Leech and Charles

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEECH & CHARLES

[2014] FCCA 1360

Catchwords:
FAMILY LAW – Parenting – mother seeks to relocate from Darwin to (omitted) NSW – both parents have re-partnered and have further children – relocation allowed.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 64, 65D, 65DAA, 69ZT, 95AAA

Evidence Act 1995 (Cth), s.144

MRR and GR [2010] HCA 4
Taylor v Barker (2008) 37 Fam LR 461
AMS and AIF (1999) 24 Fam LR 756
Goode v Goode (2007) 36 Fam LR 422
B and B: Family Law Reform Act 1975 (1997) 21 Fam LR 676
Morgan & Miles [2007] FamCA 1230

Applicant:

MS LEECH

Respondent:

MR CHARLES

File Number:

DNC 392 of 2010

Judgment of:

Judge Harland

Hearing dates:

24 April and 14 May 2014

Date of Last Submission:

14 May 2014

Delivered at:

Darwin

Delivered on:

26 June 2014

REPRESENTATION

Counsel for the Applicant:

Mr Barry

Solicitors for the Applicant:

Darwin Family Law

Counsel for the Respondent:

Ms Bowen

Solicitors for the Respondent:

Bowen Lawyers

ORDERS

That the mother be permitted to relocate to (omitted) NSW with the children X born (omitted) 2005 and Y born (omitted) 2008 seven (7) days before the commencement of the next New South Wales school term.
That the mother’s lawyer be permitted to send an extract of the judgment dealing with the allegations against Mr G to Mr G’s supervising officer.

ORDERS BY CONSENT

Parental Responsibility

That the parents have equal shared parental responsibility for the children.
That the parties shall make a genuine effort to come to joint decisions about all major long term issues including:
(a)The children’s education;
(b)The children’s religious and cultural upbringing;
(c)The children’s health; and
(d)Any changes to the living arrangements in the event that they impact upon one parents’ ability to spend time with the children.
That except as otherwise provided in these orders, school holidays shall commence on the Saturday after the last day of the school term and conclude on the Saturday prior to the first day of school in the following term.
That when the children are spending time with one party, the children may communicate with the other party by FaceTime, Skype, Tango or telephone at all reasonable times but no less than between 7.00 pm and 7.30 pm at the time zone where the children live, on the following days:
(a)Each Wednesday and Sunday;
(b)On the children’s birthdays;
(c)On the mother’s birthday and Mother’s Day;
(d)On the father’s birthday and Father’s Day;
(e)On Christmas and Easter Days;
(f)On the children’s stepfather’s and stepmother’s birthday; and
(g)On the children’s siblings and stepsiblings birthday.
That for the purpose of children’s communication with the other parent, the parent that has the care of the children shall facilitate that communication and both parties shall maintain a working land line and mobile telephone and iPhone or other iOS device and computer at all times practicable.
That ~~should the mother be permitted to relocate the children to (omitted) NSW~~ *upon the mother’s relocation with the children to (omitted) NSW and the father and/or the children’s stepmother visit the (omitted) NSW area during school terms, upon giving the mother as much notice as is practical, he/she may spend time with the children for the duration of the visit of up to two (2) weeks including overnight time and in the event the visit exceeds two weeks it will be for a week about basis for the duration of the visit and the father and/or stepmother shall ensure that the children attend school and any extracurricular activities, if applicable, during the time the children are spending time with the father and/or the stepmother and the mother shall make available all the details of the children’s school and extracurricular activities to the father and/or stepmother for this purpose.
*That upon relocation, the children shall live with the mother, and spend time and communicates with the father as agreed to between the parties, but in default of agreement as follows:
(a)For all of the NSW school holidays at the end of Term 1 in even numbered years;
(b)For all of the NSW school holidays at the end of Term 2 every year;
(c)For all of the NSW school holidays at the end of Term 3 in odd numbered years;
(d)For the first four (4) weeks of the NSW Christmas school holidays in even numbered years;
(e)For the last four (4) weeks of the NSW Christmas school holidays in odd numbered years.

Travel arrangements

That ~~should the mother be permitted to relocate to (omitted) NSW~~ *upon the mother’s relocation with the children to (omitted) NSW, or choose to move to (omitted) NSW without the children, for the purpose of the children’s travel to and from Darwin the following shall apply:
(a)the father shall book and pay for the costs of the children travelling from Sydney to Darwin, at the commencement of the time the children are to spend with him;
(b)the father shall be responsible for all the travel of the children from the Darwin airport to his place of residence;
(c)the mother shall book and pay for the children’s travel from Darwin to Sydney and the mother shall then be responsible for all of the travel of the children from the Sydney airport to her residence in (omitted) NSW;
(d)the father and the mother shall provide to one another the children’s travel itinerary no less than 14 days prior to the children’s travel.
That in the event that the mother or the father are not present at their usual place of residence at the time the children are to be returned to their care after spending time with the other parent, that parent shall inform the other parent of the change of the location, and provide the children’s itinerary as soon as practicable, for the children to be made available for the travel to that destination, and the parent seeking the change shall meet directly any additional costs but also receive any transferrable benefit from the ticket originally purchased, provided the parent seeking the change shall also meet directly any such additional costs.
That in the event that the children travel and/or stop over in Darwin with the mother or the stepfather, then the children shall spend time with the father and/or stepmother at times agreed between the parties, and the mother shall inform the father of the intended visit with the children as soon as is practical, and further the time that the father may spend with the children shall include at least one overnight time if the children are in Darwin for at least 24 hours.
That neither party shall travel with the children overseas to the destination that has a current Australian Government Travel Warning, which advises against travel to that destination.
That should any time spent with the respective parent involve overseas or interstate travel, the following should occur:
(a)The travelling party shall in the case of overseas travel inform the other party of the intention to travel, no later than three (3) weeks prior to travel, or as otherwise agreed to between the parties, save and except in the case of emergencies.
(b)The travelling party shall in the case of overseas travel provide to the other party the children’s travel itinerary no less than seven (7) days prior to the departure date, or as otherwise agreed to between the parties, save and except in the case of emergencies, to include details of departure from and arrival to the children’s usual place of residence when in the respective party’s care, general details of the itinerary within the place of destination, and contact details for the children whilst travelling to include telephone number and email address.
(c)That should either party plan to take the children interstate they shall notify the other party of the travel details with at least 48 hours’ notice unless otherwise agreed.

Passports

That the parties shall take all necessary steps to sign the children’s applications for renewal/issue of the children X born (omitted) 2005, and Y born (omitted) 2008 passports no less than 8 months prior to the expiry of each passport, and in the event of either party’s refusal, neglect or unwillingness to do so, the Director of the Department of Foreign Affairs and Trade is hereby authorised to issue the children’s passports notwithstanding the absence of either of the children’s parent’s signature on the application, and further the parties shall share equally the cost of renewing the passports.
That if the children live in (omitted) NSW with the mother, or live equally with the parties in Darwin, the mother shall retain the children’s passports until such time as the father notifies her of his intended overseas travel, with the following to occur unless otherwise agreed:
(a)The passports are to be forwarded to the father no less than three (3) weeks prior to the intended travel by registered mail, after the mother receives three (3) weeks’ notice of the intention to travel overseas with the children; and
(b)The father shall within seven (7) days return the passports to the mother after the children return from overseas;
(c)That in the case of a relevant emergency the party who has the passports shall express deliver the passports to the other party using the fastest courier service available.
That if the children live with the father, the father shall retain the children’s passports until such time as the mother notifies him of her intended overseas travel, with the following to occur unless otherwise agreed:
(a)The passports are to be forwarded to the mother no less than three (3) weeks prior to the intended travel by registered mail, after the father receives three (3) weeks’ notice of the intention to travel overseas with the children ;and
(b)The mother shall within seven (7) days return the passports to the father after the children return from overseas;
(c)That in the case of a relevant emergency the party who has the passports shall express deliver the passports to the other party using the fastest courier service available.

Emergencies

That in the event of a family death, funeral, severe illness or other life threatening emergency requiring either party to travel interstate or overseas to attend to family members the travelling party shall be permitted to take the children interstate or overseas after giving the other party as much notice as practicable, and after first providing to the other party the children’s travel itinerary, subject to the following:
(a)if either party is required to travel overseas or interstate with the children whilst in holiday time when the children were scheduled to be with the other party, that party shall compensate the other party for that time at the next school holidays or as otherwise agreed to between the parties; and
(b)if the children are spending time with one party over a Christmas school holiday period or overseas during the time when the other party is required to travel interstate *or overseas with the children to attend a family emergency, the relevant party shall be permitted to travel with the children but only if the children spend Christmas and Boxing Day in full with the party with whom they are otherwise scheduled to spend Christmas and Boxing Day with.

Notices

That the parties shall inform the other as soon as practicable of any serious accident, injury or illness, involving the children, and provide to the other parent details of any treating practitioners, all and any medical or other treatment related to the serious accident, injury, illness, and further the relevant party shall advise the other if either child misses a full day of school or more, and provide the reasons for same, and details of all specialists or general practitioners appointments that the children attend, including but not limited to General Medical Practitioners, Specialists, Dentists, Physiotherapists, Speech Therapists and Optometrists.
That each parent shall be entitled to obtain from any school attended by the children or from any health or welfare professional attended by the children copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the children, and for that purpose each parent shall immediately notify the other of the names of the relevant school, welfare and health professionals, and keep each other informed forthwith of any changes.
That each party shall authorise the children’s school to provide the father, mother, and stepmother and stepfather with all information regarding the children’s attendance at their school, including but not limited to reports, awards, videos and yearly photographs of the children with any costs for photographs to be met by the party who request same.
That the parties shall inform each other of their current residential and mailing addresses, if different from residential, and telephone numbers to best contact the children on that number, including a landline and mobile, and of any changes to the children’s contact details within 48 hours of the changes occurring or, where possible, prior to the changes occurring.
That, except as otherwise agreed, should either party intend to relocate the children’s residence to another town from where they may be living, that parent shall give the other party no less than 6 months’ notice of that intention.

NOTATION: These orders have been amended pursuant to rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 to reflect the changes in orders (8) and (10) from ‘should the mother be permitted to relocate the children to (omitted) NSW’ to ‘upon the mother’s relocation with the children to (omitted) NSW’, the change in order (18(b)) with the addition of the words ‘or overseas’ and the addition of order (9).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 392 of 2010

MS LEECH

Applicant

And

MR CHARLES

Respondent

REASONS FOR JUDGMENT

X and Y have two parents who love them dearly. They also live in two blended households. Their parents are in court because the mother wishes to relocate to (omitted) NSW with her fiancé. The father opposes the relocation. For the reasons I give in this judgment I am going to allow the relocation.
This case has been very difficult for the adults involved. They are all decent people. Relocation cases are notoriously difficult. In this case the children have been living in a week about arrangement for more than five years.
The family situation in this case is complex. Both parents have re-partnered. The father is married to Ms W. They have two young children together. Ms W is pregnant with their third child. The mother is engaged to Mr G. They had their first child in February 2014.
To the parties’ great credit they have agreed to consent orders which provide for the time the children will spend with each parent in the event of each of the three scenarios the court is asked to consider. Those scenarios are:
a)The mother stays in Darwin and the current parenting arrangements remain in place.
b)The mother relocates to (omitted) NSW without Y and X.
c)The mother relocates to (omitted) NSW with Y and X.
The major issue in dispute is unsurprisingly whether or not the mother should be allowed to relocate.
The other issues in dispute are:
a)Whether or not Y can receive better treatment for her burns in (omitted) NSW or Darwin;
b)The parents’ parenting styles and communication with each other.

The mother’s proposed move to (omitted) NSW

The mother wants to move to (omitted) NSW to be with her fiancé Mr G. They have been in a relationship since August 2009. They have lived together since October 2010. It is a long-standing and committed relationship. Their first child together Z was born on (omitted) 2014.
The mother does not have any family in Darwin. Her mother lives in (country omitted). The mother says her mother is a close support for her. She says that it will be more affordable for her and the children to visit her mother in (country omitted) if they are living in (omitted) NSW.
The mother says that she has wanted to relocate from Darwin for a long time. She says she and the father did not intend to remain in Darwin permanently. Mr G’s posting to (omitted) NSW has given her the opportunity to seek to relocate. She feels the children are old enough now that they will be able to maintain their relationship with their father, their half-siblings and the father’s extended family.
Mr G is a (occupation omitted). He was posted to Darwin and spent eight and a half years there. Mr G has an eleven year old daughter A from a previous relationship. She lives near (omitted) in NSW.
Mr G was transferred to (omitted) NSW on 14 January 2014. He says his career could not progress if he remained in Darwin. He has been posted to the (employer omitted) at (omitted) NSW as an (occupation omitted). He will not have to go on (duties omitted) for the duration of his (omitted) NSW posting. He anticipates that this posting will last for three to four years. He says there are financial benefits for him and his family as he has been promoted and he says the costs of living are cheaper. He is entitled to subsidised housing. He gives evidence of the other supports the (employer omitted) provides to members and their families. The mother and the children remain living in (employer omitted) housing in Darwin.
Mr G says that one of the benefits of living in (omitted) NSW is that it will be easier for him to see his daughter A more frequently. He says he has maintained a close relationship with her over the years despite the distance. He gets on well with A’s mother. This is a legitimate benefit for Mr G.
Mr G was criticised by the father for putting his career ahead of his family. This is an unfair criticism. It is artificial to separate career advancement from family concerns. Many parents also have careers and are ambitious. Families benefit from parents who are fulfilled in their careers. Families also benefit from someone who has secure employment with benefits. Mr G’s reasons for relocating to (omitted) NSW are legitimate.
I accept Mr G’s evidence that even if the mother is not able to relocate he will remain in (omitted) NSW. He is closer to his family and to A. He is advancing his career. He does not want to resign from the (employer omitted). I accept his evidence that he would have to do this in order to return to Darwin. Mr G says that Mr R, the family report writer made an error in his report when he recorded that Mr G would re-join her in Darwin if the mother is not allowed to relocate.
The mother finds it difficult to face the prospect of living in Darwin without her partner. She sees advantages for her family unit as a whole. By the time of the hearing she indicated that she felt it was most likely that she would relocate without Y and X if she was not allowed to relocate with them because the prospect of remaining in Darwin without Mr G with a young baby was very difficult for her and that she had not definitely decided. It is to the mother’s credit that she was open about this. It is clearly a very difficult issue for her. The father acknowledges this and that is to his credit too.
In the father’s proposed orders in the event that the mother is allowed to relocate he sought that either the relocation take place in December 2016 or December 2014. This was raised at the hearing either during cross-examination or submissions. Delaying the relocation until December 2016 will not assist as the children would likely be moving again within a year or two. Whilst delaying a move until the end of the year would mean that the children would start at a new school at the beginning rather than in the middle of the school year, it would be difficult for the mother.

Allegations that Mr G spoke to X about inappropriate (omitted) topics

In the lead up to the hearing the father and his wife accused Mr G of talking to X about inappropriate matters relating to his (employment omitted) in (country omitted) and his (omitted) work generally. The father says that X came home talking about things which he concluded could only have come from Mr G.
Until this issue arose the father and Mr G had a reasonably good relationship. Mr G had approached the father and arranged a meeting so that the father could get to know him. This was an appropriate gesture which the father appreciated. It is unfortunate that the father did not speak to Mr G directly when he first had concerns. This issue was addressed in the family report.
X is a curious 9 year old boy. It would be surprising if he was not interested in Mr G’s career. He is also a boy with a vivid imagination who likes to tell stories. Mr G gave an example where X told him that he had gotten into trouble with his father and his father had made him sleep outside all night. Mr G responded to X telling him that his father would not have made him do that. He gave another example. Mr G says that when X asks him an inappropriate question he does not answer and says “X, that’s enough mate.”
I accept Mr G’s evidence that he did not talk to X about inappropriate topics. I accept his evidence that the things X described have never happened to him. I found him to be genuine when he said he would never talk about (employer omitted) matters with anyone who is not a serving member of (employer omitted). Such indiscretions, were they to occur, could have serious repercussions
The father overreacted. It was inappropriate for him to write to Mr G’s (employer omitted). He did this without trying to discuss it with Mr G and it seems without any thought as to what ramifications this might have had for Mr G’s career. Mr G found this very distressing. It is only proper in the circumstances that Mr G’s superiors be made aware of my findings with respect to Mr G’s conduct.
The letter the father’s lawyer wrote to the mother’s lawyer about this issue was also disproportionate. The father’s lawyer failed to annex to the father’s correspondence the email from the mother’s lawyer which initiated the discussion about this. Such an omission has the potential to mislead the Court. The undertaking the father required included the mother and Mr G not discussing the proceedings and the conflict with the children. It is the father and Ms W who have done this by telling the children about their concerns about pollution in (omitted) NSW.

The father’s position with respect to the mother’s proposed relocation

The father says he is sympathetic to the mother’s desire to relocate but he believes such a move is not in X and Y’s best interests. The father says that the children have been living in a shared care arrangement for over five years. He says the children are close to his wife and their younger half-siblings B, aged three and a half and C aged two. His wife is pregnant with their third child. The father also has extended family in Darwin.
No one has suggested that it would be viable for the father, his wife and their children to move to (omitted) NSW or some other location closer to (omitted) NSW. I do not suggest that this would be a realistic option for them. They have strong connections in Darwin and no desire to move elsewhere.
The father accepted when questioned that if the mother relocates she will facilitate the children’s relationship with him. He also conceded that the mother has raised her desire to move away from Darwin many times before, as far back as 2008. She raised it again in 2011 and then applied to the court in 2013. This is not a new desire of the mother’s and is not driven by Mr G as the father and Ms W have suggested.

The parents’ different parenting styles

The mother raised some concerns about the father’s parenting capacity. She raised the issue of Y’s burns and the father’s drinking. However by the time of the final hearing she was no longer seeking to change the week about arrangement in the event she remains in Darwin. It is not necessary to recount the mother’s complaints as it is clear that there is no issue that the father has a close and loving relationship with the children. There is also no issue that both parents are able to provide for the children’s material and physical needs. It became apparent that a real issue between the parents is not about parenting capacity but parenting style.
The mother says she is the more nurturing parent. I think the mother is more sensitive to the children’s emotional issues but that does not mean that the father does not also have very valuable traits to offer the children.
It is common for mothers and fathers to have different styles of parenting. This can be a very valuable thing for children. As Mr R said during his cross-examination, different parenting practices are not detrimental to children.

The parents’ ability to communicate and cooperate

The children have been living in an equal shared care arrangement since March 2009 shortly after the parties separated.
The mother says that she finds the father and his wife Ms W difficult to deal with. She says she finds them to be hostile and bullying towards her. They deny this.
The mother complains that the children are encouraged to call Ms W ‘mum’. She says that Y raises this with her periodically and that she has raised it with the father without avail. The mother says she told the father that it confuses the children but that he was dismissive of her.
The father and his wife could have handled this issue more sensitively. It may not be any issue of concern to them but clearly is to the mother. The mother says Y has raised this with her a few times, most recently at the end of last year. Y tells the mother she is confused about who her mum is because she has to call Ms W mum at dad’s house. The mother said when she last raised this with the father he was responsible for words to the effect of “the children are not confused, only when they’re in your care filling their heads with rubbish.”
The mother says that although they have not had court orders previously they have attended mediation six times and that coming to an agreement is difficult.
The best example of the father and Ms W’s overbearing style in dealing with the mother is their attitude towards extracurricular activities. The mother says she has not booked the children into extracurricular activities which occur weekly which would impact on the father’s time without consulting him. She has booked into holiday programs that have occurred during her time without consulting the father.
Unfortunately the father does not do the same. At paragraph 103 of the mother’s trial affidavit she sets out several instances of the father and Ms W making arrangements for the children to engage in extra-curricular activities without consulting the mother dating back to 2010. The father agreed with the mother’s version of events set out in her affidavit. By doing this the father and Ms W have repeatedly put the mother in a difficult position where either she disappoints the children by not taking them to the activities during her week or she had to take them to the activities despite any plans or she may have had.
Most recently they did this in February 2014. They signed all the children up at (omitted) as well as other activities and in the email informing her, state that she needs to be flexible. This is incredibly hypocritical and insensitive of them. Particularly in circumstances where they knew the mother was heavily pregnant, due to give birth within a couple of months, and was going to be without her partner. In his email informing the mother of these plans he asks the mother to be flexible “please be flexible with this as the children are of course very excited”. He was really requiring the mother to fit in with his plans. If she did not she would be the bad parent preventing the children from doing something they enjoy. This is a classic example of the father and his partner being overbearing and it is not surprising that the mother finds it difficult and stressful. It is also significant to note that they did this knowing that this hearing was coming up in April 2014 and knowing that the mother had complaints about how they dealt with her.
The father conceded that there is also pressure and stress around medical appointments and in particular Ms W attending those appointments as well as both parents. It is understandable why the mother would find that difficult as the father and Ms W both have strong personalities and it would feel like two against one even if they did not intend that to be the case. Again this is an example of the lack of insight and inability to put themselves in the mother’s place rather than being any deliberate attempt to antagonise the mother. The father conceded that he knew that the mother objected to this but insisted on Ms W coming anyway. In fact the optometrist Ms H complained to both parents about the tension at such appointments and the difficulties of having to send reminders to three people. Y was exposed to that conflict. No doubt the children have been exposed to the tension between the three adults on other occasions as well.
The father agreed that there have been difficulties surrounding special days and that the issue of obtaining passports for the children is also a drawn out process over several months.
Despite having these things pointed out to him and him conceding several points he was still unable to accept that the mother finds interaction with him and Ms W difficult. The father lacks insight and seems incapable of being able to see things from someone else’s perspective. I suspect he genuinely cannot understand why the mother is uncomfortable dealing with him because he does not feel uncomfortable dealing with her.
X has asked the father why Mr G loves the (employer omitted) more than mummy and the father says that he doesn’t say anything when X says these things. It is clear that the father is not able to be actively positive and supportive in the way that the mother and Mr G can when the children raise issues with respect to the father and Ms W.
Ms W was very defensive when she was cross-examined. It was apparent when she gave her evidence that similarly to the father, she is unable to look at things from someone else’s perspective. She says she respects the mother’s views about her being called mum but she also respects the children and that it is their choice. She also admitted that she knows the mother does not want her to attend the children’s appointments but says she does not know why.
The father and Ms W also showed a lack of insight by talking to the children about their concerns about pollution in (omitted) NSW. This is burdening the children with adult concerns. This could only cause the children to worry.
Exhibit E is an example of the mother showing insight. It is an email from the mother to the father dated 17 April 2014. She says that some of X’s issues about believing stories such as about the father making him sleep outside and the father flogging him “may be because of the stuff between you and I and I am happy to discuss ways of moving forward to support X”. It is clear from the email she was responding to the fact that the father accepts what X says to him without question and then criticises the mother and Mr G. Even after hearing the evidence of Mr G and Mr R the father remained adamant in his view that Mr G has discussed inappropriate topics with X.

Y’s burns and treatment for them

Y suffered severe burns when in the father’s care when she was a baby. She was burned by hot water in her bath. Both parents tendered photos of Y’s burns. She has burns on her arm and hand and extensive burns from her right buttock all the way down her right leg and foot.
The father called Y’s treating burns specialist to give evidence. He did not swear an affidavit. He gave oral evidence in chief and was cross-examined. Dr M is a surgeon specialising in reconstructive surgery after burns. He gave evidence that there is a modified burns unit at (omitted) Hospital. It is not a full burns unit. His involvement with Y and her parents has been to deal with any reconstructive surgeries Y has needed as a result of contractures which occurs from the skin scarring and Y growing.
Dr M gave evidence that Y needs to be monitored. She may experience problems during growth phases. It is not inevitable that Y will need further surgery. It is impossible to know.
Dr M candidly said that he has no expertise with respect to any psychological issues Y may have. This is not surprising as he is a surgeon. He said the issue has not been raised with him. He only treats her burns.
He said that changes in climate within Australia does not have any impact and from a burns perspective it makes no difference where in Australia Y lives.
The issue of treatment for Y’s burns is a neutral factor in considering the relocation application.
The father conceded that Y probably did tell her mother that she does not like her burns. He also agreed that he has not made any enquiries about who could provide Y with psychological support with respect to the psychological impact of her burns. He agreed that the mother had made those enquiries and was unable to find anyone in Darwin with the expertise in dealing with psychological issues as a result of burns. I find that the mother is more sensitive to the issue of Y becoming self-conscious about her burns particularly as she gets older. Y is more likely to talk to her mother about those self-image issues because of her sensitivity. Dr M is unable to provide a referral to a psychologist specialising these issues.

If the mother and children remained in Darwin

If the mother remains in Darwin with Y and X the week about arrangement will continue. The mother will be under considerable stress, living apart from her fiancé with a young baby. I find that she will continue to find the father and Ms W overbearing and difficult to deal with. It is likely that the mother will be unhappy and this in turn will impact on the children. Children pick up on when their parents are unhappy and stressed. I am satisfied that the mother has been unhappy living in Darwin for a long time. The difference is that she had Mr G living with her. The mother was frank in giving her evidence that she feels that if X and Y are not allowed to relocate that she is most likely to do so without them. She still wanted the option to stay. Clearly this is a wrenching decision for her. It is important to note that she has had the experience for the past several weeks of living in Darwin without her partner so it is not an unknown factor for her when she expresses her views.
I find that it is unlikely that Mr G will return to Darwin. It is unrealistic and unreasonable to expect him to give up his career with the (employer omitted), where he has job security and good benefits for him and his family for economic uncertainty.

If the mother moved to (omitted) NSW and Y and X remain in Darwin

If the mother were to move to (omitted) NSW without Y and X it will be a big adjustment for them (just as moving to (omitted) NSW would be). They would have the benefit of living with their father, Ms W and their half siblings. They would miss their mother and Mr G and their new baby sister. They would remain at their schools and would continue to enjoy their extracurricular activities.
Mr R gave evidence that the children’s adjustment will be aided by the father and Ms W. I find that the mother and Mr G have greater capacity to manage the adjustment than the father and Ms W. The mother and Mr G have shown a greater capacity to be sensitive towards the children and the father and his wife. I am satisfied that they will positively encourage the children’s relationship with their father and his family and will sensitively address difficulties as they arise.
Mr R says the mother has qualities to adapt although it will be difficult for her. He does not think remaining in Darwin would undermine her capacity to be positive for the children. It was clear to me that when the mother was giving her evidence she was under enormous stress, which is understandable. I think it is unlikely that the mother will find it viable to remain in Darwin without her partner. I do not think it will become any easier for her to deal with the father and Ms W as they lack the insight to see how their conduct impacts on others.

Legal principles and their application in this case

The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60B(1) provides that the objects of Part VII are to ensure that the best interests of the children are met by:
a)Ensuring the children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests;
b)Protecting them from physical or psychological harm, from being exposed to abuse, neglect or family violence;
c)Ensuring they receive adequate and proper parenting to help them achieve their full potential; and
d)Ensuring that their parents fulfil their duties and meet their responsibilities concerning their care, welfare and development.
Section 65D of the Act gives the court the power to make a parenting order which is defined by section 64.
In deciding whether to make a particular parenting order section 60CA requires that I must consider the matters set out in section 60CC(2) being the primary considerations and section 60CC(3) being the additional considerations.
There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both their parents and the second is the need to protect the children from physical or psychological harm and from being subjected to, or exposed to abuse, neglect or family violence. In this case there is no doubt that X and Y enjoy a meaningful relationship with both their parents and that this will continue regardless of the outcome of this case.
The Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to section 60CC indicates, are consistent with the first two objects of Part VII, as stated in section 60B that the best interests of the children are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence the extent that doing so is consistent with the child's best interest being treated as paramount.
Section 61DA(1) provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children of family violence (section 61DA(2)). The presumption may also be rebutted if the court is satisfied that it would not be in the best interests of the child from the parents to have equal shared parental responsibility (section 61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the child to make an order to equal shared parental responsibility I am then required by section 65DAA(1) and (2) to consider whether to make orders that the children spend equal time and if not equal time then substantial and significant time with each parent.

In this case the parties agree that they should share equal parental responsibility. I am satisfied that that is in the best interests of the children.
For a parenting order to involve the children spending substantial and significant time with a parent section 65DAA(3) requires that it must at least provide for the child to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the child's daily routine and on occasions and events that are of particular significance to the child and for the child to be involved in occasions and events that are of special significance to the parent.
In MRR and GR [2010] HCA 4 the High Court found that section 65DAA(1) requires a court to consider both whether the best interests of a child is served by an order for equal time and that is it reasonably practicable for a child to spend equal time. Both elements must be present in order for a court to make an order for equal time. At paragraph [13] of the judgment the High Court said:
“Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist.12 If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”
The High Court also addressed the relationship between section 65DAA(1) and section 61DA(1) at paragraph [15]:
“Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”
In this case it is agreed that if both parents remain in Darwin the equal time arrangement should continue. If the mother is in (omitted) NSW, with or without the children, it will not be reasonably practicable for X and Y to spend equal time or substantial and significant time with both parents because of the distance and expense.
The Full Court in Goode v Goode (2007) 36 Fam LR 422 mandated that this legislative approach must be followed in all parenting cases.
This particular case has as its primary element the issue of relocation.
In AMS and AIF (1999) 24 Fam LR 756 at 792 his Honour Justice Kirby said:
“[144] ……a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.”
The jurisprudence (see B and B: Family Law Reform Act 1975 (1997) 21 Fam LR 676; Morgan & Miles [2007] FamCA 1230) is clear in that such cases remain to be determined like all parenting matters by considering the best interests of the child in the context of the legislative framework.
In Taylor v Barker (2008) 37 Fam LR 461 their Honours Bryant CJ and Finn J said:
[53] …… when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U & U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.
Their Honours went on to say:
[83] However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or substantial and significant time” with each parent.
In Morgan & Miles [2007] FamCA 1230, Boland J heard an appeal as a single Judge pursuant to section 94AAA(3) of the Act. At paragraphs 79 to 81, Her Honour identified the relevant principles to be taken into account by a judicial officer when assessing competing proposals about where a child is to primarily reside. Her Honour stated:
“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 carefully 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”.
The additional considerations relevant to considering children’s best interests are set out at section 60CC(3). Not all of them are relevant to this case.
The children are young and not mature enough to understand the implications of the relocation issues and the alternatives.
They clearly love both parents and enjoy spending time in both parents’ households. They have a close and loving relationship with their parents, their parents’ partners and their other siblings.
Both parents have taken up the opportunities to spend time with the children and to participate in decision-making for their welfare as well as maintaining the children.
X and Y will face major changes in this case. They will no longer be living in a week about arrangement. They will have to adjust to spending less frequent time with their father, his wife and their step-siblings. They will not be living in the household when their new sibling is born. They will be moving to a new town and attending a new school. These children have been described as resilient and adaptable but nevertheless these are major changes and there are bound to be some adjustment issues for them, as there would have been if they remained in Darwin without their mother. The mother expressed concern about how the father and his wife would address the issue of the mother moving to (omitted) NSW without them if that was the decision she took. Based on how they have dealt with other issues this is of real concern. The mother and Mr G have demonstrated that they are much more capable of dealing with issues of concern for the children in a sensitive and child focused manner. The father and his wife have shown a lack of insight and sensitivity in this. This is a weakness in their parenting but the court should stress that apart from this there are no concerns about their parenting. They clearly love the children and want what is best for them.
The orders agreed to by the parties provide for the children to spend as much time with the father as is reasonably practicable given the distance between Darwin and (omitted) NSW and the costs involved.
Both parents have the capacity to provide for the children’s physical, intellectual and emotional needs subject to the concern I have expressed about the father and his wife with respect to certain emotional issues. Apart from those concerns there are no issues of concern with respect to the parents’ capacity to care for the children.
The issue of making orders which are least likely to lead to further proceedings is not a significant factor in this case. It may well be that in a few years time the mother and Mr G will move from (omitted) NSW because of his (employer omitted) posting. I am of the view that the parents will most likely be able to negotiate new arrangements if need be.

Evidentiary principles in parenting cases

It appears from the manner in which parenting cases are often prepared that many legal practitioners and litigants are under the mistaken belief that the Evidence Act 1995 (Cth) does not apply at all to parenting proceedings.
This is not correct. Division 12A of the Family Law Act 1975 (Cth), section 69ZT is an important provision. Section 69ZT does not exclude the Evidence Act 1995 (Cth) in its entirety, only certain provisions. In particular the Evidence Act 1995 (Cth) provisions about relevance, the general discretion to limit evidence, the standard of proof and judicial notice provisions are not excluded from parenting proceedings.[1] The court must determine what weight to give evidence which is admitted as a consequence of provisions.[2]
[1] Section 69ZT(1) of the Family Law Act sets out the provisions of the Evidence Act which are excluded from Division 12A
[2] S.69ZT(2).
In this case both parties annexed material to their affidavits which the Court can place no weight on. The father annexed material to his affidavit about pollution in (omitted) NSW. The father annexes a series of articles to his affidavit about coal mines in attempt to argue that there is pollution in (omitted) NSW from coal mines and the railway. The sources include newspaper articles. Ms Bowen sought to assert that this information is common knowledge. This is plainly incorrect.
As I indicated to Ms Bowen during the hearing this submission has no merit. The limitations of section 144 of the Evidence Act 1995 (Cth), which addresses common knowledge, is clear. Section 144 states:
(1) Proof is not required about knowledge that is not reasonably open to question and is:
(a) common knowledge in the locality in which the proceeding is being held or generally; or
(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.
It cannot be sensibly argued that either (a) or (b) applies to the issue of pollution in (omitted) NSW. This is not an uncontroversial subject. The documents annexed to the father’s affidavit do not come from authoritative sources which cannot be reasonably questioned. I place no weight on the material annexed to the father’s affidavit. The only way the father could have adduced material or this topic would have been to obtain expert evidence which could have been tested in court. There is no short cut or substitute.
The same applies to the mother’s affidavit with respect to burns units and treatments.

Conclusion

This is a difficult case, as most relocation cases are. Balancing the competing considerations I determine that the mother should be permitted to relocate to (omitted) NSW with the children.
If the mother was to stay in Darwin with the children she would find her circumstances difficult. There would continue to be conflict between the mother, the father and his wife. I find that it is more likely that the mother would have relocated without X and Y because of the difficulties she would face in remaining being separated without her partner and having the additional stress of caring for the baby. The father says he is a support for the mother but that is not the case.
X and Y would be facing big adjustments whether they remain in Darwin without their mother or move to (omitted) NSW. The mother and Mr G are better placed to assist them to adjust to the new arrangement and to positively foster their ongoing relationship with the father and his family.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate:

Date: 26 June 2014

[2014] FCCA 1360

26 June 2014

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Family Law

Civil Procedure

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