Kliger and Meadows

FEDERAL CIRCUIT COURT OF AUSTRALIA

KLIGER & MEADOWS

[2014] FCCA 2295

Catchwords:
FAMILY LAW – Parenting proceedings – relocation – two children, girl aged 8 and a half years at hearing, boy aged 5 and a half years at hearing – former family home in (omitted) NSW – mother working in Sydney but returning to (omitted) NSW each fortnight to spend a week with the children – father spending one week on a fortnightly basis with the children – mother proposing to move to Sydney with both children – father opposes relocation – best interests of children.

Legislation:
Family Law Act1975 (Cth) Part VII

Cases cited:
D & SV [2003] 30 Fam LR 91; FLC 93-137
Pascale v Pascale (1999) FLC 92-878; 25 Fam LR 607
Goode & Goode [2006] FamCA1346; (2007) 36 Fam LR 422
Taylor & Barker [2007] FamCA1246; (2008) 37 Fam LR 461
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92, (2009) 41Fam LR 483
G & C [2006] FamCA 994
MRR v GR [2010] HCA 4; (2010) 42 Fam LR 531
Sayer v Radcliffe & Anor [2012] FamCAFC 209; 48 Fam LR 298
Sampson v Hartnett (No.10) [2007] FamCA 1365; FLC 93-350

Applicant:

MS KLIGER

Respondent:

MR MEADOWS

File Number:

NCC 2792 of 2012

Judgment of:

Judge Coakes

Hearing dates:

18 and 19 September 2013

9 and 10 December 2013

Date of Last Submission:

10 December 2013

Delivered at:

Newcastle

Delivered on:

22 October 2014

REPRESENTATION

Counsel for the Applicant:

Mr I Duane

Solicitors for the Applicant:

Flintoff Lawyers

Counsel for the Respondent:

Mr M Graham

Solicitors for the Respondent:

Lindeman Lawyers

ORDERS

All previous parenting orders are discharged.
The parents have equal shared parental responsibility for the children X (a female) born (omitted) 2005 (“X”) and Y (a male) born (omitted) 2007 (“Y”) (“the children”).
Each parent is to have sole parental responsibility for making decisions about the children’s day to day care, welfare and development whilst they are in her or his care respectively.
The parents are to consult each other in relation to any long term issues affecting X or Y or both of them and are to make a genuine effort to come to a joint decision about issues concerning their care, welfare and development of a long term nature (but are not limited to) issues of that nature about:
(a)The education of either of them, both current and future;
(b)The religious and cultural upbringing of either of them;
(c)Their health;
(d)Their name;
(e)Changes to living arrangements for either of them that make it significantly more difficult for either of them to spend time with either parent.
During school terms applicable at the schools attended by the children the children are to live with the father from the commencement of school on the first day of each new school term until the conclusion of school the following Monday and from the commencement of school on the Monday seven days later for a period of seven days and alternating in such fashion for the remainder of the school term.
During school terms applicable at the schools attended by the children the children are to live with the mother from the conclusion of school on the second Monday of each new school term until the commencement of school the following Monday morning and from the commencement of school on the Monday seven days later for a period of seven days and alternating in such fashion for the remainder of the school term.
The children live with the mother during the first half of all school holiday periods applicable at the schools attended by the children in even numbered years and for the second half of all school holidays in odd numbered years with such half to be determined by calculating the number of days from 10.00am on the last day of the immediately preceding school term until and including the day immediately preceding the commencement of the new school term and dividing such number by two and in the event that this results in an odd number than the extra day is to be spent with the mother.
The children live with the father during the second half of all school holiday periods applicable at the schools attended by the children in even numbered years and for the first half of all school holidays in odd numbered years with such half to be determined by calculating the number of days from 10.00am on the last day of the immediately preceding school term until and including the day immediately preceding the commencement of the new school term and dividing such number by two and in the event that this results in an odd number than the extra day is to be spent with the mother.
The orders referred to above are varied or suspended as the case may be to ensure that:
(a)Both children spend the Mother’s Day weekend with their mother from the conclusion of school on the Friday until return to school on the Monday morning;
(b)Both children spend the Father’s Day weekend with their father from the conclusion of school on the Friday until return to school on the Monday morning.
The children are to have liberal telephone communication with the parent with whom they are not then living or spending time at any time as reasonably requested by either of them, and with each child to be afforded privacy during such communication.
Nothing in these orders precludes the parents from agreeing with each other for the children to spend time with either parent over the Christmas period between 24 December and 26 December and the New Year from 31 December until 1 January or any other time.
Each parent is restrained from denigrating the other parent and members of the other parent’s families in the presence or hearing of either child, including the making of rude comments, making insulting comments, swearing at, shouting at, and making any obscene gesture or behaving in such a way that it is intended that the child would have a poor opinion of the other parent or think ill of the other parent, and each parent is further restrained from causing or permitting any other person from engaging in such behaviour in the presence or hearing of either of the children.
Both parents are to authorise the principal of the schools attended by the children from time to time to supply to the other parent any information they require including but not limited to copies of all school reports, examples of school work, school newsletters, notifications of all school activities, parent/teacher nights and each parent is permitted to attend any activity whether sporting, cultural or otherwise at the school to which parents are invited.
Each parent is to authorise any treating medical practitioner, dental practitioner, hospital or medical practice attended by the children from time to time to provide to the other parent any information regarding any treatment of or medication prescribed for that child.
Each parent is to notify the other parent urgently by the best available means including but not limited to telephone, text message, email or instructing another person to convey such notification, in the event of any of the following occurring:
(a)Either child being seriously injured or falling seriously ill;
(b)Either child requiring urgent medical attention from a doctor or ambulance crew;
(c)Either child being involved in an accident or being admitted to hospital.
Each parent is to provide to the other parent any change of particulars of residential address, landline telephone number, mobile telephone number, and, if applicable, any email address and mobile telephone number of either child, and within 24 hours of such change occurring.
Unless otherwise agreed in writing between the parents they are to cause the children to live in the (omitted)/(omitted) District of New South Wales and attend (omitted) School.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2792 of 2012

MS KLIGER

Applicant

And

MR MEADOWS

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by the mother to change the place of residence of the two children from (omitted) NSW to Sydney based on the premise that she is able to secure better employment opportunities in Sydney and consequently earn a greater income than she would in (omitted) NSW and therefore be better able to provide for both children.
The father lives in (omitted) and he opposes the children moving to Sydney. His case is that the mother is able to secure appropriate employment in the (omitted) or Mid North Coast districts and that it is in the best interests of the children to live on a week about basis with each parent in (omitted).
It is also the father’s case that for some time the mother has worked in Sydney and that she has been able to return to (omitted) and remain there for a week at a time on a fortnightly basis which thus enabled the parents to put into place the week about regime which was in existence at the time of the hearing and had been in place from November 2012.
The current operative parenting orders made on 23 November 2012 reflect this arrangement and to which I will refer in more detail below.
The two children the subject of these proceedings are X (a female) born (omitted) 2005 and 8 years and 7 months of age at the time of the hearing (“X”) and her younger brother Y (a male) born (omitted) 2007 (“Y”) and 5 years and 8 months of age at the time of the hearing. Both children attend (omitted) School in (omitted) where X was in Year 3 at the time of the hearing and Y was in Year 1.

The respective applications at the hearing

At the commencement of the hearing, and for a number of practical purposes, the mother was deemed to be the applicant and the father was deemed to be the respondent and to which both Counsel consented.

The mother

The mother sought final orders for parenting in accordance with her response filed 19 November 2012, namely that the parents have equal shared parental responsibility for the children, that the children live with her and that the children spend time with their father as agreed between the parents but in the absence of agreement each alternate weekend, by inference during school terms from 6.00pm on Friday until 6.00pm on Sunday and for the second half of the school holidays at the end of terms one, two and three and in odd numbered years for the first half of the Christmas school holiday periods including Christmas Day. The mother was silent as to any proposal for the children spending time with the father during the Christmas school holidays commencing in even numbered years, but I infer this was an oversight as opposed to a deliberate omission. The mother proposed that changeover take place at (omitted), a place approximately half way between Sydney and (omitted), unless agreed this could occur elsewhere.
The mother proposed a number of other practical orders in relation to telephone communication, the obtaining of medical and educational information and a restraint as to speaking poorly about the other parent to the children.
The mother sought orders in relation to alteration of property interests but I was informed at the commencement of the hearing that the property matter had resolved although consent orders had not been presented at the conclusion of the hearing.

The father

The orders sought by the father were found in the Outline of Case Document prepared on his behalf by his Counsel and catered for two scenarios.
First, if the mother moved to Sydney the father proposed that the parents have equal shared parental responsibility for the children, that both children live with the father and spend time with the mother on the first weekend of each month from 4.00pm on the Friday until 4.00pm on the following Sunday, and by inference during school terms, for the first half of all school holidays in even numbered years and the second half in odd numbered years, and by telephone at any reasonable time. The father proposed some injunctive relief and other practical parenting orders.
Under the second scenario, that is if the mother remained living in (omitted), the father again proposed equal shared parental responsibility and that the children live with each parent on a week about basis from the conclusion of school on the Monday until the commencement of school the following Monday and to continue during school holidays save that such arrangement would be suspended during the Christmas school holidays when the children would spend time with the father for the first half of such holiday periods in odd numbered years and for the second half in even numbered years and with the mother for the other respective halves of the Christmas school holidays, with time between Christmas Eve and Christmas Day to be spent with one parent or the other.
The father made a practical proposal as to implementation at each parent’s home.

Existing orders

The only existing operative orders are those made on 23 November 2012 by consent which provide as follows in summary form:
·   Equal shared parental responsibility for the children.
·   Children spend time on a week about basis with each parent from after school if a school day, or at 3.30pm if a non-school day which commenced with the father on 7 December 2012 and suspended only between 6.00pm Christmas Eve until 12.00 midday Christmas Day when the children were to spend time with the parent with whom they were not then living and from 3.30pm on 27 December 2012 until 7.00pm on 4 January 2013 when the children were to holiday with their mother.
·   The children to live in the (omitted)/(omitted) area and attend (omitted) School.
·   Father to reside in the property at Property K to the exclusion of the mother and to make all mortgage repayments to the (omitted) Bank, to maintain the property including the swimming pool appropriately, to pay all relevant outgoings including municipal rates and levies and solar panel repayments to Origin Energy and to pay the home and contents insurance.
·   The mother was required to pay the father one half of the solar panel repayments made to Origin Energy with the mother to be reimbursed for such payments from the proceeds of sale of the home upon sale, for the period the father had exclusive occupation.
·   If the father failed to comply with his obligations in relation to the home his right to exclusive occupancy would immediately terminate and the mother could reside in the property to the exclusion of the father.
·   The parties were required to enter into a Child Support agreement recognising the mother’s payment of the father’s share of the liability for the joint personal loan to (omitted) Bank and in lieu of any other liability to the father for Child Support.

Background

The mother was thirty three years of age at the commencement of the hearing and was employed as a (occupation omitted) at (employer omitted). During the time the mother is working in Sydney she either stays with friends or with her mother at (omitted) in the Western Suburbs or when in (omitted) stays at her rented villa townhouse at (omitted). The mother largely flies to and from Sydney for her work.
The father was thirty six years of age and is employed by the (employer omitted) as an (occupation omitted).
At the time of the hearing the father was renting premises at (omitted) having left the former family home at Property K.
The relationship between the parties commenced in either June or October of 2003.
The parties were married on (omitted) 2004 in (country omitted) and separated for the last time on either 13 or 15 September 2012.
On the evidence before me, neither party has re-partnered.
The children of the relationship are X and Y to whom I have referred.
The father has a child by a previous relationship namely Z who was born on (omitted) 1999 and who was fourteen years of age at the time of the hearing. Z lives with her mother Ms A at (omitted) in the (omitted) District of the Mid North Coast of New South Wales and spends time with the father fortnightly. Z also spends time with the father during school holidays and every second Easter and at Christmas. The mother and Z had a significant and close relationship.
Both parents and the children are Aboriginal. The mother describes herself as a proud (omitted) woman and grew up in a large aboriginal family in Western Sydney. The father is a (omitted) man.
The mother deposes to, and it is not disputed that the matriarchal line in her family meant that when a daughter marries, the husband joins her mob as was the case in the marriage of these parents. Consequently, the father joined the mother’s family and the children therefore follow in the mother’s line as to their aboriginality namely (omitted) and (omitted).
For the first few years of their relationship the family lived in Sydney variously in the Western Suburbs followed by (omitted) and in mid-2008 moving to (omitted) where the former family home at Property K was purchased in early 2009. The parents separated in February 2010 for about three months, and reconciled.
The date of the final separation is in dispute by two days and I will refer to the events at that time later in these short reasons for judgment but it occurred in September 2012 and the difference does not attract any particular significance by itself.

The evidence

The mother relied upon the following affidavits:
a)Her financial statement sworn 15 November and filed 19 November 2012;
b)Her affidavit sworn 15 November and filed 19 November 2012;
c)The affidavit of Mr C sworn 14 August and filed 23 August 2013;
d)The affidavit of Ms L, her older sister sworn 28 August and filed 30 August 2013;
e)Her affidavit sworn and filed 26 August 2013.
The father relied upon the following affidavits:
a)His affidavit sworn 11 October and filed 16 October 2012;
b)His affidavit sworn 18 November and filed 19 November 2012;
c)His affidavit sworn 6 September and filed 10 September 2013.
There is in evidence before me the family report of Mr P, a Regulation 7 Family Consultant published 27 March 2013 following his interviews with the mother and father, the maternal grandmother and the children X and Y on 21 March 2013.
I also had the benefit of listening to and observing the parents give evidence.
I also had the benefit of listening to the evidence of Mr P who was cross examined by both Counsel and gave evidence by telephone.
I was left with the distinct impression that both parents did their best to give evidence truthfully with both readily making concessions where appropriate.
There were the following exhibits:
a)M1 – a chain of emails between the mother, father and real estate agents dated 14 September 2012;
b)M2 – a bundle of documents relating to emails, real estate agency sales agreement and cleaning ;
c)(There is no exhibit M3);
d)M4 – a letter from (omitted) Church (omitted) to the father from Mr C dated 15 November 2012;
e)M5 – the father’s affidavit sworn 11 October 2012 and filed 16 October 2012 as to non-filing of family dispute resolution certificate;
f)F1 – letter of 16 September 2013 from the Principal of (omitted) Primary;
g)F2 – school reports for X and Y, first semester 2013 from (omitted) Primary School.

The issues

It seems to me the issues involve a careful consideration of what are the most appropriate parenting arrangements for X and Y both in the long term and the short term given the mother’s wish to relocate both children to Sydney and the father’s wish to remain in (omitted), and in particular:
a)The nature of both children’s relationship with each of their parents and members of their respective extended families;
b)The likely affect of changes in the children’s circumstances if they are to live predominately in Sydney and the likely affect, if any of separation from their father if the father is unable to spend substantial and significant time with them whether in Sydney or (omitted);
c)Whether there is likely to be any adverse affect for either or both children if they continue to live with each parent on a week about basis in (omitted) with the mother either continuing employment in Sydney during the other week and returning to (omitted) or obtaining employment closer to (omitted);
d)The practical difficulty, expense and burden of travel, if any for the children and either parent if the children relocate to Sydney to live primarily with their mother or remain in (omitted) and the mother continues to work predominately in Sydney and spend frequent time in (omitted);
e)Whether the children have expressed any wishes to which any weight can be attached or the extent to which any such wishes should be taken into account;
f)The advantages and disadvantages for the children living in either (omitted) or Sydney;
g)The capacity of each of the parents to provide not only for the children’s day to day physical needs but also their emotional and intellectual needs;
h)The ability of the parents to communicate and co-operate effectively to meet the children’s needs whether they are living in (omitted) or Sydney and in particular to foster and encourage the children’s awareness of their aboriginal culture and history against the strong background of both parents aboriginality;
i)Given the respective proposals of the parents, whether it is possible for the court to formulate different arrangements for the time the children spend with each parent.

The relevant law

I have regard to Part VII of the Family Law Act. The significant sections are, and to which I must have regard, s.60CA which provides that:
“In deciding whether to make a particular parenting Order in relation to a child the Court must regard the best interests of the child as the paramount consideration.”
I must consider, in determining a child's best interests, the matters set out in s.60CC. There are two primary considerations:
“(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.”
There are a number of additional considerations in s.60CC(3) to which I must have regard insofar as they are relevant.
I must also have regard to s.60B which sets out the objects of Part VII and the principles underlying those objects. I must have regard to s.61DA which provides for a presumption of equal shared parental responsibility when a parenting Order is made, save that the presumption does not apply when there are reasonable grounds to believe that there has been abuse of the child or family violence. The presumption may also be rebutted if there is evidence to satisfy the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
The relevance of the presumption of equal shared parental responsibility where it does apply or is found to apply is that the Court is then obliged to consider making an Order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the best interests of the child or reasonably practicable, the Court must go on to consider making an Order, if it is consistent with the best interests of the child and reasonably practicable, for the child to spend substantial and significant time with each of the parents[1].
[1] Section 65 DAA Family Law Act1975.
It is also necessary for me to consider in the context of this case established case law in relation to relocation. It has been held that relocation cases are not a special category of case. The Family Law Act 1975 does not specifically mention relocation either in Part VII or elsewhere. Cases involving relocation are best described as parenting cases where the proposal of one of the parties involves relocation[2].
[2] Pascale v Pascale (1999) FLC 92-878; 25 Fam LR 607 at para 40.
I have regard to the High Court decision in U v U (2002)[3] in which the High Court said that:
“Whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration of the welfare of the child if that were to be adversely affected by movement of a parent.”
[3] U v U (2002) 211 CLR 238; (2002) FLC 93-112.
In D v SV (2003)[4], the Full Court commented on the need to:
“Evaluate all options to determine if the welfare of the children could fit into the mother's right to live where she pleased.”
[4]D v SV (2003) 30 Fam LR 91 at 106; FLC 93-137 at 78290.
The Full Court of the Family Court of Australia late in 2007 gave consideration as to the effect of the amending legislation upon relocation.[5] In that case Brewster FM permitted the mother to relocate with a 9 year old child to North Queensland from Canberra. The Full Court found that when considering the application of s.65DAA the matters which the Court has to consider under that section, being equal time or substantial and significant time, must initially be considered without regard to any relocation proposal which might also be before the Court.
[5] Taylor & Barker [2007] FamCA 1246; (2007) 37 Fam LR 461.
The Full Court went on to say that any relocation proposal will then have to be balanced against the option of equal time or of substantial and significant time if either of those options has been found to be in the child's best interests, with the outcome normally emerging from a consideration of whether such an arrangement was reasonably practicable. The Full Court went on to say in paragraph 82:
“We also acknowledge that this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter and that, at least prior to the 2006 legislative amendments, the preferred approach was not to consider a relocation proposal separately from other proposals in relation to the child's living arrangements.”
At paragraph 83 the Full Court said this:
“However, consistently with what the Full Court said in Goode, the options of the child spending equal time or substantial and significant time with each parent must now be given separate and real consideration notwithstanding that a relocation proposal may also have to be given subsequent consideration with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an equal time or substantial and significant time arrangement. Not to approach a case involving a relocation proposal in this way would devalue the imperative imposed by the Act to consider whether it is in the best interests of the child in the case to spend equal time or substantial and significant time with each parent.”
It seems to me the Court is required to consider in a much more practical manner how a child's development can be nurtured and promoted by being exposed to and enjoying in a beneficial sense all the aspects of living with each parent. It seems to me that this requires an involvement in the whole of the ordinary household routine where it is appropriate. See the Full Court decision of Goode v Goode[6].
[6] Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422.
I have considered also the decision in Mazorski and Albright [7], another case involving relocation where Her Honour Justice Brown after setting out the definition of “meaningful” and “meaning” said at paragraph 26:
“What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.”
[7] Mazorski & Albright (2007) 37 Fam LR 518; at 526.
Section 60B (1)(a) in my view leaves no doubt as to the role to be played by either parent in having a meaningful relationship in the lives of their children.
In the Full Court decision of McCall & Clark[8] their Honours Bryant CJ, Faulks and Boland concluded that there are three possible interpretations of Section 60CC(2)(a) finding that the preferred interpretation of the benefit to a child of a meaningful relationship is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant.[9]
[8] [2009] Fam CAFC 92, (2009) 41 Fam LR 483.
[9] Paragraph 119.
The Full Court rejected the notion that a Court should assume there is a benefit to all children in them having a meaningful relationship with both parents, finding that if the legislature had intended to elevate the benefit to a child of a meaningful relationship to a presumption, then it would have said so in clear and unambiguous language[10].
[10] Paragraph 120.
Her Honour Justice Bennett discussed the terminology in G & C[11] finding that the enquiry was a “prospective” one which requires the Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[11] G & C [2006] FamCA 994.
The Full Court accepted as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazorski (supra), and consistently with their conclusions also agreed with the reasoning of Bennett J in G & C (supra).
The Full Court also said:[12]
“In reaching these conclusions, we also considered the legislation requires a Court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft Orders to foster a relationship with one parent if this would not be in the child’s best interests.”
[12] Paragraph 122.
I take into account also the judgment of the High Court in MRR v GR[13] and the requirement for the Court to consider the inherent difficulties for parents who live some distance apart and the consequent stress or other adverse impact which may affect either parent but more importantly the child and the reality of the situation required to be considered pursuant to Section 65 DAA(1).
[13] [2010] HCA4; (2010) 42 Fam LR 231.
I note also the recent Full Court decision in Sayer v Radcliffe &Anor[14] in which it was said relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders.
[14] Sayer v Radcliffe &Anor [2012] FamCAFC 209; 48 Fam LR 298
Consequently, I conclude that I am bound by the existing authorities, some of which I have referred to in the preceding paragraphs, and subject to the facts of this particular case. It seems to me the legislation provides a focus and emphasis on both parents being not only involved but substantially involved with the lives of their children except when it is or would be contrary to the child's best interests.

Family report

The evidence of the Family Consultant, Mr P is found in the family report published on 27 March 2013.
Having heard the parties give evidence, I am of the view that Mr P identified accurately the parent’s perceptions of each other and the rationale behind the mother’s wish to move to Sydney for better employment opportunities.
In so doing, I have also taken into account the responses made by the mother to the family report as to some inaccuracies which she perceived Mr P had made both as to some factual matters and her employment wishes, care of the children and her role as an aboriginal mother[15]
[15] See paragraphs 131-140 inclusive of the mother’s affidavit filed 26 August 2013.
I am of a similar view as to the father’s rationale behind a preference to remain in (omitted) with the children.
Mr P interviewed both children both of whom told Mr P that they had experienced their parents denigrating each other sometimes and that both wanted it to cease. X told Mr P that if she had a magic wand and there was anything she could change in her life, she hoped her parents would reconcile but told Mr P that her mother said that would not happen.
Mr P found X presented as an amiable child who appeared to have a reasonable relationship with each of her parents but perhaps marginally more positive with her father than with her mother.
Mr P found Y to be positive about his school and his experiences and would like his parents to reconcile.
Both children told Mr P that the week about arrangement which had then existed for about four months was an ‘ok’ or ‘good’ arrangement with neither child complaining to Mr P about such arrangement.
Given the ages of the children, I am not able to make any finding as to any particular wish either child has about a preference to live with either parent given neither child expressed a preference but I am left with the impression from the children’s statements to Mr P that they were well settled into a week about arrangement and did not make any particular complaint. I find that sufficient time had elapsed for them to make a valid observation as to their experiencing living week about.
In his evaluation[16], Mr P concluded that each of the parents have a desire to have a long term and integral relationship with the subject children with both parents having had an ongoing involvement with the children from birth and with some mutual respect of each other as parents.
[16] Paragraph 61 – 65 of the family report.
Mr P commented that in spite of the arrangements in September 2012 when the mother went to Sydney to trial her new employment and to which I will refer in more detail in these short reasons for judgment, Mr P was unable to conclude whether the father was unable to cope with the children in his primary care in (omitted) and therefore requested the mother to arrange for them to live with her in Sydney.
Mr P expressed his view about the proposed move in these terms:
“Despite this, the children appeared to have successfully lived in an equal time arrangement in the (omitted) area for the last four months, and given the absence of any child protection concern, nor any history of any family violence, there appears little rationale to support the mother’s relocation to Sydney with the subject children”.[17]
[17] Paragraph 62 of the family report.
Mr P also expressed the view that while it appeared each of the parents had somewhat different values it did not seem that would have a significant impact on the parenting of the children if they were to continue living in an equal time arrangement.[18]
[18] Paragraph 64 of the family report.
Mr P also expressed the view that given the cultural considerations of the children it is relevant to mention that the father as a positive aboriginal male role model is a significant factor in the likely long term psychosocial development of the children.[19]
[19] Paragraph 65 of the family report.
In his recommendations[20] Mr P suggested the children continue to live with each of the parents on a week about basis in the (omitted) district, that the children remain at their present school with both parents to participate in a Parents not Partners program within six months and with each of the parents restrained from denigrating each other to the children.
[20] Paragraph 66-69 of the family report.
Mr P was obliged to concede during cross examination by Mr Duane for the mother that he had concluded in his report[21] that there appeared to be little rationale to support the mother’s relocation to Sydney with the subject children by considering whether the mother’s reasons for relocating to Sydney were adequate or compelling to validate the relocation.
[21] Paragraph 62.
Mr P conceded that he had not compared the mother’s proposal to live in Sydney with the children with the father’s proposal to live with them in (omitted). Mr P gave as a reason for not doing so that the children had been living in an equal time arrangement with both parents and he viewed both parents as having a strong relationship with the children and vice versa and considered that there was no validity to support the relocation, concluding further that he considered the best arrangement for the children, with both parents living in (omitted) was for the children to spend equal time with both parents.
Mr P conceded he had not approached his report in the knowledge that a number of cases involving relocation of children had decided that the residential parent was not required to demonstrate any compelling reason to relocate.
Mr P conceded that he had not asked the father whether he was prepared to relocate to Sydney and had assumed, given the children were well established at their school in (omitted) and that the father wanted the children to remain in (omitted) that he was not prepared to move elsewhere.
Mr P was aware that the mother had a large extended aboriginal family in the Sydney area and that his previous involvement with aboriginal families in a professional capacity had given him knowledge of “kinship” and the important role of a mother’s family and that perhaps it was likely that for cultural reasons connected with kinship it was the mother’s family’s role more than the father’s family’s role to support the care of the children depending of course upon the appropriateness of the maternal/paternal families respectively. Mr P agreed that if there were no disqualifying factors then one would expect the maternal family to have the greater responsibility for care of children arising from kinship.
Mr P acknowledged that the week about arrangement which the parents had put into place was not the mother’s idea and accepted that it was the mother who had subsequently implemented the arrangement by effectively travelling to (omitted) every second week for the period following the consent orders of 23 November 2012 which enabled this to occur.
Mr P agreed he was not aware the father had told the mother in September when the mother had moved to Sydney and the children were staying with him that he was not coping with the care of the children.
Mr P agreed with Mr Duane that the children were well presented, that they were a credit to both parents in that regard, that both parents are proud Aboriginal parents and both have extended family on each side and that both parents had a strong work ethic.
Mr P agreed in part with the proposition put to him by Mr Duane that he had formed the view that the father was more child focused whereas the mother was perhaps more ambitious or work focused but did not intend to convey an impression that the mother was less focused on the children.
Mr P also confirmed that he was not at all critical of the mother for being work focused to provide financial security for herself and the children.
Mr P also agreed with the proposition that it was a positive role model for the children for the mother to have responsible employment with a reasonable income.
Mr P agreed that when a comparison was made of the factors which would suggest it was favourable for the children to remain in (omitted) and other factors favourable in support of them moving to Sydney that the children have stability in (omitted) with their education and friendships, and that in favour of moving and if the Court were to find that the mother had been primarily responsible for the care of the children until separation they would have their maternal family in Sydney, that the evidence establishes the mother would promote the relationship between the children and the father and there could be no suggestion of the mother’s ability to cope with the care of the children in the absence of the father.
When it was pointed out to Mr P by Mr Duane that it was the mother’s case that she proposed to move to Sydney and that it was the father’s case that he proposed to remain in (omitted) and there was no compromise between the two positions Mr P said:
“When I conducted this assessment my thinking was clear that there was no validity, from my point of view, to support the relocation of the children, and it’s unfortunate that both of the parties have entrenched positions about this. The reality is that the children, regardless of which proposal is accepted and supported by the Court, will lose out in terms of their relationship with the other parent, given particularly now that we’ve had an equal time arrangement for a twelve month period, it will be a significant change for the children…”
Mr P was not able to conclude with any degree of certainty that it was particularly important for the children in this case, as aboriginal children to see their parents as being successful in their careers and being able to be leaders but agreed that it would be an important part of their upbringing to enjoy the prospect of their mother being able to pursue her career and be successful and move toward leadership but did not conclude it was a significant factor at the time of the hearing. He said they may not have that appreciation at the present time given their ages but during adolescence they will have a greater appreciation of that reality and probably the values the mother is imparting along the way.

In cross examination by Mr Graham for the father, Mr P agreed that the indicia necessary for a shared parenting arrangement to work successfully were present in this case including geographical proximity, that is in (omitted), the ability of the parents to get along sufficiently well to conduct a business like working parental relationship, child focused, and with the children’s activities forming an integral part of the way in which the parenting schedule had developed and a commitment by everyone to ensure the shared care arrangement worked successfully. Mr P also agreed that family friendly work practices for both parents and financial comfort and for the mother shared confidence in the father being a competent parent were also important indicia in deciding whether or not a shared care arrangement was workable and particularly for children of this age, that is children under the age of ten years.
The evidence establishes, and Mr P agreed that it was significant the parents had been able to reach an agreement about sharing time with the children, for example when the mother travelled to (country omitted) for about ten days in late October and early November 2013 and again for the Christmas holiday period 2013.
Mr P agreed that the children’s school reports did not exhibit or suggest that the children were unsettled at home, which can sometimes occur if children are struggling with their parents relationship and they therefore act out at school.
Mr P thought it significant that the loss of the week about shared arrangement which the children had now experienced for twelve months could be a significant disruption for them particularly when it is suggested that the children have an equitable relationship with both parents and which they appeared to thrive upon and enjoy.
Mr P also took into account so far as the mother was concerned, at the time of the interviews she was able to work partly from Sydney and partly from (omitted). He found the mother to present as an articulate intelligent woman whom without going into any detail with her considered perhaps that some work opportunities would be available for her in (omitted) given her background, skills and expertise.

The mother’s evidence

The mother deposed and gave evidence in cross examination that the genesis of her wish to live in Sydney permanently rather than on a part time basis flows from a wish to build a career path not only to earn a better income and thus provide greater financial security but also to be closer to her family and where she perceives there are greater opportunities for her children.
The mother deposes, and I accept her evidence in this respect that she is passionate about her work because she enjoys giving back to the indigenous community and perhaps more importantly for her strives to be a good role model for her children as well as to make a positive difference within the indigenous community.
I accept the mother’s evidence that she is not overly concerned about climbing a corporate career ladder but prefers to meet the challenge of good and improving career opportunities which have presented themselves to her during the course of her employment. I also accept the mother’s evidence that her career enables her to be financially independent of the government and which is important for her.
On 4 September 2012 the mother had taken up her position as (omitted) for (employer omitted) and which later became known as “(employer omitted)”.
The position required the mother to work primarily in Sydney but she had negotiated that for the first three months she would work from home in (omitted) two days per week which would give her four days each week at home with the children before going back to Sydney and when they would be cared for by the father.
The evidence establishes the father supported the mother obtaining this position.
The mother was able to stay with family in Sydney and fly to and from (omitted).
I accept the mother’s evidence that she and the father had discussed this employment opportunity against a background of the mother being disenchanted with her job at (employer omitted), needing a change and not having the same employment opportunity available to her in (omitted) as there was in Sydney. There was discussion that if the job proved to be satisfactory perhaps the father and the children would move to Sydney on a permanent basis. I accept the mother’s evidence that the father agreed in principle to the mother’s work being trialled on this basis and with which the mother agreed, although it is clear the father had not committed to moving to Sydney. It was no more than a possibility.
The mother’s new salary was in the order of $115,000.00 gross per year plus superannuation.
There is a dispute between the parents as to what occurred on 13 September 2012 which led to the children being taken by both parents to Sydney on 15 September and remaining with the mother for the September school holidays and living with the mother in Sydney until the interim consent orders made on 23 November 2012 and which provided for the children to live with each of the parents on a week about basis in (omitted).
It is the mother’s case that after she had moved to Sydney on 4 September to take up her new position and with the children then being cared for primarily by the father that he later told her he could not cope with them. The mother asserts that the father requested her to collect the children as he felt sick and was depressed and could not eat or sleep.
The evidence of the father establishes that at this time he was experiencing a great deal of emotional turmoil with the breakdown of the relationship with the mother, difficulty in communication and full time responsibility for the children upon the mother having moved to Sydney albeit it was agreed she would return to (omitted) and care for the children for periods of time.
It is the father’s evidence that after the trial arrangement commenced he said to the mother:
“This can’t keep going on with not talking about us and the situation it is doing my head in and is mentally and physically draining not talking and communicating. This weekend when you come home you can take the kids to Sydney as it is a week until the September school holidays”
The mother said she was unable to do this as a consequence of needing to work on the Monday to which the father responded that the children needed some time with her.
The father recalls the mother saying to him:
“If you’re not coping I will move the kids to Sydney with me and put them in school down here.”
The father responded that that was not what he wanted to occur.
The father agreed during the course of cross examination that as at 13 September he was very upset and not coping, and wanted the mother to come and take the children.
When I consider the whole of the evidence of both parents concerning the events over this period of three or four weeks, I find the most likely explanation for the father’s conduct is that he was overwhelmed by the number of events occurring at the same time including the mother taking up employment in Sydney, albeit on a trial basis, the deterioration of and then the break down between the parents of their relationship and the increased care of the children coupled with considerable uncertainty as to the immediate future.
I find on the evidence that the father may have perceived at that time that he was not coping with the children but that is to be viewed in the context of events as they were unfolding at that time.
I find on the evidence before me that both parents were able to meet the children’s needs at that time and care for them appropriately.
During the time the children were living with the mother in Sydney from mid-September, and at the conclusion of the September school holidays the mother enrolled the children at (omitted) Public School with some before and after school care and with the mother taking the children to school each morning and her mother collecting them in the afternoon. At that time the mother was staying at her mother’s home at (omitted).
The relationship between the parents from mid-September until the time the orders were made on 23 November 2012 was tense with a number of proposals and counter proposals and culminating with the mother sending an email to the father on 1 October 2012 that she did not wish to reconcile with him.[22]
[22] See annexure C to father’s affidavit sworn 18 November and filed 19 November 2012.
The evidence establishes that at that time the mother intended the children to remain living with her in Sydney but spending time with the father and certainly with no intention on the part of the mother to deprive the children of a relationship with their father.
This decision by the mother prompted the father to file an application on 16 October which initiated the current proceedings. It was the father’s case that stability for the children lay in (omitted) and that he had been nursing the hope of the possibility of their relationship being salvaged following their earlier separation for a period of between two and three months in early 2010 with a subsequent reconciliation.
It is the mother’s case that the orders of 23 November 2012 ensured some stability for the children whilst she continued to work for (employer omitted).
In November 2012 the mother rented a three bedroom villa in (omitted) which she continued to occupy until the time of the hearing but had not renewed the lease in anticipation of being able to move to Sydney with the children. The mother had negotiated successfully with her employer to work one week in Sydney when the children were living with the father pursuant to the orders and the other week from her home in (omitted) whilst the children were living with her. That arrangement had been extended until the end of September 2013.
To facilitate this arrangement, the mother has been staying with her mother in (omitted) or sometimes with other friends in Sydney when she is in Sydney and flying between Sydney and (omitted) and return at a cost of about $300.00 per fortnight. The mother also pays rent of $330.00 for her villa in (omitted).
In cross examination, the mother confirmed that her application for final parenting orders was, as set out in her response filed 19 November 2012, and specifically that the children live with her in Sydney and spend time with the father, in the absence of any other agreement, each alternate weekend from 6.00pm on the Friday until 6.00pm on the Sunday and for half the school holidays and with changeovers to occur, in the absence of any other agreement, at (omitted) which she considered to be about the half way point.
The mother conceded in cross examination that she did not bring any alternate proposal and was not considering any week about arrangement.
The mother conceded that the travel time for the children would be considerable but did not know the driving time between the Western Suburbs, if she was to live in (omitted) or (omitted) as she proposed and (omitted).
I was left with the distinct impression from the tenor of the mother’s evidence as to this issue that she had given little or no thought to the affect upon the children of such a journey nor indeed whether it was feasible. It seemed to me also that the mother had not given any real thought to the logistics of the children travelling to (omitted) on the Friday afternoon or return on the Sunday.
Doing the best I can, the journey by car from the Western Suburbs of Sydney on a Friday afternoon to (omitted) would take not less than two and a half hours and possibly longer depending upon the route taken from the Western Suburbs to the commencement of the M1 motorway at (omitted) with a further journey of about two hours or a little more from (omitted) to (omitted). I base that assessment on other matters which have come before me involving a journey by motor car between those locations.
The mother was asked whether the father’s alternate proposal as set out in his outline of case document would be acceptable to her and with which she disagreed.
The father’s alternate proposal was that if the mother remained in (omitted) then the parents would have equal shared parental responsibility and the children would live with each parent on a week about basis changing over at the conclusion of school on the Monday and with an equal sharing of the Christmas school holiday period.
The mother said that in her view, if she remained in (omitted), the children should live predominately with her and spend time with the father for alternate weekends and half the school holidays.
The mother made it clear however that she had no wish to return to (omitted).
In response to a question from me, the mother said that she would not return to (omitted) if it was my decision that the children should remain living in (omitted) and living with her predominately and spending time with the father for fortnightly weekends and half holidays.
The mother went on to say that that was not because she wanted to pursue a career or other career opportunities in Sydney but that it was her preference to remain living in Sydney.
When questioned as to her employment ambitions, the mother agreed that the motivating factor for leaving (omitted) in 2012 was the employment opportunity she had been offered and at the same time agreed that the option had been open to her not to accept such position but did not agree that she found the opportunity impossible to resist.
The mother agreed that the salary she had been offered was not really significant given that her previous salary with (employer omitted) had been in the order of $103,000.00 and that the difference was not really significant.
When asked whether she considered the employment opportunity in Sydney was the sole reason for moving the mother said it was a contributing factor but it was also the presence of her family that was important to her.
The mother said that she had changed her surname in December 2012 to Kliger, which was her maiden name and that she had told the children accordingly.
The mother did not agree with the proposition that following separation she and the father had been able to cooperate about arrangements for the children but I find on the whole of the evidence that there has been a significant degree of cooperation between the parents. This is found in the mother’s own evidence in her affidavit sworn 26 August 2013 when she gives a number of illustrations of requests she has made of the father to vary arrangements or help out and he has been able to assist.[23]
[23] See paragraphs 32, 36, 40, 41 and 47.
The mother gives illustrations of occasions when the father has either not responded or declined to help out but it seems to me that must be considered in the overall degree of cooperation between the parents.
When it was suggested to the mother that she and the father can co-parent successfully the mother responded:
“not all the time”.
As to whether the mother could secure employment in (omitted) is she were to return to that district, the mother deposed to looking for work commensurate with her expertise and qualifications but finding only one opportunity for a temporary contract position offering a salary of about $70,000.00 upon which the mother said she could not live.
Put simply, it is the mother’s case that there are not suitable employment opportunities for her in (omitted).
The mother has a part time position on the board of the (company omitted) which meets in (omitted) from time to time and provides her with Directors fees set out in her financial statement of $375.00. The mother also sits on the board of (company omitted) but which on the evidence before me does not provide her with any income.
The mother started her board position with (company omitted) in about May 2011 for a three year term and in re-examination said there may be some uncertainty about the existing board continuing which could lead to the end of that position.
The mother’s position with (company omitted) commenced in August 2012 and is also for a term of three years. I was left with the distinct impression that the mother enjoyed both positions and would look for similar positions as a director if the opportunity arose.
When asked in cross examination as to the advantages for the children remaining in (omitted) the mother agreed that the children would continue to see her as a good role model, that she could continue to make a positive difference within the indigenous community, that she would be able to contribute to the indigenous community, that she would be financially independent of government, that her positions with (company omitted) and the (company omitted) would continue and that she could probably find work which would enable her to earn at least $70,000.00.
The mother also agreed that the stability of the children’s present schooling was important and a constant for them together with their other activities even though X has had some difficulties.
In response to some questions concerning her work hours the mother said that her place of employment in Sydney was at (omitted) and that in broad terms her working hours are between 8.30am and 5.00pm.
When in (omitted) the mother has been able to work between 8.30am and 4.00pm on most days and on a Wednesday from 8.30am until 3.00pm enabling her to collect the children from school at 3.00pm and take them to activities such as their youth group and Y’s soccer training on Thursday afternoons. The mother gave evidence also that she had been able to start later on some mornings when the children had reading groups.
The mother’s evidence was less than clear as to care arrangements for the children if they were living with her in Sydney. When it was put to her specifically what was proposed if she was working in (omitted) and living in (omitted) or (omitted) she said she would arrange for the children to go to before school care at the beginning of the day and after school care at the end of the day. It was clear the mother was not proposing that her mother would care for the children in those circumstances.
When the mother was asked what she would do, if living in Sydney and was required to go to a board meeting for (omitted) or (omitted) and it was suggested that she would ask her mother to care for the children, she said:
“No, it is not correct because I would take it that Mr Meadows would be in Sydney with us so that he could share care of his children”.
The mother agreed that if the father was not living in Sydney and she was required to take a trip involved with her work then she would ask her mother to help out.
The mother said also that she would limit her work commitments around the children so she would avoid working during the time they were to be with her, but this conflicted with her evidence as to before and after school care.
I find on the whole of the mother’s evidence that there were some aspects of her proposal as to her care of the children if they were living with her in Sydney which probably had not been given full consideration. An example arose during the course of submissions by Mr Duane, who is not to be criticised by doing it in this fashion and to which no objection was made, quite rightly by Mr Graham. The submission was to the effect that if the children were living with their mother in Sydney then for two of the weekend occasions of time in (omitted) during each school term the mother would fly the children to and from (omitted) on the Friday and Sunday respectively and which I understood to be at her expense. There is other evidence before me that the children have travelled unaccompanied and that it is a single journey from Sydney to (omitted) with either Qantas or Virgin with no stops. I find that travel in those circumstances is appropriate. That would have the significant advantage of there being only two journeys by road to (omitted) each school term on the presumption that there would be likely to be four weekends of fortnightly time with the father in (omitted) during a school term of ten weeks or thereabouts.

For reasons given earlier, the respective choice of place of residences proposed by each parent precludes by virtue of the geography an equal time arrangement whether it be week about or for any longer period, and which neither parent is proposing.
I find on the evidence therefore that whether the children are living in Sydney with their mother or in (omitted) with their father it is not only not in the children’s best interests but also not practicable to spend equal time with each parent and in fact is impossible.
For the same reason, I find it is not possible to provide for substantial and significant time within the meaning of this section given that this includes time on weekends and holidays, time on other days both during the day and at night and allowing the parent to be involved in the daily routine and allowing for participation in events that are significant to both the child and the parent. By its very definition, this is significantly more time than just weekends and half the school holidays.
The alternate proposal by the father would involve a continuation of the present equal time arrangement.

Advantages and Disadvantages if the children relocate to Sydney

Advantages

It is likely the mother will improve her financial circumstances and thus be better able to provide better long term financial security following a considerable saving of costs of renting a home in (omitted) as well as living in Sydney although her costs there are minimal considering that she lives with family and pays some board but would hope to find independent accommodation of her own.
The mother is likely to have considerable support from her immediate family if she is living in the western suburbs both in the form of support and care of the children.
Her work arrangements may be more manageable.

Disadvantages

Although the children lived for a short period in Sydney in 2012 and were enrolled in a local school at (omitted), I find on the evidence there will be a significant disturbance for the children in moving to Sydney permanently which inevitably will place an additional responsibility for parenting on the mother with the inevitable need to support the children with adjustment in settling in and on the balance of probabilities the likely significant missing of their father and probably grief as well as coping with the change of school, adapting to a new home and district and making new friends both at school and outside school and loss of the stability at school and at home they now enjoy in (omitted).
Only fortnightly weekends or less during school terms of being able to spend time with their father other than during the school holidays.
The very significant change in not living with their father week about as they currently do.
A different form of communication with their father in the form of telephone and perhaps Skype and texting not previously used to any degree of frequency.
The reduced time possibly to be spent with Z.

Advantages and Disadvantages if the children remain living in (omitted)

Advantages

If the mother elects to live in (omitted) permanently or is able to continue her present arrangement whereby she works part of the time in Sydney and part in (omitted) then both children will continue to live with both parents in accordance with the current arrangements or something very similar and which has provided consistency and certainty for the children and a very significant relationship for each of them with their parents.
The children will remain at their present school and will continue to enjoy their out of school activities.
Both children will maintain and keep their present friendships both at school and outside school.
Both children will maintain their current relationship with Z and there will be no disturbance to the frequency which they currently see her.
The children will continue to have the opportunity to see members of their paternal external family in (omitted), (omitted) and (omitted), as well as the maternal extended family when visiting.

Disadvantages

If the mother elects to live in Sydney for the greater part of the time or permanently the children will suffer an adverse effect consequent upon either being separated from her or spending much less time with her.

Conclusion

Cases involving a proposed relocation are some of the most difficult which come before the Court.
In this case the difficulty arises from the fact that there are two competent, loving, caring parents who have been able to protect their children to a very large degree from the breakdown of their relationship. Whilst that has not been easy for either of them, but especially the father and there have been a number of matters in dispute between them their perception of each other has not assisted constructive face to face communication at all times, and particularly at the time of separation.
I am however left with the distinct impression from their evidence that their relationship with each other has improved and is now more stable.
It is also not to be forgotten that the family was experiencing financial pressures during the later years of the marriage consequent upon the father being on workers compensation payments for a period of time and reduced income.
I have referred earlier in these short reasons for judgment as to the mother’s wish to pursue a career pathway and to improve her financial circumstances but also be of particular service and help to her people. The mother is to be praised for the pathway she has taken and, on the evidence before me clearly has significant ability.
It is not as if the mother has failed to explore employment opportunities in (omitted). The only possible preferred avenue open to the mother is if her employer is able to continue the arrangement which applied at the hearing, that is working from home during the week that she is in (omitted) and which appeared on the evidence before me had not disadvantaged her employment prospects with her present employer. It is of significance that there is no evidence adduced by the mother that she cannot continue to work for (employer omitted) as she does currently.
It is clear also that the mother’s present salary enables her to rent a home full time in (omitted) whilst, in effect, boarding with her family in Sydney. That may not be the most comfortable of circumstances for her but she brings no complaint about it and no evidence to suggest that her parenting ability is adversely affected such that she could not continue such an arrangement.
When I compare the respective proposals and compare the advantages and disadvantages in each case to which I have referred, and I consider and weigh the whole of the evidence my conclusion at the end of the day is that it is in the best interests of both children to live in (omitted) and with each parent and to continue the present week about arrangement.
In my view, the evidence establishes very clearly that this is the only viable outcome which is in the best interests of both children.
My reasoning is that there are significant risks flowing from the disturbance to the children’s present stability with no certainty that the risks are able to be overcome, especially if the children suffer from the very significant change in their relationship with the father and he is not in a position to move to Sydney or the mother elects to remain in Sydney and spends occasional time with the children.
Such very significant inevitable change in the relationship with the father is not in my view capable of being addressed by spending time with him occasionally during school terms and during perhaps extended portions of school holidays.
I conclude on the whole of the evidence before me that the disturbance to the children’s emotional wellbeing and the relationship they have with each parent is not warranted.
I accept the mother may be disappointed with my decision and would ask her to bear in mind the Court is required to make a decision in the children’s best interests and not the parents’ best interests. However, I have considerable confidence that the mother has the ability and capacity to find appropriate employment on the Mid North Coast or nearby if indeed she is unable to remain with (employer omitted). The mother has a proven ability to seek and obtain new employment opportunities.
I have taken into account the right of both parents to choose their place of residence and their freedom of movement.
I have considered also whether it is possible for the Court to formulate a different arrangement for the children and have concluded it is not given the respective circumstances of each of the parents.
For those reasons, I make the following orders as to parenting matters.
As to the competing applications for alteration of property interests I was informed by Counsel during submissions that the matter had resolved with terms of settlement to be filed once some minor outstanding issues had been sorted out.

I certify that the preceding three hundred and fourteen (314) paragraphs are a true copy of the reasons for judgment of Judge Coakes

Associate:

Date: 22 October 2014

[2014] FCCA 2295

22 October 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness

Injunction