Lahr and Fallon

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAHR & FALLON

[2013] FCCA 853

Catchwords:
FAMILY LAW – Parenting – relocation – mother seeking permission to relocate the children’s residence to Melbourne from the (omitted), Queensland – father on (omitted), Queensland.

Legislation:
Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA

Collu & Rinaldo [2010] FamCAFC 53
MRR & GR (2010) 240 CLR 461

Applicant:

MS LAHR

Respondent:

MR FALLON

File Number:

BRC 2170 of 2012

Judgment of:

Judge Howard

Hearing dates:

21 and 22 May 2013

Date of Last Submission:

22 May 2013

Delivered at:

Brisbane

Delivered on:

22 July 2013

REPRESENTATION

Counsel for the Applicant:

Mr O'Meara

Solicitors for the Applicant:

Not Applicable

Solicitors for the Respondent:

In Person

Counsel for the Independent Children’s Lawyer:

Mr Burridge

Solicitors for the Independent Children’s Lawyer:

Legal Aid Queensland

ORDERS

That the Independent Children’s Lawyer shall provide a copy of a proposed Final Order to each other party by 4:00pm on 29 July 2013.
That the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 29 July 2013.
That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph (2) – the matter shall be listed for Mention and each party shall attend personally along with their legal representative (if any) on a date to be fixed by the Court.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRC 2170 of 2012

MS LAHR

Applicant

And

MR FALLON

Respondent

REASONS FOR JUDGMENT

Background

The applicant mother was born in (omitted) on (omitted) 1973.
The respondent father was born in (omitted) on (omitted) 1969.
The parties started living together in (omitted) 2001. The father has a son from his first marriage (X). Young X is now aged 13 years. He is known as, “X”. When the mother and father started living together X was 18 months of age.
In 2004 the parents agreed to move from Melbourne to Queensland. The mother says this was primarily so that the father could have a closer relationship with his son X. I accept this evidence from the mother.
The parties were married in (omitted) on (omitted) 2008.
The parties have four children together:-
a)W born (omitted) 2002 in Melbourne;
b)Y born (omitted) 2004 on the (omitted);
c)Z born (omitted) 2005 in (omitted); and
d)A born (omitted) 2007 in (omitted).
The parties separated on a final basis on 11 March 2011. At that time the mother left the former matrimonial home at Property K, Queensland. Property K is situated on the (omitted).
The mother is currently engaged in home duties but is not in outside employment.
The father is employed full time as a (occupation omitted) by (omitted).
The mother seeks the permission of the Court to relocate the residence of the children to Melbourne.
The father wants the children to remain living permanently on the (omitted), Queensland.

Current Arrangement

The current parenting arrangement is somewhat fluid. The father is required to provide to the mother his monthly roster on the 23^rd day of each month. Essentially – what is currently occurring is that the children are living with the mother in a four bedroom rented house in (omitted). When the father is in Australia the children live full time with the father at the former matrimonial home at Property K.
All four children currently attend the (omitted) Grammar School.

Future Proposals

The mother proposes that she be granted permission to relocate the residence of the children to Melbourne. Once in Melbourne it is the mother’s proposal that the father could visit to spend time with the children for seven days in a row (when he is in Australia). The mother agrees that there could be extensions of time if the father has not seen the children for some period. Such extensions would have to be by agreement between the parents.
In the event that the children were living in Melbourne the mother proposes that – for a period of two years – that she would vacate the home which she intends renting in the suburb of (omitted) and allow the father to stay there with the children. The mother would agree to such an arrangement for a two year period to enable the father time to make appropriate accommodation arrangements in Melbourne.
In the event that the mother is not granted permission to relocate the residence of the children to Melbourne – the mother proposes that the children live primarily with her and spend time with the father when he is present in Australia – but for no more than seven nights in a row. Once again, the mother says that by agreement between the parties, she would certainly consider extending the number of nights with the father if there has been some period of time which has elapsed since the father had last seen the children.
The father’s proposal is that the children remain living primarily on the (omitted). The father essentially would like to see the current arrangement continue.
The father’s child (“X”) also attends the (omitted) Grammar School.
The father pays for all of the four children to attend the (omitted) Grammar School. He also pays for his son X to attend the same school.

Section 60CA

Section 60CA of the Family Law Act 1975 states:-
“SECTION 60CA CHILD’S BEST INTERESTS PARAMOUNT CONSIDERATION IN MAKING A PARENTING ORDER
60CA In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
Section 60CC of the Act sets out how it is a Court is to determine what is in the child’s best interests.
Section 60CC(2) states:-
“60CC(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 is no doubt that there are great benefits to all of these children in having a meaningful relationship with both of the children’s parents. This is confirmed by the family report writer Mr F. Mr F prepared two reports. The first report dated 16 May 2012 is Exhibit 2 in the proceedings. The second report is annexed to an affidavit of Mr F which has been filed in the Court on 19 April 2013 (Exhibit 3).
W has been diagnosed with Autism Spectrum Disorder (ASD) and, subsequently, Attention Deficient Hyperactivity Disorder (ADHD).
It is apparent from the most recent family report that W does have some difficulty separating from his father to go to spend time with his mother. This was specifically identified by Mr F at paragraph 90 of his most recent report. Mr F also noted in paragraphs 92, 93 and 94:-
“92. W remained upset for about five minutes after the father had left. He remained with his mother, as I had a brief discussion with the other children. The other children made comments suggesting that W was often like this at changeover when he was returning to his mother.
93. By the time I had concluded that initial discussion with the children, W had regained composure. He wanted to speak to me at that stage and he did so. After interviewing W and as I proceeded through the other interviews, I observed W sitting close to his mother, looking at photos on her Ipad. He appeared to be drawing on her for comfort. I observed the mother to remain calm and offer comfort to W.
94. The children left for the day with minimal intensity.”
It is apparent that the mother remained calm and measured in her manner to W throughout the episode identified by the family report writer. It is clear that the child draws on the mother for comfort and the mother’s responses were appropriate. Even though W’s behaviour is somewhat trying at times – from the mother’s perspective – I have no doubt there are benefits to W having a meaningful relationship with the mother.
There is also no doubt that there will be benefits to W having a meaningful relationship with his father.
So far as the other three children are concerned they each have a close and loving relationship with their parents. Indeed I note from paragraph 91 of the latest report from Mr F that the other children, “remained calm and non-intense in their manner” during the time that W was tearful and upset when the changeover occurred (from the father to the mother) at the family report interview. Clearly the other children are aware that W has special needs.
In relation to s.60CC(2)(b) – there is no evidence to suggest the children need protection from physical or psychological harm or from any of the other matters raised in s.60CC(2)(b) of the Act.

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.

In relation to W – I note paragraph 77 of the latest report of Mr F. In that paragraph Mr F has stated:-
“77. I spoke with W about how we had previously talked about the idea of him living in Melbourne. He told me that when he was in year three at school his mother said that they will go to live in Melbourne, “And I didn’t like it.” He added, “Mum changed her mind when I was in year four and I was happy because I would die without dad.” I spoke about a decision being made that he could live in Melbourne now with his mother. I asked what it might be like for him if a Judge decided that he could live in Melbourne with his mother, seeing his father predominately on holidays and on some weekends during the school term. He told me that he would miss his friends and he would miss his father. He said that nothing would be good about it. He said, “I like how it is right now.” I asked if he thought anything was hard about the arrangement as it stands at the moment and he said, “Well I wish like, maybe after this talk, we could get to pick who we would stay with.” He spoke about the idea of being able to stay at his father’s home all the time and to be looked after by Ms D while his father was away for work. I asked him if there was anything else he wanted to tell me and he said that the idea of living away from Queensland really frightens him.”
The mother acknowledged in her evidence that W wants to remain living on the (omitted).
I note that Y was also interviewed by Mr F and stated his views (in the same report) as follows:
“78. Y told me he is in grade three at school. He has been doing AFL. Things have not changed much in his family. He sees his father when his father is in the country. On some occasions, Ms D looks after all of the children but usually his father cares for him when he is there. He told me that he thinks his mother and father are friendly with one another.
79. I spoke with Y about how we had talked about the idea in the past of him perhaps living in Melbourne. He told me that he does not want this to occur. He said that he would miss his father and he is happy with things as they are at the moment. I asked what he might like to wish for his family and he declined to answer that question, before saying, “I don’t know.”
80. He told me that he shares a bedroom with B at his father’s home. C and Z share a bedroom. He told me that when he is at his father’s home, they have to drive in separate cars from place to place because his father is not driving at the moment. I talked about all the children in his father’s home and I asked if anything was hard about it. He said that it takes a while to get his turn on the Nintendo. The good thing about it though is that there are more people to play with. He told me that one of the hard things about the current arrangement is that W gets upset when he goes back to their mother.”
Z expressed his views to Mr F. Z’s views are noted at paragraphs 86 and 87. The report writer noted at those paragraphs:-
“86. Z told me that he is seven years old and he is in year two at school. He spoke positively about school and about rugby. He told me that things have been much the same with his family. He shares a room with C. He likes sharing a room with him. He spoke positively about Ms D. He does not know what he would change about her. He told me that he does not think his mother and father are friendly with one another, simply because they are separated. Z was quite unresponsive to my questions about what he might wish for his family at his stage.
87. I talked to the idea of him living in Melbourne and I asked what it might be like for him. He told me that if he lived in Melbourne with his mother, he could only see his father for two days in a year. I asked why he thought that he would only see his father for two days a year and he said that that was what his father had told him would happen. I talked about the idea of him living in Melbourne with his mother and spending most of his holidays with his father as well as perhaps seeing his father on a couple of weekends during the school term. I asked what he thought that might be like if a Judge decided that he could live in Melbourne under those arrangements. He shook his head and he did not answer. I talked about the idea of things staying much the same as they are now and I asked what that might be like. He nodded and said, “That would be good.” I asked if he thought anything was really hard about the current arrangement. He shook his head and said, “Not really.””
A expressed her views to the report writer and they have been reported as follows:
“81. A told me that she is five years old. She is turning six in May. She told me about wanting to have a party for her birthday and to have some friends to sleepover. I asked where she was going to have her party, and she said she did not know. She spoke positively about school. She told me about her living arrangements in both homes. She said that her mother did have a boyfriend who was in the (omitted) but she did not get to see him much.
82. We spoke about the people in her father’s household and I asked what it was like for her when she was there. She told me that C and B do not like to play with her and said they did not let her play with them so much. She spoke positively about Ms D. I asked her what she might like to change about Ms D and she said, “That she would let me help her clean and she would let me work with her.” I asked what she liked best about her father and she replied, “He has the best parties. We can have bonfires and watch movies and get to sleep together. Dad is always funny.” I asked what she might like to change about her father and replied, “He could not smack our bums because it really hurts. I start crying.” I asked what she liked best about her mother and she replied, “She always helps us and let us go with her.” She did not know what she would change about her mother.
83. I talked about whether or not her mother and father are on friendly terms with one another at this stage. She told me that she thinks her mother and father still like each other but they can get angry at one another.
84. I asked A what she might like to wish for her family if she could have three wishes and she replied, “I hope they go back together and I hope W can be nice to me and the third I wish the creek does not keep on flooding.”
85. I talked about the idea of them living in Melbourne with their mother and I asked what she thought it might be like for her if it was decided that this could happen. She became quite avoidant in my endeavour to describe such an idea. She turned in her chair and looked away. She said she did not know. She was not pressed.”

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

each of the child’s parents; and

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

The children have a close and loving relationship with each parent.
It is apparent that the mother does have difficulties on occasions in dealing with W. The mother gave evidence that, recently, she left W alone at the house for a few hours. W had been behaving quite poorly. The mother felt that she did not have any other way to deal with the situation.
The mother said that she has no concerns at having left the child at home alone. But the mother does accept that it was not a good parenting technique. The mother says that initially the child was not distressed. She spoke to him on the telephone more than once whilst she was away from the house. She had hidden his computer game. At some point during the day the mother had then told W over the telephone where she had hidden the computer game. Once he was able to access the computer game he was relaxed and happy according to the mother – although it is uncertain how the mother came to such a conclusion given that she wasn’t present. The mother’s evidence is that she had travelled 20 minutes away to visit her friend, Ms K. Another friend of the mother’s, “Ms C”, drove past the house a couple of times and could not see anything untoward. One would have to wonder how Ms C could have been aware of what was happening inside the house from merely driving past.
W recounted this incident to Mr F. Mr F has reported this at paragraph 72 where he states, inter alia:-
“He spoke about his mother and the other children going to see friends while he was left at home, only with the dog and a cat. Later that evening, “Mum told me that I tore apart the family and I thought she didn’t want me anymore. I don’t like how she treats me. Dad really calms me down.” He spoke about being calmer generally when he is with his father, than he is when he is with his mother.”
The mother denies that she said to the child that he had “tore apart the family”. I accept that the mother did not say those words. However I also accept the evidence of Mr F to the effect that – it was the child’s perception that his mother held this view – namely that the child had “tore apart the family”.
The mother’s view is that life would be easier for her in Melbourne because she would be able to draw upon family support in order to assist her with W and the other children. I will return to that issue later in these reasons.
Despite the difficulties encountered by the mother when dealing with W – it is apparent from other evidence (in particular paragraph 93 of the latest report of Mr F) that W does indeed have a close and loving relationship with the mother.
It does appear to be the case that the mother (and no doubt the father) would benefit from additional assistance in order to develop and improve the requisite skills and tools in order to cope with W when W’s behaviour is less than optimal.
It is apparent that Y, Z and A also have a close and loving relationship with each parent.
There is evidence (which I accept) to the effect that the children spend a good deal of time in the company of the paternal grandmother. I infer from that evidence that the children have a good relationship with the paternal grandmother.
Indeed, there is nothing in the evidence to suggest that the children have anything other than a good relationship with the extended maternal and paternal families. Obviously, the children spend more time with the paternal grandmother because she lives on the (omitted).
The children also seem to get along very well with the father’s new partner, Ms D, and also with Ms D’s children B and C. This is especially so in relation to young Y.

Section 60CC(3)(c) – the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.

Both parents are willing and able to facilitate and encourage a close and continuing relationship between the children and the other parent.

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:

either of his or her parents; or

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

If the mother is permitted to relocate the residence of the children to Melbourne – the father has given evidence that he is likely to be able to see them once a month. The father’s child, “X” lives primarily on the (omitted) and attends the (omitted) Grammar School.
If the children are seeing the father for significantly less time than currently occurs – it seems to me that the children are likely to suffer some upset because of this. In particular – it is apparent that W would be considerably upset in the event that he spends significantly less time with the father.
In 2005 W was diagnosed with Autism Spectrum Disorder (ASD). In 2012 W was also diagnosed with Attention Deficit Hyperactivity Disorder (ADHD).
Mr F was very clear in relation to his evidence concerning the impact upon W of a relocation to Melbourne. Mr F said that W would experience distress and anxiety. He said that a relocation to Melbourne would be quite a distracting and difficult exercise for W. He considered it would be difficult for the parents to manage. Mr F said that such a move would cause distress and anxiety for W in the short to medium term. Further, he said that it may well cause W long term distress and anxiety.
Mr F stated that moving W to a new school would – in itself – cause the child distress and anxiety. Mr F said that even if it was a relocation by agreement and there was good cooperation between the parents –Mr F said that there would still be bumpy and difficult circumstances for W in relation to such a move. In the particular circumstances of this case a relocation is sought by the mother – but the father has fought strongly against it. There is mistrust between the parents. These particular circumstances would compound the problems for W.
My general impression from the evidence of Mr F is that the other three children would have less difficulty in coping with any change.
I accept the opinion of Mr F in relation to these issues. There is no evidence to the contrary. Indeed the mother is well aware (and said so) that the children do not want to move. The mother is also well aware that the children enjoy their school.
The four children attend the (omitted) Grammar School. The father’s son (X) also attends the same school.
The children are in the following year levels:-
a)W – Year Five;
b)Y – Year Three;
c)Z – Year Two; and
d)A – Prep.
W and Y started at the (omitted) Grammar School in January 2010. Z and A each commenced in their Prep year.
I note the comments from W’s semester 2, 2012, school report card quoted in paragraph 47 of the father’s affidavit filed 8 May 2013. W’s class teacher, Ms E, wrote the following in relation to W:-
“W is a responsible and well-mannered student who participates more enthusiastically in all aspects of schooling. He is interacting well with the other children and he has developed some positive friendships. W has achieved excellent academic results and he is always polite and cooperative in the classroom. He has an enquiring mind and he enjoys being challenged on topics of interest. W is following instructions more carefully and is more focussed when completing his work. It has been a pleasure teaching W this year and I wish him every success in Year Five.”
In relation to Y, I note the comments from his class teacher, Mr C in Y’s semester 2, 2012, report card:-
“Y is a thoughtful, humorous student who enlivens our classroom. It has been pleasing to see his growing self confidence when faced with unfamiliar circumstances.”
Y achieved an “A” for all of his subjects.
Z also achieved a good report card for the second semester of 2012. He achieved five “A’s” and three “B’s”. His teacher, Ms R wrote:-
“Z is a hardworking and self motivated student. He has made steady progress in all learning areas this semester.”
Because of A’s young age (she commenced Prep at four years of age) the parents agreed A should repeat Prep this year. A is also progressing well at the (omitted) Grammar School.
I accept the evidence of the father in relation to these issues.
I also accept the evidence of the father given to the Court on 22 May 2013 to the effect that W is well settled at the (omitted) Grammar School. W has an established peer group. They accept him the way he is. W gets along well with the other children. I accept this evidence of the father.
In Collu & Rinaldo [2010] FamCAFC 53 the Full Court of the Family Court of Australia specifically noted that a Trial Judge should highlight those subsections of s.60CC(3) upon which he or she is placing particular weight. In the circumstances of this particular case I am placing significant weight upon s.60CC(3)(d). The likely effect of a relocation to Melbourne upon the children is one of the issues at the forefront of my mind in deciding this case. I am paying very close attention to this subsection because of the evidence confirming the significance of the impact upon W of any possible relocation to Melbourne. It is apparent that, because of W’s special needs, any such relocation to Melbourne would be particularly difficult.

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.

If the children moved to live in Melbourne then clearly there would be ongoing practical difficulties and expenses for the children to spend time with the father. That will not occur if the children remain living on the (omitted).

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

each of the child’s parents; and

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.

I am satisfied that each parent (and Ms D) has the capacity to provide for the needs of the children including their emotional and intellectual needs.

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.

W, because of his special needs, requires some specific attention and extra assistance from the parents. It is apparent that he is very close to his father. It is also apparent that he has a close and loving relationship with the mother. There are no other particular characteristics relating to the other children that require specific mention.
Section 60CC(3)(h) is not relevant.

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

Each parent has a good attitude to the children and both parents have fully accepted the responsibilities of parenthood.

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

It seems that the mother did have an application for domestic violence lodged – but she withdrew the application voluntarily. There are no particular findings that I would make in relation to family violence.
Section 60CC(3)(k) is therefore not relevant.

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.

There is no particular order that would come under this heading.

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

The mother gave evidence that she has a very close friend, Ms C. Ms C is the partner of Mr O. Ms C has children who used to be in the same class as the subject children (or at least attended the same school). Ms C and Mr O live nearby to the mother.
There is a family called “the (omitted)”. The mother of that family is Ms S. That family has helped the mother by driving Z to rugby on occasions.
There is a family called the “(omitted)”. They are very friendly towards the mother. They have four children attending the (omitted) Grammar School.
There is another family called “the (omitted)”. They are the mother’s friends. The wife of that family is named, “Ms A”. Ms A is the mother’s friend. The (omitted) live on the (omitted).
The mother has another close friend named Ms K. Ms K lives on the (omitted) at (omitted) approximately 20 minutes from the mother.
The mother has a friend named Ms B. Ms B and her family (comprising five children) live on the (omitted) and they have assisted the mother.
The mother’s sister, Ms P lives at (omitted). This is 45 minutes away from the mother. I infer from the mother’s evidence that she has a close relationship with her sister Ms P.
It is apparent that the mother has several close friends living on the (omitted). It is apparent that the mother has several families who are willing to assist her in relation to the driving of the children.
If the mother were permitted to relocate the residence of the children to Melbourne she intends living in the suburb of (omitted). The mother gave evidence that this suburb is ten minutes drive from Tullamarine Airport. The mother has more of her extended family members living in or near Melbourne. I note the mother’s evidence as follows:-
a)the mother’s mother and step-father live in the suburb of (omitted). This is approximately 40 minutes drive from (omitted);
b)the mother has one sister living in (omitted);
c)the mother has a sister who is living in (omitted). This is apparently one and a half hours drive from (omitted);
d)the mother has a sister living in (omitted) . The mother appeared uncertain but thought that it would take one hour and fifteen minutes to drive from (omitted) to (omitted); and
e)the mother has a brother living in the town of (omitted), Victoria.
The mother is confident that she will receive assistance from family members if she were able to relocate to Victoria. I do note that the mother will have a sister living in (omitted). Although I do note that the maternal grandmother will be 40 minutes drive away. I note the evidence of the mother’s stepfather (Mr G). Mr G notes that he and his wife are self funded retirees. They generate an annual income of approximately $35,000.00 per year which they require in order to support themselves.
Mr G and the maternal grandmother had lent to the mother approximately $67,000.00 following the parents’ separation. This enabled the mother to buy a new car. I note that since the property settlement occurred in January 2013 the mother has repaid the debt of approximately $67,000.00 to Mr G and Mrs G. Mr G notes:-
“20. Mrs G and I would be in a better position financially to support Ms Lahr and the children with day-to-day expenses if they lived in Melbourne. We have explained to Ms Lahr that we have limited capacity to make any direct payments on her behalf however we do have the ability to indirectly support her and the children in Melbourne. This includes assisting with child minding, financing family gatherings and outings, bulk purchasing of food and basic commodities, and generally lowering her expenses by having the time and local presence to do so.”
I accept this evidence of Mr G.
I note paragraph 43 of the mother’s affidavit filed 7 May 2013. In that paragraph the mother stated:-
“43. My sister Ms P lives in (omitted) with her 18 month-old son O and her partner Mr M. When the children and I were living in (omitted), Ms P was only a short distance away and was able to provide much needed support but since returning to (omitted) to be closer to the children’s school, I find the 45 minute drive is too far for her to be able to provide any day-to-day assistance I may need. In the event that I need Ms P’s help, I typically need to give plenty of notice due to the distance and Ms P’s need to care for her young son. From time to time I do catch up with her either at her house or my house, so that our children may spend time together.”
I accept this evidence of the mother. I accept that she finds the “45 minute drive” too far for Ms P to be able to provide any day-to-day assistance to the mother.
One has to look at this in context. The majority of the mother’s extended family in Melbourne all live some distance from the suburb in which the mother intends settling – namely the suburb of (omitted). I do note that the mother does have one sister living in (omitted). Apart from that there would be some considerable driving involved (either by the mother or by the mother’s family members) for the mother to receive “day-to-day assistance”. If a 45 minute drive between (omitted) and (omitted) is too far for the mother to be able to access day-to-day assistance from her sister Ms P – I find it hard to reconcile that the mother is likely to be able to access “day-to-day assistance” from her extended family members in Melbourne – apart from her sister who lives in (omitted). I do note that the maternal grandmother is willing to travel the 40 minute drive to provide assistance to the mother.
One of the reasons the mother wants to relocate to Melbourne is because her father (Mr Lahr) is willing to offer her a job in Melbourne. Her father has recently moved from Melbourne to (omitted) in Western Australia. Her father is a partner in a (omitted) firm in the Melbourne suburb of (omitted).
The mother gave evidence that the job that her father was willing to offer her is a (omitted) job at the firm at (omitted). She would be paid $20/25 per hour. She has given evidence that she will be able fit her work around the children. It does seem therefore that the mother will be intending to work part-time.
It has been approximately 12 years since the mother has been in the workforce. The mother had previously worked for (omitted) and also had worked in (omitted).
The mother gave evidence that she has submitted about one dozen applications for work in the past six months on the (omitted). She has achieved only one interview.
To the mother’s credit, she completed (with High Distinctions) a course at the (omitted) University called, “(omitted)”. She took on a full time load studying during much of 2012. The mother completed the course.
The mother is considering commencing a (omitted) Degree at the (omitted) University next year. Alternatively she is considering studying (omitted) at the same University.
The mother says that she would like to study in Melbourne if permitted to relocate the residence of the children to Melbourne.
It is apparent that the mother ceased full time employment in September 2002 in order to prepare for W’s birth and subsequently to care for him on a full time basis. I accept that it is a difficult situation for the mother. Because of the father’s work roster – it will be quite difficult for the mother to find employment – with an employer who is sufficiently flexible to accommodate the mother’s particular circumstances. This is undoubtedly an issue that will need to be further and very closely looked at when the mother pursues her application for a departure order from the Child Support Assessment.
The mother currently is in receipt of a Centrelink benefit. The mother receives $1,200 per fortnight. In addition, the mother receives $1,825 by way of child support per month from the father. The mother is pursuing a departure order application in relation to the Child Assessment. It is therefore apparent that each month, the mother receives approximately $4,225 by way of income.
I note that the mother’s rental per week in (omitted) in the four bedroom house in which she is currently living is $410.
There is evidence before the Court that there are four bedroom houses available in (omitted), Victoria, which would seem to save the mother approximately $50 or $60 per week in rent.
It is apparent that the mother intends studying in order to improve her employment prospects. This will occur whether the mother is living on the (omitted) or in Melbourne. Having regard to the fact that the mother will be caring for the children (approximately two weeks per month) and studying – the mother will have a very full timetable. As far as matters currently stand – it seems to me that the mother would only be able to obtain part time employment in any event – whether or not she was living in Melbourne or on the (omitted).
It therefore seems that there is a possibility of the mother securing a house in (omitted), Victoria which may save her $50.00 or $60.00 per week by way of rent. It is also the case that the mother will be able to perform part-time work at her father’s (omitted) firm. It has to be said that the financial gain from such work could only be limited. The mother will be earning $20.00 - $25.00 per hour and – having regard to her child caring obligations and her intention to study – she could only be working part time.
The amount that the mother is receiving at the moment per month from Centrelink payments and child support ($4,225.00) is not insignificant. This is especially so having regard to the fact that – for up to two weeks per month – the children may be living full time with the father. Indeed if the mother were permitted to relocate the residence of the children to Melbourne she may well be in a worse financial position because the children will be spending (by necessity it seems to me) more time with her and less time with the father – and the logical inference to be drawn is that it will be more expensive for the mother because the additional day-to-day expenses in relation to the children – fresh food, etc. Of course there may also be some increase in the amount of child support which the father pays. These are merely matters of conjecture at this stage. I am not convinced that the mother’s financial situation will be improved by a move to Melbourne.
The mother suffered from depression following the birth of A in (omitted) 2007. The mother was prescribed medication (Lexapro). The mother continued to take Lexapro from (omitted) 2007 until three months after the final separation from the father. The final separation was in approximately March 2011. The mother therefore ceased taking the Lexapro in about June 2011. The mother ceased that medication on medical advice. The mother says that she wanted to “go off” the medication. It seems that was a drawn out process. The mother needed to withdraw from that medication slowly. The mother had therefore been taking Lexpro for approximately four years.
These days, the mother takes vitamins. The mother does have a prescription for sleeping tablets but she has not had that prescription filled. The mother takes a herbal sleeping tablet from the supermarket every night called “Sleep”. That works very well for the mother.
The mother had also seen a psychologist named Ms N. The mother had a mental health care plan which she had obtained from her General Practitioner. The mother still had some sessions left with Ms N available to her – but she has not been to see Ms N since the end of November 2012.
The mother gave an unconvincing explanation as to why she had not been to see Ms N since November 2012. I note the following evidence given by the mother during cross-examination by counsel for the Independent Children’s Lawyer (Mr Burridge):-
“Mr Burridge: So would it be fair to say the reason you haven’t been to see Ms N is that what prompted you to go and see her in the first place is no longer as heightened for you as it was when you first went?
Ms Lahr: I wouldn’t agree with that statement, no.
Mr Burridge: All right, well let me ask you this question then. If you don’t agree with that, and you have had available those sessions, and you’re still not feeling one hundred per cent, why haven’t you gone back to see Ms N?
Ms Lahr: Ms N has moved her rooms to (omitted) which is up on the (omitted) near (omitted) and it’s not as convenient as it was to go and have ongoing sessions with Ms N.
Mr Burridge: Well, have you arranged – you would be able to use those sessions organised through your mental health plan with another psychologist – have you made arrangements to see…
Ms Lahr: No. You can’t do it that was. It has – you have to go to that person that they have put on the…
Mr Burridge: And how long would the drive be to go from your residence up to see Ms N?
Ms Lahr: Half an hour.
Mr Burridge: Half an hour?
Ms Lahr: Yes
Mr Burridge: Half an hour. And that, to you, would be too big an inconvenience?
Ms Lahr: Just for an hour appointment, yes.
Mr Burridge: Can I put it to you this way: would the inconvenience associated with driving up to see Ms N on the (omitted), I think you called it, be more important to you then any concerns you might have about your mental health?
Ms Lahr: So would the drive be more important to me?
Mr Burridge: Well, the burden of the drive?
Ms Lahr: The benefit of the sessions is that Ms N has given me some tools that I can actually use at home – cognitive behavioural therapy and acceptance commitment therapy that I employ at home and Ms N has been in communication with me over the phone to talk about those therapies. That seems to have sufficed for the problems that I face.
Mr Burridge: When was the last time you spoke to her on the phone?
Ms Lahr: I think I spoke to her just prior to Mother’s Day, she rang to see how I was and to say Happy Mother’s Day.
Mr Burridge: So just in early May?
Ms Lahr: I think so, yes.
Mr Burridge: And prior to that?
Ms Lahr: Well, it would have been probably the session last year.
Mr Burridge: So it would be fair to say between early May and going back to when you last saw her at the end of November, there hasn’t been a need from your point of view…
Ms Lahr: Oh. No, there has. I have attempted to make a phone call – not attempted to make a phone call, I have made several phone calls trying to get an appointment with Ms N. In January, she couldn’t accommodate me at all and I believe, perhaps that was because she was moving rooms, but I haven’t been able to get an appointment with her, so I’ve relied upon the material that she gave me to use at home.”
In later evidence it transpired that Ms N had telephoned the mother just prior to Mother’s Day – to essentially see if the mother was doing okay. It was not the mother seeking help.

Furthermore, it became apparent from later evidence that the mother in fact has no problem driving to (omitted) and that she drives to (omitted) for other purposes. The inference which I draw from the available evidence is that – the mother is perfectly capable of driving to (omitted) and could have done so to see Ms N if the mother had any need for further sessions with Ms N.
I do not believe the mother’s evidence at page 66, lines one to five, of the transcript from day one of the proceedings that Ms N could not accommodate the mother “at all”. This refers to the mother’s alleged attempts to organise an appointment with Ms N. As stated earlier, the mother’s evidence concerning the reasons why she has not been to see Ms N since November 2012 were unconvincing. Indeed the mother’s initial reason as given – was that (omitted) was essentially too far to drive for such an appointment – but the mother subsequently gave as a reason that she was unable to secure an appointment with Ms N. There is no explanation as to why (even if it were true that Ms N was busy in January 2013) the mother could not have seen Ms N between January 2013 and the date of the hearing. I reiterate my earlier finding that the mother has failed to follow up with Ms N – because the mother has no need to follow up with Ms N.
The mother has also had feelings of shame, embarrassment and panic. These feelings appear to be related to the mother’s “whole circumstances”. In particular, embarrassment seemed to have been suffered because of things said at the school following the separation from the father.
It is apparent that the mother ceased Lexapro in June 2011. The mother then undertook yoga and looked to find ways to manage her emotions. The mother spoke to her brother who is a (omitted). He lives in (omitted). He may have been the one who recommended that the mother seek counselling. The mother first saw Ms N at the beginning of 2012 and last saw her in November 2012. It was the mother’s GP, Dr O, who referred the mother to Ms N. It should be noted that the mother was not talking to her brother in a professional capacity. He was just very supportive. I note the following questioning under cross-examination at page 73 of the Transcript on day one:-
“Mr Burridge: Just so we can clarify, you last saw Ms N in November, you’ve had one phone call, I think; is that correct?
Ms Lahr: Yes. It wasn’t a therapy-type phone call. It was more – she knew that this was coming up.
Mr Burridge: And you haven’t had any further appointments?
Ms Lahr: No.
Mr Burridge: Even though you’ve got, if you like, credit to go and see her again. You’ve got two further appointments that you could use?
Ms Lahr: Yes. I think it’s only one or two. One or two, yes.
Mr Burridge: And the reason for that is that she has moved to (omitted)?
Ms Lahr: That’s how I see it, yes. I don’t know why she hasn’t had any sessions available at her practice.
Mr Burridge: Why couldn’t you go to (omitted)?
Ms Lahr: Well, I could go to (omitted). I’ve been to (omitted) for other reasons with the children, but I haven’t been there for therapy.
Mr Burridge: I may have misunderstood your evidence before. I thought one of the reasons why you hadn’t sought a further appointment was because she had moved to (omitted)?
Ms Lahr: That’s right. I haven’t been up there for an hour’s session with her and I wasn’t actually even aware until yesterday when I went to collect this report that she has provided directly to the judge – I went to her rooms where I used to go to sessions in (omitted) expecting to pick the report up from the reception desk there and she’s not there any more.
Mr Burridge: I see. So I take it you made contact with her around Mother’s Day did you say?
Ms Lahr: She made contact with me, yes.
Mr Burridge: Had you asked her for a report earlier?
Ms Lahr: No, I hadn’t.
Mr Burridge: I see. Why did she make contact with you, did she say?
Ms Lahr: She, I imagined, just wanted to send a text. She has actually sent a text message to me and then we had a conversation after the text message.
Mr Burridge: So what was her stated reason for making contact with you?
Ms Lahr: To wish me a happy Mother’s Day because she knew that – not the date – but she knew that this matter was coming to a head in May sometime so I imagine she just wanted to see if I was okay.
Mr Burridge: And was it at that stage when you asked her for a report?
Ms Lahr: No, I just asked her for a report late last week.”
The mother seems to be indicating between lines 25 and 33 – that she only became aware (during the trial) that Ms N had moved from (omitted) to (omitted).
Further, it is apparent that the mother requested a report from Ms N. Ms N prepared a report and (it seems) forwarded that report directly to the Court. I have not read the report. The report was not annexed to an affidavit and filed and served in accordance with the trial directions made. The mother was represented by counsel at the hearing. There was no affidavit of Ms N read or relied upon at the hearing. Mr O’Meara, counsel on behalf of the mother, informed the Court that it had not been possible to contact Ms N. Therefore Ms N was not available for cross-examination. There is therefore no evidence from any social worker or psychologist in relation to the mother’s health.
At one stage the mother gave evidence that she only received “respite” once per year in relation to caring for W. This is clearly not correct. W (and the other three children) spend up to two weeks per month with the father – and clearly the mother receives “respite” from having to care for W – when the children are with the father.
The mother was interviewed twice by Mr F. Mr F provided a report dated 16 May 2012 (Exhibit Two) and he also provided a report dated 19 April 2013. The April 2013 report is annexed to an affidavit sworn by Mr F. That affidavit was filed 19 April 2013. Mr F’s second report is Exhibit Three.
Mr F had therefore interviewed the mother on two occasions. He concluded that the mother’s financial position was causing her the most stress.
Mr F gave evidence that he felt that the children were coping with the current structure of time between the two parents. This was in the context of the mother wanting to ensure that the children spent no longer than seven days straight with the father. There is a certain amount of scope which is possible having regard to the evidence of Mr F. Mr F seemed just as comfortable if the children were to spend 10 or 12 nights in a row with the father when he is in Australia. I will allow the parties time to agree on the final wording of some orders concerning time.
The mother had proposed that if she were permitted to relocate the residence of the children to Melbourne that she would vacate her home in Melbourne and allow the father to live there when he was in Australia. The mother proposed that this would continue for two years. I note Mr F’s concerns which he expressed in relation to such an arrangement.
Mr F’s clearly expressed opinion is that the children should remain living on the (omitted) and that essentially the same structure or some similar structure of time between the two parents should be maintained. This conclusion takes into account the wishes and the views of the children (especially W – noting that the other children are still very young). It also notes in particular the lack of disruption to the structure of the children’s relationship with both parents. Furthermore, it takes into account the very real difficulties which W would encounter in the event of a move from his current school to Melbourne. I have already made specific reference to these matters.
I accept the evidence of Mr F in relation to all of these issues.
It was apparent from the evidence of Mr F that it would be beneficial to the child X (not one of the children the subject of these proceedings) if steps could be taken to rebuild X’s relationship with the mother in this case.
Mr F also gave evidence that he did not conclude that the father was shaping the views of the children. Mr F gave evidence that the father indicated to him that the children had come to him in late 2012 and they were happy because they told the father “Mum is not going to Melbourne anymore”. I accept this evidence of Mr F.
At that point in time it seems that the mother had decided not to relocate to Melbourne. The mother had, at that point in time, repartnered. The mother and her new partner had been considering a move to Brisbane. The mother’s relationship with her new partner subsequently ceased and the mother reactivated her intention to move to Melbourne.
I note the evidence of Mr F concerning the changeover that took place at his rooms. W was quite distressed in changing over from the father’s care to the mother’s care. Mr F gave evidence which indicated that the father was sensitive in his approach. He asked Mr F “what should I do?”. Mr F indicated that the father should leave. The father therefore left the premises. And the mother (as noted earlier) subsequently calmed W down.
I note the evidence of Mr F (given during re-examination by Mr Burridge on behalf of the Independent Children’s Lawyer) to the effect that at the beginning of the interviews –Mr F was not sure whether or not the children were aware that the mother was intending to relocate to Melbourne.
I accept the evidence and the opinions of Mr F. The disruption that would be caused to W by a move to Melbourne would not be in his best interests. The disruption to the children generally – by a move to Melbourne – would not be in their best interests.
I have come to the conclusion in the best interests of the children – that they should remain living on the (omitted) and have in place a structure of time between the parents which allows them to break up their time with the father – in the event that he is in Australia for a length of time that is longer than seven or eight nights.

Section 61DA

The presumption of equal shared responsibility will apply. There is no evidence to rebut the presumption.
Section 65DAA of the Act states:-
“Section 65DAA(1) – If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Section 65DAA(2) – If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(a) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”
An order for equal time is not appropriate. Because of the father’s work roster – equal time is not possible. It may be, on the evidence of Mr F, that equal time would be in the best interests of the children. But it is not reasonably practicable having regard to the father’s work roster. This family, to a very large extent, relies on the large income earned by the father. This income can only be earned (at the low tax rate which exists in (omitted)) if the father maintains his employment as a (omitted) with (omitted). The father is able to provide well for the children and this includes the payment of private school fees. It is in the best interests of the children that the father’s employment as a (omitted) with (omitted) continues. Because of the father’s work roster equal time is therefore not possible and hence not reasonably practicable.
In relation to substantial and significant time – the proposed orders will come within the definition of substantial and significant time. For the reasons stated herein – I have concluded that such an order is in the best interests of the children.
Substantial and significant time as set out in s.65DAA(2) of the Act only remains reasonably practicable if the children remain living on the (omitted).
I note the decision of the High Court in MRR & GR (2010) 240 CLR 461. The Court has to consider whether the mother remaining on the (omitted) is reasonably practicable for the circumstances of the Court ordering substantial and significant time with the father. There are two aspects to this question in this case.
The first aspect is a financial aspect. The mother in this case will be able – with the benefit of the Centrelink payment and the child support payment – to remain living in reasonably comfortable financial circumstances on the (omitted). This will also give the mother the opportunity to continue studying and commence either a (course omitted) or a (course omitted). The Court will also, in the near future, consider the question of the mother’s application for a departure Order in relation to the child support assessment. I have already made earlier findings concerning the mother’s employment history, her prospects of employment and the financial gain to be reaped from her possible employment in Melbourne (if she were permitted to relocate the residence of the children). I rely upon all of those reasons and findings.
The other matter for consideration is whether or not it is reasonably practicable for the mother to remain living on the (omitted) having regard to the question of her health.
I agree with the submission made on behalf of the Independent Children’s Lawyer that there is no reliable evidence before the Court to show that it may not be reasonably practicable for the mother to stay on the (omitted) as a result of her emotional health. As noted earlier, there is no medical evidence whatsoever in relation to the mother’s health.
I have therefore come to the conclusion that it is both in the best interests of the children and reasonably practicable for them to remain living on the (omitted) – with the mother and it is in their best interests and reasonably practicable for the children to spend substantial and significant time with the father.
On the available evidence – it cannot be said that there would be any significant financial advantage to the mother in moving to Melbourne. Furthermore, I note that Mr F made it clear in his evidence that in the “hierarchy of needs” – the mother’s financial position was at the forefront of her mind. Having concluded that there is no significant advantage to be gained by the mother moving to Melbourne – reinforces my view that it is reasonably practicable for the mother (from a financial perspective) to remain living with the children on the (omitted).

Conclusion

The Independent Children’s Lawyer should draft orders to reflect the reasons for judgment. The orders should then be sent to the parties. The parties should then attempt to agree on the final wording of the orders. In the event that the parties are not able to agree upon the wording of the final orders – the matter shall be relisted.

I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of Judge Howard

Date: 17 July 2013

[2013] FCCA 853

22 July 2013

Key Legal Topics

Areas of Law

Family Law

Statutory Interpretation

Legal Concepts

Natural Justice

Procedural Fairness

Statutory Construction