes clear that the Court must consider the various matters set out in (a)-(l) of that subsection.

   ·The object and principles of s 60B provide guidance to a court's obligation to consider the matters in s 68F(2) that arise in the context of the particular case.  

   ·It is to be expected that reasons for decision will display three stages of analysis and:  

   1.A court will identify the relevant competing proposals; 

   2.For each  relevant s 68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s 60B; 

   · As one, but only one, of the matters considered under s 68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755 is no longer an accurate statement of the law.

   ·     The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.  

   ·     Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.  

   3.On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child's best interests are the paramount but not sole consideration.  

   ·The process of evaluating the proposals must have regard to the following issues:  

   a) None of the parties bears an onus:  

   ·In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.  

   b) The importance of a party's right to freedom of movement:  

   ·In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s 92 of the Constitution, where applicable.

   ·In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child's rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.

   c) Matters of weight should be explained:   

   ·In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss 60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.  

   ·In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.  

3. This outline, of course, must be considered in reference back to the best interests of the child.

4. A Court cannot require the applicant for a child’s relocation to demonstrate any compelling reasons.  In this case there are no compelling reasons, one way or the other.  The father wishes to remain in the F Town area and close to his business and where the children have grown up, attended school and been involved in activities such as surf lifesaving and the like.  The father would consider moving to Sydney:-[21]

   69.    The father states, if the children are permitted to relocate to live in Sydney, he would consider relocating to Sydney to be able to continue to spend substantial time with the children, however he claims this will result in his having to leave his business and become unemployed and will cost him a significant amount of money.

   [21]Exhibit E17, Family Report 10 September 2017, page 16.

5. The mother wants to move to Sydney for a variety of reasons, but none are compelling.  The family consultant observes:-[22]

   67.    The mother concedes it has been her wish since separation, to relocate with the children to live in Sydney, to be surrounded by her extended family. Following discussions, the mother concedes she does not need to live in Sydney due to her physical or mental health needs and concedes due to the grandmother's current physical health status, the mother does not need to live in Sydney to actively support the grandmother's health needs.

   [22] Ibid, page 15.

6. Neither party wants the children to live in separate households.[23]

   [23]Ibid, page 16.

7. I have considered and evaluated the competing proposals in the context of the residence applications.  I have weighed the evidence and the submissions of both parties considering the advantages and disadvantages for the children in terms of their best interests.  This includes the primary carer, endeavouring to enable the children to remain in the same household, the strengths and weakness of the parenting capacities of both parents and the other matters to which I have alluded in these reason.

8. The mother is determined to move to Sydney and I accept that she will do so. The father wishes to remain in F Town, but is open to moving to Sydney.

9. Of course, I am bound to follow the necessary legislative pathway, such as it is, and consider the objects, principles and the matters under s 60B and consider the matters under s 68F(2) of the Act that arise in the particular case. In doing so I am conscious and will set out that no party bears any onus.

10. I have to have regard to the importance of a party’s right to freedom of movement and, of course, any outline and any principles must be considered in reference to the best interests of the child. 

11. His Honour Watts J in East & Loewe (2015) FamCA 517 referred to the Full Court decision in Tyler & Barker (2007) 37 Family Law Reports 461 which describes the mother’s happiness and contentment as a significant matter because it impacts on the child’s happiness and contentment.  I have considered that in the context of this decision.

12. Notwithstanding their criticism of each other, neither party seeks to rebut the presumption of equal shared parental responsibility.  Having considered all of the evidence I am satisfied that there ought to be an order for equal shared parental responsibility and I will make that order by consent.

13. Given the factors considered and set out earlier I propose to make orders that the children live with the mother.  Consequently, I propose to allow the relocation of both children to Sydney.  This will happen at the conclusion of the 2018 academic year and to facilitate this I will make an order that both parents will do all things to ensure that Y is enrolled in B School for the 2019 academic year, this is the high school of the father and in which the parties seem to agree.

14. In relation to X I would not normally have made an order regarding residence her given her age and maturity and by the time this order comes into effect she will be over the age of 16.  However, whilst she is a mature young woman able to make her decisions, she does not wish to be placed in the circumstance where she is seen to pick one of her parents over the other.  That is a reasonable, rational and frankly sensible approach.

15. What I intend to do is provide that X live with her mother in Sydney.  In that respect I will be directing the parents to facilitate her in terms of observing and considering which school in Sydney she would prefer to attend, whether that be B School with her brother, C School or D School, both of which are selective high schools, and if she is able to be accepted in one or other of those schools.

16. Furthermore, I intend to make an order that, given her age and maturity, if she decides, of her own accord, to remain at E School for years 11 and 12 she may do so.  Accordingly, I will direct that the parents accommodate her decision about what education is best for her.

17. I have considered equal time.  When the mother moves to Sydney and if the father remains in F Town such an outcome would be impracticable, given the schooling needs of the children and the geographical circumstances of the parties.

18. If the father moves to Sydney, I considered equal time.  For the reasons articulated above, particularly the factors of the violence of the father and his failure to acknowledge it, the role of the mother as a primary carer and the like, I have concluded that equal time is not in the best interest of these children.

19. I have considered significant and substantial time.  When the mother moves to Sydney and if the father remains in F Town such an outcome would be impracticable, given the schooling needs of the children and the geographical circumstances of the parties.

20. If the father moves to Sydney, I considered significant and substantial time.  For the reasons articulated above I have determined that if the father moves to Sydney there ought to be significant and substantial time.

21. If the father decides to remain living in the F Town area and the mother decides to live with her family in the Suburb G area, then the parenting arrangements will be that the children spend half of each school holiday with each parents, subject to adjustments given the age, maturity and interest of each of the children, and the children will spend each alternate weekend with one parent or the other, and that such weekend time be harmonised so that the children spend each weekend together.

22. I will make no orders as to telephone communication, but make it clear that each of these children have their own electronic devices and are free to contact one parent or another in terms of communication.

23. Given the above, I will so order.

I certify that the preceding one hundred and eighty-seven (187) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 25 May 2018.

Associate:     

Date:              25 May 2018