Larsson and Blake

[2017] FCCA 1361

FEDERAL CIRCUIT COURT OF AUSTRALIA

LARSSON & BLAKE [2017] FCCA 1361

Catchwords:
FAMILY LAW – Parenting – interim hearing – mother unilaterally relocated with children to Melbourne – whether the children’s residence should be returned to Sydney – live with and spend time with arrangements.

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 61DA, 64B, 65DAA, 65DAB

Cases cited:

C & S [1998] FamCA 66
Goode & Goode (2006) FLC 93-286

McCall & Clark [2009] FamCAFC 92
Morgan & Miles [2007] FamCA 1230
MRR & GR [2010] HCA 4

Applicant: MR LARSSON

Respondent: MS BLAKE

File Number: SYC 1817 of 2017

Judgment of: Judge Monahan

Hearing date: 15 June 2017

Date of Last Submission: 15 June 2017

Delivered at: Sydney

Delivered on: 28 June 2017

REPRESENTATION

Counsel for the Applicant: Mr Maurice

Solicitors for the Applicant: Vizzone Ruggero Twigg Lawyers

Counsel for the Respondent: Ms Paterson

Solicitors for the Respondent: Robinson Gill

Solicitors for the Independent Children's Lawyer: Ms Smith of Legal Aid New South Wales

ORDERS

THE COURT ORDERS THAT:

1. All extant applications be adjourned to this Court on 19 September 2017 at 9.30am for directions (“the directions hearing”).

2. Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the date of the directions hearing will not be heard on that date without the express leave of Judge Monahan, however directions in respect of that Application or Objection may be given.

3. The parties attend the Court Ordered Mediation Program (“COMP”), or such other Legal Aid sponsored mediation as proposed by the Independent Children’s Lawyer, as soon as possible at a date and time to be fixed.

4. Leave be granted for the Independent Children’s Lawyer to provide a copy of the Child Dispute Conference Memorandum dated 15 June 2017, the Reasons for Judgment dated 28 June 2017 and these orders to the appointed mediator. 

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

1. By no later than Sunday 16 July 2017, the mother cause the residence of X born (omitted) 2011 and Y born (omitted) 2013 (“the children”) to be returned to the Sydney Metropolitan area.

2. Unless otherwise agreed and subject to paragraphs 7, 8 and 9 herein, the children live with and spend time with each of the parties as follows:-

   (a)From the date of these Orders until 5:00pm Sunday 16 July 2017, with the mother;

   (b)Commencing Sunday 16 July 2017, with the father each week from 5.00pm Sunday to 5.00pm Thursday; and

   (c)Commencing 20 July 2017, with the mother each week from 5.00pm Thursday to 5.00pm Sunday.

3. Paragraph 6(c) herein is conditional upon the mother establishing a residence in Sydney and in the event that the mother does not establish a residence in Sydney (or until such time as she establishes a residence in Sydney) the children live with the father and spend time with the mother as follows:

   (a)In Sydney for a period of four (4) days commencing on the first Thursday of each month from 5.00pm to the commencement of school Monday or otherwise at 9.00am Monday; and

   (b)For the whole of the June/July and September/October school holidays.

4. During all times that the children live with the father, he remain residing with his parents at their home at (omitted).

5. Unless already enrolled, the parties cause X to be re-enrolled forthwith at (omitted) Public School and attend that school on and from the commencement of Term 3 2017.

6. In the event that the mother elects to establish a residence in Sydney, she provide the father with written notice that she has secured rental accommodation and upon the mother providing that notice, within a further seven (7) days the father cause the mother to receive monies equal to a rental bond of four (4) weeks rent or the sum of $2,500.00 (whichever sum is the lesser amount), with such monies only to be used for a rental bond and to be characterised at any final hearing.

7. Unless otherwise agreed, and subject to paragraph 12 herein, changeovers occur as follows:

   (a)the mother collect the children from the paternal grandparent’s residence at all such times when the children are entering her care; and

   (b)the father collect the children from the mother’s residence at all such times when the children are entering his care.

8. Until such time as the mother establishes a residence in Sydney, changeovers occur at the paternal grandparent’s residence.

9. The children have reasonable telephone communication with each party as agreed.  

AND THE COURT NOTES THAT:

A.These orders were made by the Court following an interim hearing on 15 June 2017.

B.The purpose of the directions hearing is to consider the outcome of the mediation, ascertain the ambit of the dispute and make further directions, including consideration of whether to order a family report.

C.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1817 of 2017

MR LARSSON

Applicant

And

MS BLAKE

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings between MR LARSSON (“the father”) and MS BLAKE (“the mother”). The relevant children of their relationship are X born (omitted) 2011 (“X”), and Y, born (omitted) 2013 (“Y”) (collectively, “the children”).  

2. This interim decision only concerns interim parenting arrangements, and in particular whether, until further order, the mother should be ordered to return the children’s residence to Sydney, New South Wales, and the consequential live with and spend time with arrangements in the event that the Court orders the children's return or allows the children to remain living with the mother in Melbourne, Victoria.

3. Both parties were legally represented before me at the interim hearing heard on 15 June 2017. The father was represented by Mr Maurice of counsel and the mother was legally represented by Ms Paterson of counsel. Ms Smith of New South Wales Legal Aid appeared as the Independent Children’s Lawyer (“ICL”).

4. Unless otherwise stated, any statutory references I make will be to the Family Law Act 1975 (“the Act”).

Background

Relationship History

1. The father was born on (omitted) 1989 and is currently 27 years of age. The mother was born on (omitted) 1990 and is also 27 years of age.  

2. The parties commenced cohabitation in 2008.

3. The parties’ first child, X, was born on (omitted) 2011. X is currently five years of age.

4. The parties were married on (omitted) 2012. Y was born on (omitted) 2013 and is now three years old.

5. The parties separated under the one roof in June 2015 and physically separated in approximately February 2016. The parties are not divorced.

6. The father asserts through his counsel that he is currently unemployed although the Court notes that he had recent employment as a (occupation omitted) at a (employer omitted) in (omitted). The mother is currently engaged full time in home duties.

7. On 12 March 2017, the mother moved to Melbourne with the children. The mother deposes that she currently resides in Melbourne with her parents and younger siblings. The father resides in Sydney with the paternal grandparents.

8. The mother is currently in a relationship with Mr R (“Mr R”) Mr R. The Court is not aware that the father is in a new relationship.

Procedural History

1. The father filed his Initiating Application on 22 March 2017. The mother filed her Response on 10 May 2017.  

2. The matter first came before me in my duty list on 15 May 2017. On that date I adjourned the matter to 15 June 2017 for a potential interim hearing and made orders for the parties to attend a Child Dispute Conference also on 15 June 2017. On 15 May 2017 I also made orders for the expedited appointment of an Independent Children’s Lawyer and made several filing directions.

3. As stated, the interim hearing proceeded before me on 15 June 2017, following which the Court reserved its decision. On that date I also made the following interim orders by consent, which, in summary, provided for the following:

   ·The children to spend time with the father from 15 June 2017 to 18 June 2017, when the children were to be returned to the mother at Melbourne Airport;

   ·Each party to refrain from posting any reference to the proceedings on social media;

   ·Each party submit to urinalysis and Carbohydrate Deficient Transferrin (CDT) testing;

   ·Each party be restrained from denigrating the other party, discussing the proceedings with the children or physically disciplining the children;

   ·Whilst the children are in the father’s care,  the father not leave the children in the sole care of the paternal uncle, Mr B;

   ·Whilst the children are in the mother’s care,  the mother not leave the children in the sole care of the mother’s partner, Mr R; and

   ·The father not consume alcohol 24 hours prior to or during the children being in his care.

Agreed and Disagreed Facts

1. Unless otherwise stated, the agreed or unchallenged facts appear to be as follows:

   ·The parties commenced a relationship in early 2008 and married on (omitted) 2012.

   ·The parties separated in mid-2015 (under the one roof) and later physically separated in early 2016.

   ·In (omitted) 2016 the father was admitted to the (omitted) Psychiatric Facility at (omitted).

   ·The mother commenced and remains in a relationship with Mr R (also known as ‘Mr R’), although the commencement date is disputed.

   ·In late 2016 the NSW Police initiated an application for an Apprehended Domestic Violence Order in favour of the mother and against Mr R and a final order was made to that effect that expires in December 2017.

   ·Although Mr R does not currently live in the same residence as the mother, the mother indicated that there are plans for him to move to Victoria and for them to share the same residence. The parties disagree about whether Mr R lived in the same residence as the mother prior to the recent relocation.

   ·The mother makes allegations that she has been the victim of family violence perpetrated by the father, which he denies.

   ·There are no police records relevant to the parties’ relationship and there has never been any apprehended domestic violence proceedings between the parties.

   ·On or about 12 March 2017 the mother relocated the children’s residence to Melbourne without the prior knowledge or consent of the father.

   ·Prior to 12 March 2017, the children were residing in Sydney with each of the parties (the father at the home of the paternal grandparents and the mother in separate rented accommodation). 

   ·While there is a disagreement between the parties as to whether the mother was the primary carer of the children, the children have spent a significant amount of time in the paternal parent’s home during the relationship and post separation. 

   ·The mother’s parents (the maternal grandparents) and her two siblings (the maternal aunt and uncle) relocated to Melbourne in early 2017.

   ·The mother and the children currently reside in the new home of the maternal grandparents.

   ·The children have spent time with the father on two occasions since they relocated with the mother to Melbourne (and as stated, there was agreement that the children could come into the father’s care on the evening of the interim hearing until the following Sunday).

   ·In 2013 Y was diagnosed with neuroblastoma (while in utero) and in 2017 X was diagnosed with hyperactivity.

2. I will now move on to the parties’ proposals and the issues in dispute.

Proposals

Independent Children’s Lawyer

1. In relation to the issues ultimately requiring a judicial determination, the ICL proposes the following orders:

   2. That within twenty-eight days of the date of these orders the children’s residence be returned to the Sydney Metropolitan area.

   3. That in the event that the mother returns to reside in the Sydney Metropolitan area then the children shall reside with each of the parties as follows:-

   (a)With the mother from completion of school Thursday to 5 pm Sunday.

   (b)With the father from 5 pm Sunday to commencement of school Thursday and in the event that it is a non school day 3 pm Thursday.

   4. That in the event that the mother does not return to reside in the Sydney Metropolitan area then the children shall reside with the father.

   5. That in the event that the children are residing with the father pursuant to Order 4 the mother shall spend time with the children as follows:-

   (a)For a period of four (4) days commencing on the first Thursday of each month from completion of school Thursday to commencement of school Monday

   (b) for the whole of the June/July and September/October school holidays.

   7. That during the times that the children reside with the father that he reside with his parents at their residence at (omitted).

   8. That within 72 hours of the return of the children to Sydney the child X be re-enrolled in (omitted) Public School.

2. As referred to previously in these reasons, the parties were able to agree on (or not oppose) several further interim orders sought by the ICL, which were made on 15 June 2017.

Father

1. Although the father initially sought interim orders consistent with the orders set out in his Initiating Application filed 22 March 2017, he ultimately adopted the ICL’s proposal at the interim hearing.

Mother

1. Generally speaking, the mother sought the orders contained in her Response filed 10 May 2017. That said, she varied her proposal during the course of oral submissions. In summary, the mother proposes the following:

   ·For the children to remain living with her in Melbourne, and for the children to spend time with the father:

   o  For the first weekend in each month in Melbourne, where the mother proposes paying for the first night of accommodation; and

   o  On the third weekend of each month in Sydney, with the parties to share the costs of the children’s airfares, whilst the accompanying parent pays for their own flights.

   ·In the alternative, in the event that the children’s residence is ordered to be returned to Sydney, the mother would return to Sydney, and she would seek orders that the children live with her and spend time with the father from the conclusion of school on alternate Thursdays to the commencement of school the following Monday (being a 10/4 arrangement) and for half school holiday periods.

   ·Telephone, Skype or Facetime contact between 5.30pm and 6.30pm each Thursday.

   ·The mother also sought that the matter be transferred to the Melbourne Registry.

Issues

1. The following issues were in dispute at the interim hearing:

   ·whether the mother should be required to return the children’s residence from Melbourne to Sydney; and

   ·the ‘live with’ and ‘spend time with’ arrangements depending upon whether the children remain living in Melbourne or return to live in Sydney.

Evidence

Independent Children’s Lawyer

1. The ICL provided the Court with a case outline document and also tendered the following documents at the hearing:

   ·Documents produced on subpoena by (omitted) Primary School, those pages tabbed with ‘ICL’ (Exhibit “ICL1”);

   ·Documents produced on subpoena by New South Wales Police in respect of Mr R (also known as ‘Mr R’) Mr R (Exhibit “ICL2”);

   ·Documents produced on subpoena by (omitted) Medical Centre; entry dated 20/12/2016 (Exhibit “ICL3”);

   ·Documents produced on subpoena by (omitted) Medical Centre; entry dated 30/08/2016 (Exhibit “ICL4”);

   ·Documents produced on subpoena by (omitted) Medical Centre; entry dated 01/09/2016 (Exhibit “ICL5”); and

   ·The Child Dispute Conference Memorandum dated 15 June 2017 (Exhibit “ICL6”).

Father

1. The father relied on the following documents at the interim hearing:

   ·Initiating Application filed 22 March 2017;

   ·His affidavit affirmed 20 March 2017 and filed 22 March 2017; and

   ·His affidavit affirmed 29 May 2017 and filed 30 May 2017.

2. Additionally, the father tendered documents produced on subpoena by (omitted) Primary School, those pages tabbed with ‘F’ (Exhibit “AF1”), documents produced on subpoena from (omitted) Medical Centre dated 04/01/2017 (Exhibit “AF2”) and the father’s yellow-tabbed pages from the material produced under subpoena from the (omitted) Hospital (“AF3”).

3. The father also provided the Court with a case outline document and some additional written submissions.

Mother

1. The mother relied on the following documents at the interim hearing:

   ·Response filed 10 May 2017;  

   ·Her affidavit affirmed 9 May 2017 and filed 10 May 2017; and  

   ·Her affidavit affirmed and filed 14 June 2017.  

2. The mother also tendered documents from the material produced under subpoena from the (omitted) Hospital, those pages tabbed with an ‘M’ (Exhibit “RM1”).

3. The mother also provided the Court with a case outline document.

Child Dispute Conference Memorandum

1. When the matter first came before in the duty list on 15 May 2017, I determined that there was sufficient merit and urgency in referring the parties to a Child Dispute Conference (“CDC”) during my next duty list on 15 June 2017. An order to that effect was made and the parties duly attended with family consultant Ms K, a consultant with the Court.

2. Following the conference, Ms K produced a comprehensive memorandum to the Court and to the parties. The memorandum provided as follows:

   Issues in dispute:

   ·   Parental responsibility of children. Mr Larsson seeks sole parental responsibility and Ms Blake seeks equal shared parental responsibility. 

   ·   With whom X (aged 5) and Y (aged 3) should live and how they should spend time with the other parent.

   o  Ms Blake seeks that the children live with her and spend alternate weekends with Mr Larsson

   o  Mr Larsson seeks that he children live with him and spend frequent time with Ms Blake, including each weekend, if this was requested by her.

   ·   Allegations by Ms Blake of family violence towards her by Mr Larsson

   ·   The parenting arrangements of the children since separation and who has been the primary carer for them.

   ·   Allegations that Ms Blake’s partner, Mr R, is associated with the Rebel’s Biker Gang.

   ·   Allegations that Ms Blake physically abuses the children

   Risk Issues:

   Family Violence: Ms Blake alleged that Mr Larsson was emotionally, verbally and sexually abusive towards her during their relationship. She claimed that post separation, Mr Larsson has stalked her on social media and also entered her home without consent.  Mr Larsson denied all allegations of family violence made by Ms Blake. He said that they engaged in general mutual arguments with each other. He claimed that Ms Blake’s allegations are a strategy by her regarding the parenting arrangements she seeks of the children.

   Ms Blake said that there is a final ADVO, protecting her from Mr R, which is to expire in December 2017. She said that this was the result of a verbal argument between them, that she did not agree to the ADVO and that this was pursued Police.

   Alcohol and illicit drug use: Ms Blake said that she rarely drinks alcohol and reported that she last used illicit drugs around eight years ago. She did not report concerns about Mr Larsson’s illicit drug use. She alleged that Mr Larsson consumes a significant amount of beer, around one to two cartoons per week. She said however, that she did not believe that this impacted significantly on his functioning or parenting and believes that he has a high tolerance to alcohol.

   Mr Larsson reported no use of illicit drugs. He said that he currently drinks about ten beers per week. He did not agree that he has a problem with his alcohol consumption, as alleged by Ms Blake. He said that he has undertaken a CDT test voluntarily for the Court to demonstrate this.

   Mr Larsson reported no knowledge of Ms Blake’s current alcohol or drug use. He claimed that Ms Blake would boast to him in 2016 about her use of cocaine.

   Mr Larsson alleged that Mr R is a drug dealer and that he has previously served a four year sentence for drug related offences. Ms Blake said that Mr R is not currently involved in any drug related activities or behaviour. She said that he has a prior conviction, many years ago,  for drug syndicate offences.

   Parental Mental Health:  Mr Larsson did not raise any current issue about his current mental health. He said that at the time of separation, he self-admitted to (omitted) Mental Health Unit due to the breakdown of his relationship. He said that, he was assessed as not requiring any treatment or medication, and that he was released the following day.

   Mr Larsson raised significant concerns about Ms Blake’s current mental health and alleges that she has mental health difficulties. He claimed that she is up and down in her moods has erratic behaviour. Mr Larsson said that Ms Blake suffered with depression during their relationship, which he claims she would not receive support or treatment for at the time.

   Ms Blake said that she has diagnoses of depression, anxiety and PTSD. She said that she has recently been prescribed Lovane (an anti-depressant) and that she has commenced seeing a psychologist. Ms Blake said that she has had one appointment to date and that she will continue to have ongoing appointments.

   Ms Blake said that Mr Larsson threatened suicide around the time of their separation.

   Co Parenting Relationship

   ·The parents appear to be in high conflict regarding their perceptions of what is best for the children in their care arrangements.

   ·The parents present as having very different parenting styles and are critical of the other parents’ care of the children.

   ·Mr Larsson alleges that Ms Blake prioritises her needs over the children and that she is self-focused on her image and her own needs.

   ·Both parents claim to have been the primary carer for the children during their relationship, and post separation with the various care arrangements of the children.

   ·Ms Blake claims that the paternal grandmother, was the primary carer of the children, when the children where spending time with Mr Larsson.

   ·Ms Blake alleges that Mr Larsson was controlling and would not allow her equal time with the children. 

   ·There is limited communication between the parents regarding the arrangements for the children, mostly occurring via solicitors. Ms Blake said that communication with Mr Larsson is poor and that often he is non responsive.

   Issue for the Children:

   X and Y are currently living with Ms Blake, and the maternal grandparents in their home in Melbourne. Ms Blake said that the children have settled well in their new routine. She said that she has close relationships with both children, and that the children have established and positive relationships with their maternal grandparents.

   Ms Blake said that the children do not ask or talk about Mr Larsson, and she believed that they did not appear to miss him. She said that the children have asked about their paternal grandmother. Ms Blake reported no issues or changes in any emotional or behavioural needs, either leading up to or upon returning from spending time with Mr Larsson and the paternal family.

   Ms Blake said that should the children remain in her care, that she intends to move into her own residence, and that it is planned that Mr R, will move from Sydney to Melbourne to live with her and the children. She said that the children both have positive relationships with him, and that they enjoy spending time with him.

   Mr Larsson said that he and the paternal grandparents have close and positive relationships with both children. He said that the paternal grandparents have played a significant role with both children, and that they assist him be looking after them when he is at work. Mr Larsson said that he is no longer working, and that he is able to care for the children on a full time basis. He said that he intends to look for work which accommodates him having the care of the children, after the children have settled, should they be placed in his care.

   Mr Larsson said that the children are constantly saying to him that they miss him and that they want to return to live with him. He said that the children find their transitions between their parents unsettling, and that they do not wish to be returned to their mothers care. Ms Larsson expressed concern that the children appear to be sad in their affect, which he said they never used to be. Mr Larsson said that the children tell him that they are often upset because Ms Blake hits them, yells at them and locks them in their bedroom.

   Mr Larsson alleged that Ms Blake has a history of smacking the children, which has caused bruises and left hand marks. He said that he has reported his concerns to FACS.

   Ms Blake denied that she has caused any bruises to the children. She said that she has smacked them in the past, but that this has not caused any marks. She said that the bruises have been a result of the children falling over or running into things. Ms Blake said that she explains this to Mr Larsson, but that he does not believe her. Ms Blake also claims that some of these bruises of the children have occurred when the children have been in the care of Mr Larsson.

   Both parents reported that the children were healthy and meeting their milestones.  Ms Blake said that X has been assessed recently by a Paediatrician for possible ADHD. She said that X has difficulty with his sleeping, focus and behavioural issues. Ms Blake said that X has been prescribed melatonin medication to help with his sleeping. Ms Blake said that X has received $2500 work of dental work, due to having rotten teeth, which she claims was a result of food and drink he was provided in the care of Mr Larsson.

   Ms Blake said that Y is monitored every four months by (omitted) Hospital regarding her neuroblastoma which she was born with. Ms Blake said that, should the children remain in her care, that she intends to bring Y to Sydney for each of her schedule reviews, and attend these with Ms Larsson. Mr Larsson said that Y’s appointments are every three months, and that Y missed her last review, as Ms Blake had taken Y to Melbourne.

   X attends (omitted) Primary School and is in Kindergarten. Ms Blake said that X has settled well at school and said that his teachers have recently informed her of an overall improvement with X’s learning and behaviour, since he commenced.

   Y attends child care one day per week. She is cared for by Ms Blake on the other days, as Ms Blake does not work

   Agreements Reached:

   ·   No agreements were reached arising from this conference

   Future Directions:

   Based on the reports provided by the parents, the children appear to have experienced recent fluctuating care arrangements and care providers, depending on their parent’s circumstances of work, financial abilities and conflict. 

   As the parents, however, have provided differing accounts of these arrangements, the extent to which either parent has provided stability and routine to the children or not is difficult to know. X and Y having predictability, and consistency of care and routine, are significantly important, given their current developmental ages and subsequent needs.

   There did not appear to be significant risk issues with the children being in either parent’s care. The Court may benefit though, from further information regarding Mr R, by way of subpoena regarding any Police and Corrections, should it be a consideration that the children are to live with him as indicated by Ms Blake.

   It is a concern that the both parents appear in the past to be quite reliant on their extended family, for family support and assistance with the care arrangements of the children, and that these families are now located in different states. This will significantly reduce the ability of the children to spend time with their other parent, given their ages, the distance, and the cost of travel, and may impact on their relationship with the other parent and extended family over time. 

   It would be in the children’s best interest (is possible, and if the children adjust to this), to spend a minimum of monthly weekends with the other parent that they do not live with, and that the other parent is provided substantial time with the children in the upcoming July school holidays.

   A family report may be of assistance to the Court if the matter requires final determination.

Submissions

1. Each of the parties' legal representatives and the ICL presented oral submissions to the Court at the interim hearing on 15 June 2017. The transcript for the interim hearing conducted that day will, of course, reflect those submissions. I do not propose to summarise those submissions but will refer to those submissions where relevant during the course of these reasons yet to give. 

2. In addition, I acknowledge that both parties and the ICL provided the Court with written case outline documents (and in the case of the father an additional written submissions document), the contents of which have been considered.

Law and Discussion

1. All parenting proceedings are governed by the provisions of Part VII of the Act. Parenting orders are defined in section 64B of the Act and deal with matters relevant to the interim decision before me, namely, where the relevant children should live and the time and circumstances that the children should spend with another person. I note also that parenting orders can deal with the allocation of parental responsibility.

2. Section 60CA of the Act provides as follows:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

3. Section 60CA through section 60CC of the Act deals with how the Court determines the best interests of relevant children. This is sometimes referred to as the ‘legislative pathway’. The most relevant to these proceedings that are before me presently would be the primary considerations in section 60CC(2), and the additional considerations in section 60CC(3), where relevant. I will consider those provisions in light of the available evidence and the submissions that were made to the Court shortly.

4. Before doing so, however, I will make some comments about how the Court determines interim parenting proceedings, the law relevant to parental responsibility, and the law relevant to relocation, in particular unilateral relocation.

Interim Parenting Proceedings

1. In addition to the relevant statutory criteria, the Court is guided by case law relevant to the interim parenting disputes including the Full Court's decision in Goode & Goode (2006) FLC 93-286 (“Goode”). At this point I note the following observation of the Full Court at paragraph 81 of Goode where their Honours stated:

   In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between parents as to what constitutes the best interests of the child.

   Arguably this matter is such a case.

2. More specifically, it raises the reality that the Court cannot fully determine issues of credit at an interim hearing as the hearing is truncated, proceeds by way of submissions only and the evidence being presented by the parties is often still being assembled and not tested by cross-examination. That having been said, the Full Court in Goode made it clear that the legislative pathway must still be followed. In other words, the relevant provisions of the Act post the amendments in 2006 and 2012 must be followed.

Parental Responsibility

1. The Court was not ultimately asked to consider the issue of parental responsibility, or more particularly, the presumption in favour of equal shared parental responsibility, as part of this decision. The dispute as stated was limited to the issue of whether the children’s residence should be returned to Sydney or not and the parenting orders flowing from either outcome. 

2. Nevertheless, I note that by making a parenting order, section 61DA(1) of the Act incorporates the presumption that the Court is required to consider when it makes a parenting order - namely, that the Court must apply a presumption that it is in the best interests of the children concerned for the children’s parents to have equal shared parental responsibility.

3. There are a number of circumstances included in section 61DA of the Act where the Court may decide that the presumption in favour of equal shared parental responsibility should not apply:

   ·Firstly, pursuant to section 61DA(2), the presumption may not apply if there are reasonable grounds to believe that there has been abuse of the relevant children or family violence.

   ·Secondly, pursuant to section 61DA(3), if the Court is making an interim order, the Court may consider, in the circumstances, that it would not be appropriate for the presumption to be applied (and I note that this provision was discussed by the Full Court in Goode); and

   ·Thirdly, pursuant to section 61DA(4), the presumption may be rebutted if the Court determines that it is contrary to the children’s best interests, having regard to the relevant legislation.

4. If the presumption of equal shared parental responsibility is not applied, or is rebutted, then the Court must still make a parenting order which is in the best interests of the children, again taking into account the relevant provisions of the Act.

5. At the commencement of the interim hearing, I indicated to the parties that I had formed the preliminary view that, pursuant to section 61DA(3) of the Act, it would not be appropriate for the Court to apply the presumption of equal shared parental responsibility at this early stage of the proceedings. Consequently no parental responsibility order would be made unless pressed.

6. I note that the father indicated through his counsel that he would not be pressing the issue of sole parental responsibility. I further note that neither the mother nor the ICL sought interim orders in respect of parental responsibility. The Court will, of course, be required to consider the issue of parental responsibility at the appropriate time. 

7. As no order for parental responsibility will be made in this decision then, strictly speaking, section 65DAA of the Act is not triggered and consequently the Court need not consider those issues (ie. the issues relevant to equal time or substantial and significant time parenting).

8. Nevertheless, if the mother’s primary proposal is favoured and the father chooses to remain living in Sydney, then, arguably those circumstances would make it more difficult for the children to spend substantial and significant time with the father.

9. The issue of substantial and significant time requires the Court to consider section 65DAA(3) through (5). Those provisions state:

   (3)    For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

   (a)    the time the child spends with the parent includes both:

   (i)     days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends or holidays; and

   (b)    the time the child spends with the parent allows the parent to be involved in:

   (i)         the child 's daily routine; and

   (ii)        occasions and events that are of particular significance to the child; and

   (c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)    Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   (5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child 's parents, the court must have regard to:

   (a)    how far apart the parents live from each other; and

   (b)    the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)     the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)   the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

10. I will return to this particular criteria in light of the available evidence and submissions shortly.

11. I will now move on and consider the issue of relocation, given the mother has effected a unilateral relocation of herself and the children to Melbourne, Victoria.

Relocation

1. The Act does not contain any presumption against a relocation order and nor is there any presumption that favours a parent that the child has been primarily residing with. In other words, relocation cases are not a special category of parenting orders. What the Act does is provide the Court with a structured discretion to determine what order is appropriate in the circumstances of the case.

2. The impact of the 2006 amendments to the Act in relation to relocation cases was described in the following terms by Boland J sitting as the Full Court in the case of Morgan & Miles [2007] FamCA 1230 (“Morgan & Miles”) at paragraphs 79 to 81:

   79.    In considering whether the child should live with the parent     who proposes to relocate a Court:

   Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.

   Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.

   Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.

   If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.

   In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.

   When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.

   Will careful [sic] weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:

   that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;

   that the child lives with the non-relocating parent and spend time with, and communicates with, the other   parent;

   that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial  and significant time with the other parent in the existing locale;

   the non relocating parent moves to the venue chosen by   the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.

   Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.

80.It follows from my exposition of the legislation, that earlier core principles:

that the child’s best interests remain the paramount but not sole consideration;

that a parent wishing to move does not need to demonstrate “compelling” reasons;

that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and

the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement, remain valid.

81.    What the legislation now requires is:

consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;

if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility.

but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders^.

1. The High Court's opportunity to consider relocation post the 2006 amendments to the Act came in MRR & GR [2010] HCA 4. Of course, that decision reviewed a relocation decision flowing from a final decision. Nevertheless, despite that factual difference, the comments of the High Court are useful. The High Court's interpretation of the mechanics of Part VII does not change the triggering effect of section 65DAA if the presumption for equal shared parental responsibility arises pursuant to section 61DA.

2. While section 61DA requires the consideration of the section 60CC factors, it is clear that section 65DAA, and the issue of reasonable practicality, is not solely determined by consideration of the section 60CC factors. Some of these factors may, of course, be relevant. The capacity of parents to encourage a meaningful relationship between the child and the other parent would be one example. That said, there are a number of other factors that are not specified in section 60CC, such as opportunities for accommodation, employment and extended family support, which would arguably be relevant to issues of reasonable practicability. Consequently, these reasonable practicality factors must be considered separately.

3. Of course the case before me is a recent unilateral relocation that is being considered in a truncated interim hearing. This context was also the subject of comment by Boland J in Morgan & Miles. At paragraphs 86 to 88 of her decision Boland J makes the following comments in the context of what she describes as an unauthorised removal (ie, a unilateral relocation):  

   86. I conclude, the legislation, including the matters referred to above in Goode, does require consideration of s 60CC, s 61D, and s 65DAA (with reference to s 4(1)) in dealing with all interim applications for parenting orders including applications involving a relocation, or where an “unauthorised” relocation has occurred.

   87. As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.

   88. It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C and S remain apt and relevant to determination of these cases.

4. The case of C & S [1998] FamCA 66 was a Full Court decision decided in 1998. In his judgment Warnick J (with Ellis and Lindenmayer JJ agreeing) considered, inter alia, the appropriateness of the following comments made by a trial judge (Barry J) in ordering the return of a child on an interim basis:

   I believe the standard to be applied on an interim decision as even more stringent than on a final basis. That where a relationship ends it is not for one party to relocate thousands of kilometres away from the other party on a unilateral basis without any consultation whatsoever.

5. In reviewing these comments Warnick J stated that:

   In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as relocation, being determined by a court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents, from what or they have been immediately beforehand.

   His Honour [the trial judge] is referring to the standard to be applied on an interim decision, in my view, was recognising albeit in a shorthand way, the proposition which I have just enunciated and given what I have said of that proposition, it is clear that, with my view, I do not consider his Honour to have been expressing any wrong principle in the statement he made.

6. I note that the father referred the Court to a number of authorities including Morgan & Miles. At paragraph 11 of his case outline document the father argues:

   In Morgan & Miles (2007) FLC 93-343.  Boland J. referred to:

   ·There are no separate provisions in the Act dealing with interim, as distinct from final orders, although section 61D(3) does not require mandatory application of the presumption of equal shared parental responsibility on the making of an interim order.

   ·Thus there is no legislative mandate to consider different criteria in interim parenting application involving relocation to final applications, although the former will of necessity, be an abridged enquiry.

   ·Her Honour continues at paragraph 71:

   The reasoning in Cowling, particularly in paragraph 22 of the reasons for the decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in the light of the changes to the Act, particularly changes to the objectives of section 60B, the inclusion of the presumption of equal shared parental responsibility and the necessity if the presumption is not rebutted to consider the outcome of equal time and substantial and significant time.

7. The Court notes that the father also referred to the balance of Her Honour’s decision in paragraph 71 as previously referred to in this decision.

8. I will return to the issue of relocation in the context of the relevant legislative provisions and the available evidence shortly.

9. I will now move to consider the primary considerations and additional considerations in sections 60CC(2) and (3) of the Act.

Primary Considerations: Section 60CC(2)

1. Section 60CC(2)(a) requires the Court to consider the benefit of the children having a meaningful relationship with both of the children’s parents.  The Full Court considered this provision and the concept of meaningful relationship in McCall & Clark [2009] FamCAFC 92. In summary, what the Court is required to do is consider and weigh the available evidence and determine (assuming the Court is satisfied that it is in the children’s best interest) how and what orders can be framed in order to ensure that the children have a meaningful relationship with both of the children’s parents.

2. As a general proposition it would be beneficial for children to have a meaningful relationship with both parties and their extended family. That said, the Court must also consider section 60CC(2)(b) of the Act; the need to protect the children from physical or psychological harm and being subjected to or exposed to abuse, neglect or family violence.

1. In this case there are issues warranting investigation and the Court consequently needs to tread cautiously in the interim arrangements that will be necessary in this decision and beyond. At this stage I also note that, pursuant to section 60CC(2A), I am required to give greater weight to section 60CC(2)(b) as against 60CC(2)(a).

2. In her written submissions, the mother acknowledges that the children would benefit from enjoying a meaningful relationship with both parties. That said, the mother makes a number of serious allegations about the father. She states:

   The father has engaged in serious and prolonged family violence toward the mother (paragraphs 23 to 31 of the mother’s affidavit of 10 May 2017). The father denies the allegations made by the mother in respect of family violence. The father’s claim to have never stalked the mother is at odds with the mother’s evidence (annexed as B- 008 to the mother’s affidavit of 14 June 2017). The mother’s evidence on this point should be accepted. The father’s failure to acknowledge his engagement in family violence and, more particularly, stalking, and his tendency to expose the children to the paternal uncle’s negative influence and negative views of the mother and maternal family (see paragraphs 8 to 13 of the mother affidavit of 14 June 2017) points to an ongoing risk to the children in the father’s care. There is a need to protect the mother from being exposed to harm as a result of her being required to remain living in Sydney and this risk flows to the children. The orders proposed by the mother would provide such protection whilst promoting a meaningful relationship between the children and father.[1]

   [1] Mother’s case outline document, page 5.

3. In his written submissions, the father argues that while the mother has made a “myriad of allegations” about the father, she has failed to answer the “following obvious questions”:

   What was the emergency (at the time of the move) which was of the type of which was referred to above that would qualify for moving without permission?  There was none.

   Why did she not seek the Court’s permission before moving secretly with the children to Victoria? She admits that her solicitor tried to file process only after she had already moved.

   If she was so fearful or concerned about the Father’s capacity to parent the children why did she permit him to look after them for such lengthy periods (he says the majority of the time) between separation and when she fled (more than a year)?

   Where is the admissible evidence of the Father being involved in a “criminal culture”?  There is none.

   Where is the evidence of the Father involving the children in a “criminal culture”?   There is none.

   Why is the Mother seeking interim and final orders that do not seek supervision of the Father nor restrict him from “involving the children in a criminal culture” as she claims?

   Why did she make the decision unilaterally and secretly and without having regard to the effect that it might have on the children to be separated from their Father in such circumstances?[2]

   [2] Father’s case outline, pages 3 - 4.

4. As stated, the ICL does not support the children living primarily with the mother in Melbourne on an interim basis. The ICL supports the mother returning the children’s residence to Sydney and for the children to live with each of the parties until further order. In her oral submissions, Ms Smith as ICL stated:

   The mother says that it’s in the best interests of these children that she remove their residence to Melbourne. It is clear from that discourse between the parties on 12 March that she did not inform the father that it was her intention to move the children’s residence to Melbourne.

   It appears that the child, X, was removed from (omitted) Primary School and the school was not informed for some days – of a period of approximately two weeks – that he would not be returning. The mother then registered or enrolled X into (omitted) Primary School and your Honour has, in the subpoena material, the application for enrolment which has no details of the father entered. There is reference to an emergency contact which is ruled out and that is, so far as the ICL is aware, the maternal grandmother or the maternal grandparents.

   Your Honour, each of the parties make allegations against the other in respect of associations with criminal gangs. It would be my submission, your Honour, that there is no material in the subpoena material or any other material other than that contained in the affidavit material that would support that allegation for either side. Your Honour, the mother … sets out in her affidavit her reasons for moving to Melbourne was that she requires the support of her mother – that she was finding the cost of rental in Sydney excessive.

   Your Honour will not have any evidence before you in respect of what investigations the mother made as to what her alternative accommodation could have been; what areas she looked at; what the rental is. Your Honour doesn’t have before you evidence of the arrangements for her mother; how long that employment is; is it a long-term or short-term contract; what financial supports her maternal family can provide, if any. Certainly, on the affidavit material, as it is filed today, it would be my submission that the mother intends pursuing her relationship with Mr [Mr R] …   There is no affidavit by him as to what support he will be providing for the mother;  what role he will play;  what involvement he will have.

   In respect of Mr [Mr R], your Honour would have concerns about … the children being left in his care and it’s for that reason that the ICL seeks the order that I do. I appreciate that … they’re consented to but your Honour has before you the criminal record for Mr [Mr R].  There is also a reference in … the subpoena material of the (omitted) Medical Centre which refers to issues of domestic violence and breakdown of relationship between Mr [Mr R] and the mother and it would be my submission that your Honour could not be satisfied that that is a stable relationship.

   In respect of the father, your Honour, he has had the support of his parents and continues, I understand [he] continues to have the support of his parents. Your Honour, I seek the restriction that he continue to reside with his family as … whilst it is not common ground between them as to the involvement of the maternal family, it is common ground that the parties have lived with the paternal grandparents. They are people that the children are clearly familiar with. They have assisted with pickup or drop-offs.  That’s clear from the material – the text messaging that’s annexed to each of the parties’ affidavits.

   Your Honour, these are young children. The eldest child is only in kindergarten. He has already had a disruptive time, starting kindergarten then having to start a new school and I appreciate, your Honour, that this will be another move for him.  However, your Honour, for a child of that age and the age of Y, the father’s role is important in their lives and it is important for their attachment to the father. They are used to seeing the father, up until March 2017, on a weekly basis. From March 2017 till now, I understand that there have been two visits and I appreciate that the mother says, “I promote an ongoing relationship for the children with the father by offering an alternative weekend arrangement.”, but that would involve a five year old and a three year old being on a plane every fortnight, at least a half a day of travel back and forth and it would be my submission that that would be a significant strain on these children. 

   Your Honour, by returning the children to reside in Sydney, X would be able to return to (omitted) Primary School, somewhere where he is familiar with. At times that he would reside with the father, he would be returning to reside in the paternal grandparents’ home, again something that both children are familiar with. Your Honour, if your Honour was to decide that these children should remain living with the mother in Melbourne, that would effectively finalise these proceedings, in light of the delays that are in this court and when it is likely that this matter would come on for final hearing. I don’t think I am out of order, your Honour, that it is now a matter of years for final hearing date;  it’s not a matter of months and effectively, by determining the application on an interim basis that the children reside in Melbourne would effectively determine it on a final basis.

   Your Honour, these are interim proceedings, you do not have the benefit of cross-examination and being able to determine the parties’ credibility.  They are done on the papers and on that basis, your Honour, I would be seeking that the children be returned to Sydney.[3]

   [3] Transcript, 15 June 2017, pages 6 - 7.

5. The Court has considered the documents tendered by the parties in these proceedings. As submitted by the ICL, and in contrast to each party’s submissions in relation to the other’s affiliation with criminal gangs, there is no such evidence before the Court. It is noteworthy that the tenders of the documents produced on subpoena from the New South Wales Police reflect a lengthy history in relation to Mr R, whilst not containing any history or accounts in relation to the mother or the father.

6. I now make some comments about the additional considerations.

Additional Considerations: Section 60CC(3)

1. In relation to section 60CC(3)(a), the views of the children will be difficult to determine in this case given that X is five years of age and Y is three years of age. Nevertheless, this is an issue that a family consultant may be able to assist the Court on with observations of the children with each of the children’s parents.

2. In relation to section 60CC(3)(b), the nature of the relationship between the children and each of the children's parents, we have, not uncommonly in these types of disputes, different stories being presented to the Court at this stage. That evidence will require testing. 

3. In her written submissions, the mother makes the following points:

   The children have a warm and loving relationship with the mother and they share a strong bond. The mother breastfed Y for 17 months.

   The children have been living in Melbourne in the primary care of the mother for more than three months.

   The children have a close and loving relationship with the maternal family (paragraph 56 of the mother’s affidavit of 10 May 2017)

   The mother has demonstrated a willingness and capacity to facilitate and promote the relationship between the children and the father (paragraphs 3 to 6 of the mother’s affidavit of 14 June 2017).[4]

   [4] Mother’s case outline document, page 5.

4. The father asks the Court to place very little weight on what the mother asserts. In his written case outline the father states as follows:

   The Court is invited to read paragraphs 71 to 76 of the Mother’s affidavit sworn 9 May 2017 where she sets out her “efforts to facilitate spending time” with the Father.  She does herself no credit by the stream of complaints about the Father in this part of her affidavit.  It is difficult to imagine what she expected of him.  Did she expect him to cheerfully cooperate with her demands and the limited amount of time she was offering?  There is an element of a proprietorial attitude by her of the children, ie: she was in possession and control of them and able to act as the gatekeeper.  Given the distances involved and the fact the Mother has taken matters into her own hands the Father was essentially helpless and had no choice but to comply with the little amount of time that the Mother was offering until the Court was in a position to assist.[5]

   [5] Father’s case outline document, paragraph 16.

5. As to section 60CC(3)(c), the extent to which each parent has provided an opportunity to participate in decision-making for the child, that is a critical factor in the case before me. The mother made a unilateral decision to relocate with the children knowing that the relocation was most probably opposed by the father. The reasons why such occurred and why such a relocation may be necessary, of course, will require testing.

6. In her written submissions, the mother argues:

   The father has failed to contact the children on occasions when arrangements have been made for him to do so (paragraph 5 of the mother’s affidavit of 14 June 2017).

   The father has failed to speak with X’s paediatrician in relation to her recommendations for X’s treatment. (paragraph 17 of the mother’s affidavit of 14 June 2017). By contrast, the mother has been proactive in seeking our supports to address concerns about X’s health (paragraph 14 of the mother’s affidavit of 14 June 2017).[6]

   [6] Mother’s case outline document, page 6.

7. In his written outline of submissions the father argues:

   The mother asserts that she has been demonstrating a capacity and willingness to facilitate the children's relationship with their father. There are two points to make, the first is her unauthorised move with the children to Melbourne created the gulf of distance and time between the children and their father.  Secondly the father strongly denies her assertion of facilitating contact. In those circumstances the Court cannot make any finding about this in the interim hearing.

   It also does the mother no credit on the one hand to say that she wants a close relationship between the children and their father and then complain that he has failed to contact the children on occasions when arrangements had been made. Once again she has brought about the separation between the children and their father and it seems unreasonable for her to complain about logistical problems that she has created. Those complaints are disputed and therefore the Court can make no finding about their veracity either.[7]

   [7] Father’s Outline of Submissions, paragraphs 23 - 24.

8. Under section 60CC(3)(ca), the extent to which each of the child's parents have fulfilled their obligations to maintain the child, both parties make allegations against the other.

9. The mother argues that the father has been “inconsistent” in paying child support to her. She alleges that the father failed to contribute to the costs of X’s medical treatment and that she “has undertaken primary responsibility in tending to the children’s needs throughout the majority of the child’s lives and especially since March 2017”.[8]

   [8] Mother’s case outline document, page 6.

10. The father asserts that he has fulfilled his obligations to maintain the children. He acknowledges that he has received the assistance of the paternal grandparents with whom he resides. As previously stated, the father asserts that he is presently unemployed and as such, further asserts that he is available to primarily care for the children.[9]

    [9] Father’s case outline document, paragraph 17.

11. As to section 60CC(3)(d), the likely effect of any changes, the mother argues that:

    The mother’s proposed orders would facilitate regular time between the children and the father and paternal family whilst maintaining the children’s relationships with the mother and their school/day care. The orders proposed by the father would also reduce distress to the child in the event that a change of residence occurs after final hearing of the matter.[10]

    [10] Mother’s case outline document, page 6.

12. At paragraph 10 of the father’s case outline document the father states:

    This is an interim relocation application. The Mother cannot bypass the legislative imperatives by taking the law into her own hands as she has done. She cannot as a matter of public policy benefit by doing so and arguing that the passage of time means that a new ‘status quo’ has been created.

13. I note that the ICL specifically addressed this issue in her oral submissions previously referred to.

14. I now move to section 60CC(3)(e), the practical difficulty issues. Overall, the mother argues that her proposals are a sensible and practical way of dealing with the distance between the parties. In her written submissions the mother states:

    The mother has indicated that she has the means and is willing to assist in meeting the costs associated with the children spending regular time with the father in Sydney or Melbourne (paragraph 64 of the mother’s affidavit of 10 May 2017 and paragraph 4 of the mother’s affidavit of 14 June 2017). The mother’s proposal allows the children to maintain a relationship with both parents on a regular basis.  The children are familiar and comfortable with the travel between the residences of each parent.[11]

    [11] Mother’s case outline document, page 7.

15. At paragraphs 18 to 20 of the father’s case outline document the father states:

    The Court would take judicial notice of the sort of travel times involved in a flight to and from Sydney.  From leaving home to arriving at each airport and clearing all the requirements together with flight time not less than five hours would be expended. Were the children to travel by train that is an overnight trip.

    One half day in each weekend would be absorbed by travel by air and a full day each weekend would be absorbed if there was travel by train or motor vehicle.

    The Mother is proposing a regime that will fail or if it does not immediately fail will put the children under a great deal of pressure so that they associate spending time with the Father with a long and tiring journey at each end, on her proposal twice a month.

16. I note that the ICL also specifically addressed this issue in her oral submissions, and in particular, the burden that would be placed upon the children by frequent interstate travel and the benefits to X on being returned to his former school.

17. I now move to section 60CC(3)(f), the capacity of each of the children's parents. The mother argues:

    The mother has a demonstrated capacity to provide for the children's needs including their emotional and intellectual needs. The father’s capacity to care for the children is compromised by his inexperience in caring for the children without the support of the paternal grandparents.[12]

    [12] Mother’s case outline document, page 7.

18. At paragraphs 16 to 19 of the father’s additional written submissions the father states:

    The next point to make is to answer subparagraph (d) on page 4 which asserts she has the support of her family in Melbourne. The mother's parents and sibling moved to Melbourne only in January of this year. The mother says she their financial support with accommodation and the like. She does not state that there-are any real limitations to it and her parents are not an affidavit anyway.

    We say there is no reason for the Court to find that that support would be withdrawn were she to live in Sydney with the children. I would invite counsel for the mother to indicate where the mother has given evidence about that.

    She would say that she can only offer to pay some of the airfares or other costs for spending time if she had the full support of her parents.

    There is however no evidence that a pre-requisite for her family to assist her is that she lives in Melbourne. We repeat the point that the mother returning to a place she has ever lived before she simply living where her parents have chosen to live and that is only recently. The children have no connection with the area in any way whatsoever.

19. I now move to section 60CC(3)(g), maturity, sex and lifestyle background issues and note that neither party raised any arguments relevant to this provision. 

20. In regards to section 60CC(3)(h), I am not aware that either the child or either party identify as Aboriginal or Torres Strait Islander.

21. In relation to section 60CC(3)(i), the attitude issues, the mother argues that:

    The mother has maintained consistency in her approach to parenting and has regularly prioritised her duties as a parent over other matters (see paragraph 54 of the mother’s affidavit).

    The father has relied on the paternal grandparents to exercise his parental responsibility and has been dismissive of the mother’s concerns as to the children’s wellbeing in the care of the paternal grandparents (paragraphs 52 and 53 of the mother’s affidavit of 10 May 2017).

1. At paragraphs 14 and 15 of the father’s additional written submissions he states:

   It is indeed unfortunate that the mother, having committed what Justice Boland calls “an unauthorised relocation” now seeks to gain a forensic advantage from it. This is asserted in subparagraph (b) on page 5 of the mother's case outline. As previously submitted were this to be taken into account as a positive factor in the mother's case it simply acts as an incentive to other parents to act unilaterally in the way the mother has done this case.

   It is ironic that one of her complaints was that the father threatened to retain the children, that is to act unilaterally, and yet she is unapologetic for her own actions to the same effect. That threat is denied and therefore no finding can be made.

2. In respect of section 60CC(3)(j), family violence, and section 60CC(3)(k), family violence orders, both parties make allegations about family violence and each party’s alleged association with criminals. 

3. In her written submissions, the mother argues:

   The father has engaged in serious and prolonged physical, emotional and sexual violence toward the mother (paragraphs 23 to 31 of the mother’s affidavit of 10 May 2017). The father denies the allegations made by the mother in respect of family violence. The father’s claim to have never stalked the mother is at odds with the mother’s evidence (annexed as B-008 to the mother’s affidavit of 14 June 2017). The mother’s evidence on this point should be accepted. The father’s failure to acknowledge his engagement in family violence and, more particularly, stalking, and his tendency to expose the children to the paternal uncle’s negative influence and negative views of the mother and maternal family (see paragraphs 8 to 13 of the mother affidavit of 14 June 2017) points to an ongoing risk to the children in the father’s care. There is a need to protect the mother from being exposed to harm as a result of her being required to remain living in Sydney and the risk to the mother flows to a risk to the children whilst the mother is required to reside in Sydney.[13]

   [13] Mother’s case outline document, page 8.

4. The father asks the Court to note that he has no criminal record and that:

   indeed the only person with involvement in these proceedings with a criminal record is Mr R the gentlemen with whom the mother formed a relationship prior to separation.[14]

   [14] Father’s case outline document, paragraph 22(a).

5. In his additional written submissions at paragraphs 9 to 13 the father states:

   On the topic of violence there are a couple of undeniable facts which are highly relevant.

   The first is that there has never been any police involvement between these parents, alleging violence or anything else for that matter.

   It is suggested that the mother was reluctant to take steps to deal with the father's alleged violence, one only has to note at what is said in their case summary towards the end of page 8 about an intervention order, which I understand is the terminology for a domestic violence order in Victoria, arose just as the result of a verbal argument between the mother and her current partner. Presumably it arose on the mothers complaint because it is unlikely that her partner, who has a long criminal history would have complained to the police about her.

   It is interesting therefore that someone who claims to be a victim of violence and who was powerless to deal with the father approach the police “over just a verbal argument” with another partner, to use the words in her case summary.

   What is also counter intuitive is at [sic] the mother does not seek any protection orders with regard to the children when they are in the care of their father. One would have expected, using the words of their case summary at the top of page 5,that if the father has engaged in a serious and prolonged family violence towards the mother:

   a.  She, as a responsible parent, would have never agreed to share care of the children the father for equal time (on her account) or for the majority of time (on his account);

   b. She approached solicitors to represent her in parenting proceedings in 2017 and there is no explanation why she did not seek legal assistance in 2016 after separation, particularly if the father was a danger to the children and overbearing towards her.

   c. Seek appropriate restrictions on his time with them presumably supervision;

   d.  Seek injunctions against him other than in relation to alcohol;

   e. Seek an order that the children not be brought into contact with their paternal uncle since in subparagraph (e) the uncle's negative attitude towards the maternal family is raised as an issue.

   f. To argue on the one hand that the father should have a meaningful relationship with the children and then criticise him the long-term unrepentant perpetrator of family violence is a contradiction in terms.

   g,  It is suggested in the middle of page 5 of the mother's case outline that the mother will be protected from being exposed to harm by the father as a result of living in Melbourne. It seems however that she has no concern about the children being exposed to their father unsupervised in Sydney whilst she is 1000 km away.

6. The mother does not deny that there is a current Apprehended Domestic Violence Order (“ADVO”) in place between Mr R and herself. She asserts that this order resulted from a “verbal argument” and asks the Court to note that Mr R resides interstate. That said, there is some conflicting evidence about what the mother may have told a health professional about this incident. The Court is unable to make any finding about this at this stage relevant to this particular issue apart from noting that the NSW Police considered the circumstances appropriate for ADVO proceedings to be commenced and an ADVO is now in place that does not expire until December 2017. Moreover, the mother gives evidence that Mr R is proposing to relocate to Melbourne in due course. Regardless, I note that the parties have consented to certain restraints including a restraint upon the mother that “During times that the children reside with the Mother she shall not leave the children in the sole care of Mr R (“Mr R”) Mr R”.

7. As to section 60CC(3)(l), whether it be preferable to make an order that would be least likely to lead to the institution of further proceedings, that is not applicable at this stage because this is an interim decision.

8. As to section 60CC(3)(m), any other fact or circumstances, there are no other facts or circumstances that I wish to note at this point of my reasons that have not already been raised during the course of these reasons.

Conclusion

1. Having regard to the respective applications and submissions in light of the available evidence and the relevant statutory provisions, the Court is satisfied and finds on an interim basis that it is in the children’s best interests to make orders consistent with the Minute of Orders proposed by the ICL, with minor amendments. In other words, until further order, there will be orders for:

   ·the mother to cause the children’s residence to be returned to the Sydney Metropolitan area by 5.00pm on Sunday 16 July 2017;

   ·in the event that the mother returns to reside in the Sydney Metropolitan area then the children will reside with each party as follows: with the mother from 5.00pm on Thursday to 5:00pm on Sunday and with the father from 5:00pm on Sunday to 5.00pm on Thursday;

   ·that in the event that the mother does not return to reside in the Sydney Metropolitan area then the children shall reside with the father, and spend time with the mother for a period of four days commencing on the first Thursday of each month to the commencement of school Monday, and for the whole of the June/July and September/October school holidays;

   ·that during the times that the children reside with the father that he reside with his parents (ie. the paternal grandparents) at their home at (omitted); and

   ·that the parties cause the child X to be re-enrolled in, and attend, (omitted) Public School.

2. The desired effect of these orders is that the mother return the children prior to the commencement of the New South Wales Term 3 school term and the children thereafter live in a shared care arrangement. The orders provide for the children to be in the father’s care from the evening of Sunday 16 July 2017 which will facilitate X returning to his former school the following day.

3. As only one of the children is of school age, the Court has found it appropriate to make minor amendments to the ICL’s proposed minute of orders in relation to the times that the children go into the care of each party. The Court finds it appropriate for changeovers to occur at 5.00pm on Thursdays. Until Y commences school, it would be difficult for the parties to have changeovers occurring at school. There will be orders for changeovers to occur at the paternal grandparents residence (at the commencement of the children’s time with the mother) and the mother’s residence (at the commencement of the children’s time with the father), in order to avoid any unnecessary conflict at school. Of course, the parties may agree on alternative changeover circumstances as appropriate. That said, until such time as the mother establishes a residence in Sydney, all changeovers will occur at the paternal grandparent’s residence.

4. In relation to communication time, neither the father nor the ICL ultimately proposed an order for communication time at the interim hearing, although the mother did propose such an order in her Response. Consequently the Court finds it appropriate to make an order for the children to have reasonable telephone communication with each party as agreed. In the event the parties are unable to agree upon communication time, the ICL can inform the Court on the next occasion.

5. I am also satisfied that an additional order should be made for the father to provide the mother with some financial assistance to enable her to lodge a rental bond in respect of securing rental accommodation in Sydney. The amount will be capped at $2,500.00 or such lesser amount should the rental bond be less than $2,500.00. However, the orders requiring the mother to return the children’s residence to Sydney will not be conditional upon the father providing these funds. That said, the Court expects compliance with this Order. The Court can characterise this payment at any final hearing of the dispute.

6. Given that there will be orders for the children’s residence to be returned to Sydney, and noting that the mother indicated to the Court that she would also relocate back to Sydney in the event the Court ordered the children to return, it is not necessary to consider the mother’s application for a transfer of these proceedings to the Melbourne Registry.

7. This has been a difficult decision for the Court to make. Nevertheless, a judicial decision was necessary given that the parties were unable to effectively agree on any interim orders. The Court reminds the parties that this decision is an interim one only and that any final hearing may result in different outcomes.

8. It is appropriate for the matter to return before me in September 2017 and for the parties to attend a Court Ordered Mediation Program (COMP) or similar mediation event prior to the matter returning to Court, and I would request the ICL arrange that mediation accordingly. On the next occasion, the Court can receive an update as to the outcome of the mediation and make further directions including consideration of whether the matter may be assisted by a family report.

9. There will be orders and Notations of the Court to reflect this decision.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Monahan

Date:  28 June 2017