Mallahan & Mallahan - [2010] FamCA 631

FAMILY COURT OF AUSTRALIA

MALLAHAN & MALLAHAN

[2010] FamCA 631

FAMILY LAW – CHILDREN – RELOCATION – Where the mother seeks to relocate with the children interstate – Where the father proposes a shared care regime that requires the children remain geographically proximate – Consideration of MRR & GR (2010) 263 ALR 368 – Elucidation of the principles to be applied in parenting matters and under s 65DAA

FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Presence of parental conflict does not outweigh benefit of parental input for the children – Equal shared parental responsibility ordered

FAMILY LAW – CHILDREN – WITH WHOM A CHILD LIVES – Consideration of equal time and substantial and significant time – Where the mother is significantly unhappy remaining in Queensland – Where the expert evidence records and comments on the children’s awareness and concern of the mother’s unhappiness – Orders that the children live with the mother – Order that permits the relocation of the children interstate

FAMILY LAW – CHILDREN – WITH WHOM A CHILD SPENDS TIME – Consideration of reasonable practicability in light of interstate relocation – Where the children will benefit from regular, meaningful time with the father – Orders made providing for block time with the father in holidays and long weekends

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

AMS v AIF (1999) 199 CLR 160
Cowley & Mendoza [2010] FamCA 597
Chappell and Chappell (2008) FLC 93-382
Eddington and Eddington (No 2) (2007) FLC 93‑349
G v C [2006] FamCA 994
Godfrey v Sanders [2007] FamCA 102
Goode v Goode (2006) FLC 93-286
Marsden and Winch (No. 3) [2007] FamCA 1364
McCall v Clark (2009) FLC 93-405
MRR v GR [2009] HCA Trans 316
MRR v GR (2010) 263 ALR 368
Starr and Duggan [2009] FamCAFC 115
U v U (2002) 211 CLR 238

APPLICANT:

Mr Mallahan

RESPONDENT:

Ms Mallahan

FILE NUMBER:

BRC

4040

2008

DATE DELIVERED:

26 July 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

1 February 2010; submissions received 28 April 2010 and 5 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr George

SOLICITOR FOR THE APPLICANT:

Reaburn Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Slade-Jones

SOLICITOR FOR THE RESPONDENT:

Whitehead Payne

Orders

Parental Responsibility

The parents shall have equal shared parental responsibility for the children L born … March 2000 and O born … July 2003 in respect of all “major long-term issues” as defined in the Family Law Act 1975 (as amended).
The parents shall each have, during all such time that the children are in their respective care, parental responsibility in respect of issues that are not “major long-term issues”.

Co-Parenting Arrangements as to Time

The children shall live with, spend time with, and/or communicate with each of their parents for such periods of time, or in such manner, as might be agreed between the parents in writing and, failing further or other agreement, in accordance with the succeeding provisions of these orders.
The children of the marriage L born … March 2000 and O born … July 2003 live with the mother, including upon her relocation to Victoria.
Upon the relocation of the mother and children to Victoria, the children shall spend time with and communicate with the father as follows:
(a)For the whole of the Easter, June/July and September/October Victorian school holiday periods (save, in respect of Easter school holidays, such time shall not include the periods from Good Friday to Easter Monday inclusive);
(b)For the second half of the Victorian December / January school holidays in 2010 and each alternate year thereafter and the first half of those same holidays in 2011 and each alternate year thereafter;
(c) From after school Thursday until before school Tuesday on each of:
(i)The long weekends incorporating the Victorian Labour Day and Queens Birthday public holidays in each year (in March and June respectively);
(ii)Two other weekends nominated in writing by the father not less than 28 days prior to their occurrence and, not less than 21 days apart.
(d)From after school Friday until before school Monday on any weekend upon which the father is in Victoria having first given the mother not less than 28 days notice in writing of his intention to exercise time on any such weekend.
(e)The father shall be responsible for all air fares associated with the time ordered in the Easter, September/October and December school holiday periods together with the time provided for in sub-paragraphs (c) and (d) of this order.
(f)The mother shall be responsible for all air fares associated with the time ordered in the June/July school holidays.
Communication
Save if time is otherwise being exercised by the farther in accordance with the previous provisions of these orders, the father shall be at liberty to communicate with the children:
(a) By telephone:
(i)Each Tuesday and Thursday between 7pm and 8pm;
(ii)On the children’s birthdays between 7pm and 8pm with the father to initiate the call;
(iii)On Father’s Day and on the Father’s birthday between 7pm and 8pm with the mother to initiate the call.
(b)Via internet, email, Skype® and any such other form of on-line communication as may reasonably be requested by the children at all such times as the children might reasonably request consistent with their daily routines and commitments.

Provision of Information about the Children

Each party shall do all such things and sign all such documents as may be necessary or required to:
(a)Authorise each parent to communicate with, and receive communication from, any doctor or health professional of whatever type, whom the children consult, failing which this order shall, of itself, constitute such authority;
(b)To speak to, and receive oral or written communication from, any school or other educational institution attended by the children, failing which this order shall, of itself, constitute such authority;
(c)Keep the other parent appraised of their residential address and telephone contact number;
(d)Notify the other parent should either child suffer any medical emergency, serious illness, or other significant issue affecting either child’s health or welfare, whilst in their care.

IT IS FURTHER ORDERED THAT

Dismissal of Other parenting Applications

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

Other Orders

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4040 of 2008

MR MALLAHAN

Applicant

And

MS MALLAHAN

Respondent

REASONS FOR JUDGMENT

In about July 2006, the parents of L (born in March 2000) and O (born in July 2003) separated after about 11 years of cohabitation. At that time, L was 6 and O was 3.
Significant conflict attended the separation but, commendably, the parties attempted to resolve their differences in a mediation and, subsequently, in respect of parenting issues, by jointly funding and obtaining a report by a consultant Social Worker, Ms C, which was completed on 23 November 2007. (Ms C’s report became Exhibit M1 in these proceedings).
Neither the mediation nor the report produced agreement about parenting matters and, on 7 May 2008, the father filed an Initiating Application seeking orders in the Federal Magistrates Court. Subsequently, in August 2008, the parties agreed to final orders with respect to settlement of property and to interim orders in respect to parenting orders.
Pursuant to the latter, the children resided with their mother and spent time with their father on alternate weekends. The father asserts that, prior to that time, the mother had been reluctant to permit the children to spend time with him, although he accepts that the children spent nine overnight occasions with him in that period.
It is uncontroversial that the orders have been complied with since that time. There has thus been a situation in existence now for nearly 2 years which sees the children spend alternate weekend time with their father and by which they are cared for by their mother for the balance of that time.
In the witness box, the father conceded that he had known “for quite some years” that the mother was desirous of returning to M in Victoria to live with the children. The mother’s mother resides there as do, according to the mother, her “friends” and there is potential for the mother to develop a new relationship in that town. It is situated approximately 2.5 hours drive north of Melbourne, near the Murray River.
That remains the mother’s desire and she seeks orders from this Court facilitating that occurrence. The father seeks parenting orders that the children should spend time with him each alternate weekend, together with each Wednesday night and holiday time. The combined effect of those orders is that the children would need to reside on or near the Gold Coast. Neither party contends that the mother would live geographically remote from the children.
While some more recent evidence suggests that the parties have improved their communication and that the significant conflict between them has abated (at least to some extent), it is plain that the level of communication about virtually all aspects of the children’s care, and the parties’ capacity to communicate about matters relevant to either of them or the children and their inter-relationship with the children, remains very poor.
That factor resulted in submissions being made on behalf of the mother that there should be an order for “sole parental responsibility” (resulting, it was submitted, from the rebuttal of the presumption of equal shared parental responsibility) whilst the father contended that an order for equal shared parental responsibility ought be made.

Procedural History

At the time of the hearing in this matter, the High Court had heard and allowed the appeal in the matter known as MRR v GR but reserved its reasons. (MRR v GR [2009] HCA Trans 316, 3 December 2009).
On 13 April 2010, following the delivery of reasons for judgment in MRR v GR ((2010) 263 ALR 368), correspondence was sent to each of the parties seeking the receipt of submissions arising therefrom. The father replied on 28 April 2010 advising that no submissions were sought to be made, unless such were required in reply to any submissions of the mother. The mother advised on 5 May 2010 that no submissions were to be made on her behalf. Given what the High Court said, in particular, about the source of the court’s power, the parties’ respective positions might be seen as surprising.
The delay between 5 May and the delivery of these reasons is regrettable. But, regrettable though it may be for the parties, it will be clear from the reasons below that the impact of MRR on considerations in all parenting matters requires, in my view, some significant consideration.
I shall attempt to set out my understanding of the principles emanating from the decision of the High Court in MRR in the context of earlier decisions of this Court and what that decision means for a consideration of parenting matters in the Family Court. I shall do so, for the purposes of clarity and completeness, by repeating what I said in Cowley & Mendoza [2010] FamCA 597, delivered a few days ago.

Parenting Orders and “Relocation Cases” - Principles

Parenting orders, of whatever type, are driven by a determination of the best interests of the particular children who are the subject of the proceedings (Sections 60CA; 60CB; 61DA(1) & (4) and 65DAA). The issue of best interests is not left at large. The path to a decision about that issue is signposted by a number of mandatory considerations. Some considerations are marked as having primacy, whilst others are “additional” (s 60CC).
The “primary considerations” have particular importance but, as the word “additional”, used in the following subsection, implies, they are to be considered in conjunction with the “additional considerations”. The proper analysis of each represents not an end point in itself, but a pathway (albeit a mandatory pathway) to determining the best interests of children by according appropriate weight to those considerations relevant to the individual children and the particular circumstances in which they find themselves.
Further, “best interests” is not the application of a theoretical construct but, rather, the practical application of a number of considerations relevant to the individual needs, desires, health and aspirations of the particular children of this particular parenting relationship.
Importantly, analysis of the statutory considerations must also be consistent with the overall objectives of the Family Law Act 1975 “the Act” (s 60B(1)). The statutory objectives are given light and shadow by the principles underlying them – which are also outlined in the Act (s 60B(2)). Together, they represent a number of obligations cast upon those responsible for the nurturing and care of children and rights enjoyed by those children accordingly.
The statutory Objects and Principles are unifying aims, but attempts to meet the Objects, and to accord with the Principles, will vary from parent to parent and child to child. The individual characteristics or idiosyncrasies of parents will invariably mark the parenting relationship. Where parental conflict (particularly significant conflict) intervenes, differences in belief systems, personality, psychopathology, attitude and the like are thrown into sharp focus. The circumstances in which aims – statutory or otherwise – are satisfied, or not, must vary with the individual parents and children and with their particular circumstances.
Decisions about the best interests of individual children, arrived at by weighing those Objects and Principles, and the statutory Considerations are given further statutory direction and specificity by further statutory requirements which:
(a)direct a court to presume (rebuttably – s 61DA(4)) that shared parental responsibility is in a child’s best interests (s 61DA(1)); and
(b)require, consequentially, the court to consider whether an equal time order is in the best interests of the children (s 65DAA(1)); and
(c)if not, require the court to consider whether a child spending “substantial and significant time” (s 65DAA(2) (as defined – s 65DAA(3)) with each parent is in the children’s best interests; and
(d)require the court to consider the extent to which parents have fulfilled their parenting obligations, particularly in the post-separation period (s 60CC(4) and (4A)).
The two requirements earlier referred to, relating to the amount of time children spend with their separated parents, are each governed, in turn, by a consideration of not only whether either is in the children’s best interests but, also, whether each is “reasonably practicable” (s 65DAA).
The determination of “reasonable practicability” is, also, not left at large but is circumscribed by a number of statutory factors, including geographic distance; capacity to implement the relevant arrangements; the capacity of the parents to communicate with each other in the future; the impact on the children; and any other matters which the court considers relevant (s 65DAA(5)).
Ultimately, the court must bring a consideration of all of the statutory matters to a practical and enforceable conclusion in the individual circumstances of conflicted parents who, by definition, cannot agree sufficiently to do so themselves.

The Source of Power

The decision and principles enunciated within MRR are, of course, of very significant general importance but they can also be seen to be of particular importance to the facts of this case. The mother contends for an order for “sole parental responsibility” and seeks to relocate interstate while the father seeks “equal shared parental responsibility” and puts forward a proposal that in practice would require the children to remain geographically proximate to the Gold Coast.
The High Court held in MRR:
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." [emphasis in High Court judgment]
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n 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".
In what might be seen to be a particularly important part of the judgment, the High Court went on to hold:
13. 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 (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (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. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (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.[footnote and citation omitted]

And, later, in another passage which I consider, with respect, to also be particularly important to this case, it was held:
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. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
In my view, it remains the case that, as I said in the earlier decisions referred to:
·A “relocation case” is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.
·A relocation case falls to be determined like any other parenting case: the fact-finding (or value-finding) exercise required by s 60CC is directed toward ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time.
But, other matters there referred to must now be reconsidered. In particular, while factual findings about best interests will drive many of the matters crucial to be considered in arriving, ultimately, at a decision about appropriate orders (for example, whether, in appropriate cases, the presumption of equal shared parental responsibility is rebutted), it is also in my view necessary to make distinct findings about reasonable practicability.
Findings about best interests might be seen to have a predominant relationship with the child; findings about reasonable practicability might be seen to have a predominant relationship with the parents. Writing in the Australian Law Journal after the decision in MRR, Dr Dickey QC has said:
In the majority of cases concerning a child’s future there must be a balancing of the interests of the child with the interests of each of the parents. The interests of the child do not override the interests of the parents; they have to co-exist with them. The function of the court is to balance these interests in a way that best promotes the welfare of the child whilst giving appropriate recognition to the claims and interests of the parents.
(Reflections on MRR v GR (2010) 84 ALJ 296)
The court is bound to consider carefully the proposals of the parties but, in ultimately making parenting orders, is not bound by the parties’ proposals; an obligation exists to formulate (subject to procedural fairness considerations) orders considered to better meet the best interests of the subject children. (See AMS v AIF (1999) 199 CLR 160; U v U (2002) 211 CLR 238). Section 65DAA, as it seems to me, legislatively endorses that approach. The obligation created by the section is an obligation to consider the matters there enumerated - independent of the proposals of the parties – in circumstances where an order provides, or is to provide, for the parties to have equal shared parental responsibility.

The Nature of the Inquiry?

The Full Court said in Starr and Duggan [2009] FamCAFC 115:
36. The Full Court [in McCall & Clark [2009] FLC 93-405] … pointed out that in seeking to address the relevant provisions of the legislation it is inevitable there will be “dual consideration” of some matters. This is so because consideration of the s 60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals. Some of the matters to be considered under s 60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s 65DAA, especially s 65DAA(5).
In the same case, the approach of earlier Full Courts to the manner in which the parenting enquiry should take place was endorsed:
38. … it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCA FC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
·First make findings concerning the relevant s 60CC(3) factors;
·Then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
·Then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
It seems to me that the subsequent decision of the High Court in MRR gives cause to respectfully review at least some of those statements.
While it is plain that the legislation does not, itself, mandate any particular order for the consideration of the prescribed matters, if, as the High Court has determined, s 65DAA contains the power to make parenting orders in the circumstances specified within it, and its provisions contain, as the High Court has said, “… a power which is conditioned much as it is where a jurisdictional fact must be proved to exist…”, it seems to me necessary to first make findings necessary to decide whether the power is invoked: namely, findings about whether an order “is to provide that a child’s parents are to have equal shared parental responsibility for the child”.
That question, in turn, depends upon whether the statutory presumption (s 61DA) applies or, does not apply (s 61DA(2)) or, is rebutted (s 61DA(4)) or, whether one or more parties, independent of the application of the presumption, seek such an order.
Taken together, then, the decision in MRR and the provisions of the Act (as interpreted by the High Court) require the court, as a first step, to make findings so as to determine the question of whether the presumption applies or, independent of that, whether the court should make an order to that effect (either because one or other of the parties seek it, or because, subject to natural justice considerations, the court considers such an order is in the best interests of the children the subject of the proceedings). That decision involves findings about either “family violence” or “abuse”, as each is defined, or “best interests”. (See s 61DA.)

Summary of Principles

The decision in MRR, in combination with the legislative requirements (and bearing in mind the Full Court’s decision in Goode v Goode (2006) FLC 93-286), would, then, appear to me to require a court contemplating the making of parenting orders to:
·First apply a presumption that it is in the best interests of the subject children for their parents to have equal shared parental responsibility in respect of them;
·Next, make findings as to whether any “family violence” or “abuse”, as each is defined, exists;
·Further or alternatively, then make findings, by reference to s 60CC(3) about such matters pertaining to best interests relevant to the issue of whether parental responsibility should be shared equally;
·Determine, accordingly, whether the presumption of equal shared parental responsibility is, as a result of findings about each (or, perhaps, both) of the above matters, respectively, inapplicable or rebutted or, presumption or not, whether such an order should be made;
·If the presumption is rebutted and such an order should not otherwise be made, make findings about best interests relevant to a determination of what ultimate orders are in the best interests of these particular children in their particular circumstances (s 65D; s 60CA; s 65AA). (As the Full Court put it in Goode, the enquiry about best interests is “at large”);
·If the presumption is not inapplicable or not rebutted, or if it be determined that an order for equal shared parental responsibility should in any event be made, the court must (s 65DAA) then proceed to:
oMake findings as to whether the subject children’s best interests are best met by an order for equal time; and
oMake findings as to the matters prescribed in s 65DAA(5), and, as a result;
oMake findings about whether an equal time order is reasonably practicable (that is, in the words of the High Court, make “a practical assessment of whether equal time parenting is feasible”); and
oIf it is not, conduct the same process, but this time with findings directed to a consideration of whether a “substantial and significant time” order (as defined – see s 65DAA(3)) should be made;
·If neither an equal time order, nor a substantial and significant time order, should be made, proceed to determine the orders which the earlier findings point to being in the subject children’s best interests. (s 65D; s 60CA; s 65AA).
It might be thought that, as a matter of logic, if neither party seeks an order for either equal time or substantial and significant time, a consideration of the power to make such an order may become moot. But, that is clearly not so.
First, the court must (subject to procedural fairness) formulate proposals, independent of the parties, consistent with findings about the children’s best interests. (See, eg. U v U, above). Secondly, while, in accordance with the High Court’s judgment in MRR, s 65DAA contains the power to make those orders, the section also plainly casts an express obligation upon the court to consider the exercise of the power to make each such order in the prescribed manner when the precondition to its application is met (viz. an order is to provide for equal shared parental responsibility). That statutory obligation exists despite the fact that, in any given case, neither party seeks an order of either type.
I propose to apply my understanding of the principles just outlined in arriving at orders in this case.

Parental Responsibility

Principles

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

Parental Responsibility – Findings in the Present Case

I propose to make parenting orders in respect of these two young children. Thus, I must apply a presumption that it is in their best interests that their parents have equal shared parental responsibility for them.
The facts of this case permit of the potential finding that one or both parents of the children “has engaged in family violence” and that, accordingly, the presumption “does not apply” (s 61DA(2)).
In that respect, it might be observed that reference to “family violence” is not, where used in s 61DA(2), qualified by any reference to quantity or severity. So, too, the (wide) definition of the term itself (s 4). Thus, potentially, proof of any family violence of any extent or frequency would render the presumption inapplicable.
In her affidavit the mother deposes to obtaining a Protection order against the father in early December 2007. The affidavit and application for the Protection Order refers to verbal abuse and denigration such as the father saying “you are a pathetic mother” or “you are shithouse mother”. The affidavit also refers to what the mother describes as the father’s “controlling and dominating personality” and she deposes to him questioning the children about what she did, where she goes and who she sees.
In her affidavit the mother deposes that the “domestic violence to which I was subjected during the relationship was principally verbal abuse”. She goes on to say, however, that “there were two incidents of physical abuse, the first having occurred when [L] was a baby” (i.e. about nine years or so ago). The incident on that occasion is referred to as commencing with an argument and ending with the father driving over the mother’s foot. The mother deposes: “I am sure that his actions were deliberate”. The second incident of physical violence occurred “approximately twelve months prior” to separation – that is about five years prior to the trial. The incident is described in this way by the mother:-
Again we had an argument. I was standing against a wall when [the father] threatened to hit my head. He was holding his fist at my face in a menacing way and I moved my head away from his hand and he then struck the door with his fist.
“Family violence” is defined in s 4 of the Act as follows:
Family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the persons family that causes that or any other member of the persons family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal well-being or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
I am satisfied that behaviour of the type asserted by the mother occurred in the manner in which she deposes.
The mother uses the expression “domestic violence” in her affidavit; the Act uses the defined expression “family violence”. The Act’s definition which, it might be noted, includes threatened as well as actual conduct; is applicable to conduct directed towards, not only a party, but members of their family; which extends not only to fear, but also apprehension, and to that person’s “wellbeing” as well as their safety, indicates a clear legislative intention to embrace, by the defined term, a wide range of conduct broader than that which might meet lay definitions or concepts of “violence”.
The conduct deposed to, within the context deposed to, is, in my view, sufficient to meet the Act’s definition of “family violence” in that, objectively viewed, it can be seen to have caused reasonable apprehension on the part of the mother about her wellbeing.
Accordingly, in my view, the presumption of equal shared parental responsibility is rendered inapplicable by reason of family violence within the meaning of s 61DA(2) of the Act.
However, the fact that equal shared parental responsibility is not presumed does not mean that the Court ought not ultimately make a finding that the parents should share parental responsibility equally. Any such order is, by definition, directed toward the future and marks an important aspect of the parties’ post-orders co-parenting relationship.
Considerations such as those earlier referred to, including what order in respect of parental responsibility might best promote the best interests of these children in the future, come into play in deciding whether, notwithstanding the inapplicability (or rebuttal) of the presumption, nevertheless might point to an order for equal shared parental responsibility.
As has earlier been pointed out, the Act requires of those who are to share parental responsibility (whether equally or not) specified consultation. As the Full Court has pointed out, it is open to the Court to find that “the track record of the parents [is such that it] would suggest a high probability of deadlock, which would inevitably lead to further proceedings.” So, too, the circumstance of pervasive, and apparently intractable, conflict can point to the process of consultation and endeavour needed to reach agreement, as required by the Act, being productive of yet more conflict and consequent strain and stress for the children; something surely contrary to their best interests.
Yet, subject to specific court order to the contrary, it needs to be borne in mind that the statutorily-required process is in respect of “major long-term issues”. There should, it seems to me, be good reason why it is in the best interests of the children for a finding that both parents ought not equally and jointly be involved in the sort of major decision embraced by the definition.
It can readily be envisaged that high conflict can be a good reason. But, I think it is important to remember that the presence of conflict and communication issues ought not necessarily be taken to mean that one party must be excluded from the decision-making process in relation to the children. So much ought be clear from the reasons earlier expounded.
Here, the communication issues and persistent conflict is not in doubt. But, these are two intelligent people who both clearly love their children and want to do what is best for them. There has, in the recent past, been co-operation between them and compliance with agreed interim parenting orders for some time. The children love their parents and were recorded by the report writers as responding well to both parents and displaying attachments to each.
Given the nature of the past co-parenting regime, whereby the mother shouldered the primary care-giving role while the father shouldered the primary “bread winning” role, it is understandable that the children were seen to have stronger displays of attachment to the mother. This does not, however, necessarily detract from the children’s attachment to the father; rather it reflects the manner in which this particular partnership organised their affairs and, consequently, their pre-separation co-parenting.
The eldest child, L, is recorded by Ms C in her report dated 23 November 2007 (Exhibit M1) and Ms T in her report filed 18 September 2008, as being aware of the parental conflict and, more specifically, as being highly attuned to the mother’s unhappiness. Both report writers noted that L is aware of age-inappropriate issues of conflict and poor communication.
The parties are, however, capable of communicating about the children when needed. Ms T records the mother as saying that communication about the children is “short and sharp but it gets said”. I consider it likely that communication between these parties – while understandably difficult in this post-separation period, especially in the shadow of litigation – will improve once there is resolution about parenting orders (and, specifically, “relocation”).
It seems to me that these children will benefit from each of their parents having input into the major long-term issues affecting them. I am not satisfied that the removal of one parent’s input and perspectives in the important issues embraced by the concept of ‘major long term issues’.
On balance, I consider that it is in the children’s best interests for their parents to have equal shared parental responsibility for major long-term issues and I will so order.
I will also order, for similar reasons, that both parties be authorised to receive all such school and medical reports from any and all treating practitioners and schools attended by the children.

The Parties’ Proposals In Context

Consistent with the analysis earlier outlined, it falls to be determined whether an order for equal time is in these children’s best interests and reasonably practicable. First, though, it is necessary to carefully consider the reality of the parties’ proposals.
Mr George, Counsel for the father, argues that the mother’s preparedness to agree, in the event that the children continue to reside on the Gold Coast, that they should spend time with their father on alternate weekends and each Wednesday (as well as school holidays and other special day times) is “a concession” by her that such periods of time are in the children’s best interests. So much is, in my view, true.
However, the argument goes further. It is contended that, by making that “concession”, the mother is conceding that the nature and frequency of the time thereby allocated is in the children’s best interests rather than the orders for block periods of time during school holidays that will be the predominant form of regular time enjoyed by the children with their father if they are to live with their mother in Victoria. I do not accept that argument.
The argument posits the mother’s position as, effectively, an alternative proposal to that for which she primarily contends. But, that is not the case. Rather, the mother says (in effect) that, if the Court makes an order which she plainly considers to not be in the children’s best interests (that is, them remaining on the Gold Coast), then in that situation the children’s best interests are met by orders for the time earlier described.
Gaudron J held in U v U (2002) 211 CLR 238 (at par 32):
It should be emphasized that the proposal that [the child] live with her mother in Australia is the father’s alternative proposal and not, as the Trial Judge stated, the mother’s.
Her Honour went on to hold in that case (at par 37):
It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated. That is so whether it is the mother or the father who wishes to relocate. So much was made clear in AMS v AIF .
In AMS v AIF (1999) 199 CLR 160, Hayne J held:
[215]… to put the matter another way, what were the issues for decision? In particular, was the court to assume that one party will move his or her principal place of residence; was the court to assume that this may happen; was the court to decide whether it may happen? [emphasis in original]
[216]An important, probably essential, step in the inquiry into who should have custody of, and access to, the child is to identify where the custodial parent intends to live, for that will determine where the child lives and affect what contact the non-custodial parent can be expected to maintain with the child. But, that is not to say that it is for the court to decide where the custodial parent may live: that decision is to be made by the parent.
Earlier, his Honour, in emphasising that the question for the court in cases of this type is neither whether a parent is, or is not, permitted to move nor whether a parent has, or has not, shown good reason to move, said:
[217]… Of course, the decision of a parent who is about to move and who seeks custody may well be affected (often it will be determined) by whether he or she will have custody of the child if that proposed move is carried out … the proper focus is which is better for the child – to be in the custody of the father (in Perth) or to be in the custody of the mother (in Darwin)
His Honour went on to say:
[219]The complexity and difficulty of the inquiries which must be made is increased when, as was the case here, a parent’s wish to move is expressed conditionally – I will go unless I cannot then have custody. It is more difficult and complex because there are then three possibilities for consideration …
Here, there are, in truth, two competing proposals although the inquiries need to embrace an attitude of the mother as just described by Hayne J. As has been seen, the father’s proposal is that the children should live with the mother and spend time with him on alternate weekends, together with each Wednesday night and holiday time, thereby necessitating, as a matter of practical reality, that the children live at, or near, the Gold Coast. (As will be seen, that proposal altered to foreshadow alternate-week time after a period of months.)
The mother proposes that the children should live predominantly with her in rural Victoria and spend all but a weekend of the Easter holidays; all of the June/July and September/October school holidays and one half of the Christmas school holidays with the father. (These proposals also varied somewhat in the witness box from those which appeared in the Case Outline document filed on 1 October 2009).
The mother’s proposal also provides for time “at any other time that the father was visiting Melbourne providing that he gives the mother 28 days prior written notice of his visit to Melbourne” and the proposal also provides for telephone communication during the week and on the children’s birthdays and Father’s Day.
The mother’s Case Outline also sought an order that “the father be responsible for the payment of all air fares associated with the children spending time with him”. Counsel for the mother sought to make it clear that the order just quoted was sought on the assumption (and expectation) that the father would apply for a consequent reduction in his Child Support obligation based on the cost of travel. The mother’s position is that this would, in all likelihood, not result in a “dollar for dollar reduction” in child support and the mother would thereby, in effect, contribute to the costs of travel by receiving a reduced amount of Child Support.
The father initially proposed the orders as earlier outlined, but his position became somewhat less clear during the course of his oral evidence, particularly when questioned by me. When seen by Mr F for the purposes of a Children and Parents Issue Assessment Report (Exhibit 1 in these proceedings), Mr F records of the father that “in the long term, he hopes that the children can live in a shared arrangement between the parents”. That is consistent with the position adopted by the father in the witness box.
Although seeking the specific orders to which I have made reference, the father said, when pressed as to a possible timeframe, that “within about six months” he would like the children to be living in a week-about arrangement with each parent.
The Court is, of course, not bound by the proposals of the parties and is bound to consider any alternative proposals considered by the Court to be in the best interests of the children (subject to natural justice considerations). (See AMS v AIF (1999) 199 CLR 160.) The Court canvassed in submissions the possibility of an alternative proposal that would see any move by the mother postponed to a future time. The Court sought submissions on whether, in particular, such a proposal ought be considered in light of O’s current age and stage of development.
Mr George submitted that the Court had no evidence before it about the children’s potential for maturation and how their levels of maturity and developmental needs might change over time. Thus, it was argued, it is not possible for the Court to arrive, on the evidence before it, at a decision about any particular future time being in the best interest of either child if it was considered otherwise that the best interests point to a move.
In a similar vein, it seems to me that the evidence before the Court is insufficient from which findings might be made about the potential advantages or disadvantages of a move at a future time (the specification of which is, necessarily, somewhat arbitrarily selected).
In my judgment, no alternative proposal to that postulated by each of the parties commends itself in the children’s best interest on the evidence before the Court.

Best Interests and Time

Basic Central Findings

The central issue to be resolved in this case involves an analysis of factors that find clear reflection in the Considerations which the Act mandates must be taken into account in arriving at a decision about best interests (section 60CC), which, in turn, need to be examined in the light of the Objects and Principles of the legislation (section 60B).
Although there has been profound conflict between the parties in this case and there has been limited capacity to co-operate and communicate with each other in the years since the parties separated, it is nevertheless the case (as the respective positions of the parties themselves amply demonstrate) that each of the parties accept – at least intellectually – that these children deserve and need a meaningful relationship with their co-parent and that they will benefit therefrom.
Each of the parents concedes that the children are closely attached to, and love dearly, each of their parents and would seek to spend time with the other parent to the children’s benefit.
“Meaningful relationship” is not defined in the Act. In evidence, the father was asked, in effect, whether he accepted that the quality of the relationship between he and the children was more important than the frequency. He replied, “They go hand in hand”. Whilst I may not necessarily agree with the words used by the father as being right in all cases, it nevertheless seems to me that there is plainly a relationship between quality and quantity and, indeed, a relationship between regularity and quantity.
The Full Court said in Eddington and Eddington (No 2) (2007) FLC93‑349:
Clearly the amount of time which children spend with the parent potentially impacts upon the quality or significance of that time. In our view the time which children would spend with the appellant pursuant to the trial judge’s orders, the duration of such period and the frequency at which they would occur are likely to impact adversely upon the significance of the time which the children would spend with the appellant.
There is a nexus between the substance and the significance of the time which the children would spend with the appellant. Beyond noting that the legislative requirements are conjunctive, we need say no more, other than to stress that each case turns on its own particular facts and circumstances …
The court perceives that an abundance of substance can compensate for a deficiency of significance and vice versa.
In McCall v Clark (2009) FLC 93-405, the Full Court approved a statement of Bennett J in G v C [2006] FamCA 994 to the effect that the notion of “meaningful relationship” as used in s 60CC required a court to “evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”. The Full Court held that “the court should consider and weigh the evidence at the date of the hearing to determine how, if it is in the child’s best interest, orders can be framed to ensure the particular child has a meaningful relationship with both parents …” (at par 118).

That accepted, it also needs to be borne in mind that “… what the legislation aspires to promote is a meaningful relationship, not an optimal relationship” (per Kay J, Godfrey v Sanders [2007] FamCA 102). And, a differently constituted Full Court in Marsden and Winch (No. 3) [2007] FamCA 1364 held, per Warnick & Thackray JJ at par 77, that whilst this primary consideration:
… should be accorded particular importance in determining what order will best promote the interests of the child” and is “of the utmost importance … in determining [that] outcome…” it is necessary to “…take into account all of the relevant considerations identified in the legislation, giving each of them such weight as … thought appropriate…”.
Issues relating to family violence have been canvassed earlier. The Protection Order taken out by the mother against the father expired in December 2009. The mother deposes to an aggressive, and at times dictatorial, means by which the father deals with conflict, and his relationship with the mother, insofar as the children are concerned.
That said, the evidence before the Court is that there has been an improvement in that communication. Significantly, as it seems to me, the mother does not suggest anywhere in her material that the orders which she proposes, either in the event that the children reside with her in Victoria or on the Gold Coast should be impacted by assertions of past family violence to the extent that, for example, time with the father should be reduced as a result or that there should be restrictions placed upon him in any orders for time.
It is plain that the nature of the relationship between the children and each of their parents is a closely attached one. Whilst there is little specific evidence about the nature and extent of the attachment between the children and each of their paternal and maternal grandparents, there is little doubt that the tenor of the evidence is to the effect that the children enjoy and seek to maintain an appropriate relationship with each of their grandparents.
In that respect, if the children were to reside on the Gold Coast, there is a significant geographic separation between them and their maternal grandparents. If they were to reside with the mother in Victoria, precisely the same geographic separation would exist between the children and their paternal grandparents.

Capacity and Immaturity

The Act requires the Court to consider (among other things) the “maturity … of either of the child’s parents…” as well as the “capacity of each of the child’s parents … to provide for the needs of the child, including emotional and intellectual needs”.
As I said during the course of the hearing, each of the parents strikes me as significantly immature. The father’s immaturity manifests itself, in my view, by his erstwhile significant incapacity to deal with (the admitted difficult) post-separation period in a calm, considered and adult way.
The evidence is redolent of the father dealing with conflictual issues in a bombastic way. That is rarely of assistance in co-operative co-parenting. Parents are rarely at their best in their attempts to co-parent young children in the immediate aftermath of separation. However, children have a right to expect that their parents each aspire to calm and considered maturity in their attempts to deal with that difficult situation.
The mother, too, strikes me as being significantly immature. The evidence is redolent of a very needy person who, upon the breakdown of her relationship, seeks to return to be close to her mother so as to be provided with her support.
The mother presents, on the evidence before me, as a person who somewhat idealised marriage with the father and derived, in a somewhat dependent way, emotional succour from the relationship. Its end provides the mother with a neediness which, in my view, she sees being fulfilled in the move to Victoria.
Ms T puts it this way in her Family Report:
44.Whether a move to [Victoria] is a solution to [the mother’s] inability to cope is uncertain. In the short term, she would almost certainly feel better as she believes this is the answer to her unhappiness. It is difficult to know of [sic] this would be sustained however, as she has not lived there for some years. It will not resolve her disappointment with her marriage breakdown, and will not remove the need to deal with [the father] on a long term basis. [The father] spoke about [the mother] “bickering” with her father during visits there previously …
It seems to me important to take into account, as a significant matter, that loving and committed parents (as I assess each of these parents, in their own way, to be) will find it very difficult to accept not only the separation from their children consequent upon a separation but, also, a diminution in the capacity to spend regular time with them consequent upon significant geographic separation between the parents.
That said, statements by the father in the witness box, troubled me in terms of his maturity and consequent capacity to consider the children’s interests independently of his own disappointment and the potential stress emanating from a geographical separation from them. For example, in the context of being asked about whether he had considered, or would consider, relocating to Victoria himself in the event that the children lived there, he indicated that he had not, saying that “the children were born here” and that “they live here”.
In a similar vein, he indicated that he had not given consideration to sharing in the payment of travel between Victoria and Brisbane in the event that the children lived with their mother in Victoria, because “it was the mother’s decision” to move there and “she should pay”.
In that latter respect, attention was directed in both cross-examination and addresses to the issue of whether the father could move to Victoria in the event that the children were living there with their mother. That line of inquiry is a common one in cases of this type. It can be seen, perhaps, to have originated in statements made by Hayne J in U & U (2002) 211 CLR 238 at paragraphs 170-176:
170.What have come to be known as "relocation cases" present difficult questions. Much of that difficulty stems from the fact that to take a child from the place where one of the parents lives (and, in some cases, works) to some distant place will, if the other parent does not move, necessarily affect the way in which the child's relationship with that other parent can be maintained and allowed to develop. It follows that the needs and the wishes of each parent and the needs of the child (and, if of sufficient age, the child's wishes) all bear upon the question to be considered by the Family Court. In the end, as the Family Law Act 1975 (Cth) ("the Act") makes plain, the Family Court "must regard the best interests of the child as the paramount consideration", but that does not deny the fact that there are at least three persons who will be affected by the order that is made: two adults and the child. And very often, of course, there will be other relatives of the child whose contact with the child will be curtailed if the child lives in one place rather than another.
171In these circumstances, it would be quite wrong to treat the decision that is to be made as confined to a choice between whatever may be the particular "proposals" that the parents may make for the residence of, and contact with, the child. So to confine the inquiry would, in this case, have required the Family Court to ignore admittedly relevant evidence that was led about what the mother would do if it were decided that the child should live in Australia rather than India. More fundamentally, it would confine the Court's inquiry to what the parents suggested would be in the best interests of the child, regardless of whether those suggestions were informed, even wholly dictated, by the selfish interests of one or other of the parents. To confine the inquiry in this way would, therefore, disobey the fundamental requirement of the Act that the Court regard the best interests of the child as paramount. Those interests may, or may not, coincide with what one or both of the parents put forward to the Family Court as appropriate arrangements for residence and contact…..
…
173In this case, there were only three outcomes which were raised by the parties in the proposals which they made and in the way in which the matter was conducted at trial. Put shortly, and incompletely, those three outcomes were that the child would reside with the father in Australia, with the mother in India or with the mother in Australia. All of those outcomes assumed that the father would remain in Australia.
174There may have been some sufficient and compelling reason for the parties to make that assumption and to conduct the litigation on this premise. But neither the premise nor the reasons for adopting it were explored in evidence or in argument in the courts below and therefore these matters could not be tested or examined in this Court. The premise is not one which, in relocation cases, should be accepted as a matter of course.
175When one parent (for whatever reason) wishes a child who is, or is to be, resident with that parent to move to a place distant from the other parent, it should not be assumed that that other parent cannot, or should not, contemplate moving to be near the child. There may be (and for all that is known, in this case there was) compelling reason for that other parent (here, the father) not to move, but it would ordinarily be expected that these reasons would be explored in evidence and the validity of any assumption that the other parent will not move would be examined. Just as, in this case, the mother was asked what she would do, if she could not have the child reside with her in India, so too it might have been expected that the father would be asked what he would do, if the mother were to have the child reside with her in India. Such questions should not be treated as mere forensic tests of parental devotion, to which only one answer is seen as being satisfactory proof of being a loving parent. Rather, they are no more than a prelude to a deeper inquiry about where the best interests of the child may lie and what arrangements will best serve those interests.
176It is now recognised as self-evidently true that, apart from some cases of abusive relationships, children benefit from the development of good relationships with both their parents. The right to know and be cared for by both parents and the right of contact on a regular basis with both parents are said to be principles underlying the objects of Pt VII of the Act. If effect is to be given to those principles, it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them….. [underlined emphasis added in each case, footnotes omitted].
I do not consider the father’s proposals should be judged to be “bad” or “not child-focussed” by reason of an attitude, understandable in my view, that he wishes to maintain his current employment (which he has held for nine years) and place of residence on the Gold Coast, particularly in circumstances where he has his family close.
Nor, in my view, should the mother’s proposal to move to Victoria be considered “bad” or “not child-focussed” by reason of her desire, considered by me to be understandable, to move to Victoria.
The point is, as it seems to me, to not assume that one party can’t, or won’t move, (or, for that matter, can’t or won’t stay) when assessing the proposal of the other party to move.

Evidence of the Report Writers

It needs to be remembered that the Report prepared by Ms C was based on interviews conducted in November 2007 at which time L was about seven-and-a-half and O about four-and-a-half.
Ms C describes the mother as claiming “to have felt saddened and distressed since the separation and reportedly relies heavily on her mother for emotional support. She has visited [Victoria] with the children every school holiday since the couple’s separation”. In my view, the description there of the mother is as applicable now as it was in November 2007.
The father told Ms C that the mother was “a good mother who cares well for their children. His only criticism is that she tends to yell at times”.
The father met Ms S in approximately July 2006 and in earlier material filed by him and in his conversations with the report writers, described the relationship with Ms S as intended to be permanent. Accordingly, until about six months ago when the relationship ended, Ms S was perceived as being an important part of the nurturing of the children in conjunction with their father.
Plainly, that is no longer the case given the end of the relationship between the two. It is to be observed that Ms S had (in 2007) a 12-year-old son who would also have formed part of that environment and who, in the approximately three years of the continuation of their relationship, would (or should) have been a consideration.
The father conceded to Ms C that his heavy work commitments have, for the last nine years or so, involved him commencing work very early in the mornings. Commonly, in the early part of the relationship between the parties, the father’s work involved him opening two hotels. The mother, as a result, has been the person who has primarily cared for the children in terms of time. The father’s mother was involved in the care of the children on those occasions when the mother worked part time.
In November 2007, the father told Ms C that he was hesitant about the children “[going] back and forth between parental homes on a week-about basis and he preferred if they spent every weekend with him along with some mid-week time”. Ms C thought of the father that he acknowledged “being unprepared for the children at present and he did not have sufficient clothing and school uniforms. He anticipates his time with the children increasing when he is able to have a more stable environment”.
It should be pointed out that this is, in my view, not a criticism of the father but, rather, a reflection of the historical role that the mother and the father played in the children’s lives pre-separation, with the father accepting the predominant role of working remuneratively for the family’s benefit, with such employment involving particular considerations with respect to when it occurred.
The mother told Ms C that she “pines” for her mother and referred to the mother becoming “tearful” when disclosing her feelings in this regard.
The mother told Ms C that she remained angry and was struggling emotionally with the end of the relationship. Ms C comments that the mother was “grieving the end of their marriage and rates the impact upon her to be as high as a Level 8 on a ratings scale of 10 and says:
It still hurts to come to terms with the fact that our family unit is no longer intact. She nevertheless adds that reconciliation is now out of the question. She describes how she finds it difficult being on the Gold Coast and that her daughters are the only reason that she gets out of bed each day.
An issue of concern flagged by Ms C (and also by Ms T) is the extent to which two young children (and in particular, L) have, by reasons of the things they have said, appear to be taking some responsibility for the mother’s emotional well-being. The father expresses this as a suspicion that the mother has been “coaching” the children to say things to the report writers.
I reject the assertion that the mother has “coached” the children in the sense that she has provided to them a “script” for them to use when speaking to the report writers. However, there seems to me to be little doubt that the children (and L in particular) have “picked up on” the mother’s emotional state and that the mother has (in my view, inappropriately, given the ages and stages of maturity of the children) discussed age-inappropriate matters relating to her emotional well-being with the children. A good example is provided in the report of Ms C:-
[L] states that she would be very happy if the Judge permitted her to live in Victoria. She thinks [O] would also be happy. ‘Mummy has been wanting to go since they broke up. I know because she has been crying. She only talks about it to her Mum.
When Ms T later saw the family, she reports of this issue as follows in respect of the things L said:
When asked what she would wish for if she could change anything, [L] said that she wished she could live in [M] ‘because my family is all down there – see Dad on holidays or maybe have a few days off school. If she cannot move there, [L] said ‘The rest of my life would be sad’. She thought that if they moved, then her uncle and auntie who live in [Brisbane] would move too. [L] was aware that her mother wanted to move, saying that her mother told her she would like to move there. She said that her mother was sad sometimes and that ‘she cried this morning and yesterday because she was nervous to see what would happen’. [L] said that it makes her feel ‘sad’ and that she ‘tries to be funny – learned it off my friend [A]’. When asked if her father was ever sad, [L] replied, ‘Not that I have really heard or seen’.
Ms T goes on to say:
40.The children seem to be doing reasonably well at the present time, and generally appear to be happy and bright children who responded in a positive fashion to both parents. [L’s] comments about [M] and also her mother’s sadness appear to echo the ones expressed in the earlier report. This is quite concerning as [L] is still taking responsibility for her mother’s well-being. She is still not mature enough to have formed a reasonable opinion independently about her future in [M] and is still trying to make her mother happy by being funny. She sees her mother as being needy but not her father. Children should not assume this type of responsibility as it affects their sense of security and makes them feel inadequate.
41.[The mother] spoke about the move and said that she had been dealing with this by keeping her feelings of sadness away from the children. This has clearly not been the case, even though she may have made genuine attempts to do so …
Ms C had emphasised her concerns in that respect in the report prepared by her some 12 months previously:
75.It is [L’s] belief that the hardest thing about her life at the present time is her mother’s crying and ‘I try to make her happy. I try to tell her funny jokes’. She believes that the best thing about her life is having good friends in both Queensland and [M].
In expressing her ultimate opinion, Ms C said:
88.At the age of seven years, [L] is not of sufficient maturity to comprehend the full implications of any expressed views. Her understanding of a future life in [M] appears to reflect her mother’s expressed views. Her comments indicate that she is cognisant of her mother’s sadness and takes responsibility for her emotional wellbeing by trying to make her happy. It is not in her best interests to assume this responsibility …
I was also struck by the similarity in ultimate opinions expressed by Ms C and by Ms T some nine months later. Ms C says:
86.[The mother] invites the understanding that she feels displaced socially and misses contact with her extended family members and friends. She has not been clinically diagnosed with depression through official means, however her information suggests she has struggled to cope and she has looked for external support when she sensed her own internal resources were insufficient for her to cope. Her role in life has been defined by family relationships with her husband and children and she therefore felt sad when replaced in her husband’s life.

Comments by Ms T at paragraph 44 of her report have been quoted in an earlier context. They echo the concerns expressed by Ms C that the mother’s hopes and expectations of M may not be matched by its reality.
It should not be thought that concentration on those matters, seen through the parents eyes, are without impact – and significant impact – on the children. For example, Ms C opines:
94.There is a risk that the children will experience a concealed disruption in their attachment relationships with their mother if she is required to remain on the Gold Coast, and continues to feel sad and unsupported. Should this occur, it is possible her lack of emotional availability may represent a threat to the children’s confidence in her ability to respond to their needs. [L] in particular is likely to be disadvantaged. She may continue to assume responsibility for her mother’s emotional wellbeing.

The Important Issue of Change

The opinions of Ms C and Ms T are somewhat at odds when it comes to the ultimate conclusion arising from the matters discussed by each of them (many of which are common to each report).
Whilst Ms C identifies the risk to the mother–child attachment in the paragraph quoted above, she goes on to say:
96.The report offers that for [the mother] to relocate would not represent a significant relationship challenge for the children in that it is not significantly different to their experiences of care to date. Both parents agreed that the mother has been the children’s primary caregiver while [the father] fits his parenting opportunities and responsibilities around other commitments. For these reasons, while they are likely to experience some disruption in the father/child relationship, they are likely to adjust to gaps in their relationship opportunities with their father. Their reported knowledge is that they may miss contact with the paternal grandparents with whom they appear to share loving relationships.
97.In relocating to [M], the children are likely to have a happier, more emotionally available mother along with relationship opportunities with extended family members. Should her account be correct, [the mother] will have better employment options along with cheaper housing.
By way of contrast, Ms T, while identifying similar issues and concerns to those identified by Ms C, is of the view that:
42.The children’s relationship with their father will change if [the mother] were allowed to move with them to [M]. Even though the children may be old enough to remember their father from one visit to the next, children who have had a close relationship with a parent still experience a sense of loss which can affect them in later life as well as immediately. Also, [O] is still only five years old and therefore needs more frequent reminders of a relationship than an older child. Some of the adjustment of the children will depend on [the father’s] ability to keep the relationship with the other parent alive and promote it to them. From both parents’ accounts, the relationship between them is hostile and [the mother] views [the father] as trying to control her. It therefore seems likely that [the father] would tend to limit rather than create occasions for communication either with herself or the children.
After referring to her concerns about a move to M being “a solution to [the mother’s] inability to cope”, Ms T provides the opinion:
45.Given the uncertainty of a positive outcome [for the mother of a move], and the effects of a move on the children’s relationship with their father, it is recommended that the children and [the mother] remain in the Gold Coast area.
Consequent upon the delays experienced in the final determination of this matter in the Federal Magistrates Court, the family was referred to the then Family Consultant, Mr F, pursuant to this Court’s Child Responsive Program.
He saw the children in July 2009 and, as is plain from the Children and Parents Issues Assessment authored by him, was acutely conscious of the fact that L had “now been interviewed three times, by three different experts”. He recommended that no further assessment take place.
His Children and Parents Issues Assessment became Exhibit 1 in the proceedings. Themes already referred to in the early reports were also present in Mr F’s assessment, resulting from his conversations with L. He assessed L as having “no developmental concerns” and as being a “well spoken and … stimulated and bright child”.
Mr F comments upon something which is, to my mind, plainly obvious from the reports of Ms C and Ms T, namely that the children have, in the past, seen overt conflict between their parents. Mr F says; “Quite clearly, a number of [L’s] comments suggest she saw and heard things from her parents that were well beyond her. She is left blaming her father for the parental separation”. Mr F assesses L as being “quite sensitive about her parents’ conflict and … wants them to be on friendlier terms”.
The issue identified by both Ms C and Ms T of L taking responsibility, at least in part, for her mother’s emotional well-being, is evident again in the assessment undertaken by Mr F. He says:
[L] wants to live in [M], because “it is smaller and the school looks nicer”. I asked what might be hard about living there and she said, ‘Maybe that dad would say, I can’t believe you won, and all that. But then again, Mum’s just doing this all for us. It’s what we want. If she stayed on the Gold Coast, she told me she would be sad because ‘Most of my friends are in [M]. She said her mother too would be sad because ‘She really wants to go to her Mum and Dad …’. I asked her if she worried much about these things and she said, ‘I really worry about Mum’.
Mr F reports the father:
“acknowledges[ing] the possibility that [the mother] might be happier and more effective as a parent if she were to live with the girls in [M]. However, he does not see this as outweighing the need for the girls to spend regular, frequent time with him and for him to be more involved in their day-to-day lives … [the father] is also concerned on the basis of past concerns that [the mother] will not do enough to encourage the girls’ relationship with him from a distance”.
Ultimately, Mr F’s assessment is that:
[the parents] have experienced a degree of post-separation conflict that has played out in front of their children. The effect is more pronounced in [L], who is somewhat aligned with her mother. [L’s] stance is, in my view, multi-factorial and both parents have a part to play in this. It is most commendable that the parents appear to have turned a corner on this type of overt, intense conflict as it is these types of behaviours that would tend to produce detrimental outcomes for the children.
In terms of the children’s views, Mr F’s opinion is:
From a developmental perspective, [L] and [O] are not in a position to be able to have a clear understanding of the long-term consequences to them and their parents with regard to relocation. Their comments and general stance, however, suggest that there will be little emotional adjustment for them if the Court orders that they can relocate to Victoria.
In a similar vein, Mr F is of the view that:
[L] and [O] are of an age where they ideally develop and maintain meaningful relationships with a caregiver if they are spending regular, frequent and diverse types of time together. Pronounced distance causes inherent limitations to such structures. If the Court allows relocation, it should in my view carefully consider structures that allow the children to spend as much time as is feasibly possible with their father. This may include most of the holidays and at least one weekend a school term. Communication should be well structured and strongly promoted by the mother.
Despite references in each of the reports of Ms C and Ms T to the, at times, tearful appearance of the mother, and the acknowledged position of the mother that she would be sad if she is unable to move with the children to Victoria and feels that she would be unable to cope, the mother has received no formal diagnosis of depression. Despite a recommendation in an earlier report that she receive counselling in respect of her issues, she has received no such counselling.
Whilst an attempt was made to, in effect, criticise the mother for this, the mother explains it by saying that she has made her General Practitioner aware of all of the issues discussed in the reports, including her continued sadness and feelings of inability to cope associated with her continuing to reside on the Gold Coast and the breakdown of her relationships.
She says, and I accept, that the doctor has determined that it is not appropriate to prescribe anti-depressants (something which, in any event, the mother does not want because she has observed adverse effects in others who she knows take them) and the doctor has not recommended counselling.
I consider the mother’s approach, at least to the latter, is more explicable by her considering that a move to Victoria will, in effect, “cure all her ills”, but I am not prepared to make a finding critical of the mother in failing to avail herself of that counselling. Ultimately, these are matters of personal choice based on a multiplicity of considerations, not the least of which are logical positions (even if, perhaps, misplaced) with respect to the utility of counselling.
Whilst there has been some focus on the position of the mother, it ought not be forgotten that the father, too, is likely to be upset by a decision that would see his children living with their mother in Victoria for most of the time.
First, I have no doubts (nor is it contended otherwise) that the father dearly loves his children, would like to spend every day with them if he could and will miss them desperately if they live in Victoria. He told Ms T that he was “petrified” that if the mother went to Victoria that he would lose contact with the children. He certainly did not want to “be a holiday father”.
Ms C recorded the father as being desirous of an ‘equal time’ arrangement but noted that:
…[the father’s] application for equal time with the children does not represent equal time with their father, who is looking toward others to supplement his parenting responsibilities. This would seem to replicate the pre separation pattern in which others are the direct carers….
I note, again, this observation not as a criticism of the father but as recording the reality of the erstwhile care arrangement for the father given his work commitments.

Findings as to Time

Best Interests and Equal Time

It is plainly in these children’s best interests to ensure a meaningful relationship with each parent continues to develop. However, the ongoing hostility between the parents and the fact that L is very aware of – and affected by – the emotional impact upon her mother are two pertinent factors that lead me to conclude that the best interests of these children are not best met by an order for equal time with each parent.
The report writers record that L has placed upon herself the responsibility and concern of being a ‘buffer’ to her parents’ conflict, being especially concerned to protect her mother’s emotions. As O matures, I am sure that L – either expressly or implicitly – will share these sorts of concerns with her little sister.
To have the children moving between their father’s and mother’s households in the manner that such an order suggests will, in my view, likely heighten the children’s feelings that they need to either appease each parent (particularly the mother), or hide things they fear may upset either parent. Clearly, this is not in the children’s best interests.
In my judgment, L and O need a predictable and consistent foundation that provides continuity of day to day care. Moving between households as would be required in an “equal time order” is contraindicated in their best interests. I consider a predominance of time in their mother’s day to day care better promotes that continuity and stability.
As I have previously recorded in relation to the issue of parental responsibility these parents have a limited (but improving) capacity to communicate and co-operate in a manner that insulates their children from parental conflict. While these communication issues are not so great as to warrant a removal of one parent’s input from decision making, I find that the potential for tension and dispute should these children be moving frequently between households leads to a finding that an equal time order is not in the children’s best interests.
I will accordingly order that the children live with the mother.
I further find that it is in the children’s best interests to live with the mother in circumstances where she intends to relocate and reside in Victoria. I do so, primarily for the following reasons:
·The children are primarily attached to the mother. This does not detract from the important attachment to the father but is a statement of the reality for these young children.
·The children – L especially – are highly attuned to the emotions of the mother.
·The mother feels isolated and unhappy living on the Gold Coast, feeling removed from her family and friendship support bases.
·The children are being, and will likely continue to be, affected negatively by the ongoing experience and awareness of their primary caregiver’s unhappiness.
·The mother exhibits a genuine desire to relocate to Victoria – a desire that has persisted for some time – and displays deep unhappiness at not being able to make this move.
I have included in these considerations my assessment that the mother sincerely understands that the children require an ongoing relationship with their father and that, despite her own concerns and difficulties in co-operating with the father, she will facilitate this father-child relationship.
In balancing all of the issues in this matter I am satisfied that the benefits provided by living with the mother in Victoria outweigh the detriments that this proposal presents in relation to time with the father and the impact on the father-child relationship (assuming he remains in Queensland). I am satisfied that the children will adjust to consequential changes, with the mother’s assistance.

Reasonable Practicability and Equal Time

It is plainly not reasonably practicable, having regard to the matters specified in s 65DAA, for the children to spend equal time with their parents if they live with their mother in Victoria and the father remains in Queensland.
If the mother and father each remain in the Gold Coast I consider that practical difficulties inherent in such an order would exist but could fairly readily be overcome. I am by no means convinced that the same can be said of difficulties emanating from the mother’s consequent emotional state and the potential for same to impact upon the co-parenting relationship and the mother’s care of the children.
I have also taken account of the fact that, in my judgment at least, “reasonably practicable” does not mean ideal. Nor does the expression envisage arrangements that are effected without difficulty or disappointment or upset.
In MRR, the High Court highlighted, by reference to s 65DAA(5) (and in the context of the factual backdrop there applicable), not only factors such as the availability and desirability of housing, employment opportunities and the ability to gain income but also - significantly as it seems to me - the Court also referred in that context to the availability of familial support and the impact on the emotional and mental health and well-being (of, in that case, the mother) as being pertinent to a consideration of reasonable practicability. (See pars 16 and 18 of the judgment).
I have considered all of those matters in attempting (using the words of the High Court) to take account of “the reality of the situation of the parents and child”, together with the matters specified in s 65DAA(5).
I consider that there would be significant difficulties attending an “equal time order” particularly relating to the impact, which I regard as significant, upon the mother’s emotional health and the potential for abating parental conflict to again escalate.
I consider that an order for equal time is, in the terms just outlined, not reasonably practicable in the event that both parents live in the Gold Coast region.
I have, in any event, determined that it is not in the best interests of these children for an equal time order to be made.
I will not make such an order.

Best Interests and Substantial and Significant Time

Having determined that it is neither in L and O’s best interests, nor reasonably practicable, to make an order for equal time, I must now consider, first, if it is in the children’s best interests to make an order that they spend substantial and significant time with their father.
Substantial and significant is defined in s 65DAA(3) as:
(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.
By reasons of the findings earlier made, it will be clear that I consider that regular meaningful time between the children and each of their parents is in their best interests.
Equally, however, I consider that other factors including the nature of the relationship between the children and the mother and the particular attachment forming part thereof; the relative immaturity of each of the children’s parents; the capacity of each party to provide, day-to-day, for the children’s physical, emotional and intellectual needs and the mother being better placed to provide a stable ongoing platform for the co-nurturing of these two children point to a continuity in the mother’s erstwhile predominant care-giving role.
In that respect, I consider that a significant alteration to that role will present for these two children a very significant change and the effect of separation from the mother will bring about detrimental emotional consequences for the children, particularly them worrying about her in a way that is detrimental to them.
That effect will be significantly less, in my judgment, in the case of a “substantial and significant time” order than it would be in the case of an “equal time” order that involved relatively lengthy periods of separation from the mother.
The matters just described can be seen to lead to a number of advantages for the children if they were to live proximate to their father and see him in accordance with a co-parenting regime that satisfied the definition of “substantial and significant time”.
Further, at least from the perspective of the father, it might be thought that a mother assessed as significantly immature who harbours a significantly immature attitude that returning to the cocoon of her own family will “cure all her ills” might be seen as a factor pointing against a move in accordance with those desires.
Equally, at least from the mother’s perspective, a finding of immaturity in the father and that he has not at all considered or contemplated the prospect of moving to a place to be closer to his children (in the event that they move) and who has not at all considered the means by which he could financially contribute to the maximisation of time between he and the children might also point against an ultimate determination “in his favour”.

But, anathema though it might be to these parties, or indeed more generally, the outcome of these proceedings, and parenting proceedings in general, are not determined by what is “fair” or “unfair” or “morally right” or “morally wrong” in so far as the parents of children are concerned. The proceedings are to be determined by reference to the best interest of these particular children who arrive at this point in their lives by reason of having the parents which they have who, like all parents, have strengths and weaknesses and whose strengths and weaknesses, as with all parents, impact upon both their co-parenting relationship and the relationship between each of them and their children.
When the enquiry is, as it must be, directed towards the best interests of these children, a core question becomes whether, by reference to the factors enumerated in s 60CC of the Act and the Objects and Principles enshrined in the legislation, benefits to the children of them residing predominantly with their mother in Victoria outweigh the detriment to them associated with the resultant diminution in the time (and, in particular, “substantial and significant time”) that they could spend with their father.
Conversely, a central question becomes: do the benefits for the children having a relationship with their father that would meet the statutory definition of “substantial and significant time” outweigh any potential detriment to them resulting from the position in which the relationship between them and their mother would be thereby placed.
In that balance, it seems to me that the nature of the attachment between the children and their mother; the pre-existing nature of the care arrangements between each of the parents and the children, the respective levels of immaturity in each of the parents, the likely impact upon the mother’s parenting capacity in the event that she does not receive the support she so plainly seeks from her family and the potential for thwarted desires to impact upon the tenuous improvement in the co-parenting relationship, all point to the best interests of the children being served by the children residing with their mother in Victoria and the (apparently consequential) diminution in time with their father such that they do not enjoy “substantial and significant time” with him.
In short, I consider that, on balance, the best interests of these children do not point to an order for “substantial and significant time” with their father so as to effectively require the mother and the children to live geographically proximate to the father in or about the Gold Coast area.

Reasonable Practicability and Substantial and Significant Time

If the mother and children reside in Victoria and the father remains in Queensland, it is plainly not reasonably practicable, having regard to the matters specified in s 65DAA, for the children to spend substantial and significant time, as that term is defined, with their parents.
If each of the parents and the children were to remain in the Gold Coast area, some practical difficulties would attend the logistics of carrying out any such order but they are, in my view, by no means insuperable.
However, practical difficulties relating to the mother’s emotional state identical to those earlier discussed would also, in my view, apply equally; I consider that there would be significant difficulties attending a “substantial and significant time order” particularly relating to the impact, which I regard as significant, upon the mother’s emotional health and the potential for abating parental conflict to again escalate.
I consider that an order for substantial and significant time is, in the terms just outlined, not reasonably practicable in the event that both parents live in the Gold Coast region.
I have, in any event, determined that it is not in the best interests of these children for a substantial and significant time order to be made.
I will not make such an order.

Conclusion: Orders for Time

I have concluded, in the particular circumstances of this case, that these particular children with these particular parents will have their best interests met by orders which permit of them and the mother residing in Victoria with orders for time with their father which accommodate the father’s stated position that he intends remaining in the Gold Coast area.
In that situation, though, it is, in my judgment, in these children’s best interests to maximise the time that the children spend with their father consistent with both geographic separation and the costs of travel and other practical difficulties associated therewith, and the children’s school and other routines.
I consider it appropriate that the children spend all Easter, June/July and September/October school holidays with their father (save for the Easter public holiday long weekend). The long Christmas school holidays should be divided equally, alternating the halves in each alternate year.
As well as this block holiday time, the children should have the opportunity to spend extended weekends with their father should he so desire. That time should be spaced so as to attempt to limit the periods between face to face time, and should require notice so as to prepare the children and the mother and facilitate any arrangements that need to be made. I propose to order that these periods of time should occur for long weekends commencing on a Thursday after school and concluding on Tuesday before school.
To minimise the disruption to the children’s schooling, two such long weekend periods should occur on the weekends that incorporate the Victorian public holidays for Labour Day and the Queen’s Birthday (in March and June respectively). The children should spend two further long weekends of that duration with the father on such weekends that the father may nominate to the mother separated by periods of not less than 21 days and upon 28 days notice.
The intention is that interruption to school is limited by nominating the two gazetted long weekends. Doing so involves the children being out of school for 6 days in a year. Given their ages and the importance of their relationship with their father, I do not consider this excessive or contrary to their best interests. I have assumed that each of the parents will have the insight, intelligence and common sense to arrange such weekends in a manner that does not conflict with exams, or other such important events crucial to the children’s education.
I will also order (as the mother concedes should occur) that the father should be able to exercise time on any weekend when in Victoria on the giving of notice in writing.
Orders in respect of the payment of air fares so as to permit of the envisaged time are not about what is “fair” but about what is likely to achieve the required time. The father is currently in a much better financial position than the mother. If time is to occur as envisaged, he will need to meet virtually all of the costs. Having said that, it is in my view important for the children to see and know that their parents each support the time regime in a practical way. I consider the mother should meet the costs of one, at least, of the ordered periods of time.
While it is not suggested that communication by e-mail, and particularly, Skype takes the place of face to face time, regular communication in that form (and particularly Skype) can be an important part of a parent remaining in the children’s lives. I will order that the children should be free to communicate in that way at all such reasonable times as they might wish and by telephone at defined times.
I order accordingly.

I certify that the preceding two hundred and ten (210) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate:

Date: 26 July 2010