McGee and McGee (No.3)

[2011] FMCAfam 600

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MCGEE & MCGEE (No.3) [2011] FMCAfam 600

FAMILY LAW – Children – mother seeking to relocate from Darwin to Melbourne with two very young children aged 3 years and 19 months – in the alternative seeking a delay order for relocation whereby court orders relocation to occur in 2014 – conflicting recommendations by family report writer as to a delay order – whether a delay order suitable where parties have minimal communication and have not co-parented since separation – father has had limited supervised time with the children – meaningful relationship not established with the younger child – interim orders have been problematic – Skype orders not successful – history of family violence prior to separation – where parties parents have become entrenched in the dispute – need for order to be an interim order.

Family Law Act 1975 (Cth), ss.4, 60B, 60CC, 61DA, 65DAA

Ahcraft & Haber [2010] FamCA 6
D & K [2006] FMCAfam309
G & C [2006] FamCA 994
Godfrey & Sanders [2007] FamCA 102
Height & Rhett  [2010] FMCAfam 1268
M & S (formerly E) (2007) FLC 93-313
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92
Morgan & Miles [2007] FamCA 1230
MRR & GR (2010) HCA4
Russo v Aiello (2003) 215 CLR 643

Applicant: MS MCGEE

Respondent: MR MCGEE

File Number: DNC 352 of 2010

Judgment of: L. Turner FM

Hearing dates: 12, 13 & 14 January 2011 and
4, 5, 6 & 7 April 2011

Date of Last Submission: 7 April 2011

Delivered at: Darwin

Delivered on: 20 June 2011

REPRESENTATION

Counsel for the Applicant: Ms Giacomo

Solicitors for the Applicant: Ward Keller

Counsel for the Respondent: Ms Farmer

Solicitors for the Respondent: Withnalls Lawyers

ORDERS UNTIL FURTHER ORDER

1. That the children of the marriage [X] born [in] 2008 and [Y] born [in] 2009 live with the mother in Darwin, Northern Territory.

2. That until further court order the mother is hereby restrained and an injunction issue restraining her from moving the place of residence of the children from Darwin, Northern Territory.

3. That the mother and father have equal shared parental responsibility for the children.

4. That each parent have responsibility for making decisions about the day to day care welfare and development of the children whilst the children are in their respective care.

5. That until [date omitted] 2012, that being [Y]’s third birthday the father spend time with the children as follows:-

   (a)Commencing 25 June 2011 each alternate Saturday from 9.00am to 5.00pm;

   (b)Commencing 2 July 2011 each alternate Sunday from 9.00am to 5.00pm, but should this time coincide with Mother’s Day then time with the father for Mothers Day will be suspended and  the father will have make up time with the children the following Sunday from 9.00am to 5.00pm;

   (c)Every Wednesday from 3.00pm to 6.00pm;

   (d)For each of the child’s birthday, from 3.00pm to 6.00pm on the day of the child’s birthday;

   (e)For the father’s birthday from 3.00pm to 6.00pm;

   (f)Christmas Day from 2.00pm to 7.00pm;

   (g)Father’s Day from 9.00am to 5.00pm;

   (h)For two one weeks blocks per year, from 9.00am to 5.00pm each day, provided the father provide to the mother six weeks written notification setting out the dates of the one week period, such dates not to coincide with Christmas or the children’s birthdays, and provided the father is the primary carer for the children during the one week block periods;

   (i)At all other times as agreed upon between the parties.

6. That upon [Y] turning three years of age on [date omitted] 2012, and upon the father producing to the mother a written report from a psychologist supporting the father spending overnight time with the children, the father spend time with the children as follows:-

   (a)Commencing 8 September 2012 every alternate weekend from 9.00am Saturday to 9.00am Sunday, but should Mothers Day fall on the Sunday then the father is to return the children to the mother at 5.00pm on the Saturday;

   (b)Commencing 16 September 2012 every alternate weekend from 5.00pm Sunday to 8.30am Monday;

   (c)Every Wednesday from 3.00pm to 6.00pm;

   (d)For the father’s birthday from 3.00pm to 6.00pm;

   (e)Christmas Day from 9.00am to 2.00pm;

   (f)Father’s Day from 9.00am to 5.00pm;

   (g)For two one weeks blocks per year, from 9.00am to 5.00pm each day, with an overnight on the Wednesday night provided the father provide to the mother six weeks written notification setting out the dates of the one week period, such dates not to coincide with Christmas or the children’s birthdays, and provided the father is the primary carer for the children during the one week block periods;

   (h)Such other times as are agreed upon between the parties.

7. That in the event that the father does not produce a written report from a psychologist as required in Order 6, then the father’s time with the children will continue in accordance with Order 5, and then after production of the report, in accordance with Order 6.

8. That provided the father has been spending overnight time with the children in accordance with Order 6 for a period of 9 months or more, then upon [Y] turning four years of age on [date omitted] 2013 the father spend time with the children as follows:-

   (a)Commencing 7 September 2013 every alternate weekend from 9.00am Saturday to 5.00pm Sunday but should this time coincide with Mother’s Day then time with the father for Mothers Day will be suspended and the father will return the children to the mother at 5.00pm Saturday and the father will have make up time with the children the following weekend from 5.00pm Saturday to 5.00pm Sunday;

   (b)Every Wednesday from 5.00pm Wednesday to 8.30am Thursday;

   (c)For the father’s birthday from 3.00pm to 6.00pm;

   (d)Christmas Day from 2.00pm to 7.00pm;

   (e)Father’s Day from 9.00am to 5.00pm;

   (f)For two one weeks blocks per year, from 9.00am to 5.00pm each day, with an overnight on the Monday, Wednesday and Friday nights provided the father provide to the mother six weeks written notification setting out the dates of the one week period, such dates not to coincide with Christmas or the children’s birthdays, and provided the father is the primary carer for the children during the one week block periods;

9. That if by [Y]’s fourth birthday the father has not spent nine months of overnight time with the children in accordance with Order 6, then time with the children is to continue in accordance with Order 6, and at the expiration of 9 months of overnight time, the father’s time with the children will be in accordance with Order 8.

10. That unless otherwise agreed between the parties in writing, changeover will occur either at the children’s day care facility or at Catholic CareNT.

11. That time with the father is suspended for the mother’s birthday on [date omitted] each year.

12. That the mother is entitled to two extended holiday period per year of two weeks each with the children, such extended holiday periods not to include Christmas day or the children’s birthdays, provided the mother give to the father six weeks written notification setting out the dates of the holiday and providing details as to dates of the make up time for father, such make up time to be equivalent to the time missed by the father due to the mother spending holiday time with the children.

13. That the father have telephone communication with the children when they are not in the father’s care every Monday evening at 7.00pm with the father to instigate the call to a landline number or mobile number, such number to be provided by the mother forthwith.

14. That the mother forthwith provide to the father a communication book, such communication book to be used, written in and read by the parties only, with the parties to use the communication book to exchange information as to issues regarding the care welfare and development of the children, and in respect to changeover, holiday and make up time arrangements, and any other requirements for the use of the book as set out in these orders.

15. That neither party is to physically discipline the children, or allow another adult in their presence to physically discipline the children.

16. That the father will:-

    (a)not consume alcohol whilst the children are in his care;

    (b)ensure that the children wear bike helmets if bike riding;

    (c)apply sunscreen if the children are outside and ensure that the children wear hats,

    (d)not swear around the children.

17. That unless otherwise agreed, neither parent is to attend at the other parents home or work address for any purpose in respect to the carrying out of these orders.

18. That the parties will not denigrate each other to the children or in the presence or hearing of the children at any time and shall take steps to remove the children from the presence of any other person denigrating the other party.

19. That the mother provide the necessary authority to the children’s medical practitioners to enable the father to obtain copies of any medical certificates and reports.

20. That in the event either child requires a medical appointment or a hospital visit whilst in either parents care then the other parent is to be notified as soon as practicable as to the condition of the child and full details as to the medical appointment or the hospital appointment and are subsequently to be advised of any medicines required to be taken by the child or other medical treatment the child is to receive.

21. That the mother provide details to the father as to the day care facilities that the children attend and further provide the necessary authority to any day care facility to enable the father to collect and return the children that facility in accordance with these orders.

22. That each parent provide to the other parent within 24 hours written notification of any change in their home or work address, home, work or mobile telephone number or email address.

23. That the matter is listed for mention in the Federal Magistrates Court Of Australia at Darwin on 3 June 2014 at 9.30am and if by that date the issue of relocation has not been resolved between the parties, then an updated family report will be ordered and directions will be made to progress the matter to an urgent hearing on a final basis.

24. That if prior to the mention date either party wishes to bring an application for children’s matters including a contravention application then unless urgency is established, the parties must, prior to filing of an application, attend counselling or mediation to address the disputed issues.

25. That should the counselling or mediation prove unsuccessful, then written proof of the counselling or mediation must be provided to the Court prior to the filing of any application.

26. That pursuant to section 65DA (2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars form part of these orders.

IT IS NOTED that publication of this judgment under the pseudonym McGee & McGee (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN

DNC 352 of 2010

MS MCGEE

Applicant

And

MR MCGEE

Respondent

REASONS FOR JUDGMENT

Introduction

1. I have before me for determination competing applications in respect to the ongoing arrangements for two young children [X] born [in] 2008 (aged 3 years) and [Y] born [in] 2009 (aged 19 months at the time of the hearing).

2. The applicant mother is seeking an order that the children be permitted to relocate immediately with the mother to Melbourne, Victoria and spend time with the father.

3. The respondent father is opposing the application for relocation, requiring the children remain in the Darwin area, and seeking orders that the children live with the mother and spend time with the father.

Brief Background

1. The mother is aged 37 years and is employed part-time as a [occupation omitted].

2. The father is aged 32 years and works full time in the family [omitted] business which is owned by the father and the paternal grandfather.

3. In 2001 the parties met in London.

4. In early 2003 the parties commenced cohabitation in Darwin.

5. In 2006 the parties married. 

6. [In] 2008 the child [X] was born.

7. [In] 2009 the child [Y] was born.

8. In 12 May 2010 the parties separated when the mother left the former matrimonial home with the children and moved into rented accommodation in Darwin with the maternal grandparents.

9. In 14 May 2010 the mother applied for a Domestic Violence Order which is due to expire in May 2011.

10. On 30 May 2010 the father commenced regular supervised visits with the children at Catholic Care NT.

History of Court Proceedings

1. In July 2010 the mother commenced court proceedings seeking property and children’s orders.

2. On 13 October 2010 interim orders were made whereby the children spend supervised time with the father each Wednesday between 12.00pm and 2.00pm, and each Saturday between 9.00am and 1.00pm, such times to be supervised by the paternal grandmother with changeover to occur at Catholic Care NT.

3. On 14 January 2011 interim consent orders were made whereby the arrangements as set out in the previous interim orders remain in place, with father to spend time with [X] on her birthday and the father have Skype communication with the children for thirty minutes at 7.00pm every Tuesday.

4. On 14 March 2011, interim orders were made whereby the father vacate the [K] property and the mother have sole use and occupancy of the [K] property as from 29 March 2011.

5. At the conclusion of the hearing on 7 April interim children’s orders were made extending time to the father to include 9.00am to 1.00pm each Sunday and for all time to be unsupervised.

The reasons why the mother is seeking relocation

1. The mother puts forward the following reasons in support of her application for relocation:-

   a)The mother has extensive family support in Melbourne including the maternal grandparents and the mother’s sisters;

   b)The mother financially will be better advantaged in Melbourne, as the mother will live initially with the maternal grandparents and the ability to re-establish herself in Melbourne is greater than that in Darwin;

   c)The mother will be able to make better arrangements for the children as the mother can continue to work part time and will have the maternal grandparents available to provide care and support for the children;

   d)The mother never intended to remain living in Darwin, and there was an agreement between the mother and the father that they would relocate to Melbourne;

   e)Staying in Darwin will be detrimental to the mother’s mental health and may impact on her ability to parent the children;

   f)That the children will have a better lifestyle in Melbourne.

The reasons why the father is opposed to the relocation

1. The father is opposed to the relocation for the following reasons:-

   a)The children were born in Darwin;

   b)The mother has support in Darwin from the father’s family and friends and will continue to have the support of her family if she remains in Darwin;

   c)The father has not bonded with [Y] to the same extent as with [X] and needs an opportunity to develop and maintain the bonding;

   d)Whilst the parties had discussed relocation it was an option for the future and there was no firm agreement as to when relocation would occur;

   e)That the father does presently have the ability to relocate to Melbourne;

   f)That the mother if permitted to relocate to Melbourne the mother and her family will not facilitate time with the children and foster the children’s relationship with the father.

Orders sought by the mother

1. The orders sought by the mother were a moving feast, changing throughout the hearing.

2. At the commencement of the hearing the mother was seeking orders that:-

   a)The children live with the mother;

   b)The mother have sole parental responsibility for the children;

   c)That the mother be permitted to relocate immediately to Melbourne with the children;

   d)That the mother return to Darwin with the children two times a year for one week at a time and provide supervised time with the father during those times;

   e)That the father spend time in Melbourne with the children such time supervised in a contact centre;

   f)That the father have telephone communication/Skype with the children every night for thirty minutes;

   g)That if an order is made for the children to stay in Darwin then the father is to spend time with the children from 9.00am to 3.00pm three days a week.

3. During the course of the hearing the court was informed that as an alternative the mother was seeking an order whereby the mother be allowed to relocate to Melbourne with the children when [Y] reaches school age.

4. At the conclusion of the hearing the mother was seeking orders that:-

   a)The children live with the mother;

   b)The mother and father have equal shared parental responsibility for the children;

   c)That the mother be permitted to relocate immediately to Melbourne;

   d)That the mother travel to Darwin two weeks a year, the first week in June/July and the second week in December/January;

   e)That during the mother’s time in Darwin the father spend 9.00am to 1.00pm each day unsupervised with the children;

   f)That once [Y] turns 3½ years, then the father’s time with the children when the mother is in Darwin increase to 9.00am to 5.00pm for five days and then one overnight;

   g)That when [Y] reaches the age of 4 years the father’s time with the children be reviewed through mediation;

   h)If the father is in Melbourne, then time with the children is to be from 9.00am to 1.00pm with time increasing to 9.00am to 5.00pm when [Y] turns 3½ years and with time to be reviewed through mediation once [Y] turns 4 years of age;

   i)If the mother is not permitted to relocate with the children to Melbourne immediately then an order be made allowing the mother to relocate with the children to Melbourne at the end of 2014;

   j)That until [Y] turns 3 years the father spend time with the children each Saturday and Sunday from 9.00am to 1.00pm and during the day on Wednesday;

   k)When [Y] turns 3 years and until the age of 4 years, in a two week period the father spend time with the children in week one from 3.00pm Saturday to 9.00am Sunday, in week two from 3.00pm Sunday to 9.00am Monday and each Wednesday from 9.00am to 5.00pm;

   l)From when [Y] reaches the age of 4 years and until relocation alternate weekends from 9.00am Saturday to 5.00pm Sunday and every Wednesday between 9.00am and 5.00pm;

   m)That the parties spend alternate Christmas time with the children;

   n)That the father spend time with the children on their birthdays;

   o)That the father spend time with the children on Father’s Day;

   p)That the father’s time with the children be suspended on Mother’s Day;

   q)That the father have telephone/Skype communication with the children between 7.00pm and 7.30pm each Tuesday;

   r)That changeover occur at Catholic Care NT;

   s)That up until relocation occurs the mother be permitted to travel with the children to Melbourne for three periods of two weeks with makeup time made available to the father;

   t)That upon relocation, the father travel to Melbourne to spend time with the children for block periods of two to three days, and that the parties attend mediation to review the future spend time with arrangements;

   u)That upon relocation the father has telephone/Skype communication each night;

   v)That the father attend counselling for anger management until no longer required.

Orders sought by the father

1. At the commencement of the hearing the father was seeking the following orders:-

   a)That relocation to Melbourne not occur;

   b)That the children live with the mother;

   c)That changeovers occur at Catholic Care NT;

   d)That for a period of three months the father spend time with the children every Wednesday from 9.00am to 1.00pm and every Saturday from 12.00pm to 5.00pm Sunday;

   e)That for a period of four months every Wednesday from 9.00am to 1.00pm and every Saturday from 12.00pm to 8.30am Monday;

   f)Then every Fathers Day from 5.00pm Saturday to 8.30am Monday, from 5.00pm Friday to 8.30am Monday each alternate weekend, from 4.00pm Wednesday to 8.30am Thursday, and some special event times were specified.

2. At the conclusion of the hearing the father was seeking the following orders:-

   a)For equal shared parental responsibility;

   b)That the children live with the mother;

   c)That relocation to Melbourne not occur;

   d)That the children spend time with the children each Wednesday between 3.00pm and 6.00pm with changeover to occur at child care, each Saturday from 9.00am to 1.00pm and each Sunday from 9.00am to 5.00pm with changeover to occur at Catholic Care NT.

   e)Time on special days like fathers day, birthdays and Christmas day;

   f)Skype each Tuesday and Thursday;

   g)Commencing 17 September 2011, each Wednesday from 3.00pm to 6.00pm with changeover to occur at child care and every weekend from 3.00pm Saturday to 5.00pm Sunday with changeover to occur at Catholic Care NT.

   h)Use of a communication book;

   i)Mother permitted to travel interstate once a year for two weeks, not to include Christmas Day or New Years day and make up time on public holidays

Orders agreed upon between the parties

1. The following orders are agreed upon between the parties:-

   a)Orders 3, 4, 5, 6, 7 & 8 in the case outline of the father.

2. These orders in effect have been incorporated in the orders.

The parties evidence

1. Both parties are legally represented.

2. In respect to the mother I read and considered the following documents:-

   a)The initiating application filed 10 July 2010;

   b)Affidavit of the mother filed 11 January 2011;

   c)Affidavit of Ms C (mother’s sister) filed 11 January 2011;

   d)Affidavit of Mr G (maternal grandfather) filed 11 January 2011;

   e)Affidavit of Ms G (maternal grandmother) filed 11 January 2011.

3. The affidavit of Ms H filed 11 January 2011 was not allowed into evidence.

4. Four witnesses gave evidence on behalf of the mother:-

   a)The mother;

   b)The mother’s sister;

   c)The maternal grandfather;

   d)The maternal grandmother.

5. All four witnesses gave oral evidence and were subject to cross-examination.

6. The first witness was the mother.

7. The mother whilst not overtly reactive, as is the father, nonetheless displayed a strong character, and presented her evidence in a quietly spoken manner.

8. The mother did at times minimise her role in the conflict with the father leading up the separation and in so doing maximised the father’s role in such conflict.

9. Further the mother had “selective memory” about her involvement in some of the arguments between the parties.

10. The mother gave evidence of several incidents which leading up to the separation exacerbated the tension with the father including the numerous trips back to her parents and the secretive nature of the impending separation and the leaving of the home with the children, with the father not knowing that this was the mother’s intention, again aided by the maternal grandparents. 

11. My observations of the mother as a witness though, do not distract from her evidence, and I find her to be a credible witness, honest and truthful and I have given significant weight to the mother’s evidence.

12. The second witness for the mother was the mother’s sister Ms C.

13. I find the mother’s sister to be an articulate witness providing concise responses in cross-examination.

14. Her evidence however was limited in context, as her interaction with the mother and father has been restricted by her living overseas.

15. I find the mother’s sister to be a credible witness and have given weight to her evidence.

16. The third witness for the mother was the maternal grandfather.

17. The maternal grandfather presented as a strong willed patriarch with very set views.

18. The maternal grandfather clearly lays the blame for the breakdown of the marriage solely with the father and stated in evidence that he could not contribute any blame on his daughter as he didn’t know how she could have contributed to the situation.

19. The maternal grandfather was highly critical of the father’s parents, even though contact between the in-laws had been limited.

20. The maternal grandfather viewed his role as a rescuer and spoke of how the cycle of violence which had been handed down generation to generation to the father “had now been stopped”.

21. The maternal grandfather is to be admired for his support of his daughter during this difficult and stressful time, but whilst I will not go so far as to say the evidence by the maternal grandfather was tainted, the maternal grandfather was “one-eyed” in his evidence.

22. Further the maternal grandfather had selective memory about certain events including in his affidavit to only those aspects that were favourable to the mother.

23. Also at times the maternal grandfather was dramatic informing the court as to his “fear for my life” of the father and the paternal grandfather although admitting in the next breath that the father and/or paternal grandfather had never assaulted or threatened the maternal grandfather, and that the maternal grandfather had not spoken to the father and/or paternal grandfather since May 2010.

24. I therefore treat the maternal grandfather’s evidence with caution, and give limited weight to his evidence.

25. The fourth and final witness for the mother was the maternal grandmother.

26. The maternal grandmother was emotive and opinionated and resented being challenged and at times self righteous as if the proceedings were about her.

27. The maternal grandmother spoke of “feeling used” by both parties, of the parties not “caring” about her, and that her views had not been “considered” and that she had the “right to say what she thought”. 

28. However the maternal grandmother stated that she did not “hold any grudges” although maintaining that it was the father that held the grudge.

29. From hearing the evidence by the maternal grandmother, I suspect that statement is not entirely accurate.

30. The maternal grandmother blames the father for the breakdown and is clearly resentful of the father, as was evident in her strong and pointed delivery of some of her evidence.

31. Further the maternal grandmother, as did the maternal grandfather and the mother in their evidence, had selected memory about certain events, such selective memory minimising the maternal grandmother’s role in the conflict with the father and maximising the role of the father.

32. The evidence on the whole indicated that during the numerous moments of friction between herself and the father, the maternal grandmother gave as good as she got.

33. Further the maternal grandmother admitted in evidence that some of her recollection of events which were written into notes some months later may have been “tainted” because she knew the relationship between the mother and the father was coming to an end.

34. I give the maternal grandmother’s evidence limited weight.

35. Before moving on to the father’s evidence, I find it necessary to comment on the issue of note taking which was adopted by the mother and her witnesses.

36. The taking of notes commenced prior to the marriage breakdown and occurred in various forms.

37. Further notes were recorded at different time frames after the event about which the notes were taken occurred.

38. There is nothing technically wrong with this practice.

39. But the evidentiary worth that can be placed on such notes is only as good as the extent of the notes taken, the accuracy of the notes, and the timeliness of the recording.

40. Further to be selective in what aspects of the notes are recorded in affidavits leaves a party’s credibility open to questioning.

41. In this matter, the universal approach of the mother and her family in note taking with a view to litigation even before the parties had separated is a sad reflection on all concerned.

42. I have no doubt that it has added to the litigious nature of this matter, and has to an extent deflected on what is the real issue that needs to be determined, and that is what is in the best interests of two very young children.

43. In respect to the father I read and considered the following documents:-

    a)The response filed 22 October 2010;

    b)Affidavit of the father filed 10 January 2011;

    c)Affidavit of Ms M (father’s sister) filed on 10 January 2011;

    d)Affidavit of Ms J (paternal grandmother) filed 10 January 2011;

    e)Affidavit of the father’s friend Ms S filed 10 January 2011;

    f)Outline of case document.

44. Four witnesses gave evidence on behalf of the father:-

    a)The father;

    b)The father’s sister;

    c)The maternal grandmother;

    d)Ms S.

45. All four witnesses gave oral evidence and were subject to cross-examination.

46. The first witness was the father.

47. The father admitted that he lied to the family report writer as to the extent of his involvement in the family violence between the parties as he was concerned as to the ramifications and the impact it may have on his ability to see the children.

48. At the commencement of cross-examination the father provided half truths about many issues, minimizing his fault and used the phrase “no malice or intent” numerous times, but by the conclusion, was more open and honest in the delivery of his evidence and was taking responsibility for his actions.

49. Throughout his evidence, the father presented himself as stressed, sad and confused, as well as frustrated and at times angry.

50. His immaturity did not serve him well.

51. This is a man who is clearly grappling with the breakdown of his relationship and the current limitations on his role as a father, and is having difficulty coping with the situation and taking the steps necessary to move on.

52. I give weight to the father’s evidence, although the father’s conduct in the witness box has been considered in determining what arrangements are in the best interests of the children.

53. The second witness for the father was the father’s sister.

54. Of all the parties’ witnesses, I find the father’s sister to be the most credible.

55. Whilst in effect caught between the parties, and the drama generated by the animosity, the father’s sister gave intelligent well thought out responses in cross-examination.

56. The father’s sister did not sugar coat the evidence and certainly spoke bluntly about the father and his role in the marriage breakdown.

57. I give weight to the evidence of the father’s sister.

58. The third witness for the father was his mother, the paternal grandmother.

59. If the test for credibility of witnesses was based on demeanour only the paternal grandmother would fail on all accounts.

60. The paternal grandmother gave her evidence in a dogmatic and aggressive manner answering in a raised and sarcastic tone questions put to her in cross-examination.

61. But setting aside her somewhat off putting manner, the paternal grandmother’s evidence gave invaluable insight as to the paternal family dynamics before during and after the relationship.

62. Like the maternal grandmother and maternal grandfather did in respect of their daughter, the paternal grandmother crusaded in favour of her son, refusing to acknowledge that the father was capable of any violence (even though it had been admitted by the father), refusing to acknowledge that the mother may have been a victim of violence and laying most of the blame on the mother for the current proceedings.

63. Further the paternal grandmother gave evidence that she had provided therapeutic counselling to the father both as his mother and a qualified professional, which is a concern.

64. I give limited weight to the evidence of the paternal grandmother.

65. The fourth and final witness for the father was Ms S, a family friend.

66. Ms S delivered her evidence in an unassuming quiet measured manner, and I find her to be a credible witness.

67. Her evidence though was limited to her observations of the mother as both a friend and a midwife around the time of the birth of the children, and as almost a character witness for the father describing their relationship as “like brother and sister”.

68. It is on this basis that I give the evidence of Ms S limited weight.

69. In addition to the affidavits and the oral evidence a large number of documents were tendered by the parties.

70. In considering the matter, I have had regard to all of the material filed, all documents tendered, all oral evidence and to the submissions made by the parties.

71. Findings of fact are made on the balance of probabilities, having regard to the evidence and my observations of the parties and witnesses.

72. In what follows, statements of fact constitute findings of fact.

The Family Report

1. A family report was prepared by a family consultant based in Adelaide, Ms T for the purposes of the hearing and was released on 22 November 2010.

2. Ms T gave evidence at the hearing by telephone and was extensively cross-examined by both parties

3. Whilst I have given significant weight to the written report and oral evidence of the family report writer, there are areas of concern, addressed later in the judgment, which have impacted on the application of certain recommendations put forward by the family consultant.

The Law

1. The principles governing the determination of competing parenting applications are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. In deciding whether to make a particular parenting order, I must regard the best interests of the children as the paramount decision. 

3. In determining what is in children’s best interests, I must consider the primary consideration and the additional considerations as set out in

   
   

   section 60CC of the Act.

4. The primary considerations are consistent with the first two objects of Part VII of the Act as stated in section 60B.

5. There are two primary considerations. 

6. The first is the benefit of the children to have a meaningful relationship with both of the children's parents, and the second is the need to protect the child from physical or psychological harm, or being subjected to or exposed to abuse, neglect, or family violence.

7. The Act indicates that these considerations have particular importance, and, accordingly, in this judgment I will give them very careful consideration. 

8. I must also take into account the 13 additional considerations as they apply to this case, as set out in section 60CC(3).

9. I must also consider the extent to which each parent has fulfilled his or her parental responsibilities. 

10. In addition, when a child’s matter involves relocation, I must consider more than just the child’s best interests. 

11. In the case of Morgan & Miles [2007] FamCA 1230, Boland J considered the principles applicable to determining relocation applications.

12. It was observed by the Judge at [80] that the following principles apply:-

    “That the child’s best interest remains the paramount, but not the sole consideration;  that a parent wishing to move does not need to demonstrate compelling reasons;  that a judicial officer must consider all proposals and may himself or herself be required to formulate proposals in the child’s best interests;  that the child’s best interests must be weighed and balanced with the right of the proposed relocating parent’s freedom of movement”.

13. It was further stated at [81] that:-

    “What the legislation now requires is a consideration of the competing proposals against the criteria in section 60CC, informed by section 60B, and if a parenting order is made or proposed to be made and the presumption of equal shared parental responsibility applies, the consequences of an order for equal shared parental responsibility must be considered”.

14. At [74] Boland J observes:-

    “The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtaining such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.”

15. Under section 61DA(1), when making a parenting order the Court is to apply 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.

16. In the 2010 High Court relocation decision of MRR & GR (2010) HCA4, it was found that the Court is only empowered to make an order that a child spend equal time with both parents if such an order is found to be in the best interests of the child and is reasonably practical. 

17. The High Court states that section 65DAA(1) is expressed in imperative terms.

18. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents and the question whether it is reasonably practical that the child spend equal time with each of them. 

19. It is only when both these questions are answered in the affirmative that consideration must be given to the making of such an order.

Application of the law

1. This was an intense and laborious hearing lasting seven days over four months.

2. Many witnesses spent long periods in the witness box and as a result the evidence is voluminous.

3. Whilst in hindsight the case and time management of this matter should have been handled better not only by myself as the judicial officer but also by the legal representatives, it was a useful exercise as initially contentious issues, such as family violence, and the need for supervision have became less contentious as the evidence unfolded, and each party reassessed their position in light of the evidence.

4. I therefore will take the unusual step of listing some of the findings I have made from the evidence before exploring the considerations in section 60CC so as to avoid repetition and to provide a clearer direction in the delivery of judgment.

Preliminary Findings

Father’s relationship with the children

1. It is not in dispute that the father has a strong bond with the child [X].

2. It is also not in dispute that the father’s bond with [Y] is not as strong as it is with [X].

3. The reason for this is simple. Separation occurred when [Y] was a small baby, only 7 months old.

4. As noted by the family report writer at [8] of the report:-

   “Ms McGee noted that because of his young age when she and Mr McGee separated, [Y] was not as familiar with Mr McGee as [X] was.”

5. From the date of separation until court orders in October 2010 the father’s time with the children had been supervised, occurring at a contact centre.

6. From October 2010 to April 2010 time with the children for the father has been supervised by the paternal grandmother.

7. I find that the relationship between the father and the children is a factor which will weigh heavily in determining whether the mother be permitted to relocate immediately with the children to Darwin.

Family Violence during the relationship

1. Family violence is defined in section 4 and means :-

   “conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.”

2. The breakdown of this relationship was long and painful for both parties.

3. The tensions between the parties emanated from several sources including how to parent two very young children close in age, when the mother would be returning to work, financial difficulties within the marriage, the father working long hours and tension with and between the in-laws.

1. There were several isolated incidents between 2004 and 2007 where the father had damaged property and there had been threats made by the father.

2. Whilst the evidence would suggest that the cracks were beginning to show in the marriage by Christmas 2009, it would appear from the evidence that the relationship started to deteriorate after [X] was born and quickly went downhill after the birth of [Y].

3. The parties attempted counselling but it was too late.

4. By March 2010 the marriage was strained and in May 2010 the marriage was brought to an end when the mother with the assistance of the maternal grandparents left the matrimonial home with the children whilst the father was at work.

5. During the marriage there were loud verbally abusive arguments, in which both parties participated, full of drama, hot headedness and foul derogatory and demeaning language.

6. Further there were incidents during the marriage whereby the father, after much dancing around the issue admits that he physically restrained the mother including an incident where he placed the mother in a headlock or bear hug, and where he pushed the mother.

7. Whilst the father attempted to defend his actions on the basis that the mother was also physically abusive, the reality is that the father is physically stronger than the mother.

8. The father submits that he meant “no malice or intent” towards the mother, a phrase used repeatedly in his evidence.

9. Whether malice was intended or not does not take away from the fact that in the past the father used his physical stature and aggressive attitude to control and intimidate the mother, resulting in the mother being and remaining afraid of the father.

10. The father knew that his actions were wrong and has showed remorse.

11. In the letter written by the father to the maternal grandparents dated 26 May 2010 (“Exhibit I”) the father wrote in the second paragraph:-

    “…I would like to apologise for the way I was treating your daughter. Through all the verbal abuse and lack of respect there was no justification for these actions. For this I am truly sorry.”

12. The father’s actions impacted on the mother resulting in the mother acquiring a domestic violence order in the local courts which expires shortly and attending counselling and being prescribed anti-depressants.

13. I find that there has been family violence during the course of this relationship and particularly towards the end of the relationship.

Exposure of the children to Family Violence during the relationship

1. There is no doubt that the children were witness to the many verbal arguments that occurred between the parties.

2. The mother submits however that the child [X] was the subject of physical altercations as follows:-

   a)The mother was holding [X] in her arms when the father pushed the mother during an argument;

   b)The mother had a cushion thrown on her by the father when the [X] was on the lounge, and the cushion hit [X] causing [X] to spill her drink.

3. The father denies that any physical altercation was intentional.

4. I find that the children have been exposed to family violence and that the father, more than likely as a result of his volatile disposition has at times not thought out the consequences of his actions, thus unnecessarily putting the child [X] in harms way.

Family Violence since the conclusion of the relationship

1. The mother submits that there have been several incidents since separation which have caused her concern as to family violence in the future:-

   a)After the family report interviews the father drove and pulled his car up behind the mother’s car;

   b)The T-shirt incidents where the father changed the children’s T-shirts and put them in T-shirts that bore such slogans as “I love Darwin” and “Daddy is the best Daddy in the world;”

   c)The father’s sister Ms M sent two hostile messages in December 2010 relating to the Christmas period;

   d)The father posted details of a new relationship on facebook, where comments had been made comparing the mother with the new partner, which the father admitted was humiliating to the mother;

   e)The father strategically placed photographs of himself and the children for the mother to see when she returned to live in the former matrimonial home.

2. Unfortunately the father reacts first then thinks later.

3. What the father views as humorous, such as the T-shirt incidents is viewed by the mother as upsetting.

4. The father has not accepted the advice of others, such as the paternal grandmother and the sister that his actions may not be received well by the mother.

5. The mother in cross examination spoke about the “volatility in the relationship” and the “unresolved issues” which may in the future lead to domestic violence.

6. The mother submits that the incidents similar to those which have occurred since separation may escalate if a domestic violence order is not in place.

7. The mother also admitted that the risk of domestic violence was lower now the parties have separated and that it could be further reduced if face to face contact between the parents was kept to a minimum.

8. The mother submits that the only non compliance by the father of the existing domestic violence orders is when the father sent flowers.

9. The family report writer states at [37]:-

   “It would seem that the risk of any future violence perpetrated by the father towards the mother is relatively low, given that the context for much of the violence was their relationship issues, and they are no longer invested in maintaining a romantic relationship.”

10. By the time this judgment is delivered the existing domestic violence order would have expired.

11. Whether there is sufficient evidence to support making a new order will be up to the state courts.

12. Whether what has occurred amounts to family violence in respect to family law, I must turn to the definition in section 4 as set out above.

13. Whilst the actions of the father are demonstrations of immaturity, and whilst the mother may rightly feel intimidated and belittled I find that on the balance of probabilities the actions of the father post separation are not of a nature as to amount to family violence.

Risk of harm of the children when in the care of the father

1. The mother sent mixed messages in her evidence as to whether the children were at risk of harm with the father, and by the end of the hearing, her concern had somewhat abated as it was agreed that the father have regular unsupervised day time periods with the children.

2. The mother’s concerns fall within three categories.

3. The first is the father’s differing attitude to parenting of the children

4. Whilst the mother in cross examination agreed that the “father would not deliberately or intentionally put children in harms way” the mother is worried as to the father’s irresponsibility in his parenting and illustrated this through several incidents as set out in her evidence:-

   a)During the relationship the father:-

   ·     would not pick up the children when they were crying;

   ·     regularly consumed alcohol whilst around the children;

   ·     pulled down the pool fencing;

   ·    

   took [X] bike riding without a bike helmet in an enclosed

   
   

   child trailer attached to the back of the bike;

   ·     drove aggressively with the family in the car;

   ·     did not attend to [X]’s mosquito bites;

   ·     allowed and at times encouraged [X] to swear;

   ·     encouraged [X] to pull up her dress and “show us your diddies”.

   b)Since separation the father:-

   ·     has allowed the child [X] to go under water in the pool when the father was playing with her, which [X] doesn’t like;

   ·     given the children sugary sweets like chocolate freckles and lollies;

   ·     returned the children sunburnt.

5. Whilst some of the parenting behaviours of the father are undesirable, such as the consumption of alcohol and the non use of a bike helmet, which have been addressed by court orders, I find that the children are not at risk with the father due to his differing parenting style.

6. The second concern is the mental stability of the father.

7. The father did, leading up to the marriage breakdown, threaten suicide.

8. In his letter to the maternal grandparents (“Exhibit I”) dated 26 May 2010, just after separation the father wrote :-

   “I have been suffering major depression for a long time…..From this illness I was always double guessing, had major mood swings and seeing into things that were not necessarily there…..I have seen my doctor to seek help for my depression and am currently going through counselling and frustration management courses to help better myself.”

9. After the breakdown the father attended counselling with a psychologist and received therapeutic assistance from the paternal grandmother.

10. No specific evidence was before the court as to the father’s current mental health.

11. Whilst the father certainly demonstrated some behavioural issues, in the absence of any evidence I cannot find that this amounts to mental illness.

12. I therefore find that the children are not at risk due to the mental health of the father.

13. The third concern, which by far is the most serious, is the father’s anger and mood issues.

14. The father is vocal, self opinionated, highly emotional and often speaks before thinking.

15. These traits whilst the marriage was healthy were seen by the mother and her family as positive aspects of the father’s personality, but leading up to and since the breakdown are viewed as weaknesses.

16. The maternal grandfather stated that at first he liked [Mr McGee] describing him as being “personal”, “gregarious” and “ambitious”.

17. When things turned sour the maternal grandfather described [Mr McGee] as “controlling” and didn’t want to challenge him as his personality was such that there would be a “robust” discussion.

18. The mother’s sister gave evidence how she had had a good relationship with the father having only met him on a few occasions and would have liked to get to know him better.

19. But in October 2009 the mother’s sister’s attitude towards the father changed after she spent some time with the father and mother.

20. The mother’s sister gave evidence that during that visit she observed the father speaking in angry manner, and was shocked that he behave that way in front of her.

21. Further the mother’s sister gave evidence that the father had very strong views and raised his voice in discussions.

22. The mother’s sister observed that the father “wore the pants” in the relationship.

23. An explanation for his behaviour is his own upbringing.

24. It is not disputed that the father has had a difficult childhood.

25. Not only when growing up did he witness severe domestic violence between his parents, but he endured a violent and difficult breakup of his parents which resulted in him living with his father (the paternal grandfather), who was the perpetrator of violence.

26. Further there have been times when he has been estranged for long periods of time from his mother (the paternal grandmother).

27. The mother in evidence informed the court that she knew at the commencement of the relationship about the father’s problematic childhood, and was aware of the father’s mood swings, anger and controlling behaviour but that it became worse after the birth of the children.

28. The mother submits that she does not trust the father with the children.

29. The mother is concerned as to the father’s uncontrolled anger and submits that the environment the father has the children is at present superficial – “all fun and games” – and that when the time comes for the father to take day to day responsibilities for the children such as cooking and cleaning then the father will not cope which may result in his becoming angry and aggressive.

30. The mother is concerned that the father does not have the patience with the children when they are crying or wanting attention and that his ongoing business commitments, especially the numerous mobile telephone calls will make him even more impatient with the children.

31. The mother submits that during the relationship the father lost his patience with [X] and provided the following examples:-

    a)The father threw [X] onto the bed on two occasions and one occasion causing her to hit her head on the bed head;

    b)The father has grabbed [X]’s face when [X] was having a tantrum;

    c)The father has on several occasions smacked [X];

    d)The father has yelled at both children.

32. The mother admits that since the father has been having time with the children from the date of separation, the children have not been harmed by the father.

33. The father has completed an anger management course and a parenting course and attended counselling.

34. The paternal grandmother gave evidence that both as a mother and a professional she “assisted therapeutically” in helping the father through his grief and loss and provided guidance as to how to move on.

35. The father spoke in cross-examination how he understands about “spiralling and trigger points”, and how he has “learnt a lot” and has “learnt to contain himself”.

36. The mother submitted that it is not enough and that a “leopard does not change its spots”, and that the father needs psychological help.

37. I agree.

38. The father is still volatile, his emotions unchecked and I witnessed his anger, and his inability to contain himself first hand in the courtroom on more than one occasion.

39. I have observed the father display the full range of extreme emotion, often unchecked, including crying and storming out of the courtroom when things were not going his way.

40. Whilst the father is remorseful for his actions, sending a letter of apology to the maternal grandparents and giving evidence that at separation his “world turned upside down” and that he had “no one to blame but myself”, the father also admitted that he is “still angry” with the mother.

41. The mother’s concerns that the father may not be able to cope with the frustration for caring for two young children for long periods of time and especially overnight I find is a valid concern.

42. I find that the father needs professional assistance for his anger, and the mother needs reassurance as to the father having received that assistance before the father can spend overnight time with the children.

43. It is not appropriate that this assistance be provided by the paternal grandmother, although she may hold the professional qualifications, as it is evident from her responses in cross-examination that she has strong and negative views towards the mother and her family is too enmeshed to be able to provide any useful therapy to the father. 

44. I therefore find that the father must undergo therapy to address his anger issues and that a short report is required to be provided by a psychologist in support of the father’s overnight time with the children before overnight time occur.

Primary Considerations

Benefit to the children of having a meaningful relationship with both parents

1. Both parties agree that the mother has a meaningful relationship with both children and that orders for the children to live with the mother, whether in Darwin or Melbourne, will benefit the children in maintaining and nurturing that meaningful relationship.

2. The father however is not in the same position.

3. Whilst the father’s relationship and bond with [X] is strong, it is not as strong as with [Y] who was only several months old at the time of separation.

4. Further the father has concerns that long distance, the relationship with such young children will not be able to be maintained, and that this will damage the relationship, and deprive the children of having the benefit of a meaningful relationship.

5. As to how the court determines issues regarding meaningful relationship was the subject of a comprehensive discussion by the Full Court in McCall & Clark [2009] FamCAFC 92 at [109] to [122]:-

   “The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life.  It does not give guidance to the interpretation of the phrase “meaningful relationship”.

   It is necessary we construe the language of the statute to determine whether the import of the legislation is clear without reference to extrinsic material.   

   The Macquarie Dictionary defines the adjective “meaningful” as “full of meaning, significant.  Significant is defined as “important; of consequence” 

   The Shorter Oxford English Dictionary defines “meaningful” as “Full of meaning or expression; significant …”  “Significant” is defined as “Having or conveying a meaning; Expressive; suggesting or implying deeper or unstated meaning … important, notable; consequential ...”

   “We turn first to the objects clause (s 60B(1)).  The purpose of an objects clause is “to indicate the intended purpose of the legislation” (Pearce, D C & Geddes, R S, Statutory Interpretation in Australia, 6^th ed, Lexis Nexis, Australia, 2006) The learned authors further note at 4.42… “objects clauses are used as an aid to the construction of words of legislation. Gleeson CJ referred to the legislative declarations of the objects of an Act as giving practical content to abstract terms such as ‘reasonable’, ‘justification’ and ‘satisfactory’ in Russo v Aiello (2003) 215 CLR 643 at 645”.

   Section 15AA of the Acts Interpretation Act 1901 (Cth) provides for a purposive construction of a statute.

   The phrase “meaningful relationship” in the context of s 60CC(3)(a) has, not surprisingly, been considered in a number of decisions since the introduction of the amending Act. In Mazorski & Albright (2007) 37 Fam LR 518 Brown J, after setting out the definition of “meaningful” and “meaning”, said at paragraph 26:

   “What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.”

   Kay J sitting in the appellate jurisdiction of the Court as a single judge in Godfrey & Sanders (2007) FamCA 102 (an appeal involving an application by a mother to relocate) agreed with Dessau J’s exposition in M & S (formerly E) (2007) FLC 93-313 of the effect of the amending Act and said at paragraph 33:

   “The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case.  For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.”

   and later at paragraph 36 said:

   “It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate.  Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.”

   Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child.

   It appears to us that there are three possible interpretations of s 60CC(2)(a):

   ·    one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);

   ·    a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and

   ·    the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).

   We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant.  We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents.  If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial. 

   We reject the interpretation in sub-paragraph (b).  In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.

   In coming to our conclusions we accept as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazsorski.  Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C.

   In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship.  No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests”   

1. I find that for this matter it is necessary to combine and apply two interpretations of section 60CC(2)(a), as noted by the Full Court, and that is to look at the nature of the children’s relationship with the father as at the date of the hearing (“the present relationship approach”), and the second is to determine how orders can be framed to ensure that the children have a meaningful relationship with the father in the future (“the prospective approach”).

2. How relocation would impact on both the present and future relationship of the children with the father was captured by the family report writer at [39] and [40] of the report:-

   “The issue of relocation is a fraught one, especially given [Y] and [X]’s young ages, and the significant impact that relocation would have on their relationship with Mr McGee. At [X] and [Y]’s ages, children require a stable primary caregiver who consistently meets their needs. However, in order to build and maintain an emotionally significant relationship with the parent with whom they do not reside, children of separated parents require regular experiences of positive interaction with that parent in order to maintain familiarity and feel confident that their needs are met.

   It is a concern to the writer that whilst relocation would provide Ms McGee with familial support and allow the children to build relationships with maternal family members, the children would be precluded from developing an emotionally significant relationship with their father.”

3. I give considerable weight to the opinion expressed by the family report writer.

4. At present and for the past several months the father’s time with the children has been for regular short periods, although restricted due to supervision.

5. The father will now be spending unsupervised time with the children, and I find that this needs to continue on a regular basis with time increasing as the children get older.

6. I find that the mother relocating to Melbourne now with the children will not enable this regular time to occur, and that the suggestion of nightly Skype or telephone calls will not provide the level of interaction needed to nurture and maintain the bond.

7. The mother admits that distance between the parties will cause problems in establishing that bond.

8. I therefore find that in order for a meaningful relationship to be established and maintained between the father and the children, and for the meaningful relationship to be of benefit for the children, that the children must at present remain in Darwin.

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

1. As set out in the preliminary findings, I find that the children are not at risk when with the father, but that the father’s anger management issues need to be addressed prior to overnight time commencing.

Additional Considerations

Childs Views

1. The children are very young and are unable to express a view.

2. This consideration therefore is of no assistance in my making a determination as to what will be in the best interest of the children in the long term.

Nature of the children’s relationships with the parents, and other persons including grandparent or other relative

1. The mother admits that the father has a good relationship with the children and in particular [X].

2. In cross-examination the mother referred to the father as the “fun parent” and spoke highly about his ability to entertain and play with the children, such as taking them for walks or bike riding and reading them bedtime stories.

3. The mother’s sister confirmed the father’s relationship with the children and in particular [X], stating that she has heard him tell [X] “Daddy loves you princess” and provides physical stimulation and reads books and sings to her.

4. The maternal grandfather gave evidence that the father was a good paternal role model and loves his children and was good with the children but that the incident such as the “show us your diddies” and the father’s talk of suicide has spoilt his role.

5. The maternal grandfather admitted that 98% of the time the father was a good father but 2% of the time he was bad.

6. The father demonstrates a real and genuine love and affection for the children.

7. When speaking about the children, the father glows with pride and is not shy in expressing and verbalising his love for the children.

8. Although concern was expressed as to the differing parenting style of the mother, the father freely stated that the mother is a good mother and a good role model for the children.

9. The mother’s sister gave evidence that the mother is an “excellent” mother and that the children are doing better now than when the parties were together.

10. Under the heading “Evaluation” in the Family Report the family report writer states at [36]:-

    “It is evident from both parties’ presentations that they value their children and share positive relationships with them.”

11. I find that both the mother and the father have loving and healthy relationships with the children, and that it is in the children’s best interests to live with the mother and spend time with the father.

12. As to the extended families, I find whether the children are permitted to relocate to Melbourne, or required to remain in Darwin will not impact on the relationship the children have with their maternal grandparents and other maternal family members or with their paternal grandparents and other paternal family members.

Willingness and ability of each of the children's parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent

1. Both parties have demonstrated their inability to encourage and facilitate a close and continuing relationship between the children and the other parent.

2. As to the mother, I refer to the following incidents:-

   a)Whilst the issue of contact centres for time with the father if the mother is to relocate to Melbourne is no longer an issue as the mother at the conclusion of the hearing agreed to allow the father unsupervised time in the interim, the mother had not made any enquires as to contact centres available in the Melbourne area for the purposes of the hearing;

   b)The mother’s naivety as to what would be suitable in order to establish and maintain a long term relationship between the father and the children should relocation occur immediately, offering only two block periods of face to face visits with the father each year in Darwin and time with the father if he is in Melbourne;

   c)The mother’s failure to acknowledge and provide make up time for the father when he did not see [X] for her last birthday;

   d)The difficulties with make up time when the mother travelled to Melbourne at Christmas, even though the mother was aware that the court orders allowed time for the father with the children on that day;

   e)The dogmatic approach to the Skype time with the father, disconnecting right on the thirty minute time frame, even if conversations with the father and the children were still ongoing.

3. As to the father, I refer to the following incidents:-

   a)The inappropriate comments made by the father during Skype conversations with the children such as “…not going anywhere for a long time – I need to say yes” and “Daddy loves you.. not going to be taken away – ha ha ha – trust me”;

   b)The T-shirt incidents where the father knew that the T-shirts would cause stress to the mother;

   c)The changing of mind at the last minute for the mother to visit her family with the children at Christmas and then the insistence of makeup time over and above the court ordered time.

4. Hopefully with the conclusion of the current court proceedings and the passage of time the parties will improve in their attitude towards each other and approach the future arrangements for the children in a more child focussed manner.

5. I find at this point in time that if relocation of the children to Melbourne was to occur, that neither party has the emotional capacity to properly facilitate and encourage a close relationship between the children and the other parent, and as the children will be located some distance from the father, and as [Y]’s bond with the father needs to be established and both bonds with the children need to be nourished, then this supports an order that it is in the best interests of the children to remain in Darwin.

The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from the parents or any other child or other person

1. I find that the relocation of the children to Melbourne at their present ages will have a negative impact on their meaningful relationship with the father, and that this consideration supports an order that the children remain in Darwin.

Practical difficulty and expense of a children spending time with and communicating with a parent

1. If the children remain in Darwin, this consideration does not apply.

2. If the children were permitted to relocate to Melbourne, the financial expense of the children spending time with the father is a consideration I need not give weight to as both parties have indicated that appropriate arrangements can be made.

3. But there are a number of concerns with the practical difficulties of the children spending time with and communicating with the father if relocation to Melbourne was to occur.

4. The first concern is the absence of any level of communication between the parties.

5. These parties have no meaningful method of communication, and have not turned their minds as to how, when the domestic violence orders expire, that level of communication is to occur.

6. The mother gave evidence that she didn’t know when or how communication with the father would take place in the future.

7. The communication book failed, as the mother did not send it back when she realised that the paternal grandmother was reading it and responding in it.

8. The mother in cross-examination said that it was not appropriate for her to speak to the father or his mother.

9. The mother further stated that she did not think communication would get better and that the father needs to address this.

10. The father is hopeful that communication will improve and that they would be able to speak on the phone, although the father didn’t know how they would be able to progress to that level.

11. Reliance on third parties such as other family members to assist in the communication is fruitless, as the animosity and distrust between the parties is mirrored in the relationship between the extended families.

12. The second concern is the practicality of how time with the children will take place with the father if relocation was permitted.

13. It is the mother’s proposal to spend two one week periods in Darwin per year and that initially the father spend unsupervised time from 9.00am to 1.00pm each day with time to increase as the children get older, and that the father spend similar time with the children should he travel to Melbourne.

14. No proposals were put forward by the mother as to how changeover would occur in Darwin or Melbourne.

15. It is unlikely given the history of this matter that the parties will be able to meet face to face, and the mother is not comfortable with interacting with the father’s family, although the mother’s sister has offered to be a go-between.

16. Catholic Care NT may be able to facilitate changeovers, although no evidence was put to the court as to whether Catholic Care NT has that capacity to assist on an ad hoc arrangement.

17. The same difficulties will occur if the father was to spend time with the children in Melbourne as the father does not have an amicable relationship with the mother’s parents and changeover at contact centres has not been canvassed by the mother.

18. The third concern is the difficulties for parties in making these spend time arrangements work.

19. Both parties work.

20. Both parties will need to find temporary accommodation and transport when staying away from their respective homes.

21. The fourth concern is the use of Skype.

22. The mother proposes that the father telephone/Skype every night.

23. In January 2011 orders were made for the father to communicate by way of Skype for thirty minutes every Tuesday night between 7.00pm and 7.30pm.  

24. To date the father communicating with the children via Skype has not been a success.

25. Both parties are accountable for the failure of this otherwise useful communication tool.

26. The father has used Skype to indirectly undermine the mother by making several inappropriate comments to the children, which given the ages of the children may have had little impact, but with the knowledge that the mother would be in earshot of these discussions.

27. The mother has used Skype as an opportunity to gather information to be used against the father to further her position and also to impose control by strict compliance with times, resulting in the premature ending of time with the father.

28. Neither party seems to appreciate that the order was made to benefit the children.

29. Further Skype is not always user friendly.

30. For the father there has been problems in connection and for the mother her presence is required as the children are too young to be left in charge of a computer.

31. If the children relocate to Melbourne, I find that the only useful means of communication on a regular basis is by way of telephone, which given the young ages of the children, will be of very limited assistance in the nurturing and maintaining of relationships between the father and the children.

32. Taking into account all of these concerns, I find that this consideration supports an order that the children not be permitted to relocate to Melbourne at this point in time.

The capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs

1. Whilst concerns have been raised as to the father’s style of parenting, I find that both parties have the capacity to meet the needs of the children, and this is a consideration that has no weight in determining the future arrangements for the children.

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. These children are young.

2. Whilst both children have been born in Darwin, they are due to their numerous trips to Melbourne, familiar with both cities.

3. I find therefore that this consideration does not assist in the determination of future arrangements for the children.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. I have already addressed the need of the father to obtain professional assistance in managing his anger before overnight time with the children occurs.

2. I have also addressed in the orders the need for the father not to consume alcohol whilst the children are in his care, and to ensure the use of bike helmets.

3. Otherwise I find, that despite the difficulties in the past and the exposure of the children to conflict, that otherwise the parties have demonstrated a strong and healthy attitude to their roles and responsibilities as parents.

Family Violence

1. A finding has been made that there was family violence during the relationship, to which the children has been exposed.

2. Further a finding has been made that there has not been family violence since separation.

3. The issue of family violence has been taken into account in determining what arrangements are in the best interest of the children but has not been a consideration that has assisted in determining whether the children remain in Darwin or relocate to Melbourne.

Family Violence Order

1. As at the date of the hearing, there existed a domestic violence order which expires in May 2011.

2. The mother was uncertain as to whether an application would be made to extend the order. 

3. The issue of the existence of a domestic violence order has been taken into account in determining what arrangements are in the best interest of the children but has not assisted in determining whether the children remain in Darwin or relocate to Melbourne.

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 children

1. The mother submits that father may not abide by court orders.

2. Certainly the father has blatantly and knowingly disregarded property orders, which is a concern and a factor which will be considered in the property proceedings.

3. Further the father has chosen to put his own unusual slant on what constitutes make up time and how it is to be provided.

4. The father submits that he also has concerns as to the mother’s ability to abide by orders.

5. Whilst technically the orders to date have been abided to by the mother, the mother has taken liberties such as asking for Christmas with the children, even though she was aware it was court ordered for the father to spend time with the children that day, and by not acknowledging that the father should have makeup time for the time missed for [X]’s birthday.

6. These are all indicators that any orders made; no matter how comprehensive have the potential to be construed and manipulated to suit the parties’ needs at the time without considering what is best for the children.

7. This fuels concern that putting distance between these parties by allowing relocation may lead to difficulties for the father in spending time with the children and potential for an endless stream of contravention applications before the court.

8. I find that the only way that these parties can move on and have the opportunity to prove to each other that arrangements for the children are achievable, is by way of an interim order, with close monitoring and guiding provisions.

Any other fact or circumstance that the court thinks is relevant

Communication book

1. The parties tried using a communication book.

2. The mother ceased using it in December 2010 as it was the paternal grandmother using the book and not the father.

3. The mother in cross-examination expressed her dismay as to why the paternal grandmother had labelled the book, had read its contents and why it was her writing in it and not the fathers writing.

4. Further the mother submits that the requests contained in the book were being ignored by the father such as the incident as to whether the children had been given milk.

5. As these parties have such limited communication, I am ordering for the provision and use of the communication book, but limiting its use to the parties only.

Risk of violence from the paternal grandfather

1. The maternal grandfather gave evidence of his concern that if the mother remains in Darwin then the mother is at risk of violence from the paternal grandfather.

2. Later in the evidence the maternal grandfather admitted that the paternal grandfather had not harmed the mother in any way.

3. The mother informed the family report writer that she had “shared a good relationship with the paternal grandfather”.

4. There is no evidence before me that any party including the children have been or at risk of any harm from the paternal grandfather and therefore I give no weight to this submission.

Section 60CC (4)

1. Consideration must now be given to section 60CC (4) which states:-

   4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:

   (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. I find that if the opportunity had arisen, the father would have been actively involved with the children in every aspect of their day to day life, including making decisions as to their major long-term issues.

2. I find that the mother has at times failed to facilitate the father spending time with the children, the Christmas and birthday incidents being examples of this, and further has failed to facilitate the father in communicating with the children, such as the premature terminating of Skype communication.

3. This then raises a concern as to whether the mother would facilitate time and communication with the father if there was distance between the parties.

4. These findings support an order that the children remain in Darwin.

Conclusion as to section 60CC considerations

What arrangements are in children’s best interests?

1. After taking into account all the considerations in section 60CC I find that it is in the children’s best interests to remain in Darwin.

2. The reasons for my findings are as a result of a combination of the following considerations:-

   a)The children are young, and whilst the bond may have been established between the father and [X], the bond needs to be established between the father and [Y];

   b)Until the children are older, frequent regular time is required with the father to allow that bond to nurture and grow;

   c)There are concerns that neither party will embrace and follow orders and if there is distance between the parties it is likely that the children’s relationship with the father will suffer;

   d)The parties have little ability to communicate which will make the carrying out of orders where the children live in Melbourne and visit Darwin almost impossible to implement.

How the parties respective proposals are to be weighed against the finding that it would be it in the children’s best interests to remain in Darwin

1. The balancing of the child’s “needs” and the parents’ “wants” in determining relocation is best summarised by Brown FM in Height & Rhett [2010] FMCAfam 1268 at [268]:-

   “However, the ultimate issue in the case is the best interests of the children concerned.  In this regard, the parties’ competing proposals and any other outcomes which are reasonably open to the court must be weighed and assessed, against the yard stick provided by section 60CC and the principles which underpin it.”

2. As stated in the Full Court decision of McCall & Clark [2009] FamCAFC 92 at [72]:-

   “the issue for determination is whether the Federal Magistrate properly considered and weighed all proposals…”

3. I will address firstly the mother’s proposals.

4. The mother is not required to provide compelling reasons in support of her wish to relocate and the court should not and cannot interfere in her freedom of movement.

Mother’s reasons for wanting to relocate with the children to Melbourne

1. The mother has provided several reasons for wishing to relocate which I will now weigh and access against the findings I have made that it is in the best interests of the children to remain in Darwin.

The mother’s extensive family support in Melbourne

1. Evidence was provided that during the relationship the parties have visited Melbourne and the mother’s extended family have visited the parties in Darwin, especially since the birth of the children.

2. Since the date of separation in May 2010, and until an order was made for exclusive occupancy by the mother of the former matrimonial home in March 2011, the mother has had the financial and physical support of the maternal grandparents.

3. When asked as to whether the mother would cope without the assistance of the maternal grandparents the family report writer made the following observations during cross-examination:-

   “I think that the emotional support of her parents would be ongoing. Yes the practical support would not be there, but the emotional support would be ongoing, irrespective of whether they were present in Darwin or not, and I think it is the emotional support that is most crucial for Ms McGee.”

4. Even though the maternal grandparents have returned to live in Melbourne, there are still regular visits.

5. Further the maternal grandparents indicated that if the mother was to remain in Darwin that they would continue to visit and would make themselves available on short notice if needed by the mother.

6. The mother’s sister who has been overseas also has had regular contact with the mother and the children through monthly Skype sessions and regular telephone calls.

7. Once in Melbourne, if the mother is to remain in Darwin, then it is the mother’s sister’s intention to visit regularly, perhaps as much as every month, and certainly when on annual leave, as well as maintaining Skype and telephone contact.

8. The orders sought by the mother reflect that the mother intends to travel to Melbourne regularly if the children are to remain in Darwin.

9. The mother also gave evidence that she has some friends in Darwin, although limited reliance could be made on them when it came to the children.

10. Whilst the mother will not have the same level of physical support from her immediate family if required to remain in Darwin with the children, I find that the same level of emotional support is available and that this reason does not impact on the findings that it is in the best interests of the children to remain in Darwin.

The mother will be better off financially in Melbourne

1. The mother is employed in permanent employment in Darwin, working part time with the ability to return full time in the future.

2. The mother provided no evidence as to her prospects of employment in Melbourne.

3. It was submitted that acquiring a house in Melbourne is cheaper than in Darwin.

4. Again no evidence was provided to support this submission.

5. Further the property pool has yet to be identified between the parties as the [omitted] business is being valued and a property division is the subject of an upcoming hearing.

6. The mother’s future financial situation is unknown and in the meantime the mother has a court order providing her with exclusive use of the [K] property.

7. I therefore find that this reason does not impact on the findings that it is in the best interests of the children to remain in Darwin.

Maternal Grandparents availability to care and support the children

1. It cannot be disputed that if the mother lived with the maternal grandparents that this would be a convenient and inexpensive form of care for the children.

2. Further, to date, the mother has had the primary and almost exclusive care of the children as time with the father has been limited.

3. However as the children get older, time with the father will increase to include overnight, and whilst that will not provide the same financial relief to the mother, it will allow the mother to pursue a social life.

4. I therefore find that this reason does not impact on the findings that it is in the best interests of the children to remain in Darwin.

The parties had an agreement to relocate to Melbourne

1. The mother submits that it was never the intention of the parties to remain in Darwin and that it was always the intention of the parties to relocate to Melbourne once they had children.

2. The mother submits at [11] of her affidavit filed 11 January 2011 that there initially was an agreement that they would live in Darwin for three to six years and that it has been reviewed every two years, and that it was the intention of the parties to be living in Darwin prior to the children commencing school.

3. The mother states at [13] that:-

   “In or about October 2009 the husband said to me about the move to Melbourne….”It is not going to happen for ten or fifteen years”. I never had a say in the decision and I do not agree with it. If I had known that we would never return to Melbourne I would not have agreed to marry the husband.”

4. The mother submits that it’s “not fair” that the father hasn’t stuck to the agreement.

5. The father gave evidence that there had been a discussion with the mother sometime before they had the children, of a plan to move to Melbourne after ten years, to give them time to pay off the house and for the children to be educated in Melbourne, which he interpreted as being in their high school years.

6. The father stated that it was agreed that they would review the plan every two or three years, and his intention was that they would need to be in a position whereby they did not have to live with the mother’s parents, and that they would be financially in a position to buy a house in Melbourne.

7. The father admitted that from time to time there had been discussions with the mother’s family regarding the purchase of an investment property and/or a business in Melbourne.

8. The father is still not opposed to the children ultimately relocating to Melbourne but that the appropriate time is when [Y] is aged 10 years.

9. The maternal grandmother’s understanding of the situation was that the mother and father were remaining in Darwin for five years. 

10. The maternal grandmother expressed that it was “not fair” for the mother to have to remain in Darwin.

11. The maternal grandfather gave evidence that the father needed to be more flexible in the arrangements.

12. I find that any agreement has no bearing on the determination the court must make as to what is in the best interests of the children.

13. I therefore find that this reason does not impact on the findings that it is in the best interests of the children to remain in Darwin.

Mother’s mental state and her ability to parent the children if required to remain in Darwin

1. The mother spoke of how before the children she was happy and positive but now is depressed and powerless.

2. The mother denies however of having post natal depression although Ms S expressed a view that she showed classic symptoms after the birth of the children.

3. The mother describes how she feels sad and withdrawn and can’t socialise.

4. The mother’s sister observed the mother’s demeanour in October 2009 whereby she described the mother as being withdrawn, resigned in her role in the marriage, not being a party to decisions such as the loan for the business, and feeling helpless.

5. The mother’s sister gave evidence that the mother is still withdrawn, anxious, depressed, lacking motivation, negative and despondent.

6. The mother’s sister however was quick to point out that her demeanour has in no way affected her interaction with the children, and she remains positive and happy with the children and “invests all her energy” in the children.

7. The maternal grandfather gave evidence that the mother cannot stay in Darwin, as he has concerns as to her emotional state and mental position.

8. The maternal grandfather however informed the court that her mental health was improving where the mother was a lot more stable, less fragile and anxious.

9. The maternal grandmother gave evidence that at separation the mother was fragile, weepy, despondent, victimised and afraid.

10. As at the time of the hearing, the maternal grandmother stated that the mother had “come a long way” and was “more certain and confident in herself” although the maternal grandmother added that she was fearful the mother may go backwards when the maternal grandmother returns to Melbourne.

11. I accept that remaining in Darwin with the children will be hard on the mother.

12. It was clear in her evidence that she doesn’t like Darwin.

13. The family report writer was also sympathetic as to the impact on the mother if an order was made for the children to remain in Darwin stating in cross-examination that :-

    “I think she would be greatly disappointed by that decision.”

14. However when questioned as to whether such a decision would impact on the mother’s ability to parent the children the family report writer replied:-

    “I suppose in considering that, I guess the things I thought about were Ms McGee’s social support network in Melbourne.  Obviously she has through her family but it’s been some time since she has lived in Melbourne so while she has old friends, she hasn’t had a lot of contact with them recently.  She does have a – she would have employment in Darwin, she would have some friends in Darwin, so look, I think that she would be disappointed and that potentially she would have some problems adjusting to that personally, you know.  I did not think that it would cause her mental health to become an acute problem.”

15. However the mother is prepared to embrace her life here if required and I therefore find that this reason does not impact on the findings that it is in the best interests of the children to remain in Darwin.

Melbourne has more to offer the children than Darwin

1. The mother describes Darwin as being a “shithole”.

2. The maternal grandfather described the children as “having a better life” in Melbourne and gave evidence that the children will be less isolated in Melbourne and will have available to them a range of options to develop their skills and that housing shouldn’t be an issue.

3. However no evidence was provided to the court to support this submission.

4. I therefore find that this reason does not impact on the findings that it is in the best interests of the children to remain in Darwin.

Could the mother remain in Darwin?

1. The mother herself indicated in cross-examination that if the court was to order that the children remain in Darwin that she “would make the most of the time” and “carry on with life”.

2. I therefore find that if an order is made for the children to remain in Darwin, that the mother has the ability to comply with the order.

Father’s reasons for not wanting the children to relocate to Melbourne with the mother

1. The reasons raised by the father as to his opposition to the relocation have been substantially addressed above in applying the section 60CC considerations.

Could the father move to Melbourne?

1. I find that at this point in time the father is unable to move to Melbourne due to his work commitments as co-owner of the [omitted] business with the father.

2. The father however in cross-examination indicated that such a move might be possible in the future.

Conclusion as to relocation

1. In conclusion having considered, weighed and assessed both the mothers and the father’s reasons with the findings as to what it is in the best interests of the children I find their interests are best met at this point in time by remaining in Darwin.

Delay Order for relocation

1. The issue of the mother seeking an order that a relocation order be made now, to be effective at a future date (which will be referred to for ease of reference as a “delay order”) was an issue that caused some difficulty in this matter.

2. The first difficulty was how the court was informed that a “delay order” was being sought by the mother.

3. Such an order was not sought in the initiating application, or in the proposed orders outlined at the commencement of the hearing on

   
   

   12 January 2011.

4. Even upon the part heard matter resuming on 4 April 2011, no indication was given to the court as to the mother seeking a “delay order.”

5. The first the court knew of the proposed “delay order” being sought was on day five of a seven day hearing when it was put by the mother’s legal practitioner to the father during cross-examination that the court may make such an order now for relocation to occur in a number of years time.

6. As a consequence of my expressing a somewhat surprised response to this proposition, an application was made by the mother for my disqualification, with such application being dismissed on the sixth day of hearing.

7. At the conclusion of the hearing, during submissions, it was proposed that if the court did not allow relocation of the children to Melbourne immediately then an order be made that relocation to Melbourne occur in late 2014.

8. The second difficulty is that submissions were provided by the mother’s practitioner, on day five, day six and day seven of the hearing that not only is in the power of the court to make a “delay order” but that there was caselaw to support the proposition of a “delay order” where orders were made for relocation to occur well into the future.

9. Despite several requests, such caselaw, consisting of a single judge decision of Young J in Ahcraft & Haber [2010] FamCA 6 and a Federal Magistrates Court decision of Brown FM in D & K [2006] FMCAfam 309 was not forthcoming from the mother’s legal practitioner until after the hearing had concluded.

10. I find that the caselaw provided does not support the mother’s proposal that the court in this matter should make an order that the mother be allowed to relocate in three and a half years time.

11. In Ahcraft & Haber, the child was aged 6 years and a “delay order” for relocation was made for a period of three months to enable the child to complete the first school term and for the relocation to coincide with the commencement of second school term.

12. In D & K, the child was aged 2 years and 9 month and the parties had agreed that relocation occur when the child was aged 5 years, and the issue for determination before the court was what the arrangements were for the child until relocation occurred.

13. The third difficulty, which no doubt fuelled the disjointed presentation of the mother’s case was the somewhat conflicting recommendations of the family report writer.

14. In the report released on 22 November 2010 the family report writer states at [40]:-

    “..should the court consider allowing a relocation to take place, it is advisable that such a move be delayed until [Y], who is the younger of the children, is of school age.”

15. Then under the heading “Recommendations” at [41]:-

    “...When the children are both school aged, the issues of shared care arrangements and/or relocation may require review.”

16. However in cross-examination, the family report writer expressed a stronger position, in response to questioning by the mother’s legal representative as to whether it would be beneficial for the parties for legal proceedings to be at an end, and made a recommendation that the court make a “delay order” for the mother to relocate with the children to Melbourne just before [Y] commences school.

17. But it was apparent from the following extract from the transcript that the recommendation had not been well thought through as to the practicalities of such a “delay order” being made :-

    “Her Honour: - What is the safeguard that the court has in making an order now for three or four years time that it is going to be an effective order in the best interests of the children? What would you recommend, if anything, as being a safeguard to assure the court that there is going to be, in the best interests of the children in the future, for relocation to occur?‑‑‑

    Witness: - “I suppose in the recommendations I referred to when the children are at school, the issue of shared care arrangements and a relocation may require review. Now, I suppose because of the issues we have talked about with the parents’ relationship being negatively impacted by the court process, it would be good if that kind of review could occur outside of legal processes.  If it could occur by mediation, or if they end up having that co‑parenting plan, or you know, the communication with their therapist, that it could be – it could occur that way.  Obviously, if it needs to occur within the court, then so be it, but it would be better if it could occur.

    Her Honour: - “All right.  And bearing in mind the history of this matter which has been in the court since July 2010 and is going to continue in the court system until, at least, October this year?

    Witness: - “Mm”.

    Her Honour: - And bearing in mind the low communication and the high conflict which is the nature of the relationship at this point in time?”

    Witness: - “Mm.”

    Her Honour: - “And bearing in mind the lack of the co‑parenting relationship?”

    Witness: - “Mm.”

    Her Honour:- “Would it be beneficial for the parties to undertake a further family report process before there being a final determination as to whether or not the parties are in a position where relocation is going to be in the best interests of the children in three or four years time?

    Witness: - “So are you talking about a family report occurring in three or four years’ time?”

    Her Honour: - “Yes”

    Witness: - “Yes, I think that is probably is a ….less – well, potentially, although it requires some legal to accompany it, it may be more of an assessment based evaluation, rather than an opportunity for the parents to put forward their legal positions. So…”

    Her Honour: - “So your position in respect to having the litigation brought to an end?”

    Witness: - “Mm.”

    Her Honour: - “And there being relocation when [Y] is school age is based on the premise that all goes well, isn’t it? That the orders are carried through, but there is some form of co-parenting relationship between the parties. Would you agree?

    Witness: - “Yes it is. At least – but at least – I suppose, not that their relationship, so as to say, you know improves, but that they at least communicate with each other….And that the arrangements as set out for the children to spend some significant time with dad occur.”

1. As at the date of the hearing the parties do not communicate, have not co-parented since separation and the interim orders, albeit in the simplest of terms, have been the subject of misinterpretation.

2. I therefore find that I am unable to make the “delay order” proposed as it would not be in the best interests of the children to impose such an order where there is such uncertainly as to how these parties will manage the children’s issues into the future.

3. However as the recommendation by the family report writer strongly recommended that once [Y] has reached school age that relocation should occur, I have taken the unusual step of making the orders interim orders, and for the parties to return to the court in mid 2014, so as to enable the matter to proceed further if relocation is still an issue, and for a further family report to be obtained.

4. I have also made provision in the orders that in the meantime the parties must attend mediation before filing and further applications including contravention applications.

Equal shared parental responsibility

1. The parties are seeking orders for equal shared parental responsibility.

2. Submissions were made by the mother however that these orders are being sought despite the presumption of equal shared parental responsibility being rebutted in section 61DA by the family violence, and that consideration must be given to the family violence in the making of orders.

3. Findings have been made in respect to family violence.

4. As an order has been made for equal shared parental responsibility consideration must be given as to whether the time to be spent by the father with the children pursuant to section 65DAA is to be equal time or substantial and significant time.

Equal time or substantial and significant time with the father

1. Section 65DAA states:-

   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.

   (2) Subject to subsection (6), if:

   (a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and

   (b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (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.

   (3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

   (a) the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii) days that do not fall on weekends or holidays; and

   (b) the time the child spends with the parent allows the parent to be involved in:

   (i) the child's daily routine; and

   (ii) occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   (5) In 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, the court must have regard to:

   (a) how far apart the parents live from each other; and

   (b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents;

   and

   (c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d) the impact that an arrangement of that kind would have on the child; and

   (e) such other matters as the court considers relevant.

2. Because of the very young age of the children and the limited supervised time spent by the father with the children since separation in May 2010, together with the inability of the parties to communicate and the complete lack of co-parenting I find that it is not in the best interests of the children nor would it be reasonably practicable for the children to spend equal time with the father.

3. As to the proposals for substantial and significant time, this was the topic of much cross-examination as the position originally maintained by the mother for short blocks of supervised time was, by the conclusion of the hearing, extended to longer periods of time unsupervised.

4. Further the recommendations of the family report writer contained in the written report released in November 2010 were also outdated, as the report writer was unaware that the mother was now placing the children in day care each week for periods in excess of eight hours at a time and that the mother had shifted in her position as to supervision.

5. Further the family report writer when asked to give a view of to the length of spend time with periods for the father became entrenched in a position that the father could spend longer periods of time with the children during the days the children are in day care, without full consideration on the father’s heavy work commitments.

6. One aspect that did not seem to be in dispute was the age of the youngest child before overnight could be considered.

7. I have taken into account all of the submissions and the evidence, and have built in factors such as when [X] starts pre-school, the fathers work commitments and where the mother may return to fulltime work into the orders.

8. In effect the father will until the younger child [Y] turns three years, spend time with the children one day each weekend and for two hours each Wednesday, as well as time on the children’s birthdays, time on the father’s birthday, Fathers Day and Christmas Day.

9. Further day spend time with periods have been provided if the father takes leave.

10. When [Y] turns three years and upon the production by the father of short report from the treating psychologist that overnight can commence, the father’s weekend time is extended to include overnight  once a week.

11. When [Y] turns four years time of commencement and conclusion of the overnight visits is further extended.

12. The increase to overnight is also reflected in the holiday time for the father.

13. Incorporated in the orders is provision for the children to spend quality weekend time with each parent.

14. I find that this staggered increase in the spend with time falls within the definition of substantial and significant time as set out in section 65DAA(3) as it falls on weekdays, weekends, incorporates special occasions and allows the father to be involved in the day to day care and routine of the children.

15. Further I have incorporated an order that the father’s time with the children can be as otherwise agreed between the parties, and hopefully any difficulties that may arise from the orders can be addressed by the parties through discussions, failing which through mediation.

Conclusion

1. This marriage had the odds stacked against it right from the start.

2. The parties met in London and whilst the mother agreed to return to live with the father in Darwin it was always contingent upon the parties moving at some point to Melbourne, which is the mother’s home town.

3. The father has a somewhat difficult relationship with the paternal grandparents and evidence suggests that it was also not an easy relationship for the mother.

4. The maternal grandparents and in particular the maternal grandmother had concerns about the relationship, with the maternal grandmother giving evidence that she told the mother “don’t marry him until he grows up”.

5. The mother relied heavily on the support of the maternal grandparents, especially since the birth of the children, and this caused ongoing friction between the mother and the father.

6. The maternal grandparents were involved in implementing the breakdown of the relationship, planning it for some time, and then putting the mechanisms in place for the separation to occur by assisting the mother to move out and providing her with financial, physical and emotional assistance to re-establish herself and to care for the children, and for some time to the exclusion of the father.

7. Lastly, the in-laws did not get on.

8. Whilst this was a hearing regarding children’s matters, one can’t help thinking that it was more a long and protracted post mortem of the death of the relationship between the father and the mother, with the parties’ respective families providing the commentary.

9. Whilst family are encouraged to support and assist parties through litigation, interference to an extent where it makes the situation worse rather than better needs to be avoided.

10. I have no doubt that if the mother and father were left to their own devices, the separation would not have been so traumatic, and chances are the parties would have resolved a large number of issues regarding the children without the need to resort to lengthy and expensive court proceedings.

11. But unfortunately the matter is before this court.

12. The orders made, albeit on an interim basis are designed to move these parties forward and for the issue of relocation to be considered when the children are older, without the matter being delayed in the court system.

13. One can only hope that the parties have learnt from this whole experience and will use the opportunity now to reach a level of communication and cooperation necessary to enable [X] and [Y] to have a secure, full and enriched relationship with both parents and for the parents, rather than the court, to make decisions about the future arrangements for the children.

14. If not, the matter is listed for mention in June 2014, and the issue of relocation will if required be revisited at that time.

15. For all these reasons the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding four hundred and thirty-two (432) paragraphs are a true copy of the reasons for judgment of L. Turner FM

Date:  20 June 2011