Morley and Balfour

[2016] FCCA 56

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORLEY & BALFOUR [2016] FCCA 56

Catchwords:
FAMILY LAW – Mother applying to relocate from (omitted) to (omitted) – orders made by consent in 2013 requiring mother not to relocate more than 10 kilometres from (omitted) Primary School and for children to remain enrolled at that school – mother re-partnered and co-owning property in (omitted) – mother’s straightened financial circumstances – whether father paying appropriate child support – family report noting childrens’ reservations about relocation – eldest child opposed to relocation – relocation not permitted in childrens’ best interests. 

Legislation:

Family Law Act 1975, ss.60B, 60CC

Cases cited:
Goode v Goode [2006] FamCA 1346

Applicant: MS MORLEY

Respondent: MR BALFOUR

File Number: MLC 7051 of 2011

Judgment of: Judge Burchardt

Hearing date: 20 November 2015

Date of Last Submission: 20 November 2015

Delivered at: Melbourne

Delivered on: 5 February 2016

REPRESENTATION

Counsel for the Applicant: Mr Puckey

Solicitors for the Applicant: Taussig Cherrie Fildes

Counsel for the Respondent: Mr Scriva

Solicitors for the Respondent: Pasha Legal

ORDERS

1. The Initiating Application of the mother filed 25 November 2014 be dismissed. 

2. The Orders made on 20 February 2013 remain in full force and effect. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7051 of 2011

MS MORLEY

Applicant

And

MR BALFOUR

Respondent

REASONS FOR JUDGMENT

Introductory

1. Although the parties’ positions have changed from time to time and have been put in various alternatives, the only two matters now remaining to be determined are:

   a)whether the mother should be permitted to relocate from (omitted) to (omitted), where she and her partner own a property; and

   b)in the event that the mother is not permitted so to relocate, whether the father’s time should be increased to six nights per fortnight rather than five nights per fortnight.

2. For the reasons that follow, the answer to both those questions is no. A number of other ancillary matters will, however, also be addressed.

Agreed Facts

1. Although this is the third tranche of litigation between these parties since 2011, and although each of the parties has from time to time made relatively lurid allegations against the other, in broad terms there is really very little factual disagreement.

2. The applicant mother was born on (omitted) 1970 and the respondent father on (omitted) 1967.  They appear to have commenced cohabitation in 1997 and married on (omitted) 2002.  Thereafter, their three children, X, born (omitted) 2004, Y, born (omitted) 2005, and Z, born (omitted) 2009, followed.

3. The parties first separated on 6 June 2011, following which on 24 June 2011 the mother obtained an Intervention Order against the father (without admissions).  The parties briefly reconciled, however (which explains the end of the first tranche of litigation), before separating finally in October 2011.

4. The parties thereafter filed extensive affidavit materials in which, as I have already indicated, each made relatively lurid assertions about the other.  On the mother’s part there were assertions of financially controlling behaviour on the part of the father, drug abuse and wastage of money, particularly on visits to brothels.  On the father’s part the allegations also traverse the issue of drugs but responded more in terms of significant assertions as to mental ill health and instability on the part of the mother.

5. One may gloss relatively quickly over those matters, because on

   
   

   20 February 2013 the parties entered into final parenting orders which involved shared parental responsibility, the children living primarily with the mother but spending five nights per fortnight with their father.

6. It should be noted that the orders, which were made by consent, included an order that the mother relocate not more than 10 kilometres from the (omitted) Primary School, which by then X and Y not only were attending but had been attending throughout their educative lives.

7. The parties were assisted in the achievement of the parenting outcome by a family report prepared by Ms B.  I do not propose to refer to that report in any detail, but would note that Ms B noted the relatively effective establishment of a secure and nurturing family unit, notwithstanding difficulties with Y (who has been subsequently diagnosed with Asperger's syndrome) (paragraph 36).  It was Ms B’s recommendation that the nine-five regime, which the parties ultimately adopted, be put in place.

8. The parties were also able in the ultimate to resolve their property dispute.  The mother’s amended Initiating Application filed 18 October 2012 sought a 75/25 split of the parties’ assets and spousal maintenance in the sum of $700 per week, but from her Affidavit filed on 13 February 2015 the ultimate outcome was that she receive 67.5 per cent and a lump sum of $480,000.

The Current Tranche of Litigation

1. On 25 November 2014, the mother filed her Initiating Application.  She sought to be permitted to relocate to (omitted) with the children, that the children be enrolled in (omitted) Primary School and that the children live with the mother and spend time with the father in a slightly different regime to that which presently obtains.

2. The Affidavit of the mother, filed contemporaneously with the Initiating Application, deposes to the parties and their history, although it noted that Y had been diagnosed with Asperger's Syndrome.  The mother deposed to the childrens’ many extracurricular activities, a matter that had been the subject of dispute (particularly as to who should pay for the same and the father’s alleged failure to do so) in the earlier litigation.

3. The Affidavit re-traversed the mother’s association about the father’s drug use, gambling and attending brothels (matters that might be thought to be irrelevant given the consent orders entered into in 2013) but conceded that the father had a meaningful relationship with the children.  The Affidavit repeated (paragraph 19) the assertion that the father fails to contribute to the childrens’ extracurricular activities.

4. Put shortly, the mother’s Affidavit deposed that she could no longer afford to live within 10 kilometres of the (omitted) Primary School and noted that the husband continued to pay $1,883 per month in Child Support as assessed.

5. At paragraph 26 and following the mother’s central assertions are put.  She has re-partnered with Mr B, who works at (omitted).  The mother deposed that Mr B has a close relationship with the children and goes on to say that she can no longer afford to live in a rental property in Melbourne and that the children would be more settled and stable if they could move to (omitted), where the mother owns a family home.  The mother deposed to vacating the (omitted) rental property she had previously occupied.

6. The father’s Response and Affidavit sought to reaffirm the order that the mother not move more than 10 kilometres from the (omitted) Primary School.  He noted that Ms B had previously noted that the children would benefit from continuing to attend the same school, given the need for stability and continuity.

7. The father complained that the mother had relocated over six times since separation, which had caused anxiety for the children and noted the mother’s capacity to work as a (occupation omitted).

8. The mother’s next Affidavit, filed 13 April 2015 is largely a repeat of matters earlier deposed.  It details more fully the extracurricular activities of the children and the costs thereof and notes that the mother has moved from (omitted) to a property in (omitted).  It should be noted that the tenor of the Affidavit is still accusatory of the father, most particularly in relation to financial issues and the gravamen of it, namely that the mother can no longer afford to rent in Melbourne and thus wishes to relocate to (omitted), is clear.

9. The mother filed a further Affidavit on 22 June 2015 (it should be noted that she was self-represented for substantial parts of the proceeding) in which essentially she responds to the recent family report of Ms B.  She expresses a large number of qualifications and comments critical of Ms B’s report.  It should be noted, however, that when the trial eventuated neither party (both were legally represented) sought that Ms B be available for cross-examination.

10. The father’s Affidavit filed 5 November 2015 likewise says very little.  The father notes that he has been made redundant by (employer omitted) and was looking for employment and confident he would obtain another contract in the New Year.  He deposed that he continues to pay Child Support at the rate assessed on his earnings at (employer omitted).  He further sought an order that X attend (omitted) Secondary College, where most of her friends from primary school are enrolled.

The Family Report of Ms B

1. The report of Ms B dated 13 April 2015 gives a number of details, scarcely articulated clearly by the parties in their own affidavits.  I note that in August 2013 the mother and Mr B bought a house in (omitted) for $625,000, of which the mother paid approximately half (something confirmed in oral evidence).  Mr B pays the mortgage on the property, which is the remainder.  The amount contributed by the mother appears to have represented what was left from her matrimonial settlement.

2. The report noted at paragraph 30:

   “Ms Morley emphasised the financial difficulties, saying inter alia ‘what do I do when the money runs out? … The finances make life very difficult … it’s financial abuse … I’m bitter that he won’t contribute and he’s got a really good job … it’s a control issue’.”

3. I note that Mr Balfour indicated to Ms B that he proposes to move within the designated zone of (omitted) Secondary College “in the coming months” and would pay for the fees and expenses (paragraph 34).

4. Nonetheless, it is clear that Mr Balfour feels that while the mother may face financial difficulties he is giving her ‘top tier’ child support and continues to feel blackmailed.  Noteworthily at paragraph 39, Ms B recorded:

   “Mr Balfour went on, saying, ‘I’ll pay for the children’s school and everything else, but I won’t give Ms Morley another cent’.”

5. Ms B noted at paragraphs 50 to 51 of the report that the mother had no coherent plan to further her career or gain employment (something Ms B noted the mother had been keen to embrace at the time of her earlier report).

6. Ms B also noted “a level of limited insight about the children’s emotional needs, reflected for example in her description of X as ‘flat’ and ‘down’ and yet purportedly arranging for a psychology referral.  Ms Morley said that she had not informed Mr Balfour as she expected him not to pay for the consultations.  In another example, Ms Morley did not demonstrate concern about X’s reported threat to abscond, saying only that the child had not said this to her.” (Paragraph 52).

7. At paragraph 56, Ms B noted that all three children presented as healthy and well cared for.  They clearly had a good relationship with both parents.

8. Insofar as relocation was concerned, at paragraph 59 Ms B recorded:

   “… X said that she would not like to move to (omitted).  Inter alia she said ‘I would rather stay here with my friends and go to school; I would miss being near my friends and family and my school.  I was hoping to stay for the next year because I might get some leadership positions … I’d really like to go to (omitted) School’.”

9. It should be noted that Y said: “she would like to move to (omitted) ‘to get a cat’ but would miss her father and friends and school ‘that I’ve gone to since I was born’.  Y said to tell the judge, ‘do what you think is best for us’.”  (Paragraph 62).

10. I would further note that Ms B recorded at paragraph 68:

    “Ms Morley presents as pleasant and while demonstrating concern for X, Y and Z’s welfare, as noted above, she seemed preoccupied with Mr Balfour’s purported limited financial support.”

11. I further note from paragraph 73 that it is clear that the mother discusses her complaints about the father with Mr B.

12. It is perhaps not necessary to comment overly much further, although obviously I have had detailed regard to all aspects of Ms B’s report, because in the ultimate her conclusions were clear.  At paragraphs 171-174 the report states:

    “171.    It is apparent in this matter, that this assessment is not primarily concerned with deficits, and particularly deficits that might be related to parenting capacity.  Ms Morley and Mr Balfour both present as competent parents who genuinely love their children and if Ms Morley were to live in Melbourne, a regime of close to equal shared care would be facultative and meaningful for X, Y and Z.

    172.    In considering all of the factors related to relocation, the developmental and environmental factors have emerged as those to be afforded more weight in determining what might be the optimum living arrangements for X, Y and Z.  Arrangements for children of X, Y and Z’s age should always be considered as evolutionary and when they reach mid-adolescence, the children’s wishes might mean that changes are instituted.  Indeed, Mr Balfour signals that this might be a factor in later years. 

    173.    While the children’s relocation to (omitted) would not be significantly detrimental to their development, given the strong relationship with Ms Morley and the potential for her improved parenting availability, the need for continuity of environment and the presence of more psychological resources in Melbourne, is the consideration that in my professional opinion, should be given more weight. 

    174.    With Mr Balfour’s competence and the supportive environment of family, friends and school, X, Y and Z’s development would best be served by remaining in Melbourne so that they can continue their developmental progress, particularly in their emotional development.  The children should continue to attend (omitted) Primary School.”

13. It should be noted that the report, wholly unsurprisingly, was particularly concerned with the relocation issue.  Ms B recommended an increase in time for the father of one more night per fortnight (adding a Thursday in the off week).  It should be noted that X did express a view that she would like to see her father more often, specifying in effect a three-four arrangement (paragraph 95).  This remark was not explored with X insofar as the report indicates.

14. Y and Z do not appear to have expressed any view about spending more time with their father.  I note that Ms B opined (paragraph 129) that if the mother was not permitted to relocate she would be quite distressed, and it was of some concern that her parenting capacity might be further compromised.

The Evidence Given at Court

1. It should be noted that in opening the mother’s case counsel inter alia informed the Court that the mother and Mr B had bought an apartment in (omitted) and there were difficulties with paying the mortgage.  He also sought that the 10 kilometre range from (omitted) be extended to 30 kilometres and noted that Child Support was likely to reduce as a result of the father’s loss of job.

2. The mother was called and adopted her Affidavits as true and correct.  She expressed a concern that she would receive no Child Support from the following month onwards and that this would make her position yet more difficult.

3. Under cross-examination the mother noted that the father said he was likely to get a job by February 2016.  It was put to her that payments would be continued on his previous (employer omitted) income.  The mother did not respond to this question but rather asserted that Child Support was incorrectly assessed because the father wrongly claimed to have the children with him 20 more days than he actually did.  She conceded, however, that the father was paying Child Support up to this point but said that she did not know what would happen tomorrow.  It was noteworthy that her answers were to an extent unresponsive and argumentative.

4. The mother said she had bought a property in (omitted) in July and moved from (omitted) in late July.  She said if the children were in (omitted) they would get a bigger house and could ride to school.  (omitted) is a two bedroom apartment seven kilometres from the school, which involves a 15 to 20 minute drive.

5. The mother conceded that the 2013 orders were made by consent following Ms B’s report.  She said she assumed that the former matrimonial home would sell for more than it did and that she received $480,000.  The mother conceded that the children were fond of school and had friends there and a good relationship with their teachers.  The school has coped with Y’s special needs well.  The mother conceded that she knows that X wants to go to (omitted) Secondary College.

6. The children have a lot of extracurricular activities and a number are during school hours.  The mother conceded that the father has extended family in the area but she does not, and that the children are close to his family.  She conceded that the father was always involved with the children, they had a good relationship with him, and that the children wanted more time with him and had told her this.

7. Following the matrimonial settlement, the mother had put approximately $320,000 into buying the property in (omitted) where Mr B was then renting.  This was in late 2013, about eight months after the final Court order.  She was unable to borrow more than $30,000 on her own.  She spent weekends and school holidays in (omitted).

8. Mr B has contributed his inheritance into the (omitted) property which was bought for $530,000, of which Mr B contributed half.  The mother pays the mortgage on the remainder and both properties are jointly owned.  (omitted) is being renovated and will be rented over the summer months.

9. The apartment in (omitted) is in an old (omitted) and cost $570,000 with stamp duty.

10. The mother said she thought the father would help pay for activities, but he did not do so and she proposed to take this up through the Child Support Agency.

11. The mother denied telling X, as alleged in paragraph 93 of the family report, that she could not afford to stay in Melbourne and that X should choose but agreed that X might feel this.  She said that X was aware of the stress that the mother was under.  She was at an age where she knows who pays the bills for things like her (hobby omitted) classes.  (The mother’s answers to the questions as to X’s state of knowledge about such matters were unresponsive).

12. The mother said that she wanted the children to be happy and part of this is their (hobbies omitted).  She said this would no longer be able to be afforded and that if she stayed in Melbourne she would run out of money to support them.  She said she wanted the father to pay the things that she paid for.

13. The mother confirmed that renovation in (omitted) would take several years and if the move there occurred she would sell or rent the (omitted) property.  She will stay in (omitted) if she does not move.  The father has just reduced his Child Support by $500 per month based on a lower income.  The mortgage on (omitted) is $265,000.

14. When questioned as to how arrangements would actually work if she moved into (omitted), the mother’s answers were, in my view, unconvincing.

15. She said she would like to look at other schools and that (omitted) School would be more affordable.  She said she would look at (omitted) Secondary College and if it was the right school for X she would go there, but they did not live in the zone.

16. The mother confirmed that she had taken the children to see a school in (omitted) and they liked it.  She told the children that this could be an option but she said she had kept it low key.  She said X misses her when she is with her father from Thursdays to Mondays.

1. When the father’s proposal of Monday to Tuesday in the off week was put, the mother said that (hobby omitted) is on Monday and she objected on that ground.

The Evidence of the Father

1. In evidence-in-chief the father adopted his Affidavits as true and correct.  He said he always pays Child Support as assessed and will continue to do so.  He was made redundant last year and was unemployed for seven months.

2. When cross-examined by counsel for the mother, the father said that Child Support was reduced recently from $1,900 to $1,500 a month.  He would continue to pay this sum even though he is unemployed.  He asserted he was able to care for the children if they were with him.  When questioned as to how the nine to five arrangement worked he said he sometimes worked from home and, if necessary, the children would have afterschool care or he would obtain the services of a nanny.  He said the current situation was working well but it was in the interests of the children to have more time with him.

3. The father suggested that (omitted) or (omitted) would be more appropriate suburbs for the mother to live in as they would be more affordable.  He conceded the children were happier living in (omitted) than in (omitted).

4. The father was questioned about his attendance at extracurricular activities and confirms that he attends (hobbies omitted) for which the mother has paid.  He asserted that the mother had put those in place without discussion and from what he said and the way he said it, his failure to contribute to paying for these matters had all the hallmarks of churlishness.

5. The father confirmed that he rents in (omitted) but might possibly move to the (omitted) school zone.  He said he would like to discuss (omitted) Secondary College with the mother and that (omitted) is a feeder school for that institution.  There was no need for Y to go to a different school to her sister.

6. When it was put to him that Z cannot cope with seven nights with him at the moment, he said that by the time this came in on his proposal in 2017, Z would be older.

7. The father wished the Court to nominate (omitted) School as the Secondary College.  He had said he had looked at (omitted) High School.  (omitted) is a girls’ school only.

Findings about the Facts

1. Although I have to an extent proffered some criticisms of each of the parents in my observations above, I should make it plain that I formed the impression that both of them were sincere and honest witnesses.  To the extent that I do not accept what they say it is because the overall tenor of the evidence leads to different conclusions.

2. It is quite clear that the father was always the major income earner at least once the children were born.  Following separation he maintained a large income and the mother has simply not been able to work very significantly at all.  The mother’s bitterness about what she perceives as the father’s controlling financial behaviour is palpable both in the answers she gave to the Court and perhaps more particularly, in the matters that she discussed with Ms B.  It is an understandable response to what must be a very stressful and difficult situation for her.

3. Notwithstanding this and the measure of bitterness it has given rise to in the father also (he sees himself as being continually blackmailed by threats of relocation and demands for more money), the fact is that the children are well cared for and generally well and secure.  There are incipient difficulties with X to which Ms B has referred (and I have not set them out in any detail but the report speaks for itself) but in a general sense these are two good and loving parents who genuinely want the best for their children.

4. The mother has re-partnered with Mr B but I note that her initiatives towards moving the children towards (omitted) have been, to an extent, slightly inappropriate.  Taking the children to see a potential new school at a time when the matter had really scarcely been broached, if at all, with the father smacks all too much of seeking to have the horse bolt before the gate can be bolted.  Nonetheless, these are not matters of overweening criticism.  The reality is it is a matter of working out which of the parents’ relocation proposals is more likely to be in the childrens’ best interests.

The Statutory Pathway

1. The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:

   “Summary

   [65]    In summary, the amendments to Pt VII have the following effect:

   1.  Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2.  The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3.  If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4.  The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5.  When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6.  The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
   (s 65DAA(5)).

   7.  The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (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 and 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.

   8.  Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9.  The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11.    The child’s best interests remain the overriding consideration.”

2. In this case there is no question about equal shared parental responsibility.  All parties agree that it is appropriate, and it will continue to remain the order of the Court.

3. This brings us to consideration of the relocation issue. This has to be addressed first, because whatever regime of time is to be put in place, it will necessarily, as both parties agree (expressly or implicitly), be heavily influenced by where their childrens’ primary residence is. In my view this is best addressed by paying attention to the matters contained in s.60CC(3) of the Family Law Act 1975 (“the Act”).

4. In saying this, I of course have regard to the objects in s.60B and the primary considerations in s.60CC(2). However, in the particular context of this dispute, those sections, while important and needing to be borne in mind in an overarching way, are not the ones that do the work.

Section 60CC(3)(a)

1. The views of the children must be approached bearing in mind their ages.  X is 11 (shortly to be 12), Y 10 and Z only 6.  Whatever the strength of X’s opposition to relocation (and it is not possible to come to definite conclusions about the assertions that she has said she will abscond), it is clear that X is opposed to it.  Scarcely surprisingly in circumstances where her parents do not wholly cooperate, X has a particular emphasis in her life with her family, friends and school.

2. She really wants to go to (omitted) Secondary College and is aspiring to a leadership position at (omitted) next year (paragraph 92 of the family report).

3. My impression of Y, bearing in mind the materials as a whole and most particularly the family report, is that she is rather less mature.  Even so she is aware that she would miss her friends if she relocated to (omitted).  Her assertion that if she could choose - “maybe move to (omitted), it’s really nice there.  I could get a cat and stuff that I want” - is redolent of a child whose memories of (omitted) are associated with holidays (she has never lived there during term time) and might reasonably be assessed as somewhat immature.  Z, of course, has expressed no view one way or the other.

Section 60CC(3)(b)

1. The children all have good and well established relationships with both their parents.  So much is not in issue.  Similarly, it appears that they have good relationships with the father’s extended family, who at least to an extent live relatively proximate to where they now themselves live.  Although the matter is scarcely touched on in any detail, there is no reason to suppose the children do not have appropriate relationships with their mother’s extended family, although it would seem that they may see them less.

2. I note that Y has very good relationships with her friends at school and really good teachers and obviously gives emphasis to the fact that she is in the (hobby omitted).  Her relationships with these parties must be of some significance to her.

Section 60CC(3)(c)

1. Both these parents have clearly made endeavours to participate in making decisions about major long-term issues in relation to the children and to spend time and communicate with them.  Indeed, it is the sincerity and energy of their efforts in this regard that has given rise to this litigation.

Section 60CC(3)(ca)

1. In my view, both of the parents have properly fulfilled their obligations to maintain the children.  Here, on the one hand, I reject the mother’s criticisms of the father about Child Support and the like.  It is clear that there is an ongoing dispute as to whether he has correctly informed the Child Support Agency of the amount of time the children spend with him, but that is a matter that can appropriately be addressed through the assessment process.  The fact that the father has committed himself to paying at the level of earnings he had when he was employed, now that he is unemployed, in my view speaks volumes.

2. Similarly, while the mother’s failure to reengage with employment is noteworthy and given that all the children are at school, somewhat startling, I do not see this as an indolence borne of lack of concern.  Rather, it seems to reflect the mother’s underlying and ongoing view that it is for the father to provide for the family.  At some point in time the mother is going to have to realise how much her circumstances have changed and start applying herself, as she was previously able, to earning an income.

Section 60CC(3)(d)

1. The likely effect of relocation is in a sense, almost self-evident.  It is clear, bearing in mind Ms B’s report and indeed not seriously challenged, that X would be terribly upset at least initially, by any relocation to (omitted).  Y and Z would doubtless be so also.  The critical aspect of this particular criterion is that identified by Ms B.  As Ms B put it at paragraphs 173-174:

   “173.    … the need for continuity of environment and the presence of more psychological resources in Melbourne, is the consideration that in my professional opinion, should be given more weight.

   174.    With Mr Balfour’s competence and the supportive environment of family, friends and school, X, Y and Z’ development would be best served by remaining in Melbourne so that they can continue their developmental progress, particularly in their emotional development.  The children should continue to attend (omitted) Primary School.”

2. It should be noted that although Ms B refers to the presence of more psychological resources in Melbourne, this does not seem to me, on reading her report, to refer so much to professionally competent intervention (there is nothing to say it would not be available in (omitted)) but rather the overarching effect of the support of teachers, school friends, their father’s more readily available presence and that of his family.

Section 60CC(3)(e)

1. There will be significant practical difficulty and expense if relocation is permitted, even assuming that the mother, as I accept would be the case, did her best to foment an appropriate ongoing relationship with the father.  The tyranny of distance and interrelated time speaks for itself.

2. The concomitant changing of school would undoubtedly distress the children.

Section 60CC(3)(f)

1. While this is an important matter, the capacity of the parents and other associated persons to provide for the childrens’ needs has already been traversed above.

Section 60CC(3)(g)

1. Some of the mother’s responses to the misfortunes that have befallen her since separation suggest an unfortunate incapacity to adapt to her materially now much more straightened circumstances.  Nonetheless, the mother deserves a great deal of sympathy.  What she perceives to have happened to her (an ongoing campaign of financial domination by the father) must be deeply distressing to her.  Nonetheless, the fact is that the parties have concluded their financial settlement and must now start to approach life on the playing field as it stands.  X’s personality is indicated in some detail in Ms B’s report and it is not necessary to repeat the various concerns Ms B has referred to.  Nonetheless, I bear them steadily in mind.

Section 60CC(3)(h)

1. This is not relevant.

Section 60CC(3)(i)

1. Once again, this is an important subsection, but the facts of this case are such that I have already traversed the attitude to the children and the responsibilities of parenthood demonstrated by the parents.  The parents have a thoughtful, caring and loving approach to their children and it is not necessary to say more than that.

Section 60CC(3)(j)

1. Despite the various lurid assertions made by the parties from time to time in their affidavits, none of these have ever been the subject of any testing before the Court and they were not raised in the case this time.

Section 60CC(3)(k)

1. This is irrelevant.

Section 60CC(3)(l)

1. This is plainly a case where, for good or ill, the matter should come to an end.  Ms B’s report suggests that both parents may have exposed the children, to a greater or lesser degree, to the Court proceeding and some of the matters associated with it.  This can only be anxiety-producing in the children and Ms B’s report suggests that this is indeed the case, particularly with X.  It is entirely appropriate to make final orders.

Section 60CC(3)(m)

1. The critical thing here is the obvious difficulties associated with the major disruption that would occur if relocation were to be permitted.  On the other hand, the mother’s anxiety and difficulty if relocation is not permitted is plainly a relevant consideration.  In the end, at least insofar as this aspect of the controversy is concerned, Ms B’s recommendations, springing as they do from sound commonsense need to be given considerable weight.

Conclusion on the Relocation Application

1. The fact is that, taking all the relevant matters as described above together, it is clearly not in the childrens’ best interests that the mother relocate with them to (omitted).  (omitted) is not without its attractions, both to the mother, for obvious financial reasons and indeed to the children (at least to varying degrees).  Nonetheless, all three children have attended (omitted) Primary School since they commenced their education, have secure friendships (particularly in the case of the two elder children) and good relationships with their teachers.  The reality is that the mother is a co-owner of two properties.  She may need to consider whether this is appropriate.

2. This brings me to one aspect of the relocation question, namely how far the mother should be permitted to relocate from the school in (omitted).  The father said, correctly enough in my view, that there are cheaper suburbs than (omitted) to live in within 10 kilometres of (omitted) Primary School.  Counsel for the father conceded that there is no particular magic to the 10 kilometres distance.  Nonetheless, in my opinion it is inappropriate to accede to what I understood to be the mother’s position that the radius should be expanded to 30 kilometres.  The whole point about keeping the children where they are at school is the proximity to family and more particularly, to school friends and extracurricular activities.

3. While at one level of analysis 15 or even 20 kilometres is not an insuperable distance in metropolitan Melbourne, as a matter of practical politics, it is a very long way.  The parties chose 10 kilometres by agreement in 2013 at a time when they were both represented.  The mother’s real complaint about this restriction is that the eventual sale of the family home did not produce as much money as she had anticipated and that this has caused financial hardship.  I accept that this is so.  I further accept that she is correct in discerning in the father a measure of controlling behaviour (“not another cent”, and his desire to pay school fees directly to the school rather than to the mother).  Nonetheless, if she is not to move to (omitted), in my opinion she should not move further than 10 kilometres from the childrens’ school.  She perhaps needs to think again about which suburb might be most appropriate to her financial circumstances.

The Father’s desire for Extra Time

1. Ms B recommended extra time but as I have already indicated, the children in truth said very little about this and the matter is not explored in any great detail (scarcely any detail at all) in Ms B’s report.  The father’s desire to move to equal time is of itself commendable but it ignores the relative lack of cooperation between the parties.

2. Furthermore, any move towards extra time for the father will only exacerbate the Child Support issues that are plainly at the forefront of the mother’s mind.  However reasonable or otherwise the mother’s position might be, it is a fact of life.  It is not in the childrens’ best interests that this bitter controversy between the parties be given further fuel unless it is clearly in the childrens’ best interests that this be so.

1. Z is only six.  It is conceded by the father that he could not move to equal time now.

2. If the truth be truly told, it is really almost beyond human wisdom to say which of five nights per fortnight or six nights per fortnight is really more likely to promote the childrens’ best interests.

3. One factor to which Ms B has not, as far as I can see, directed significant attention is the practicality of the father having the children for six nights per fortnight.  Although he says that when he is in employment he is sometimes able to work from home, it is not certain whether the work that he anticipates obtaining in 2016 will in fact permit this.

4. While of course at one level of analysis it is counterintuitive to adopt an outcome in large part because it is propounded by Ms B (the relocation issue) and then in respect of another aspect of the controversy to reject Ms B’s recommendation, it is important to remember that judgment in these cases remains always ultimately with the Court.

5. Given the childrens’ ages, given the practical difficulties that I think are more likely than not to obtain with an equal time, or something close to equal time, regime in circumstances where the parents’ relationship is scarcely stress-free, I think that the childrens’ best interests will be served by continuing the nine-five regime as it presently stands.  It was, after all adopted by consent in 2013.  As things stand the children are happy and contented in the main and present as achieving well.  In my opinion they, are at least as yet, too young, based upon the level of maturity discernible in Ms B’s report, for a further increase in time with their father to be in their best interests.

Conclusion

1. It should be noted that I have not dealt with counsel’s submissions in the matter.  This is not intended as a discourtesy, as they were concise and helpful.  Since, however, they have necessarily then essentially propounded the position contended for by their clients, it has not been necessary to detail them.

2. Accordingly, I will dismiss the mother’s application to relocate to (omitted).  I will otherwise order that the extant orders remain in full force and effect.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date:  5 February 2016