Oakley and Anor and Read

FAMILY COURT OF AUSTRALIA

OAKLEY AND ANOR & READ

[2007] FamCA 1520

FAMILY LAW – CHILDREN – With whom a child lives – Relocation - two fathers who are brothers – mother proposing relocation from town T to town B – fathers proposing she return to live in town C – discussion of relocation principles post 1 July amendments and the earlier case law – discussion of approach to relocation issue under amended Part VII provisions - order for children to live in town C and mother to elect to return or move to town B.

Family Law Act 1975 (Cth)

FIRST APPLICANT:

Mr P Oakley

SECOND APPLICANT:

Mr G Oakley

RESPONDENT:

Ms Read

INDEPENDENT CHILDREN’S LAWYER:

Cope Family Law

FILE NUMBER:

TVF

1731

2002

DATE DELIVERED:

20 December 2007

PLACE DELIVERED:

Sydney

PLACE HEARD:

Cairns

JUDGMENT OF:

Moore J

HEARING DATE:

17, 18, 19 & 25 October 2007

REPRESENTATION

FIRST APPLICANT:

In person

SECOND APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Honchin

SOLICITOR FOR THE RESPONDENT:

Purcell Taylor Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Benson

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Cope Family Law

Orders

All previous parenting orders related to the children K and L [‘the children’] are discharged.
The mother Ms Read and the father G Oakley are to have equal shared parental responsibility for K.
The mother Ms Read and the father P Oakley are to have equal shared parental responsibility for L.
The children are to live in C and for that purpose all three parents are to facilitate that occurring on or before the commencement of the 2008 school year.
The mother is to elect whether she will live in C on or before twenty-one (21) days from the date of the orders and to communicate that forthwith to each of the fathers.
If the mother elects to live in C –
(i)all three parents are to confer and discuss the area in which she will live and where the children will attend school, with the assistance if required of the supervisor appointed pursuant to order 12 hereof with the intent of reaching agreement about those matters;
(ii)the fathers are to provide her equally with financial assistance to enable her to transport her belongings to C, pay a bond in agreed accommodation in an agreed area, and pay the equivalent of one month’s rent.
If the mother elects to live in C each child is to live with his mother save for the times set out below when each is to live with his father:
(i)during school terms, each fortnight from after school Thursday until before school Tuesday;
(ii)during school holidays, for one half of each school holiday period, being for the first half in even numbered years and the second half in odd numbered years.
(iii)on special occasions for times to be agreed to include Father’s Day and the father’s birthday if the occasion does not fall within either (i) or (ii) hereof;
(iv)at other times agreed.
If the mother elects to live in C the fathers and the children may communicate regularly at reasonable times and duration by available means.
If the mother elects not to live in C, each child is to live with his father in C and spend time with their mother as set out below, subject to order 10 hereof:
(i)during school terms, on one long weekend per term [to include either the Friday or the Monday] nominated to the fathers by the mother in writing no later than two (2) weeks in advance;
(ii)during school terms, on any other weekends agreed;
(iii)during school holidays, for all of the holidays at the end of Terms 2 and 3 and for half of the holidays at the end of Terms 1 and 4, the latter to be for the first half in odd numbered years and the second half in even numbered years.
Provided the mother lives no further distance from the town C than the town B, to facilitate the orders in 9 hereof the mother is to pay half of the costs of air travel and each of the fathers is to pay the other half between them.
If the mother elects not to live in C she and the children may communicate regularly by telephone at reasonable times and duration and/or by post, email and webcam as may be available.
Pursuant to section 65L these orders are to be supervised for a period of three (3) months by a Family Consultant nominated by the Manager Child Dispute Services of the Cairns Registry and the supervisor is to give any party to these orders such assistance as is reasonably requested in relation to the orders and may report to the Court at their own instigation or in accordance with any further order.

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

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: TVF 1731 of 2002

Mr G Oakley

First Applicant

Mr P Oakley

Second Applicant

And

Ms Read

Respondent

REASONS FOR JUDGMENT

[For ease of identification in this case, the parties may be referred to by their Christian names or as ‘mother’, ‘father/s’]

Proceedings

Decisions have to be made about the parenting arrangements for two children: K and L. An earlier order appointed an independent children’s lawyer on their behalf. Both children currently live in T with their mother, Ms Read. Their fathers are brothers: K’s father is Mr G Oakley who lives in the town of C and L’s father is Mr P Oakley who lives to the south of C.
The mother has another child, her oldest child born in 1994, who has lived with her since his birth and his father has had little involvement in his upbringing. In July of this year the oldest child went to live with his father in southern Queensland. His arrangements are not the subject of these proceedings.
The fathers want the children returned to C where they lived until mid-2004. The mother wants to relocate with the children from the town of T to the town of B but if she is not successful in that goal she wishes to remain living with them in T. She does not want to return to C and says she will not do so. Depending on where the children are living and the availability of the practical means of implementing them, there are proposals about the children’s time under several options and they will be outlined in due course.

Evidence

In their case the fathers called evidence from their mother and from Mr G Oakley’s wife, T. The mother called no witnesses.
This is not a case where findings need to be made about credit in as much as that relates to the telling of deliberate untruths. But there are some differences in the evidence giving quite different pictures of the past which has made it necessary to say something about reliability for accuracy, which is another matter. While in some respects it might be said that all were doing their best to give an account of events as best they could, the evidence of both fathers impressed as being far more reliable than the mother’s.
The mother’s evidence was hampered by a seemingly poor memory on a number of matters; for example, when asked from records about what she had told authorities during investigative interviews she was often unable to recall detail, although it is possible this was not so much related to poor memory but to the point being adverse to her case. Also, while there was some overlap in her version of what she told the children’s school counsellor last year about L’s ‘bad thoughts’, it differed in key aspects from the evidence of the counsellor who was the more objective and reliable despite not having her notes available. This was a topic the mother raised for the first time in cross-examination and her halting description of what had occurred conveyed the impression it was bound up in some way with gaining ground in her case. Further, she presented quite a negative case against the fathers in some respects and yet there was no support for what she said of their conduct towards her from any other evidence. To the contrary, their conduct towards her over time as well as their somewhat accommodating attitudes stood in stark contrast to her description.
The background to follow for the most part is based on common ground or concessions but where it is necessary to take a view about events it draws more on the fathers’ versions and the assessment of them as balanced individuals without guile.
There is also evidence from three independent witnesses:
(i)Dr K, psychiatrist, provided a report after evaluating each parent for psychiatric or personality disturbance. He found no area of functioning wanting and he was not required for cross-examination. Regard is had to his report, but it is not necessary to repeat any of it here.
(ii)A Family Consultant provided a Family Report. The reporter elaborated on it in cross-examination though she did not depart from the thrust of any of her opinions. Her recommendations about the mother’s oldest child can be put to one side. Her recommendations about K and L were to the effect that the parents have shared parental responsibility, the mother move back to C with the children and they spend time with their respective fathers at least five nights per fortnight and on various special occasions. She also suggested the court consider whether it would be beneficial for a copy of the report to be made available to the oldest child’s father, remove restrictions on the supervision of contact between the children and G’s wife, and make directions that the contents of the report not be revealed to or discussed with the children. Her evidence will be discussed in due course.
(iii)Finally, there is evidence from a school guidance officer, Ms S, who saw K and L individually a number of times from mid-2006 until February of this year.
No criticism is levelled at the evidence of these independent witnesses and therefore due regard is had to their views.

Background & current circumstances

P and G are two of five brothers. Their family has always lived in the town C, they have a supportive and close relationship with their mother and brothers, and there are other family connections in the town C.
P lives in a home he purchased about seven years ago. He lives alone except when L visits. A steady relationship ended a few months ago. He is a tradesman and for the past 18 months has operated his own business which is doing reasonably well. He estimates his income to be in the vicinity of $50,000 - $75,000 before tax and GST and he is in the process of expanding by renting a shed. At the moment he works the business himself five days a week from Monday to Friday. He pays child support of $260 per month.
G is married to his wife T. They have a son, J, aged 15 months and are expecting the birth of their second child. They live in a large house, which they share with T’s sister and her fiancé, owned by her grandmother. They plan to move into their own premises next year to have more space. G is also occupied in a trade, recently promoted to a supervisory role. Subject to being on call, he works 40 hours per week in split shifts from 11am to 3pm and 5pm to 9.30pm [the latter on Fridays and Saturdays]. He has Sundays and Mondays off and is entitled to 4 weeks holiday a year which he takes to coincide with school holidays. He earns $43,000 per annum before tax from which he pays child support for K of $49 per week. He will have to pay more rent than he does now after the family moves next year. G’s wife is contemplating return to employment as a waitress some time after the birth of the baby.
The mother is one of five children born to her mother. She was placed in foster care as a young child following her mother’s death from an hereditary illness. Her siblings and half siblings are scattered and a close connection has not been maintained. One of her sisters died in 1999, she has a brother living overseas, another brother is in goal, and she has a half-sister living in B. Her maternal grandfather, aged 89, lives in B and she also has a maternal uncle living there. She says she was placed in foster care rather than with her grandfather when her mother died for reasons related to the opposition of his wife who is now deceased.
She met the oldest child’s father while being fostered by his mother. The year following the child’s birth she married another man but they separated after a year and were subsequently divorced. She was introduced to the Oakley family after meeting one of the brothers and around the end of 1996 she and G began a relationship. At her instigation they then moved from C to live in N where K was born. The relationship foundered and they separated during 1998 prior to the birth of their daughter late that year. In early 1999 the mother was in C when the daughter died after a short illness. G also returned to C. Around this time the mother and P began a relationship, a development that initially raised some dust in the Oakley family though it has long since settled. There is contention of no particular significance about how long this relationship lasted but they separated before L was born in mid-2000.
There have been important developments since L’s birth and they will be outlined shortly. For now, the mother’s background and current circumstances would not be complete without jumping forward to the end of 2005 when she went to South Africa. On an overnight stopover in Z she met a foreign man, Mr X, and she returned to Z for short periods on two separate occasions to see him. In unknown circumstances, but apparently related to his visa not being renewed, last year he was obliged to leave Z and he returned to his place of birth. She then went to Mr X’s place of birth for a short visit in September last year when they married. He remains living there and efforts to obtain the necessary visa for him to join her in Australia have so far been to no avail. She has not seen him since the trip when they married and their communications have lessened recently. While the children have spoken to Mr X by phone, they have never met him. Mr X gave no evidence, either by affidavit or electronic means, and nor was he interviewed for the Family Report by telephone.
Since the move to T the mother and the children have lived in rented premises and moved several times. To support herself and the children and pay for her trips to see Mr X, she has had available government benefits supplemented at times by earnings from casual employment, but more recently she bought an interest in a lease of a sporting licence which is due to expire next August. She anticipates earning $30,000 per annum before tax for her $7,000 outlay. The profit share and costs arrangements between her and the co-purchaser have not been presented in any clear way and so it is difficult to say whether or not her expectation will prove to be well founded. Whatever it is, she does not have to physically work the licence herself. As already noted, she also receives child support from both fathers.

Mid-2000 – mid-2004

Around the time of L’s birth 2000 P purchased his home south of C. The mother, who was by then in another relationship, moved to live in the same area for reasons to do with that relationship. P said at one point he and the mother have always had a reasonable communication but she refers to him as ‘harassing’ her while she was living near him. Being a small community, their paths would inevitably cross, but there is nothing to support her claim and I find it to be unsubstantiated. It is accepted that both P and G had regular contact with L and K through informal arrangements during this time.
Records [exhibit 12] show a notification to the Department of Child Safety in early 2001 about the mother’s care of the children, essentially alleging neglect and related to the children being on the road unsupervised as well as prolonged crying. In the record of interview with her she denied there was any reason for concern about their safety and she explained the children had been unwell. She identified her husband as a support with additional support from her mother when needed though who she had in mind is not apparent. In any event, the notification was marked as unsubstantiated given the availability of these supports and the children presenting as well cared for and happy.
In 2002 court proceedings about the children’s arrangements were instigated by the fathers. It was the mother’s proposal at the time to move [again] to N [see exhibit 19]. The factors motivating her decision are not clear but may be partly connected to the availability of a pain clinic there. She suffers from neuralgia arising from an accident some years ago. In the face of the fathers’ objection, she then proposed moving to T.
In July 2003, while these proceedings were pending, she attended the pain management centre at a Sydney hospital and a letter from there to the referring doctor in Queensland [exhibit 11] records the consultation, including the history she provided. She reported headaches since 1992, some apparent memory disturbance possibly related to the injury was noted, and she reported binge drinking when the children are with their father and smoking 50 cigarettes a day. There is comment about ‘significant social problems’ with her three children being the subject of a ‘custody battle between her and her ex-husband’. There is also mention of her entertaining suicidal ideation when she felt she might lose the children. The recommendations included undertaking a pain management program [which she did later complete] and that some attention be given to her substance abuse. Asked about these records, the mother says she does not recall what she told them about binge drinking but she rarely drinks alcohol now. It is not apparent whether any of this information was available during the court proceedings on foot at the time.
Not long after this visit to Sydney those proceedings were concluded by consent orders made 2 October 2003. They provided for the children to live with their mother, she was permitted to relocate with the children from C to T at the end of the 2003 school year, and provision was made for the children to have contact with their father [in C] every second weekend from 6pm Friday to 5pm Sunday [extended on long weekends] and for half of the school holidays as well as providing for regular telephone contact. Visits were to be implemented by changing over the children’s care at a small town located about half way between T and C, unless otherwise agreed. There was also agreement about other various orders related to parental responsibilities of one kind or another. In particular there was an order that the children not be brought into contact with Mr W who, I gather, is a person connected with the mother. There has been no elaboration here on what was behind the making of that order.
That is not to say the fathers consented to the move to T without misgivings. They say they agreed reluctantly to her proposal and that is accepted.

Mid-2004 – mid-2006

She did not make the move to T until mid-2004, so she has now been there for over three years. The distance involves a drive of not less than four hours. Because of P and G’s work commitments, for the most part their mother has collected the children at the changeover point on Friday afternoons, though P has also done so, and both fathers have returned them to the changeover point on Sunday afternoons. G and P have gone to T on a few occasions since the move. The mother has done all the driving to and from the changeover point at the other end. It is accepted that both fathers have provided her with some funds over and above the child support to assist with the cost of fuel. These arrangements have meant that on weekend visits to C the children have been in cars on the road for eight hours or more.

The children’s visits during school terms occurred for a time according to the October 2003 orders. However, they ceased for several months in early 2006 in circumstances to be mentioned shortly and over time they fell from fortnightly to every three weeks to the point where more recently they have been monthly. Both fathers consider the tapering off of their time is impacting on the quality of their relationship with their son. Telephone communication was not seen as a satisfactory substitute by either father, more particularly P who explained that L is easily distracted and not all that interested in talking on the telephone.
While in T the oldest child experienced considerable difficulties, which included self harm by cutting himself, and there were suspensions from school and expulsion. On one occasion at the end of 2005, just before his mother’s departure for Mr X’s home town, he was suspended from school for reasons related to having a knife and G went to T to talk to him. Asked about the wisdom of going to visit Mr X in the circumstances and being absent for six weeks or so, the mother says she was encouraged to go because it would be a good idea for the older child to spend some time with the ‘guys’ - by which she is taken to mean P and G and the two younger boys.
Issues about K and L’s school attendance arose from the production of documents [exhibits 15 and 16] which show absences over stated periods for various reasons noted or unexplained. Their mother attributes absences to illness or to time with their fathers, but there is no explanation for absences being left as ‘unexplained’ to the school. The issue does not loom large by any means but some disquiet about it lingers.
Something that did not receive any particular attention is the children’s surname. The mother has adopted the name of her husband, ‘[X]’, and the school records of the children’s attendance indicate they are known at the school as ‘[Read]’, which is her maiden name. I mention it only because of the reporter’s account of L identifying himself [paragraph 84 of her report] to the effect that when he was asked his name he first said L Read, he then changed it to L Read Oakley and finally he said L Read X which he could not pronounce. Whether this is causing problems for him is not clear but it does suggest some confusion.
During their mother’s absence over the Christmas 2005/06 period, K and L spent that time with their fathers and the oldest child was in G’s care. On the mother’s return in mid-January she became aware of an allegation by the oldest child that G’s wife had touched him inappropriately in a sexual way on two occasions. G’s wife denies it and alleges the older child had touched her inappropriately on two occasions which she had discussed with G who had spoken to the older child. The mother reported the allegation to the JAB and the Department of Child Safety and an investigation ensued. While that was underway, at the urging and with the support of the Department, the mother suspended visits of all children to C and asked for any contact between the children and G’s wife to be supervised. No issue had been raised about L in P’s household, but his visits to his father had always gone hand in hand with K’s and so his time with his father also came to a halt. The upshot was that neither child saw his father for several months. In due course the investigation resulted in the allegations either way being unsubstantiated.
After the suspension of visits, there was a notification to the Department of Child Safety [21 April 2006] about the mother’s care of the children, relating predominantly to issues of neglect and her harsh discipline. She suspects the notifier to be a woman who had been staying with her for a number of weeks, probably with good reason given the substance of the allegations. In any event, they were various: the mother was locking herself in the bedroom to get away from the children who were left to the care of a ‘housemate’; L had been waving a pocket knife around and in taking the knife away the mother did not discipline him; there was a later occasion when L cornered K while holding two knives before being ‘flogged’ by his mother who blamed the older child for L using knives; the children have to make their own lunches for school; the older child absconds quite a bit from home; mice are overrunning the house; and the mother was hoarding money to go to Z and not buying enough food for the children, leaving it to the housemate to buy extra food and cook for them.
The Department’s investigation included an interview of the children at school. There, both K and L spoke of being hit with a belt by their mother though L also identified feeling safe with her. The school did not identify any behavioural issues, though there was reference to L having a knife in his pants on one occasion. The record of interview with the mother reflects discussion about her use of the belt, that she would look at other options, she had troubles with the older child self harming and bullying at his previous school, and she is reported saying it is hard to raise three children on her own especially when the older child needs assistance. In a further later interview she said she was not using the belt and the children were ‘running wild’. Ultimately ‘unsubstantiated for harm and the children not in need of protection’ was the outcome recorded by the Department.
Asked at the hearing about the allegations, the mother said she used the belt on rare occasions, after this she introduced a chart and a different method of discipline, and she does not recall making the later comment about the children ‘running wild’ when the belt was not being used. She could not recall L having a knife or knives; she agreed the children did make their own lunches which she thought good for their independence; she explained that the older child had been running away, describing him as ‘so angry’; she agreed there had been a mice problem in the house [she has since moved]; and she denied the suggestion there was not enough food in the house.
On 12 May 2006 the fathers jointly instituted the current court proceedings by filing an application initially for orders to make up the time foregone during the period of suspension. In her response filed 12 July 2006 the mother sought orders, amongst others, that would permit her to relocate the children from T to B in which event they would spend time with their father every third weekend, for the whole of the shorter school holiday periods each year and for three weeks during the Christmas holidays. As the history shows, this proposal about moving came not long after she had met up with Mr X in Z but before their marriage in September and a couple of months after the April notification alleging neglect and abuse of the children.
Interim orders were then made by consent on 24 July 2006. Those orders discharged the October 2003 orders, they made provision for equal shared parental responsibility and for the children to spend time with their fathers as agreed but failing agreement every third weekend from 6pm Friday to 5pm Sunday [extended for long weekends] during the sporting season and outside the sporting season every second weekend from 6pm Friday to 5pm Sunday [extended on long weekends] as well as for the whole of the September/ October school holidays and for four weeks in the Christmas holidays. Again, there were various provisions related to parental responsibilities of one kind or another. The visits to their fathers were subject to the children staying either at their grandmother’s residence or P’s and they were not to be left unsupervised in G’s wife’s care. The restraint on the children coming into contact with Mr W was continued.
These orders have governed the children’s arrangements up to now. The boys see each other at their grandmother’s home or through arrangements their fathers make for outings and so on together. They also spend time separately with their own father. The orders have meant that K has been at his grandmother’s when his father has been at work and has not been left unsupervised in G’s wife’s care.

Mid-2006 to present

On 14 December 2006 both fathers filed an amended application where each sought an order for his son to live with him and spend time with his mother during school holidays and periodically at weekends, the frequency of which would depend on whether she were living in T or B. Notice of their intention to file such an application and a copy of it had been provided to the mother some weeks earlier. It is accepted their application was motivated by concerns about the children and their desire to provide them with more stability and have more input into their upbringing than had proved possible with them living in T. But it was not without consequences.
As I gather from the mother’s evidence, she had earlier told the boys they would all be going to live in B, her explanation being that the fathers had agreed to it. This is difficult to align with their solicitor’s later letter sent in January 2007 which reflects their consent being conditional on her providing security to fund a share of the travel costs. In any event, she told the children - L at least – about the father’s application and they would not be moving to B. Why she involved the children in such a discussion is difficult to understand because her application to move to B was still awaiting adjudication. She maintains she spoke to the children calmly about their father’s court application to have them go and live in C with them, but that is improbable. More than likely she was angry or at least frustrated and made her feelings about it all too apparent to the children.
At the end of that school year the children were due to spend time with their fathers in C and on this occasion P travelled to T to collect them. On the return journey L became very distressed and was in a state of panic. L’s concern, according to P, was that he would not be seeing his mother again. Despite his efforts and those of the other boys to calm him, L could not be placated so P turned around and returned him to his mother. Of course there was no substance to L’s belief at all. In any case, the mother then brought him to C a couple of days before Christmas when he had no difficulty staying with his father for the holidays. As P described it, he and the mother and L spent a half day together before she left, L knew she was staying nearby in C, and he had regular telephone contact with his mother over the weeks to follow.
Giving further evidence at the hearing, the mother said L had been reluctant to go to this father’s prior to this unsettling episode. For the first time she referred to the last visit before the Christmas holidays when L had told her he had ‘bad thoughts’ about his father. Asked to elaborate, she reported L saying he had ‘bad thoughts that something was happening between him and his father’, L said he was ‘lying down and whatever’, he was having ‘bad thoughts in his head and lying down and sleeping in bed with his father and something was happening between them.’ She said she did not believe there was anything going on, but she spoke to the school counsellor and asked her what to do. Obviously the evidence is not without its significance, implicating as it does L’s father in the spectre of wrongdoing towards him. She acknowledged there was nothing about it in her affidavit and she attributed the timing of the revelation at the hearing to her cousin having recently reminded her of it.
The school counsellor to whom she spoke, Ms S, later gave evidence. It transpired she had seen both K and L on occasions from June 2006 until 27 February 2007. She had not met the mother but had spoken to her on two occasions by telephone - initially before she first saw L and later in December. The second discussion occurred after the mother had notice of P’s application for L to live in the town C with him. The thrust of Ms S’s evidence is this:
(a)Since her first meeting with L on 15 June 2006 she had seen him 10 times. He initially presented as concerned for his mother arising from threat of harm by K’s father, information she thought came from the mother during her phone call. [I should say here there is nothing to substantiate any threat of harm from G. He did tell the reporter that he had ‘threatened’ the mother on one occasion after she said she was relocating to the town N, the threat being ‘if you leave the [C] region, I’ll have you arrested for kidnapping my son’ but this could hardly fit the description given in mid-2006]. L related to her that at times his parents would yell and he would become scared and when they were angry he hid and when they tried to find him he would run away. This is quite puzzling as his parents do not live together and nor is there any evidence of exchanges between his mother and father fitting this description or anything like it. Ms S said she looked to how L was coping at home and as time went on she considered he was coping better.
(b)When the mother called in December, she was concerned about L having nightmares which she relayed were about being tied up and undressed and left on a chair. The person doing this was not identified. Ms S agreed she gained the impression that the mother was concerned there may have been some inappropriate sexualised behaviour though she did not say so directly in those words. From her time with L, Ms S said his nightmares were about him and his older brother being tied up and left. The person doing it was not identified. She said L raised these court proceedings with her on one occasion on 12 December when he reported being worried about speaking to people about his ‘parents being in court and custody’.
(c)She last spoke to L on 27 February when they discussed his visit to his father. L told her he was enjoying spending time with his father and he joked about the good time he had in C, he reported that his sleeping had improved, and he was not having nightmares.
(d)Ms S also saw K between June last year and February this year, separately from L. As she recalls it, this was related to some issues about what was happening between his mother and the fathers. Neither child had spoken to her of moving away anywhere, to B or any other place.
A few months ago, in July, the eldest child left his mother’s household and went to live with his father despite having had little contact with him over the years. This development followed a long history of behavioural difficulties for the eldest child and the catalyst was an argument between himself and his mother. On her description of it, the child had been suspended from school again, he had smashed a glass door of the library, he was grounded and wanted to go out, she would not allow it and there was an argument during which he told her he was going to live with his father and she said ‘well go’. He rang his father, packed his bag, left to spend the night at a friend’s place, and took the train to his father’s where he has remained. His mother has since had some intermittent telephone contact with him and he spent a week with her recently during the school holidays. She said he is ‘self-mutilating’ again and is not sure what to do but she did contact his school.
Elaborating on her opposition to returning to the town C, the mother alleged certain conduct by the fathers towards her. She says she does not feel support from the fathers, ‘the two of them stick together’, they lie, even if they say they are not ‘in my face’ she feels ‘pressured’, they are ‘always just there’, ‘always watching’, and there are ‘always problems’. There is ‘constant pressure’, if there is an issue ‘they are all there to deal with it’, no one tries to discuss it with her. It has to be said that while this may well be her perception it is not supported by any objective fact or circumstance. She also told the reporter that she ‘hates the family ([Oakley]) with a passion’ and she will ‘co-operate to the extent that I have to’ but she was ‘tired of them making me look like I’m a bad person’ and tired of being ‘harassed and threatened’, they [the fathers] ‘are always saying about taking the children off me and always saying they [the children] should come and live with us’. She said she was ‘was tired of the games…we are supposed to be adults. I notified them two years ago that I wanted to go to [B]…I’ve never denied them of the children’ and ‘I do my best as a mother, I make mistakes but the children come first’. Again, this may well be her perception but there is no evidence of them harassing her or threatening her or behaving as this picture suggests. There was a threat of opposition and trouble made to her by text message by one of the Oakley brothers, plainly overbearing in its tone, but it was not by either of the fathers who did not attempt to deny it had occurred or excuse it.

Orders sought

All three have changed their positions about what orders they seek since those mentioned already and it is probably useful to set that out.

Mother

On 16 August 2007 the mother filed an amended response. For the most part she repeated her response of 12 July 2006, including the children’s move with her to B, but at this point she proposed less time for the children with their fathers by reducing school term visits to one weekend a month and reducing the time they would spend with them during the school holidays.
At the outset of the hearing she was asked to formulate proposals for the children’s time with each of their fathers if they were to remain living with her in T or required to live in C. They are these [exhibit 4]:

[T]

a.The children spend time with their fathers every second weekend Friday evening to Sunday evening.
b.Half of each school holiday with the fathers to have the 1^st half in 2008 and each alternate year and 2^nd half in 2007 and each alternate year.
c.For all travel the parties meet half way at [a small town].
d.Telephone communication Tuesday 7.00-7.30pm with the father to initiate the call for [L] and Tuesday 7.30-8.00pm for [K] with the father to initiate the call.
e.The children to telephone the fathers on the fathers’ birthday.
f.The children will always spend the Father’s Day weekend with their fathers and the Mother’s Day weekend with the mother.

[C]

a.Mother will not relocate to [C].
b.If the children are required to live with their fathers in [C] the mother proposes in [B] one weekend per month as per mother’s amended response and school holidays as per mother’s response.
c.Shared costs for air travel.

Later in the running of the hearing she abandoned her amended response of 16 August and reverted to her earlier proposal according to the 12 July response which involves the children making more frequent weekend visits from B and spending more time with their fathers during the school holidays.

Fathers

On 23 August 2007 the fathers filed a further amended application seeking a raft of orders but each abandoned the earlier application for his son to live with him. Each proposed the mother relocate to C with the children who would spend time with their father as agreed or every second weekend from 5pm Friday to 8.30am Monday as well as for half the school holidays.
Explaining his motivation for the change, G says he recognised it would hurt K to ‘tear him away from his mother’ and he thought it would have a damaging effect on K to remove him from his mother’s care. P’s motivation is similar. In discussion with the reporter, he said he would ‘hate to take the children off her…they adore her. But I’d like to be in their life a lot more’. He expressed concerns at how distressed L was before the visit last Christmas when he thought he might not be returned to his mother, commenting: ‘I’m not keen on busting the children up from their mother…they are so young, I just want to know they are safe and happy’.

The Family Report was subsequently released and they have since adopted the reporter’s recommendation that the mother relocate to C with the children and each boy spends at least five nights a fortnight with his father. If she does not elect to come to C but moves to B or elsewhere they are each willing to take on the care of the children and would ensure they have contact with their mother in B.
At my request they also formulated proposals and the means by which those arrangements would be practically implemented if the children are to remain living in T or move to B. They are these [exhibit 2]:

[T]

a.Every second weekend from Friday 5pm until Sunday 5pm, and Thursday 5pm if Friday is a public holiday, and Monday 5pm if Monday is a public holiday.
b.Pick up and drop off will occur at the Caltex service station in [a small town].
c.That the vehicles used to transport the children to and from [C] and [T] have regular safety inspections and be able to provide copies of such inspections to the other parties.
d.Half of all school holidays.
e.Phone contact with the children at all reasonable times.

I think it fair to say that they also support at least some of the travel being by air so the time the children spend in cars on the road is reduced.

[B]

a.Every third weekend from Friday until Sunday, to where the mother places the children on a plane from [the nearest airport] to where the Fathers collect them from the [nearest] airport. That the fathers return the children Sunday afternoon by plane to [the airport nearest the mother].
b.That the fathers have contact over the school holidays for the Easter, June/July and September/October for the period of 1½ weeks per holiday period. And half of the Christmas holiday period.
c.That both the fathers and mother pay for half the travel cost between [C] and [B].
d.That the children be made available for phone contact at all reasonable hours.

ICL

The independent children’s lawyer agrees with the reporter’s recommendation and proposes an outcome that sees the mother returning the children to C where they would spend five nights a fortnight with their father. The further submission is that the mother should make an election about whether she will make the move and if she does not then the fathers are capable of providing the necessary care and there will be sufficient support to assist the children making the necessary adjustment to those new arrangements.

Proposals

Putting aside where the children live and what time they would spend with their other parent, the proposals about other arrangements for them are yet to be mentioned. First, to the mother’s plans about moving with the children to B:
(a)She wishes to enrol in a course of study which is not offered by correspondence and nor is it offered by a facility near the towns T or C. Admittedly involving many years of full time study, she wants to equip herself in the longer term for a career overseas, although she says she is not contemplating working overseas until the children are a lot older. She does not see any obstacles to enrolment in the course though she has not yet applied. She completed her secondary schooling to Grade 10 and more recently she has been enrolled in a Diploma at TAFE. She has yet to complete the typing and computer components of the course, but she says she does not need the certificate to gain entry to her proposed course. With her husband, Mr X, she plans to establish a business, presumably fitting her studies around that. The plan also meets her wish to live closer to her extended family.
(b)She says they will live in a the area surrounding B in the four bedroom home owned by her grandfather who will move into an attached granny flat. If things do not work out with him, she will rent a house. While she did most of her growing up in C she says she has lived in B previously and has visited her grandfather during holidays many times.
(c)The children would attend local schools within walking distance from the grandfather’s house or from where she rents premises if that becomes necessary.
(d)Her uncle, she says has promised her part time work which she would fit around the children’s schooling and her studies.
(e)She does not see the relationship of either child with his father suffering by the move to B. She proposes paying half the air fares which on her initial affidavit evidence would be about $556 return each visit. It is not clear what she proposes about the boys maintaining their relationship with the older child, the submissions on her behalf inferring they would see him when they visit their fathers in C.
Her fall back position is to remain living in T and that does not entail any change to her current arrangements she has in place for the children. She says they are settled in their schools there and involved in various sports and activities.
As for moving to C, her position is she will not return though she does convey some uncertainty about what she would do in the face of a decision requiring the boys to be returned to live in C. She ran her case on the basis that the facilities at the pain clinic in T are only available to her if she is living in that region but this was shown to be wrong by the letter from the clinic dated 18 October 2007 and her counsel properly conceded the issue in closing.

Fathers

If the children are to live in C and the mother also returns, their proposal about the time the children would spend with them has been outlined. This would mean the children would be living apart during those days and for part of the school holidays. But they would be attending the same school and the fathers’ co-operative history indicates there would be arrangements for the children to spend some of that time together. P would remain living where he is and G would be in other accommodation from some time after the baby is born. I have no doubt that decision will be linked to the outcome here and what change that brings for the children’s circumstances.
If the children are to live in C and the mother elects not to return, there are no concrete plans laid out. They have spoken of enrolling the children at the same school and G says he would move closer to P to facilitate that. G has the support of his wife, whether K is living with them full time or for five nights a fortnight. As for maintaining communication with their mother, this would be facilitated through various available means, G’s household to include the introduction of Webcam.
Both fathers say they regard the relationship between the eldest child and the two younger boys as important and they will see they have contact, whatever the living arrangements.
Both fathers identify the option of the children remaining in T as a better option than the children being taken to live in B. They both have concerns about the children moving further away and see that as impacting adversely on the time the children could realistically spend with them. They have no confidence the mother will be able to pay a share of the children’s air fares to make visits to C consistent as she proposes. While they each agree to provide funds for travel they have limited means and G has other family commitments. Nor do they have any confidence she will not want to move again somewhere else, possibly even further afield. Having been asked the question in cross-examination, each readily acknowledges she wants to ‘better her position’ through further education, although there is also some indication they have little confidence in her sticking to any plan; for example, P referred to her in discussion with the reporter as a ‘nice person but erratic’ and G spoke of her telling inconsistent stories and chopping and changing about what she wants to do with her life, recalling a history of her wanting to pursue several occupations, ‘and now…she is stating she wants to [study], establish a [business] and work [overseas]’. There are also concerns, put expressly by P at least, about L possibly being part of a household with a man he does not know. Even so, both readily agree it would be better for the children if their mother was happier.
As for relocating to B or to T P does not see either as an option for himself. From his point of view, all the contacts he has built up for his business are in C and could not be duplicated elsewhere and he would also lose his close connection with family and friends. G says he had considered relocating to B but ‘then every time she decides to move away, I’d have to move my family’. The mother’s counsel in closing said that her case is not based on the fathers moving.

Approach

Before coming to the evaluations necessary, something has to be said about the approach to the issue of relocation because there are submissions about it. First, to the statutory framework for parenting orders. Part VII of the Act provides that the best interests of the child are the paramount consideration [s 60CA]. Applying to the whole of Part VII, there are express objects and underlying principles which themselves rest on the concept of best interests and inform the evaluations necessary to the making of parenting orders. The objects are about children’s best interests being met: by ensuring they have the benefit of both parents having a meaningful involvement in their lives to the extent consistent with their best interests; by protecting children from exposure to physical or psychological harm; by ensuring they receive adequate and proper parenting to help them achieve their potential; and by ensuring parents fulfil their duties and meet their responsibilities to their children’s care, welfare and development [s60B(1)]. The principles underlying the objects, except when it would be contrary to the child’s best interests, acknowledge the child’s right to know and be cared for by both parents; a right to spend time on a regular basis and communicate regularly with both parents and significant others; a right to enjoy their culture; and that parents jointly share parental duties and responsibilities and should agree about future parenting [s60B(2)].
That leads to ‘parental responsibility’ which is defined to mean all the duties, powers, responsibilities and authority which by law parents have in relation to children [s 61B] and until a child reaches the age of 18 years each parent has parental responsibility [s 61C]. Absent a court order about it, that responsibility can be exercised by parents jointly or severally but if there is a court order giving parents equal shared parental responsibility decisions have to be made jointly about ‘major long term issues’ [s 65DAC] which is defined in s 4(1) as relating to issues about the child’s care, welfare and development of a long term nature and include education, religious and cultural upbringing, health, name, and ‘changes to the child’s living arrangements that make it significantly more difficult for a child to the spend time with a parent’. The latter is highlighted because it neatly fits a situation where relocation is proposed.
The legislation imposes a presumption that it is in the child’s best interests for parents to have equal shared parental responsibility when making a parenting order [s 61DA(1)] but it does not apply where there are reasonable grounds to believe a parent has engaged in child abuse or family violence [s 61DA(2)] and may be rebutted if equal shared parental responsibility is not in the child’s best interests [s 61DA(4)].
Obviously parenting orders may be made about a range of matters concerned with a child’s arrangements – education, health, and name amongst others – but a significant matter is how the child’s time is spent between parents and the application of the presumption has a cascade effect on the consideration to be given to that. If the presumption applies:
(i)There is an obligation to consider whether it would be in the child’s best interests and reasonably practicable to spend equal time with each parent and if it is to consider making that order [s 65DAA(1)].
(ii)If that is not the result, there is an obligation to consider whether it would be in the child’s best interests and reasonably practicable to spend substantial and significant time with either parent and if it is to consider making that order [s65DAA(2)]. The phrase substantial and significant’ is defined [s65DAA(3)] and requires the child to spend days that fall on weekends and holidays and those that do not, it also allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child, and it further allows the child to be involved in occasions and events of special significance to the parent.
(iii)At both the first and second time steps, the factors which determine best interests are ‘primary considerations’ and ‘additional considerations’ [s 60CC (2) and (3)]. The two ‘primary considerations’ reflect in part the objects earlier mentioned [s60CC(2)] and there are a number of ‘additional considerations’ which are wide ranging, to which there are added the matters set out in s 60CC(3) and (4).
(iv)The factors to be taken into account in determining what is reasonably practicable are the distance between the parents’ residences, their capacity to implement an equal time arrangement, their capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind, the impact such an arrangement would have on the child and such other matters the court considers relevant [s65DAA(5)].
(v)Nothing obliges the adoption of either equal or substantial and significant time; the obligation is to give real or genuine consideration to those options. As with other parenting orders, decisions about time remain discretionary and must align with the particular child’s best interests [eg Goldrick [2007] FamCA 1260].
If the presumption does not apply:
(i)the child’s best interests are determined by the reference to the ‘primary’ and ‘additional’ considerations alone;
(ii)the time considerations imposed by s 65DAA (5) do not apply, but of course if there is an application fitting either description that time proposal has to be discussed against the best interests factors and the question whether the proposal is reasonably practicable will still be considered but in this instance it is discussed through whichever best interests factor comfortably accommodates it.
In Taylor and Barker [2007] FamCA 1246 the majority [Bryant CJ and Finn J] noted the absence of any express direction in the Act about the order in which Part VII provisions are to be considered and although they thought it logical to begin with the primary and additional considerations [paragraph 63] a failure to do so ‘would not lead to appealable error unless such error rose form a failure to give adequate reasons or to have regard to the matters which the legislation requires must be considered.’ I agree that is a logical starting point because the concept of best interests is an element of all steps in any direction.
Putting the framework aside, Taylor and Barker is at the centre of submissions about how a relocation proposal is to be approached under the amended provisions. The mother’s counsel made considered and helpful submissions which I hope are not too unfairly distorted by reducing them to the proposition that the decision requires the s 60CC primary and additional considerations and the time provisions of s 65DAA [if applicable] all to be addressed initially without taking account of the relocation proposal, followed by a return to those same provisions to consider the proposed relocation ‘separately and discretely’. Some key passages from the majority judgment giving rise to this interpretation follow:
‘53. We agree that when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least so far as that approach is possible (see U v U (2002) 211 CLR 238; (2002) FLC 93-112 and Bolitho & Cohen (2005) FLC 93-224).
and later:
‘81. We acknowledge that his Honour’s approach to the application of s 65DAA, which we have endorsed, does require that the matters which the court has to consider under that section (being “equal time” or “substantial and significant time”), must initially be considered without regard to any relocation proposal which might also be before the court. However any relocation proposal will then have to be balanced against the option of “equal time” or of “substantial and significant time” if either of those options has been found to be in the child’s best interests, with the outcome normally emerging from a consideration of whether such an arrangement was “reasonably practicable”.
82. We also acknowledge that this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter, and that at least prior to the 2006 legislative amendments, the preferred approach was not to consider a relocation proposal separately from other proposals in relation to the child’s living arrangements.
83. However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.’
If the submission is correct, it would be a tortuous exercise, not to mention an artificial one, because the evidence would be run over all of the provisions without mentioning the elephant in the room when the relocation proposal could hardly be avoided in discussion of some of the best interest considerations. So fortunately I do not interpret it that way.
There may be other views about it, but I think what is being said boils down to this. Where the presumption of equal shared parental responsibility applies, the Act makes it obligatory to consider if it is in the best interests of a child to spend equal time or substantial and significant time with a parent. To fulfil that obligation, in cases where relocation is proposed and the presumption applies, at the time stage consideration must first be given to whether either time outcome is in the child’s best interests and reasonably practicable, having regard to the parents’ current living circumstances [ie the relocation proposal excluded]. Having done so, the relocation proposal is introduced and the advantages and disadvantages of the proposal are balanced against the advantages and disadvantages inherent in the discussion of the time outcome related to the child’s current circumstances.
The more usual run of relocation case involves two households which are in relative proximity and one parent is proposing to move some distance further away. In this case, the children are already living some distance from their fathers so if that interpretation is right the first part of the exercise would be artificial and if obliged to do it, necessarily brief.

If the mother elects to relocate to C, there will be practical decisions to be made in a range of areas. As she has planned to leave the town T anyway, the upheaval involved in moving has been within her contemplation. But if she elects to move to C a decision will have to be made about where she will live in relation to the two fathers and there is also a decision to be made about the children’s school, again relative to the fathers’ residence as well as her own. The accommodation she locates will also have to be within her budget. Whatever income she gets from the lease of the sporting licence will still be available until next August, but she has supplemented her income with part time work and if she wants to continue doing so, she will have to find similar work in the C area.
Seen from the children’s perspective, it is reasonable to expect that they make the move in time to start their schooling at the beginning of the 2008 school year. If they are to have holiday time with their fathers for the second half of the current holidays then they would stay on. If the mother elects to move also, she can either make the necessary arrangements before they start school or if that time frame is too tight she can do so as soon as practicable thereafter, with the children in their father’s care in the meantime until she is settled.
The orders will provide for the parents to discuss these practical matters that will necessarily arise from her election – housing and school - with the assistance of a Family Consultant if required.
It is also reasonable to expect that some practical help of a financial nature would be given by the fathers to see her accommodated and settled in an agreed area that allows all three parents to fulfil their responsibilities. Admittedly there has been no submission for or against any financial contribution being made by the father to assist her in making the move, but there can be confidence they would do so. The orders will make provision for what I consider reasonable in the circumstances.
If she makes that election, there is the question of what time the boys should spend between their parents. That is adequately answered, in my view, by the recommendation of the reporter. As noted earlier, the circumstances of these boys are somewhat unusual because they have different fathers who live in two separate households. Equal time with each parent would mean their separation for half their time, although their fathers being brothers who have a close relationship and each father being the other boy’s uncle means a guarantee of the boys spending time together when they are living with their father. Nonetheless, their special circumstances require that time apart to be pared back a little from equal time to substantial and significant time. That is what the reporter has done in framing her recommendation. Therefore orders will provide for them to spend five days a fortnight with each father during school terms – say Thursday afternoon to Tuesday morning every second week - as well as school holidays and on other special occasions.
While not the subject of any submissions, I see some advantage in the orders providing for a relatively short period of supervision by a Family Consultant pursuant to s 65L of the Act, say 3 months, to see the parents and the children through the period of transition and to facilitate the resolution of any difficulties that might arise or facilitate communications as may be necessary.
As for the timing of the mother’s election, it was made clear before the close of the case that the two options at the forefront of consideration were the town T and the children moving to town C, so the decision is unlikely to come as a surprise to her and no doubt she has given some consideration to her position in the meantime. Nonetheless, it may take some time for her to make the decision and that is entirely understandable. The orders drafted provide three weeks but, as with all ordered arrangements, the parents are free to agree about some other arrangement.
If the mother does not elect to return to C, there is no doubt the children would experience the separation from her with a sense of loss and possibly initially some distress, perhaps more so L given his younger age, taking into account his attachment to his mother, and the fact that he would not be living in a household with other children around. Certainly for each boy it will represent a fundamental change to their living circumstances to this point. Yet if that is her decision there is every reason to be confident the children will make the necessary adjustments and that both fathers will cope with any difficulties in a sensitive and supportive way. The children would have familiar surroundings and a supportive family network, including their grandmother, to ameliorate any difficulties.
In that event the children would be living in separate households, something neither father wants. But if the situation arises there can be confidence they will address the issue sensibly and make what arrangements between them are necessary to see that the children attend the same school and that they spend as much time together as possible, including G moving after the birth of the baby to accommodate the change in the children’s circumstances.
Should she not make the election, orders will have to provide for the children to have contact with their mother in B. Her proposal suggests visits there once per month and during the school holidays, with the costs of travel to be shared. What the costs would be, there can be no certain figure and much depends on a series of variables. The orders will provide for there to be agreement to enable the children to visit more frequently, but will provide specifically for a minimum of one trip per term. In that event I can see no harm in the boys taking a day off school to make it a long weekend, to include a Friday or a Monday so they might maximise the benefits of the trip. There will also be visits during each of the four school holidays, but rather than half the holidays the orders will provide for an additional two weeks during the year in the holidays at the end of Terms 2 and 3. That would make a minimum of 8 trips a year, with provision for others to be agreed, and the costs of those trips will be shared equally between the mother and the two fathers. The orders will also provide for other forms of communication between the children and their mother.

Conclusion

There was discussion at the hearing and submissions about the communication of the decision to the children which I have adopted in part. Arrangements have been made for the children to be available at the Registry when judgment is delivered and for the independent children’s lawyer and the Family Consultant who prepared the report to be available to speak to the children in whatever way the Family Consultant determines. It is recognised that the decision will be very disappointing for the mother and she will be upset by it. That and the experience of L learning of his father’s application for residence last year leads me to the view that it would be best for the children to hear of the decision from a professional with the Family Consultant’s qualifications, with or without the parents involved at her discretion, rather than in any other way.
It remains to say that the boys’ names have differed in various documents filed. The names in the orders I have drafted are those used in the earlier orders made by consent on 24 July 2006, which I note also include an agreed provision nominating the children’s names as a major long term issue.

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

Associate:

Date: 20 December 2007

[2007] FamCA 1520

20 December 2007

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Family Law