PAYNES & DONALDSON

[2015] FCCA 2649

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAYNES & DONALDSON [2015] FCCA 2649

Catchwords:
FAMILY LAW – Parenting orders – relocation – consideration of s.60CC(2) of the Family Law Act 1975 (Cth) factors – mother permitted to relocate the residence of the children – children to spend significant and substantial time with their father.

Legislation:

Family Law Act 1975 (Cth), s.62G

Applicant: MR PAYNES

Respondent: MS DONALDSON

File Number: MLC 1645 of 2015

Judgment of: Judge Hartnett

Heard at: Geelong

Hearing dates: 29 and 30 July 2015

Delivered at: Melbourne

Delivered on: 28 September 2015

REPRESENTATION

Counsel for the Applicant: Mr Hogan

Solicitors for the Applicant: Coulter Roache Lawyers Pty Ltd

Counsel for the Respondent: Ms Bonney

Solicitors for the Respondent: Arundell Murray & Ryan

ORDERS

1. The children X born (omitted) 2007 and Y born (omitted) 2009 (‘the children’) live with the mother.

2. The children spend time and communicate with the father as follows:-

   (a)during school terms in 2015 from after school on Friday until 6pm on Sunday, or 6pm on Monday if the Monday is a public holiday, for consecutively three out of four weekends;

   (b)during the December 2015/ January 2016 school holidays for two weeks commencing at 3pm on Christmas Day 2015 and concluding at 3pm two weeks later, together with a further one week period commencing at 3pm on 15 January 2016 and concluding at 3pm on 22 January 2016;

   (c)during school terms from 2016 onwards from after school Friday until 6pm on Sunday, or 6pm on Monday if the Monday is a public holiday, each alternate weekend commencing the first weekend in term one;

   (d)during all school terms holidays commencing in 2016 for one half of same to commence at 12noon on the first Saturday and conclude at 6pm on the middle Saturday;

   (e)in each Christmas/January school holiday period commencing 2016/2017 for four weeks, comprising two, two week blocks with such time to be at the written election of the father in 2016/2017 and each alternate year thereafter, and at the written election of the mother in 2017/2018 and each alternate year thereafter, with each party to provide the other with at least three months’ notice of such election;

   (f)if the children’s birthdays fall when they are in the care of the mother, then on each of their birthdays for three hours, and in the (omitted) area. If the children are at the time in the care of the father, then they shall spend three hours with their mother and in the (omitted) area;

   (g)on Christmas Eve at 3pm until Christmas Day at 3pm in 2016 and each alternate year thereafter;

   (h)on Christmas Day at 3pm until Boxing Day at 3pm in 2017 and each alternate year thereafter;

   (i)the time in sub-paragraphs (g) and (h) of this Order is a 24 hour period to be included in the total period of time the children spend with their father as provided for in sub-paragraph (e) of this Order;

   (j)in the event that Father’s Day falls on a day when the children are living with the mother, the children spend time with the father at such times as may be agreed between the parties and in default of agreement from 4pm on the Saturday preceding Father’s Day to 4pm on Father’s Day;

   (k)by telephone at all reasonable times with the father to instigate the call and the mother to make the children available; and

   (l)as otherwise agreed in writing between the parties.

3. In the event that Mother’s Day falls on a day when the children are in the care of the father, the children spend time with the mother at such times as may be agreed between the parties and in default of agreement from 4pm on the Saturday preceding Mother’s Day to 4pm on Mother’s Day.

4. The parties share the transportation of the children such that the father collect them at commencement of time spent with from school, or elsewhere in (omitted) as agreed in writing, and the mother collect them at the conclusion of time spent with from an agreed location in (omitted) or otherwise as agreed in writing.

5. The mother authorise the children’s school to provide to the father, at the father’s expense, information in relation to the children’s education, including but not limited to school reports, school photography order forms and notices.

6. The parties each immediately inform the other of any serious illness or injury sustained by the children whilst in their care and further provide any particulars of any treatment received by the children together with the name and address of the treatment provider and/or location at which the children are patients.

7. The parties each notify the other of any change of address or telephone number within 24 hours of such change.

8. The parties each attend a Parenting After Separation Program in the next twelve month period.

9. The children continue to attend the (omitted) College unless the parties agree otherwise and in writing.

10. The mother is restrained from removing the place of residence of the children beyond the (omitted) area, save for to be closer to (omitted), without the written consent of the father being first obtained or court order.

11. Otherwise all extant applications are dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1645 of 2015

MR PAYNES

Applicant

And

MS DONALDSON

Respondent

REASONS FOR JUDGMENT

1. These proceedings were instituted by the father in March 2015. He sought by way of final order, at that time, that the parties have equal shared parental responsibility for the parties’ children X born (omitted) 2007 (now aged eight years) and Y born (omitted) 2009 (now aged six years) (‘the children’) and that such children live with him. At trial in July 2015, he sought the same orders. The mother consented to the father’s order sought that the parents have equal shared parental responsibility for their children, not rebutting the presumption as set out in the Family Law Act 1975 (Cth) (‘the Act’). Such order was made as a final order on 29 July 2015. Otherwise the mother sought the parties’ children reside with her, as they had mostly done since separation. Time spent with, for the non-resident parent, was initially not formulated with great particularity by the parties, save that they agreed on substantial and significant time. Ultimately, the father sought three out of four weekends during school term from Friday after school to Monday morning and something more than one half of the school holidays. The mother sought alternate weekends from Friday to Sunday and one half of the school holidays. The father wished for a continuation of the mother doing all the travel in relation to the children moving between their respective households but agreed, during the trial, that could be shared between the parties. The father sought for the children to attend the (omitted) Primary School whilst the mother sought orders that they continue their attendance at (omitted) College which caters for years from preparatory to year 12.

2. Statements of fact in these Reasons are findings of fact on the balance of probabilities.

3. In these proceedings, the mother relied upon the following affidavit evidence:-

   a)her Affidavit affirmed on 12 February 2015 ;

   b)her Affidavit affirmed on 23 July 2015; and

   c)the Affidavit of Mr R sworn on 28 July 2015.

4. In these proceedings, the father relied upon the following affidavit evidence:-

   a)his affidavits affirmed on 16 February 2015 and14 July 2015;

   b)the Affidavit of Ms A affirmed on 15 July 2015;

   c)the Affidavit of Mr W affirmed on 15 July 2015; and

   d)the Affidavit of Ms L affirmed on 15 July 2015.

History

1. The father was born on (omitted) 1986. He is now aged 29 years. The mother was born on (omitted) 1988 and is now aged 27 years.

2. The parties commenced their cohabitation in 2005 when the mother was 17 years old and the father 18 years old. They separated five years later in April 2012. At commencement of cohabitation, the father moved into the mother’s rental home in (omitted). In the following year the parties moved to a location between (omitted) and (omitted) ((omitted)). In (omitted) 2007, they moved to (omitted), and then in September of that year, as a consequence of the father’s driving licence being suspended, the parties moved back to (omitted). They then, in late 2008, moved to (omitted) where they remained living until separation.  Upon separation the father left the parties’ rented home in (omitted), and commenced to reside in his parents’ home, some 15 kilometres away from the mother and children’s home. He and the mother agreed as to his spending considerable time with the children who were not, at that stage, attending school. Some five months later the father obtained rental accommodation in (omitted), and he moved into same in (omitted) 2012. He commenced to reside in a de facto relationship with Ms A. At around the same time, the mother and children relocated their residence to a further rental premises in (omitted) via (omitted), approximately 75 kilometres from the father’s new residence. X subsequently attended (omitted) College. The mother’s move was precipitated by her desire to be closer in geographical terms to her boyfriend, Mr R, who lives in (omitted), a town located approximately 145 kilometres from (omitted). The father claims, contrary to the mother’s evidence, that the mother made such move without his knowledge or consent.  I prefer the evidence of the mother as to her move to (omitted) which is as follows. In (omitted) 2012, she informed the father that she proposed to move from (omitted) to (omitted), being a distance of some 64 kilometres from (omitted). Further that ultimately, she proposed to move to (omitted) to be close to Mr R. This discussion occurred approximately two weeks before the mother in fact moved with the children to (omitted). The father did not oppose the move and the parties shared the travel between their respective homes and X’s school in (omitted). I am satisfied that the father was well aware that the mother sought to be closer in geographical location to Mr R, and further that such desire would require her move to (omitted) in the years to follow. She never withheld her expression of that desire from the father. She indicated that obtaining suitable and financially possible, for her and the children, accommodation in (omitted) was difficult. The mother was also, at that time, accommodating the father’s wishes to be nearer to the children.

3. Consequent upon the mother and children’s move, the father presented the mother with a Parenting Plan which she signed on 1 November 2012. The Parenting Plan was to be reviewed by the parties on 3 January 2013. The parties however extended the review date to 27 March 2013 and, on 30 January 2013, they varied the plan as to changeover arrangements. The father documented such changes and presented same to the mother to sign. From late March 2013 until the making of consent orders in the Magistrates’ Court at Geelong on 4 September 2013, the parties generally operated in accordance with the Parenting Plan, although there were disputes between them. The Orders made, by consent, in September 2013 provided for the children to live with their father in a four weekly cycle for 12 out of 28 nights. Following the making of those Orders and in October 2013, the father emailed the mother advising that he and Ms A were moving from (omitted) to (omitted). The parties made slight variation as to changeover arrangements to accommodate this move. The children’s time spent with their father proceeded generally in accordance with the orders, although there were times the children were not made available by the mother for particular reasons, which generally involved activities for them. Likewise, there were times when the father was unavailable. Commencing in May 2014, the father sought to spend less time with the children due to his work commitments and personal issues. In July 2014, he informed the mother that he and Ms A had separated in the preceding month. In about early September 2014, the father was experiencing some difficulties with an increased work load. He proposed to the mother, and she accepted, that his time spent with the children be rearranged. He claims he proposed this as a temporary arrangement from September 2014 to December 2014. He gave up his three nights with the children in week one of a four week cycle, and instead had the children from Friday after school to Monday before school in week four, when ordinarily he would not have had the children in his care at all. In fact, the arrangement occurred on two out of four possible occasions as school holidays intervened. The effect of the changes was that the father increasingly had weekend, and some holiday time with the children, and they were with the mother at all other times.

4. Following the making of the consent orders in September 2013, the father moved from (omitted) back to (omitted), being approximately 15 kilometres further away from the mother’s then residence in (omitted). On (omitted) 2015, having informed the father at least by (omitted) 2014 of her intention, the mother moved her residence, and that of the children, to (omitted). The mother enrolled the children in the (omitted) College. She proposed to the father a changeover place of (omitted) in respect of the transportation of the children, and time spent with between the children and the father to be each weekend from 5pm Friday until 8am Monday.

5. The parties’ respective residences became 145 kilometres apart. The Orders made on 4 September 2013 became incapable of operation in the best interests of the children, given the geographical distance between the parties’ homes. They were not practicable. The children needed to live primarily with one of their parents. In fact the Orders made 4 September 2013 had not been operating in their terms, by agreement between the parties, for some time, in any event.

6. The parties returned to Court. On that occasion, no consent orders were entered into. Magistrate Coghlan in the Geelong Magistrates’ Court ordered, on 18 February 2015, that the matter be transferred to this Court. He further ordered, until further order, that, in essence, the children live with their mother and have contact with their father on the first, second and fourth weekends of each month from 5.30pm Friday until 5pm Sunday, together with half the school holidays and special occasion times.

7. On 25 May 2015, Judge McGuire ordered the preparation of a Family Report pursuant to s.62G of the Act.

8. On 30 July 2015, at the conclusion of the final hearing, the following Orders were made on an interim basis to secure the parental care of the children:-

   “(1) The children X born (omitted) 2007 and Y born (omitted) 2009 (“the children”) live with the Respondent mother.

   (2) The children spend time and communicate with the Applicant father as follows:-

   a. during school terms each alternate Friday commencing from after school until 5pm on Sunday with the Applicant father to collect the children from their school at commencement and the Respondent mother to collect the children from the Applicant father’s residence at conclusion;

   b. during the September/October 2015 school holidays for 8 days commencing on the first Saturday of the holidays at 10am and concluding at 6pm 8 days later. The Applicant father to collect the children from the Respondent mother’s residence at commencement and the Respondent mother to collect the children from the Applicant father’s residence at conclusion;

   c. in addition to the above time spent with periods, the children are to spend two further weekend periods with their father at the times specified with such weekends to be at the election of the Respondent mother if no agreement is reached between the parties and notice of same is to be provided by the Respondent mother in writing to the Applicant father at least three days before any proposed weekend;

   d. by telephone at all reasonable times with the Applicant father to instigate the call and the Respondent mother to make the children available; and

   e. as otherwise agreed in writing between the parties.”

9. Following the separation of the parties, each of them re-partnered. In (omitted) 2012, as earlier referred to, the father moved from his parents’ home to a rental premises in (omitted) where he commenced cohabitation with Ms A. He and Ms A had commenced their relationship just prior to the parties’ separation. The mother also commenced another relationship, albeit she did not commence a de facto relationship. She continues to reside with the children alone. Her new partner is Mr R, as earlier referred to. Whilst the mother is not living with Mr R, she has in a two stage process, moved into his geographical area by first moving with the children to (omitted), a small town approximately half way between the father’s residence and that of Mr R, and then subsequently to the (omitted) area.

10. The father and Ms A have in fact now resumed their relationship and cohabitation. In May 2015 their cohabitation resumed. They agreed on a resumption of their relationship in (omitted) 2015 on the father’s evidence. The father however had deposed in his Affidavit affirmed on 16 February 2015 that he was “still separated from Ms A”.

Other evidence

1. Ms A was cross-examined in the proceedings. She is aged 32 years. She works in (omitted) full-time as a (occupation omitted) and for nine days a fortnight. In each of those days she works very long hours, and although I accept she has a loving relationship with the children, she is not available to assist the father, who himself is employed, in his care of the children between 6.30am and 6pm. In addition, Ms A, as is the father, is very involved in (hobby omitted), and is national treasurer of the relevant organisation. This involves one weekend away a month with competition events and one further day a month, being on a weekend, in local club activities.  She and the father have taken the children to some of those day time competitions, and they propose to continue doing so into the future. The one weekend a month away is far more problematic with the children.

2. Mr R was also cross-examined in the proceedings. Mr R works for (omitted) in (omitted) as a (occupation omitted). He has been so employed since (omitted) 2011. He plans to purchase land in the (omitted) area to farm. He and the mother determined that they would not live together before the children had developed a strong bond with him. The children have now done so. Further, Mr R is desirous of providing a home for the mother and children, and wishes to be sufficiently financially capable of doing so. He is not yet at that stage. Mr R and the mother mutually support each other and Mr R impressed, in the witness box, as being supportive of the father’s relationship with his children. I accept his evidence that he does not seek to replace the role of the children’s father. He has concentrated on establishing a strong friendship with the children, whereby they can rely on him, be cared for by him, and are happy and comfortable in his presence. He is a solid presence in the mother’s life, both financially and emotionally.

3. Affidavits of evidence were affirmed by the paternal grandparents. They recently sold their farm at (omitted) and have moved into a large home in (omitted). They support their son’s application for primary care of the children, and deposed to being available to assist in the care of the children where necessary. Following the striking out as inadmissible of a number of paragraphs in each of their affidavits, neither grandparent was required for cross-examination. I accept their evidence that they have observed Ms A to have a good relationship with the children. I also accept their evidence that they are part of, and have themselves, a large and loving family who reside in the (omitted)/ (omitted) surrounds. On the occasions that they visited the parties prior to their separation, it was their observation that their son did more of the household tasks and child caring activities. Those times, of course, are historical and were limited, as were their observations.  I give them little weight. It was concerning that Ms A had provided them with a copy of Ms B's Family Report. Whilst that should not have happened, I accept there was a genuine misunderstanding. The Family Report noted that neither the mother nor father raised with the report writer any issue of risk for the children in either parents care. She recommended the children live with their mother. The grandparents swore their affidavits after the release of the Family Report, and sought to establish risk issues for the children whilst in the mother’s care. They have not interacted in any meaningful way with the mother, in company with the children, for three years. They have never raised any concerns with the mother about the welfare of the children in her care. They have never offered to care for the children on the basis that either of them had any perceived concern for the welfare of the children whilst in the mother’s care. Nor has the father until after the commencement of the proceedings, nor Ms A. This did them no credit, and no doubt has damaged further their relationship with the children’s mother. 

Family Report of Ms B, Psychologist and Regulation 7 Family Consultant

1. Ms B's Family Report is dated 4 July 2015. It was introduced into evidence in the proceedings. Ms B interviewed each of the parents; the children; Ms A and Mr R. She observed the interactions of the children with their parents. Ms B was cross-examined as to her evidence by each of the parties.

2. Ms B’s recommendations are that the children remain living with their mother and that their mother should be supported to live in (omitted)/ (omitted). She further recommended, at page 18 of the Family Report, that:-

   “3. If sole parental responsibilities are supported then Ms Donaldson should keep the father informed of matters pertaining to the children’s care, welfare and development

   4. If shared parental responsibilities are upheld then Ms Donaldson should be able to make decisions in the absence of agreement with Mr Paynes

   5. It is recommended that the children continue to spend time with their father three weekends in four for the duration of 2015 and for half the school holidays and up to three weeks in the summer holidays 2016

   6. In 2016 it is suggested that time be reduced to alternate weekend from Friday to Sunday and half school holidays and extended time on public holidays and special days”

3. Ms B noted the mother moved to (omitted) in (omitted) 2015 to be “closer” to her partner of three years, Mr R (aged 24 years). Whilst the mother remains not residing with Mr R, it is the mother and Mr R’s intention to reside together in the future as conveyed to Ms B. They had proceeded slowly in introducing Mr R into the children’s lives. Ms B noted the mother was not employed and available to parent as she had been, in fact, since the children’s birth. The children she noted were enrolled at (omitted) College in 2015 with X in Grade 2 and Y in preparatory class.

4. In her Evaluation Ms B said, relevantly, as follows:-

   “37. This matter concerns X (aged 8 years 2 months) and Y (aged 6 years 2 months). It is apparent that the children are well-loved by their father and their mother, their respective partners and extended family members. X and Y love both parents in return. They have formed a close and connected relationship with their father’s partner, Ms A, and a familiar bond with their mother’s partner, Mr R. Both children present as developing in accordance with expectations.

   38. The issue for consideration relates to the children’s living arrangements. Where they live and who they live with and the time they spend with the other parent. While Mr Paynes and Ms Donaldson present as having different parenting values and approaches, there does [not] seem to be any genuine safety or risk concerns for the children in either parents care. Following separation and for the last three years the parents implemented living and time arrangements that allowed the children to maintain close relationships with their mother and with their father. X and Y have benefitted from having both parents significantly involved in their care and upbringing.

   39. Unfortunately the mother’s decision to relocate to (omitted) / (omitted) with the children without the knowledge and consent of the father has caused difficulties which in turn has impacted on the children. The distance between the two homes now militates against the workability of the former shared arrangement which allowed both parents to be meaningfully involved in the children’s lives. The children will need to live primarily with one parent and spend time with the other parent. Time during the school week will not be possible in the current circumstances.

   40. While Ms Donaldson's reasons for living in (omitted) / (omitted) are perhaps understandable, it seems apparent that her decision was motivated by self-interest. It was not a child focussed decision. Ms Donaldson showed a level of disregard for the children’s rights and the father’s parenting role when she determined to relocate. While Ms Donaldson presents as the type of person who will take decisive action and do what she wants regardless of the impact on others, this is not to say that she has not been supportive of the children’s relationship with their father in the last three years. While the distance is significant it is not prohibitive and will allow opportunities to maintain and nurture relationships between the father and children. There is no reason to suspect that she will not continue to support time and a relationship with Mr Paynes.

   41. There are no identifiable risks to the children in the care of Ms Donaldson. The mother has attended to the children’s range of needs over many years and strong bonds have been formed between them. Ms Donaldson presented as a capable parent. While the children report they do not like the new arrangements, they present as relatively robust children who are friendly, sociable and developing in a normative manner. If they remain living with Ms Donaldson and in the (omitted) / (omitted) area X and Y will likely adapt and settle in (omitted) with their mother and at (omitted) College in time.

   42. If the children live with Ms Donaldson and in (omitted) / (omitted) it is reassuring to know that they are of an age and with sufficient developmental maturity to retain an image and memory of their father despite spending less time with him. Provided they spend sufficient time together then this important relationship will remain close and bonded into the future.

   43. There are disadvantages for the children in having relocated to (omitted). Mr Paynes' and Ms Donaldson's capacity to collaboratively parent the children and for both of them to be involved in pertinent aspects of their care and upbringing is now limited. The distance between the two homes militates against the workability of a shared parenting arrangement. How the parents can effectively share parenting responsibilities is unclear. It might be that the parent with whom the children live will need to retain sole parental responsibilities conditional upon them keeping the other informed of child related matters.

   44. If the children live with Ms Donaldson and in (omitted) / (omitted) then their relationship with their father will be affected. The children miss their father. Over time there is a risk that diminished accessibility to Mr Paynes will cause the father/children relationship to become distant and unfamiliar. The distance between the two homes will limit Mr Paynes' capacity to be involved in the children’s school and out of school activities. To buffer this possibility the children will need to spend as much time as practicable with their father.

   45. The last six months of their lives have been challenging for X and Y due to them having to embrace a complex array of events. It has not helped that their parents are in conflict. They need time to settle and adjust to their new residence and school. To remove them from their mother’s care and place them with their father at this point would risk further unsettling them. They would be required to adjust to different living arrangements and attend a different school. There is no clear benefit to the children of causing such a significant change in living arrangements and reducing their time with Ms Donaldson. Neither child presented as having the developmental maturity to manage such a significant lifestyle change at present.”[1]

   [1] Family Report dated 4 July 2015 and prepared by Ms B at [37] to [44] and [45].

5. Under cross-examination, Ms B was not swayed to alter her recommendations. She gave evidence that the mother was a person who was practically orientated and that the father was emotionally orientated. This caused them to have different parenting values. She observed the mother to be committed to retaining the children’s relationship with their father, it being a relationship she had supported. At times the mother being “solution focused” has ignored the father’s necessary participation in elements of the children’s lives Ms B determined, but she did not consider this intentional on the mother’s part. Her view was that both parents would benefit from a Parenting After Separation Course to have a clearer understanding of the impact of their communication upon the children, and the need for each to support the other’s relationship with the children in a practical and emotional sense.

6. Ms B also was of the view that the children had not been “coached” by either parent, contrary to the evidence of Ms A. She saw it in the best interests of the children, particular in the winter months, and given the distance required to be travelled which could be rather exhausting for them, to cease any spend time period with their father on the night before school started, rather than on the morning of school. She also gave evidence that the father should have a smaller block of continuous time in the long Christmas vacation, perhaps two or three weeks, given the young ages of the children. Her evidence was further the children needed to spend some weekend time in their home environment of (omitted).

7. I accept the recommendations of Ms B, which when taken with the totality of the evidence, promote the best interests of the children on the facts in this matter.

Move to (omitted)

1. As to the mother’s move to the (omitted) area, I find it necessary to add the following particular findings. The father telephoned the mother on (omitted) 2014 to discuss her Facebook posts advising of her intended move to (omitted) (she had in fact commenced such posts in (omitted) 2014 but the father claimed to be unaware of that, even though he followed her on Facebook). An argument ensured. The father expressed his lack of agreement to the move, and the mother tried to explain to the father that her accommodation remained unconfirmed. In fact, she found out about a possible house on (omitted) 2014 and had confirmation of her ability to reside there on (omitted) 2014. She had planned to advise the father of her intended move in person on (omitted) 2015. 

2. In January 2015 and at changeover, the mother approached the father to discuss her intended move. The father said words to the effect “you’re not moving with my children”.  The mother was distressed by the exchange, as no doubt was the father.

3. On 15 January 2015, the mother delivered the children to the father’s home for his holiday time to be spent with the children. The mother approached the father to talk about her move to (omitted). The parties argued with the mother yelling or screaming at the father, relevantly, words to the effect:-

   “You are ruining my life…”

   “Why are you making this so difficulty?”

   “Why won’t you allow me to go to (omitted)?”

   The father noted the mother also appeared to be crying. The father responded that he was not stopping the mother going to (omitted), rather he was not going to let the children go. What happened thereafter, as described by the father, in his Affidavit affirmed on 14 July 2015, is:-

   “105. I then said words to the effect, “Ms Donaldson, if you don’t go I will call the police”.

   106. I had my mobile phone with me and in her presence I made a call to 000 and walked back to the house.

   107. As I did so, I saw the Respondent Mother stand up and walk out of the back yard. I then saw her get into her motor vehicle. I saw her start her car and leave the premises. When I saw here (sic) get up and walk from the back yard, I cancelled the phone call before the operator had answered.

   108. However, shortly afterwards, I received a telephone call back from the police in response to my telephone call. At this point I was inside my residence. I was in the process of explaining to the police why I had made the call when I observed the Respondent Mother enter my residence through the back door. She called out loudly to X who then came out of her bedroom. The Respondent Mother then picked X up and called out to Y. Y then came out of the bedroom and moved over to stand beside me.

   109. In one hand I was holding my mobile phone talking to the police and I placed my other hand on Y.

   110. The Respondent Mother then attempted to pull Y away from me and I briefly tried to hold her back.

   111. As I did so, I attempted to explain to the police what was happening and, on their advice, I ceased to resist the Respondent Mother pulling Y away from me and removing them from my residence.

   112. I watched the Respondent Mother put the children in the car and drive away.

   113. On the advice of the police I then contacted my solicitor who I understand made arrangements by telephone for the Respondent Mother to return the children into my care the following day, 16 January 2015.

   114. The Respondent Mother did, in fact, return the children to me the next day and they then spent the balance of the ordered time with me without further incident. I returned the children to the Respondent Mother at her residence on 22 January 2015.”

4. The mother deposed, at paragraphs 26 and 27 of her Affidavit affirmed on 12 February 2015, the following, as to what occurred on 15 January 2015:-

   “… The Applicant Father shouted words to the following effect, “Get out, go.” The Applicant Father then said words to the following effect, “I am going to have to call the cops.” I observed the children were distressed, X started to cry. I did not want the girls to be distressed or witness the police attending, so I left the Applicant Father’s premises. Shortly after I left, I was still worried about the children. I returned to the Applicant Father's premises and collected the children. I thought that it would be best for the children if the Applicant Father had an opportunity to calm down. When I returned with the children, I let the children alight from the car at which time the Applicant Father ran towards the vehicle and shouted at me in the presence of the children, “you can’t leave now, police are going to come and take you away in cuffs.” I locked my car door. I realised that the Applicant Father had not calmed down and I left and contacted the (omitted) Police. I was informed that the (omitted) Police could intervene if the children were at risk. I returned to the Applicant Father’s home as I decided that it was not in the best interest of our children to leave them with the Applicant Father while he was in a heightened state of anger. When I arrived, the children ran towards me, the Applicant Father attempted to block the children from exiting the home. I picked up X and the Applicant Father grabbed onto the child’s arm. The Applicant Father then released the child’s arm and I returned to the vehicle with both children and returned to my Mother's home in (omitted). I then attended the (omitted) Police station and informed police of what had occurred. I accept that the conduct of the Applicant Father and myself on this occasion was inappropriate in the presence of the children. Later that evening I attempted to contact the Applicant Father to resolve the matter by telephone and make arrangements to return the children to him so he could spend time with them. The Applicant Father raised his voice on the telephone and said, “That’s a cop out, it’s your fault I’m stressed.” The Applicant Father then hung up the telephone.

   27. On or about 16 January 2015 I received a telephone call from the Applicant Father’s solicitors directly and made arrangements to take the children to the Applicant Father’s home that afternoon at 4.00pm. The Applicant's solicitors asked me if I intended to proceed with the move to (omitted). I was so distressed by the events the day before that I replied with words to the following effect, “No. Not now.” At the time, I felt I needed to respond in a manner that would calm the Applicant Father down before he spent time with our children later that afternoon.”

   The father’s involvement of the police was most unfortunate. I accept that he shouted in the presence of the children that their mother was going to be taken away in “cuffs”. I accept that he was out of control and that the mother acted to protect the children. I accept both parents could have handled this situation better. It was a particularly low point in their dialogue. It was also the first time that the mother had remained firm about what it was she wished to do in the face of the father’s controlling behaviours.

5. On Wednesday evening, 28 January 2015, the father became aware the mother had moved with the children to (omitted). He did not consent to such move. He did however know the mother intended to make the actual move prior to the time at which she did. By text sent on 28 December 2014 she indicated the move would not occur “till the 24^th Jan [2015] depending on when (omitted) school starts…” The mother further informed the father that she had enrolled the girls in the (omitted) School. Again, he did not consent to this arrangement. The father then sought urgent orders from the Geelong Magistrates’ Court seeking for the children to live with him. He was not successful in that interim application and the Orders of 18 February 2015 were made. Those Orders provided, until further order, for the children to live with their mother and also provided for the mother to do all the travelling between (omitted) and (omitted). Thereafter, the parties’ communication severely deteriorated. It was reduced to text communication, and there became limited cooperation between them as to matters pertaining to the children. The mother stopped engaging with the father other than in the most minimal way. From her perspective, not unreasonably formed, communication produced conflict.

6. The father, at trial, was critical of the mother’s accommodation in (omitted). The mother’s evidence was that it was “a brick home, warm, clean, well-maintained and secure”. With the proceedings pending the father contacted Child FIRST to complain about the mother’s home being unfit for the habitation of the children. He had in the preceding month complained about the children having head lice to that same agency. Neither of those matters resulted in Child FIRST having any concerns about the mother’s arrangements for, or care of, the children.

7. The children are well settled in (omitted) and doing well academically. They are happy and well-adjusted children. They have a mother available to parent them full-time and they have a loving relationship with each of their parents. At trial, the father was critical of the mother’s care of the children. It was not so evident he would support the mother’s relationship with the children. Both parties are able to care for their children physically and emotionally. The father’s financial support of the children is limited. It is currently $40 per month. He works 30 or more hours a week and has a reasonable income from his business, which has long established clients. His financial contribution to the children, whilst in their mother’s care, has been almost non-existent to date. The Agreement drawn by him and signed by both parties post separation provided for the children’s funding to be the responsibility of the household in which they were living.

8. The father was always employed during the parties’ relationship as a (occupation omitted) in the (omitted), (omitted) and (omitted) areas.  The mother was the children’s primary care giver. Those roles have essentially continued. The children are thriving. They need, into the future, to spend weekend and holiday time with both parents and in both parents’ environments. The Orders made this day allow that to happen and promote their best interests.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  28 September 2015