Marcott and Dunridge

[2018] FCCA 1777

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARCOTT & DUNRIDGE [2018] FCCA 1777

Catchwords:
FAMILY LAW – Parenting dispute – mother seeking to relocate from Suburb B to Suburb C – father opposing – mother working in Suburb D and having parents living on Suburb A – mother impecunious and likely to be better off in Suburb C – agreement for eldest child to spend equal time with each parent – clearly in children’s best interest to permit mother to relocate.

Legislation:

Family Law Act 1975 ss.60CC, 117

Cases cited:

Goode & Goode (2006) FamCA 1346

Applicant: MR MARCOTT

Respondent: MS DUNRIDGE

File Number: DGC 2763 of 2015

Judgment of: Judge Burchardt

Hearing date: 1 June 2018

Date of Last Submission: 1 June 2018

Delivered at: Melbourne

Delivered on: 12 June 2018

REPRESENTATION

Counsel for the Applicant: Ms Paxton-Hall

Solicitors for the Applicant: Mitchell Family Law

The Respondent: In person

ORDERS

1. That the Applicant and Respondent have equal shared parental responsibility for the children:

   (a)[X] born 2005 (“[X]”);

   (b)[Y] born 2008 (“[Y]”); and

   (c)[Z] born 2010 (“[Z]”) (collectively “the children”).

2. That the children live the parties as agreed between them in writing and failing agreement as follows:-

   (a)During the school term, the children live with the Respondent and spend time with the Applicant as follows:

   (i)     [X]From Friday, 22 June 2018:

   A.For [X], in week one of a two week rotation from the conclusion of school on Friday to the conclusion of school the following Friday.

   [Y] and [Z]

   (i)     From Friday, 22 June 2018 until the end of term 4, 2018:

   A.For [Y] and [Z], in week one of a two week rotation (coinciding with [X]’s rotation), from the conclusion of school on Friday to the conclusion of school on Tuesday.

   (b)From the commencement of term 1 2019:

   (i)For [X], arrangements to continue as per paragraph (2)(a)(i)(A);

   (ii)For [Y] and [Z], in week one of a two week rotation (coinciding with [X]’s rotation), from the conclusion of school on Friday to the conclusion of school on Wednesday.

   (c)The Term 1, 2 and 3 school holiday periods:

   (i)For the first half of the school holiday period, with the party with whom the children would ordinarily be scheduled to spend time with for the first weekend of the holiday period in accordance;

   (ii)For the second half of the school holiday period, with the other party, with changeover to occur at 5pm on the middle Saturday of the school holiday period, and concluding at 5pm the day prior to school resuming;

   (iii)At the conclusion of the school holiday period, the operation of paragraph 2(a) and 2(b) is to resume so that the children remain in the care of the party in whose care they were in for the second half of the holiday period. For example:

   A.     If the children are with the Applicant for the second half of the holidays, [X] remains with the Applicant until the first Friday of the term and [Y] and [Z] remain with the Applicant until the first Tuesday of the term in 2018 and the first Wednesday in 2019; and

   B.     If the children are with the Respondent for the second half of the holidays, the children remain with the Respondent until the first Friday of the term.

   (d)Long summer school holiday period:

   (i)For the first 4 weeks of the long summer school holiday period:

   A.     For the first two weeks of school holiday period, commencing on the first day after the last day of term, with the party with whom the children would ordinarily be scheduled to spend time with in accordance with the arrangements in Order 2(a) and 2(b), concluding at 5pm on the last day of the two-week period.

   (i)For the second two weeks, with the other party, concluding at 5pm on the last day of the two-week period.

   (ii)    For the balance of the long summer school holiday period:

   A.     With the party the children were with pursuant to paragraph 2(d)(i)(A) for the first half; and

   B.     With the party the children were with pursuant to paragraph 2(d)(i)(B) for the second half.

   (i)At the conclusion of the long summer school holiday period, the operation of paragraph 2(a) and (b) is to resume so that the children remain in the care of the party in whose care they were in for the final portion of the holiday period.  For example:

   A.     If the children are with the Applicant for the final portion of the holidays, [X] remains with the Applicant until the first Friday of the term and [Y] and [Z] remain with the Applicant until the first Tuesday of the term in 2018 and Wednesday of the term in 2019 (or Thursday if the term commences on a Thursday); and

   B.     If the children are with the Respondent for the final portion of the holidays, the children remain with the Respondent until the first Friday of the term.

   (e)For the purposes of paragraphs 2(c) and 2(d), the holidays commence on the last day of school term and end on the day prior to the commencement of school.

3. Special occasions

   (a)The operation of Order 2 be suspended and the children spend time with the parties as follows:

   (i)On the children’s birthdays with the party in whose care they are not in, from after school until 7pm if on a school day and from 11am to 4pm if on a non-school day, save if a child’s birthday occurs on a day where they are transitioning between the parties;

   (ii)On each party’s birthday from 5pm the night before to the commencement of school the day after each party’s birthday if on a school day or 5pm the night before each party’s birthday until 10am the day after each party’s birthday if on a non-school day when the children are not otherwise in that parties care;

   (iii)On Father’s Day from 5pm the day before to the commencement of school on Monday if the children are not otherwise in his care;

   (iv)On Mother’s Day from 5pm the day before to the commencement of school on Monday when the children are not otherwise in her care;

   (v)    Christmas:

   A.     In 2018 and even numbered years thereafter, with the Mother from 3pm Christmas Eve to 3pm Christmas Day and the Father from 3pm Christmas Day to 3pm Boxing Day.

   B.     In 2019 and odd numbered years thereafter, with the Father from 3pm Christmas Eve to 3pm Christmas Day and the Mother from 3pm Christmas Day to 3pm Boxing Day.

SCHOOLING

1. Subject to the Respondent relocating to the School 3 zone, unless otherwise agreed in writing, [Y] and [Z] attend School 4 until the completion of their primary education, and School 3 for secondary school.

2. .

   (a)For the remainder of term 2 2018, the Respondent facilitate [X] to continue to receive school work from School 2 and ensure that all assigned tasks are completed.

   (b)The Respondent is permitted to relocate to the School 3 Zone, and the parties do all acts and things to enrol [X] at School 3 for the commencement of term 3, 2018, and [Y] and [Z] at School 4.

   (c)In the event that [X] cannot be enrolled at School 3 by the commencement of term 3 2018, the parties will do all acts and things to ensure [X]’s physical attendance at School 2 until such time as he is able to commence at School 3.

3. The Respondent be restrained from:

   (a)Changing the children’s residence from within a 10-kilometre radius of School 3; and

   (b)Changing the children’s school enrolments or enrolling the children in any school, without the prior written consent of the Applicant or Order of this Court, save as to give effect to paragraphs 4 and 5.

   MEDICAL

4. Forthwith from the date of these Orders, [Y] and [Z] be tested for coeliac disease by a gastroenterologist, and both parties do all things necessary to facilitate this, and both parties comply with the recommendations of the gastroenterologist. 

5. That the Applicant and Respondent be authorised to contact any medical practitioner, specialist or allied health professional upon whom the children attend; obtain medical records and discuss any issues and recommended treatment for the children.

6. That the Applicant and Respondent inform each other of the children’s medical appointments as soon as the appointments are made and the other parent may attend the appointments where practical.

7. That the Applicant and Respondent notify the other party as soon as practicable in the event of the children suffering a serious illness and/or requiring medical treatment.

   TRAVEL

8. For the purpose of overseas travel, each party be at liberty to take the children overseas during periods when the children would otherwise be in their care (or at other times as agreed in writing between the parties), subject to the following:

   (a)The travelling parent shall advise the non-travelling parent 6 weeks prior to the intended departure by providing a proposed itinerary;

   (b)That the travelling parent shall provide the non-travelling parent a finalised itinerary no later than 14 days prior to departure;

   (c)That the travelling parent will facilitate phone/Facetime calls with the child and the other parent each week whilst overseas.

   COMMUNICATION

9. That the Applicant and Respondent be authorised to obtain from the children’s school/ extra-curricular activities all school reports, photographs (at the expense of that parent) and invitations, and to attend interviews or other activities which parents usually attend.

10. That the Applicant and Respondent inform the other of any change of their telephone number or residential address within 24 hours of such change occurring.

11. That the Applicant and Respondent facilitate the other party having reasonable time with the children by telephone and/or Facetime.

12. Where practicable, the parties respond to text messages relating to matters pertaining to the children within 24 hours of the message being sent.

    CHANGEOVER

13. Unless otherwise agreed in writing, all changeovers occur at the children’s school on school days and at the Father’s residence at the conclusion of such time with him, and the Mother’s residence at the conclusion of such time with her.

14. The Respondent be restrained from attending changeovers at the children’s school when the children are otherwise scheduled to spend time with the Applicant.

    NON-DENIGRATION

15. The parties, their agents and/or servants be restrained from:

    (a)Criticising or denigrating the other party or their partner to or in the presence or hearing of the children;

    (b)Discussing these proceedings and/or any evidence filed in these and related proceedings to and/or within the hearing of the children or any of them save for explaining these Orders to the children with respect to their living arrangements. Each party be restrained from discussing any variations to these Orders with the children or encouraging the children to request changes to these Orders with the other party;

    (c)Discussing any negotiations regarding parenting matters with the children;

    (d)Knowingly permitting the children or any of them to read any document filed in relation to these and related proceedings.

    RELEASE OF ORDERS AND REPORTS

16. The parties be permitted to provide a copy of these Orders to:

    (a)The children’s respective schools, medical practitioners and psychologists/ counsellors; and

    (b)The parties’ individual mental health professionals.

THE COURT NOTES

A.That the parties agree to share equally in the school fees for School 4 and School 3.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 2763 of 2015

MR MARCOTT

Applicant

And

MS DUNRIDGE

Respondent

REASONS FOR JUDGMENT

1. As the parties will recall, this matter is attended by a measure of urgency because of the mother’s application to relocate.  I wrote my notes for this judgment last week, but I have not had the opportunity to re-read them.  I have also been somewhat ill.  So the judgment will undoubtedly be rough and ready, and I paint it unabashedly with a somewhat broad brush.  The substantial issue raised is the mother’s application to relocate from Suburb B to Suburb C.  There are, however, a number of agreed facts.

2. The father was born on 1979 and owns his own business.  The mother was born on 1978 and is a part-time (occupation omitted) at (employer omitted).  The parties met in 1997 and married on 2004.  Their three children followed:  [X], born on 2005; [Y], born on 2008; and [Z], born on 2010.  They separated in September 2014, and in 2015, the father re-partnered with Ms E.  On 23 July 2015, the parties entered into a parenting plan, but on 20 December 2016, the mother unilaterally reduced the father’s time.

3. On 19 May 2017, there were consent orders for what is effectively a nine/five regime.  I note that the emails from the mother to the father, annexed to the father’s affidavit filed on 10 February 2017, are both peremptory in their terms and highly accusatory.  The parties’ proposals have varied from time to time, but, clearly, the most important issue is the mother’s application to relocate to Suburb C. 

4. I turn now broadly to deal with the parties’ affidavits.  I do not propose to traverse them seriatim.  I have regard to all of the affidavit material filed.

5. The father says that the mother will not foment a relationship between himself and the children and Ms E and the children.  The mother’s position is asserted to be “my way or the highway”.  The mother, by way of contrast, says the father is controlling and was so both during and after the relationship.  Her affidavit filed on 16 May 2017 is extremely critical of Ms E, as I shall refer to her.  The mother says [X] is distraught at School 2, where he commenced his studies this year.  The mother says she has family and friends in the Suburb A area.

6. The father, in his own responding material, denies being controlling, and I note that his affidavit filed on 20 September 2017 appears to contain cogent denials of the matters that the mother has raised.  In her affidavit filed on 30 January 2018, the mother deposed to having a job in Suburb D.  This job has only been made available to her through the good auspices of family friends.  She deposes, and I accept, that she made – she says 50; that may be an exaggeration, but numerous job applications in the Suburb B area without success. Given that she was out of the workforce for 10 years looking after the children, her assertions about the difficulty of obtaining further employment are easy to understand. 

7. Both sides accuse the other side of over-involvement of the children with the case.  The mother has unilaterally removed [X] from School 2 since 3 May 2018.  There is some disagreement whether this is really necessary in medical terms.  The father proposes three other schools which involve between 20 minutes’ and 56 minutes’ travel on the father’s estimate.

8. The mother says [X] wants to go to Suburb C.  She has already taken him to the school she proposes there.  The mother deposes to a notice to quit, taking effect on 8 July 2018, and her affidavit of 16 May 2018 says she will be able to obtain cheaper and better rental property in Suburb C.  She deposes to how the move to Suburb C would leave her $280 a week net better off. 

9. I turn now to a paraphrase of the report of Dr N, taken from my notes.  Dr N’s report, filed pursuant to affidavit on 29 January 2018, notes that the mother is close to her parents but not to her sister.

10. At page 6, Dr N notes problems in the relationship between the parents, but these are not significant.  At page 8, she notes that the father felt passive during the relationship, and at page 10, she notes the mother’s complaints about Ms E.  She notes at page 11 complaints about the father being controlling, but Dr N felt that these were not really very substantially made out given the matters the mother actually complained about.  At page 12, Dr N noted that Ms E is bipolar and was hostile to the mother.

11. At page 13, Dr N noted that [X] was sensitive, and at page 14, that he wants more time with his father.  At page 15, Dr N noted that [X] likes Ms E, and at page 16, that [Y] is at least okay;  she described Ms E as “nice but bossy”.  At page 17, Dr N noted that [Z] likes Ms E.  All of the children were fine when seen with the father and Ms E.  At page 23, Dr N noted a significant limitation to her report, namely that she did not think the children were aware of the relocation issue.

12. She noted that the mother complains that the father is controlling, but it was the mother who unilaterally reduced the father’s time.  In the end, Dr N’s recommendation, putting the matter broadly, was that relocation should not occur because of the likely distress it would give rise to in the children, whom she opined are sensitive and easily distressed. 

13. Turning to the evidence given at Court, once again, this is a paraphrase taken from my notes.  The father was called and adopted his affidavits.

14. Under quite extensive cross-examination by the mother, it was put that the children have said they want to move to Suburb C and are positive and happy about this, that they had been to School 3 together and that [X] had found this positive.  However, the father expressed reservations.  He was then cross-examined about the three schools he had proposed, and I note that the travel involved was not insignificant.  The father had visited all three schools, but had not taken [X].  He had asked [X] what he wants out of a school, and he wants somewhere he can belong and grow academically and socially. He has said he would like to go back to School 2.  [X] went to School 1 in year 5.  The father had not seen two of the medical certificates allegedly supporting [X]’s absence at school until 28 May 2018, but I note that the medical certificates were tendered as exhibit R1.  The father has sought a referral.  He has seen the psychologist.  The psychologist said that the child should return to school as soon as possible, although it should be worked back to.  Mr R did not recommend a school because the matter was coming to Court.

15. Suburb C had been discussed only generally.  The father then discussed [X]’s failure to actually undertake a NAPLAN exam, which it is not necessary, in the circumstances, to dwell on at any length.  Some of the cross-examination, perhaps unsurprisingly, tended to devolve into arguments between the two parties, most particularly in relation to the length of time that travel to the father’s proposed schools would take and how much time it would take him to get the child to Suburb C.  The father said that the child had been coached, and he wanted the son back at the school full-time as soon as possible.

16. The following day, cross-examination continued.  It was noted that [X] is doing some schoolwork at home from School 2.  The father complained, and I think accurately, that he was excluded from doctors’ appointments.  He had taken [X] to doctors himself.  He had obtained a mental health plan from Mr R.  He had considered the family report.  He was not undertaking any contact with Ms L.  He denied saying, however, that Ms L favoured the mother and then said that Ms L would not do so.

17. The next witness called was Ms E.  Much of the cross-examination concerned an occasion when the mother and Ms E had met to have a coffee to see if they could, as it were, smooth things out for the future.  It is quite apparent that this meeting was a complete disaster.  Both of the attendees became very upset with one another, and their mutual upset was still very vividly apparent in the discussion they had about it.  As to whose fault it was, I am not in a position to say.  I suspect that each of them was somewhat tense and nervous, and that this rather colours their memory of the meeting.

18. Much of what Ms E had to say was put in a highly emotive way, and she was prone to volunteering information that she had not actually been asked in the questions that were put to her.  She noted that the current situation provides certainty for the children.  She noted that she might need to get a place of her own nearer to the city in the event that the father was to relocate close to Suburb C were the mother to relocate there.  She noted that it was possible the children may have overheard some adult discussions.

1. I note that she said – and this is as close to a quote as I can get – that she “did not attend extracurricular activities because of the stress, because the mother was so aggressive”.  She noted that she “did not wish to be around someone who had caused this family so much pain”.  That brief extract really sums up the present state of mind of Ms E about the mother.  Ms E was also cross-examined about her disciplining the children.  She admitted – in my view, wholly unsurprisingly – having lost her temper with them.  She tries to defuse a situation when [Z] starts kicking and screaming.  She has now learned other ways than lengthy hugs.

2. She pointed out – and, once again, I would interpolate and say quite fairly – she is learning to be a parent because this is, as it were, her first experience of it.  The children are not scared of her and love being with her.  In re-examination, she explained the, in my view, unremarkable ways in which she seeks to discipline the children.  I note that her own upbringing was relatively strict, and that may operate upon the way that the children see the differences between the mother’s household and that of the father.

3. Ms Dunridge made a fairly lengthy opening outlining the difficulties she has.  I note that she pointed out, again, that she only has her present job because of family friends.  She works 25 to 40 hours per week, but is extremely flexible.  She pointed to the difficulty – and it is an understandable one – of commuting to Suburb D from Suburb B.  She went through and repeated, in effect, a number of the matters that are in her affidavits. 

4. Under cross-examination, the mother conceded that the father is no risk to the children.  There is no physical risk. She says they take it out on her in subtle ways.  She noted that [X] wants to spend equal time in the two households.  She denied being upset if people do not do what she wants.  She conceded, however, having unilaterally reduced time.  She denied accusing others of lack of sensitivity, and she could not recall the medical certificate raised by the father.  She had seen Mr R, who had recommended a reintegration of [X] into school.  She had sought a meeting with the school, but the tenor of her evidence suggests that her relationship with School 2 is not particularly good.

5. She has denied having the opportunity to tell the father everything about what was happening at School 2.  She said she did not want the father to go with her to school meetings because she is intimidated by him.  I point out in passing that many of the mother’s answers were argumentative in their tenor.  She conceded reducing the father’s time to two nights, but denied unilaterally removing [X] from school.  She told the father, she says, about [X]’s school after she obtained sickness certificates and explained what happened, but her answers in this passage of her evidence were prevaricating and non-responsive.

6. Much of cross-examination centred on [X]’s absence from school and the validity or otherwise of the medical reports that had given rise to it.  I once again pass over the regrettable day when [X] was supposed to attend a NAPLAN test and, ultimately, was unable to do so.  I interpolate and say it is clear from the mother’s answers that she has quite extensively involved the children in discussions as to what is going to occur.  Further cross-examination about coeliac disease did not, in my view, take the matter further, although I note that at least the father is now prepared to have that properly investigated.

7. I note that the mother was cross-examined at some length about her tendency to call [Z] while she is with the father.  She has denied doing so in the last six months, or almost never, but went on to say she usually speaks once over the weekend and said, “This is because they’re my children.”  That, of course, is the case, but given the known upset that these calls appear to cause, it reflects a lack of insight.  She noted that the father asked to be at all medical appointments, but says she feels intimidated, and she was unable to remember the name of the treating paediatrician for [Z].

8. She said the father did not attend the meeting with the paediatrician because she had made a mistake.  The clear picture that emerged for me was that the mother simply did not wish the father there.  The mother was further cross-examined about the schools that the father had proposed, but took issue with the amount of travel, although it was conceded – and I think it was School 5 would be a good school because it has a course that might assist [X]’s ambition to be a (occupation omitted).

9. I do not need to traverse Dr N’s evidence in any detail because she stuck very much to her report.  She was not moved in her conclusions.  I note that she still thought, if I understood the matter correctly, that family therapy might assist the families to move forward.  That, of course, is the end of my paraphrase from my notes, which I readily concede is broadly brushed.

10. Can I make some findings.  First, all the witnesses are thoroughly decent people.  Their views of the facts are distorted by their perceptions, but given that I am giving this judgment in their presence, I would like them to understand that I did not form a demonised picture of any one of them.  I repeat, they are all thoroughly decent people in what has become a rather awkward and difficult situation.

11. The first issue I need to decide is whether the father is as domineering and controlling as the mother asserts.  I have no difficulty in finding that he is not.  Indeed, both the mother and Ms E struck me as very strong-willed and used to getting their own way.  It may well be that the father has something of a penchant for relationships with very strong women.  I note that Dr N found the mother’s examples of the father’s alleged conduct unconvincing, and so do I.

12. Second, the mother unilaterally reduced the father’s time from the parenting plan in the most peremptory way.  Further, she removed [X] from School 4 unilaterally.  She has taken [X] to Suburb C and clearly notified all three children of the likely relocation. 

13. The next matter I will deal with is the children’s relationship with Ms E.  The mother says the children are scared of her, but it is perfectly clear from Dr N’s report that they are fine with Ms E.  She may perhaps be a slightly sterner disciplinarian, but there is nothing in the world wrong with that.  The children are perfectly capable of adapting to both households.

14. The next matter is [X] at School 2.  It is clear [X] is upset.  He is encouraged to be so, albeit probably unconsciously, by the mother;  it suits her case.  I note Dr N’s observation of the unnecessary general upset at the interview with her when the mother was with the children. 

15. The next matter is the father’s time with the children, including [Z].  It is clear from Dr N’s report and the evidence generally that the children can cope with a nine/five relationship.  The mother needs to encourage the relationship between the father and the children more actively, rather than merely in word.

16. The next matter that arises is the relationship between the mother and Ms E.  I suspect that this is a significant part of the problem because – I am sorry;  there is no way around this – they detest one another.  So much was clear when they were in Court.  They are both strong-willed and perhaps have similarly rigid personalities.  As I have said, I find that they are both decent people doing their best in difficult circumstances.  They need to stop demonising each other.  The children love their mother but like Ms E, and it is to be hoped that once this case is over and the judgment is read and re-read, the parties can move forward.  Thought still needs to be given to some form of therapy to assist the adults to cope with one another in the children’s benefit.

17. This brings us next to the statutory pathway as set out in Goode & Goode (2006) FamCA 1346 at [65]. There has been some subsequent statutory amendment, but it is of no moment. I do not propose to read all of paragraph 65 out, although, obviously, I have regard to the statutory pathway as there illuminated. The first issue for the Court is parental responsibility. The mother wants sole parental responsibility. Her affidavit filed on 16 May 2018 is silent about parental responsibility, but it is clear from the tenor of her case that she wants to make all the decisions.

18. I note the father has not been appropriately included in medical appointments, and I do not accept that any concern the mother may have of direct interaction with the father is objectively reasonable.  There are no suggestions of family violence or need to protect the children from abuse.  It is clear that the presumption of equal shared parental responsibility is not rebutted, and I would go further than that:  the children need both parents involved.  For example, I note [X] will be with the parents for equal time as a matter of agreement between the parties.  The parents must learn to cooperate in respect of long-term decisions.

19. Given that the presumption is applied, the Court has to consider equal time.  As I have noted, this is agreed in respect of [X].  No one suggests it in respect of [Y] or [Z].  There are problems, in any event, for [Z] in being excessively separated from her mother.  It is clearly not in the two younger children’s best interests that there be equal time.  The Court then has to consider “substantial and significant time” as defined in the Act.  Both parents’ proposals would provide for this.

20. The mother’s affidavit of 16 May 2018 proposes a three/11 regime with the children spending each alternate Friday to Monday with their father. The father wants Friday to Wednesday as a nine/five agreement, although that is not the extant orders. The Court has to consider section 60CC(2) of the Family Law Act 1975.  Everyone agrees that it is desirable that the children have meaningful relationships with both parents.  There is no need in this instance to protect them from harm, as there is none.

21. That brings us to the additional matters in section 60CC(3), subsection (3)(a): the views of the children. The children like Ms E. They love their mother, who has always been their primary carer. Nonetheless, [X] wants more time with his father. [Y] is fine with the current arrangements, according to Dr N, who was not cross-examined as to this. [Z] finds four consecutive days with her father difficult, but has got better, according to Dr N. The mother says the children are keen on the move to Suburb C, but this is largely a self-serving proposition.

22. Subsection (3)(b):  the children have good relationships with all relevant persons.  Subsection (c):  each of the parents have conducted themselves appropriately in the sense of taking the opportunity to participate in decisions about the children.  I note, however, that the mother has excluded the father from certain medical appointments.  Subsection 60CC(3)(a):  both parents’ history is unexceptional in this regard.

23. Subsection (3)(e), the practical difficulty and expense of spending time:  this raises the relocation issues in plain terms, but I will deal with that under subsection (3)(m).  Subsection (3)(f), the capacity of the parents to care for the children:  both are excellent, as is Ms E.  Subsection (3)(g), the maturity, sex, lifestyle and background of the children:  the children are young, but their views to Dr N seem to me to have been mature enough.  I question the children’s oversensitivity and incapacity to absorb change.  Dr N did not know what the children thought about moving to Suburb C.

24. It is noteworthy that not only the mother and the father but Ms E all see themselves as victims.  As I have said more than once, both the two women are strong-willed.  The mother is self-centred and given to unilateral decisions, but she is still, it should be noted, a very loving mother.  Subsection (3)(h) is irrelevant, and subsection (3)(i), the conduct of the parents, is unexceptional.  Subsection (3)(j) is irrelevant because there is no family violence and the father is not controlling.  Subjection (3)(k) is plainly irrelevant.  Subsection (3)(l):  clearly it is best to finalise matters now if that can properly be done.

25. This brings us to any other relevant matter under subsection (3)(m), and that is the relocation issue.  The mother’s application is, to an extent, just wilful.  The emphasis upon her relationship with her parents is fine, as far as it goes, but I note that her relationship with her sister is not good.  But the following matters, perhaps, are relevant.  First, [X] will be week-about in any event.  [X] will be doing a lot of travelling to school, wherever the mother lives.  The times to Suburb C are not markedly different to those proposed by the father.

26. Travel for the father is, at the worst, only one week out of two in relation to [X].  The father is self-employed and must have some flexibility in his hours.  In truth, the distance to Suburb C is not so enormous.  Many parents in Melbourne travel one hour to school every day.  So far as the relocation issue is concerned, I would arrive at these conclusions.  The mother’s wellbeing would undoubtedly be improved if she was in Suburb C.  She has a job, she has at least her parents closer, she would have a lot more cash, which is important for a single mother trying to bring up three children in these circumstances.

27. Those matters impact, inevitably and immediately, upon the children.  She is probably going to be able to get a bigger house with better amenities in Suburb C.  It is in the children’s best interests that the mother relocate and that [X] therefore be enrolled at school in Suburb C.  I note it is not in any way clear that the father will relocate, and I make no finding that he will, but in the end, those are my conclusions about relocation.

28. So far as the spend-time regime is concerned, nine/five has been in place for some time but has been four nights at one weekend and another night during the other week, if I understand the matter correctly.  The children have been at least sufficiently contented with that regime.  It is clearly desirable, even though he may not immediately think so at the moment, that [X] spend time with his siblings, but I note that when he was interviewed with Dr N he seemed to have somewhat disengaged from them.

29. The parties need to think about the mechanics that will involve the two younger children spending time with their father that interacts directly with [X]’s, firstly, so that they see [X] even if it is during the week, and secondly, so that the father does not have to travel to Suburb C more than one week out of two.  I am going to stand the matter down so the parties can consider that issue.  As things presently stand, I am minded to leave the long weekend ten/four in place and to increase it after six months to a block of five nights.  So far as school holidays are concerned, I see no reason why this should not be half each.

RECORDED  :  NOT TRANSCRIBED

1. Section 117 of the Family Law Act contains what I might describe as the regime in relation to costs for these purposes. The primary position set out in subsection (1) is that each party bears their own costs. However, pursuant to subsection (2), the Court may, if it is of the opinion that there are circumstances that justify it in doing so, subject to subsection (2A), make such order as to costs as the Court considers just. In considering the matter, the Court is required, therefore, to have regard to subsection 117(2A), and the first matter raised is the financial circumstances of each of the parties to the proceedings.

2. The respondent has only relatively recently obtained employment through the good auspices of family friends and is not paid munificently for the work that she does.  Part of the reason that she has been successful in this case is her relatively impecunious circumstances and the fact that moving to Suburb C will undoubtedly make her, and therefore the children, better off.  The husband has his own business.  I am not aware that there is any detailed exposition of how that goes, but I noticed that the household of which he is part has, if I recollect it correctly, a small income, possibly from Ms E.

3. Neither party is in receipt of legal aid.  The conduct of the parties to the proceeding has been unexceptionable.  These proceedings have not been necessitated by the failure of a party to the proceedings to comply with orders of the Court.  Neither party has been wholly successful in the proceeding.  The mother has been successful in achieving her application for relocation, but the father has essentially succeeded in terms of the spend-time regime for which he was contending.

4. Certainly, neither party has been wholly unsuccessful, and it is important, perhaps, to remember that the relocation issue is the one that stood front and foremost in the way the parties ran their cases.  There is no suggestion of any offers in writing to settle the proceedings.  In circumstances where the parties’ financial circumstances are so disparate, it is plainly not an appropriate exercise of my discretion to make an order for costs, and I decline to do so.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 12 June 2018