Lansa & Clovelly - [2010] FamCA 80

FAMILY COURT OF AUSTRALIA

LANSA & CLOVELLY

[2010] FamCA 80

FAMILY LAW – CHILDREN – Parenting orders – International Relocation – Best interests of these children require significant, regular time with each parent – Living overseas will likely have an adverse impact on the children’s relationship with the father – Presumption of equal shared parental responsibility is not rebutted – Children’s best interests call for stability – International relocation is not in best interests – Arrangements in Australia call for regular time with father but majority time with the mother – Two week, one week arrangement

Family Law Act 1975 (Cth) ss 4, 60CC, 61B, 61C, 61D, 61DA, 65DAA, 65DAC,
65DAE

AIF v AMS (1999) 24 FamLR 756
AMS v AIF (1999) 199 CLR 160
Chappell and Chappell (2008) FLC 93-382
Eddington and Eddington (No 2) (2007) FLC 93-349
Fitzroy and Fitzroy [2009] FamCA 954
G v C [2006] FamCA 994
Godfrey v Sanders [2007] FamCA 102
Marsden and Winch (No. 3) [2007] FamCA 1364
Mazorski v Allbright [2007] FamCA 520
McCue v Costa (2009) FLC 93-405
MRR v GR [2009] HCATrans 316
Pitkin and Hendry [2008] FamCA 186
U v U (2002) 211 CLR 238

APPLICANT:

Ms Lansa

RESPONDENT:

Mr Clovelly

INDEPENDENT CHILDREN’S LAWYER:

Ms Toomey

FILE NUMBER:

BRC

4856

2008

DATE DELIVERED:

11 February 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

24 – 25 November 2009

WRITTEN SUBMISSIONS RECEIVED:

ICL: 11 December 2009
Applicant: 15 December 2009

Respondent: 24 December 2009
Applicant Reply: 25 January 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr P.J. Baston

SOLICITOR FOR THE APPLICANT:

Middletons Lawyers

COUNSEL FOR THE RESPONDENT:

Mr J. Linklater-Steele

SOLICITOR FOR THE RESPONDENT:

Rimmer Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr G.J. Fleetwood

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Schultz Toomey O’Brien Lawyers

Orders
IT IS ORDERED THAT
Parental Responsibility.

The parents shall have equal shared parental responsibility for the children of the marriage Y born … December 1996; C born … October 1998 and S born … October 2000 in respect of all “major long-term issues” as defined in the Family Law Act 1975 (as amended).
The parents shall each have, during all such time that the children are in their respective care, parental responsibility in respect of issues that are not “major long-term issues”.

Agreement as to Co-Parenting Time and Communication

The children shall live with, spend time with, and/or communicate with each of their parents for such periods of time, or in such manner, as might be agreed between the parents in writing and, failing further or other agreement, in accordance with the succeeding provisions of these orders.

Co-Parenting Time

The application by the Mother, that the children live in the United States of America, is dismissed.
During school term time, the children shall live with each of their parents during consecutive three-week periods as follows:
(a)For the first two weeks of each such period with the mother and for the third week of each such period with the father;
(b)The consecutive three-week periods shall commence on Monday 24 January, 2010 (irrespective of whether same is a public holiday, pupil-free day or included in any school holiday period) and shall thereafter be calculated by ignoring all school holiday periods; and
(c)Each respective two-week and one-week period shall commence upon the conclusion of school, and commence at the commencement of school, on Monday.
During each and all school holiday periods, the children shall live with each of the mother and father for one half of each, with the mother having the first half in all even-numbered years and the second half in all odd-numbered years and with such time to commence at 9.00am on the Saturday after school ceases and conclude at 5.00pm on the Sunday before school commences.
Save as otherwise agreed in writing between the parties, the time spent by the children with each of their parents in accordance with these orders, shall alter so as to permit the children to spend face-to-face time with the parent with whom they are not residing:
(a)For four hours on each of each child’s birthday and each parent’s birthday if any is not a school day, and from after school until 7.00pm if any is a school day; and
(b)For four hours on each of Mother’s Day and Father’s Day; and
(c)For an equal amount of time with each parent between 5.00pm on 24 December and 5.00pm on 26 December.

Changeovers

Changeover in respect of all periods of time shall be effected:
(a)during term time, by delivery or collection from the children at their respective schools on Mondays;
(b)during holiday time, or on any occasion when school is closed, by the parent with whom the children have been living delivering the children to the residence of the other parent and the other parent returning the children to the first parent’s residence at the conclusion of the period of time.

Communication

The parties shall do all things as might reasonably be necessary to facilitate the children communicating with the parent with whom they are not residing at all such reasonable times, and via such means, as the children might reasonably request from time to time.
Each party shall do all such things and sign all such documents as may be necessary or required to:
(a)Authorise each parent to communicate with, and receive communication from, any doctor or health professional of whatever type, whom the children consult;
(b)To speak to, and receive oral or written communication from, any school or other educational institution attended by the children;
(c)Make the other parent aware of the times, dates and places of any sporting or extra-curricular activities engaged in by the children, and to permit attendance at, and reasonable participation in, any such activities;
(d)Keep the other parent appraised of their residential address and telephone contact number;
(e)Notify the other parent should either child suffer any medical emergency, serious illness, or other significant issue affecting either child’s health or welfare, whilst in their care.

IT IS FURTHER ORDERED THAT

Other Applications

This matter be listed before a Registrar at a time and on a date to be advised in writing to each of the parties, for the making of directions for the further progress of any applications (other than in respect of parenting orders) transferred to this court from the Federal Magistrates Court.

Dismissal of Other parenting Applications

All extant applications for parenting orders be otherwise dismissed and removed from the list of cases awaiting finalisation.

Other Orders

All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4856 of 2008

MS LANSA

Applicant Mother

And

MR CLOVELLY

Respondent Father

REASONS FOR JUDGMENT

The three children the subject of these parenting proceedings have been living on Queensland’s Sunshine Coast since their mother, who is a citizen of the United States, moved there with them more than three years ago. Over two years ago, in September 2007, the children’s father, who is an Australian citizen, moved from the United States with his partner and her two children and also took up residence on the Sunshine Coast. They live about 20 minutes drive from the mother. Until about six months ago, the children had divided their time equally between their parents on a week about basis.
After their marriage in June 1997, the parties lived in the United States. The parties’ daughters, Y (….12.96) and C (….10.98) were each born there. In 1999, the parties and the two girls moved to Perth where they lived for about six months, returning to the United States when the mother was pregnant with the parties’ youngest child S (….10.00).
The parties and their three young children lived in the United States for about five years until 2005. At the end of that year, the parties undertook a “house swap” on Queensland’s Sunshine Coast. Shortly after, the parties returned to the United States and, early in 2006, separated. Shortly thereafter, the parties held discussions in which it was agreed that each of the parties, and the children would, despite the separation, relocate to the Sunshine Coast. That intention is also reflected in orders made in the United States at that time.
In about September 2006, the mother and children moved to the Sunshine Coast while the father remained in the United States where he had business interests. The father visited Australia to see the children for a few weeks in March 2007 before returning to the United States and, in June that year, the children spent three weeks holidaying with their father in the United States. Having wound up his business interests in the United States, the father, his partner Ms D, and her two children all moved permanently to Australia in September 2007. They have resided here together since. The shared care of the children earlier referred to was effected.
Nearly two years later, in July 2009, the mother changed those arrangements unilaterally after receipt of the Parents and Children’s Issues Assessment, issued in the course of these proceedings. As a result, since about July 2009, the children have resided two weeks out of every three with their mother and the third week with their father.
Within about three months of the father moving permanently to Australia, the mother decided that she wanted to return to the United States with the children. In oral evidence, the mother said that she had changed her mind about living permanently in Australia “a few months” after the father had arrived here – that is by about December 2007. About five or six months after that (on 29 May, 2008) the mother filed an application in the Federal Magistrates Court seeking orders that, if made, would see her and the children living in the United States. The father’s opposition to that proposed move of the children forms the basis of the current parenting dispute.
Unfortunately, there were delays in the matter proceeding in the Federal Magistrates Court and, when Burnett FM transferred this matter, no interim orders had been made. This court, at the request of, and with the co-operation of, the parties, expedited the hearing.
The instant dispute, then, requires centrally a determination of whether the best interests of these three children are better met by them living with their mother in the United States with the restrictions in the nature and extent of time with their father inherent in his remaining in Australia, or whether they are better met by the children remaining in Australia and their care being shared between their parents (in a manner about which, in that event, there is also dispute).

What do the Parties Propose?

The mother proposes that the children live with her in the United States- specifically in an affluent area in California, in close proximity to where her parents reside.
In that event, the mother proposes (among other orders in respect of communication and the like) that the father spend time with the children in Australia for not less than two months over the approximately 10-week American summer holiday (June to September); for two periods in America of not less than seven days including (as I understand the proposal) a period from either 15 February or 5 April, and two weeks over Christmas alternating between Australia and America together with additional time in the United States on reasonable notice.
In the event that orders made by this court do not facilitate the children living with her in America, the mother says that, in all likelihood, she will move to M, which is slightly closer to where the father is living but which will involve a change of schools.
For convenience, this might be described as an “alternative proposal”. But, doing so risks the mother’s legitimate (as I will find) desire to live with the children in the United States being given insufficient regard. (See Gaudron J in U v U (2002) CLR 238 to which reference will later be made.)
The father’s orders are predicated upon the children living on the Sunshine Coast in which event, in broad terms, “the children live with him and live with the Mother on a week on and week off basis”. His proposal offers an alternative “if the mother is resident in the United States”. This is not, in reality, an alternative proposal; the mother says, and I accept, that she will not live remote from the children. (Again, see Gaudron J op.cit. esp. @ par 32).
The Independent Children’s Lawyer supports orders that would see the children living in Australia with their care being shared as it is now – that is, two weeks with the mother and one week with the father.

Relevant Principles

Each of the parties relied upon two earlier decisions given by me in so-called “relocation cases’’ in which I set out the principles applicable to such cases as perceived by me. It is important to emphasize that, in each of those cases, I attempted to distil the principles binding upon me falling from decisions of the Full Court – it is the latter who dictate principle, not trial judges.
With that caveat, I make it clear, should this matter be appealed, that in deciding this case I am applying what I apprehend to be the principles emerging from those Full Court decisions (and earlier pre-Reform Act decisions of the High Court) as I have set them out in Pitkin and Hendry [2008] FamCA 186 and Fitzroy and Fitzroy [2009] FamCA 954. Given the reliance by each of the parties on the specifics of what was said in those cases, it seems to me important to set out again here what I said in the latter case:
13.The effect of the 2006 amendments in cases such as the present has, to one extent or another, been the subject of judicial consideration, in particular, recently by the Full Court of this Court. (See, eg: Taylor & Barker [2007] Fam CA 1246; Sampson & Hartnett [2007] FamCA 1365; Goldrick & Goldrick [2007] FamCA 1260; Rosa and Rosa [2009] FamCAFC 81; McCue and Costa [2009] FamCAFC 92.).
14.In Goode & Goode [2006] FLC 93-286, the Full Court examined the amendments more generally, albeit in the context of interim orders and not in a “relocation case”.
15.In Pitkin and Hendry [2008] FamCA 186, I attempted to examine the statutory requirements and the principles emerging from the decisions of the Full Court then decided. I incorporate that analysis into these reasons and make it clear that, in this case, I am applying the principles there outlined.
16.Specifically, as I said there, the principles emerging from the Act and the decisions which bind me are, in my view, as follows:
· A “relocation case” is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.
· A relocation case falls to be determined like any other parenting case: the fact-finding (or value-finding) exercise required by s 60CC is directed toward ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time.
· Relocation cases, like all parenting cases, involve a determination of best interests as the measure by which legitimate rights and freedoms of the parties must give way to the rights and interests of the children.
· In that way, best interests is the paramount, but not the sole, consideration whatever be the nature of the order informed by findings as to best interests. That includes orders relating to parental responsibility and the rebuttal of the presumption in favour of equal shared parental responsibility in particular;
· All parenting cases require precise proposals by the parties (including, if thought appropriate, alternative proposals). The proposals are (or should be) the expression of each party’s assessment of their children’s best interests. “Relocation cases” are no different.
· The issue of relocation (and, necessarily, the parties’ proposals in respect of same) should not be considered separately from the issue of best interests. In truth, the proposals, including potential relocation, form part of the factual permutations within which best interests must be considered and findings made.
· The court is not bound by the parties’ proposals. Where the evidence points to an alternative being in the best interests of the children, orders should be crafted by the court accordingly.
· Findings in respect of the relevant s 60CC considerations, and an ultimate analysis and balancing of those findings should, when applicable, take account of the prospect of equal or substantial and significant time, whether because s 65DAA mandates it or because either is a proposal of the parties or looms as a potential order.
· Findings relevant to s 65DAA, if applicable, can, and often more appropriately should, be made as part of the s 60CC exercise, because, although requiring a specific process, any s 65DAA considerations are founded ultimately in findings as to best interests.
· Findings necessary to underpin an ultimate finding of “reasonable practicability” (s 65DAA(5)) can be, and often more appropriately are, conducted as part of the s 60CC exercise. Any specificity inherent in those s 65DAA(5) factors which do not overlap with s 60CC considerations can often readily be accommodated within the s 60CC exercise (s 60CC(3)(m)). As best interests governs the s 65DAA exercise, it is often convenient and appropriate to consider any matters directly relevant to s 65DAA(5) within the overall assessment of best interests. Of course, those findings, must be applied as the s 65DAA process requires.
· The abrogation or curtailment of parental responsibility with respect to long term issues involves a serious interference with fundamental rights and that is a factor which ought often be taken into account in assessing whether the best interests require the rebuttal of the presumption. Obviously, that right must give way where the best interests of the children require it. Equally, the court may need to craft orders for parental responsibility where the children’s best interests require it.
17.Further, it is necessary in my view to bear in mind what was said by Gummow & Callinan JJ in U and U ((2002) 29 FamLR 74 @ para 92), which is something, it might be said, emerging as much from the fact of parenthood as from the Act: “…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred”.
At the time of trial, the High Court was yet to hear the appeal in the case of MRR v GR in which special leave had been granted. The parties were given the opportunity to await the outcome of the appeal before the trial was heard. However, this matter has had an unfortunate history in the Federal Magistrates Court prior to its transfer to this court and the parties, understandably, want the earliest possible determination.

Each of the parties sought to make written submissions at the conclusion of the trial and each referred to the High Court appeal, which was ultimately heard approximately two weeks subsequent to the conclusion of the trial. The High Court allowed the appeal but reserved its reasons – MRR v GR [2009] HCA Trans 316, 3 December, 2009. In pronouncing the orders of the Court, French CJ said:
The Court is of the opinion that the Full Court of the Family Court of Australia should have held (a) it was not open to the federal magistrate to find that it was reasonably practicable within the meaning of section 65DAA(1)(b) of the Family Law Act 1975 for the child, MJR, to spend equal time or substantial and significant time with each of the child’s parents; and that (b) accordingly it was not open to the federal magistrate to consider making an order as described in section 65DAA(1)(c).
In written submissions, counsel for the mother argues that:
Whilst the High Court has yet to publish detailed reasons it is submitted the following observations may be drawn from the transcript of proceedings and short ex tempore reasons of the Chief Justice:
·In determining which of the proposals of the parties the Court ought consider:-
·The primary position of the party seeking to relocate and ought not consider what might be called the contingent option. That is, where that party says that they would not relocate if the children were not allowed to accompany them;
·The freedom of a parent to live where they wish ought not be relegated or undermined by having to express a so called contingent position;
·Where an order for shared parental responsibility is being contemplated the court must consider whether the proposed parenting order was reasonably practicable, within the meaning of section 65DAA(1)(b) of the Family Law Act 1975, for the children concerned to spend equal time or substantial and significant time with each of the child’s parents before making a s 65DAA(1)(c) order.
It is appropriate to proceed cautiously in attempting to divine statements of principle emerging from the course of argument before the High Court and the short reasons just referred to. What can, I think, be said, though, is that the transcript reveals statements by the justices of the High Court in respect of the current legislation that have echoes in statements made in earlier decisions of that court in respect of the pre-Reform Act legislation. The comments made by some of the justices about “contingent options”, for example, have some parallels with the comments made in the earlier decisions referred to. (As one example Gaudron J in U v U (2002) 211 CLR 238 said that, “It should be emphasised that the proposal that N live with her mother in Australia was the father's alternative proposal and not, as the trial judge stated, the mother's. ”(par 32)).
Gaudron J went on to hold in that case (at 37):
It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated. That is so whether it is the mother or the father who wishes to relocate. So much was made clear in AMS v AIF .
Reference to the principles earlier referred to, which underpin the decision in this case, reveal what I apprehend as the underlying, and pervasive, importance of findings as to best interests specific to these particular children and their particular circumstances. Nothing said by the High Court in argument in MRR v GR suggests to me that this is either erroneous or misplaced; indeed comments from the court might be seen as reinforcing that position.
The earlier decisions of the High Court in AMS v AIF (1999) 199 CLR 160, and U v U, above, are authority for the proposition that a parent seeking to move need not demonstrate, or be required to demonstrate, “compelling reasons” for the move. Equally, as it seems to me, a parent seeking to remain need not demonstrate, or be required to demonstrate, “compelling reasons” for staying. However, the decisions just referred to do not render the reasons for either moving or staying irrelevant (as to the latter see Hayne J in U v U, above). Moreover, for example, mala fides or capriciousness can be seen, in either case, to be directly relevant to one or more of the statutory considerations (eg. The responsibilities of parenthood – s 60CC(3)(i)) and may well be relevant to a determination of best interests.
In the case of the mother, the timing of her expressed intention to return to the United States, coming in the face of post-separation discussions between the parties and apparent agreement as to a permanent move by the family to Australia (which such intention is reflected in orders made between the parties in the United States) and a decision made informed by the previous experience of living in Australia, might give rise to suspicions or concerns about, at least, the capriciousness of the move.
Yet, the mother is an American citizen, her parents live there and are getting older, the parties and children lived there for some years pre-separation and there is high conflict with the father in Australia. The decision can be seen to be soundly based in logic and understandable emotional considerations. I am not prepared to find capriciousness or mala fides on the part of the mother in her decision to relocate.
The father’s desire to remain in Australia is, on his case, based, at least in significant part, on financial difficulties which, he says, would attend a move back to the United States. He says he wound up (successful) United States business interests in order to move permanently to Australia, he did so in reliance upon the agreement with the mother and the court order earlier referred to, and considerable difficulties would attend him reversing that process. In particular, he says that he has not enjoyed the same business and financial success that he enjoyed in the United States and asserts he does not have the financial wherewithal to move.
Further, the father’s decision to move to Australia was arrived at with his partner and her two children and he does not want to uproot them. The father is an Australian citizen who has family in Australia. The father’s desire to remain in Australia can be seen to be soundly based in logic and understandable emotional considerations. I am not prepared to find capriciousness or mala fides on the part of the father in the position he adopts.
It is contended in written submissions on behalf of the mother that the father and his family “could return to the United States” and a number of assertions are made as to why that is possible, citing the previous relationship of each of the father and Ms D with the United States. I do not accept that the assertions there made form a sufficient foundation for a finding that the father can move; I accept the father’s evidence in that respect. To the extent that the submissions are offered in support of an assertion that the father should move, I repeat what I earlier said about the respective positions of each of the parties and their reasons for moving or staying.
Time was taken at the trial in an exploration of issues surrounding what the mother would contend is a financial position of the father significantly better than that which he contends. Submissions, including written submissions in reply, explored some of the same territory. Child support proceedings between the parties remain unresolved.
I strongly suspect that those issues cast a very long shadow over the current proceedings. I am convinced that the perceived rights, wrongs, and asserted veracity and falsehood of the parties’ respective positions cloud their relationship and their respective capacities to make parenting decisions in their children’s best interests.
Child support is, of course, very important. Among other things, it can strike at the very heart of the responsibilities of parenthood. An exploration of the evidence necessary to make findings relevant to the core of the respective allegations about financial capacity and the like is beyond the scope of these parenting proceedings. Some of those issues are touched upon in reasons given by me in respect of interlocutory issues determined at the commencement of the trial.
Moreover, as reference to the poignant evidence of each of the single expert Mr P and the family consultant Ms V reveals, whatever might be the importance of child support – either generally, or to these parties – plainly these three children consider other issues much more important in determining their best interests. So do I.

Best Interests - Issues and Considerations

Parenting decisions in which one (or both) parties seek post-separation co-parenting arrangements that involve significant geographical separation between them, involve, as has frequently been commented upon, acute problems for courts. They also involve acute problems for those at the true sharp end of any such dispute and ultimate decision: the children.
The Act prescribes but one method for “how a court determines what is in a child’s best interests”: the mandatory set of Considerations contained in s 60CC. But, as the section itself makes clear (s 60CC(3)(m)), the court’s enquiry remains a broad one. The issues in this case can be seen to find ready reflection in those statutory Considerations (as well as in the Act’s Objects and Principles).

The Statutory Considerations and the Issues in this Case

The mother’s proposal to live with the children in the United States must necessarily have a dramatic effect on the nature and extent of their relationship with their father and stepsiblings. The nature and extent of that relationship is relevant to how meaningful it is and to the benefits which flow, or are curtailed, as a result. The Full Court said in Eddington and Eddington (No 2) (2007) FLC 93-349:
Clearly the amount of time which children spend with the parent potentially impacts upon the quality or significance of that time. In our view the time which children would spend with the appellant pursuant to the trial judge’s orders, the duration of such period and the frequency at which they would occur are likely to impact adversely upon the significance of the time which the children would spend with the appellant.
There is a nexus between the substance and the significance of the time which the children would spend with the appellant. Beyond noting that the legislative requirements are conjunctive, we need say no more, other than to stress that each case turns on its own particular facts and circumstances …
The court perceives that an abundance of substance can compensate for a deficiency of significance and vice versa.
The first of the two Primary Considerations is fundamental to the decision in this case. (s 60CC(2)(a)). In McCue v Costa (2009) FLC 93-405, the Full Court approved a statement of Bennett J in G v C [2006] FamCA 994 to the effect that the notion of “meaningful relationship” as used in s 60CC required a court to “evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”. The Full Court held that “the court should consider and weigh the evidence at the date of the hearing to determine how, if it is in the child’s best interest, orders can be framed to ensure the particular child has a meaningful relationship with both parents …” (at par 118).
That accepted, it also needs to be borne in mind that “… what the legislation aspires to promote is a meaningful relationship, not an optimal relationship” (per Kay J, Godfrey v Sanders [2007] FamCA 102). And, a differently constituted Full Court in Marsden & Winch (No. 3) [2007] FamCA 1364 held, per Warnick & Thackray JJ at par 77, that whilst this primary consideration:
… should be accorded particular importance in determining what order will best promote the interests of the child” and is “of the utmost importance … in determining [that] outcome…” it is necessary to “…take into account all of the relevant considerations identified in the legislation, giving each of them such weight as … thought appropriate…”.
The nature of the existing relationship between the children and each of their parents is also fundamentally important (s 60CC(3)(b)).
The Act places no restrictions upon the “other persons”, the nature of whose relationship with the child is to be considered (s 60CC(3)(b)). To children of an age of those in this case, and particularly the two girls, the importance of relationships with their friends is, it seems to me, axiomatic. If specific evidence of that is needed, it is to be found in this case in the opinion of the single expert, Mr P which I accept. In a report recording children some twelve months younger than they were at trial, Mr P records Y as saying (par 121):
When I asked [Y] to name her best friend she did so as “[T]”, I asked her, as I had asked the other two children what she thought were the attributes of a true best friend, [Y] gave the best answer when she said “um, [T], she listens when I am upset, she listens, she is always there for me, she has had similar problems with her dad”.
C, then aged 10 is reported by Mr P as follows (par 125):
I asked the children to express their feelings about the proposed move to America by “hands up who is in favour of mums plan”. All put their hands up but [C] then said “I don’t want to move, but I do want to move, I’ll miss my friends”.
The central place of parental conflict in these proceedings will be referred to specifically in a moment. That conflict has, in my view, already caused the children emotional harm. It is likely to continue to do so. Indeed, each of the parties – at least ostensibly – recognise this centrally important matter. Each identifies the end of conflict as being an advantage in their respective proposals. In particular, the mother asserts that a move to the United States will bring about, if not an end to the conflict between the parents, a significant diminution in it.
Whether or not harm of that type is specifically caught by the terms of the Primary Consideration in s 60CC(2)(b), the protection of the children from that harm is, in my view, of primary importance to their best interests. And, whether viewed in that way or not, it is plain that the conflict and its ramifications - and the capacity, or incapacity, for each of the parents to contain it - is directly relevant to a number of the Additional Considerations required to be taken into account under the Act.
Those Considerations include, for example, the capacity of each of the parents to provide for the children’s emotional and intellectual needs and the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (respectively, s 60CC(3)(f) and (i)). These children have an absolute right to be nurtured appropriately and selflessly without adult issues impinging upon their care and development.
Where children have settled in an environment over a period of years in which they have attended schools, participated in activities of interest to them and made friends, what courts often refer to as “relocation” is, for the children, very often a dislocation. It is unsurprising that s 60CC(3) should direct a court to consider the effect of changes inherent in the proposals of the parties in such a case.I consider that factor to also be particularly important here. (s 60CC(3)(d)).
The statutory considerations must be seen in the context of the Objects and Principles which are also enshrined in Part VII of the Act. The rights of children enshrined in s 60B are challenged by any proposal that sees loving and caring parents, interested in their children’s nurture and development (as I find each of the parents in this case to be) separated by significant geographical distances – in this case, by international boundaries.
For example, the right of children “to know and be cared for by both their parents” and their right to “spend time on a regular basis … with both their parents”, [emphasis added] can be seen to be challenged by such a separation. An important aspect of a decision about the best interests of these particular children, in the particular circumstances in which they find themselves, is the recognition of their statutorily-enshrined rights, including in particular, those just highlighted.
Of course, parents have rights too, albeit that, in a parenting case the subject of proceedings in this court, they are subservient to the best interests of the children. But, the fact that they are subservient does not render them irrelevant. A parent’s “freedom to move” is often referred to in that context, but there also exists for a parent the freedom to make choices about how he or she should re-structure his or her life upon the breakdown of a relationship with their fellow parent. It follows, consistent with those rights, that one parent ought not have a “veto” over those rights of the other parent by reason of the circumstance that they have children together and once had a relationship that produced those children.
Yet, parenthood not only brings with it a miscellany of rights, duties, responsibilities and difficulties; it also brings with it, for loving and caring parents – and for the children – great joy and satisfaction from the regular involvement in their children’s trials and tribulations, successes and failures. It is perfectly consistent with a loving parent’s rights in this democracy – and, in my view, as important as the other “freedoms” just referred to – that a parent should seek to have the, as it were, freedom, to have that regular involvement and to experience those joys and dramas as their children grow day by day and year by year. It also follows, consistent with those rights, that the other parent should neither have a “veto” over those rights.
When parents can’t agree, the court’s assessment of best interests is the measure of the extent to which those legitimate rights and freedoms must give way. (See AIF v AMS (1999) 24 FamLR 756; U v U (2002) 211 CLR 238). When parents, through their conflict, or the nature and extent of assertions made by one against the other, enliven the court’s duties and responsibilities, views and decisions other than their own intervene. In that situation, rights and considerations relevant to best interests as assessed and determined by a court predominate.

Conflict and its Central Role in this Case

The rights of children, and assertions as to their best interests are, in many highly conflicted parenting cases ending in trials, refracted through a prism of each parent’s creation which contains their interpretation of the children’s best interests clouded by the (often unstated and sometimes denied) assertion of parental rights, both of the type earlier described and of a more self-centered type. In my judgment, such is the case here.
Where there is conflict of a chronic and debilitating kind, as there is here, the issue is further considerably clouded by assertions and counter-assertions of past and present “wrongs” said to support ultimate assertions about the best interests of the children and said to “justify” the exercise of rights by a parent or, at least, to explain why those rights are being exercised in a particular way. Again, in my judgment, such is the case here.
In poignant and telling evidence from the witness box, the Family Consultant, Ms V implored each of the parents in this case to end the conflict between them in the interests of their children. She told of interviewing a tearful C (saying she was “very distressed during interview”) who plainly wants her parents to do what she has a right to expect of them: to quarantine their (purportedly) adult issues and to act co-operatively in co-nurturing her and her siblings into adulthood.

Tragically for these children, little has changed from the position that pertained for them more than twelve months previously, when they were interviewed by Mr P. Mr P flagged the importance of the cessation of conflict for these children in a report authored in September, 2008:
I certainly gained an impression from the children, and particularly from the eldest child, [Y], that they have heard the parents on both sides of this dispute making unfortunate, negative comments about each other …
… although the quality of the contact is largely satisfactory and mutually affectionate, it is being played out against a background of extreme suspicion and sometimes unpleasantness in the way the two parents deal with each other. The children are very well aware of this.
Perhaps the most striking example of the state of the conflict between these parents arises in the context of suggested attempts to address the conflict. Having been advised of the need to address conflict issues by Mr P toward the end of 2008, by the time of trial over 12 months later, there was conflict – reflected in the written submissions on behalf of each - about who did or did not do what in an attempt to address the issue of conflict.
The nature, extent and longevity of the conflict is, without doubt, significantly detrimental to these children. It has ramifications, too, for the court’s determination of the issues here. The parties’ assertions and counter-assertions are, naturally enough, the subject of competing submissions by the parties as to the credit of the other and the other’s witnesses. Clear factual findings about those issues do not easily emerge from the mire of allegations and counter-allegations.
Incongruities abound. Most, in my view, are not the result of a conscious desire by either party to lie. Rather, most are, as I see it, indicative of each party seeing the other, and the other’s parenting, refracted through their own clouded prism and a desire (probably, for the most part at least, unconscious) to turn otherwise innocuous actions and events into self-serving support for their cause, justifications for their actions, or as evidence that their parenting is “better” than the other parent.
Some of those incongruities can be seen to be relevant to issues which the Act marks as Primary Considerations. Not the least of those is the allegation by the mother that the father is violent and is, as she described him, a “functioning alcoholic”.
It is necessary to stand back from those assertions and attempt to put them into a proper context in an assessment of best interests.
Family violence is a very serious matter, immeasurably more so when it involves violence to a child. It is difficult to see how or why such a serious and important issue would be raised in a parenting case unless it was said to have significant ramifications for the nature and extent of the relationship between the allegedly violent parent and his or her children. So, too, alcoholism (whether “functioning alcoholism” or otherwise) is a very serious condition that has the potential to very significantly impact on a person’s capacity to parent. It is similarly difficult to see how such an assertion can be made by one parent against a co-parent unless it is asserted to have very serious ramifications for the nature and extent of the person’s capacity to parent and, thus, the nature and extent of the parent’s relationship and time with the children.
Yet, each of those allegations are made by the mother in this case in circumstances where:
·No allegation of either violence or alcohol abuse was made by the mother in any material sworn by her earlier than her trial affidavit;
·The mother agreed to, and implemented, a week about shared care arrangement for nearly two years;
·Subsequent to unilaterally changing the parenting arrangements after receiving the Parents and Children’s Issues Assessment report, the mother nevertheless continued with a “two to one” shared care arrangement;
·The mother’s mother confirmed in evidence that she had not seen the father be violent and makes no mention of any such concerning behaviour in her affidavit;
·The mother’s final orders propose that the children spend a continuous period of about 8 weeks with the father and other extended periods of time. (In respect of the former, the mother said in evidence that she has “reservations” about it and that she proposes to travel to Australia and be in close proximity to the children.)
In an affidavit sworn by the mother and filed on 29.5.08 (in the Federal Magistrates Court) the mother swears that “I do not believe that [the father] would physically harm the children in any way. I do not believe that he would intentionally harm the children physically or emotionally, or subject them to violence”. In her affidavit of evidence in chief for these proceedings, the mother swears: “The children regularly complain to me about being on the receiving end of verbal abuse from the husband, and sudden bursts of anger from the husband. They are regularly called “idiots and fools” by their dad, and several of these outbursts have been dreadful experiences for the children …”
As important as the inconsistency arising in the course of a period of about 17 months whilst proceedings have been on foot, is, in my view, the change in the tenor of what is deposed to. It is important because, when seen in the context of the chronic, on-going conflict between these parties, it is, in my view a powerful portent of the potential for the disintegration of the relationship between these parties and a portent for the children “taking on board” their parents perceptions and conflict.
The latter is exemplified in my view by a comment made by Y deposed to by the mother in her trial affidavit: “[Y] particularly notices differences in the two houses and the level of alcohol consumption, as I usually only drink alcohol socially. She recently remarked to me ‘it’s not really normal for adults to have a drink in their hands the whole time, is it mum?” I should also say that this, in my view, is a good example of the type of self-serving assertions and counter-assertions of the parties earlier referred to.
The issues of the continuation of conflict, the children’s role in it and the conflicted loyalties of the children are all important issues and I will return to them below.
Whilst the affidavit material and oral evidence of the mother is redolent of general description and assertion in respect of each of the issues of violence and alcohol abuse, it is spare in its particularization of either. As to the latter, I accept the submission on behalf of the father that there is a paucity of evidence from the mother about any specific occasions suggestive of the father’s capacity to care for the children being compromised by alcohol abuse.
There is insufficient evidence from which the court could conclude that the father was an alcoholic (functioning or otherwise), that his capacity to care for the children was compromised by alcohol abuse or that the children are at risk in his care by reason of same. To the extent that the mother swears to evidence of same (as distinct from making comments or assertions) I consider it exaggerated and do not accept it as evidence of significant alcohol abuse.
Protection from family violence and abuse is a Primary Consideration. In written submissions on behalf of the mother extending over 30 pages, submissions about violence consist entirely of the following: “There have been allegations of the father’s excessive drinking problem and regular outbursts of anger at the children, in particular when he has been drinking”. In summarizing the mother’s position and the findings sought (pars 50 and following) the submissions seek no findings in respect of violence (or, for that matter, alcohol abuse). In my view, that position properly reflects the evidence: the incongruities earlier noted are supplemented by “evidence” from the mother which, like the assertions in respect of alcohol abuse, is strong on general description and assertion, and weak on particularity.
Indeed, attention appears to be focused primarily on only one specific incident described in the mother’s affidavit as follows:
The children returned to my home after spending a week with the husband in February in an agitated state and told me that during the week the husband had forcibly struck [S] on top of the head causing [S] to cry out and shake. All of the children were shocked and distressed by the incident. They told me [S] was punished in this way because he disobeyed the husband’s demands that he thank his stepmother [Ms D] for the meal that she had prepared.
In respect of this incident, the father deposes:
…[S] has had a long standing problem with his manners which are quite poor. He does not say please or thank you and we find that people often find him rude because of his poor manners. Also, the mother has not appeared to be concerned about [S’s] manners. [S] has said ‘I don’t need to say thank you at mum’s because we usually eat take away and I don’t need to say thank you to a babysitter’. I laid down some ground rules at our house in relation to manners which are to say please and thank you to everyone. After a week of [S] failing to use his manners he was again extremely rude at the dinner table and I clipped him on the head lightly and sent him to his room. It happened to be one of [S’s] favourite meals which he did not want to miss so he screamed his head off and threw a tantrum. The children were all upset about [S’s] outburst. After a few minutes he cooled down and joined us back at the dinner table. [S’s] manners of late have gotten much better and we compliment him on that often.
Having seen and heard both the mother and father in the witness box, I prefer the father’s account. “Clipping” a child over the head is not, as far as I am concerned, an appropriate form of “punishment” or “behaviour modification”. But nor is it, on the version I have accepted, an instance of “violence” of the type or severity, or with the ramifications, that the mother would have it. I am confident that, as the father deposes, the children, including S, were upset. I am equally confident that it is not an issue of major emotional trauma to any of the children, including S. The incident as a whole reeks of the sort of domestic dramas common to most families – even if, in my view at least, the response by the father was inappropriate.
The passages just quoted are, in my view, much more instructive of other matters central to this case. Each is an example of the self-serving nature of the evidence of the parties to which I earlier made reference.
For example, I do not accept for one minute that the mother is a parent who cares nothing of giving children appropriate manners. I do not accept for one minute that the mother is a parent who neglects the children’s nutrition by constantly feeding them takeaway food. I do accept that the mother, like most parents, occasionally feels unenthusiastic and gets a takeaway when perfect parenting might dictate otherwise. But, by reason of being human, no parent is perfect.
There is little doubt in my mind that the behaviour of the father toward the children, in terms of how he reacts to situations and the things he says, particularly as a reaction to the conflict with the mother is, at times, less than ideal. The “incident of the dog” referred to in the evidence is, to my mind, a good example and one where the father himself admits that his reaction fell short of what might be expected of a parent charged with the responsibility of predominating role modelling and nurture over inappropriate emotional reaction. I do not accept that the father perpetrates violence on the children as the mother would have it or that he is abusive of them. I do accept that, like most parents, he loses his temper and his self control when perfect parents may not. But, by reason of being human, no parent is perfect.
Most parents fall a long way short of perfection; the British psychoanalyst Winnicott coined the phrase “good-enough parent” for good reason. More importantly in the context of this case, it is important to observe that merely because one parent parents differently from the other does not necessarily lead to a conclusion that one is “better” than the other. In the passages earlier quoted (and in other parts of the evidence of these parties), can be seen the children caught in the middle of an all too ready willingness by each parent to see differences in views, actions and attitudes in and about the children’s parenting as being “better” or “worse” than the other rather than just different. To put it in Y’s words as used to Ms V: “Mum and Dad have different morals and standards, I get put into the middle by Dad, Dad pushes Mum’s buttons and then Mum over reacts”.
The accounts by each of the parties of specific incidents (and, indeed, of each other) are, in my judgment, full of exaggeration and hyperbole. Worse, from the point of view of the children, (as Y, at least, explicitly recognizes) the parties exhibit a compelling lack of insight into the effect this is having on the children. This is what Y told Ms V:
…no one cared how I was going to miss stuff when we moved here, now Dad says you miss your dog, miss your friends, he uses it to his advantage, Mum asked us how we felt when we were moving here, now she says that your father annoys you anyway, both sides give their opinions, why won’t they talk to each other, this is stupid.
… Mum and Dad need to learn to get along, Mum says she has tried, but trying is more than sitting in a counsellor’s office and Dad has not tried … It is like being on different teams, it is like two teams and I am the one going back and forwards … [[Y] suggested that if she and her siblings and step siblings can get along] then they need to get along, this is all about them being mean to each other.
I could not agree more. It needs to be remembered that Ms V comments more than once on Y’s extreme distress as she described these things to her.
Y is not alone in her feelings. C told Ms V “it is disappointing that they can’t agree on anything, they need to get along, but that probably won’t happen.” C, too, became very distressed during her interviews with Ms V. When Ms V expressly asked C if there was something she would like Ms V to tell the judge, she simply replied: “[tell him] that they [her parents] need to listen to each other.” I could not agree more with this statement.
I can only but wonder why it is, apparently, so difficult for these parents to not only listen to their children but, more importantly, to take heed of what they are saying and feeling. Ms V comments in that respect: “Both parents could identify that a lack of communication between them is having a detrimental affect on the children; however neither could identify anything within themselves that could assist the situation and consequently give the children a reprieve from the conflict.”
The evidence of the parties and my assessment of them bears out the accuracy of this observation.

Best Interests

Reducing Conflict

It will be clear from what I have said about conflict and its central place in these children’s best interests that, if a proposal or proposals are found to be significantly likely to reduce the conflict between these parents, any such proposal or proposals might be thought likely to be significantly beneficial for the children and, thus, strongly indicative of a result consistent with the children’s best interests.
That proposition is central to the mother’s case. It is submitted on the mother’s behalf that:
There is no doubt that the mother sees a reduction in conflict as being an advantage of moving with the children to [the United States] …
… Ms [V] also asserted that the conflict would not abate if the children lived in America. However, it is submitted that it is axiomatic that the week to week conflict must surely be lessened substantially if the children live in the United States. Even in the event that the Court makes an order that the parties share equal parenting responsibility, and the parties are able to conduct discussions by telephone about long term issues such as education, health and religion, it is hard to imagine that these discussions would occur with sufficient frequency as to create the level of conflict which currently exists between the parties, as the children move between the two households every fortnight or weekly.
I do not accept this argument. First, in my view, it conflates the ostensible manifestations of conflict with the mixture of apparently intractable emotions and attitudes, including those referred to above, that are its true constitution. The latter finds reflection in what Ms V said in evidence about the process of changing conflict being “internal to each of the parents”. The argument on the mother’s behalf assumes, in my view, an “out of sight, out of mind” solution to the central problem of parental conflict.
Because the conflict springs, in truth, from the emotional complexities - internal to each of the parties - it is, it seems to me, very likely that the conflict will become worse in the event of a relocation of the children. I am certainly not persuaded that it will abate.
In oral evidence, Ms V said the conflict between these parties “was learned”. As a result, there was every chance, she thought, that the “resentment would keep building” in the event of a move and she instanced the opportunities for its manifestation over holiday arrangements and communication having to take place across international distances. I accept this opinion. It accords with my own view of the parties’ history of lack of communication and the history of the nature of the approach of the parties to each other, examples of which have been given earlier.
Further, I am troubled by the potential impact that the dynamics of the mother’s relationship with her parents might have on the level of conflict, and the resentment which underpins it. It is accepted by the mother that there have been past difficulties in the relationship between her and her mother, although it is said that these have now been repaired. I accept the submission on behalf of the father that the grandmother’s affidavit paints an essentially negative picture of the father yet (as her oral evidence confirmed) it is based almost entirely on an amalgam of hearsay and assumptions. I am most concerned about the picture of the father that would be given if the children lived in the United States in close proximity to their grandparents. I cannot accept that this situation is likely to be productive of less conflict.

Views and the Effect of Change

I have already made reference to the fact that the children’s voices should be heard in these proceedings.
In my opinion the use of the word “views” in the post-Reform Act legislation is of broader compass – at least potentially – than the word “wishes” used previously in the Act. In particular, the concept is in my view designed to embrace manifestations of children’s feelings as well as statements that might be seen as determinative of, or pointing towards, issues, including the ultimate issue, in a case.
In September 2008, Mr P saw each of the children and sought from them their views about the proposed move. Y was then nearly 12, but, of her, Mr P said: “…this child struck me as extraordinarily well balanced personally and socially, and very mature for her age … there were times when I considered I was almost relating to a 15 year old teenager. The contrast between [Y] and her two younger siblings is extreme.” By way of contrast Mr P said of the younger two children: “I could not assess [C] and [S] as being mature for their age. They may well be cognitively gifted, but their behaviour on the day of the interviews was restrained to say the least.”

Y told Mr P “I would like to go but I want to be able to visit here and see my dad and my dog…”. Of a suggestion by the mother that, if she remained in Australia she may move to nearby M, Mr P said Y was accepting of this “because ‘I’d be near my friend [T]”. Later she said “… oh, mum’s thinking about [M] that would be all right, but not as good as going and there’d still be conflict”.
Mr P concluded that:
I do consider that her falling in with her mother’s plan to relocate to the USA, represents for her a form of respite and escape from a difficult situation between her parents. This girl would dearly love her parents to be on better terms with each other.
Mr P said of C that he “failed to bring [her] to a point of focus during interview” as a result of her behaviours. Of the move, C said to him: “I don’t know, some of me wants to go to America and some of me wants to stay here”. Mr P opines: “This interview with [C] descended into more wild laughter, but it did seem to me that this child was torn in her expression of wishes”. S (then aged nearly 8) expressed a clear preference for going to America. Mr P said:
[C] and [S] were extremely difficult to interview, but it did seem to me that there were some clues concerning their adjustment, arising from their comments. It appeared to me that [C] was mixed in her feelings and ambivalent on the subject of relocating to America. [S] appeared to be wanting to be wherever his mother was.
About twelve months or so after those interviews, the children saw the family consultant, Ms V. Parts of Ms V’s evidence have already been referred to. Ms V says of Y (now aged 12.5 and who, like Mr P, Ms V describes as “mature, articulate and engaging” and as having a “good use of language and intellectual skills beyond her age development”):
[Y] reported that she was aware that her mother wanted to take her and her siblings to live in the United States of America. When I asked her how she would feel about that she stated “can’t tell if its going to be ok at mums or dads, I don’t know what it is I like in California, I could go for a year and if I don’t like it, I could come back and stay with dad, if I liked it I would stay, we have moved a couple of times, I’m just sick of the lot of it”, furthermore she stated “I’m not sure I want to move”.
Ms V goes on to record Y as saying that her mother has a new boyfriend and is “focused on him more than being with the family, but she still looks after us”.
It is, in my judgment, significant that Ms V records Y as saying that coming to Australia had brought with it “a lot of hostility and change, and the change has been difficult”. This is important in light of Ms V’s opinion, that the mother “views the issue of taking the children to America as secondary and minimizes the impact on the children’s father and the children”. I accept this opinion, which is entirely congruent with my own views.
Ms V goes on to say that the mother:
… appears to have limited insight into the impact of her proposal of moving to America will have on the children and their father and the relationship that they have and want to have”. [The mother] was not receptive to feedback in relation to the affects on the children. [The mother] appears to believe that if they (she and the children) move to America that the situation will be solved and they will ‘get on with it and move forward’. [The mother] for the better part appears to be child focused on her day-to-day care of the children , but lacks the ability to see past her own situation and anger to acknowledge the impact of moving the children when they appear to be settled here.
This, too, I accept. It is congruent with my own views gleaned from the evidence as a whole and my observations of each of the mother and father. The reference to the children being settled here in the passage just quoted is, in my judgment, a very important pointer to at least some of the orders best meeting the best interests of these children.
In respect of S (a “bubbly, sweet little boy with a close relationship with his mother … well within his developmental range”) Ms V says:
I asked [S] if he was aware why he is here today and he stated that his parents are “fighting, we want to go to America with mum, I want to go, but we would visit on the holidays, dad is being mean”.
[S] stated that he would like to live with his mother more, “but I would like to visit dad”. [S] suggested that if the family does relocate to America it “would make things easier”.
In respect of C (who is assessed as “within her developmental range… articulate and reserved”) Ms V reports:
I asked [C] how she felt about going to reside in the USA with her mother, [C] stated “we would be closer to family”, however then stated that she wants to see her parents “equally”. [C] stated that living in two different countries would be difficult, that she and her family have been here for three years and are settled at this point. [C] stated “it was hard coming to a new country, it wasn’t as easy as I thought, I don’t know if I want to stay here or there, I don’t care anymore, I would prefer to live in America but dad won’t go (began crying and becoming very distressed), if I move to America I won’t see dad, it would be a long time between visits I would miss dad”.
I consider that a clear theme emerging from the evidence is that the children want stability, and an end to the conflict. In oral evidence, Ms V said that her strong impression was that the children are “sick of being moved”. Important in that respect is the fact that Y is going into high school and, after what was, for her, a difficult settling in period (as she has told Ms V) she is now relatively settled.
I have already referred to my view that the evidence here reflects that, in situations of conflict as chronic as the present, the relationship of the children with their siblings and friends represents an important part of their emotional world. In that respect, the following comments of Y recorded by Ms V have real resonance for me:
[Y] said that coming here has brought with it a “lot of hostility and change, and the change has been difficult”
…no one cared how I was going to miss stuff when we moved here, now dad says you miss your dog, miss your friends, he uses it to his advantage, Mum asked us how we felt when we were moving here, now she says that your father annoys you anyway …
When she saw Mr P 12 months or so before that, she gave a clear indication of the importance for her of a particular peer relationship and, very significantly in my view, flagged its importance in the specific context of her parent’s conflict. The statement bears repeating:
When I asked [Y] to name her best friend which she did so as ‘[T]’, I asked her, as I had asked the other two children, what she thought were the attributes of a best friend. Of all the three children, [Y] gave the best answer when she said ‘um, [T], she listens when I’m upset, she listens, she’s always there for me, she’s had similar problems with her dad.
Although the mother told counsel for the Independent Children’s Lawyer that “[Y’s] best friend is moving to Sydney in the New Year”, the identification by Y of a need for empathic peer relationships is, in my view, very significant. In oral evidence, Ms V said that it struck her as interesting that none of the children had said to her “I want to go” to the United States, although they did refer to their mother wanting to go and them being, with varying degrees of ambivalence, content to acquiesce.
When questioned about the children’s emotional resilience and their capacity to cope with the proposed change to America, Ms V said she thought the children were more resilient in that respect when they were younger than they are now and that they have been resilient over time, but they now sought greater stability.
Interestingly, when the maternal grandmother was being questioned about moves that the children had made earlier in their lives, she said the children were then “younger and more pliable to adjust to a new place than they are now”. I agree.
When the effect of change is being considered, it is in my view important to ask the question: “from the children’s point of view, a change from what to what and what things go with any such change?”
Here there is a change from an environment, albeit one that is highly conflicted, where the children see their father and their step siblings on a very regular basis. Importantly, as Y enters high school, she identifies, amidst the conflict of her parent’s relationship, a peer relationship of particular importance with, even more importantly as I see it, the need for peer empathy and understanding for her situation. For so long as the conflict between her parents continues (as in my view it is likely to wherever they each live), peer relationships will be very important not only for Y, but for all of the children. A move to the United States will mean Y (and the other children) “starting again” in that respect in an environment where they don’t have regular access to their father and step-siblings and where the mother will be pursuing a new relationship.
Further, Y – a mature and articulate child – identifies the previous difficulty in moving and a lack of parental insight (as she reports it) in respect of the difficulties of that change. In my view, her comments reflect an understandable nervousness of the same difficulties being involved in the current proposed move. I, too, am nervous about the difficulties for the children of the proposed move.
C, too, identifies genuine ambivalence about the move, and an understandable reluctance to experience the consequent reduction in the regularity of time with her father that any such move would necessarily entail.
The proposed move is to a place in America where they have never lived. They will, apparently, need to deal with the mother’s new relationship – an issue flagged by Y to Ms V. The mother’s partner (Mr K) was not a witness in these proceedings. Submissions were advanced that a form of Jones v Dunkel inference ought be drawn as a result. In my view, no inference, as such, is open, but Mr K’s absence from the mother’s case is curious.
She explains it by saying that the relationship with him is not a reason for her proposed move. I accept that, but the role that he sees himself playing in the lives of these children (as distinct from the role the mother sees him playing) is, surely, important and is left unexplained in evidence either from the mother or Mr K.
Answers by the mother to questions from counsel for the Independent Children’s Lawyer were to the effect that the relationship was sufficiently serious or important for her to refer to him as her “partner” as early as September 2008; that he had two children including an 18-year-old who lives with him and that the mother is hoping the relationship will develop if she lives in the United States. Yet all of this evidence was drawn in cross-examination. None was addressed as part of the changes that, potentially, the children would need to cope with if they lived in America.

The Nature and Meaningfulness of Relationships and Capacity to Promote

I have already referred to evidence by Ms V, which I accept, in respect of the mother’s insight into the children’s needs. In a similar vein, Ms V records a number of statements by the children that are directly relevant in assessing the nature of the relationship between the father and the children.
The (articulate and mature) Y describes her father’s home as “unstable and hostile” and goes on to say that when S talks of his mother in his father’s household, the “air at her father’s becomes “tense”. Y said that her father “tries to give the illusion that everything is fine and it is not fine” “at least if I talk to Mum about it she listens, she may not like what I have to say, but she listens”. At one point, Y did not see her father for five weeks due to her being angry and unhappy with him. Yet, she continues to express a clear desire for a continuing relationship with him and specifies that as being a relationship involving regular periods of substantial time.
Y had specific concerns, of a practical nature, about a week-about arrangement, saying that it presented difficulties for her schoolwork and the like. She was asked what she wanted to tell the judge and replied “change over is not working well”, suggesting that she would prefer two weeks with her mother and one week with her father. When asked to “scale” the households, she said she rates living with her mother as five out of ten and being with her father as being six out of ten.
C echoed similar concerns about her father not listening to her. She suggested that she would prefer “two weeks at Mum’s and one and a half weeks with Dad”. Y “scaled” her father a four out of ten and her mother a five out of ten.
S told Ms V that he did not like the 50/50 arrangement, saying he would like to live with his mother more “but I would like to visit Dad”. He said he would like to stay at his mother’s all week and visit his father on the weekend. When Ms V told him what his sisters had said of their preferred arrangement, he told her that “if it can’t be what he liked then two weeks at his mother’s and one week at his father’s would be acceptable”.
It is to be noted that a week-about arrangement had prevailed for nearly two years between September 2007 and July 2009 and a “two week / one week” arrangement has prevailed for about four months or so leading up to the final hearing.
Ms V reports that the father:
… appears confused as to why [the mother] wants to relocate when she and he had spoken about relocating to Australia for many years and when they did relocate they were already … separated and he was already in a relationship with [Ms D]. [The father] is sympathetic to the children’s mother feeling lonely and lacking supports, but believes that ‘she needs to get on with it’.
Ms V was of the opinion that the mother was “very involved in the children’s lives and had much more of an insight into not only the necessities but the importance of the children’s social lives and skills and the importance of outside activities so the children could build a social network and this in turn builds self esteem and self respect”. By way of contrast, Ms V reports on the father as:
…much more focused on the children as a part of the family unit, especially in relation to the “new” family. He did not place too much of an emphasis on the children’s outside activities and friends.
… [the father] minimized [Y’s] diagnosis of depression and appears to put it down to female hormones.
[The father] appears so enmeshed in his own anger towards the children’s mother that he is unable to speak to [the mother] without disdain.
The mother squarely identified in evidence a significant advantage of her proposal as her having a larger support network. That includes, specifically, her parents. Yet, the evidence reveals a historical relationship between the maternal grandparents and the mother, and them and the children, that, in my view, could hardly be described as close. (It will be appreciated that I am in no way suggesting that they do not love their grandchildren or the children them. The Act requires, where relevant, a consideration of the “nature of the relationship” with, relevantly, the grandparents).
Mr P wonders (eg at pars 72 – 74 of his report) about what seems to me to be an incongruity in the mother’s position with respect to parental support. It seems plain on the evidence that the relationship between the mother and her mother was, for a long time, strained. So, too, the relationship between the mother and her brother (who she accuses of having been violent to her when she was much younger). Having regained the relationship with her mother, the mother moved to Australia, intending the move to be permanent.
The maternal grandparents, despite clearly being very affluent, have never visited the mother or their grandchildren in Australia – neither during the pre-separation period in Perth or in the three years the mother and children have lived in Queensland. The mother and children have visited her parents, but when they do so, they do not live in the grandparents’ house; they rent a house nearby for the mother and children.
In her May 2008 affidavit the mother swore this in respect of the nature of the relationship between the children and their father:
98.I acknowledge and agree that [the father] and the children enjoy spending time together. The children also enjoy spending time with [the father’s] new wife and her 2 children. I support the children’s involvement and ongoing relationship with the father. I try to show appropriate interest in what they have done while with their father, and to be excited for them when they have an enjoyable time. I am mindful of the need for the children to have an ongoing and meaningful relationship with their father.
The mother now paints a significantly different picture of time between the children and the father, citing, in many cases, comments by the children and S in particular. In my view, however, much of what is said by the children to either party is a manifestation of the children being sick and tired of the parent’s conflict as distinct from any change in the nature of the relationship between them and their father.
The mother also deposes in her earlier affidavit that:
101.I am prepared and able to facilitate and encourage a close and continuing relationship between the children and [the father]. I do this because, at the end of the day, he is the children’s father and they love him. I consider it beneficial for them to enjoy a meaningful relationship with their father. I am therefore prepared to put aside my own feelings for [the father] and I respect [the father’s] position in the children’s lives as their father. I have always been supportive of his relationship with the children and never intentionally indicated any negativity to the children regarding my own personal experiences and feelings for [the father].
Whatever the parents may think, and whatever be their perceptions about this issue, it is plain the children, and particularly the elder two, disagree. As Mr P puts it: “I am in absolutely no doubt that the children have heard negative comments made by both parents about each other”.
It will be recalled that I earlier expressed concerns about what might happen to the relationship between the children and their father if they moved to the United States and the role that negative perceptions by the parties of each other may play in there being no reduction in the conflict in that event. During the course of cross-examination by counsel for the father, the mother was asked what she would do if, when in America, the children said they did not want to leave there to see their father in Australia.
Written submissions in reply on behalf of the mother quote the transcript of 24 November 2009, p.29-30 commencing at line 32:
So you knew that they were going to ask for two out of three?‑‑‑No, I did not know that actually.
Well, you just said you knew before?‑‑‑Well, they told the parenting orders program people, who had interviewed the kids individually, and then – to get their opinions on how things were going and then [the father] and I were supposed to come and hear what their feedback was, and all three of them had said that they weren’t happy with their current arrangement, and they were very defeated with the current situation. They had also told me, personally, that that’s how they felt. So there was – she was just the third person to, sort of, express that point of view, and the kids had come up with that idea in the last expression of that feeling and it seemed like that’s what we should try.
Right. So if the kids say, “I don’t want to go and see dad in Australia this year”, that would be okay too?‑‑‑Mm.
That would be okay?‑‑‑Like I said, I have some reservations, but I ‑ ‑ ‑
No, to be fair to you, what I’m saying to you ‑ ‑ ‑?‑‑‑Yes, I will.
‑ ‑ ‑ if the children say, “I don’t want to go and see dad in Australia,” that will be okay?‑‑‑Yes, for them I think it’s okay, I think.
You won’t be able to change their mind or effect any change in their outlook as their mother?‑‑‑I wouldn’t want to.
You wouldn’t want to?‑‑‑Why would I want to change their outlook on their father? That’s up to them to come to.
Right, okay. You say that the father lists lots of different things that he does with the children in terms of activities, jujutsu, for example, there’s the basketball, there are various things with art and drawing. Is it fair to say that he’s a more, sort of, activity sort of a parent? Would that be fair to say?‑‑‑No. (Bold emphasis in counsel’s submissions removed.)

It is submitted on behalf of the mother that no finding should be made that the mother would not facilitate the return of the children for time with their father. It is asserted, and I accept that, the evidence is not otherwise redolent of such a risk, referenced, in particular, to the mother’s historical observance of Orders. (See par 69 written submissions in reply.)
Further references to transcript are said to support the conclusion that, when the mother said that she “wouldn’t want to” change the children’s mind if they said “I don’t want to go and see Dad in Australia”, she had misunderstood the question. In particular, it is asserted that earlier and later responses of the mother to cross-examination evidenced no equivocation about ensuring the children would come to Australia to spend time with their father. (See pars 70-75 written submissions in reply.)
It seems to me that, in a parenting case in particular, the court might be reluctant to seize upon precise words used by a party when under stress in the witness box. Nevertheless, I was struck, at the time, by the mother’s initial response and, equally, was not, at the time, convinced by her later modification of it. I very much doubt that the mother’s initial answer was a “slip of the tongue” or that she was under any mistaken impression of what she was being asked or that it was the result of any particular stress she was under in the witness box.
Nor, though, do I consider her initial answer to be reflective of her ‘intellectual’ position as to the benefit for the children in her promotion of time between them and their father – she is an intelligent woman who well knows the benefits. I do, though, consider the evidence very important as a good example of how the mother (and the father in different contexts) allows emotion to rule attitudes, actions and words.
I am profoundly concerned, despite the mother’s evidence and submissions to the contrary, that this would flourish if the children lived in America with the mother, as I see no real possibility of the conflict abating and there being a real possibility that the very significant geographic separation would encourage her “emotions to rule her head” and for there, at the least, to be heightened conflict as a result. I should be concerned about this (s 60CC(3)(1)) and I am.
I consider it important that, even if all else went well, the mother’s proposal would see the children not only separated from their father for lengthy periods of time, but, equally, separated from the mother for a period of eight weeks during the summer vacation. In my view, that is particularly relevant for S. The potential detrimental effect of this separation is again exacerbated, in my view, by the nature and extent of the conflict between these parents. The nature and extent of the blocks of time in the mother’s proposal with the absences from each party inherent within it are not, in my view, in the best interests of any of the children, and in particular S, at this time in their lives and in the context of the parent’s current relationship.
I should also mention that, despite, I gather, some considerable expertise at his disposal and his best efforts, the paternal grandfather gave evidence that it is not possible to facilitate video conferencing such as “Skype” as a means of communication between the children and their maternal grandparents. He said he had “tried several times, but it has not worked”. He remained unconfident that it could be used as a means of the children communicating with the father from their intended residence if they moved to the United States.

Parental Responsibility

Principles

The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children. (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).
Parental responsibility can, though, be altered by the making of a parenting order by the court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order. (s 61D(1) and (2)).
But, when a court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
The statutory presumption just referred to is rebuttable in circumstances where the court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2) or where the court considers that it is in the bests interests of the children for the presumption to be rebutted. (s 61DA(4)).
No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a court determines what is in a child’s best interests”. It is, then, again called into use in this context.
The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s 65DAE(2)).
“Major long-term issues” is defined in s 4:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing; and
(c)the child’s health
(d)the child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).
Each of these matters has relevance, as it seems to me, to a decision as to whether the children’s best interests require the rebuttal of the presumption. A particular aspect of that is the role that entrenched and apparently intractable conflict might play in any such decision.
A further issue arises by reference to the use of the expression “sole parental responsibility” which is in wide use in orders sought by parties and, indeed, in orders made by this court (and which has been in use for many years, including prior to the passing of the Reform Act which introduced into the Act the sections just referred to). The expression is neither now, nor was then, defined or used in the Act. A question arises as to what might be meant by the expression “sole parental responsibility” in the context of the current legislation.
The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the duties, powers, responsibilities and authority over their child otherwise conferred by law.
If that is the meaning of the expression, then, in my view, a court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person.There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
The expression “sole parental responsibility” is frequently used without otherwise distinguishing between “major long-term issues” and decisions made during periods of time with the children. Or, it is used in conjunction with expressions used in now-repealed legislation such as, for example, “long-term care, welfare and development”.
An order that simply provides, without more, for one party to have “sole parental responsibility” is, at least arguably, an order making provision contrary to s 65DAE(2) and, arguably, an order expressly providing for the diminution or “taking away” of parental responsibility within the meaning of s 61D(2).
Those matters too, have relevance as it seems to me in assessing whether the best interests of children require the rebuttal of the statutory presumption and, if so, the form of the orders that might be made in respect of parental responsibility. In Chappell and Chappell (2008) FLC 93-382, the Full Court said:
75.In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two. [emphasis in original]
76.We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter his Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as his Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself.

The Present Case

As the Full Court points out, it is open to the court to find that “the track record of the parents [is such that it] would suggest a high probability of deadlock, which would inevitably lead to further proceedings.” Equally, it seems to me, that circumstances of pervasive, and apparently intractable, conflict can point to the process of consultation and endeavour to reach agreement required by the Act being productive of yet more conflict and consequent strain and stress for the children; something surely contrary to their best interests.
Yet, subject to specific court order to the contrary, it needs to be borne in mind that the statutorily-required process is in respect of “major long-term issues”. There should, it seems to me, be good reason why, it is in the best interests of the children, for a finding that both parents ought not equally and jointly be involved in the sort of major decision embraced by the definition. It can readily be envisaged that high conflict can be a good reason. All the more so, it seems to me when one, or both, parents are affected by issues such as drug or alcohol addiction, mental health issues and the like.
Here, the pervasive, and apparently intractable, conflict is not in doubt. There are consequent concerns about the Act’s requirements if the presumption is to apply. But, these are two intelligent people. There has in the past been significant co-operation between them (and, if the earlier affidavit evidence of the wife is accepted, some goodwill). The children love their parents dearly and, dare it be said, equally. They – or at least Y, and probably C – recognize the polarized nature of their parent’s parenting and their different attitudes, standards and styles. Ms V is hopeful that a decision about parenting (and, specifically, “relocation”) will see an abatement of the conflict. It seems to me that these children should have the benefit of having each of their polarized parents having input into the major long-term issues affecting them.
Accordingly, on balance, I do not consider that the presumption is rebutted by reference to the children’s best interests. (I should say for the sake of completeness that, additionally, I do not consider that the evidence in this case sounds in the presumption’s rebuttal by reason of “abuse” or “family violence”).

What Co-Parenting Arrangements are in the Children’s Best Interests?

S 65DAA and Reasonable Practicability

I am, as a result of my conclusion that the presumption is not rebutted, required to apply the mandatory process and considerations specified in section 65DAA.
I record that my view of the section is such that an examination of the reasonable practicability of equal time (or substantial and significant time) in circumstances where one party proposes to relocate should be conducted by “properly taking into account the [relocating party’s] proposal” (see Gaudron J in U v U, above), here the mother’s proposal to live in the United States.
Doing so means that, the children living in the United States does not sound in an order for either equal time or substantial and significant time (as defined) being “reasonably practicable” within the meaning of the section. If that is right, in that event, a decision about care arrangements best meeting the best interests of these children is at large.
As earlier indicated, in my view, the decision about equal time, and substantial and significant time, when s 65DAA’s mandatory process is required, is ultimately inextricably connected with findings about best interests.
Where findings as to best interests dictate that the nature, extent and regularity of the relationship between co-parents determined to be in the children’s best interests precludes them living in a remote location from one of their parents, the application of the presumption of equal shared parental responsibility, requires a consideration of the s 65DAA process and the requirements within it with respect to the care arrangements that are in the children’s best interests when the children are living within a common general locality.
By reference to the matters earlier discussed and the findings already made, in my judgment the evidence points to the following findings, referenced to the Act’s Primary and Additional Considerations:
·The children each receive, and have received historically, the benefit of a meaningful relationship with each of their parents.
·The children will benefit from the continuation of a meaningful relationship with each of their parents (that is, a relationship which is “important, significant and valuable” – per Brown J in Mazorski v Allbright [2007] FamCA 520 at [26]).
·A relationship which is important, valuable and meaningful to the children with each of their parents, requires them, in this case, to spend significant periods of time with each parent and for that time to occur regularly.
·There is chronic, very high conflict between the parties. It is unlikely to abate if the children relocate with the mother to the United States and may get worse.
·The parents have very different parenting styles, standards and values. Neither respects the others style, standards and values. The children are aware of this. A significant reduction in the nature, extent and regularity of the time with each parent is likely to result in the predomination of one style over the other for sustained periods of time which, in turn, is likely to be productive of difficulties for the children during time in the other parent’s household.
·Living in the United States is likely to impact adversely on the children’s relationship with their father.
·The children are ambivalent about a move to the United States. They are torn by a desire to please each parent in the things they say.
·The children want and need stability. Y, who is a particularly mature, articulate and intelligent child has expressed significant distress at (as she sees it) her parents not understanding the difficulties involved in the move to Australia. She is, I find, concerned about potential difficulties, specifically emotional difficulties, attending the move and, I find, appropriately so.
·The children have expressed views with some consistency that the week about arrangement is not working for them.
·The nature of the children’s relationship with each of their parents is close and loving. S is particularly close to, and aligned with, his mother.
·The children have a developing relationship with their step-siblings.
·The children, and Y in particular, receive great benefit from peer relationships, particularly those which she perceives to be empathic of her situation of being caught in the middle of highly-conflicted parents. Those peer relationships are particularly important in light of the chronically conflicted situation in the middle of which they find themselves.
·Neither the children nor the mother have a particularly attached relationship with the maternal grandparents nor the mother’s brother.
·The children, and Y in particular, have expressed a reluctance to experience more change of any significance.
·The capacity of each of the parents to provide for the children’s emotional needs is significantly impaired by their seeming incapacity to move beyond the conflict between them or address the issues underlying that conflict. Neither parent is “better” or “worse” in that respect.
·A move to the United States is likely to involve significant practical difficulties for the children spending time with their father, despite the mother (and the mother’s parents) asserted willingness to make financial arrangements to assist. Developing friendships, activities, holiday plans in one country, and opposite seasons, are likely to impact on the children’s desire to spend time with their father in another country as they grow and develop.
·The significant absence of the children from each parent, including their mother during “block” periods of time of many weeks as her proposal envisages, is not in their best interests.
·I am sceptical of the mother’s claims about her positive encouragement of time between the children and their father – particularly if they, and her, are living a significant distance from the father. Whilst I consider that, as an intelligent person, she knows that the children benefit from that time, I consider she allows her “emotions to rule her head” (as does the father) and this is likely to impinge on her “better judgment”.

In oral evidence, Ms V said that she “can’t fathom how it is better for the children” to move to America. Ms V considered that the mother had the skills to assist in the amelioration of difficulties experienced by the children as a result of the move. She also thought the children “would cope” with a move. But acknowledging that children will “cope”, or “adjust”, or are resilient is, in my view different to an assessment that a proposal is in their best interests.
It was suggested to Ms V that the mother clearly wanted to move, that she had made it clear to the children and would be disappointed if she couldn’t move and, as result “the children may become more unsettled”. Ms V said that she sensed the children might be glad that a decision had been made and may in fact be “more settled” as a result.
In my judgment, the evidence as a whole clearly points against a move to the United States being in the children’s best interests.

Arrangements in Australia

Obviously enough, findings already made relevant to the statutory Considerations (both Primary and Additional) are also relevant to the arrangements best meeting the children’s best interests with both their parents living on the Sunshine Coast.
In particular, it needs to be reiterated that the benefit to the children of a meaningful relationship with each parent points to them spending substantial, regular amounts of time with each, despite the conflict between the parents and the differing values and parenting styles within each parenting unit.
It is plain, then, that careful consideration must be given to the children spending equal time with each of their parents or, failing that, substantial and significant time (as defined). Obviously enough, many of the findings earlier made, reference to the Primary and Additional Considerations, are relevant to each of those specific issues.
Other specific matters within that context must, though, additionally be taken into account, not the least of which is what the children have had to say about the previous and current arrangements. In particular, what the mature, thoughtful and intelligent Y has had to say is, in my view, important.
In September 2008 Y told Mr P in response to his query about week-about arrangements that “I don’t know, that’s a bit hard, always moving back and forth, maybe two weeks with mum and two weeks with dad”. The statement to me is redolent of a child desperate to effect “fairness” between her parents while trying to establish for herself something more suitable to her specific needs. Those needs, as Y relates them, include those pertaining to how she arranges her study time and other school arrangements.
The father said in evidence that “part of me says there should be arrangements different for each child but that’s complicated and not workable”. It is certainly complicated, and rarely workable, for a court to attempt to fashion orders to that effect in the absence of goodwill, co-operation and common sense between parents. In the absence of those factors, separate arrangements are often difficult to prescribe, complex, and likely to be productive of further conflict and proceedings.
Yet, the father’s statement reflects what the court constantly promulgates and encourages, and what the Act requires of parents; namely that parents should agree about arrangements for the co-parenting of their children. Agreed arrangements (apart from the important matter of giving an overt message to the children that their two primary loved objects are engaged in the collective task of promoting their best interests) are flexible and can take account of both the exigencies of life and the differing needs of children as they grow and develop. Agreement also recognizes that children’s needs and desires differ at various stages of their life.
Ms V, too, addresses the issue of the children’s perceptions of erstwhile shared arrangements. In her Issues Assessment, she records Y as wanting “to tell the Judge” that “changeover is not working well” and told Ms V that she would prefer two weeks with her mother and one week with her father. Y’s additional comments in that respect have earlier been quoted.
As earlier observed, C suggested “two weeks with mum and one and a half weeks with Dad” while S’s preference was for weekend time with his father and the majority of time with his mother. In oral evidence, Ms V referred to the children’s statements. She referred to Y’s desire for more space and the emphasis that this clever and mature girl placed on being able to study, readying herself for school and the like.
Ultimately, Ms V was more inclined to recommend weekend time and nights during the week with the father, rather than either week about or blocks of a week or more at a time.
Failing her being able to live with the children in the United States, the written submissions on behalf of the mother contend that:
… if they remain in [the Sunshine Coast] they should live predominantly with her and spend alternate weekends with the father so that their school week is uninterrupted and that there is consistency in their attendance and commitment to after school activities.
The father’s proposal is for week about shared care. The Independent Children’s Lawyer submitted that orders should be made that would see a continuation of the current arrangement, that is two weeks with the mother and one with the father.
Consistent with the findings earlier referred to, I consider that the children should spend regular substantial time with each of their parents.
Whilst I consider that certainty of time and place in the arrangements is beneficial to the children, I consider (contrary to Ms V’s ultimate opinion) that longer continuous periods of time in each parent’s care is more consistent with their best interests. In considering, but rejecting, a mixture of weekend and weeknight time, I have considered not only the quantity of time I consider is in the children’s best interests (which should be substantial) but also the multiplicity of changeovers inherent in such a proposal and the activities of three active children who are of an age where they are at differing stages of their schooling and development. I consider such an arrangement to be likely to lead to greater conflict and a greater prospect of future proceedings.
I am not persuaded, by arguments on behalf of the mother, that the place where the father, his partner and their children currently reside should be a significant factor in my determination. Certainly I consider it unpersuasive in reducing the amount of time with the father to alternate weekends. I am aware of the comments by the children relayed by the mother in respect of the accommodation; my earlier findings in respect of the mother’s evidence and many of the children’s comments being more indicative of the conflict than anything else, apply.
I consider that regular periods of “block time” with each parent to be in the children’s best interests. I consider, though, that in any such co-parenting arrangement, the children’s best interests point to a predominance of, and continuity of, time with the mother. In my view, such an arrangement provides a greater sense of stability of time and place which their best interests warrant and I consider that such an arrangement also gives appropriate weight to S’s current developmental stage and attachment to his mother.
I consider that the views expressed by Y as to the quantity of time have merit. I note, too C’s similar comments in that respect, but in light of her age and Mr P’s (admittedly 12-month earlier) comments about her affect and maturity, I attach less weight to these comments than to Y’s. So, too, given S’s age and stage of development, I attach little weight to his views about quantity of time. There is, in my view, significance in how mature and thoughtful children have resolved for themselves issues arising from their experience of the sort of conflict evident in this case.
At some undefined point in the future, but probably well before adulthood, each of these children will determine for themselves the nature and extent of their relationships with each of their parents. The parent’s actions and the extent to which they truly listen to their children will, in my view, have a very significant bearing on the shape of those future relationships. In my view, balancing the various matters to which I have referred, their best interests are currently best met by them spending two weeks with their mother and one week with their father during term time and with the parties able to equally enjoy the children’s company during holiday time.
In order to avoid argument the orders will provide that the three-week periods just referred to will be calculated by ignoring periods of school holidays. So, too, to reduce the prospect of conflict, the orders will provide that, where possible, changeovers occur at school, obviating the necessity for face to face contact between the parents. The earlier findings and discussion will make it clear that I consider that the children’s best interests require free and open communication between the children and each of their parents and that “special days” should be enjoyed by each of the parents.
I order accordingly.

I certify that the preceding one hundred and eighty-four (184) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date: 11 February 2010