MCDONALD & CHAPMAN

[2010] FamCA 173

FAMILY COURT OF AUSTRALIA

MCDONALD & CHAPMAN [2010] FamCA 173

FAMILY LAW – CHILDREN – with whom a child lives  – with whom a child spends time – with whom a child communicates – order for equal shared parental responsibility

FAMILY LAW – CHILDREN – no finding of unacceptable risk – relocation

Family Law Act 1975 (Cth) ss 60B, 60CC, 61C, 61DA, 65DAC, 65DAE

Starr & Duggan [2009] FamCAFC 115
MRR v GR  [2010] HCA 4

APPLICANT: Mr McDonald

RESPONDENT: Ms Chapman

FILE NUMBER: BRC 9649 of 2009

DATE DELIVERED: 4 March 2010

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 11 & 12 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Alexander

SOLICITOR FOR THE APPLICANT: Walsh Halligan Douglas

COUNSEL FOR THE RESPONDENT: Mr M Turnbull

SOLICITOR FOR THE RESPONDENT: Ogilvie Jennings

Orders

1. BY CONSENT Ms Chapman (“the mother”) and Mr McDonald (“the father”) have equal shared parental responsibility for the children V born … October 2004 and E born … August 2008 (“the children”).

2. The children live with the mother.

3. The mother be permitted to reside with the children in or about Hobart, Tasmania.

4. The children will spend time with the father as follows:-

   (a)In 2010 for the first 5 days of the mid year school holidays (from 9.00 am Saturday to 5.00 pm the following Thursday) and the first 3 days of the Easter break (being from 5.00 pm Good Friday to 5.00 pm Easter Sunday). In respect of the Easter holidays such time is to be spent by the father with the children in Tasmania.  In respect of the other two mid year school holiday periods such time is to be spent with the children in Brisbane if requested by the father.

   (b)In 2011 for the first 6 days of the mid year school holidays (from 9am Saturday to 5.00 pm the following Friday) and the first 3 days of the Easter break (being from 5.00 pm Good Friday to 5.00 pm Easter Sunday). In respect of the Easter holidays such time is to be spent by the father with the children in Tasmania.  In respect of the other two mid year school holiday periods such time is to be spent with the children in Brisbane, if requested by the father.

   (c)From 2012 onwards for one half of the mid year school holidays (from Saturday to Saturday) and one half of the Easter break. Being the first half of such holidays in even numbered years and the second half in odd numbered years.  In respect of these holiday periods, such time is to be spent with the children in Brisbane if requested by the father.

   (d)In respect of V, for three weeks commencing 24 December in the 2010/2011 Tasmanian Christmas/New Year school holiday period and each alternate year thereafter and for three weeks commencing 1 January 2012 and each alternate year thereafter.

   (e)In respect of E to spend the same time as the Christmas/New year school holidays as V, except in the next three Christmas/New Year school holiday periods the time will be five days in the 2010/2011 Christmas/New Year holiday period, six days in the 2011/2012 Christmas/New Year holiday period, seven days in the 2012/2013Christmas/New Year holiday period and thereafter the same as V.

   (f)three weekends during each of the Tasmanian school terms from 9.00 am Saturday to 6.00 pm Sunday subject to:-

   (i)the father giving the mother at least four weeks notice of such weekends;

   (ii)such weekend not to include the Mother’s Day weekend;

   (iii)such weekends to take place in Hobart, Tasmania.

   (g)In terms of the times the children’s travel to Brisbane for the two mid year school holiday periods and the one end of year school holiday period, the father shall be responsible for the cost of the travel (including an adult supervisor) for the children to be taken to Brisbane and the mother shall be responsible for the cost of the travel (including an adult supervisor) for the return of the children at the end of those holiday periods.  In terms of E the mother will be responsible for her return in 2010/2011 and 2012/2013 Christmas/ New Year holidays.

   (h)Such other or alternate times as the parties may agree in writing.

5. Each parent shall have available to the children SKYPE, a videolink or similar to enable communication with the parent with whom the child/children are not living three times per week at such times as agreed between the parties.  If the parties are unable to agree then it will occur at 6.00 pm each Sunday, Wednesday and Friday.  If a party has made alternate arrangements for any one of those nights such party may alter that time and day provided:-

   (a)make up time is offered:

   (b)and such party gives to the other party seven (7) days written notice in advance of such change

6. Each party shall keep the other informed at all times of their residential address and relevant telephone numbers and advise of any change within four days of such changes.

7. Each party shall keep the other informed of the names and address of any treating or other health care professionals who treat the child and/or children and authorise such health care professional to provide the other parent with information in relation to the child and/or children.

8. Each party shall keep the other informed of any significant medical condition or significant illness suffered by the children or either of them and this order authorises any treating medical practitioner to release the children’s medical information to the other parent.

9. Both parents authorise the principal and teachers of the schools attended by the children to give the other parent information about the children’s education, progress and other related activities and provide them with copies of school reports, photographs, certificates and awards obtained by the children.

10. Neither party abuse, belittle or demean the other in the presence or within the hearing of the children.

11. The mother will:-

    (a)continue to have regular consultations, accept treatment and accept recommendations of Dr H in relation to her mental health issues, and

    (b)for a period of 2 years authorise Dr H, in writing (with a copy to the father), within fourteen (14) days, to inform the father;

    i.of any significant deterioration in the mother’s mental health (reasonable ups and downs excepted);

    ii.if the mother ceases treatment; or

    iii.if the mother fails to take medication or follow treatment recommended by Dr H; or

    iv.fails to attend consultations without reasonable excuse.

    (c)provide a similar authority to her new psychologist, within fourteen (14) days, if she changes her psychologist.

12. 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.

13. This matter be removed from the list of cases requiring determination.

14. 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.

    IT IS CERTIFIED

15. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: BRC 9649 of 2009

MR MCDONALD

Applicant

And

MS CHAPMAN

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. These are proceedings between Mr McDonald (“the father”) and Ms Chapman (“the mother”) relating to the parenting arrangements about their children, V aged 5 and E aged about 18 months.

2. Both parties agreed that there ought to be an order for equal shared parental responsibility.  Having regard to all of the evidence in these proceedings and the legislative factors, I am satisfied that this is an appropriate order and is in the best interests of the children.  As such I will make that consent order.

3. The father wants the mother to return to live in Brisbane with the children.  He seeks either a shared care arrangement or an arrangement where the children spend significant and substantial time with him.  The father also seeks a complex series of other orders in relation to the children.

4. The mother wants the children to live with her in Hobart and spend unsupervised time with the father in Tasmania.  She also seeks orders for some limited school holiday time.

5. In mid 2009 the mother was diagnosed with a Major Depressive Episode, she moved to Hobart in June 2009.  The evidence is that her health has improved since that time. She will return to Brisbane to care for the children if they are not permitted to continue residing in Hobart.  The mother claims that a return to Brisbane would trigger another major mental health event in her.  The father is unable or unwilling to move to Hobart and believes that his relationship with the children would be lost or diminished if they were allowed to reside with the mother in Hobart.

THE ISSUES

1. The central issues are:-

   a.with whom the children should live, either the mother or the father and/or whether there ought to be equal or significant and substantial time with one or other of the parents.

   b.if the children live with the mother whether the mother ought to be permitted to live with the children in or about the Hobart area. 

   c.if the children are living in the Hobart area what time should the children spend with the father and how should they communicate having regard to the nature of the relationship between the father and the children.

   d.if the children are living in Queensland what time should the children spend with each parent and how should they communicate having regard to the nature of the relationship between each parent and the children

2. In his case outline the father seeks significant orders (some 23) some of which seem superfluous. I raised with counsel, prior to final submissions the concerns I had about these complex orders and indicated, subject to submissions, that I was contemplating general orders regarding access to medical and educational information and orders to prevent either party denigrating or abusing the other in the presence or hearing of the children.

3. Having regard to the agreement for equal shared parental responsibility the balance of the issues can be resolved by the parties through negotiation or other alternative dispute resolution methods.

BACKGROUND

1. The father is aged 41 and the mother aged 32.  The parties met and started going out in Melbourne in about November 2001. They commenced cohabitation in early 2004 and married in March 2004.  V was born in November 2004. In December 2007 the parties moved from Melbourne to Brisbane and in August 2008 E was born.

2. In May 2009 the father obtained a Justices Examination Order (“JEO”) in respect of the mother. This JEO was obtained ex-parte and without the mother’s knowledge or consent.  Her liberty was deprived for a period of time and she was compulsorily psychiatrically assessed.

3. Following this event the father, the mother’s parents and her sister were concerned about the mother’s mental health. The mother’s parents and sister came to Brisbane and there were discussions about the mother’s wellbeing and place of residence in early June 2009. The father moved out of the former matrimonial home in Brisbane (from his perspective this was a temporary arrangement).

4. On 16 June 2009 the mother and the two children moved to Tasmania with the consent of the father, albeit his consent was reluctant.  At that time it was not intended to be a permanent move by the mother, although at that point in time each parent had their own unstated view as to what ‘temporary’ meant.  The mother believed it was for an indefinite period of time, the father believed it was a shorter period of time, perhaps a week or two.

5. In July 2009 the father requested that the mother return to Brisbane and there were some discussions between the parties in August and September 2009.  During these months the father was confronted with the illness and subsequent death of his father.

6. In August 2009 the father attempted mediation through Relationships Tasmania. The mother says, and I accept, she was given little notice of the appointment.  She did, however meet with the father in Hobart.  In September 2009 there was further interaction between the parties.  A complaint was made by the mother as to whether the father had sexually abused the child E.

7. The mother complained about the father’s behaviour during the course of the marriage in terms of sexual abuse to her and her concerns about the care of E.

8. These proceedings were commenced by the father in the Federal Magistrates Court in October 2009.  Those proceedings came before a Federal Magistrate in December 2009 and were then transferred to the Family Court.  The Family Court in Brisbane was unable to hear the matter urgently and the proceedings were transferred to the Family Court in Hobart and were heard by me on 11 and 12 February 2010.  I had ordered an urgent family report.  The parties attended interviews with the family consultant two days before the hearing and a report was prepared and released on 10 February 2010.  It is a credit to the staff of Child Dispute Services, Hobart that they were able to accommodate a request for an urgent report, undertake the interviews and produce a report in a very short period of time.

9. On 26 December 2009 the father came to Tasmania to spend time with the children including overnight time with V.  On 31 December 2009, in breach of the informal parenting agreement, the father took V to Brisbane without the mother’s knowledge or consent.

10. Unsurprisingly, the mother contacted her solicitor, as soon as was practicable (bearing in mind the general shutdown of the legal profession over the Christmas and New Year period), and an agreement was entered into between the parties’ solicitors that the father would return V to the mother on 12 January 2010.

11. The father resiled from that agreement and retained V until these proceedings came before Bell J on 20 January 2010, after which event the child was returned to the mother in Tasmania.  The father had little or no insight into the impact of his retention of V and resiling from the agreement to return the child had upon the children and the mother.

12. When the mother moved to Hobart in June 2009, she lived with her mother.  Since that time the mother has obtained her own accommodation.  The mother claims that she is emotionally and physically supported by her mother, father and her broader family and friends in and about the Hobart area.  I accept that evidence.

13. The mother suffers from serious depression.  The father claims that the mother’s depression has passed.  He does, however, claim that the mother is or was recently delusional.

14. In these reasons any statement of fact is to be regarded as a finding of fact.  It is not a matter for me to touch on all aspects of the evidence in these reasons, I have had regard to all of the evidence of the parties and of the family consultant.

THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED

1. The Court must determine what is in the children’s best interest having regard to the objects and principles set out in s 60B of the Family Law Act 1975 (Cth) (“the Act”).

2. In determining those interests the court must have regard to the relevant factors set out in s 60CC of the Act. The relevant provisions are:

   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.

   Additional considerations

   (3)      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;

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

   (i)each of the child’s parents; and

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

   (c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

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

   (i)either of his or her parents; or

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

   (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;

   (f)the capacity of:

   (i)each of the child’s parents; and

   (ii)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;

   (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;

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

   (i)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);

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

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

   (k)any family violence order that applies to the child or a member of the child’s family, if:

   (i)the order is a final order; or

   (ii)the making of the order was contested by a person;

   (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;

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

3. In addition there are those matters set out under s 60CC(4) & (4A). A Court must consider the s 60CC(2) considerations as “primary considerations”.  This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A Court should have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests.

4. A Court also needs to evaluate the nature and quality of the parent child relationship.

5. The Full Court in Starr & Duggan [2009] FamCAFC 115 set out the following approach to applications involving relocation of a child:-

   Approach to applications involving relocation of a child

   33.The core principle consistently referred to in all appellate decisions involving challenges to parenting orders (including where an order for relocation is sought) is the “paramountcy principle” found in s 60CA.  That is, a court must regard the best interests of the child as the paramount, but not sole, consideration.

   34.The interplay between the paramountcy principle, the objects of the Act and the principles underpinning those objects is described in Goode & Goode (2006) FLC 93-286.

   35.In McCall & Clark the Full Court referred (at paragraphs 58 to 60) to explanations given in other relocation cases of the order in which relevant provisions in Part VII may be applied when determining a parenting application. Their Honours (Bryant CJ, Faulks DCJ and Boland J) went on to explain (at paragraphs 61 and 62) that it will often not be an academic exercise to consider whether a child should spend equal time with both parents, as such an order is likely to be sought by a non-relocating parent. 

   36.The Full Court also pointed out that in seeking to address all of 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).

   37.Thus the appellate decisions determined after the commencement of the Family Law Amendment (Shared Parental Responsibility)Act 2006 (Cth) have set out a framework which a judicial officer may follow when determining applications for parenting orders, including an order that a child be permitted to relocate.

   38.However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:

   (iv)first make findings concerning the relevant s 60CC factors;

   (v)then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and

   (vi)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.

   33.Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.

THE WITNESSES

The family consultant

1. A family report was prepared on 10 February 2010 (“the family report”) and released to the parties the same day.  The family consultant saw the parties on 9 February 2010.  In the family report she made the following substantive observations:-

   ·The children have lived primarily with their mother for the last six months but have retained a close connection with the father (notwithstanding some limited time and communication he has had with them).

   ·Equal time parenting arrangements are not indicated bearing in mind the matters set out in the report (which I accept).  This includes high conflict.

   ·The father’s ability to care for the children on a full time basis is largely untested.  I accept that if the children were in the father’s full time care he would have significant support by his family.

   ·The mother has demonstrated an ability to care for the children even when unwell.   The children are secure and content in the mother’s full time care and she is their primary attachment figure.

   ·The mother has a poor opinion of the father but there is no indication that she has directly or indirectly shared those feelings with the children.

2. The family consultant observes[1]:-

   … It is possible that, with ongoing support and psychological assistance [the mother] will be able to cope with and facilitate the children having an appropriate amount of time with the father.

   … The father can maintain and promote his relationship with the children provided the father has sufficient time and communication with them.

   … The mother’s mental health is directly linked in her ability to care for the children.

   [1] Family report dated 10 February 2010 paragraph at  paragraphs 35, 36 and 37.

3. The family consultant made some implicit criticism of the father engaging V in the parenting dispute.  However, having regard to the evidence of the family consultant I am not satisfied that it is of a significant nature.

4. The family consultant’s determination that the mother is the primary carer is based upon the history presented to her by the mother, not her observations.  Having regard to the evidence provided during the trial by both parents, I am satisfied that the mother has been the primary carer and is the primary attachment figure to both children.

5. Having accepted the evidence of the family consultant and hearing the evidence of the mother, I am satisfied further that, despite the mother’s concerns about the father, she has not undermined the relationship between the children and their father.

6. The family consultant said that the mother’s mental health is an important consideration in this matter.  The family consultant believed that whilst the mother had concerns about the father’s care of the children she was able to separate her own concerns and have sufficient insight to give the father the benefit of the doubt.

7. It is apposite at this time to deal with the question of the mother allegedly being difficult in respect of the father seeing the children when he was in Hobart for the family report and for the hearing.

8. It is clear that the mother was not pro-active in arranging for the father to see the children.  The mother is still upset by the father “abducting” [the mother’s words] V over the Christmas holidays.  Whilst I have some concerns about the mother encouraging the relationship between the children and the father I am satisfied that the mother has not in the past, and is unlikely in the future to undermine that relationship.  Quite the contrary the mother has preserved the relationship notwithstanding the limited time the father has spent with the children since June 2009.

9. The family consultant said that the change to V’s school at this time would not be of a serious consequence in terms of V.  I accept that evidence.

10. The family consultant said it was her view that the mother should remain in Hobart.

11. I accept the evidence of the family consultant.

The father

1. The father gave evidence in accordance with his affidavit filed 9 February 2010.  He described a conversation he had with a psychiatrist who undertook the JEO assessment of the mother in May 2009.  Tendered in evidence was the relevant page from that report.[2]  Its analysis of the mother’s mental health in that report was far more benign than the histrionic version provided by the father in evidence.

   [2] Exhibit W1.

2. The father was defensive in his evidence (at some levels understandably) and saw none of the mother’s health issues as a consequence of any actions on his part.  He had little insight into the impact on the mother of initially removing V from Tasmania without the mother’s knowledge or consent and then resiling from the agreement reached between the solicitors in respect of V’s return to the mother’s care.

3. The father was open to separating the children (if only for a short period of time) both in terms of some discussions he had with the mother and her family in June 2009 and in taking V in January 2010.

4. He said that his work was such that it would take a second place to the children although during the time when he retained V he went to work over three days when the child was in his care. The father had adopted the role as ‘breadwinner’ and the mother as ‘homemaker’.

5. The father’s evidence has to be carefully assessed in the light of his tendency to blame the mother and to exaggerate.

The father’s sister and brother-in-law

1. The father relied on affidavit evidence by his sister Mrs N[3] (“the father’s sister”) and brother-in-law Mr N[4] (“brother-in-law”) in terms of their involvement with the children.  Neither of those witnesses were required by the mother for cross-examination.  Their evidence was in support of the father.

   [3] Filed 9 February 2010.

   [4] Filed 9 February 2010.

The mother

1. The mother gave evidence in accordance with her three affidavits filed
   15 December 2009, 12 January 2010 and 10 February 2010.

2. The mother was clearly nervous in the witness box and endeavoured to be an advocate for her own case (as was the father from time to time).  The mother readily agreed that at the time she moved to Hobart the move was not intended to be permanent although she has now formed that view.  She was at times argumentative and endeavoured to answer questions with long explanations.  On one occasion she was not responsive to a question in respect of the relationship between the father and the child.

3. Generally, however, I am satisfied that the mother tried to give evidence truthfully.  Whilst she said she had concerns of the father, and in her “heart of hearts” she would prefer the time that the father had with the children to be supervised, she accepted (as there was no evidence of abuse) the approach recommended by the family consultant but remained fearful for the children whilst in the care of the father.

4. As I have said earlier she was not proactive in relation to the children spending time with the father over the week that he was in Hobart for the hearing.

5. I have some concerns about the mother exaggerating and using the giving of evidence as a platform to argue her case rather than provide direct answers.

The Children’s maternal grandmother

1. The children’s maternal grandmother Mrs L (“the maternal grandmother”) provided evidence by way of affidavit[5].  She gave evidence that she travels to Melbourne to visit her other daughter in that city and that when the mother was living in Brisbane she would regularly visit her in that city perhaps three or four times per year.  She was otherwise unchallenged.

   [5] Filed 14 December 2009.

Dr H

1. An affidavit was filed by Dr H on behalf of the mother[6].  It contained a report dated 3 February 2010.  There was no challenge to Dr H’s qualifications and she was cross-examined on her material.  Her report of 3 February 2010 was a more expansive report than the one attached to the mother’s affidavit filed 15 December 2009.

   [6] On 3 February 2010.

2. Dr H, a clinical psychologist, observed that the mother presented with significant depressive symptoms which were consistent with the diagnosis of a major depressive disorder.  Dr H observed that since first seeing the mother in July 2009 the mother has made significant therapeutic gains not only because of the intervention offered to her but also because of the environment in which she lives.  Dr H has seen the mother on 9 occasions.

3. Dr H says the mother is coping well and is controlling her symptoms.  Dr H says the mother reported feeling more confident and being more in control of her life.  Dr H goes on to say:-[7]

   I remain optimistic that [the mother’s] better adjustment will continue while she is able to put some geographic and emotional distance [emphasis added] between herself and [the father] and his family …

   [7] Page 2 of Annexure A of Dr H’s affidavit filed 3 February 2010.

4. I accept Dr H’s evidence.

The mother’s mental health issues

1. The family consultant observes that:-[8]

   … [The father] is aware that various psychological assessments have not supported his concern that [the mother] has had paranoid thoughts.  He accepts that [the mother’s] mental health has most likely improved since her move to Hobart.

   [8] Family report paragraph 14.

2. In early 2009 the father says[9] that he:-

   … started to consider that [the mother] might be unwell [suffering mental health issues].

   [9] Paragraph 13 of the father’s affidavit filed 9 February 2010.

3. The evidence the father gave during the hearing was somewhat different in that he said that the mother had always suffered mental health issues.

4. The father was concerned that the mother was at least depressed and he held a view that she had delusional thoughts (although his diagnosis was not ever confirmed).  In May of 2009 such was his concern about the mother’s mental health the father spoke to her general practitioner and decided to apply for a JEO (referred to earlier in these reasons).  This is a procedure available in Queensland which allows a person to gain a non-urgent mental health assessment of a person who may be experiencing mental health problems.  It is an order issued by a Magistrate or a Justice of the Peace.

5. The assessment had an impact on the mother who described it as “a distressing and traumatic experience”.

6. The psychiatrist who undertook the assessment observed:-[10]

   … she [the mother] has likely Major Depressive Episode without definite evidence of psychotic symptoms at this point …

   [10] Exhibit W1.

7. As a consequence of the assessment and the surrounding circumstances the mother commenced taking anti-depressant medication.  The father was concerned that the mother had declined anti-depressants in January 2009.  The mother’s explanation of her decision not to take anti-depressants at that time was her concern about how the chemicals would affect her breast milk, the child E having been born five or six months previously.  I accept her evidence in that regard.

8. Prior to May 2009 there had been about three episodes where the mother had had time out with her family, once in Melbourne and twice in Hobart.  At the request of the mother the parties had moved to Brisbane because the mother said she was concerned about the father’s associates in Melbourne and his involvement with people in the arts industry.

9. Such was the father’s concern about the mother, in May 2009, that he felt that if she was not treated for her mental illness he would need to remove the children from her care.  After the examination pursuant to the JEO the father continued to have concerns about the mother’s mental health.

10. The children’s maternal grandparents and the mother’s sister came to Brisbane to see the mother as they were similarly concerned about her health at that time.  After discussions between the mother, her family and the father, it was agreed that the mother would move to Hobart to live with her mother for a period of time and that the children go with her.

11. I am satisfied that there was no arrangement as to the amount of time the mother would be there, but it was designed with the intent to enable the mother to repair her health.  I am satisfied at that time the mother was suffering from a major depressive disorder, having regard to the evidence of Dr H and the report in relation to the mother’s assessment on 28 May 2009.

12. The father suggested that Dr H’s prognosis of the mother was solely based on the history provided to her by the mother.  Dr H’s conclusions were reached having regard to the history she took from the mother, the children’s maternal grandmother and her professional observations of the mother.  I accept the evidence and conclusions of Dr H that with the benefit of geographic and emotional distance between the mother and the father, combined with treatment, the mother’s mental health has significantly improved.

13. Such is the improvement that when the father retained the child V over the Christmas/New year holiday period, and then subsequently resilled from an agreement between solicitors as to the return of that child, the mother coped well with that stress.

14. I am satisfied that the father did not readily accept that the mother had depression but believed she has broader undiagnosed mental illnesses.

15. I accept the evidence of Dr H, which was, that the mother’s health will continue to improve while she is able to put some geographic and emotional distance between herself and the father and while she has support from her family.  Dr H’s view is that given further time the mother’s mental health will improve further.

16. Counsel for the father submitted that the mother has (past tense) suffered from depression and this has occurred for some time and there is nothing new in the circumstances.  I reject that submission.  The evidence of and on behalf of the mother and Dr H was that the mother’s depression was a major concern in May 2009 and has improved since that time although it still remains a concern.

17. The mother was criticised in relation to her move to Hobart as she had also suggested that she move to Melbourne.  This must be seen in the circumstances that the mother was endeavouring to put some distance between herself and the father (the parties’ relationship having ended or in the process of being broken down) and that in Melbourne the mother would have the support of her sister.

18. The mother was criticised by counsel for the father because she moved out of her mother’s home a few months after moving to Hobart.  The evidence of the mother, the maternal grandmother and Dr H, was that the mother’s mental health issues were being addressed, and I accept that evidence. 

19. Counsel for the father submitted that the support offered by the maternal grandparents and the mother’s sister would be available to the mother in Brisbane.  That is certainly the case but it would not be anywhere near the extent that it would be available to the mother in Hobart, with her immediate family support and the emotional and geographic distance from the father which was alluded to by Dr H.

20. It was submitted on behalf of the father that his family would be available to help the mother.  The father’s sister was called to be cross-examined on her affidavit. Counsel for the mother did not pursue that course and the father’s sister remained in the Court whilst the mother was giving evidence. The father’s sister made extraordinary facial expressions, rolled her eyes and exhibited hostility to the mother as the mother was giving evidence.  I raised this issue with the father’s counsel at the time and I raised it again during submissions.  I am not satisfied that the mother would be able to rely on her sister-in-law or her brother-in-law for support if the mother were to return to Brisbane to live with the children.  A relationship had not developed between the mother and her sister-in-law between December 2007 and when the mother left Brisbane in June 2009.

21. I am satisfied that the evidence supports the mother’s need to remain in Hobart for health reasons.  I am concerned that if the mother was to return to Brisbane her mental health has the capacity to deteriorate to the extent that she would no longer be able to care for the children. This needs to be seen in the context that counsel for the father said of the mother:-

    “No doubt the mother is a good mother”.

22. I am satisfied on all of the evidence that the mother has been the primary carer of the children from their respective births to date.  I am also satisfied that the children are primarily attached to the mother.

23. The father submits that it is imperative that such young children spend frequent time with each of their parents.  That is the optimal situation but this has to be dealt with in terms of the circumstances in which they find themselves.  I accept that it would be easier and better for the children to be closer to their father so that he could spend regular short periods of time with them.  However, that need has to be weighed up against other issues, particularly the mother’s mental health.

24. Counsel for the father submitted that the children’s ability to have a meaningful relationship with the father cannot and will not occur because of the attitude of the mother and her insistence to remain in Hobart.  I reject that submission, particularly having regard to the preservation of that father/children relationship since June 2009.

25. The father has retained a close relationship with the children, despite having lived in Hobart with their mother, and that is confirmed by the family consultant.  The orders that I propose to make will facilitate regular contact between the children and the father and will enable the father, when he travels to Melbourne for business from time to time, to visit the children.  The order will also provide for regular electronic communication between the children and their father.

26. Electronic communication can never be used as an alternative to face to face time but it can be used as one of the ways in which children can maintain contact with a parent.

27. There was an issue as to whether the mother’s move to Hobart was temporary or permanent.  There was no issue that the move to Hobart was a temporary move, however, there was an issue as to the length of time the mother was to stay.  The father described it as a unilateral relocation.  It did not fall into that category.  The mother was very ill.  She went to Hobart and the marriage broke down.  The mother sought and obtained medical assistance.

Section 60CC (2) Factors

(a) the benefit of the children having a meaningful relationship with both of the children’s parents

1. From the evidence of each of the parties and the family consultant there is a clear benefit to each of the children in having a meaningful relationship with both parents.  The underlying problem is that the mother’s health is such that I am satisfied, that if she was required to live in Brisbane, it would exacerbate her depression and is likely to cause her to go back to the sad state in which she found herself in May/June 2009.  This could make it difficult, if not impossible, for this otherwise good parent to continue her care of the children.  That would not be in the children’s best interest.  In Hobart, with the assistance of her parents and under the supervision and guidance of Dr H, the mother’s mental health is likely to improve.

2. The mother has permitted the father to spend time with the children since she has moved to Hobart. She has maintained regular electronic contact, by telephone and Skype, between the children and their father. The father’s counsel was scathing of the mother for not obtaining a computer.  However, the mother’s finances are limited and she had access to a computer through her mother’s home.

3. Counsel for the father was also critical of the mother for not allowing the children to speak to the father by Skype on the Sunday before the hearing.  The mother’s reasons and reasonable explanation was that it was in the middle of a long weekend and she was staying at her father’s home which did not have that technology.

4. The outcome sought by the father, which is that both the parents live in Brisbane, would facilitate a meaningful relationship between both parents and the children. However, it would leave the mother exposed to a decline in her mental health (as I have set out earlier in these reasons) with the likelihood of her being unable to continue in that role for the long term.   

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

1. The mother has made serious allegations in relation to the father.  These are outlined in her affidavit filed 10 February 2010, at paragraphs 10(a), (b) and (c).  In addition the mother says that the father has engaged in heavy drinking and illicit drug taking.  She also says she is distrustful of the father and she suspects that he has drugged her and sexually abused her.  All of these allegations are denied by the father.

2. In this case the mother seeks orders that the children have unsupervised time [emphasis added] with the father notwithstanding that the mother believed something may have happened between the father and E in September 2009.  The mother says:-[11]

   … During [the father’s] visit in September of this year [2009] we stayed at […].  During this time he did spend time alone with [E] including 15 minutes on the Thursday evening and approximately 5-10 minutes on the Friday.  On or about the Friday I was concerned when I saw scratches and also blood in [E’s] nappy.  I was so concerned that I took [E] to the [local] hospital where she was referred to the Royal Hobart Hospital immediately.  [E] was attended to by Dr [W] at the Royal Hobart Hospital who confirmed that [E] had suffered injury to her anal region however at this stage there was no ability to say how the injury had been caused.  I contacted Tasmania Police in relation to this and I am waiting to receive the report.

   [11] Paragraph 28 of the Mother’s affidavit filed 15 December 2009.

3. The consequence of that was that the father was taken by the police and interviewed.  The father complained that this was a false allegation made by the mother against him.  The father did not suggest that the child had not suffered an injury.  I am satisfied this is part of the cycle of distrust that exists between the parties.

4. From the material it is clear that the mother distrusted the father’s involvement with his associates in Melbourne in the arts industry.  There are a number of incidents which were, to the father minor but to the mother major involving the father being arrested for urinating and staying out overnight.  The nature of the father’s associates and lifestyle precipitated the parties’ move to Brisbane in December 2007.

5. The mother suspected the father of infidelity and the father believed these were psychotic episodes by the mother.

6. This level of distrust developed until the father arranged for the mother to be the subject of the justice order examination.  The mother says of this:-[12]

   12.My mental health deteriorated as I had strong reason to believe that each of these three allegations regarding [V], [E] and also [A].  [The father’s] continual accusations that I was delusional and psychotic worsened my depressive symptoms and left me with feelings of extreme distrust towards him.

   13.Unbeknown to me [the father] continued to make a request of Queensland Mental Health that a JEO assessment be carried out on me.  I recall the occasion when this occurred.  Without any warning police cars arrived at our home.  Two police officers, psychiatric nurses and a psychiatrist arrived at the door and stated they had been advised that there was an emergency situation in the family and the family was in danger.  I had no idea what this was in relation to and I was fearful and distressed.  The outcome of the JEO was that I was suffering from depression and that I was not delusional or psychotic.  There was no allegation the children were in danger whilst in my care.  A secondary voluntary assessment with a Senior Psychiatrist of Queensland Mental Health also confirmed nil evidence of a delusional disorder.

   14.It was such a culmination of these issues and also the JEO which worsened my depression to such an extent that I could not function.  During this time when I was at my worst [the father] took [V] from our home to his sister […’s] residence.  He said this was because I was unable to look after [V] however he left [E] in my care.  During this time I was prevented from having phone contact with [V].  This was between October 2008 and May 2009 and was for a period of up to three days at a time on four occasions.

   15.My parents and sister became very concerned about the current situation so much so they travelled to Brisbane to look after me.  It was upon their recommendation that it was decided, with [the father’s] consent that I should spend a period of time in Hobart with the two children.  No time frame was put on this as it was clear I would need significant recovery time away from [the father].

   [12] Mother’s affidavit filed 10 February 2010.

7. There were also allegations by the mother that V had been physically abused.

8. Having regard to all of the evidence before the Court, I am not satisfied that V was physically abused as alleged nor am I satisfied that E was sexually abused.  Further, I am not satisfied that there is an unacceptable risk of the children being abused in the care of the father.  However, in keeping with the general approach of this Court I make no positive finding either way.  On the evidence I find that the various allegations are part of and have added to the cycle of distrust that existed between these parties where each of the parties looked on the other in a hard and destructive way.  They do not look for benign explanations they assume the worst.  Such as the mother’s concerns about the father’s conduct and the father’s complaints about the mother’s slow reaction to his late request to see the children in Tasmania.

9. Counsel for the father made comment on a number of matters:-

   (a)The mother delayed in making the allegations.  In terms of the allegations regarding E in September the father knew full well what those allegations were and the fact that it was not contained in correspondence is not a significant feature.  The father also knew of the mother’s concerns about his lifestyle and his behaviour prior to separation.

   (b)The mother, on advice, did not file a Form 4 as to risk of abuse of the child E.  This, however, must be seen in the context that the mother had fears and suspicions but there was no substantive evidence of such abuse.  In those circumstances the mother did not seek supervision nor did she seek injunctions.

   (c)The father asserted that new allegations were made in the mother’s affidavit sworn 10 February 2010. I am not satisfied these are new allegations.  They are old allegations some with more detail.

10. I am not satisfied that the allegations of abuse were made by the mother in an unmeritorial or dishonest way, or in an attempt to improve her case.  I am satisfied that the concerns of the mother reflected her poor mental health and her lack of trust of the father.

11. The amplification of the conflict and mistrust was added to by the father removing V to Brisbane in December 2009, without the mother’s knowledge or consent, and then agreeing to the return him but subsequently declining to adhere to that agreement.

12. The father then criticised the mother for not being proactive in terms of the contact between the father and the children when the father came to Hobart for this hearing. 

13. In summary I do not believe the children are at unacceptable risk of abuse by the allegations made by the mother and I am not satisfied that the father poses an unacceptable risk to the children.

Section 60CC (3) Factors

(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. The views of the children are not a relevant consideration in these proceedings.

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

(i)  each of the child’s parents; and

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

1. As I have found earlier the mother is the primary carer of the children and has been since the children’s birth.  The father has a close relationship with the children and I accept the evidence of the family consultant in that regard.

2. I do not accept that the father’s relationship with the children will deteriorate by virtue of the mother remaining in Hobart, although it would be easier for the relationship to develop if the mother was living in Brisbane.  I have to consider this in light of the other factors.

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

1. It is important that the mother is able to encourage and promote a relationship between the children and the father.  In the vortex of the relationship breakdown and the issues of distrust that arose before and after the relationship breakdown neither party has been pro-active in terms of encouraging a relationship between the children and the father.

2. Despite the mother’s concerns about the father she facilitated time between the father and the children over the Christmas/New year school holiday period.  She has also maintained regular electronic communication between the father and the children.

3. In submissions counsel for the father was critical of the mother in that she did not return to Brisbane from Hobart.  That submission has to be seen in the light of the fact that the mother travelled to Hobart to deal with her major depressive illness.  In the context of that move and being separated from the father both geographically and emotionally her health improved.  She made it clear to the father that she wanted to remain in Hobart.

4. The mother has facilitated time between the father and the children, albeit not to the optimal extent and not to the extent sought by the father but she has not imposed or sought restrictions having regard to the nature of her concerns.

5. The mother was criticised for not having a computer in her home.  She has made the children available to use her mother’s computer to enable them to communicate with the father.  The father’s criticisms of the mother in this regard are somewhat petty

6. The mother, honestly, admitted she would have preferred supervised time but realistically acknowledged the factual circumstances of this case are such that it would be unlikely that such an order would be made.  The mother has managed that and discussed this with Dr H.

7. I am not confident that the father will encourage a relationship between the mother and the children. The father was content to remove V from the mother’s care in Hobart and then he resiled from an agreement to return him to the mother.

8. Having regard to the evidence I am satisfied that the mother would not actively prevent the father from spending time with or communicating with the children and, with the passing of time, as the mother’s health improved it is likely that she would encourage a relationship and resume better communication.

9. Further the mother is entitled to some degree of happiness and it is unlikely, given the history of her illness in Brisbane that she would be happy in those circumstances. I am satisfied that her unhappiness would impact her relationship with the children and their relationship with their father.

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

(i)either of his or her parents; or

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

1. The effect of the change on the mother of a move to Brisbane is likely to be catastrophic in terms of her health and her ability to care for the children.  I am not satisfied that the father is able to care for the children as well as the mother (given that the mother’s health remains adequate).

2. The mother’s proposal to remain in Hobart would restrict the time the father spends with the children, in particular E who is very young.

3. Any move to Brisbane would not have any significant impact on V in terms of his school.

(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. If the mother is permitted to remain in Hobart this will have an impact on the time the father would spend with the children.  There would be sizeable cost in travelling to and from Hobart particularly having regard to the age of the children and the need for someone to travel with them.  It would be expensive for the father to travel to and spend time with the children in Hobart.

2. The family consultant’s evidence was that the optimal way for the children to see the father would be frequent periods of time away from their primary carer to be with the other parent.  The family consultant expressed a view, which I accept, that bearing in mind the age of the children that equal time or significant and substantial time was not in their best interests.  I endorse that approach in particular when considering the high level of distrust and poor communication between the parties.

3. The telephone or Skype, as I have said earlier, is a tool but is certainly not as effective as face to face time.

(f)     the capacity of:

(i)     each of the child’s parents; and

(ii)    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. The mother has shown a remarkable capacity to care for the children despite her illness.  The father concedes the mother is a good mother and makes few criticisms about her capacity in that regard.  I am satisfied that she is able to continue to do so into the future particularly given the promising prognosis of
   Dr H, as set out in her report.  This would be provided the mother did not live in Brisbane but lived in Hobart.

2. To the mother’s credit she adopted a frank approach with respect to the children.  That is, that if the children were required to live in Brisbane she would live in Brisbane notwithstanding the adverse impact that would likely have upon her health. Such is her attachment to the children that she would take an extreme health risk to continue in her role as their mother and primary carer.

3. The way the parties operated in their relationship in respect of the care of the children was that the mother stayed at home and cared for the children while the father went to work.  This is not to diminish his role as a parent.  Clearly he loves the children and has been involved in their care, however this is to a much lesser level than the care provided by the mother.

4. Counsel for the father submitted that there was no evidence to suggest the father was unable to care for the children.  That may well be the case but, as observed by the family consultant, it is untested.

5. When the father had V for three weeks he went to work for a few hours over a period of three days.  The father’s work is important to him and he intends to continue in that occupation.  This is not a criticism of the father but simply recognition of the reality that exists.  His evidence is that he will require and needs support from his family including his sister.

6. The father conducts his own business and whilst I accept his evidence that his hours are flexible he still intends to run the business to provide his income.

7. One of the factors I needed to consider was whether the children could be left with the father for more than a day or so.  Having regard to the mother leaving E in child care up to three days per week I see no reason why there ought not to be an order that the child spends longer period of times with the father.  In the next twelve months it would seem to me that periods of up to five days would fit in well.  To that end I will provide that this applies to both E and V for the current school holidays, and this will develop from that base.  As the father travels to Melbourne from time to time for work I will structure orders to enable him to visit the children and spend time with them.  In addition I will structure the orders to include holidays so that the cost of travel is equitably divided.

8. The father submits that due to logistical difficulties if the mother was allowed to remain with the children in Hobart it would lead to further proceedings.  I am not sure that this is the case however, if the mother is forced to reside in Brisbane, and having regard to the likelihood of deterioration to her mental health, that would almost inevitably involve further litigation.

9. I find that the mother is better equipped as a primary carer of the children than the father.  The mother is better able to look after the children given her history and care of the children in the past.

10. The case for the mother is that the children should live primarily with her in Tasmania and the father should visit them in Tasmania and eventually spend some time with him in Queensland.  The mother’s evidence is clear that she would move back to Queensland to be close to the children if they were ordered to live in that State notwithstanding the profoundly detrimental impact it would have on her health. 

11. I have considered equal time and significant and substantial time, having regard to the lack of trust, the high level of conflict and the age and maturity of the children (particularly after considering the evidence of each of the parties, the evidence of Dr H and the evidence of the family consultant) it is neither practical nor would it serve the best interests of the children.

12. If the mother’s health was such that I formed the view that she ought to have returned to Brisbane I would not, in the circumstances of this case, have made an order for equal time or significant or substantial time.  I would have ordered short regular periods of time between the children with the father.  I would also have left the mother as the primary carer for the children.

13. If the children are living in Hobart then it is not reasonably practical to consider equal or significant or substantial time.

14. It was submitted that the father could move his business to Hobart having regard to the father having previously moved his business from Melbourne to Brisbane.  I accept the evidence of the father that his business is established in Brisbane, he has staff in that city and another move is likely to undermine his business and it may no longer be a viable way to earn income.

(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. This has been generally dealt with elsewhere in these reasons.

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

(i)     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

(ii)  the likely impact any proposed parenting order under this Part will have on that right;

1. This not a relevant consideration in these proceedings.   

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

1. The mother is a good parent who has been the primary carer of the children since birth.  A primary criticism of her parenting relates to her mental health, which she has taken steps to effectively address.  Another criticism of the mother is in respect of the allegations she makes about the father, which I have addressed elsewhere in these reasons.

2. The father is likewise a good parent. Understandably he wants the children to live close to him and he wants to be involved in their day to day life.  At times he lacks insight as to the mother’s heath needs and the relationship between the mother and the children. 

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

1. I have dealt with this elsewhere in these reasons.

(k)any family violence order that applies to the child or a member of the child’s family, if:

(i)     the order is a final order; or

(ii)    the making of the order was contested by a person;

1. This is not a relevant consideration in these proceedings.

(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. I have commented on this elsewhere in these reasons.

Section 60CC(4) of the Act

(a)has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long-term issues in relation to the child; and

(ii)to spend time with the child; and

(iii)to communicate with the child; and

(b)has facilitated, or failed to facilitate, the other parent:

(i)participating in making decisions about major long-term issues in relation to the child; and

(ii)spending time with the child; and

(iii)communicating with the child; and

(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child

1. These factors have been generally considered in the wider discussion earlier.

CONCLUSION

1. In MRR v GR  [2010] HCA 4 the High Court set out the following:-

   7.Section 65D(1) provides that the Court[13] may make such a parenting order as it thinks proper, subject to the provisions of ss 61DA and 65DAB.  Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.  The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child[14].  Section 65DAB requires the Court to have regard to any parenting plans entered into between the parties and is not relevant in this case.

   [13]Section 69H(4) confers jurisdiction on the Federal Magistrates Court in relation to matters arising under Pt VII.

   [14]Family Law Act 1975 (Cth), s 61DA(4).

   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 added)

   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".

2. As there is to be an order for equal shared parental responsibility I am bound to positively consider those matters required by s 65DAA.

3. In the light of the findings of fact and the s 60CC considerations I have considered whether the children spending equal time or significant and substantial time with each of the parents would be in the best interests of the children.

4. Similarly I have considered whether the children spending equal time or significant or substantial time with each of the parents is reasonably practicable.

5. Finally I have considered making an order to provide (or including a provision in the order) for the children to spend equal time or significant or substantial time with each of the parents.

6. Having regard to all of the facts and circumstances of this case I determine that it would be in the children’s best interests to live primarily with their mother and to live with her in Hobart.

7. In coming to this decision I have had regard to the best interests of the children as the paramount, but not sole, consideration.

8. This is a finely balanced exercise having regard to:-

   ·the mother’s mental health and the success of her move to Hobart in June 2009.

   ·the need and importance of the children’s relationship with both parents,

   ·the likelihood of a deterioration in the mother’s health if she moved back to Brisbane.

   ·the father being unable or unwilling to move to Hobart,

   ·the father’s belief that his relationship with the children would be lost or diminished if they were allowed to reside with the mother in Hobart. 

9. I have considered the likely effect of any change (either way) in the children’s circumstances and the practical difficulty and expense of the children spending time with each parent, both within the context of s 60CC(3) and when applying s 65DAA, especially s 65DAA(5). On the mothers case the parties will be separated by a great distance, on the father’s they will live in close proximity. Neither party is particularly financially well off and as such the cost of transport and in the case of the father, accommodation, will be onerous, if the mother is allowed to remain with the children in Hobart.

10. The parents’ communication is not particularly strong, however both seem to have a positive approach for the future, in terms of their joint submission for equal shared parental responsibility. 

11. Both parents’ proposals have positive and negative elements to them, which I have considered.

12. Having considered all of the findings of facts in the light of the relevant s 60CC factors I am satisfied that equal time or substantial and significant time is not in the child’s best interests whether they live in Brisbane or Hobart.

13. I am also satisfied that it is in the children’s best interest that they remain in the primary care of the mother and spend time with and communicate with the father.

14. Further I am satisfied that arrangements for the children to spend such time and communicate with the father are reasonably practicable, having regard to the matters referred to in s 65DAA(5), including referring back to the earlier s 60CC findings.

15. The mother’s health and her relationship with the children and their relationship with her are such that the mother ought to be permitted to live with the children in or about Hobart.

16. It is important for the children to have an ongoing relationship with their father and to do so will mean that E will, in these circumstances, spend longer periods of time with the father but more irregularly.  There also needs to be regular communication and the orders I will make will provide for this.

17. The mother’s health remains problematic and I raised with her counsel, during submission and with Dr H during her evidence whether she should be required to provide Dr H with authority to inform the father if the mother’s mental health deteriorated or if the mother ceased treatment or taking her medication. Counsel for the mother consented to such an order and Dr H deposed that it would not significantly adversely impact on the professional relationship.  As such I will make such an order, but limit it for a period of 2 years. 

I certify that the preceding one hundred and fifty five (155) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate:     

Date:              4 March 2010