Morrell and Blakeley

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORRELL & BLAKELEY

[2014] FCCA 1888

Catchwords:
FAMILY LAW – Parenting relocation – ability of mother to facilitate and encourage close and continuing relationship findings about false allegations of family violence made for the purposes of strategic advantage.

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61B, 61C, 61CA, 61DA, 64B, 65DAA,69ZT
Evidence Act 1995 (Cth), s.97

Cases cited:
Chapman and Palmer (1978) FLC 90-510
Beach and Stemmler (1979) FLC 90-692
Champness & Hansen (2009) FLC 93-407
Marsden & Winch(No.3) FLC 93-407
Marsden & Winch(No.3) [2007] FamCA 1364
Collu & Rinaldo [2010] FamCAFA 53
Mazorski v Albright (2007) 37 Fam LR 518
Slater & Light [2011] FamCAFC 1
Goode & Goode [2006] FanCA 1346
Chapman & Barton v Tickner, Minister for Aboriginal & Torres Strait Islander Affairs (1995) 55 FCR 316 and 369
T & N [2001] FMCAfam 222
Starr & Duggan [2009] FamCAFC 115
AMS v AIF (1999) 199 CLR 160
U v U (2002) 211 CLR 238
Taylor v Barker (2008) 37 Fam LR 461
McCall v Clark (2009) FLC 93-405
Hepburn & Noble (2010) FLC 93-438
Cales & Cales (2010) FLC 93-459
MRR v GR (2010) 240 CLR 461

Applicant:

MR MORRELL

Respondent:

MS BLAKELEY

File Number:

SYC 4645 of 2010

Judgment of:

Judge Myers

Hearing dates:

19 February 2013, 11 June 2013, 12 June 2013, 13 June 2013, 8 November 2013, 29 November 2013 and 12 February 2014

Date of Last Submission:

2 April 2014

Delivered at:

Newcastle

Delivered on:

22 August 2014

REPRESENTATION

Counsel for the Applicant:

Mr Kelly

Solicitors for the Applicant:

Emery Partners

Counsel for the Respondent:

Ms Carty

Solicitors for the Respondent:

Peter Hamilton & Associates

ORDERS

The parents shall have equal shared parental responsibility for the children. X (DOB: ((omitted) 2009) and Y (DOB: ((omitted 2012) ("the children").
Conditional upon the mother maintaining the children’s residence at a place within a radius of 50 kilometre of the (omitted) Post Office within 28 of the date of these orders:
(a)The children shall live with the mother.
(b)The children spend the time with the father as agreed between the parties but failing agreement as follows:
(i)Each alternate weekend from 6.00 pm Friday to 6.00 pm Sunday and in the event that any weekend falls on a long weekend including Monday then the time the children spend with the father shall be extended until 6.00 pm on Monday or if a long weekend including Friday, the time shall be extended to commence at 6.00 pm Thursday;
(ii)From 6.00 pm each Tuesday until return to school, pre-school or the mother’s residence at 9.00 am on the following Wednesday;
(iii)For the first half of the shorter mid-year school holidays;
(iv)During the Christmas holidays.
(c)Until the child X commences school:
(i)For the first, third and fifth weeks of the Christmas holidays;
(ii)the first week shall commence at 10.00 am on the day after the last day of school term requiring student attendance and conclude at 10.00 am on the same day the next week and the same commencement and conclusion days and times shall apply to the third and fifth weeks.
(d)Upon the child X commencing school:
(i)Half of the Christmas holidays being the first half in odd numbered years and the second half in even numbered years and for the purpose of this order Christmas holidays are deemed to commence at 9.00 am on the day after the last day of school term requiring student attendance and to conclude at 5.00 pm on the day before the first day of the next school term requiring student attendance and the expiry of the first half and commencement of the second half is deemed to occur at 9.00am on the day of the midpoint between the time of commencement and the time of conclusion of the school holiday period but if there is no mid-point day, then the first half shall have one day more than the second half.
(ii)In odd years from 5.00 pm Christmas Eve to 9.00 am Boxing Day commencing on 24 December 2013.
(iii)On the Father's Day weekend from 6.00 pm Friday to 6.00 pm Sunday.
(iv)For 4 hours on each of the children's birthdays being from 12 noon until 4.00pm if on a non-school day and from 3.00pm until 7.00pm if on a school day.
(v)For 4 hours on the father's birthday being from 12 noon until 4.00pm if on a non-school day and from 3.00pm until 7.00pm if on a school day.
The children shall communicate with the father either by Skype or by telephone at all reasonable times and for this purpose the mother shall facilitate this communication by enabling the children to use the relevant telephone or computing device.
All changeovers other than at school, pre-school or the mother’s residence are to take place at (omitted) McDonalds by the mother or her nominee delivering/collecting the children to/from and the father or his nominee.
The time the children spend with the father pursuant to these orders above is suspended as follows:
(a)On the weekend that contains Mother's Day from 5.00pm Friday until 5.00pm on Mother's Day;
(b)In even years between 5.00 pm Christmas Eve and 9.00 am Boxing Day commencing on 24 December 2014.
(c)For 4 hours on each of the children's birthdays from 12 noon if on a non-school day and from 3.00pm until 7.00pm if on a school day;
(d)For 4 hours on the mother's birthday from 12 noon if on a non-school day and from 3.00pm until 7.00pm if on a school day;
(e)And the children shall spend such time with the mother
The time Y spends with the father pursuant to order 2 is suspended until 17 February 2015 when he turns 3 years of age and in substitution. Y shall spend time with the father as agreed between the parties but failing agreement as follows :
(a)Each Wednesday from 9 .00 am to 6.00 pm;
(b)Each Friday from 9.00 am to 6.00 pm;
(c)Each Saturday and Sunday on alternate weekends from 9.00 am to 6.00 pm;
(d)On the Saturday and the Sunday of the Father's Day weekend between 9.00 am and 5.00 pm.
(e)On Christmas Day 2013 between 9.00 am and 6.00 pm.
(f)For 4 hours on each of the children's birthdays being from 12noon until 4.00 pm;
(g)For 4 hours on the father's birthday from 12 noon until 4.00pm;
(h)Between 9.00 am and 6.00 pm on the days in school holidays that X spends with the father.
In default of Order 2 with respect to the mother maintaining the children’s residence at a place within 50 kilometres of the (omitted) Post Office then:
(a)The children shall live with the father.
(b)The children shall spend time with the mother as agreed between the parties but failing agreement:
(i)On the fourth weekend during New South Wales school terms from Friday 6 .00 pm to Sunday 6.00 pm;
(ii)For the second half of school holidays except the Christmas holidays;
(iii)For the second, fourth and sixth weeks of the Christmas holidays;
(iv)In even years from 5.00 pm Christmas Eve to 9.00 am Boxing Day commencing on 24 December 2014.
The children shall communicate with the mother by Skype or telephone at all reasonable times and for this purpose the father shall facilitate this communication by enabling the children to use the relevant telephone or computing device.
To implement the time the children spend with the mother the mother will collect the children from the father at (omitted) Airport at the commencement of the time and the father will collect the children from the mother at Brisbane Airport at the conclusion of the time with the father to pay for all of the children's air fares .
The parties do all acts and things and sign all documents necessary to enable the children to attend and be educated at (omitted) Grammar School including the pre-school at (omitted) Grammar School conditional upon that the father being responsible for paying the school fees and all other costs associated or incidental to the children's education including school uniforms.
Each party authorise the school authorities, teachers or any other person having responsibility for the children's school education or other curricular activity to communicate directly with each parent as if the parties had not separated and to record each parent as a person to be notified in cases of emergency and to provide to each parent copies of school reports and other reports relevant to the children's education and the execution of these Orders shall be deemed to be sufficient authority for the purpose of these orders.
Each party keep the other party informed as to all medical, dental and other health related treatment being undertaken by the children and each party at all times be at liberty to communicate directly with the treating professionals without necessarily referring to the other party.
Each party notify the other within a reasonable time of any illness or injury suffered by the children which requires medical treatment but if the child suffers a serious illness and/or injury, each party shall advise the other party as soon as practicable of any such serious illness or injury.
The parties are restrained from referring to any person other than the parties as the father and the mother of the children and shall use their best endeavours to ensure that the children do not refer to any person other than the parties as "Dad", "Mum" or any equivalent or derivation thereof.
The mother shall notify the father in writing within 7 days after the date of these orders to advise whether the mother is going to relocate from her current residence to live with the children within 50 kilometres from the (omitted) Post Office.
In the event the mother notifies the father within 7 days after the date of these orders that she is going to relocate to live with the children (within a further 21 days) to a place within 50 kilometres from the (omitted) Post Office then:
(a)The mother shall forthwith do all acts and things and sign all documents necessary to establish a place of residence within 50 kilometres of (omitted) Post Office ("the residence").
The father shall thereafter do all acts and things and sign all documents necessary to cause the following to occur:
(a)Within 48 hours of receiving notice from the mother pay the mother up to $2,000 towards the cost of relocating the children and her household contents to the residence.
(b)Within 48 hours of receiving notice from the mother pay the mother up to $2,000 towards any rental bond the mother is required to pay to secure a lease over the residence.
(c)If required by the mother to pay the mother within 48 hours of receiving notice from the mother a sum sufficient to fly the mother and the children from Brisbane to (omitted) NSW.
(d)Contribute up to $300 per week towards the rent the mother pays for the residence such amount to be paid directly to the landlord or landlords managing agent and to be varied each year in accordance with the variation in the Consumer Price Index published by the Commonwealth Statistician for Sydney by comparison of the Consumer Price Index as it stands on either 31 March, 30 June, 30 September or 31 December (whichever month immediately precedes the date the mother first occupies the property) with the same index at the same date 12 months prior thereto.
Pending the establishment of the residence pursuant to order 16 above the following orders shall apply:
(a)The children are to live with the mother and spend time with the father in (omitted) NSW on alternate weekends as follows:
(b)X between 2.00 pm Friday and 5.00 pm Sunday;
(c)Y between 2.00 pm and 5.00 pm Friday and from 9.00 am and 5.00 pm on Saturday and Sunday.
(d)The father is to pay the mother a sum sufficient for the cost of air travel for the children and the mother between Brisbane and (omitted) NSW. the cost of the mother hiring a car for her use in (omitted) NSW and for self-contained accommodation for the mother whilst she is in (omitted) NSW.
(e)The father is to collect the children from the mother from the Hungry Jacks restaurant at (omitted) Airport at the beginning of the time on Friday.

THE COURT NOTES THAT:

A)The father has in his application consented to make the payments for or towards the children’s accommodation and the mother as set out at orders 17(a) to 17(d) above.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

SYC 4645 of 2010

MR MORRELL

Applicant

And

MS BLAKELEY

Respondent

REASONS FOR JUDGMENT

Introduction

These are proceedings between the applicant Mr Morrell (hereinafter referred to as “the father”) and the respondent Ms Blakeley (hereinafter referred to as “the mother”), in respect of children of the relationship being X born (omitted) 2009 aged 4 years and 10 months and Y born (omitted) 2012 aged 2 years and 1 month.
Proceedings were commenced by the father filing an Initiating Application on 29 February 2012, when Y was then 12 days old. It is noted that in the father’s Initiating Application he sought interim orders at order 7 for “child x” to spend time with the father. Child “x” turned out to be Y. The court forms the view that the father was unaware at that stage of Y’s names. The father relies on the following documents that the court has read and considered:
a)Second amended initiating applications file 26 March 2013;
b)Affidavit of Mr Morrell sworn 12 April 2013;
c)Affidavit of Mr Morrell sworn 3 June 2013;
d)Affidavit of Ms M filed 29 May 2012;
e)Affidavit of Mr R filed 12 June 2012; and
f)Affidavit of Ms S filed 5 July 2012.
The mother relied on the following documents during the hearing that the court has read and considered:
a)Amended Response filed 21 November 2013;
b)Affidavit of Ms Blakeley filed 12 April 2013;
c)Affidavit of Ms C filed 18 January 2013;
d)Affidavit of Mr T filed 18 February 2013.
The court has read and considered the documents and records tendered during the course of the proceedings forming exhibits “A” through to “O”.
The court has a read and considered of the outline of case document filed for the mother and the outline of case document filed by the father as well as the document titled “Addendum to Father’s Case Outline”.
The court has read and considered the father’s written submissions provided to the court on 7 March 2014, the mother’s written submissions provided to the court on 21 March 2014 and the fathers written submissions in reply provided to the court on 28 March 2014.
The court has read and considered the family report prepared by Ms D dated 7 January 2013 and limited issues report also prepared by Ms D dated 23 May 2013.
The hearing of the matter took place over a period of 6 days on the following dates:
i)19 February 2013;
ii)11-13 June 2013;
iii)8 November 2013;
iv)29 November 2013;
v)12 February 2014.
The history of litigation including the orders sought by the parties in the applications and responses filed by the parties is contained in the following paragraphs.
The father sought the following interim orders in his initiating Application:
a)A Commonwealth Location order;
b)The parties have equal shared parental responsibility for X;
c)The child X live with the mother;
d)The father spend each alternate weekend with the child X;
e)The father spend time with the new born child named “x” whom the father had not meet at that stage during change over with the child X.
The father sought final orders as follows:
a)The parties have equal parental responsibility for the children;
b)The children live with the mother in the (omitted) NSW area;
c)The child X spend three weekends out of every 4 with the father until she reached school age;
d)The child who is known as Y spend time with the father when the child X is spending time with the father but day time only until Y attained the age of 2 years and then Y’s time with the father would be brought into line with X;
e)Upon the child X commencing school the children spend alternate weekend, half school holidays with the father and on special occasions;
f)The father provide the mother with $2,000.00 per annum for the cost of travel between (omitted) NSW and Brisbane.
On 2 May 2012 the father filed an amended initiating application.
The orders sought by the father in the amending initiating application are as follows:
a)Equal shared parental responsibility;
b)The children of the mother live in the (omitted) NSW area;
c)The child X spend time with the father, inter alia:
i)Until X commences school:
(i)3.00 pm Tuesday to 11.00 am Wednesday each week;
(ii)Each Friday from 9.00 am to 1.00 pm in week one and from 1.00 pm Friday to 1.00 pm Sunday in the alternate weeks;
ii)Upon X commencing school (2014):
(i)From after-school Tuesday until the commencement of school Thursday each week:
(ii)Each alternate weekend from Friday to Monday.
iii)Upon the child at a turning three years of age (2015):
(i)Week about;
(ii)Half school holidays;
(iii)Special occasions.
d)The child spend time with the father, inter alia:
i)Until February 2013:
(i)Each Tuesday from 3.00 pm to 5.00 pm;
(ii)Each Friday from 9.00 am to 1.00 pm;
(iii)Each Sunday from 9.00 am to 1.00 pm;
ii)From February 2013 until August 2013:
(i)Each Tuesday from 3.00 pm to 5.00 pm;
(ii)Each Friday from 9.00 am to 1.00 pm;
(iii)From 9.00 am Saturday to 5.00 pm Sunday;
iii)From August 2013 until Y turns 2½ years old in August 2014:
(i)Each Tuesday from 3.00 pm to 5.00 pm;
(ii)Each Friday from 9.00 am to 1.00 pm;
(iii)Each alternate weekend from 9.00 am Friday to 1.00 pm Sunday.
iv)From when Y is three years of age (February 2015):
(i)Week about;
e)The father to assist the mother with removal cost from Queensland to (omitted) NSW.
f)The children to attend (omitted) School at (omitted)
g)The father to provide the mother with $2000 annually to be used to travel to Queensland.
h)The father to be registered as Y’s biological father
On 2 May 2012 the mother filed a response. In that response the mother sought orders for the follows:
a)Sole parental responsibility;
b)That the children live with the mother in (omitted) Queensland;
c)The child X spend time with the father
i)For 4 months, two day time visits only in Queensland;
ii)For next 4 months from Friday morning to Saturday afternoon each alternate weekend in Queensland;
iii)Thereafter each month alternate weekends from Friday to Sunday (omitted) NSW with one weekend per month in Queensland;
iv)The child Y spend time with the father for one hour at each changeover with X;
v)X communicate with the father by telephone (or Skype) each day;
vi)The father provide all documents, pay all fees to be recorded as the father on Y’s birth certificate;
vii)The father be restrained from providing the children with any medical treatment;
viii)The mother’s residential address to be admitted from any documents;
ix)The mother to make arrangements with any school or day care centre attended by the children that the father to obtain copies of reports, newsletters etc.
14 May 2012 was the first return date for the father’s initiating application.

On 5 June 2012 the mother filed an amended response. In that amended response the mother sought orders as follows:
a)Equal shared parental responsibility;
b)The children live with the mother in (omitted) Queensland;
c)The child X spend time with the father;
i)From 4 months each third weekend in Queensland, for 2 day time visits only from 9.00 am to 3.00pm each Friday and Saturday;
ii)For 4 months each third weekend in Queensland from 9.00 am Saturday to 3.00 pm Sunday;
iii)Thereafter one week per month in (omitted) NSW from 9am Friday to 3pm Saturday and one weekend per month in Queensland and on special occasions.
iv)The child Y spend time with the father:
v)Until Y turns 3 years, two hours at each change over with X;
vi)Upon Y turning 3 years, he spend the same time with the father as X spends with the father;
vii)Upon each of the children turning 5 years of age spend half of all holidays with the father;
viii)The child X communicate with the father by telephone or Skype each day;
ix)The father sign all documents, pay all fees and to ensure the father is recorded on Y’s birth certificate as the father;
x)The father be restrained from providing any medical treatment for the children;
xi)The mother to make arrangements with any school or day care centre attended by the children for the father to obtain copies of reports, newsletters etc.
On 29 June 2012 an interim hearing was conducted.
On the day of the interim hearing parties entered into the following orders by consent:
a)The parties have equal shared parental responsibility of the children;
b)The children live with the mother;
c)The child X spend time with the father as follows
i)One occasion of two day time visits only in Queensland;
ii)One occasion from 9.00 am Saturday to 5.00 pm Sunday in Queensland;
iii)Each alternate weekend thereafter from 3.00 pm Friday to 5.00 pm Sunday alternating between Queensland and (omitted) NSW;
iv)The child Y spend time with the father as follows:
v)For two hours on each of the changeovers with the child X.
vi)The father to pay all the travel and accommodation costs for the mother and the children;
vii)The parties shall communicate by email;
viii)The children communicate with the father by telephone or Skype on a liberal and flexible basis;
ix)Each party authorises the other to obtain all school medical records and alike with respect to the children.
On 21 January 2013 the mother filed an amended response. The document was essentially a further amended response although incorrectly marked. In the further amended response the mother sought orders as follows:
a)The mother have sole parental responsibility;
b)The children live with the mother in (omitted) Queensland, Queensland;
c)The child X spend time with the father;
i)Until 30 May 2013, each 6^th weekend from Saturday morning to Sunday morning;
ii)At other times, no more than one weekend per month in Queensland;
iii)From 30 May 2013 and onwards, each 6^th weekend from 9.00 am Saturday to 5.00 pm Sunday;
iv)At other times no more than one weekend per month in Queensland;
v)Half of the school holidays.
d)The child Y spend time with the father:
i)Until August 2013, three hours at each of the changeovers with X;
ii)From August 2013 until February 2014, for a period of five hours at each changeover with X;
iii)From February 2014 until February 2015 for a period of eight hours at each changeover with X;
iv)From February 2014 when Y turns 4 years of age he spend time with the father at the same times as X;
v)The father be responsible for all costs associated with the air fare and accommodation;
vi)The children communicate with the father each day by telephone or Skype;
vii)The father sign all documents and give all consent to have his name recorded as Y’s biological father;
viii)The parties are restrained from leaving the children in the care of any person under the age 18 other than a family member of the maternal or paternal family unless by agreement;
ix)The father be prohibited from administering any medical treatment to the children;
x)The father be restrained from referring to the child Y as “(omitted)”.
At the date of the hearing the father relied upon the orders sought in his second amended initiating application filed on 26 March 2013 that are as follows:
1.That the parents shall have equal shared parental responsibility for the children. X (DOB: (omitted) 2009) and Y (DOB: (omitted) 2012) ("the children").
2.If within 28 days of the date of these orders the Mother resides within a 50 kilometre radius of the (omitted) Post Office:
2.1    The children shall live with the mother.
2.2    The children spend the time with the father as agreed between the parties but failing agreement as follows:
2.2.1Each alternate weekend from 6.00 pm Friday to 6.00 pm Sunday and in the event that any weekend falls on a long weekend including Monday then the time the children spend with the father shall be extended until 6.00 pm on Monday or if a long weekend including Friday, the time shall be extended to commence at 6.00 pm Thursday;
2.2.2From 6.00 pm each Tuesday to 6.00 pm on the following Wednesday;
2.2.3From 6.00 pm each Thursday to 6.00 pm on the following Friday;
2.2.4For the first half of the shorter mid-year school holidays;
2.2.5.    During the Christmas holidays:
(a)     Until the child X commences school:
(1)    For the first, third and fifth weeks of the Christmas holidays; the first week shall commence at 10.00 am on the day after the last day of school term requiring student attendance and conclude at 10.00 am on the same day the next week and the same commencement and conclusion days and times shall apply to the third and fifth weeks;
(b)    Upon the child X commencing school:
(1)    Half of the Christmas holidays being the first half in odd numbered years and the second half in even numbered years and for the purpose of this order Christmas holidays are deemed to commence at 9.00 am on the day after the last day of school term requiring student attendance and to conclude at 5.00 pm on the day before the first day of the next school term requiring student attendance and the expiry of the first half and commencement of the second half is deemed to occur at 9.00am on the day mid point between the time of commencement and the time of conclusion of the school holiday period but if there is no mid-point day, then the first half shall have one day more than the second half.
2.2.6In odd years from 5.00 pm Christmas Eve to 9.00 am Boxing Day commencing on 24 December 2013.
2.2.7On the Father's Day weekend from 6.00 pm Friday to 6.00 pm Sunday;
2.2.8For 4 hours on each of the children's birthdays being from 12 noon until 4.00pm if on a non-school day and from 3.00pm until 7.00pm if on a school day;
2.2.9For 4 hours on the father's birthday being from 12 noon until 4.00pm if on a non-school day and from 3.00pm until 7.00pm if on a school day.
2.3The children shall communicate with the father either by Skype or by telephone at all reasonable times and for this purpose the mother shall facilitate this communication by enabling the children to use the relevant telephone or computing device.
2.4All changeovers are to take place at (omitted) McDonalds by the mother or her nominee delivering/collecting the children to/from and the father or his nominee.
2.5The time the children spend with the father pursuant to these orders above is suspended as follows:
2.5.lOn the weekend that contains Mother's Day from 5.00pm Friday until 5.00pm on Mother's Day;
2.5.2In even years between 5.00 pm Christmas Eve and 9.00 am Boxing Day commencing on 24 December 2014.
2.5.3For 4 hours on each of the children's birthdays from 12 noon if on a non-school day and from 3.00pm until 7.00pm if on a school day;
2.5.4For 4 hours on the mother's birthday from 12 noon if on a non-school day and from 3.00pm until 7.00pm if on a school day;
And the children shall spend such time with the mother.
3.That the time Y spends with the father pursuant to order 2 is suspended until 17 February 2014 when he turns 2 years of age and in substitution Y shall spend time with the father as agreed between the parties but failing agreement as follows :
3.1    Each Wednesday from 9.00 am to 6.00 pm;
3.2    Each Friday from 9.00 am to 6.00 pm;
3.3    Each Saturday and Sunday on alternate weekends from 9.00 am to 6.00 pm;
3.4    On the Saturday and the Sunday of the Father's Day weekend between 9.00 am and 5.00 pm.
3.5    On Christmas Day 2013 between 9.00 am and 6.00 pm.
3.6    For 4 hours on each of the children's birthdays being from 12noon until 4.00pm;
3.7    For 4 hours on the father’s birthday from 12 noon until 4.00pm;
3.8    Between 9.00 am and 6.00 pm on the days in school holidays that X spends with the father.
4.If within 28 days of the date of these orders the mother lives in the Brisbane area or at a place more than 50 kilometres from the (omitted) Post Office:
4.1    The children shall live with the father.
4.2    The children shall spend time with the mother as agreed between the parties but failing agreement:
4.2.1On the fourth weekend during New South Wales school terms from Friday 6.00 pm to Sunday 6.00 pm;
4.2.2 For the second half of school holidays except the Christmas holidays;
4.2.3For the second, fourth and sixth weeks of the Christmas holidays;
4.2.4In even years from 5.00 pm Christmas Eve to 9.00 am Boxing Day commencing on 24 December 2014.
4.2.5The children shall communicate with the mother by Skype or telephone at all reasonable times and for this purpose the father shall facilitate this communication by enabling the children to use the relevant telephone or computing device.
4.2.6That to implement the time the children spend with the mother the mother will collect the children from the father at (omitted) Airport at the commencement of the time and the father will collect the children from the mother at Brisbane Airport at the conclusion of the time with the father to pay for the children's air fares .
5.That the parties do all acts and things and sign all documents necessary to enable the children to attend and be educated at (omitted) Grammar School including the pre-school at (omitted) Grammar School on the proviso that the father will be responsible for paying the school fees and all other costs associated or incidental to the children's education.
6.If the court finds that it is in the best interests of the children to live with the mother AND the court finds it is in the best interests of the children to remain living in the Brisbane area, then:
6.1    The children shall live with the mother.
6.2    The children spend the time with the father as follows :
6.2.1 During School Terms
(a)     Week One - Thursday from 3.00pm or the conclusion of preschool or school until 6.00pm Sunday in the Brisbane
(b)    Week Two - Thursday from 3.00pm or the conclusion of preschool or school until 9.00am Saturday in the Brisbane
(c)     Week Three - Thursday from 3.00pm or the conclusion of preschool or school until 6.00pm Sunday in the Brisbane
(d)    Week Four - Thursday from 3.00pm or the conclusion of preschool or school until 9.00am Saturday in the Brisbane
(e)     Week Five - Thursday from 3.00pm or the conclusion of preschool or school until 6.00pm Sunday in the (omitted) NSW
(f)     Week Six - NIL
(g)     Week Seven - Thursday from 3.00pm or the conclusion of preschool or school until 6.00pm Sunday in the Brisbane
(h)    Week Eight - Thursday from 3.00pm or the conclusion of preschool or school until 9.00am Saturday in the Brisbane
(i)     Week Nine - Thursday from 3.00pm or the conclusion of preschool or school until 6.00pm Sunday in the Brisbane
6.2.2During School Holidays
(a)     During each of the shorter mid year holidays:
(i)The first half of all of the shorter mid-year school holidays and for the purpose of this Order, school holidays are deemed to commence at 9.00 am on the day after the last day of school term requiring student attendance and to conclude at 5.00 pm on the day before the first day of the next school term requiring student attendance and the expiry of the first half and commencement of the second half is deemed to occur at 9.00am on the day mid-point between the time of commencement and the time of conclusion of the school holiday period but if there is no mid point day, then the first half shall have one day more than the second half;
(b)    During the (omitted) School holidays:
(i) Until the child X starts School:
(1)    For the first third and fifth weeks of the Christmas holidays and for the purpose of this order the first week will commence at 10.00 am on the day after the last day of school term requiring student attendance and conclude at 10.00 am on the same day the next week and the same commencement and conclusion days and times shall apply to the third and fifth weeks;
(ii)    Upon the child X commencing school:
(1)    The first half of the Christmas holidays in odd numbered years and the second half in even numbered years and for the purpose of this order Christmas holidays are deemed to commence at 9.00 am on the day after the last day of school term requiring student attendance and to conclude at 5.00 pm on the day before the first day of the next school term requiring student attendance and the expiry of the first half and commencement of the second half is deemed to occur at 9.00am on the day midpoint between the time of commencement and the time of conclusion of the school holiday period but if there is no mid point day, then the first half shall have one day more than the second half.
6.2.3In odd years from 5.00 pm Christmas Eve to 9.00 am Boxing Day commencing on 24 December 2013.
6.2.4On the Father's Day weekend from 6.00 pm Friday to 6.00 pm Sunday;
6.2.5For 4 hours on each of the children's birthdays being from 12 noon until 4.00pm if on a non-school day and from 3.00pm until 7.00pm if on a school day;
6.2.6For 4 hours on the father's birthday being from 12 noon until 4.00pm if on a non-school day and from 3.00pm until 7.00pm if on a school day.
6.3    The children shall communicate with the father either by Skype or by telephone at all reasonable times and for this purpose the mother shall facilitate this communication by enabling the children to use the relevant telephone or computing device.
6.4The time the children spend with the father is to be implemented as follows:
6.4.1 During School Terms
(a)     If on a pre-school/school day:
(i) By the father collecting the children from (omitted) Grammar School and for this purpose the mother shall ensure that the children are available at (omitted) Grammar school at the designated time so they can spend the time with the father;
(b)    If on a non-school day:
(i) By the parent with whom the children are to be with collecting the children from the other parent's home.
(c)For the time referred to in order 6.2.1(e) by the mother delivering the children to the father at Hungry Jacks restaurant inside the (omitted) Airport and the father delivering the children to the mother at Brisbane domestic airport Terminal at the conclusion of time;
6.4.2 During School Holidays
(a)By the mother delivering/collecting the children to/from the father at Brisbane Domestic airport.
6.5That the parties do all acts and things and sign all documents necessary to enable the children to attend and be educated at (omitted) Grammar School including the pre-school at (omitted) Grammar School on the proviso that the father will be responsible for paying the school fees and all other costs associated or incidental to the children's education.
6.6The time the children spend with the father pursuant to these orders above is suspended as follows :
6.6.1On the weekend that contains Mother's Day from 5.00pm Friday until 5.00pm on Mother's Day;
6.6.2In even years between 5.00 pm Christmas Eve and 9.00 am Boxing Day commencing on 24 December 2014.
6.6.3For 4 hours on each of the children's birthdays from 12 noon if on a non-school day and from 3.00pm until 7.00pm if on a school day;
6.6.4For 4 hours on the mother's birthday from 12 noon if on a non-school day and from 3.00pm until 7.00pm if on a school day;
And the children shall spend such time with the mother.
6.7The time Y spends with the father pursuant to order 6.2 is suspended until 17 February 2014 when he turns 2 years of age and in substitution Y shall spend time with the father as follows:
6.7.l During School Terms
(a)Week One - 9.00am to 6.00pm Friday, Saturday and Sunday in the Brisbane area;
(b)    Week Two - 9.00am to 6.00pm Friday in the Brisbane area;
(c)Week Three - 9.00am to 6.00pm Friday, Saturday   and Sunday in the Brisbane area;
(d)    Week Four - 9.00am to 6.00pm Friday in the Brisbane area;
(e)     Week Five - Nil
(f)     Week Six - Nil
(g)Week Seven - 9.00am to 6.00pm Friday, Saturday and Sunday in the Brisbane area;
(h)    Week Eight - 9.00am to 6.00pm Friday in the Brisbane area;
(i)Week Nine - 9.00am to 6.00pm Friday, Saturday and Sunday in the Brisbane area;
6.7.2 During School Holidays
(a)     During each of the shorter mid-year holidays:
(i) Nil;
(b)    During the 2013 (omitted) School holidays:
(1)From 9.00am until 6.00pm on the last two days of weeks One. Three and Five of the 2013 (omitted) School holidays the first week will commence at 10.00 am on the day after the last day of school term requiring student attendance and conclude at 10.00 am on the same day the next week and the same commencement and conclusion days and times shall apply to the third and fifth weeks;
6.7.3From 5.00 pm Christmas Eve 2013 overnight until 9.00 am Boxing Day 2013;
6.7.4On the Father's Day weekend from 9.00am to 6.00 pm Friday, Saturday and Sunday;
6.7.5For 4 hours on each of the children's birthdays being from 12 noon until 4.00pm if on a non-school day and from 3.00pm until 7.00pm if on a school day;
6.7.6For 4 hours on the father's birthday being from 12 noon until 4.00pm if on a non-school day and from 3 .00pm - until 7.00pm if on a school day.
6.8    The father is responsible for the cost of the children's air travel to/from Brisbane.
7.That the parties do all acts and things and sign all documents necessary to change the child Y's name to Y.
8.That the mother is restrained from using any surname for the children other than Morrell.
9.That each party authorise the school authorities, teachers or any other person having responsibility for the children's school education or other curricular activity to communicate directly with each parent as if the parties had not separated and to record each parent as a person to be notified in cases of emergency and to provide to each parent copies of school reports and other reports relevant to the children's education and the execution of these Orders shall be deemed to be sufficient authority for the purpose of these orders.
10.That each party keep the other party informed as to all medical, dental and other health related treatment being undertaken by the children and each party at all times be at liberty to communicate directly with the treating professionals without necessarily referring to the other party.
11.That each party notify the other within a reasonable time of any illness or injury suffered by the children which requires medical treatment but if the child suffers a serious illness and/or injury, each party shall advise the other party as soon as practicable of any such serious illness or injury.
12.The parties are restrained from referring to any person other than the parties as the father and the mother of the children and shall use their best endeavours to ensure that the children do not refer to any person other than the parties as "Dad", "Mum" or any equivalent or derivation thereof.
13.That the mother shall notify the father in writing within 7 days after the date of these orders to advise whether the mother is going to relocate from her current residence to live with the children within 50 kilometres from the (omitted) Post Office.
14.That in the event the mother notifies the father within 7 days after the date of these orders that she is going to relocate to live with the children (within a further 21 days) to a place within 50 kilometres from the (omitted) Post Office then:
14.1The mother shall forthwith do all acts and things and sign all documents necessary to establish a place of residence within 50 kilometres of (omitted) Town Hall ("the residence").
14.2The father shall do all acts and things and sign all documents necessary to cause the following to occur:
14.2.1Within 48 hours of receiving notice from the mother pay the mother up to $2,000 towards the cost of relocating the children and her household contents to the residence.
14.2.2Within 48 hours of receiving notice from the mother pay the mother up to $2,000 towards any rental bond the mother is required to pay to secure a lease over the residence.
14.2.3If required by the mother to pay the mother within 48 hours of receiving notice from the mother a sum sufficient to fly the mother and the children from Brisbane to (omitted) NSW.
14.2.4Contribute up to $300 per week towards the rent the mother pays for the residence such amount to be paid directly to the landlord and to be varied each year in accordance with the variation in the Consumer Price Index published by the Commonwealth Statistician for Sydney by comparison of the Consumer Price Index as it stands on either 31 March, 30 June, 30 September or 31 December (whichever month immediately precedes the date the mother first occupies the property) with the same index at the same date 12 months prior thereto.
15.    That pending the establishment of the residence pursuant to order 14 above the following orders shall apply:
15.1The children are to live with the mother and spend time with the father in (omitted) NSW on alternate weekends as follows:
15.1.1    X between 2.00 pm Friday and 5.00 pm Sunday;
15.1.2Y between 2.00 pm and 5.00 pm Friday and from 9.00 am and 5.00 pm on Saturday and Sunday.
15.2The father is to pay the mother a sum sufficient for the cost of air travel for the children and the mother between Brisbane and (omitted) NSW. The cost of the mother hiring a car for her use in (omitted) NSW and for self-contained accommodation for the mother whilst she is in (omitted) NSW.
15.3The father is to collect the children from the mother from the Hungry Jacks restaurant at (omitted) Airport at the beginning of the time on Friday.
16.The mother pay the father's costs of and incidental to these proceedings.

The court notes that in the father’s submission it is made clear that the father does not press order six of his second amended initiating application filed 26 March 2013.
At the date of the hearing the mother relied upon the orders sought as set out in her outline of case document as follows:
1.The Respondent mother shall have sole parental responsibility for the children X born (omitted) 2009 ("X") and Y born (omitted) 2012 ("Y), ("the children").
2.The children shall live with the mother.
3.The mother shall be at liberty to maintain the children's ordinary place of residence in the (omitted) Queensland region.
4.X shall spend time with the father as agreed between the parties in writing but failing agreement:
a)   From the making of these Orders until 30 May 2013:
i.On each sixth weekend from 9.00am on Saturday until 5.00pm on Sunday with the first such weekend to be the first weekend after the making of these Orders.
ii.On the weekend which includes Father's Day at the same times as set out in Order 4 (a) (i) above with such time to be exercised in New South Wales.
iii.At other times in Queensland as agreed between the parties but failing agreement on no more than one (1) occasion per month with such time to commence from Friday at 5.00pm and conclude Sunday at 5.00pm.
iv.At such other times as agreed between the parties.
5.From 30 May 2013 and thereafter:
a)   On each sixth weekend from 9.00am on Saturday until 5.00pm on Sunday with the first such weekend to be the first weekend after the making of these Orders.
b) On the weekend which includes Father's Day at the same times as set out in Order 4 (a) (i) above with such time to be exercised in New South Wales.
c)   At other times in Queensland as agreed between the parties but failing agreement on no more than one (1) occasion per month with such time to commence from Friday at 5.00pm and conclude Sunday at 5.00pm.
d) For half of all Queensland gazetted school holiday periods being the first half in even numbered years and the second half in odd numbered years.
e)   At such other times as agreed between the parties.
6.Y shall spend time with his father as agreed between the parties in writing but failing agreement:
a)   From the making of these Orders until Y turns 18 months of age:
b) For a period of three hours at the time of changeover in respect of X's time with her father in Order 4 above.
c)   From Y turning 18 Months of age until Y turns 2 years of age:
(i)For a period of 5 hours at the time of changeover in respect of X's time with her father in Order 4 above.
7.From Y turning 2 years of age until Y turns 3 years of age:
a)   For a period of 8 hours at the time of changeover in respect of X's time with her father in Order 4 above .
b) From Y turning 3 years of age until Y turns 4 years of age:
In accordance with the exact Terms of Order 4(a) above for X.
8.From Y turning 4 years of age thereafter :
(i)In accordance with the exact Terms of Order 4(b) above for X.
9.The father's time with the children shall be suspended on the weekend which includes Mother's day.
10.For the purposes of implementing time in Queensland, changeover shall occur at (omitted) Queensland, with the parties or their chosen nominee to implement this time.
11.For the purposes of implementing time in New South Wales, changeover shall occur at the McDonalds Family Restaurant located at (omitted), New South Wales, with the parties or their chosen nominee to implement this time, and with the Applicant Father to be responsible with all fees associated with all airfares and accommodation for the children and the mother throughout any period that the children shall spend time with the father in New South Wales pursuant to these Orders.
12.Unless otherwise agreed between the parties, the children shall communicate with the father by telephone not more than once each day between 5.00pm and 5.30pm and for this purpose, the mother will telephone the father on a nominated telephone number a make the children available to speak with the father.
13.In the alternative to Order 12, the father shall be at liberty to communicate with X and Y by Skype in lieu of telephone between 5.00pm and 5.30pm each day.
14.The father shall do all acts and things and sign all documents required and shall pay all fees required to cause his name to be recorded as the father on Y's Birth Certificate.
15.The parties shall be restrained from denigrating, or from causing, permitting or facilitating any third party to denigrate, the other parent in the presence or hearing of X and Y including making derogatory and critical remarks by way of email, text message, phone, or any other mode of communication including at times when changeover is occurring.
16.The parties shall ensure that X and Y are not used as a means of communication between each other and that all communication between the parties occur by way of email, communication book, or telecommunication.
17.Neither party shall delegate responsibility for the children's care to any person under the age of 18 years or to any adult other than a member of the maternal or paternal family unless by agreement with the other parent.
18.The father shall be and is hereby restrained from providing X or Y with any medical treatment, including medications, unless subject to a direction or prescription provided by a third party medical practitioner or health care professional and provided that such third party medical practitioner or health care professional makes personal contact with the mother by telephone and informs her of any medical treatment necessary for the children.
19.Each parent shall ensure that X and Y undertake any treatment or other activities prescribed or directed to be undertaken by their respective treating counsellor, doctor, or other health professional provided the said treatment is prescribed or directed by a person or authority other than the father.
20.In the event of X or Y suffering a medical emergency requiring medical attention while spending time with or living with either parent:
21.    The other parent is to be notified as soon as practicable;
22.The other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable.
23.The medical practitioner or medical facility shall be advised that the other parent is to be informed of the nature of X or Y's condition or illness, the treatment required, and the likely outcome of the said treatment.
24.The mother shall do all acts and things necessary to make arrangements at any school, day care or preschool that X or Y attend for the father to obtain at his own cost a copy of all school reports, newsletters, annual reports and school photo order forms for each child and the mother shall notify the father as soon as practicable in the event of either child being removed from the school for an emergency, remedial or correctional treatment.
25.In the event that either party wishes to take X or Y overseas, then they shall provide the other party with no less than 30 days written notice of their intention to travel including full itinerary details and ticket details.
26.The father shall be and is hereby restrained from calling the child Y by the name "(omitted)" or any name other than "Y".
The short history of the parties and their relationship is set out in the paragraphs below.
The father was born on (omitted) 1970.
The mother was born on (omitted) 1973.
The parties commenced a relationship in about November 2006. On (omitted) 2009 the child X was born.
The father alleges the parties had an initial separation about May 2010. The mother alleges the parties had an initial separation in about March 2010. It was the mother’s case that the parties finally separated in June 2010 being a time when the mother deposes in her evidence that she and X moved to Queensland.
On or about 27 July 2010 property orders between the parties were made by consent. It was the father’s case that the parties recommenced cohabitation in about April 2011 in (omitted), being a suburb on the western side of (omitted) NSW. On (omitted) 2012 the child Y was born.
It is agreed between the parties the father has three children from a previous relationship being C born (omitted) 1998, B born (omitted) 2012 (B). Both children are a result of a relationship between the father and the children’s mother Ms M. The father has a further child A born (omitted) 2007 to a woman with whom the father had a short relationship Ms K.
The court understands and accepts that C and B live in Sydney with their mother and spend 3 weekends out of 4 with the father.
A lives in (country omitted) with his mother and spends no time with the father.
At the time of the hearing the father lived at (omitted) NSW in a 3 bedroom unit and works as a (omitted). The court accepts the father was declared bankrupt in August 2010 and was discharged from bankruptcy in about the middle of 2013.
The mother has lived in the (omitted) Queensland area since about July 2011 and at the date of the hearing was living in Queensland Department of Housing rental accommodation. As at the date of the hearing neither the father or mother had re-partnered. The mother does not have any children other than the children subject to these proceedings. The mother is not engaged in any paid employment.

The Evidence

The father deposes in his affidavit affirmed 12 April 2013 that is the father in the proceedings, was born on (omitted) 1970 and names himself as the father of the three children not of the proceedings C, B and A.
The father deposes at paragraph 8 of his affidavit that he and the mother of C and B (who the father refers to as B), have been able to co-parent successfully without formal parenting orders being in place.
The father deposes that he has the care of C and B approximately 26 weeks per year as at the date of the hearing, but that prior to 2007 he had in place an equal time arrangement with the children’s mother Ms M for the care of C and B.
At paragraphs 10 through to 12 of the father’s affidavit he provides evidence with respect to a child not of the parties’ relationship A. The father deposes that he met A’s mother Ms K over the Internet and that he “had a very short relationship when she was working in Sydney”.
Father deposes to getting engaged to Ms K after “she unexpectedly fell pregnant” and that the father terminated the relationship whereupon Ms K returned to (country omitted) prior to A’s birth.
At paragraph 12 the father’s affidavit he deposes to A having “physical and intellectual disabilities resulting from a rare genetic disorder known as “Smith-Magenis Syndrome”. The father further deposes that he “did not know” that he was the biological father of A until paternity testing in 2010.
As at the date of the hearing it was conceded by the father that he had not met A.
The father’s relationship with Ms K was the subject of considerable cross examination and the source of criticism levelled at the father by counsel for the mother in the written submissions of the mother.
Annexed and marked “M1” to the mother’s affidavit is an email that appears to have been forwarded from the father’s email address (omitted) to Ms K’s email (omitted). The subject of the email is stated as “get a clue”.
The body of the email contains the following:
“Just so there is no misunderstanding. I’ll set the facts out as follows: I hate you. I hate you with every breath of my body. I’m traumatised by what you did to me. I get agitated if someone even mentioned your name. I never want to see you or speak to you again. Our relationship lasted less than seven months. It was not a good relationship. It was not an important relationship to me. It was not a significant relationship to me. The whole time I was with you I was looking around for someone better. I dated six other women during that time. I liked all of them better than you. You knew I was not happy with you. You simply didn’t care. You simply refused to leave….. You also took it upon yourself to ruin of many lives by getting yourself pregnant in order to be harder to dump. I believe you did this deliberately. I don’t even know if he’s mine. As I understand it, you did the same thing to (omitted), including stalking him and his family. I’m sure he hates you too…… I realise you have abandonment issues. I don’t care. Your problems are of no concern to me. Your issues are of no concern to me. You are a grown woman and you should be able to clean up your own mess and manage your own life without help from me, my family, your councillors, therapists, doctors or any of the small army of people who you currently believe it should be on 24 hour a day standby in case you are not coping with your life. As I see it, you wanted a baby, you have a baby. You should be able to enjoy him without constantly whining and try to blame everyone else. After all, he may just be the only man in your life will never abandon you. If you want a fight, bring it on! I’ve had a gut full of your malicious attempts to spy and manipulate. Order a paternity test. Prove he is mine. Because, if he is mine, if I do have an obligation to him, my first obligation is to make sure he doesn’t grow up exposed to your toxic family. My obligation is to rescue him from environment surrounded by alcoholism, recurrent suicide attempts, and emotional vampirism. If he is my son, should I sit by and wait for your mother of murdered him, as she tried to murder you? I am a better parent than you and the court will know it. My family are nicer, more stable people than yours and the court will know it. If he is mine, I will apply for full custody. I will change his name. He will grow up in a stable, happy environment. You won’t even know you exist. When he’s old enough to understand about drug abuse and personality disorder, I will make sure he is able to find you if he still wants to.”.
When the father was initially questioned by counsel for the mother as to whether the father had sent Ms K the email of 23 February 2008, the father responded in cross-examination stating “I don’t know”.
The email was then shown to the father. The father was asked by counsel for the mother whether the document was an email he sent to Ms K. The father stated in cross-examination that he had not sent it. During the course of cross-examination the father gave evidence that he had indeed written the email, and agreed that the email had been forwarded from his email account but that he had not sent the email.
In order to clarify the father’s answers the court found it convenient to question the father directly asking “Mr Morrell, you say you prepared, but you say you didn’t send it?” The father responded stating “yes. Your honour, it is a technique that (omitted) use to handle distress that we might-it was actually a piece of poetry that was created. It’s obvious not a very nice piece of poetry. But it was very personal, and the only person I ever showed it to was (omitted).”
In further cross examination the father gave evidence to the court that he had been traumatised by Ms K as a result of her falling pregnant; that the relationship was short and in fact 66 days in length and that he hated Ms K but that he had not written the “poetry” as an email but rather had written it out on what the court understands to be Microsoft Word.
The father gave further evidence to the effect that he had shown the mother the email and that the mother had in the father’s words “loved it. She laughed hysterically when she saw it. She thought it was funniest thing she had ever seen”.
During cross-examination the mother conceded that the father had given her his email password. The mother refuted the suggestion put to her during cross-examination that she had taken the document put it into an email and sent it to Ms K. The mother did concede she was aware from her conversations with the father that the father had been subject to harassment by Ms K.
While the court is able to find the father had written the contents that found their way into an email forwarded to Ms K, based upon the evidence of the parties, particularly to the effect that the mother had the father’s email password the court is unable to find that the father had himself sent the email to Ms K.
At paragraph 60 of the mother’s written submissions prepared by counsel, the court is asked to accept that the email;
“further exemplifies that the father is capable, and in fact holds, abhorrent views towards his female partners, and lends weight to the mother’s evidence of how she has been treated by the father, and provides insight into the father’s lack of empathy, self-focus and sexist attitude to his former female partner.”
Whilst the provisions of the Evidence Act do not apply in parenting proceedings pursuant to S.69ZT of the Family Law Act the court is wary of giving weight to what is best described as tendency evidence that would ordinarily be inadmissible pursuant to section 97 of the Evidence Act 1995 (Cth) subject to the exceptions within that section.
At paragraph 13 of the father’s affidavit he deposes to having met the mother in 2006 when he was working as a (omitted) at (employer omitted) on a fly in fly out basis.
At paragraph 14 of the father’s affidavit he deposes that in about late October 2006 the mother moved from (omitted) NSW to live with him in (omitted) Sydney. The father deposes that the mother moved with her pets namely a dog and cat and two horses and that the father paid the cost of stabling the two horses at (omitted).
At paragraph 15 of the father’s affidavit he deposes that he and the mother then moved to live at (omitted) NSW on a farm property. Paragraph 16 the father deposes in September 2008 he and the mother moved to live in (omitted) NSW and that X was born in (omitted) NSW on 30 May 2009.
The father deposes that in mid-2010 he and the mother separated at which time the mother advised the father she was intending to move to the (omitted) area in Queensland on a short-term basis in order for in father’s words the mother “to recover from the breakup”.
At paragraph 18 the father deposes that the mother “reassured” him that she would “not take X there more than a few weeks”. The father gives evidence that he was at that time “very worried” about X not being able to see him regularly, but that the father “had no financial resources to provide Ms Blakeley accommodation nearby or to commence proceedings in the Family Court”.
At paragraph 9 of the father’s affidavit he sets out that he and the mother were “in contact by mobile phone several times each day to discuss moving back together for X’s benefit”.
At paragraphs 21 to 23 the father deposes he remained living in (omitted) NSW until about March 2011 whereupon he moved to live at (omitted) (a suburb near (omitted) on the western side of (omitted) NSW) and that on or about 24 April 2011 X and the mother moved in to live with the father of the house in (omitted).
The father deposes that on or about 24 July 2011 X and the mother returned to Queensland for what the father deposes the mother told him was a “holiday”. The father deposes that the mother did not return to live with him again this despite the mother giving him assurances that she “was not taking X to Queensland permanently”.
At paragraph 21 of the mother’s affidavit sworn 11 April 2013 she deposes that in about September 2008 she moved with the father to live in (omitted) and that shortly after moving to (omitted) she became aware she was pregnant with X. The mother deposes that she continued to reside with the father until she moved out of the home in (omitted) in June 2010 at which time she moved with X to live in (omitted) Queensland with the mother’s sister.

At paragraph 22 the mother deposes that “at no time” did she ever live with the father in what she describes as “the (omitted) area” and that the father had moved to (omitted) seven months after they separated for what the mother understood to be “work reasons”. Despite the mother indicating that she did not live with the father in “the (omitted) area” the mother sets out at paragraphs 93 through to 100 of her affidavit that she “ travelled to (omitted) on numerous occasions” to allow the father to “ spend time with X”.
Considerable cross examination was undertaken of the mother in respect of what was suggested as the being the ‘mother’s return’ to live with the father in (omitted) near (omitted). Having heard the cross examination the court accepts that the mother had caused her horses to be relocated from Queensland to (omitted); that she had been staying in the house with the father for a period in excess of a month, and that the mother had not maintained her own home in Queensland during the period in which she was living with the father.
In cross-examination of mother’s sister Ms C, Ms C conceded that the father and mother were at her property together in April 2011when the mother and father left travelling together towing the mother’s horse float that contained some of the mothers property. Ms C initially conceded that the mother went to (omitted) from April 2011 until June 2011. When asked further questions by counsel for the father, Ms C suggested that she was “not exactly sure on the exact dates” and stated she did not think the period the mother went and stayed with the father was “for three months”.
Ms C was asked during cross-examination by counsel for the father whether it would surprise her that the mother had in June 2011 asked the father to go to relationship counselling to sort out their relationship. Ms C indicated it would have surprised her.
During the course of cross-examination of the mother counsel for the father put to the mother that she had sent the father an email suggesting she and the father undertake relationship counselling. The mother agreed with such a proposition but on the basis the counselling was about parenting issues rather than what the court will described as relationship counselling.
Tendered during the course of the mother’s cross-examination was an email the mother conceded she forwarded to the father dated 14 June 2011 that forms exhibit “H” in the proceedings. The email contains the following:
“Mr Morrell… I was wondering what it was that upset you this evening? I am confused as to what kind of relationship did you want with me? My concern is that it seems as though it doesn’t even matter at all if I am “ yelling” as you tell me that I do that all time!!.... I didn’t even raise my voice at you and you couldn’t even wait to get off the phone, did you may be want counselling, I am not really sure what to do about us as a couple. Mr Morrell if you could really be honest with yourself (and me) you don’t really like being around me… or even talking to me, I am not really sure if any person in my situation can go on living in the circumstances I think you have too much anger towards me, we have a chance right now to get through this crap but it needs to be a real relationship. I think you would be happier if I wasn’t around… let me know what your thoughts are, maybe we can make this work...”
The court does not accept the mother’s evidence giving during cross-examination to the effect that the email was forwarded for the purposes of enquiry about whether the father would engage in counselling relating to X. The Court is of the view that the email was in relation to relationship counselling.
The mother gives evidence at paragraph 96 of her affidavit that during “the visit in April 2011” the father approached her in the kitchen and asked her “for sex”. Mother deposes that the father “push himself up against” her and that this made the mother “feel uncomfortable”. Mother deposes that she said “no” to the father, but that the father was insisting repeatedly asking her for sex. The mother deposes that when she did not have sex with the father he would become agitated, would fidget and pace around the home and say to her words to the effect “I will leave you alone if you give me sex. I am cranky. I haven’t had it. It’s your job to do this. It would make me happy.”
The mother deposes to allowing the father have sex with her. At paragraph 102 of the mother’s affidavit she deposes that on 20 June 2011 she discovered that she was pregnant. The court accepts that the sexual encounter between the mother and father was consensual. The court gives little weight to the suggestion by the mother in her affidavit to the effect that the mother allowed the father to have sex with her after he had badgered her into consenting to have sex. The sexual encounter between the parties adds weight to the suggestion by the father that the parties were in a relationship in April 2011.
At paragraph 44 of the mother’s affidavit she annexes and marks with the letter “C” a printed form titled “Change of Circumstances” that the mother deposes was completed by the father and that on the face of the document indicates the father was in a relationship with another person in about April 2011.
The mother was cross-examined at length about this document. The manner in which the mother gave her evidence during cross-examination was well less than what the court would be entitled to expect from a reliable witness. The mother demonstrated an inability or unwillingness to properly answer the questions put to her about the document that forms exhibit “C” in the mother’s affidavit. The mother’s unresponsive answers to questions put to her by counsel for the father about whether she had observed any evidence that might suggest the father was in a relationship with a person known as Ms I led the court to form the view that the document should be given no weight in any argument that the parties were not in a relationship in April 2011.
The court finds that based upon the totality of the evidence that the parties were in a relationship between April until June 2011.
The mother deposes to evidence at paragraphs 51 through to paragraph 89 under the heading “Mr Morrell’s controlling behaviour towards me during the relationship and since separation”.
At paragraphs 51 and 52 of the mother’s affidavit she deposes that there “were numerous occasions” during the course of the relationship between the parties where the father was “physically and verbally abusive and controlling” towards the mother. Further the mother deposes that “during the relationship and since separation” it is the mother’s “experience” that the father behaves in a way that the mother describes as “a bully” towards her.
At paragraph 53 of the mother’s affidavit the mother sets out her reasons for moving to (omitted) Queensland with X deposing “It was as a result of this controlling behaviour, coupled with my dire financial situation, that I felt it necessary to move to (omitted) Queensland with X to seek the support and assistance of my family.”.
At paragraph 54 the mother deposes that the father “throughout” the course of the relationship and since separation “criticised” the mother and “claimed” that the mother might be “mentally ill”. The mother criticised the father stating that the father “has exercised his authority and power as a (occupation omitted) to diagnose me with what he asserts is mental illness that he believes that I may be suffering from during disputes or disagreements that we had”.
At paragraph 55 of the mother’s affidavit she deposes “Mr Morrell is a (occupation omitted) and in his emails to me he makes comments in respect of his views of my mental health, my frame of mind and my capacity to care for the children. The emails cause me to feel as though Mr Morrell is trying to manipulate me as if I was a (omitted). As a result I do not feel confident to communicate with Mr Morrell in relation to significant issues concerning the children once disagreements start with Mr Morrell as I as a do not feel I can stand up to him and express my concerns and views without being belittled and manipulated”.
The court was availed of the opportunity to observe both the mother and the father for a sustained period of cross examination during the proceedings. Having observed the mother in the witness box the court does not accept that the mother is a person who would be unable to “stand up” to the father, be “unable to express” her concerns to the father or be “belittled and manipulated” by the father “once disagreements start”.
Submissions made by counsel for the mother suggest that the father holds sexist and abhorrent attitudes towards his female partners; is self-focused and lacks empathy; blurs the lines between his professional and personal life and that the evidence establishes the father has departed from the standard that applies to him in his dealings with Ms T, Ms K and also with the mother.
The father was subjected to what the court will term as ‘furious cross-examination’. On several occasions during the course of cross examination counsel for the mother apologised for the manner in which questions had been asked of the father. Cross examination was in the court’s view much a trial for the father.
The father’s attitude during the course of cross examination can be described as exemplary. The father did not at any time become agitated or angry at the manner in which questions were asked of him. The father displayed insight, was responsive to questioning and made appropriate concessions. In all the father displayed great patience and in such circumstances the submissions put by counsel for the mother that go to negative aspects of the father’s personality were simply not borne out during the course of lengthy and testing cross examination.
The form of the accusations as framed by the mother against the father as contained in paragraphs 51, 52, 54 and 55 are not specific as to time, do not annex or attached copies of email material and not refer to direct communications between the parties. No specific instances of the father’s behaviour complained of by the mother are provided. In those circumstances the court can give little or no weight to the mother’s accusations contained at the paragraphs referred to above.
At paragraph 56 of the mother’s affidavit she deposes to evidence that the father would yell at her using words to the effect “you are useless, I hate you, I dread the thought of coming home to you, I hate the way you dress you have no idea, wear some make up”.
The mother deposes the father would often scream at her in the presence of X and the father’s other children and would yell at her the above sentences. Again the mother’s evidence lacks details as to dates or times or circumstances that gave rise to the things that are alleged to have been said by the father. In such circumstances the court cannot and should not attribute weight to the allegations of the mother set out at paragraph 56 of the mother’s affidavit.
At paragraph 57 the mother deposes the father would “complain about how I would spend his money. For example he would say words to the effect “you do not deserve people like me giving you money. You don’t deserve this lifestyle. You just waste money on your horses”. Again this paragraph is not specific as to the date or circumstances in which the statements are alleged to have been made by the father to the mother. The court does not attributed weight to the allegations contained at paragraph 57 made against the father.
At paragraph 58 of the mother’s affidavit she deposes to an incident that took place when X was two years of age and sick with what the mother describes as “croup”. The mother deposes that she asked the father to and purchase some Panadol for X; that the father returned with adult soluble Panadol; that the mother was uncomfortable giving X the product as the directions indicated it was intended to be given to adults only; that the father put what the mother described as “an unknown amount of tablets in the water” giving it to the mother to give to X.
The Mother deposes that she said to the father “how much did you put in the water? I don’t feel comfortable giving it to X?”, and that following the mother making that statement the father became angry, his face became red, he raised his voice at the mother and said “shut the fuck up and give it to her”. At paragraph 59 of the mother’s affidavit she deposes that she became frightened went into another room to try calm down; that X was screaming that she held X to reassure her and was scared the father would come into the room so she barricaded the door with suitcases.
On the evidence of both parties it appears to be agreed that X was suffering from croup and that the parties did not have any child formula Panadol to give to X. The father gave evidence that he drove around to various chemists in the (omitted) area trying to purchase child Panadol but was only able to purchase adult Panadol.
The father gave evidence during cross examination to the effect that he had consulted with a friend of his who was a general practitioner and checked with him the correct dosage of Panadol that could be given to a child of X’s age and weight.
During the course of cross examination of the mother on 29 November 2013 the mother was asked a considerable number of questions about her knowledge of the father’s (omitted) training, the mother’s knowledge of the father’s role in (occupation omitted) as a (omitted) and whether the mother trusted the father to correctly give X an appropriate amount paracetamol.
As previously set out in this judgment the manner in which the mother conducted herself during cross-examination was well less than the court might ordinarily expect from an open honest reliable witness. The mother was both evasive and unresponsive. The mother’s conduct led the court to ask the mother various questions in order to try and clarify the mother’s answers.
It was suggested by counsel for the father to the mother in cross-examination that the manner in which she engaged with the father at a time when X was unwell was “to make sure” that the mother “exercised more control over” the father.
The court accepts that the father become frustrated with the mother in circumstances where he is a (occupation omitted), has consulted with a friend who was a general practitioner and thereafter provided X with what he considered an appropriate amount of paracetamol to then have the mother refuse to allow X to take paracetamol that was both beneficial and necessary to her treatment. The court does not accept the father acted unreasonably towards the mother but rather the mother failed to properly accept the father was a person with expertise through his experience as having acted in the role as a (occupation omitted) and thereafter allow the father to administer paracetamol to X.
The court accepts the submission made by counsel for the father that the “mother did not properly concede that she trusted the father to administer a correct dosage of Panadol to the child X on that evening.”.
At paragraph 63 of the mother’s affidavit she deposes to the father throwing a teddy bear at her. The incident appears on the evidence to have taken place when the father attempted to put X to bed and instead X would not allow the father to put her to bed “screaming” out for the mother. The mother deposes but she “quietly suggested” to the father to “try again another night” and that the father then stood up and threw X’s teddy bear at her head.
During cross examination of the mother’s suggestions were put by counsel for the father that the father had thrown the teddy bear at the ground rather than at the mother. While the cross examination of the mother on this topic was somewhat confusing it is clear that the mother took the view that the father “pegged” the teddy bear at the mother.
During cross-examination of the father he conceded that he had thrown the teddy bear and that perhaps it or a piece of the teddy bear had hit the mother in the eye. The court notes that the incident in relation to the teddy bear was referred to by the mother in her complaint to the police in February/March 2012 in Queensland.
While the actions of the father in throwing the teddy bear demonstrate actions that might constitute an assault (save and except for the father’s stated intentions) on the mother the court is not satisfied the father’s actions would be sufficient to make a finding about family violence that would rebut the presumption in favour of equal share parental responsibility found at section 61DA of the Family Law Act or cause the court to consider the children would be subject to or exposed to family violence in the father’s care.
A document titled Safe Start Psychological Assessment being a hospital assessment of the mother prepared by the (omitted) Hospital forming exhibit “F” in the proceedings dated 8 September 2011 provides startling information with respect to whether or not the mother had disclosed family violence perpetrated upon her by the father. The assessment contains 10 questions number 12 to 21 that go to the issue of domestic violence. Question 12 provides “Are you ever afraid of your partner or ex-partner?” The answer to this question is ticked No.
Question 13 provides “In the last year has your partner or ex-partner hit, kicked, punched or otherwise hurt you?”. The answer to this question is ticked No. Question 14 provides “in the last year has your partner or ex-partner put you down, humiliated you or tried to control what you can do?”. The answer to this question is ticked No.
Question 16 provides “Is there anyone else that you are afraid of or who hurts you?”. The answer to this question is ticked No. Question 17 provides “has your child/children been hurt or witness violence?”. The answer to this question is ticked No.
Question 18 provides “Are you ever worried about the safety of your child/children?”. The answer to this question is ticked No. Question 19 provides do you or your partner have children who are not living with you? If not, why not?”. The court notes that above the printed word partner the handwritten notation “ex” in parentheses. The answer to this question is ticked yes. A further handwritten notation was observed by the court on the document next to the box ticked yes that states “2 others-live with mum. Also sees X and organising custody urgently.
Question 20 provides “Have you ever had an involvement with a child protection agency?”. The answer to this question is ticked No. Question 21 provides “Are you safe to go home when you leave here?’. The answer to this question is ticked Yes.
The answer to question 19 clearly indicates that the mother was mindful of her relationship with the father when she provided information to (omitted) Hospital at the time the Safe Start Psychological Assessment questionnaire was completed. Interestingly paragraph 83 the submissions made by counsel for the mother state “the family consultant was clear to say in her oral evidence that in the event the court finds that the mother has made up allegations about the father (which the mother denies she has), the court should not necessarily cause the children to move to (omitted), as this is only one of the contextual factors which need to be considered in relation to any move. Such is the weight of exhibit “F” in the proceedings that the mother’s counsel’s submission was not only prudent but probably most necessary. The court however does not accept the submission.
Counsel for the mother submits that the father harassed the mother by sending numerous emails and text messages to her in the period leading up to the birth of Y on (omitted) 2012.
Records relating to a complaint by the mother to the police tendered by counsel for the father being records produced by the Queensland police that form exhibit “J” in the proceedings provide the court with insight and information as to what was taking place between the parties in on or about February and March 2012.

The legislative pathway to be followed when determining matters on final basis was considered by the Full Court of the Family Court in Starr & Duggan [2009] FamCAFC 115, in which Boland, Thackray and Watts JJ stated at paragraph 38:
“However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
a)first make findings concerning the relevant s 60CC factors;
b)then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
c)then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.”
When determining cases involving relocation as an issue to be determined the court must to be mindful that parents enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for a child (see AMS v AIF at 196, 206, 207-208, 210). And that the child’s interests are the paramount, but not the sole, determinant of parenting orders (AMS v AIF at 207, 225, 230; U v U at 282).
In AMS v AIF (1999) the High Court held that parents have as much residential freedom as is compatible with their obligations pertaining to the child and that it is only when the welfare of the child would be adversely affected should the parent’s right of freedom of mobility defer to the paramount consideration of the child’s best interests (see AMS v AIF at 223-224, 231-232; U v U at 262).
In U v U the High Court held at 261 that the residential parent wishing to relocate with the child bears no onus of proving the existence of compelling reasons for the relocation. The court noted at 285-286 however that the parties’ reasons for and against the proposed relocation should be explored in the evidence and evaluated as such a process will inform the court about whether the relocation is a proper exercise of parental responsibility.
The court well accepts the mother in has good reason for wanting to move to Queensland to live closer to an area that she knows and closer to family members and support.
The High Court in U v U provides the proposition that it should not be assumed that the non-residential parent cannot, or should not, contemplate moving so as to be nearer to the relocating residential parent and child and further that it must not be assumed the residential parent should forego his or her wish to relocate to the wish of the non-residential parent to remain and pursue his or her life in a place of his or her choosing. The court has considered the possibility or option of the father moving to Queensland and the court notes the father considered the option himself. For reasons set out in the balance of this judgement the court does not consider the father moving to live in Queensland as a viable option.
In U v U the high court went on to propose that the best interests of the child are the paramount consideration in the determination of appropriate parenting orders, irrespective of the competing proposals of the parties (at 256-260). The Court is not bound to selection between the polarised options submitted by the parties (at 284-285). The making of orders that do not reflect the orders devised by either party does not vitiate the judgment or orders (at 263). Therefore, it is permissible to inquire of the parties about their alternate positions so as to afford them procedural fairness (at 246-248).
In Taylor v Barker the Full Court held (at 475) that a relocation proposal must be evaluated not only in the context of findings about what is in the child’s best interests under s 60CC of the Act, but also in the context of s 65DAA of the Act, which mandates consideration of the child living for equal time with both parents, or alternatively, living with one parent and spending substantial and significant time with the other in the event of allocation of equal shared parental responsibility to the parents. To avoid devaluing the imperatives of the legislative provisions as they now stand, the Full Court recognised (at 478-480) that the Court must balance the advantages and disadvantages of the relocation proposal with the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement.
In McCall v Clark the Full Court endorsed (at [59]-[64]) its statements in Taylor v Barker and confirmed (at [70]-[74], [89]) the necessity for the Court to canvass all of the available options, including relocation of the non-residential parent to a place nearer to the relocating residential parent and child. When weighing the advantages and disadvantages of the competing options, it is the advantages and disadvantages to the child, rather than the parties, which are pre-eminent (at [88]).
In Hepburn & Noble the central issue in the appeal was the potential importance to relocation decisions of any disappointment that would be suffered by the residential parent if restrained from relocation with the child, the extent to which such disappointment might diminish that parent’s capacity, and any consequential adverse effects upon the child. The Full Court recognised there was a material different between disappointment simpliciter and disappointment that manifests in behaviour that undermines the child’s best interests. Only the latter is particularly influential and there must be good evidence of it (at [49]-[63]). The court did not have evidence available to it that would in the view of the court allow the court to make any findings about the disappointment that would be experienced by the mother if the orders sought by her were not made that would manifests in behaviour that would undermine X and Y’s best interest.
In Cales & Cales the Full Court confirmed that s 64B of the Act defined a parenting order to be one that designates with whom a child lives, not where a child lives (at [63], [71]). The Full Court also confirmed that, while the trial judge is not confined by the parties’ proposals, the Court cannot engage in a frolic when determining what orders to make (at [125]).
The High Court emphasised the essentiality, pursuant to s 65DAA when equal shared parental responsibility is allocated to the child’s parents, of assessing the alternative options of “equal time” and “substantial and significant time” by reference to both the best interests of the child and the reasonable practicability of those alternatives MRR v GR (2010) 240 CLR 461.
Neither parent bears an onus of proving the existence of compelling reasons for or against the proposed relocation (U v U at 261; Malcolm v Monroe [2011] FLC 93-460 at [83]). However, their reasons for and against the proposed relocation should be explored in evidence to inform the inquiry about whether the relocation is a proper exercise of parental responsibility (see U v U at 285-286; Malcolm v Monroe at [81], [83]).
The Court does not find that the presumption in favour of equal shared parental responsibility as set out at section 61 DA should be rebutted by reason of the court having reasonable grounds to believe that a parent of the child or person who lives with the parent of the child has engaged in abuse of the child or another child who, at the time, was a member of the parents family; or family violence. Court does not form the view that the presumption should be rebutted on the basis that the court was satisfied that there was evidence to suggest that it is not in the best interest of X or Y that the parents have equal share parental responsibility. The court therefore finds that parents should have equal shared parental responsibility for X and Y.
In accordance with the provisions of section 65DAA the court must consider whether it is in the best interest of X and Y that they spend equal time with each of their parents and further whether it is reasonably practicable to do so.
The court will firstly consider to the issue of reasonable practicality with respect to equal time.
Should the court makes the orders sought by the mother then the parties will live some 9-12 hours drive apart depending on rest and fuel stops. In those circumstances the parties would live too far apart to make an equal time arrangement reasonably practicable.
Should the court makes orders as sought by the father there are potentially two outcomes. The first being that the children live with the mother within 50km of the (omitted) Post Office and the second being that the children live with the father and the mother remains living in Queensland. Should the children live with the mother within 50km of the (omitted) Post Office then the parties would be close enough to one another to make equal time reasonably practicable. If the mother remained living in Queensland then the parties would live too far apart to make an equal time arrangement reasonably practicable.
The parties do not have the current capacity to implement an arrangement for equal time given the geographical distance that exists between the parties. It therefore flows that unless the children live with the mother within 50km of the (omitted) Post Office the parties would not have the capacity to implement an equal time arrangement.
The father seeks an equal time arrangement not on the basis of 7 nights on 7 nights off, but instead an arrangement whereby the children live with the mother and spend each alternate weekend Friday until Monday and then two overnight periods with the father each week. Such an arrangement equated to 7 nights per fortnight.
The court is of the view that that the father’s evidence suggests that the father has the capacity to implement an arrangement for equal time in that he would be able to make arrangements with his employment to make himself available to do such things as collect and return the children to school so that he would be able to facilitate and arrangement for equal time. It is the view of the court that the mother has the capacity to implement an arrangement for equal time.
The court is concerned about the parents’ current and future capacity to communicate with one another and resolve difficulties that might arise in implementing an arrangement for equal time. The parties have demonstrated that they are unable to communicate about such basic issues as whether Y should be called by the ‘nic-name’ “(omitted)”. The parties have largely been reliant on email communication and having considered the evidence of the members of the mother’s family it is clear that communications at handovers at McDonald’s have seen poor communication. The court notes the view of the family consultant with respect to poor communication and the parties’ attitudes about the difficulties that have arisen in respect of communication. The court is conscious of the decision in T & N and must find that the parties’ communication is so poor that it would preclude an equal time arrangement as being reasonably practicable.
In considering the effect impact that an arrangement for equal time would have on X and Y the court is conscious of the evidence of the family consultant with respect to Y’s age and primary attachment. The court’s consideration of the effect on the children of an equal time arrangement is examined on the basis that the children live with the mother within 50km of the (omitted) Post Office. In the father’s proposed orders he seek to ameliorate the effect of Y’s age and attachment by proposing that Y not commence spending equal time until he is 2 years of age (the court notes that Y is now 2 years old). The court is of the view that given Y’s attachment to the mother in part evidenced by his “on-demand” breast feeding for what the mother describes essentially as a means of comforting Y that the commencement of an equal time arrangement for Y at 2 years of age would has a negative impact. The court is not concerned about the impact equal time might have on X in regards to issues related to primary attachment to the mother.
The court is satisfied that X’s relationship with the father is such that the effect of an equal time arrangement on X would not have a negative effect upon her. The court is however significantly concerned that the parties’ relationship is so poor and the parties’ views on parenting are so different that an arrangement of equal time especially as suggested by the father where there would be frequent changes between households would have a negative effect on the children.
The court secondly considers the issue of reasonable practicality with respect to substantial and significant time as defined at section 65DAA(3).
Again should the court makes the orders sought by the mother then the parties will live some 9-12 hours drive apart depending on rest and fuel stops. In those circumstances the parties would live too far apart to make an arrangement for substantial and significant time reasonably practicable.
Again should the court makes orders as sought by the father there are potentially two outcomes. The first being that the children live with the mother within 50km of the (omitted) Post Office and the second being that the children live with the father and the mother remains living in Queensland. Should the children live with the mother within 50km of the (omitted) Post Office then the parties would live close enough to one another to make an arrangement for substantial and significant time equal time reasonably practicable. If the mother remained living in Queensland then the parties would live too far apart to make an arrangement for substantial and significant time reasonably practicable.
The parties do not have the current capacity to implement an arrangement for substantial and significant time given the geographical distance that exists between the parties. It therefore flows that unless the children live with the mother within 50km of the (omitted) Post Office the parties would be unable to implement an arrangement for substantial and significant time.
The court is of the view that the father’s evidence suggests that the father has the capacity to implement an arrangement for substantial and significant time in that he would be able to make arrangements with his employment to make himself available to do such things as collect and return the children to school. It is the view of the court that the mother has the capacity to implement an arrangement for substantial and significant time.
While the court is concerned about the parents’ current and future capacity to communicate with one another and resolve difficulties that might arise in implementing an arrangement for equal time the court is less concerned about such a capacity in relation to an arrangement for substantial and significant time. While the parties have demonstrated that they are unable to communicate about such basis issues as whether Y should be called by the ‘nic-name’ “(omitted)” and the parties have largely been reliant on email communication the court notes that they have together been able to facilitate an arrangement where the children have spent time regular and consistent time with the father despite the geographical distance that exists between the parties including the necessity to make arrangements in respect of air travel. The court is of the view that the evidence of the family consultant in the light of the finding of the court is such that it would not contraindicate an arrangement for substantial and significant time.
In considering the effect or impact that an arrangement for substantial and significant time equal time would have on X and Y the court remains conscious of the evidence of the family consultant with respect to Y’s age and primary attachment. The court’s consideration of the effect on the children of an arrangement for substantial and significant time is examined on the basis that the children live with the mother within 50km of the (omitted) Post Office. The court is not satisfied that the Y’s attachment to the mother is such that he would for the moment transition easily between both parents. It is the view of the court that the impact of an arrangement for substantial and significant time would not be harmful to Y should the commencement of Y spending the same amount of time that X does with the father be delayed until Y turns 3 years of age.
The court is not concerned about the impact a substantial and significant time arrangement might have on X in regards to issues related to primary attachment to the mother.
The court is satisfied that X’s relationship with the father is such that the effect of an arrangement for substantial and significant time would not have a negative effect upon X. The court is of the view that while the parties’ relationship is poor and the parties’ views on parenting are different that an arrangement for substantial and significant time would limit frequent changes between households and would thus prevent a negative effect on the children.
The Court now considers those matters set out at section 60CC.
The court will firstly consider that matters at section 60CC (3) and (4).
The court is not able to give any weight to the views expressed by X and Y as a result of their ages limiting their maturity and level of understanding.
The court is satisfied that the children have a strong and loving bond with the father having regards to the observations made by the Family Consultant of the father and the children together as set out at paragraph 86 of the Family Report dated 9 January 2013. The court is satisfied that X and Y have a close relationship with their paternal half siblings B and C. Similarly the court is satisfied that X and Y enjoy a close and loving relationship with the mother and maternal extended family.
While the court accepts that the children are primarily attached to the mother the court is of the view that given the children’s age; the father’s ability as an experienced parent and the close relationship he shares with the children that the children’s primary attachment would change to then being primarily attached to the father should the children come into the father’s full time care. The court is satisfied that the relationship between the children and the mother is so strong as to survive a situation where the mother chose to remain living in Queensland and spend time with the children.
The court finds that the mother is unwilling and has demonstrated an inability to facilitate and encourage a close and continuing relationship between the children and the father. The court has found that the mother has lied and misrepresented issues relating to family violence as a means of obtaining a strategic advantage against the father.
The mother failed consistently during the course of cross examination to make concessions with respect to her actions in failing to notify the father about Y’s birth and her failure to keep the father informed as to where she was living. The mother failed to consult with or notify the father about X’s enrolment in pre-school. The mother’s view of the father is so poor that the court is concerned that should the children remain living in Queensland with the mother she will undermine and diminish the children’s relationship with the father using the key of the tyranny of distance to in part do her work.
Should the court make orders that provide the children live with the Mother where the children live within 50km of the (omitted) Post Office the court is satisfied that the effects of the mother’s inability and unwillingness to facilitate a close and continuing relationship would be ameliorated by virtue of the fact that such a distance would not preclude the children spending substantial and significant time with the father.
The court is of the view having heard the father’s cross examination that he has the capacity and wiliness to facilitate and encourage a close and continuing relationship between the children and the mother whether the children live with the mother and spend substantial and significant time with him or whether the children live with the father.

The court has considered the likely effect on the children on their change in circumstances should they be separated from the mother should she choose to remain living in Queensland. It would be initially difficult for the children as they are primarily attached to the mother. The court is satisfied that the children would adapt and that their primary attachment would change. The court is concerned about the long term effect of the children being separated from spending significant and substantial time with the father and that the effect of the separation of the children from their half siblings. The court considers the long term effect of the children remaining living with the mother in Queensland separated from the father by distance to be disastrous to the children’s best interest.
The court is satisfied that a change in circumstances where the children’s time would be limited with the extended maternal family to have minimal effect whether the children lived with the mother within 50km of the (omitted) Post Office or live with the father. In either set of circumstances the court is satisfied that the mother would maintain a relationship between the children and the extended maternal family.
The court has considered the practical difficulty and expense of the children living with either parent and spending time with the other. The court is satisfied that the parties have resources to meet the cost of air or road travel between Queensland and (omitted) NSW. The court considers that the distance between the parties is such that should the children remain living in Queensland then the father by virtue of that distance would not be able to facilitate significant or substantial time with the children and as such the children’s right to maintain personal relations would be severely inhibited by the mother poor attitude towards the father.
The court has considered whether it would be possible or practicable for the father to relocate to Queensland. The court has read and considered the information provided in the limited issues report dated 23 May 2013 about the father’s consideration and what appeared to be his concession that he would himself move. The court accepts that the father has for legitimate reasons changed his mind not only about relocating but also in respect of his views that the children are best left living with the mother. Noting the father’s employment and the arrangements he has in place to spent time with C and B the court does not consider that the father’s relocation to Queensland would at all be practical. The court forms the further view that the mother would be less than welcoming of the father relocating to Queensland and that such a move by the father if it was practical might lead to further litigation.
The court is satisfied that both parents have the capacity to provide for the needs of the children including their intellectual and emotional needs whether the children live with either parent. The court rejects the submissions put that either party might suffer from any form of mental impairment that would preclude them from parenting the children.
The court finds nothing at section 60CC ((g) or (h) that warrants the court’s consideration.
The court finds that both parties have displayed an appropriate attitude towards the children and to their responsibilities of parenthood.
The court has given consideration to the issues and made findings that are adverse to the mother in respect of her allegations related to family violence and has considered the circumstances in respect of the family violence order made against the father in Queensland.
The court has considered the importance of making orders that are least likely to lead to the institution of further proceedings.
The court considers the extent to which each party has fulfilled or failed to fulfil their responsibilities as a parent.
The court takes the view that both parties have taken the opportunity to participate in making decisions about long term issues in relation to the children, have spent time with the children and communicate with the children.
The court finds that the father had facilitated the mother participating in making decisions about long term issues in relation to the children, spending time with the children and communicating with the children. The mother on the other hand has not done the same with respect to the father participating in making decisions about long term issues in relation to the children, spending time with the children and communicating with the children.
The court finds that both parents have fulfilled their obligation to maintain the children.
When turning to the two primary considerations at section 60CC the court finds that there is a real benefit to X and Y having a meaningful relationship with both parents. While the court finds that neither child will be subject to or exposed to physical harm, abuse neglect or family violence in either parties care the court finds that if orders are made that would allow the children to remain living in Queensland with the mother the distance between the households and mother’s negative views about the father would cause psychological harm where the children are not able to maintain a relationship that see them spend at least substantial and significant time with the father. The court finds that the children will not experience psychological harm in the father’s care.
For the reasons set out above I make the orders set out at above.

I certify that the preceding two hundred and twenty-seven (227) paragraphs are a true copy of the reasons for judgment of Judge Myers

Date: 22 August 2014

[2014] FCCA 1888

22 August 2014

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Family Law

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