Marek and Heywood

[2018] FCCA 3035

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAREK & HEYWOOD [2018] FCCA 3035

Catchwords:
FAMILY LAW – Parenting – where the parties are agreed that the Applicant Mother should be permitted to relocate from the Region 1 to Town A – where the issue in dispute is when that should occur and how the Respondent Father’s time with the children ought to be structured both before and after the relocation.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CA, 64B, 65DA, 65DAC, 65DAE

Cases cited:

Mazorski & Albright [2007] FamCA 520

Tait & Densmore [2007] FamCA 1383

Applicant: MS MAREK

Respondent: MR HEYWOOD

File Number: MLC 7048 of 2014

Judgment of: Judge Small

Hearing date: 5 February 2018

Date of Last Submission: 5 February 2018

Delivered at: Melbourne

Delivered on: 29 October 2018

REPRESENTATION

Counsel for the Applicant: Mr Puckey

Solicitors for the Applicant: O'Sullivan Johanson Lawyers

Counsel for the Respondent: Ms Goldsworthy

Solicitors for the Respondent: Harwood Andrews

ORDERS

1. All previous parenting Orders in relation to the children [X] born 2004, [Y] born 2006 and [Z] born 2011 (“the children”) are hereby discharged.

2. The mother shall be permitted to relocate with the children to Town A no earlier than the day after the last day of the 2018 school year.

3. Until the mother relocates to Town A:

   (a)the children shall live with the mother;

   (b)the children shall spend time and communicate with the father:

   (i)for five nights per fortnight in accordance with the current regime; and

   (ii)    at other times by agreement between the parties in writing.

4. Otherwise, there shall be Final Orders by consent in terms of the Minute of Consent Orders provided to the court by email dated 9 March 2018 (“the Minute”).

5. The lawyers for the Applicant Mother shall engross the Minute and provide a clean, duly certified copy of the same in a Microsoft Word format (“the Copy”) to the Registry of this Court within seven (7) days.

6. All extant applications are otherwise dismissed and the proceedings are removed from the list of pending cases.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7048 of 2014

MS MAREK

Applicant

And

MR HEYWOOD

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a parenting dispute between Ms Marek (“Ms Marek” or “the mother”) and Mr Heywood (“Mr Heywood” or “the father”).

2. The children of the relationship are [X] born 2004 (“[X]”), [Y] born 2006 (“[Y]”) and [Z] born 2011 (“[Z]”) (collectively “the children”).

3. The children currently live with the mother and have done so for the majority of the time since separation.

4. The mother seeks orders that the children live with her and spend substantial and significant time with the father. She also seeks an order for her to be permitted to relocate with the children from Town B on the Region 1, Victoria to Town A, near Region 2, Victoria.

5. The father concedes that the mother and the children will be relocating. The dispute is about when that should occur and what arrangements should be made in the meantime. The father says that the relocation ought not to happen before the end of the 2018 school year, whereas the mother sought orders for her and the children to be able to relocate at the end of Term 1 in 2018.

6. Obviously, due to the Court’s workload and the need to keep hearing other matters, that deadline has long since passed, which is very unfortunate, but ultimately, the delay has had no effect on the court’s decision, as I have decided, for the reasons set out herein, that the children should not move until the conclusion of the 2018 school year.

7. The parties are agreed that once the mother moves to Town A, if the father is unable or unwilling to move as well, the children will spend each alternate weekend with him from Saturday morning to Sunday afternoon and for half of all school holidays.

8. If he is able to relocate to the Region 2 area, they are agreed that the children will spend equal time with each parent on a week about basis during school terms and for half of all school holidays.

9. For the meantime, the mother seeks that current arrangements remain. Those arrangements provide for the children to spend nine nights each fortnight with their mother and five with their father in a “split week” regime whereby they spend three nights with the father in the first week of a two-week cycle (5:00 p.m. on Friday to Monday morning) and two nights in the second week (10:00 a.m. on Sunday to Tuesday morning).

10. The father seeks an equal shared care regime in a “week about” regime until the mother relocates to Town A with the children.

11. The issues to be decided in this case are:

    A.when the Mother should be permitted to relocate to Town A with the children; and

    B.what the arrangements for the children should be until the mother relocates.

Background

1. Ms Marek was born on 1979 and is therefore 39 years old.  She is employed as a (occupation omitted). She is currently the primary carer of the children.

2. Mr Heywood was born on 1974 and is therefore 43 years old. He is employed as a (occupation omitted).

3. The parties commenced living together in approximately 2002. They were married on 2005.

4. The parties separated on 11 March 2014 and finalised their property settlement by consent on 25 August 2014.  They were divorced on 3 August 2015.

5. The mother has repartnered with Mr B (“Mr B”) and they have one child together, [A] born 2017 (“[A]”).

6. The father has re-partnered with Ms M who has three children.

7. At the time of trial, the father was living in Town C in a property he purchased to accommodate himself and the children, and the mother was living in Town B.

8. However, the mother had been gifted land in Town A by her father, and had built a house on it to accommodate herself, Mr B, [A] and the children.

Procedural History

1. This matter commenced with Ms Marek filing an Initiating Application, Affidavit in Support and Notice of Risk on 4 July 2017.

2. Mr Heywood filed a Response, Affidavit in Support and Notice of Risk on 16 August 2017.  

3. The matter first came before me in the Duty List on 21 August 2017. On this day, the parties by consent, agreed to engage Ms L (“Ms L”) for the preparation of a family report. I otherwise adjourned the matter for Final Hearing on 5 February 2018, with Trial Directions being issued by consent.

4. Those orders provided for the mother to file her Trial Affidavit, and the Affidavits of any witnesses 42 days prior to trial (that is, by 22 December 2017), with the father to file his trial material no later than 28 days prior to trial (8 January 2018). The mother was then to file an affidavit in reply to the father’s trial affidavits 14 days prior to trial (22 January 2018).

5. The mother swore and filed her Trial Affidavit 22 December 2017. She also filed the affidavits of three supporting witnesses.

6. On 12 January 2018, the father swore and filed his final Trial Affidavit, four days after the ordered deadline.

7. The mother then filed her Affidavit in Reply on 19 January 2018.

8. Ms L’s report dated 19 December 2017 was provided to the parties on that same day, although it was not annexed to an Affidavit sworn by her until 21 January 2018, being filed on 22 January 2018.

9. Final Hearing commenced on 5 February 2018. Both the mother and the father were represented by counsel.

10. The only witness to give oral evidence at trial was Ms L.

11. Following the conclusion of evidence and submissions on 5 February 2018, I reserved my decision.

12. Counsel informed me that apart from the two issues I needed to decide, the parties had agreed on all other matters before the court and that they would present the court with a minute of consent orders setting out those arrangements shortly after trial.  My chambers received a copy of that minute on 9 March 2018, and I will make final orders in accordance with its contents.

13. At the end of the trial, I told the parties that I would attempt to give this judgment some priority but that there were many matters ahead of it which also needed decisions and I would simply do my best to make orders and provide reasons as quickly as I could.

14. Unfortunately, due to the court’s workload, I have been unable to address this matter until now, which means that the interim arrangements have now been in place for much longer than the parties had envisaged at trial.

Issues and Evidence

1. It should not be assumed that I have not considered a piece of evidence if it is not specifically mentioned in this judgment. I have read all affidavit material filed in this matter, and in addition to the impressions I gained of the only witness at trial, I have had the benefit of reading the entire transcript of the proceedings.

Issue A. When the mother and the children should be permitted to relocate to Town A

1. I acknowledge that the soonest the mother and children might be able to move to Town A is almost immediately and that even if I made that order, it is unlikely that their schooling would not be interrupted by a move in the middle of Term 4, 2018.

The mother’s evidence

1. The mother’s evidence, unchallenged at trial, is that she wishes to move to the Region 2 area to avail herself of the assistance of her family, many of whom live in that area.

2. It is her uncontroverted evidence that she has been able to build a house for herself, her current partner and the children, on land at Town A gifted to her by her father.

3. She says that the children currently miss out on some extracurricular activities because she is unable to transport more than one of them to those activities at any given time.

4. She deposes that once she moves to Town A, her father, his partner and her mother would be able to assist her in transporting the children which would result in greater opportunities for them to take part in sporting, cultural and other activities.

5. It is her evidence that the first indication she had that Mr Heywood might also be able to relocate to the Region 2 area was during her family report interview with Ms L.

6. She says that the children are excited at the prospect of the move, although [X] appears to have expressed more conflict about it than the two girls.

7. It is the mother’s wish to move and take up residence at her new house in Town A as soon as possible.

The father’s evidence

1. The father, too, was not required to give evidence at trial and therefore his evidence also remains unchallenged.

2. Much of the evidence contained in his Affidavit material prepared for trial deals with his (then) case that the mother ought not to be permitted to relocate to Town A at all, although in his final Affidavit sworn and filed on 12 January 2018 the father deposes as follows:

   Paragraph 89: I would like a stay on relocation for a few more years so I can continue developing the relationship the children enjoy and help guide them through early childhood and early adolescent (sic). Our relationship will be more fully developed by then and I would not object to Ms Marek’s relocation.

   Paragraph 100(c): I have maintained from the beginning that all I am asking for is a couple more years with our children to help them adjust to this move and set up the structure to ensure relocation is positive and beneficial experience for them.

   Paragraph 100(f): I would support Ms Malek’s relocation but ask it to be postponed for two years.

3. Nevertheless, on the first day of day of trial, the father’s Counsel informed the court that: “my client’s position is that he wishes the relocations not occur.  In fact it now becomes a matter of how best to manage that process.”

4. Despite that statement of her client’s “position”, both counsel informed the court that it was not the issue, but only the timing of the mother’s relocation to Town A with the children which was in dispute at trial, and we proceeded on that basis.

5. As Mr Heywood conceded the issue of relocation per se at trial, and he was not asked to give any oral evidence about the issue of the timing of that relocation, I have only the statements set out in his final Affidavit as quoted above, and submissions made on his behalf, upon which to base my consideration of his case in relation to that timing.

6. From those sources, I understand his position to be that he would prefer that the relocation not take place, but that he concedes as a matter of practicality that it will.  In those circumstances, it is his case that Ms Marek ought not to be permitted to relocate the children’s place of residence to Town A before, at earliest, the end of the 2018 school year.

The expert evidence

1. The Family Report in this matter was prepared by Ms L and released on 22 January 2018.

2. It is notable that Ms L records that while there were apparent tensions between the parties at interview, “the parents mostly presented as highly respectful of each other’s view, even during points of disagreement”.

3. She states that Ms Marek was open to any suggestion that would support her wish to relocate to Town A, even stating that Ms Marek suggested that she would support an equal shared care arrangement with Mr Heywood should he be able to relocate to the Region 2 area himself.

4. Ms L acknowledges that the children’s pending relocation “is clearly a great loss for Mr Heywood who expressed genuine deep love and commitment to his children, valuing his role as father and seeking to continue his involvement with them that cannot be supported should they be permitted to relocate the mother”.

5. Despite the parents’ apparent respect for each other as shown to her during interview, Ms L describes [X] as “highly intelligent, emotionally aware, and certainly conflicted regarding the parental discord.”  She goes on to say that he “was observed to be highly confused and distressed, as he experiences a highly fragmented family existence.  His exposure to the level of conflict between his parents clearly threatens this child’s psychological health and wellbeing”.

6. It was clear to Ms L that both parents involved [X] in inappropriate conversations about his care.  It was her recommendation that [X] be provided with counselling support, particularly around his somewhat fraught relationship with his mother, his desire to spend more time with his father, and the move to Town A.

7. She was particularly concerned that these events were occurring early in [X]’s adolescence.  It was her belief that “both the parents would benefit from ongoing professional advice to ensure that during this stage of development and period of adjustment that they can maintain parent role, that provides structure and rules, whilst able to deal with mood swings and adolescent turmoil that appears to be a challenge for Ms Marek to manage given signs of a strong alliance to the father”.

8. [Y] is described as “a confident and outgoing young girl” who expressed a wish to remain at her current school, School 1 Primary School until she completed grade 6 – that is until the end of 2018.

9. Despite some early difficulties, she is reported to have dealt with her parents’ separation and subsequent repartnering with little distress, although in her discussions with Ms L she was very aware of [X]’s difficulties in contemplating a reduction in his time with his father.

10. [Y] expressed feeling worried about spending long periods of time away from her friends and her father if she were to move to Town A, although she did tell Ms L that she would like to live in Town A “given she recently visited the new home that she would like to live in.”  She was concerned for her mother’s happiness if the court were not to permit the move, and stated that she would be sad to be separated from either of her parents for long periods.

11. Like [X], [Y] reported that both her parents had expressed negative views about the other in her hearing, although she said that such views were more likely to be expressed by her mother about her father than conversely.

12. Again like [X], [Y] reported that she did not know who to believe when her parents spoke negatively about each other.

13. It was Ms L’s view that:

    Certainly, this burden is considerable for these very young children, and both these parents need to provide consistent messages about the inappropriateness of embroiling the children in their disputes.  These parents will need to be mindful of the potential sadness and confusion these children will experience, should they fail to protect them from the parental dispute, not wanting all the effort, participation and care of [X], [Y] and [Z] to negatively impact on their development and progress after all the nurturing and love they both have afforded their children.

14. Ms L did not interview six year old [Z] but noted that both [X] and [Y] described her as missing each parent when away from the other.

15. In her observation of the children with both their parents, Ms L noted the following:

    … there was no remarkable change although [X] arrived looking more forlorn during time with the mother.  [X] became more outgoing and animated when with the father, not unusual for a child of this age to seek more time with the parent of the same gender.  [Y] presented as outgoing and confident, happily interacting with all family members, whilst [Z] was the most affectionate, observed sitting on her father’s knee.

16. After stating that it would be age-appropriate for both [X] and [Y] to spend time with their father on their own, Ms L states:

    The children did not identify any concerns, worries or complaints (other than about each other), other than the expressed wish that the parents would get along, be friendly and ‘stop fighting’.  The writer believes these children are consistent presenting equal love and affection for both their parents, with no particular alliance with either of them.  The writer suspects these children will experience the parents in differing ways but equally both significant and meaningful for them.

17. Ms L supported the mother’s wish to relocate to Town A with Mr B, [A], and the children the subject of these proceedings.

18. However, she thought that it would be appropriate for the move to occur at the end of [Y]’s primary school education and in preparation for her transition to high school.  She noted that [X] would then be entering Year 9 in 2019, that a change of school had been contemplated for him at that time in any event, and that neither he nor [Z] would be likely to suffer any great detriment if the move were to occur at that time.

19. Ms L gave evidence at trial and underwent cross-examination by both parties’ counsels.

20. In the early stages of her cross-examination by counsel for the father, Ms L agreed that the children in this family have a strong sibling bond and that their bond with their mother was such that there should not be a significant change in residence.

21. She also agreed that the children had formed “a very settled and stable relationship” with their stepfather and half sibling.

22. She stated further that none of those bonds detracted from the fact that the children all have a secure and strong attachment to their father.

23. She said that it had been her impression that the father intended to make positive steps to also relocate to the Region 2 area, but that she understood that that was simply one scenario which might play out in the circumstances.

24. It was her evidence that the key to making the transition to Town A as positive as possible for the children lay not in the timing of the move, but in “these parents and their support for one another and their attitude to each other”.

25. She said further that she thought that both parents would likely benefit from “some guidance around how to continue to support these children through the future change and all the possible scenarios”.

26. In saying that the children, too, would be likely to benefit from continued counselling, Ms L said that the children are very articulate and engage well with professionals and that she hoped that “both parents will be open to advice regarding the children’s issues.”

1. Ms L answered all questions in a considered and thoughtful manner and she was a most impressive witness.

2. She did not resile from her recommendations as set out in her report.

Decision: Issue A

1. In practical terms, this decision is almost moot, as the delay in delivering this judgment has meant that the children and the mother have had to remain in Town B since trial.

2. Nevertheless, based on Ms L’s expert evidence, and considering the matters set out in paragraphs 90 to 138 of these Reasons, I find that it is in the children’s best interests for the mother not to be permitted to relocate their residence to Region 1/Region 2 until the end of the 2018 school year.

3. That will allow for the children to undergo what is a major transition in their lives, settle into their new home and explore their new surroundings before they then have to settle into new schools and make new friends.

4. They will also have some time to say goodbye to friends, paternal family, their schools and their familiar surroundings before undergoing that transition.

The Law

1. Orders which set out with whom and where children should live are parenting orders.[1]

   [1] See s.64B(2)(a) Family Law Act 1975.

2. The law in relation to parenting orders is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).

3. The objects and principles underlying Part VII are set out in Section 60B of the Act and I set those objects and principles out here for the benefit of the parties:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse and neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2): the principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

4. Section 60CA of the Act makes clear that when a court is making a parenting order, its “paramount consideration” must be the child’s best interests and I will turn to that very important issue shortly.

5. The parties in this matter have agreed that they will continue to have equal shared parental responsibility for their children.

6. S.65DAC of the Act sets out the effect of a parenting order that provides for shared parental responsibility as follows and again, I set out the provisions of that section here for the parties’ benefit:

   (1)  This section applies if, under a parenting order:

   (a)  2 or more persons are to share parental responsibility for a child; and

   (b)  the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.

   (2)  The order is taken to require the decision to be made jointly by those persons.

   Note:          Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).

   (3)  The order is taken to require each of those persons:

   (a)  to consult the other person in relation to the decision to be made about that issue; and

   (b)  to make a genuine effort to come to a joint decision about that issue.

   (4)  To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

   65DAE No need to consult on issues that are not major long‑term issues

   (1)  If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:

   (a)  has parental responsibility for the child; or

   (b)  shares parental responsibility for the child with another person;

   about decisions that are made in relation to the child during that time on issues that are not major‑long term issues.

   Note:          This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long‑term issues.

7. The parties’ agreement that they should equally share parental responsibility for their three children has the consequence, under s.65DA of the Act, that the Court must consider whether it is in the children’s best interest for them to spend equal time with each parent should the father also move to the Region 2 area.

8. S.65DA of the Act reads:

   (1)  Subject to subsection (6), 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.

   Note 1:       The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

9. I note that the minute of consent orders provided to the court allows for the children to spend equal time with each of the parties should the father be able to relocate to the Region 2 area, and for a different, much contracted arrangement should he be unable to do so.

10. S60CC of the Act sets out the issues the court must consider when deciding what orders to make in a child’s best interests and I will consider the evidence in relation to each of those issues in turn.

11. S60CC states as follows:

Determining child’s best interests

Primary considerations

(2)     The primary considerations are:

(a)     the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b)     the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Note:     Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

(2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

1. It is clear from Ms L’s evidence that all three children have meaningful relationships with both parents.

2. I note, in that context, that the word “meaningful” is a qualitative rather than a quantitative adjective[2]. That is, it is not the amount of time a child spends with a parent that makes their relationship meaningful, but what happens when they are together.

   [2] See Brown J in Mazorski & Albright [2007] FamCA 520 and Cronin J in Tait & Densmore [2007] FamCA 1383.

3. The only issue of risk to the children’s physical safety raised in these proceedings is in relation to the traffic conditions that pertain on country roads between the Region 1 and the Region 2 area on Friday evenings.  Because such roads are considered by the father to be quite dangerous in dark, cold and wet conditions, he proposes to spend time with the children from Saturday morning to Sunday evening rather than from Friday evening to Sunday evening each fortnight once the mother and children have relocated.

4. However, I note that Ms L is concerned about the children’s emotional and psychological safety which appears to have been put at some risk by the tension between the parents and the difficulties that tension has caused for the children, particularly in being exposed to each of their parents making derogatory comments about the other.

5. I note that the minute of consent orders provided to the court contains restraints on the parents from either denigrating each other or discussing these proceedings in the presence or hearing of the children.

Additional considerations

1. Additional considerations are:

(a)     any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

1. [X] told Ms L that he did not support his mother’s proposal to relocate to Town A. He was concerned that the relocation would mean he would necessarily spend less time with his father, although he was equally clear that he did not wish to be separated from his siblings.  He wanted to spend more frequent periods of time with both parents, although Ms L thought it was more important for him to see both parents displaying a positive attitude to the other parent.

2. [X] is clearly torn between his love for his father and for his mother and siblings, an unenviable position for a young man to be in.

3. [Y] reported feeling somewhat conflicted about her mother’s wish to return to the Region 2 area, telling Ms L “she should be allowed to be with her family”, but at the same time expressing concern about being separated from her friends and her father for long periods of time.  However, at the time of the family report interviews [Y] had recently visited the house in which she would live in Town A and expressed a wish to live there.

4. [Z] was not formally interviewed and therefore her views are not known, although both [X] and [Y] described her as struggling with her parents’ separation.

(b)    the nature of the relationship of the child with:

1. each of the child’s parents; and

1. other persons (including any grandparent or other relative of the child);

1. All three children are described as having close, appropriately attached and loving relationships with both parents, although, as might be expected of a boy of his age and in his circumstances, [X] was experiencing some tension in his relationship with his mother.

2. The children are also described as having appropriately warm and close relationships with both sets of grandparents - the paternal grandparents in Town D, and the maternal grandparents in the Region 2 area.

3. Ms L was confident that the children’s relationships with their paternal grandparents were solid enough to survive the relocation without significant deleterious effect.

4. The children apparently raised no issues with Ms L about their relationships with their stepparents, and all were said to have appropriate relationships with Mr B and [A].

(c)     the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

1. to participate in making decisions about major long‑term issues in relation to the child; and

1. to spend time with the child; and

(iii)  to communicate with the child;

1. These parents have co-operatively parented their children both before and, for the most part, after separation. They have historically been able to agree on schools for them, and there have been no major disputes about the children’s health care.

2. Both parents have taken every opportunity to spend time and communicate with the children, this being evidenced by the positive, close and loving relationships observed by Ms L.

(ca)   the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

1. The parties’ trial Affidavits (those of the mother sworn and filed on 22 December 2017 and on 19 January 2018, and that of the father sworn and filed on 12 January 2018) contain considerable allegation and cross allegation in relation to the father’s payment of child support and other expenses for the children.

2. Clearly, this is a hotly disputed issue between the parties. 

3. It is not possible for the court to make a finding of fact in relation to this issue, as neither party gave evidence at trial, which means that none of the evidence was tested.

4. Nevertheless, there is no doubt that Mr Heywood pays child support, and I am satisfied that each of the parties has maintained the children when they have been in their care in the sense that they have sheltered, fed and clothed them.

(d)   the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

1. either of his or her parents; or

1. any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. Inevitably when the children relocate to Town A with their mother, stepfather and young brother, there will be a sense of dislocation from their father, his partner and her children. They have spent considerable time with him throughout their lives and all expressed some sadness at the prospect of spending less time with him once they move ([Z] through her siblings and [X] and [Y] directly to Ms L).

2. Nevertheless, the parties are agreed that the relocation will take place. They are not in agreement about when that should happen.

3. I have already mentioned the inevitable change in the children’s relationship with their grandparents as a result of the relocation, at least insofar as the time they spend with them is concerned.

(e)     the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

1. Both the difficulty and the expense of the children spending time with the father will increase once the mother relocates the children’s residence to Town A, which is approximately 200 kilometres and a little under two-and-a-half hours’ drive from the father’s current residence in Town C on the Region 1.

2. The evidence before the Court is that it is more likely the distance than the expense that will impact the children’s relationships with their father, although it will not affect their ability to maintain those relationships and direct contact with him on a regular basis.

3. It is possible to ameliorate the distance somewhat by making orders that keep the children in touch with their father during the times they are not in his physical care and the minute of consent orders provides for such an arrangement.

(f) the capacity of:

1. each of the child’s parents; and

1. any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

1. There is no evidence to suggest that these parents are unable to care for their children in the material sense. The children are well sheltered, fed and clothed and also attend school regularly.

2. In general, the Court is satisfied that the parents are able to deal with the children’s emotional and psychological needs.

3. At trial, Ms L stated the following:

   … I was mostly impressed by both these parents.  I think they’re both very child focused.  I understand the challenges for both of them.  I understand that it’s difficult for the mother to delay the relocation; it’s difficult for the father to go quickly.  But they spoke respectfully, they spoke mostly in agreement about the children and who they are, and I found them both to be very focused on the children’s needs.  I think this is just a temporary experience of tension, and that upon all these main decisions being resolved, I think all the other secondary decisions will come along quite well.

4. Nevertheless, the court has some concerns that the children have been impacted negatively by the parties’ separation in that they have been inappropriately involved in the dispute between their parents about the relocation to the extent that they feel torn. Indeed, [X] told Ms L that he felt as though he had to choose between his parents. As previously stated, that is not a good emotional space for a child to be in.

5. The parties will need to be vigilant in ensuring that the children are not involved in any future disputes between them in order to safeguard children’s emotional health.

(g)    the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

1. Ms L is very congratulatory of these parents in terms of their parenting and their behaviour towards each other while in the family report interviews.

2. At paragraph 58 of her report, which was read into the record during submissions made by counsel for the mother, she said the following:

   The writer wishes to acknowledge the presentation of the children as highly impressive.  They are delightful children, achieving and competent in their educational environment, successful with social skills and networking and appropriately engaged in extracurricular activities.  The parents both present as intelligent and insightful and it was obvious that the children have benefited from substantial time and involvement of both parents, as they appear to enjoy a loving and warm relationship.  The children displayed confident and nurturing interactions with both their parents.  Although the children have some knowledge of the parents (sic) dispute regarding the mother’s wish to relocate, the children continue to hold a very high opinion of both their parents.

3. She says that all three children are mature appropriate to their ages and stages of development and she commends the parties for that situation.

4. In addition, [X] is an academically gifted child who participates in an accelerated learning program. There is some evidence that he will be able to continue such a program when he moves to the Region 2 area.

5. The only other matter to mention in this context is the need for both parties to be sensitive to the children as they pass through adolescence and their needs inevitably change. Part of adolescent maturation involves becoming more independent of family and the parties should understand that adolescents, while appearing not to need their parents as much as when they were younger, in fact rely on them to be there for them in case their independent adventures go awry.

(h)    if the child is an Aboriginal child or a Torres Strait Islander child:

1. the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

1. the likely impact any proposed parenting order under this Part will have on that right;

1. There is no evidence before the Court that the children in this matter have any Aboriginal or Torres Strait islander heritage.

1. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

1. I have already mentioned Ms L’s view that these three children have been appropriately parented (save for their being involved in adult issues between their parents), and she describes the children as “delightful”.

2. It is to Mr Heywood’s credit that he has acceded to the mother’s wish to relocate to the Region 2 area so she can have secure housing and the support of her family of origin. That cannot have been an easy decision to make and it shows a focus on the needs of his children that is to be greatly commended.

1. It is clear to the Court that both these parents love all three children dearly and there is no suggestion that they will not continue to be appropriately parented as they grow older.

(j) any family violence involving the child or a member of the child’s family;

1. While there is no evidence before the court of any physical family violence being perpetrated by one party against the other in this matter, the mother refers to the father’s behaviour as manipulative and bullying in relation to the time he has spent with children since the parties separated. 

2. The father denies those allegations and again I can make no finding about them as they were not tested at trial.

(k)    if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:

1. the nature of the order;

1. the circumstances in which the order was made;

(iii)  any evidence admitted in proceedings for the order;

1. any findings made by the court in, or in proceedings for, the order;

1. any other relevant matter;

1. Most unusually in proceedings coming before this court, the court is not aware of any family violence order having been made between these parties. 

(l)     whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. It is almost always preferable to make orders which are designed to finalise legal issues between parties. It is not a positive experience for children, or parents for that matter, to be the subject of legal proceedings and can lead to anxiety and trauma for all parties.

2. I note that the minute of consent orders provided by the parties is intended to resolve all current disputes between them.

(m)   any other fact or circumstance that the court thinks is relevant.

1. There is no other fact or circumstance the court thinks is relevant in this matter.

Decision: Issue A

1. The evidence of Ms L about the children’s ages and stages of development, and particularly that about their stages of educational development, lead me to conclude that the mother should not relocate with them to the Town A area until at least the end of the 2018 school year and I will make an order permitting her to do so at that time.

Issue B.  How much time the Father should spend with the children pending the relocation of the Mother and the children to Town A.

1. At the time of writing it is now only a matter of weeks until Ms Marek is permitted to relocate with the children to Town A.

2. Had I been able to attend to this judgment earlier in the year, I would have said that, for all the reasons set out above in relation to the children’s very positive relationships with both parents, and particularly Ms L’s evidence at trial in relation to this issue, they should spend equal, week about time with each of them. And indeed, the orders made by consent provide for equal time should the father also be able to move to the Region 2 area.

3. However, the short time between the completion of this judgment and the end of the school year leads me to believe that such a change at this time without the full co-operation of both parents is likely to be unsettling and disruptive for the children.

Decision: Issue B

1. Until the mother and children move to Town A, unless the parents are able to co-operatively agree in writing on a different regime such as equal week about time, the children should remain in their current regime.

Conclusion

1. These children have experienced a lot of change in their young lives: the separation of their parents and the repartnering of each, with step-siblings in one home and a half-sibling in the other.

2. In the next few months, almost everything about their daily lives will change. They will live in a new town, a new house, and they will go to new schools and make new friends.

3. They will spend less face-to-face time with their father than they have been used to in the past, although they will spend as much time with him as the distance between their homes will allow.

4. It is to be hoped that the parties will understand that this change will need patience and understanding of these three young people as they go through this transition, and I note in this regard that the parties have provided for counselling as part of the consent orders to be made.

5. The bonds between these parents and children are strong, and for so long as the children are the first focus of the parents, there is no reason why all relationships between them ought not to strengthen further as the children grow.

I certify that the preceding one hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 29 October 2018