Paulson& Paulson

[2017] FCCA 2513

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAULSON& PAULSON [2017] FCCA 2513

Catchwords:
FAMILY LAW – Parenting – relocation – where applicant mother has already relocated without children – best interests of children – relocation of children permitted.

Legislation:

Family Law Act 1975, ss.4AB(1) & (2), 60B, 60CC, 61DA and 65DAA

Cases cited:

Taylor and Barker (2007) FLC 93-345

U v U (2002) FLC 93-112
Clement & Clement [2014] FCCA 1664

Applicant: MS PAULSON

Respondent: MR PAULSON

File Number: ADC 950 of 2016

Judgment of: Judge Heffernan

Hearing dates: 1, 2, 3 & 8 March 2017

Date of Last Submission: 8 March 2017

Delivered at: Adelaide

Delivered on: 27 October 2017

REPRESENTATION

Counsel for the Applicant: Ms West

Solicitors for the Applicant: David Burrell & Co.

Counsel for the Respondent: Mr Childs

Solicitors for the Respondent: Mellor Olsson

ORDERS

Parental responsibility

1. The father and mother shall have equal shared parental responsibility for the children of the marriage, namely [X] born (omitted) 2008 and [Y] born (omitted) 2009.

2. SAVE as specifically otherwise provided herein, each parent shall be responsible for making decisions concerning the day-to-day care of the children when the children are living with them.

3. Each parent shall consult in writing in relation to all major long term issues in relation to the children including but not limited to:

   (a)The children’s schooling;

   (b)The children’s health and medical treatment; and

   (c)The children’s religion and religious education.

4. That the said children live with the mother in Adelaide, with relocation to occur on 26 December 2017 at 12.00noon, or on a date after Christmas Day 2017 to be agreed by the parties in writing.

5. The said children shall spend time with the father at such times as are agreed, or in default of agreement, on each alternate weekend as follows:

   (a)On the first weekend in the cycle, during the school term, and each second occasion thereafter in Adelaide from the conclusion of school on Friday to 3.30pm on Sunday (with such time to be extended to 3.30pm on Monday if Monday is a public holiday or a pupil free day); and

   (b)On the second weekend in the cycle, during the school term, and each second occasion thereafter, in Town A from 7.00pm on Friday to 2.00pm on Sunday.

6. Regardless of where the said children may be living or spending time from time-to-time, the arrangements for school holidays and special occasions shall be as follows (and to the extent necessary the operation of paragraph 5 hereof shall be suspended during these periods).

   (a)The said children shall spend time with the father in Town A (subject to any other arrangements pursuant to paragraphs 14 and 15 of these orders) during all short school term holidays at such times as are agreed, or in default of agreement, from 12.00noon on the first Saturday after the conclusion of the school term for 10 days concluding at 12.00noon on the Tuesday of the second week of the holidays;

   (b)For the Christmas holidays in 2017/2018 the said children shall spend time with the father in Town A (subject to any other arrangements pursuant to paragraphs 14 and 15 of these orders) from the commencement of the school holidays until relocation as provided for in paragraph 4 herein;

   (c)The said children shall spend time with the father in Town A (subject to any other arrangements pursuant to paragraphs 14 and 15 of these orders) between 13 January 2018 and 20 January 2018; and

   (d)From the 2018/2019 Christmas school holidays, the said children shall live with each parent for one half of the holidays on a two week rotating basis with the time spent with the father to be in Town A (subject to any other arrangements pursuant to paragraphs 14 and 15 of these orders), and the time with the mother to be in Adelaide, (subject to any other arrangements pursuant to paragraphs 14 and 15 of these orders) commencing on the first Saturday of the school holidays and each alternate fortnight thereafter with the parent with whom the children would be residing on the first Saturday of the school holidays in accordance with Order 5 having the first two week period.

Christmas

(e)The said children shall spend time with the father at Christmas time in 2017 as provided for in order 6(b) herein and thereafter from 12.00noon on Christmas Eve until 12.00noon on Boxing Day in 2019 and each alternate year thereafter.

(f)The said children shall spend time with the mother at Christmas time from 12.00noon on Christmas Eve until 12.00noon on Boxing Day in 2018 and each alternate year thereafter.

Easter

(g)If Easter falls during the school term, the said children shall spend time with the mother in Adelaide for the Easter long weekend, namely from the conclusion of school on Thursday (or 5.00pm if a non-school day) until the commencement of school on Tuesday (or 10.00am if a non-school day) in 2018 and each alternate year thereafter.

(h)If Easter falls during the school holidays, the said children shall spend time with the mother in Adelaide for the Easter long weekend, namely from 7.00pm on Thursday until 2.00pm on Monday (or 2.00pm on Tuesday if a non-school day) in 2018 and each alternate year thereafter with changeover to take place at (location omitted) in accordance with the handover orders herein.

(i)For Easter, the said children shall spend time with the father in Town A for the Easter long weekend, namely from 7.00pm on Thursday until 2.00pm on Monday (or 2.00pm on Tuesday if a non-school day) in 2017 and each alternate year thereafter.

Mother’s Day

1. In the event that the said children are with the father on Mother’s Day, the children shall spend time with the mother from 6.00pm on the Saturday before Mother’s Day until the children are returned to school on Monday morning.

Father’s Day

1. In the event that the said children are with the mother on Father’s Day, the children shall spend time with the father from 6.00pm on the Saturday before Father’s Day until the children are returned to school on Monday morning.

Annual Vacations

1. Both parents shall each be at liberty to take the children on a holiday at least annually for a continuous period of 14 days, provided the party requesting the holiday time, provides 42 days’ written notice to the other party.

2. When giving notice of any intended holiday, each parent shall provide the other parent with the following information:

   (a)An itinerary;

   (b)Flight and/or accommodation details; and

   (c)Contact details for the duration of the holiday.

Communication

1. The husband shall be at liberty to contact the said children by telephone each Sunday, Tuesday and Thursday at 7.30pm whilst the children are in the mother’s care.

2. For the purposes of telephone communication referred to in order 16 herein, the father is to call the mother’s mobile telephone.

3. Each parent shall allow the children to reasonably communicate with the other parent while they are in their respective care and they shall each facilitate the same.

4. The parties are to use a Communication Book to be exchanged between them at each handover setting out the child’s nutritional needs, sleeping patterns, health and any other matters relating to child(ren)’s care.

Handovers

1. In default of agreement, as to the place of handover of the children, all handovers shall take place as follows:

   (a)If the children are to spend time with the father in Town A, then changeover shall occur at (location omitted) at the (omitted) at both the commencement and conclusion of time; and

   (b)If the children are to spend time with the father in Adelaide, changeover at the commencement of time will occur at the children’s school (if time is to be from the conclusion of school) or at the mother’s residence (for all other non-school changeovers) and changeover at the conclusion of time will be at (omitted), in Adelaide.

Health Issues

1. Each party shall forthwith inform the other of any serious illness or injury sustained by the child(ren) whilst in their care.

2. Each party shall provide the other with particulars of any treatment received or required by the child(ren), together with full details of the treatment provider and/or the location where the child(ren) are a patient.

3. Each party shall provide the other with any prescriptions or prescribed medication for the child(ren) and the other party shall administer those medications during the periods the child(ren) are in their care.

Special Occasions

1. In the event the child(ren) are invited to a party or other special occasion at a time when the child(ren) are due to spend time with the other party, the relevant party shall forthwith upon receiving such invitation, provide the other party with a copy of such invitation to enable the other party to respond to the invitation as they may choose.

2. Neither party shall unreasonably withhold providing the other party with additional time with the child(ren) to enable the child(ren) to attend special events and family gatherings.

School Reports

1. Each party shall forthwith upon receiving notification of any school or extra-curricular special event, including but not limited to concerts, parent teacher interviews, excursions and camps, provide the other party in a timely fashion with a copy of such notification, or in the event of no written notification, advise the other party in writing of such event, or if the school or service provider is agreeable, each party shall authorise that entity to provide copies of any such notification direct to the other party so as to enable the other party to attend such event.

2. The party who receives the children’s school reports shall forthwith provide the other party with a copy of such reports, but if the school is agreeable, each party shall authorise the school to provide a copy of such reports direct to both parties.

Injunctions

1. The parents are restrained and an injunction is granted restraining them both from:

   (a)Bringing further proceedings in relation to the children unless:

   (i)The matter is urgent; and

   (ii)The parents have attended alternate dispute resolution in relation to the issue.

   (b)Discussing adult issues, including disseminating information pertaining to these proceedings with or in the presence of the children, or allowing any other third party to do so; and

   (c)Denigrating the other parent to, or in the presence of the children, or allowing any other third party to do so.

Other

1. The mother is to continue to consult with Ms A, Psychologist, and seek guidance on building co-parenting skills and is to follow Ms A's advice as to any therapy, counselling, and or courses that might assist her in developing those skills.

2. The mother is at liberty to provide a copy of the Family Assessment Report of Ms M, dated 26 July 2016, to Ms C and is to ensure that Ms C is provided with such copy prior to the mother’s next appointment with her.

3. The father is to consult with a psychologist with experience in Family Law matters, and is to seek guidance on building co-parenting skills and is to follow the psychologist’s advice as to any therapy, counselling, and or courses that might assist him in developing those skills.

4. The father is at liberty to provide a copy of the Family Assessment Report of Ms M, dated 26 July 2016, to the psychologist with whom he consults pursuant to order 31 above and is to ensure that the psychologist is provided with such copy prior to the father’s first appointment with them.

5. There is no order as to costs.

6. All previous orders are discharged.

7. All extant applications are dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 950 of 2016

MS PAULSON

Applicant

And

MR PAULSON

Respondent

REASONS FOR JUDGMENT

1. This is an application by the mother for parenting orders that the children reside with her and spend regular time with the father.  The mother’s application raises the issue of relocation of the children, [X], who was approximately about 9 years old at the time of trial, and [Y], who was approximately 7 and half years old at the time of trial, from Town A, where they reside with their father, to Adelaide, where the mother lives.

2. The father opposes any order for relocation and seeks final orders that both children reside with him in Town A as they have done since separation.

The law with respect to relocation

1. There is no separate category under the Family Law Act 1975 (Cth) (‘the Act’) for relocation cases. In all cases, the question of relocation is one aspect of the broader question under Part VII of the Act as to what orders are necessary in the best interests of the child or children in the context of the proposal for relocation. It is for this reason that it has been said in a number of the authorities, that there is no such thing as a relocation case. The mother’s proposal for relocation must be considered in the context of the finding I make with respect to s.60CC of the Act and having regard to s.65DAA of the Act.[1]  In other words, it is necessary that any orders that I make be both in the best interests of the children and “reasonably practicable”.

   [1]     Taylor and Barker (2007) FLC 93-345.

2. It is not necessary for the applicant to demonstrate compelling reasons or exceptional circumstances before I could be satisfied that an order permitting relocation of the children is appropriate.[2]

   [2]     U v U (2002) FLC 93-112.

3. When considering where the best interests of [X] and [Y] lie, I must have regard to the framework in s.60B of the Act which sets out the objects of Part VII and the principles which underlie those objects. Pursuant to s.61DA there is a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. That presumption does not apply where there are reasonable grounds to believe that a parent of the child or children has engaged in either abuse of the child or children or family violence.

4. Neither party bears an onus either for or against demonstrating that an order for relocation is appropriate.

5. It is appropriate to acknowledge that relocation matters are amongst the most difficult proceedings in this Court, both for the parties and the Court.  It is only natural for an unsuccessful party in a relocation matter to feel a sense of loss and resentment and diminishment of their role in the lives of the children.  Matters such as this always require a very careful consideration of the evidence, keeping in mind that whatever the sense of grievance or pain felt by the parent who is left without the primary care of the children, the paramount consideration in parenting proceedings must be what is in the best interests of the child.  Whilst every child has a right to have a meaningful relationship with both parents, the relationship may not necessarily be an optimal relationship. It can nonetheless be meaningful.[3]

   [3]     Clement & Clement [2014] FCCA 1664.

6. Family violence is defined by the Act as follows[4]:

   [4] Section 4AB(1) & (2) of the Family Law Act.

   “(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

   (2)Examples of behaviour that may constitute family violence include (but are not limited to):

   (a)an assault; or

   (b)a sexual assault or other sexually abusive behaviour; or

   (c)stalking; or

   (d)repeated derogatory taunts; or

   (e)intentionally damaging or destroying property; or

   (f)intentionally causing death or injury to an animal; or

   (g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

   (h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

   (I preventing the family member from making or keeping connections with his or her family, friends or culture; or

   (j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.”

Background

1. A concise summary of the major aspects in the background of this matter was prepared by Ms M, a Clinical Psychologist who undertook a Family Assessment Report at the request of the parties.  It is appropriate and convenient for me to adopt that summary in these reasons:

   “Ms Paulson and Mr Paulson commenced living together in 2000, were married in 2007, and separated at the end of 2015.  They have two children, [X] (born (omitted)2008), and [Y] (born (omitted)2009).

   Mr Paulson and Ms Paulson originally resided together in Adelaide while working and studying, before moving to (location omitted) in 2004 where Mr Paulson began working as a teacher.  In 2009 they relocated to Town A (a regional South Australian town, approximately (omitted) drive from Adelaide) for Mr Paulson to be involved in his family’s (omitted) business there.  All of Mr Paulson’s family (his parents, three siblings and their children) reside in the Town A area, while Ms Paulson’s family (her parents; her sister is soon to relocate overseas) are in Adelaide.

   The children are currently residing with the father in Town A, spending alternate weekends with their mother, who moved to Adelaide in December 2015.  The weekends that the children spend with Ms Paulson alternate between Town A and Adelaide.

   Ms Paulson has applied for the children to reside with her in Adelaide.  Ms Paulson has requested shared parental responsibility, and for the children to spend time with their father in Town A during each school holiday period.  Ms Paulson’s Application also requests that neither parent unreasonably withhold additional time for the children to attend special events and family gatherings.

   Mr Paulson’s Response also requested shared parental responsibility, but for the children to remain residing with him, spending every third weekend with Ms Paulson during school terms, and half of all school holidays.  Mr Paulson indicates in his affidavit that he agrees to the children moving to Adelaide when they need to attend high school, only if Town A does not offer the subject choices the children require.

   Ms Paulson resides in (omitted) and works three days per week as a (occupation omitted).

   Mr Paulson resides in Town A, working full time as a (occupation omitted) in the Paulson family business.”

2. Both parties were approximately 35 years old at the time of trial.  In late 2008, the parties became aware of the paternal grandfather’s intention to sell the family business, a (occupation omitted)’s shop, located in Town A, unless one of his children wished to take it over.  The mother says, and the father disputes, that this coincided with a period of stress and depression for the father.  In late 2009, they agreed to move to Town A.  In November 2010, the mother moved there with the child [Y].  The father relocated to Town A from (location omitted) at the end of the school term in that year with the child [X]. 

3. That summary sets out the undisputed aspects of the background to this matter.  It also sets out in broad terms the nature of the dispute between the parties.

Evidence

1. I have given careful consideration to all of the affidavit material and exhibits tendered in this matter.  I have given close consideration to the oral evidence that was given before me during the course of the trial.  I will not repeat or summarise every aspect of the chronology detailed in the parties’ respective affidavits.  I will not address every matter and incident they have identified.  I will deal with those topics and incidents that are most relevant to my consideration of the competing proposals and the best interests of the children.  The parties agree on many aspects of the chronology but disagree on the detail and interpretation of most of the incidents and events they have chosen to bring to the Court’s attention. 

1. One matter is abundantly clear.  Since separation, communication between the parties on children’s issues has rarely been optimal, has frequently been strained, and on occasions inadequate or inappropriate.  Both parties will need to concentrate on improving the lines of communication between them, both as to content and timeliness, in the best interests of the children.  Whatever arrangements are put in place, the reality is that the children will spend many years relying on a co-parenting relationship to adequately cater for their relationship with both parents and their physical, emotional and psychological development.  It is of the utmost importance that the parties, both of whom have had the benefit of a stable upbringing and a good education, make a conscious and sustained effort to communicate as and when necessary in a civil and effective way, whether it be for the purpose of notifying each other as to relevant issues, or organising and conducting handovers. 

2. The move to Town A was, on the mother’s account, her suggestion.  She says that it was to be on a trial basis to be reviewed after 18 months.  The father disagrees with the mother’s claims that he was depressed and anxious prior to the move to Town A or that the move was in part a response to his unhappiness.  He disputes that it was the mother’s idea to move and says that it was something he had been contemplating for some time.  Both parties tried to make the move work.  They both engaged themselves in the community, most notably through sporting clubs.

3. From the mother’s perspective, the relationship began to experience significant difficulties in mid-2013 when she learned of the infidelity of the father.  The father acknowledged this and the parties commenced counselling in January 2014 at (omitted) in (location omitted).  Whilst this counselling continued for some time, from the mother’s perspective, it was ineffective in resolving the issues between them.  From the father’s perspective he wanted the marriage to continue.

4. The mother says that she attempted to leave the father in October 2014, but that he requested she stay so that his mother could teach their son, [Y], in reception.  The decision to stay did not lead to an improvement in the relationship and from her perspective it remained unhappy and unresolved.  The mother took a four day break in August 2015, and whilst she was away from Town A, made a decision to end the marriage.  She advised the father during a (omitted) counselling session that she regarded the marriage to be at an end and of her desire to relocate to Adelaide with the children.  From the father’s perspective he says that separation had been discussed prior to the four day break and that he told the wife that he wanted the children to remain in Town A at least until they reached secondary school and only to move away if it was necessary for their schooling.

5. The mother says that her wish to relocate to Adelaide was a matter of discussion in the months that followed, and that initially the father indicated that he would not oppose her taking the children with her to Adelaide.  As I have noted above, the husband denied in his trial affidavit ever telling the mother that he consented to her relocating the children from Town A to Adelaide.  He states that the mother was well aware of his opposition to relocation prior to his solicitor writing to her on 9 December 2015.

Circumstances of mother’s relocation

1. The events leading up to the mother’s relocation to Adelaide are a matter of dispute between the parties.  On the mother’s account, a significant stressor during the final months prior to relocation was the attitude taken to the question of relocation by the paternal grandparents.  The mother says that they were upset and not supportive of the idea and that they repeatedly asked her to stay.  The father says in his trial affidavit that he was aware that his mother opposed relocation but that he had no knowledge of any requests made to the mother by his parents.  In particular, the mother says that there was an incident in which the paternal grandmother raised her voice at the mother telling her that she would regret her actions and that she was making a huge mistake.  The maternal grandmother was called to give evidence and her version of that incident was that she, the mother, and the father were all upset.  She denied having raised her voice at the mother or making the comments attributed to her by the mother.  Her main concern was with how she could help the family.  She says that she was upset but in control.  In cross-examination, she denied discussing the father’s infidelity with the mother and telling her that “life goes on”.  She denied feeling that the mother was ungrateful. 

2. I have no doubt that the fact of the relationship ending and the mother’s expressed desire to take the children to Adelaide was a matter of considerable tension between the parties and a difficult issue for the paternal grandparents, with whom the children are very close.  There seems to be no dispute that the father comes from a close knit family and that the attitude taken by his mother in particular, was a matter that significantly affected him and added to the tension in the final months prior to relocation.  To the extent that there was any ill feeling expressed towards the mother, I am not critical of the paternal grandmother in that regard.  It is not necessary for the purpose of these reasons, for me to make any specific finding as to what occurred and what was said at the disputed meeting with the paternal grandmother.  What was being proposed by the mother was a significant upheaval in the lives of the children.  It is a regrettable, but almost inevitable, consequence of the breakdown of a relationship in which children are involved that extended family members are emotionally affected and react accordingly.

3. Having separated under one roof in November 2015, the mother says that until 9 December 2015, when she received a letter from the father’s solicitors, she had been under the clear impression that he was prepared to allow the children to move to Adelaide with her.  That letter put her on notice, she says, that the father’s view had changed and that he did not consent to the children moving.  I have already summarised the father’s trial affidavit on this matter.

4. In her evidence, the mother said that she was under the impression that having been put on notice of the father’s objection by his solicitor, she was in effect prevented from unilaterally moving the children away from Town A.  On her account, she was placed in a difficult situation once the father withdrew his consent.  She had already given up her employment in Town A.  She says that because of the circumstances of the relationship breakdown and matters that I will refer to later in these reasons, it was not viable for her to remain living in Town A.  Town A is self-evidently a small town and had she remained she would inevitably have come into contact with the father and his family, and she genuinely believed that this was not in the best interests of her own emotional and psychological wellbeing.

5. Prior to her departure, the mother received a letter from the solicitor for the father requesting confirmation that she would return the children to the father in Town A after the Christmas period.  She left the town with the children on 20 December 2015 and moved in with her parents in Adelaide.  The children stayed there over the Christmas period and they were joined by the father on 24 December 2015.  They shared Christmas Day together and then he returned to Town A with the children on 26 December 2015. 

6. The mother deposes in her affidavit, and I accept, that a consideration on her part for allowing the father to spend Christmas Day with them was that having just recently learnt of the separation, the children still being quite young, would experience further disruption of their lives if the father had been excluded from those celebrations.  I do not regard the fact that the father spent that Christmas Day at her parent’s house as being inconsistent with the mother’s claim to be intimidated and fearful of the father.

Mother’s reasons for seeking relocation

1. The mother has lived in Adelaide since December 2015 and has spent time with the children on a regular basis pursuant to orders made by me.  Those orders, in essence, confirmed arrangements for time and contact that had been in place prior to the first court appearance in this matter.  At the time of trial, she was still residing with her parents.  It was her intention to obtain suitable independent accommodation and her evidence was that now that property issues have been resolved, she will be in a better position to do so.  Her evidence is that she had been the primary carer of the children prior to moving to Adelaide.  She seeks that the children be permitted to relocate to Adelaide in order that she can resume her primary care of them.

2. A significant reason that the mother says it is not possible for her to continue to reside in Town A, and one which is strongly disputed by the father, is that during the course of their 16 year relationship, he was controlling, coercive and abusive towards her.  This was primarily through what she claims to have been his unreasonable and controlling sexual demands on her.  In both her affidavit and under cross-examination, the mother maintained that there were many occasions during the marriage on which she was coerced by the father into sexual intercourse after she had made it clear to him that she was not comfortable with it.  On some occasions, she says that she acquiesced to his demands as a way of placating him.  On other occasions, she says that it was against her expressed wishes. 

3. In terms of control and coercion, the mother says that there were occasions where, before he would agree to her going out on her own with friends, the father would require her to perform a sexual act.  She identified a specific incident of this as being prior to her attending a Justin Timberlake concert in Adelaide with her sister in September 2014.  She said that on that occasion, she clearly told the father that she did not want to have sex with him. 

4. On her account, once she had informed the father of her final decision to relocate to Adelaide with the children, his demands in this regard increased.  She says that there were occasions on which she complied with his requests because she did not want to risk him being angry.  This continued to occur after separation whilst she lived in the former matrimonial home.  She deposed in her affidavit that whilst she made mention of this ongoing conduct to her general practitioner, she was reluctant to do so because of embarrassment and she was under the mistaken impression that complying necessarily meant she had consented.  Since moving to Adelaide, the mother has consulted with a Psychologist, Ms A, in relation to those incidents and has received counselling.  She says that she did not inform police with respect to these incidents because of the father’s intimidating nature and that even after separation, she continued to be scared of how he might react.

5. In cross-examination, the mother responded to questions about an incident after she had attended the (venue omitted) in 2015 referred to in the affidavit of the father.  The father’s account is that he and the mother had gone to the (venue omitted) and agreed that she stay with her sister and a friend when he left at 1.00am.  He was called by the SA Ambulance Service at about 5.30am who had attended on the mother in a confused and distressed state.  He says that the mother’s reaction to this was that she was disappointed in herself but that she otherwise did not want to discuss it and “seemed to want to move on from it”.  The father says that from his perspective, this incident had a significant effect on their relationship, exacerbated by the fact that the mother refused to talk about it.  It was this incident that caused him to seek psychological counselling.  In other words, such counselling as he had needed was responsive to a specific episode of anxiety and depression triggered by events and not reflective of his mental health generally and not a reflection of his parenting capacity.

6. The effect of the mother’s evidence was that the incident was a further example of his intimidation and anger.  She believed that her drink had been spiked at the event.  She says that the father was so angry about the incident that he yelled at her in the car for pretty much the entire trip home to Town A.  It was not simply a question of the father venting his anger briefly, but a sustained and distressing episode that had occurred when the children were in the car.  The mother maintained when put to her in cross-examination that she was scared of her husband and that she would generally speak and feel more comfortable if she had someone with her when she had to deal with him.  She maintained this notwithstanding matters that were put to her about some recent handovers to which I will refer later.

7. It is not suggested by the mother that, given the episodes of abuse and anger she has identified, the father is a risk to the children.  She does not suggest that he has been violent or verbally abusive to either of them.  The relevance of her evidence as to abuse, intimidation, and her fear of the father is, on her case, to explain why she felt she had no alternative but to leave Town A and remain in Adelaide without the children.  It explains her aversion to returning to Town A in the event that her application is denied.  To live in a small town in relatively close proximity to the father and coming into contact with members of his family with whom her relationship has deteriorated, is untenable for her.  At trial, her counsel made clear that this was the only basis on which she sought to rely on that evidence.

8. In addition to the above matters, the mother also points to the fact that she has a large circle of friends in Adelaide and a greater level of support because of the presence of her parents.  She is employed here and she has better prospects for future employment.  I note that the mother has made enquiries for the children’s schooling should they relocate here, and it seems clear that they would have access to adequate education.  Similarly, the mother’s proposals for future accommodation do not appear unreasonable.

9. The father’s response to these matters is that he denies having been habitually verbally abusive or coercive and controlling during the relationship.  As I have already noted, he denies the sexual coercion as alleged.

10. I had the opportunity to observe the mother giving evidence over the course of more than a day.  I have closely scrutinised her evidence.  She did not present as someone who was reconstructing events when she was challenged in cross-examination.  She impressed me as a straight forward witness who gave her evidence in a forthright manner.  There were some occasions upon which she was somewhat defensive, but that did not cause me to doubt her credit worthiness.  This is not a criminal trial and I am not required to adjudicate with respect to specific alleged acts of sexual misconduct on the part of the father, or to determine his mental state with respect to any specific episodes.  I am not required to make findings in relation to all matters alleged by a party.  Having said that, I am satisfied that from the mother’s perspective, there were occasions during the marriage, and after the point at which she told the father the relationship had ended, in which she genuinely believed she was acquiescing to the father’s unreasonable and unwanted sexual requests.  In that context, I am satisfied that the father engaged in conduct that was coercive and controlling.  I am satisfied, that as she has said, this has had a significant effect on her.  It is not necessary for me to make a finding any more specific than that.  I make no finding as to the frequency of the conduct or exact nature of any particular episode. I am satisfied that from the mother’s perspective, this is an issue which continues to affect her and supports her contention that it is unreasonable to expect her to reside in Town A in the future.  I accept her evidence that whilst she has been able to communicate with the father since separation, there are aspects of their prior relationship which cause her to feel uncomfortable in his presence and that on occasions she is fearful of him. 

11. It is clear that the mother has a close bond with the children and is child focussed. The fact that she was prepared to go through with her relocation to Adelaide knowing that the children would remain with their father in Town A rather than attempting to relocate to somewhere closer, for example (location omitted), provides some support for her position that there are substantial personal reasons preventing her from residing in Town A.  I accept that the period since her move to Adelaide has been one in which she has very keenly felt her separation from the children. 

Father’s reasons for opposing relocation of children to Adelaide

1. The father denied in his affidavit ever having told the mother that he did not oppose her relocating with the children from Town A to Adelaide.  He says that she was aware of his position prior to receiving the letter from his solicitor in December 2015.  In cross-examination his evidence was that he could not recall if he had told the mother that he would not stand in her way if she wished to relocate with the children and agreed that he might not have made clear to her his opposition to her moving with the children.  He told the Court that he does not like conflict and was unaware that she intended to resign her employment.  He had not contemplated that she would leave without the children.  His position was that he did not want the mother to leave. 

2. In his affidavit, the father acknowledged that the children were unsettled following the mother’s move to Adelaide but says that they began to flourish soon after her departure.  The father emphasised that since the mother’s departure he has altered his routine in order to make more time available for the children.  This has included attending less (sport omitted) training and changing his hours of work on Tuesdays.  He emphasised throughout his evidence that his work was flexible and that he could attend at events if required.  The father’s position was that the children are thriving at their present school notwithstanding some difficulties [Y] had with a teacher in 2016.  (omitted) 

3. The father characterises his relationship with the children as being very positive and says that he has a positive relationship with the teachers at their school and keeps himself informed of their progress.  On the father’s evidence, the children have a very strong and broad friendship group and in some ways this is attributable to the fact that the school is small.  The father has actively engaged in the school community, including being a member of the School Council for 5 years. 

4. A significant aspect of the father’s evidence and the submissions made on his behalf, was that the children have benefited greatly from the close knit community atmosphere provided by a small country town and that their social life has developed accordingly, being based to a large extent around sporting activities and the outdoors lifestyle.  In particular, he says that his son thrives on his involvement with the paternal grandfather’s (omitted) work and that he loves to see the (omitted).  The father is concerned that [Y] in particular will not adapt to life in Adelaide because his energy levels, interests, and personality have been indelibly shaped by life in the country. 

5. The father acknowledged that the children spend a significant amount of time being looked after by close family after school.  This is largely because of his work commitments.  His trial affidavit sets out the arrangements for after school care on Mondays to Fridays.  The routine involves the children spending time at the homes of his siblings and his mother.  Between Monday and Thursday he says that he generally collects the children at about 6pm.  In his trial affidavit, the father stressed that the closeness of their family means that the after school care arrangements are appropriate and each house has a structured routine.  In cross-examination, the father denied that there was a possible link between the children spending time in five different households and [Y]’s behaviour at school.  He did acknowledge that each household had somewhat different rules. 

1. On the father’s account, the children identify with Town A and when they return from Adelaide say they have missed having their own space and their pets.

2. One of the criticisms made of the mother in the father’s trial affidavit is that he has concerns about her being organised enough to care for the children on a full time basis.  He denies that she has done so previously and says that when in Town A she relied heavily on his and his family’s support to help care for them.  Of course, on his own account of events, he also relies heavily on the support of his family in order to care for the children.

3. An issue raised by both parties is the problem the children have experienced with bed wetting.  In my view, that issue is primarily significant because it demonstrates the difficulty both parents have had in communicating for the purposes of an effective co-parenting relationship.  The father makes the observation that his daughter wets the bed on the night before and after her mother visits the children in Town A.  The mother is critical of the father in terms of his ability to adhere to a regime for the children that addresses the bed wetting behaviour and that might assist to ameliorate it.  There is no evidence upon which I can be satisfied that the bed wetting behaviour of the children is attributable to the mother’s parenting and ability to cope or the father’s ability to maintain a consistent routine.  Rather, it seems to me as a matter of common sense that the ongoing difficulties they have in this regard are more likely a reflection of their unhappiness and uncertainty at the parent’s separation.

4. The father responded in his trial affidavit to those concerns raised by the mother that suggest there is a safety issue with respect to the children whilst in his care.  At the end of every relationship it is possible for a party, with relative ease, to identify and criticise a number of unfortunate or comparatively minor incidents involving the parental role of the other party and to combine those in a general expression of concern for the safety of the children whilst in that party’s care.  I am not satisfied that there is good reason to be concerned for the safety of the children whilst in the care of the father. 

5. During the course of cross-examination, the father conceded that Ms M had recommended the names of counsellors with whom he might consult for the purpose of enhancing his parenting skills.  He conceded that he had not done anything in this regard, but his evidence was that he is prepared to participate in such counselling if required by the Court to do so. 

Communication and handovers since separation

1. I have already commented on the parties’ post separation communication at the beginning of these reasons.  I will not detail all instances in which one party blames the other for difficulties in co-parenting communication.  The father’s criticisms include the mother’s over reliance on written communication and in particular letters from her solicitors.  The mother is critical of the father’s failure to respond to communications from her in a timely fashion.  She is critical that he did not tell her [Y] was having some counselling at school.  He is critical of her delay in and manner of informing him about the episodes that led to [Y] being taken by her to a psychologist.  I am not convinced that the parties do not have a capacity to effectively communicate for the limited purpose of informing each other of those matters necessary to facilitate an effective co-parenting relationship in the best interests of the children.  What is required is commitment, discipline and child focus.  I am satisfied that once these proceedings have resolved and arrangements for the children settled, the parties will be able to achieve this.  Nonetheless, in the interests of promoting the children’s best interests, it will be preferable if the parties limited the extent of their communications at the time of handovers.  A communications book may well assist in achieving this. 

2. The mother claimed to have at times felt intimidated and scared by the father during handovers.  She has described his manner as being at times being aggressive and abusive.  He denies this and the effect of his evidence is that he makes efforts to be as calm and rational as possible.  Whatever the correct situation is, the episode in which the father provided the mother with assistance in getting her to the (omitted) when she experienced vehicle trouble at the time of a handover suggests that there is an ability for the parties to conduct themselves appropriately in the best interests of the children.  Nonetheless, given the inevitable frequency of handovers (irrespective of what orders I make), and the mother’s expressed concerns, it would be preferable if all handovers were to occur in a public place. 

3. The father was critical of the mother for her delay in telling him about the episode when [Y] was found by her to be hitting his head on the floor and making self-denigrating comments.  Whilst the incident is concerning, there is no evidence to suggest to me that it is a reflection upon either the mother’s parenting skills or the father’s degree of commitment to caring for the children.  It seems to me to be an unfortunate response on the part of the child to the trauma of separation.  It did not seem to be an attempt by the child at serious self-harm.  I am not able to find that that episode weighs either for or against relocation.

Family Assessment Report – Ms M

1. Ms M interviewed each of the parties on two occasions and spent an equal amount of time with them.  Similarly, she interviewed both of the children on two occasions and observed play sessions between each of the parties and both of the children.  It is clear that Ms M considered carefully and attempted to balance the merits and flaws in the competing proposals.  Having noted the closeness between the children and each of the parents, Ms M made an observation that is applicable to many relocation matters:

   “Whatever happens next, the children are therefore left with a significant loss to adjust to.”

2. Ms M’ opinion was that the mother presented as emotionally attuned to the children and was in the best position to provide consistency of care on the basis that she is more available throughout the week to attend upon them than the father.  As a result, her conclusion was “there is therefore more consistent emotional and practical support for the children with Ms Paulson in Adelaide”.

3. Obversely, whilst the father is able to provide consistent care it is within the context of his extended family group.  Ms M acknowledged that if the children were to remain in Town A, there would be a stability of their lifestyle and present family and school connections.  She noted the father’s concession that it might be appropriate for the children to reside in Adelaide with the mother once they have reached middle school.

4. Ms Ms’ ultimate opinion was that it was preferable for the children to continue to reside in Town A until about the conclusion of the school year in 2017.  Her preference was for the mother to make arrangements to spend longer periods in Town A in order to meet the children’s need for stability of care and increased access to her.  Such a move would have the inherent advantage of allowing the children to pursue their relationship with their mother within the context of their current community.  It would also have the advantage of allowing [Y] to be “a more robust middle primary student before facing a move away from his father, paternal extended family, school and sporting community.”  Ms M acknowledged that if the Court accepted the mother’s claims as to family violence, this would be a difficult option to implement.  If it was not able to be implemented, Ms M’ opinion was that the children be relocated to Adelaide forthwith.

5. Central to Ms M’ opinion was the children’s immediate and longer term need to have an emotionally and practically available parent most of the time.  She was of the view that the mother’s present circumstances support her parental capacity to meet the children’s needs.

6. Ms M was of the opinion that both parents required assistance to improve their co-parenting.  With respect to the mother, she was of the view that she should continue consulting with Ms C.  As far as the father was concerned, she believed he would benefit from individual attendance upon someone skilled in Family Law matters.

7. In cross-examination Ms M indicated that having read the trial affidavits, she remained of the view that she considered individually both parents were good enough parents but the information still pointed towards the children living in Adelaide.  Wherever possible, it was preferable for children to relocate at the start of a year.  Whilst she was not critical of the father’s family, Ms M said that in any circumstances where there are numerous people providing care from time-to-time, a child can be vulnerable.  From her point of view she believed that the mother acted reasonably in difficult circumstances when she chose to relocate to Adelaide without the children. 

8. One factor that made Ms M’ assessment somewhat more difficult was that a questionnaire she sent to the children’s school was not completed by the school.  Apparently the school indicated that they would require court orders before they would do so.  Ms M had not encountered resistance from a school of that kind previously. 

9. Ms M confirmed in cross-examination that it was her strong view that the parties both needed assistance with respect to co-parenting.  To date she was of the view that they had not put the appropriate research into the topic and as a result did not have appropriate steps in place.  She felt that in this case, it was necessary for someone to give direct assistance to the parties in how they managed co-parenting.  Ms M said that her impression was that the level of criticism between the parties was a barrier to co-parenting and that it appeared that the father was more critical of the mother but in any event, both parties were critical of each other.  She did not regard that as completely unusual given the stage they were at post separation at the time of her meetings with them.

10. When asked about relocation and the impact on the children of relocation in general terms, Ms M responded that the limited data available suggests that most children cope well with relocation if they are given appropriate support.

11. Ms M conceded under cross-examination from Mr Childs for the father that if both parents could have access on a more even basis, then the first preference for the children would have been to stay in Town A. 

12. Ms M summarised her concerns as being the difficulties that have been shown in co-parenting communication, whether one parent has more of a capacity to provide continuity of care, and whether either parent has a capacity to cope in the other’s environment.  Her fundamental concerns were not about the capacity of either parent to care for the children.  Because she does not have a fundamental concern with the capacity of the parents to care for the children, the possibility of shared care does theoretically become a consideration subject to other matters such as communication, routine, consistency, and physical location.  When she indicated that co-parenting was something that could theoretically be considered, she clarified that she was referring only to the capacity of the parties to provide care for the children and not the broad range of factors that needed to be considered.

Equal shared parental responsibility

1. Section 61DA provides as follows:

   “(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

   (2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)family violence.

   (3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”

2. I am satisfied that there are reasonable grounds to believe that the father has engaged in family violence.  There are no reasonable grounds to believe that he has ever engaged in abuse of either of the children.  The basis of that belief as to family violence is my satisfaction that, to the limited extent I have already identified, the mother’s claims that she was subjected to unreasonable and unwanted demands on the part of the father for sexual activity is made out. 

3. I am satisfied that the presumption of equal shared parental responsibility does not apply, however I am not satisfied that it is in the best interests of the children for there not to be equal shared parental responsibility.  I accept the evidence of Ms M that there are no empirical concerns with respect to the capacity of either of the parents to care for the children.  Clearly the father loves the children and has done his best to be fully involved in their lives.  I accept that he takes an interest in their schooling, their health and their socialisation.  I think the children would benefit significantly from the input he could have through equal shared parental responsibility.  I am satisfied that there is no risk of harm to the children in either a physical or psychological sense in determining that there should be equal shared parental responsibility. 

Section 60CC(2)

1. There is no doubt that there will be a benefit to both children in having a meaningful relationship with both of their parents.  Neither party seeks to prevent the children from having a meaningful relationship with the other parent, on the basis of protecting the children from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.  I am satisfied that no need presents itself with respect to either parent to protect the children from physical or psychological harm.  I am satisfied the children will not be exposed to abuse, neglect or family violence in the care of either party.  Whilst I am concerned that the communication between the parties is still problematic, I think that need can adequately be addressed in the orders I will make.

Section 60CC(3)(a) – views expressed by the children

1. These children are still very young.  They have both expressed a preference to spend more time with their mother.  Neither of them seems to have a particular aversion to a relocation to Adelaide, indeed [X] spoke positively about the prospect.  I have no doubt that both of them would miss their family, activities and social ties in Town A.  However, I accept the evidence of Ms M that the children are not really old enough to have a real idea in their minds as to what relocation would mean for them.  It is clear however, that both children have a very strong attachment to their mother.  [Y] suggested that it would be his mother that he turned to for emotional support in the first instance.

Section 60CC(3)(b) – the nature of the children’s relationship with each of the parents and other relevant persons

1. Both parents have been critical of each other in terms of parenting style, the potential implications of mental health issues and the amount of hands on time each has had in caring for the children throughout their lives.  Nonetheless, it is entirely clear that both children have a close relationship with each of their parents.  It also seems clear that both children have benefited from the close relationship they have with their cousins in Town A, and that they are close to the father’s parents and siblings.  I accept the father’s relationship with his new partner had not at the time of trial been introduced to the children as anything other than a close friendship, but I note that there is nothing to suggest that the children do not get on well with her.

Section 60CC(3)(c)

1. Both parents have demonstrated their engagement in matters relating to the children’s health and wellbeing.  They have different views as to how issues such as bed wetting should be approached but I accept that they are both committed to participating in decisions impacting upon the long term interests of the children.  The mother has less involvement with the children’s schooling which is understandable given the distance involved, but I accept her explanation in cross-examination that she has made appropriate enquiries as to schooling in the event the children are permitted to relocate.  The father has clearly been closely involved with their school and educational issues.  He has demonstrated a clear commitment in involving himself with the children’s sporting activities.  He has made some effort to change his working hours in an effort to be flexible enough to attend at events like swimming carnivals from time-to-time.  The mother has consistently spent time with the children and had contact with them via Facetime since her departure from Town A.  In the circumstances, she has demonstrated a strong commitment to bridging the distance between Adelaide and Town A.  Whilst I have noted my concerns about the state of communication between the parties, neither has sought to actively frustrate the relationship of the other with the children. 

Section 60CC(3)(ca) – parent fulfilling an obligation to maintain the children

1. The father made a point in evidence of the fact that the mother has not contributed towards the expenses of the children whilst in Town A.  For her part, the mother says that she offered to pay, or make a contribution, towards health insurance.  This was not pursued by the father.  It appears on either version that the father has not actively sought for the mother to make a financial contribution to the upkeep of the children.  Further, the mother has had to re-establish herself here in Adelaide and is presently only working part-time.  She has of course had the expense of buying further items and clothing for the children to use whilst they spend time with her in Adelaide.  I am not satisfied that this issue is a matter that has great bearing on the facts of this case.  The father has borne a greater percentage of the costs of living for the children whilst they have been in his care.  I have no doubt that he will continue to contribute towards their care irrespective of the orders made in this matter.

Section 60CC(3)(d) – the effect of any changes in the children’s circumstances

1. A relocation from Town A to Adelaide would be a significant upheaval in the lives of the children.  I accept that they have strong attachments to the town and their community there.  They are close to their father and a relocation to Adelaide would no doubt involve at least initially a sense of loss in terms of the frequency of their contact with him.  Conversely, they have since the mother’s departure, experienced exactly that sense of loss with respect to her.  They clearly keenly feel the mother’s absence. 

2. In the event of a relocation, [Y] in particular would be likely to miss his contact with the paternal grandfather and the exposure he has had to farming and rural activities.  Both children would no doubt miss their grandparents with whom they have formed a close bond.  Conversely, they have not to date had the opportunity of developing such a close attachment to the maternal grandparents.  Whilst both children would no doubt miss other members of the extended family, including their cousins, that is not a matter that outweighs considerations with respect to their relationship with the mother.

1. I note the opinions expressed by Ms M and her assessment that in general terms most children deal well with relocation.  It is clear that at least in her opinion, these children would adapt, given appropriate support, to a relocation to Adelaide.  I note that she was clearly of the view that it was in their best interests that they be permitted to relocate.

Section 60CC(3)(e) – the practical difficulty and expense of spending time with the parents

1. As a result of the mother’s move to Adelaide, both parties have had to deal with the practical and financial aspects of her relocation.  On the mother’s case, the orders she promotes simply put back onto the father responsibility for dealing with the problems of distance occasioned by this matter.  The mother’s ongoing contact with the children, both in terms of spending time and via Facetime, have shown that from the children’s perspective, they are resilient enough to cope with the amount of travel required.  The mother’s circumstances in the past 18 months have shown that it is possible for the non-residential parent in this matter to have a meaningful relationship with the children.  In the event that I were to refuse the mother’s application, I have no doubt that she would continue to maintain her level of time and contact with the children.  On the other hand, in the event that I permit relocation, I am satisfied that the father has demonstrated a commitment to the children which means he will likewise do all things necessary to comply with any orders that I make as to his time and contact with the children.  Whatever order I make in this matter, there will be significant costs and practical difficulties for the party who is not the residential parent.

Section 60CC(3)(f) – the capacity of each of the children’s parents and any other person to provide for their needs

1. I am satisfied that the mother has the ability to provide for the needs of the children.  By virtue of her ability to provide a greater continuity of care, and the fact that she has previously been the primary carer for them, I am of the view that she is better placed than the father to provide for their emotional and intellectual needs.  This should not be seen as a criticism of the father.  I am satisfied that he is in a good position to provide for the needs of both children and that he is attuned to their emotional and intellectual needs.  I have seen nothing to suggest that, to the extent that he has assistance from his extended family to provide care for the children, that the extended family members are not able to adequately provide for the emotional and intellectual needs of the children at any time when they are in their care.

Section 60CC(3)(g) – the maturity, sex, life style and background of the children and either of their parents

1. The children are still young and it appears that at the time of the trial both were still coming to terms of the separation of the parents.  It seems to me that this was reflected not merely in some of the comments they made to Ms M, but that it has possibly also been reflected in the ongoing bed wetting issues they have experienced.  Similarly, it seems most likely that the unusual and troubling episode the mother described with respect to [Y], and which necessitated some psychological counselling, was most likely a manifestation of the difficulty he has had adjusting to the changing circumstances.  I am not able to make a finding to that effect in the absence of expert evidence on the point, but there would be some logical force to that conclusion.  Both parents are mature adults with stable family backgrounds and essentially healthy lifestyles.  I will not comment further on the need for them to develop a positive co-parenting relationship.

Section 60CC(3)(i) – the parent’s attitude to the children and the responsibilities of parenthood

1. It is quite apparent that both parents love and cherish the children.  I am satisfied that both of them understand the responsibilities of parenthood.  They have demonstrated their commitment to and understanding of those responsibilities in different ways and at times in a manner that no doubt reflects the different stressors that they have felt since separation.  The only reservation I have is that matter in which I have mentioned on a number of occasions.  It is essential in order to properly acquit the responsibilities of parenthood that the parties develop an effective co-parenting relationship.  The co-parenting arrangement will be in place for many years.  It must be understood by the parties that a failure to do so might have an effect, in a way not even apparent to them, on the development of the children and their basic sense of happiness and security. 

Section 60CC(3)(j) – any family violence issues

1. I will not comment further on the matters of family violence raised by the mother.  As far as the mother’s evidence about the demeanour and at times angry manner of speech of the father at handovers, is concerned, I am satisfied that these matters can be addressed by both parties receiving assistance with the development of an effective co-parenting relationship.  There is no allegation of family violence that directly involves a child of the marriage with the exception of the mother’s admission that on one occasion she slapped [Y] across the face.  Whilst this was completely unacceptable behaviour, I am satisfied that it occurred in the isolated context of a very difficult period in the marriage from the mother’s perspective.  I accept her evidence that she was deeply ashamed of that incident and that there is most unlikely to be a repetition of it.  Similarly, the mother’s admission that she punched the father on one occasion occurred in a similar context.  The family violence alleged by the mother against the father, whilst serious, nonetheless occurred within the dynamic of their married relationship.  I accept that the mother says that from her perspective, she is still dealing with those issues and this at times affects her communication with the father and how she feels about being in his presence.  I do not regard the father as an ongoing threat to the mother in terms of the type of conduct she identified given the end of the relationship and the change in the dynamic between them. 

Section 60CC(3)(l) – whether it is preferable to make orders to avoid further litigation

1. The orders I make in this matter are final orders and it is intended that they be adhered to by the parties.  Once again, the ability of these orders to reduce the likelihood of further litigation will in large part depend upon the willingness and ability of the parties to develop an effective co-parenting relationship.  I am satisfied that both parents have a desire to do so but as I have noted, they require assistance in this regard. 

Conclusion

1. The report of Ms M supports relocation on the basis of continuity of the children’s care and the mother’s ability to cater for the emotional and intellectual needs.  The Court is not bound by the opinion of an expert.  I have found Ms M’ opinions, expressed in both her report and in oral evidence, to be balanced, well-reasoned and tempered with an appropriate degree of caution.  I was impressed by her evidence.  Her opinions and recommendations accorded, to a large extent, with the views that I have formed after considering the evidence.  I give her opinions and recommendations considerable weight.  I have concluded that it is appropriate to permit the children to relocate from Town A to Adelaide and to reside here with the mother.  I am satisfied that in doing so, it will be possible for the father to maintain a meaningful relationship with both of the children.  They will clearly be able to maintain a meaningful relationship with the father’s extended family.  I accept that there will be a period of adjustment for the children and that removal from their community will be a significant change of circumstance for them.  They will miss the town, their friends, their extended family and their father.  It will be possible for them to maintain a significant connection with their former lives there.  I accept the opinion of Ms M that, particularly in the case of [Y], the children should be permitted to finish the current school year in Town A.  In concluding that it is appropriate to permit relocation, I am of course making a finding that I regard it in the best interests of the children having regard to the objects and principles underlying the Family Law Act and the considerations identified in s.60CC.

2. The school year ends in mid-December.  Given the significant change in the lives of the children that will be effected by these orders, I am of the view that it would be preferable for them to spend this Christmas in Town A, irrespective of any other arrangements or rosters agreed on by the parties.  This will give them a fresh start in the New Year.  The arrangements I have ordered for the 2017/2018 Christmas school holidays differ in structure and time for the father from the arrangements for 2018/2019 and thereafter.  This is to allow the children a somewhat longer period to settle in to the relocation to Adelaide.  I regard that as being in their best interests.

3. I turn to consider the question of the children spending equal time or substantial and significant time with each parent.  For the reasons I have already identified, I am satisfied that it is not in the best interests of the children to spend equal time with each of the parents at this point in their lives.  They require a settled routine and more continuity of care at this point of their lives.  In any event, for the reasons I have identified, it would not be reasonably practicable.  It would be in the best interests of the children to have substantial and significant time as defined, with each of the parents but it is not reasonably practicable that the father have substantial and significant time with the children.  I am satisfied that the orders I will make will promote a meaningful relationship between the father and the children.

4. I make the orders to be found at the beginning of these reasons.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 27 October 2017