Perkins and Everly

[2009] FamCA 1055

FAMILY COURT OF AUSTRALIA

PERKINS & EVERLY [2009] FamCA 1055

FAMILY LAW – CHILDREN  – relocation  - time with parents  - change  of name

Family Law Act 1975 (Cth) ss 60CC, 65DAA;

Taylor & Barker (2007) FLC 93-345
Sealey & Archer [2008] FamCAFC 142
McCall & Clark [2009] FamCAFC 93
Starr & Duggan [2009] FamCAFC 115
B & B: Family Law Reform Act 1995 (1997) FLC 92-755

APPLICANT: Ms Perkins

RESPONDENT: Mr Everly

FILE NUMBER: SYC 803 of 2008

DATE DELIVERED: 6 November 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 7 - 9 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Davies

SOLICITOR FOR THE APPLICANT: Jensen Solicitors

COUNSEL FOR THE RESPONDENT: Ms Knox

SOLICITOR FOR THE RESPONDENT: B.L. Crane & Associates

Orders

1. Each of the parents have equal shared parental responsibility for the children L born … January 2006 and H born … April 2007 (“the children”).

2. The mother be permitted to relocate the residence of the children to V, Sydney or a residence within a twenty kilometre radius of V, Sydney.

3. The children live with the father as follows:

   Until L is attending school -

   3.1.For seven (7) consecutive days in each calendar month, such days to be from the first Sunday of the month until the second Sunday of the month.

   3.2.The father to collect the children from the mother’s residence at the commencement of the children’s time with him and the mother to collect the children from the father at his residence at the conclusion of the children’s time with him provided that: 

   3.2.1.If either parent elects to travel by air with the children to deliver the children to the other parent, then the other parent shall collect the children from the closest airport to that parent.

   3.2.2.If either parent elects to travel by air to collect the children from the other parent, then the other parent shall bring the children to the airport closest to that parent. 

   Upon L commencing school -

   3.3.On any weekend in the Sydney area upon the father giving 14 days notice to the mother of the times the father will have the children, such weekend to commence no earlier than after school Friday and conclude no later than before school Monday or Tuesday if it is a long weekend and such weekend not to be a consecutive weekend under this Order, unless the parties otherwise agree.

   3.4.For 10 days of the Term 1 and Term 3 school holiday periods, commencing on the day which is two days after the last day of school, with the father to collect the children from the mother’s residence at the commencement of the holiday period and the mother to collect the children from the father at his residence at the conclusion of the holiday period. 

   3.4.1.If either parent elects to travel by air with the children to deliver the children to the other parent, then the other parent shall collect the children from the closest airport to that parent.

   3.4.2.If either parent elects to travel by air to collect the children from the other parent, then the other parent shall bring the children to the airport closest to that parent.

   3.5.For one half of the Term 2 and December-January school holiday periods, as follows:

   3.5.1.The first half in even-numbered years with the father and in odd-numbered years with the mother;

   3.5.2.The second half in odd-numbered years with the father and in even-numbered years with the mother.

   3.6.For the purpose of Order 3.5, the school holiday time shall commence:

   3.6.1.When a parent’s time falls in the first half of the holidays, from 9am on the day after the school term finishes and conclude at 5.00 pm on the day calculated to be half of the holidays;

   3.6.2.When a parent’s time falls in the second half of the holidays, from 5.00 pm on the day calculated to represent half of the holidays, and contact shall end at 9.00 am on the day before the new school term commences;

   3.6.3.School holidays shall be deemed to commence at 9am on the day after the school term finishes and conclude at 9.00 am on the day before the children return to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the father shall retain the additional night.

4. The children shall spend four hours with a parent (“the first parent”), in the event that the children are with the other parent, on the children’s birthdays, Christmas Day or the first parent’s birthday, provided the first parent travels to where the children are with the other parent and the first parent gives the other parent fourteen days notice of their intention to be with the children at that time. 

5. Notwithstanding any other order, the children to spend the weekend with the mother on the Mother’s Day weekend and the children are to spend Father’s Day weekend with their father in the event that the father gives fourteen days notice to the mother that he wishes the children to be with him on that weekend.

6. The parent having the children in his or her care shall be the parent to deliver the children to the other parent to effect changeover at any given time as provided in these orders.

7. The mother continue to attend upon her treating medical practitioner regularly and comply with any medication prescribed and keep the father advised of her medication regime on a regular basis.  In particular, the mother advise the father forthwith should she discontinue taking her current prescribed medication.

8. Prior to the children commencing school, when the children are with each parent they may be enrolled in a local pre-school.

9. The mother and father may have one telephone call with the children when the children are with the other parent each alternate day for up to 15 minutes between 5.00 pm and 6.00 pm.  If away on holidays, the holidaying parent is to provide to the other parent a contact telephone number.

10. Each parent shall, as soon as is reasonably practicable, notify the other parent in the event of the children suffering a serious accident or illness.

11. Each parent shall keep the other parent informed in relation to all medical, dental or other health related treatment undertaken by the children whilst they are in that parent’s care and these Orders shall provide both parents with consent and authority to discuss with any medical practitioner, dentist or other health related professional any matters concerning the health, welfare or medical treatment of the children.

12. Each parent will consult with the other parent in relation to all matters concerning the education of the children.

13. Each parent provide consent and authority to the other parent to discuss with the Principal, Teacher or School Counsellor of any school that the children might attend any matter regarding the children, and each parent authorise the school to forward copies of any school report, counsellor’s report or any other report as may be obtained by the school to both parents.

14. Each parent be entitled to attend at all school functions of the children including interviews, sports days and social events.

15. The parents do all things and sign all documents necessary to cause the children to be known by the surname “Perkins-Everly” and share equally any costs associated with changing the children’s surname. 

16. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders. 

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 803 of 2008

MS PERKINS

Applicant

And

MR EVERLY

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This matter is about the parenting arrangements for L born in January 2006 (currently 3 years of age) and H born in April 2007 (currently 2 years of age) (“the children”) and whether or not the children should be allowed to relocate with their mother to Sydney from the north coast of New South Wales.

2. The father wishes the children to remain on the north coast.

3. Each of the parents seeks an order for equal shared parental responsibility.

4. There is also an issue raised by the mother as to the surname by which the children will be known.

APPLICATIONS

Mother

1. When the matter commenced before me in August 2008 the mother did not clearly articulate what she was seeking by way of final orders.  She found it difficult to say that what she really thought was best for the children was to relocate back to Sydney with her. 

2. Now the mother’s primary proposal is that she move to Sydney and that she live in the home of her parents with the two girls.  She would agree to a co-parenting arrangement with the father on the basis that it would be her primary proposal that he also move to Sydney. 

3. The father has said that he will not move to Sydney if I make an order which in effect allows the children to return to Sydney.

4. The mother’s first alternate proposal is therefore that she return to Sydney with the children and that the children spend time with their father on a more restricted basis arising out of the fact that the father will remain at E, on the north coast of New South Wales. 

5. The mother’s second alternate proposal is that in the event that I make orders that effectively do not allow the children to move from the north coast, she will remain in D and continue a co-parenting arrangement with the father. 

6. The formal orders that the mother seeks by way of her preferred proposal (and based upon the premise the father would move to Sydney) were contained in a minute of order filed 28 August 2009.  That minute seeks the following orders:

   1.That each of the parents have equal shared parental responsibility for the children [L] born […] January 2006 and [H] born […] April 2007 “the children”.

   2.That the Mother be permitted to relocate the residence of the children to [V], Sydney.

   3.The children live with the Mother during school terms and school holidays, except Christmas school holidays, for seven days and thereafter with the Father for seven days with the change over day and time being Friday after school or at 4:00pm. On the Tuesday of each week the children to spend time with the other parent from 10:00am to 4:00pm. On the first Tuesday of each month one child only to spend time with the other parent from 10:00am to 4:00pm.

   4.During the Christmas school holidays and until the youngest child attains the age of six the children to spend ten days alternating with each parent commencing on the Friday prior to Christmas.

   5.During the Christmas school holidays once the youngest child attains the age of six the children to spend half the holidays with the Mother, being the first half in odd numbered years and the second half in even numbered years.

   6.The children to spend the weekend with the Father on the Father’s Day weekend and in the event it is a weekend the children are not living with the Father then the changeover of time at 4:00pm Friday be extended to 8:00am the following Monday.

   7.The children to spend the weekend with the Mother on the Mother’s Day weekend and in the event it is a weekend the children are not living with the Mother then the changeover of time at 4:00pm Friday be extended to 8:00am the following Monday.

   8.The children to spend four hours with the parent they are not residing with on the dates of the children’s Birthdays and the said parent’s Birthday from 4:00pm to 8:00pm.

   9.That the Mother and Father may have one telephone call with the children when the children are with the other parent each alternate day for up to 15 minutes between 5:00pm and 6:00pm.

   10.Each party shall keep the other party informed of all details regarding their residential address, mobile telephone number, and shall notify the other party within 48 hours of any change to such details.

   11.Each party shall immediately and as reasonably as is practicable notify the other party in the event of the children suffering a serious accident or illness.

   12.Each party shall keep the other party informed in relation to all medical, dental or other health related treatment undertaken by the children whilst they are in that parties’ care and these Orders shall provide both parties with consent and authority to discuss with any medical practitioner, dentist, or other health related professional, any matters concerning the health, welfare, or medical treatment of the children.

   13.Each of the parties will consult with each other in relation to all matters concerning the education of the children.

   14.That each party provides consent and authority to the other party to discuss with the Principal, Teacher or School Counsellor of the school that the children might attend, any matter regarding the children, and each authorises the school to forward copies of any school report, counsellor’s report, or such other report as may be obtained by the school to both parties.

   15.That each party be entitled to attend at all school functions of the children including interviews, sports days and social events.

   16.That neither parent enrol the children in activities or events that occur in the other party’s time unless agreed in writing beforehand such agreement may include any other arrangements for travel, attendance and payment of costs.

   17.That the parties do all things and sign all documents necessary to cause the children to be known by the surname “[Perkins-Everly]”.

Father

1. The father’s primary proposal is that the current co-parenting arrangements that are in place under interim orders be confirmed as final orders.

2. The father’s alternate proposal is that in the event that the children are allowed to move to Sydney with their mother then he will have limited time with the children.

3. The terms of the father’s application for orders are contained in his amended response filed 25 March 2009.  The orders sought were in the following terms:

   1.That except as otherwise provided, the mother and father have equal shared parental responsibility of the children [L] born […] January 2006 and [H] born […] April 2007.

   2.That the parents are to consult with each other about decisions to be made in the exercise of their shared parental responsibility and in particular are to:

   (a)     Inform the other parent about the decision to be made;

   (b)     Consult with each other on terms that they agree;

   (c)     Make a genuine effort to come to a joint decision.

   3.That the mother and the father keep the other informed in a timely manner of the following matters:

   (a)     The names and addresses of the children’s treating doctors and dentists and all other persons described as health care providers in any form or fashion;

   (b)    The dates and times for day care, child care, kindergarten or preschool events involving parents;

   (c)    Parent and teacher functions, performances and sports carnivals;

   (d)    Details of any of the children’s extra-curricular activities including events involving parents.

   4.That each party will notify the other if either of the children are seriously ill or are to be admitted to hospital at such times the child is in the care of that party or is attended to by any person acting as a health care provider.

   5.That notwithstanding the provisions of Order 2:

   (a)     The mother shall be responsible for the daily care, welfare and development of the children when they are living with her;

   (b)    The father shall be responsible for the daily care, welfare and development of the children when they are living with him.

   Part 1

   In the event the mother remains living in the [E-D] area

   6.That the children [L] born […] January 2006 and [H] born […] April 2007 live with the mother as follows:

   Week 1

   (a)     From 5.00pm Sunday to 5.00pm Wednesday;

   Week 2:

   (b)    From 9.00am Saturday to 9.000am Wednesday.

   7.The children shall live with the father at all other times save for the exceptional days and holidays as set out below.

   8.That on each of the children’s birthdays, on Christmas Day and on either Easter Friday or Sunday, the children spend at least three hours with the other parent, with the particular times to be negotiated at least two days prior to the special day.

   9.That the children spend time with the mother from 9.00am to 5.00pm Mother’s Day and the children spend time with the father from 9.00am to 5.00pm Father’s Day.

   10.That the children spend time with the mother from 9.00am to 5.00pm on the mother’s birthday.

   11.That the children spend time with the father from 9.00am to 5.00pm on the father’s birthday.

   12.That each parent be able to communicate with the children by telephone at all reasonable times when the children are in the care of the other parent.

   13.That each parent be permitted to take the children on a holiday for up to 8 days at a time on three separate occasions per year with there to be at least two months between each holiday and upon giving to the other parent no less than three weeks written notice of the proposed dates for the holiday and the proposed destination provided however that such holiday does not include any of the following dates:  children’s birthdays, mother’s day (if it is the father’s holiday), father’s day (if it is the mother’s holiday), Christmas Day, Easter, the other parent’s birthday.  The holidaying parent is to provide to the other a contact telephone number for reasonable telephone communication with the other parent whilst on holiday.

   14.The parent having the children in his or her care shall be the parent to deliver the children to the other parent to effect changeover at any given time as provided in these orders.

   15.That the mother continue to attend upon her treating medical practitioner regularly and comply with any medication prescribed and keep the father advised of her medication regime on a regular basis.  In particular the mother advise the father forthwith should she discontinue taking her current prescribed medication.

   16.Prior to the children commencing school, when the children are with each parent they may be enrolled in a local pre-school.

   17.The children shall attend [E] Public School.

   18.The children’s treating general practitioner shall be Dr [S] at the [D] Medical Centre or Dr [T] at [E] Medical Centre.  “Blue Books” shall travel with the children and whichever parent they are with.

   Part 2

   In the event the mother relocates to live in Sydney

   19.The children live with the father at [E].

   20.The children live with the mother as follows:

   (a)  Until either of the children is attending school -

   (i)For seven (7) consecutive days in each calendar month, such days to be from the first Sunday of the month until the second Sunday of the month unless such day coincides with a special day or the parties otherwise agree.

   (ii)The mother to collect the children from the father’s residence at the commencement of the residence period and the father to collect the children from the mother at her residence at the conclusion of the residence period.  Either parent shall be prepared to collect the children from the closest airport of the parent collecting or delivering the children elects to do this by air transport. 

   (b)  Upon either of the children commencing school -

   (i)On any weekend in the [D-E] area upon the mother giving 14 days notice to the father; such weekend to commence no earlier than after school Friday and conclude no later than before school Monday.

   (ii)For 10 days of the autumn and spring school holidays, commencing on the day which is two days after the last day of school and concluding on the day which is two days prior to the child or children recommencing school, with the mother to collect the children from the father’s residence at the commencement of the holiday period and the father to collect the children from the mother at her residence at the conclusion of the school holiday period.

   (iii)For one half of the June-July (winter) and December-January (summer) school holiday period, as follows:

   1.  Being the first half in even numbered years with the mother and in odd numbered years with the father;

   2.  Second half odd numbered years with the mother and in even numbered years with the father.

   (iv)For the purpose of these orders the school holiday time shall commence:

   1.  When a parent’s time falls in the first half of the holidays from after school on the day the school term finishes and concludes at 5.00pm on the day calculated to be half of the holidays;

   2.  When a parent’s time falls in the second half of the holidays from 5.00pm on the day calculated to represent half of the holidays when contact shall end at 9.00am on the day the school term commenced;

   3.  School holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 9.00am on the day the children return to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the mother shall retain the additional night.

   21.That each parent be permitted to take the children on a holiday for up to 8 days at a time on three separate occasions per year with there to be at least two months between each holiday and upon giving to the other parent no less than three weeks written notice of the proposed dates for the holiday and the proposed destination provided however that such holiday does not include any of the following days:  children’s birthdays, mother’s day (if it is the father’s holiday), father’s day (if it is the mother’s holiday), Christmas Day, Easter, the other parent’s birthday.  The holidaying parent is to provide to the other a contact telephone number for reasonable telephone communication with the other parent whilst on holiday.

   22.The parent having the children in his or her care shall be the parent to deliver the children to the other parent to effect changeover at any given time as provided in these orders.

   23.That the mother continue to attend upon her treating medical practitioner regularly and comply with any medication prescribed and keep the father advised of her medication regime on a regular basis.  In particular the mother advise the father forthwith should she discontinue taking her current prescribed medication.

   24.Prior to the children commencing school, when the children are with each parent they may be enrolled in a local pre-school.

   25.The children shall attend [E] Public School.

   26.The children’s treating general practitioner shall be Dr [S] of the [D] Medical Centre or Dr [T] at the [E] Medical Centre. 

1. Counsel for the father said in final submissions that it was open to me to make an order that the children remain on the north coast and have more extensive time with one parent or the other.  Counsel for the father said that the father would be prepared to have the children most of the time on the north coast.  There would be problems entertaining such a proposal given that it was not flagged by myself or either of the parties during the hearing of the evidence and there would be a significant question as to whether or not the parties had been afforded procedural fairness should I entertain that proposal.  In any event, it is not a proposal based upon the evidence before me that I would find to be in the best interests of the children. 

DOCUMENTS RELIED UPON

1. This matter came before me on the first day of a less adversarial trial on 8 August 2008.  Both parties have filed questionnaires and oral evidence was taken from the parties on that day.

2. At the final stage of the hearing, the mother relied upon the following documents:

   16.1.Affidavit of the mother filed 11 March 2008;

   16.2.Affidavit of the mother filed 23 April 2009;

   16.3.Affidavit of Ms C filed 23 April 2009;

   16.4.Affidavit of Ms P Perkins filed 22 April 2009;

   16.5.Affidavit of Dr N filed 22 April 2009.

3. The father relied upon the following documents:

   17.1.Affidavit of the father filed 18 February 2008;

   17.2.Affidavit of the father filed 24 March 2009;

   17.3.Affidavit of Ms A filed 24 March 2009.

4. Dr M prepared a report dated 12 June 2008. 

CREDIT

1. There was a clear difference in relation to the way both the mother and father gave their evidence.

2. The mother seemed to be making a genuine attempt to answer questions truthfully.  In contrast to the father, she was not unwilling to make concessions against her interests.  I note that her demeanour in the witness box appeared to be slightly withdrawn and quiet but not to an extent that was inconsistent with the stress of being cross examined.  As noted below, I have some trouble with her evidence about L’s waiting list application (Exhibit E and part of Exhibit C) but otherwise there were few inconsistencies in her evidence. 

3. In comparison, the father on a number of occasions had great difficulty answering questions where the answer might appear to have been against his interests.  He was sometimes evasive, and occasionally he was non-responsive and answered questions by directing his own questions at counsel for the mother.  On occasions he was unwilling to make concessions against his interests and hesitant in taking responsibility for any inappropriate behaviour.  I, on a number of occasions, had to reframe questions for the father in order to get answers from him that he should have more readily given to counsel for the mother. 

4. Based on the presentation of the two witnesses, where I have a clear contradiction in evidence between the mother and father which is not resolved by other objective evidence, I prefer the evidence of the mother, unless I indicate otherwise. 

CHRONOLOGY

1. The mother was born in 1964 and is currently 45 years of age. 

2. The father was born in 1972 and is currently 37 years of age.

3. There is a disagreement as to when the parties commenced cohabitation.  The mother says it was in August 2005 while the father says it was in April 2005.  Nothing much turns on the difference and there was no cross examination about it.  On both versions the parties were aware that the mother was pregnant with L when they started living together.

4. The parties moved to Y in Sydney in September 2005.

5. The first child of the marriage, L, was born in January 2006. 

6. In about July 2006 the mother fell pregnant again.

7. The mother says that in late 2006 the father resigned his job and the parties moved to live with the mother’s parents in V in Sydney.  The father says that both of these events occurred in March 2007 after the parties agreed to move to live on the north coast and after, according to the father, the mother displayed to the father that she often had severe thoughts of harming L.  The mother concedes that she had suffered postnatal depression after the birth of L and the move to her mother’s home was in part motivated by her fear that she might have further difficulties after the birth of the second child.  In oral evidence both parties confirmed that the father resigned his job when the parties moved to V, however there was no clarification as to when precisely this was.  Nothing of any significance turns on the difference in the evidence about the timing of the move to the maternal grandmother’s home nor on the timing of the agreement between the parties to move to the north coast to live with the children. 

8. The father alleges that on 14 June 2007 he had to remove L from the room because the mother was yelling and screaming and L was screaming and looking fearfully at her mother.  The father further alleged that the mother was so angry that she was punching the ground and hitting the ground with her head.  The mother was asked about this incident by counsel for the father during cross examination.  Specifically, it was put to her that “there was another incident in June of 2007, when he [the father] removed [L] from the room because you were yelling and screaming and [L] was screaming”.  The mother denied having punched the ground or hit the ground with her head, stating that she might have been crouching on the ground being emotional.  She stated that the father was exaggerating this incident. I accept the mother’s oral evidence about this incident.  

9. The second child of the relationship, H, was born in April 2007. 

10. The father alleges that on 9 May 2007, while the parties were out walking the children, L walked in a different direction to that in which the mother wished her to go.  The father states that the mother ran after L, picked her up, shook her and yelled into her face “why are you running away from me?”. 

11. When questioned about this incident during cross examination the mother replied that she recalled it, however she thought the father’s version was “a bit exaggerated”.  The mother stated that she put the brake on H’s pram and ran after L because she was running towards the road.  The mother initially agreed that she had picked L up, shaken her and yelled in her face “Why are you running away from me”, stating that she was a bit upset that L had run away; however she subsequently stated that she did not shake L violently and did not think that she had shaken her at all. 

12. Whilst there is some inconsistency in this evidence, I accept that even if the mother had shaken L and yelled at her, the mother’s reaction to L running towards the road was not one of which I would be highly critical.

13. In his affidavit the father said that on 20 June 2007 there was a similar incident to the one that occurred on 14 June 2007, with the mother yelling at the father and telling him to go away and that she would raise the children on her own.  Counsel for the father put this incident to the mother in cross examination.  The mother acknowledged the possibility that there could have been a fight between her and the father.

14. I note that the version of this incident as it appears in the father’s affidavit seems to suggest that it was similar to the incident that occurred on 14 June 2007, which according to the father involved the mother punching the ground and hitting the ground with her head.  I have found that is not what happened on 14 June 2007.  When counsel for the father put this incident to the mother during cross examination, counsel for the father simply said that “another incident” occurred on 20 June 2007 which involving yelling on the part of the mother.  Counsel for the father did not specifically put to the mother that she had also been punching the ground and hitting the ground with her head on 20 June 2007.  Consequently her acknowledgement of the incident extends only to the fact that there was an argument and yelling.  I accept the mother’s version of this incident.

15. The parties moved to D in July 2007.  Initially the parties and the two children stayed at the home of the paternal grandmother for about six weeks while she was overseas. 

16. When the matter was first before me on 8 August 2008, the father gave descriptions of three incidents that took place which he considered were important.  On that occasion the mother did not cavil with the essence of what the father said had happened.  The mother conceded that she had hit the father on one occasion on the face, on another occasion on the back and that she had picked up a knife (not in a way that threatened the father).  Having heard on 8 August 2008 both parties’ version of these events, I was not left with any significant level of continuing concern as a result of what had happened.  Some of these events were the subject of further detailed examination during the final stage of the hearing and are referred to below at paragraphs 44, 47 and 39.2 respectively. 

17. The father says that a number of incidents occurred in August 2007.  They were as follows:-

    39.1.The father alleges that on 15 August 2007 L bit the mother.  The mother agrees that L bit her.  The father alleges the mother slapped L on the back of the head in a “retaliatory action”, which he states that the mother described to him at the time as a “reflex action”.  The mother demonstrated in the witness box what actually happened, describing it as “brushing” across the back of L’s head.  I accept the mother’s version of what she said happened in that incident.

    39.2.On 16 August 2007 the mother went to the kitchen drawer and took out a very large knife and went to leave the house.  The father removed the knife from her and asked her to calm down.  The mother was flailing her arms around and punched the father directly in the face with her closed fist.  The father restrained her and pulled her down to the floor so that they were in a sitting position and tried to calm her down.  During cross examination the father was equivocal about how the parties had ended up on the floor.  He stated that they did not fall to the floor, that the mother did not go down of her own accord but that he did not pull her to the floor.  He stated that “I’d restrained her and we both slid down into a sitting – kneeling position in which I tried to calm her”.  If the mother did not fall to the floor and did not go to the floor of her own accord then it is difficult to see how she could have ended up there except via the compulsion of the father.

    39.3.On 21 August 2007 the father attended on the parties’ general practitioner to try and arrange some help and support for the mother.  He states that during that conversation he told the doctor what had happened and the doctor agreed to speak to the mother about it when the parties next came in for H’s immunisations on 24 August 2007.

    39.4.On 24 August 2007 the doctor raised the issues with the mother who would not listen and accused him of misconduct because he would not reveal who had contacted him and told him about the episode. 

18. In September 2007 the parties moved into their own rental accommodation at D.

19. In September 2007 the mother was diagnosed with depression.  She was prescribed Lovan by her then general practitioner. 

20. The father asserts that in October 2007 the mother said that she wanted to go to Sydney for a holiday as she was “burnt out” from looking after the children while the father was at work. 

21. In November 2007 the parties flew to Sydney and stayed at the mother’s parents’ home at V.  The father returned to D on 4 November 2007 and went down to collect the mother and children on 22 November 2007. 

22. On 15 December 2007 there was an incident in the parties’ kitchen.  The father says that the mother was yelling at L and loudly slammed a kitchen drawer shut, causing both children to cry.  He asserts that he attempted to calm the mother down and gently touched her arm.  He says that this caused the mother to explode with a temper outburst and she threw a flurry of punches at the father.  She continued to yell at him and accuse him of not taking her side in relation to parenting issues.  The father says he enclosed her in a bear hug and she continued to kick and twist so that he had to lift her up to take her outside away from the children.  The mother then re-entered the house and went towards the children and the father followed her and embraced her from behind with a bear hug.  According to the father, the mother hooked her foot on the play cot and the parties fell onto the lounge room carpet, at which point the mother, who was crying and in a fierce temper, stormed upstairs.  The mother telephoned the father’s mother who subsequently came over, and the father packed up the children and left the house for a while. 

23. On 17 December 2007 the mother attended with the father and the children at B Family Centre in Brisbane.  Some material relevant to the mother’s admission at the Centre was tendered during the hearing.  In a document entitled “Parent Pre-Admission Phone Interview” there is a note that in response to the question “Do you have family that can help you?” the mother replied “[the father] – really good – MGM in Sydney help when can”.  In a document entitled Parent Assessment Tool, in response to the question “How does your partner feel about the admission to the [B] Family Centre?” the mother has replied “supportive”. 

24. The father says that on 5 January 2008 there was a further incident where the father was putting L into the car to go shopping and the mother grabbed L by the foot while he was still holding her.  The mother gives a different account.  Her version is that she removed one of L’s shoes by unbuckling it and removing it from her foot.  She says that she did this so that the father would not be able to take L from the home. The father said he had been preparing for some considerable time to leave the house to go shopping and at the last moment the mother decided that she would like to go to the lake with the children.  He thought that was inappropriate given that it was late in the afternoon.  An argument developed.

25. So far as it is necessary, I accept the mother’s version in relation to the removal of the shoe from L’s foot.  The father asserts that the mother then punched the father near the centre of his back and the mother agrees that she did so.  On 7 January 2008 the father attended the Police Station and reported these events to the police.  An application for an Apprehended Domestic Violence Order was made, listing the father and both children as the protected persons and the mother as the defendant.  The father says that on 11 January 2008 he returned to the Police Station and asked the police to remove the children from the AVO that the police had taken out, as he believed the mother could become suicidal.

26. On 18 January 2008 the parties received a visit from two officers from the Department of Community Services.  One of them was Mr O.  He gave advice that the mother should attend on a mental health service as somebody had claimed she was psychotic. 

27. In about January 2008 the mother commenced counselling with Ms W, a registered psychologist, and the parties attended the first two sessions as a couple. 

28. On 31 January 2008 the mother left the parties’ home at D with the two children to visit her parents at V with the father’s consent.  I was unable to discern what the father’s motivation was for allowing the mother to go on a holiday with the children on an unsupervised basis in circumstances where only a couple of weeks prior to that proceedings had been instituted for an AVO to protect the children from the mother.  The father drove the mother and children to the airport and put them on the plane to Sydney.  The mother at this time left D with the children unsupervised. 

29. The mother asserts that the parties separated on 31 January 2008.  The father says it was not until 5 February 2008 that the mother told him that she was not intending to return to him.  The mother, through her solicitor, sent the father a letter on 11 February 2008 (attached to an email sent at 7.17 pm), which stated “[the mother] has decided that she and the children are going to stay at her parents’ home”, that “she does not wish to speak to you at this stage” and that “you are not permitted to attend her parents’ home uninvited”.

30. At some point the application for the AVO that had been taken out against the mother in the Local Court was withdrawn, however I have no evidence before me as to precisely when that was. 

31. On 13 February 2008 the father came to Sydney.  Before leaving D, the father had formed the intention that he would take both children back into his care and then proceed to drive back to D with the children.  The father requested some short time alone with the children.  The mother agreed.  The father then executed his plan to remove the children from the mother.  The father had some difficulty in cross examination accepting that he had deceived the mother in order to achieve his aim of removing the children.  The father accepted that the mother was distressed by the fact that H was removed from her at a time when she was breastfeeding her on a regular basis during the day and night.  The mother was clearly distressed at the time that this had happened.  The mother says, and I accept, that she was not given any notice that the father intended to take the children back to D.  The mother returned to D about eight days later. 

32. The husband took out the first application for parenting orders at the Lismore Registry of the Federal Magistrate’s Court, seeking that the children reside with him on an interim and final basis.

33. On 18 February 2008 orders were made for the children to live with the father and spend up to three hours each day with their mother at the home of the father between 9.00 am and 12.00 pm, to spend time with the mother at playgroup and kinder group unsupervised and such other times as agreed between the parties. 

34. On 11 March 2008 orders were made by Judicial Registrar Loughnan providing for the children to spend time with their mother from 9 am to 5 pm each Monday, Tuesday and Thursday and from 9 am to 5 pm each alternate Saturday and Sunday commencing 15 March 2008 and at all other times as the parties may agree.  An order was made for Dr M to prepare a report.

35. The parties saw Dr M on 5 and 6 June 2008.  Dr M’s report is dated 12 June 2008. 

36. As I have mentioned, the matter first came before me on 8 August 2008.  I made orders on that day that the parties attend appropriate post separation parenting counselling.  Previous parenting orders were discharged and the following order was put in place:

    3.In a fortnightly cycle the children [L] (born […].1.2006) and [H] (born […].4.2007) live with their mother from 9am on the first Saturday to 9am on the following Wednesday in the first week and from 5pm on the Sunday to 5pm on the Wednesday in the second week and live with their father from 9am Wednesday to 5pm Sunday in the first week and from 5pm Wednesday to 9am Saturday in the second week.

    4.In the event that either party is unable to be with the children for substantially the whole of a day when the children are to be with them then they will ask the other parent to mind the children during that time.

37. This introduced effectively an equal shared care arrangement on an interim basis.

38. The father says that on 2 September 2008 he received a letter addressed to him at his former address, postmarked 29 August 2008, containing a newspaper article about human reactions to a baby whale that had been found and eventually died in Pittwater.  The mother conceded in cross examination that she had sent this material.  I took from what she said that she had done so because the plight of the baby whale struck a chord with her.  She thought that that might have been how H felt when she was taken from the mother while she was being breastfed.  The mother said that the paternal grandmother had sent her material with an aim of assisting her, so that the letter that the mother had sent had been in the context of an exchange of information.  The mother conceded that although some material had been sent to her by the paternal grandmother, she had not paid great attention to it. 

1. On 2 October 2008 H was bitten by something whilst H was in the father’s care.  Concerned that it was a venomous spider, the father dropped L off immediately at his brother and sister-in-law’s house, 90 metres away, and took H to Lismore Base Hospital and contacted the mother.

2. In November 2008 the mother informed the father that she had taken H to the doctor after her foot was severely bruised while the mother was changing sheets on L’s bed. 

3. On 6 March 2009 L commenced at E Early Learning Centre Preschool from 9 am to 3 pm for two Fridays.  The father states he consulted the mother about this decision. 

4. On 11 March 2009 the mother informed the father that L was attending playgroup, combining classical and jazz ballet class and other activities.

5. On 20 March 2009 the father changed L to E Community Preschool from 9am to 3pm on a Friday without consulting the mother.  The father states that he was advised of the Friday vacancy on 18 March 2009 and he needed to make a reasonably quick decision, otherwise the spot would be offered to another child.  He also states that the mother “had indicated to me when I consulted her about [L] attending the [E] Learning Centre Pre-School that she believed [L] would benefit more by attending a pre-school.  I agree with [the mother] and I say the [E] Community Pre-School is a much better option”. 

PARTICULAR MATTERS

The mother’s diaries

1. The mother had kept extensive diaries going back to at least 1996.  These comprised of twelve volumes, some of which were an inch thick and others which were more than that thickness.  Most of them were substantially full.  The father took the mother’s diaries at the time of the separation.  He provided them to his lawyers.  His lawyers photocopied pages which were considered useful as evidence in the father’s case.  Out of all of that material, only a small number of entries were tendered in evidence.  The father seeks to rely upon these entries to establish that the mother had a history of mental illness or vulnerability to mental illness.  Dr M did not agree with that proposition and nor do I.  The entries on their face cannot be interpreted as the mother having a long term problem with her mental status. 

2. Counsel for the father puts some emphasis on the fact that the maternal grandmother describes her daughter as having an “artistic temperament”.  I do not place weight on that description.  One can only muse that having an “artistic temperament” might be a good thing if the mother intends to earn a living as an artist.

Dr M’s evidence

1. Dr M has provided a report dated 12 June 2008.  His opinions are set out at pages 12 and 13 of the report. 

2. In terms of the developmental status of the children, Dr M notes the following:

   “At the time of my assessment, both children were observed to be progressing well developmentally.  They both presented in an age appropriate manner.  Numerous positive interactions were observed between both children and both parents.  I did not observe any signs of long term traumatic responses despite exposure to parental conflict and the significant changes in their family circumstances.  Both parents showed a high level of atunement [sic] to the children and their emotional reactions during the assessment process.” 

3. The father reported to Dr M that there were at least three incidents which led him to conclude that the children were unsafe in the mother’s care, and I have already referred to these incidents. 

4. Dr M concluded that the mother had addressed her circumstances and was highly motivated to have the children returned to her care overnight in an unsupervised context.  Dr M was supportive of that arrangement.  It was for those reasons that I made the unsupervised orders in August 2008.  Dr M concluded that the mother’s manner in approaching the assessment interview and her interactions with the children and their father was consistent with her description of the stabilisation of her mental state despite the stressful family circumstances. 

5. Dr M records that the mother had some intrusive obsessional suicidal thoughts.  Dr M did not put great weight on them.  Dr M described the mother as being “fairly frank” about her depressive history. 

6. The most serious incident was the occasion on which the mother grabbed the carving knife in an agitated state.  She had not threatened anybody with it but tried to leave the house with it.  However, Dr M notes that “there was considerable evidence to suggest that her mood has stabilised and that the children were unlikely to be at risk in her care”. 

7. There was no order that the children see their mother overnight at the time of the interviews for Dr M’s report.  It was Dr M’s conclusion that the children would benefit from regular stabilised supervised contact with the mother, including overnight contact, as early as possible.  It is of significance that there has been no serious report of disturbed behaviour on the part of the mother since the orders were made in August 2008.

8. Dr M said that it was important to recognise that the mother’s at risk behaviour had occurred in the context of her frustration in interactions with the father.  Dr M predicted that the parental separation would reduce the mother’s vulnerability and it appears that that is what has occurred.

The mother’s alleged suicidal thoughts and self mutilation

1. At page 4 of Dr M’s report he says:

   “She denied being currently suicidal but added ‘I have explored it.  Not really.  No.  I am a RN and have thought about how I would do it – jump off the balcony.  Nothing serious.  Just a couple of time.  A quick flash’.  She denied any history of deliberate self harm.  She acknowledged having written in a personal diary that she was ‘self mutilating’.  She indicated that the extent of this had been an episode when she had hit her arm against a wall to induce physical pain.  She highlighted the difference from the deliberate self harm she would witness as a registered nurse in accident and emergency over a nine year period.  She complained about the father’s use of her personal diaries to obtain such information.”

2. I do not place any great weight on any alleged suicidal thoughts or self mutilation.  I deal in detail with the evidence about this later in these Reasons.  The evidence does not give me any significant concerns relating to the mother’s mental state.  The examples described are at the lower end of seriousness.  The mother was employed as a registered nurse in an accident and emergency ward over a nine year period.  Working in that environment over a long period, the mother would undoubtedly have been exposed to confronting and distressing cases.  The mother was able to speak frankly with Dr M about her feelings.  I note also that the extracts from the mother’s diaries upon which the father relies occurred over a relatively long period and need to be read in context.

Dr N’s evidence

1. In his report dated 1 April 2009, which forms Annexure A to his affidavit filed 22 April 2009, Dr N states that he reviewed the mother on 1 April 2009.  The mother “reported feeling more confident and no longer troubled by significant anxiety”, although she was still experiencing some stress associated with the family court proceedings.  Dr N states that the mother presented as cooperative, was neatly groomed, demonstrated no thought disorder, delusions or hallucinations, and had a euthymic mood and reactive affect.  Dr N’s provisional diagnosis was “adjustment disorder with depressed mood, largely in remission”.  Significantly, Dr N notes that the mother’s “residual symptoms are a reflection of continued conflict, resulting from ongoing family law proceedings.  A satisfactory resolution of this conflict is likely to result in resolution of her symptoms”.  Dr N stated further that in his opinion, the mother’s symptoms “do not indicate a psychological disorder that would affect her capacity to parent her two children…The behaviour described in the affidavit provided, may at times be inappropriate, but does not indicate a mental illness or psychological disorder that would affect her capacity to parent her two children”.

2. Dr N gave oral evidence along largely the same lines.  He stated that the mother reported to be feeling okay, more confident and with “pretty good” anxiety, although she was still finding the family court proceedings as a whole challenging and was experiencing some anxiety associated with the break up of the relationship. Dr N was quite clear in his opinion that the mother’s presentation was not consistent with a depressive illness and the symptoms that she reported to him were not consistent with a depressive illness.  When selected parts of the mother’s diaries were read to Dr N, he noted them without altering his opinion about the mother’s mental status.  He stated that whatever the mother’s past situation, her current presentation was not suggestive of any pathology.  In cross examination it was put to Dr N that it is impossible to state that the mother will not experience further difficulties in the future.  He agreed with that proposition, and stated that it was for that reason that he kept the mother on Lovan.  In re-examination Dr N stated that he would have every reason to believe that the mother would seek treatment if she had any difficulty.  He also agreed with the proposition put to him by counsel for the mother that once the difficulties associated with family law proceedings were over, there were no other stressors of which he was aware that would cause her continuing problems, and no underlying condition that would of itself still need to be treated.

APPROACH TO APPLICATIONS INVOLVING RELOCATION OF A CHILD

1. Reference was made in submissions to Taylor & Barker (2007) FLC 93-345 and McCall & Clark [2009] FamCAFC 93. These two Full Court relocation decisions were further referred to in Starr & Duggan (2009) FamCAFC 115. In the latter case, the Full Court at paragraphs 33 - 39 said the following:-

   33.The core principle consistently referred to in all appellate decisions involving challenges to parenting orders (including where an order for relocation is sought) is the “paramountcy principle” found in s 60CA.  That is, a court must regard the best interests of the child as the paramount, but not sole, consideration.

   34.The interplay between the paramountcy principle, the objects of the Act and the principles underpinning those objects is described in Goode & Goode (2006) FLC 93-286.

   35.In McCall & Clark the Full Court referred (at paragraphs 58 to 60) to explanations given in other relocation cases of the order in which relevant provisions in Part VII may be applied when determining a parenting application. Their Honours (Bryant CJ, Faulks DCJ and Boland J) went on to explain (at paragraphs 61 and 62) that it will often not be an academic exercise to consider whether a child should spend equal time with both parents, as such an order is likely to be sought by a non-relocating parent.

   36.The Full Court also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be “dual consideration” of some matters. This is so because consideration of the s 60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals. Some of the matters to be considered under s 60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s 65DAA, especially s 65DAA(5).

   37.Thus the appellate decisions determined after the commencement of the Family Law Amendment (Shared Parental Responsibility)Act 2006 (Cth) have set out a framework which a judicial officer may follow when determining applications for parenting orders, including an order that a child be permitted to relocate.

   38.However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:

   ·first make findings concerning the relevant s 60CC factors;

   ·then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and

   ·then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.

   39.Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.

2. Section 60CC Family Law Act (“FLA”) factors in this case cannot be considered in a vacuum and will need to be assessed in the context of the parties’ competing proposals. The s 60CC findings in this case provide the basis upon which a judgment can be made as to whether or not equal time or substantial and significant time is in the children’s best interests. Consideration of factors under s 65DAA(5) is informed by reference back to earlier s 60CC findings.

SECTION 60CC FAMILY LAW ACT FACTORS

Primary considerations

The benefit to the children of having a meaningful relationship with both of the children’s parents

1. The father asserts that the orders sought by him will facilitate a meaningful relationship with each of the parents and allow the children to spend significant time with each of the parents and their extended families.

2. Counsel for the father submitted that the children would not be able to have a meaningful relationship with the father if they only saw him once a month until they were in school, and, after they are at school, would not be able to have a meaningful relationship if it was confined to periods of time during school holidays and other periods of shorter duration during school term. 

3. The mother asserts that the orders sought by her will facilitate a meaningful relationship with each of the parents; however, those orders assume that the father will move down to Sydney to participate in the shared care arrangement.  The father made it clear during his oral evidence that he has no intention of relocating to Sydney if I were to make orders that the mother be allowed to do so with the children.  So, the orders the mother seeks relating to the children’s time with their father cannot happen because he will not be coming to Sydney.  I will ultimately conclude that the children will have the benefit of maintaining a meaningful, if not optimal, relationship with their father even if they move with their mother to Sydney and their father stays on the north coast. 

The need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence

1. The father asserts there is a need to protect the children from the mother engaging in behaviour that may lead to the children being subjected to physical or psychological harm, should the mother relapse into having further psychological difficulties if she was to have the sole care of the children in Sydney.  I deal below with the mother’s mental status when considering the mother’s capacity as a parent.  I find that there is no unacceptable risk that the mother will have further psychological difficulties, particularly if she is allowed to move to Sydney. 

2. The mother’s position is that allowing her to relocate to Sydney would reduce the conflict between the parties and thereby reduce the risk of the children being subjected to long term psychological harm arising from long term frequent exposure to that conflict. Dr M agreed that it was likely there would be a reduction in conflict between the parties if they were geographically apart and I accept that is so. 

3. Another possible issue under this heading arises from, paragraph 23 of the mother’s affidavit sworn 17 April 2009, where she describes the father having baths with L: “the father lay in the bath with his legs wide open.  [L] sat upright in the bath in front of him with no alternative, her face directly looking towards his genitals”.  The paragraph ends with the comment by the mother, “The father has a poor gauge for what is sexually appropriate”.  The fact that the mother made this comment at all is of some concern to me.  At this time, from September 2007 to January 2008, L was only approaching two years of age.  The mother did not assert in the witness box that there was any continuing concern felt by her in relation to the father’s behaviour and I find that there was nothing inappropriate in what the father was doing.

Additional considerations

Any views expressed by the children

1. In this case, due to the young ages of the children, this is not a relevant consideration.

Relationships

1. The children have a good relationship with each of their parents and each of their grandparents. 

2. The father is in a new relationship with a woman named Ms K who has two children of her own, aged two and four and a half.  The father told me that he met Ms K in March 2009.  They do not cohabit but the father stays the night at her house one to two nights per week and she stays at the father’s house on rare occasions.  She is employed part time. 

3. Ordinarily, in cases such as these, if one of the parties enters a new relationship following separation then that party’s new partner files an affidavit and is seen in the court room.  That did not occur in this case, so I am unable to make any determination about the stability of that relationship or the extent of Ms K’s involvement with the children.  The father denied that this relationship is one of the reasons why he is unwilling to move to Sydney should I make those orders but I conclude it plays a part in his current unwillingness to consider that option.  The father did not disclose in any of his written material his relationship with Ms K.  It is not an insignificant relationship.  There is some possibility at the current time that Ms K may become a significant person in the children’s lives.

4. Counsel for the father raised as an issue, the mother’s relationship with her own father, who is a member of the household the mother intends to move to and pointed to the comment made by the mother to Dr M that she is “only just getting to know her father”.  I am satisfied on the mother’s evidence however that the mother has a good relationship with her father.

The willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship with the children and the other parent

1. Whilst not optimal, I accept that the father, within the limits of his concern for the children given his view of the mother’s conduct, has encouraged the children to have a close and loving relationship with their mother and her family.  I do not accept that the mother has engaged in conduct that has disparaged the father to the children to any significant extent. 

2. I find that the father did not have, and still does not have, any great insight into the dynamics of the stresses that were on the mother during the breakdown of their relationship.

The likely effect of change

1. The mother’s primary application to return to Sydney is based upon her wish to remove herself from an isolated lifestyle and return to her family home.

2. Counsel for the father categorises this wish as a “Pollyanna” fantasy with the reality being that a 45 year old woman is returning to the home of her elderly parents with two young children and three generations in the house in an untested situation. 

3. Counsel for the mother referred to paragraph 7.17 of B & B: Family Law Reform Act 1995 (1997) FLC 92-755 which reads:-

   “7.17  As we have said there are other reasons why a relocation to another town or another state is seen by the parent to be desirable, in some cases essential.  That includes reunion with family from an otherwise isolated lifestyle after marriage breakdown, occasionally issues of health, and not infrequently to escape violence and abuse by the former partner.”

1. Counsel for the father submitted that artists work all over the place and that it is not a plausible position to say that the mother can only have a career as an artist in Sydney.  I however accept the mother’s evidence that she would be far better placed to advance her career as an artist should she be able to live in Sydney.

2. Based on the evidence submitted I am not satisfied that there is work reasonably available on a casual basis to the mother in the role of nursing on the north coast.  The father tendered a document that he researched on the internet.  The mother made some specific inquiries from the agency that the father had searched on the internet.  I accept the mother’s evidence about what she was told by that agency.  There are significant restrictions on the ability of the mother to work as a nurse on the north coast. 

3. Apart from the fact that the father has established business contacts on the north coast, another reason for his reluctance to return to Sydney is that he fears that in Sydney he will either have to redevelop his business or work full time.  He says that working full time would mean that he would not be able to spend time with the girls which would allow him to have a meaningful relationship.  If that was true, any parent working full time in Sydney would not be able to have a meaningful relationship with their children.  I do not accept the underlying logic of the father’s contention.  I do not accept that the father cannot obtain reasonable accommodation in reasonable proximity to V to enable him to have the children overnight if the father is living in Sydney and working in Sydney.  The father would be able to come back to Sydney but is not prepared to consider it as an option.  The mother on the other hand, even though she would be very unhappy, will stay on the north coast, if that is where the children were. 

4. I accept that at the current time, given the way the father is exercising his earning capacity, the parties do not have a lot of money between them.  I accept that the parties will live ten hours apart if the children come back to Sydney.  It will be a long drive once a month for the children or it will require the parties to fund the cost of air fares.  If the father chooses to remain on the north coast the time that he will have to earn income will increase and I am satisfied that given that he will not have any cost of accommodation, he will have the ability to fund the cost of travel.  He will have the option of travelling by road, but if either of the parties prefers that the children travel by air, then that party could fund the cost of that air travel.

Participating in decision making (Section 60CC(4)(b)(i) FLA)

1. In August 2008 the father described how at some changeovers in the past the mother had tried to engage him in conversation about their personal situation but he was not prepared to engage in conversation. 

2. Each of the parents has, since separation, made decisions about the children unilaterally. 

3. The mother submitted that the father had failed to facilitate the children’s time with the mother after he had taken them back to the north coast and at that time he sought and successfully obtained significant restrictions on the children’s time with the mother in circumstances which we now know in hindsight were not necessary.  This was in circumstances where the father had allowed the children to go to Sydney with their mother on an unsupervised basis and in circumstances where Dr M retrospectively assessed that the mother was no risk to the children at all. 

4. The father has also exhibited a number of “controlling” behaviours.  I formed the impression from his evidence that the move to D was primarily his wish.  It is where his family resides.  He denied that “better surf” on the north coast played any part in his decision and I accept his evidence about that. 

5. The father submits that it is not total conflict between he and the mother.  He submits the parties have been able to agree on “quite a few things”.

6. Counsel for the father points out that the father agreed for the mother to go to Sydney with the children in August 2008, on Christmas and Easter and in August 2009.  In relation to the mother’s trips to Sydney, there have been some negotiations and disagreements between the parties in relation to how long the mother could go for, but the consensus seems to be that on one occasion at least the father allowed the mother to go to Sydney for a nine day period (although the mother wanted a longer period).

7. Exhibit C contains waiting list applications for both L and H for D Community Preschool.  On L’s form, the mother’s name has been added in the column containing the father’s details.  On H’s form, the mother’s name has been added in the column containing the father’s details, and in addition the father’s name has been crossed out.  On both forms, the father’s mobile phone number has been crossed out.  In cross examination the mother was shown H’s form and acknowledged that she had crossed out the father’s name and written her name and also crossed out the father’s mobile phone number.  The mother stated during her oral evidence that there was an updated form from when she subsequently went to the preschool, containing the father’s name and phone number which she had written on and given to the preschool, however that document was not tendered and is not in evidence before me.

8. During re-examination this point was revisited, and the mother was shown L’s waiting list application.  In relation to that application she stated that “it’s not my writing there actually, it’s  someone else’s writing that’s written, “[the mother’s name,” and crossed out the number because I was the one that wanted to be contacted about the waiting list application, so I would know.” L’s waiting list application was subsequently tendered and became Exhibit E, without objection.  I note that L’s waiting list application had already been tendered as part of Exhibit C.  The handwriting on the two forms seems to me to be very similar.  Even if I were to accept that it was not the mother who added her name to L’s form and crossed out the father’s number, I still have her acknowledgement that she did so on H’s form (on which the father’s name has also been crossed out).  What the mother did to H’s form demonstrates some unwillingness to involve the father in the activities of H’s preschool.

9. Exhibits C and E stand in contrast with Exhibit N, which is an enrolment form prepared by the father for H to attend E Community Pre School.  On that form the father has provided the name, address and mobile phone number of the mother, which demonstrates a willingness to involve the mother in decision-making.

10. The parties had taken the children to two different doctors.  Counsel for the father makes the point that the significance of that is lessened by the fact that the parties actually live 30 minutes apart.  It was of course the father’s choice to move from D to E and for him to put 30 minutes between the parties. 

11. The conflict between the parties is evidenced by their inability to effectively communicate at all. This leads me to a consideration of s 65DAA FLA.

SECTION 65DAA FAMILY LAW ACT

1. As the Full Court observed in Starr & Duggan, s 65DAA FLA will provide a useful framework to consider the advantages and disadvantages not only of equal time but also other outcomes which may be in the child’s best interests, including the proposal to relocate.

2. Both parties agree that there should be equal shared parental responsibility. 

3. An order will be made to that effect. That order triggers s 65DAA FLA. I must consider whether the children spending equal time with each of their parents would be in their best interests and consider whether the children spending equal time with each of their parents is reasonably practicable and if it is, consider making an order to provide for the children to spend equal time with each of their parents.

4. If no equal time order is made then I have to move on to consider, in a similar way, substantial and significant time. 

5. Section 65DAA(5) FLA provides that when determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents, the court must have regard to the following things:

   161.1.How far apart the parents live from one another;

   161.2.The parent’s current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents;

   161.3.The parent’s current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind;

   161.4.The impact that an arrangement of that kind would have on the children;

   161.5.Such other matters as the court considers relevant.

6. In relation to those factors:

   162.1.Currently they live 30 minutes apart by car from one another.  If the children move to Sydney that will be increased to ten hours apart by car. 

   162.2.The parents have demonstrated a capacity to implement an arrangement.

   162.3.The parties currently have minimal capacity to communicate with one another.

   162.3.1.When the matter was before me on 8 August 2008, I received evidence from a family consultant, [Ms R], to the effect that an underlying difficulty in this matter is the lack of depth of the parents knowing one another.  As I have said, the history of the parties’ relationship is that the mother fell pregnant very shortly after they met, and they moved in and commenced living together when the mother was pregnant with [L].  They then had two young children and moved to the north coast.  Ms [R] identified those three stresses (no courtship, two children and the move) as fundamentally underpinning the difficulties that the parties had in communicating with one another.  Dr [M] agreed that this lack of any platform for a relationship between the parties was at the heart of their inability to communicate. 

   162.3.2.On 8 August 2008 I made an order in the following terms:

   “The Director of Child Dispute Services or her nominee facilitate arrangements to enable the parents to attend for appropriate post separation parenting counselling and the parties each do all things to attend at any appointments that are arranged by the provider of that service and each party pay half the costs of that counselling.”

   162.3.3.Both parties agreed that they individually saw a therapist who attempted to work with the parties in post separation parenting counselling.  That therapist saw the father on six occasions.  He also saw the mother on a number of occasions.  Both parties agree that he formed the view that it was pointless bringing the two parents together. 

   162.3.4.The father expressed some optimism that if that process was attempted again in the future a different result might be achieved. 

   162.3.5.I have to, in the context of this final hearing, look at the realities of the current situation of the parties.  I have to accept the history of what has happened as a result of my attempt to engage the parties in therapeutic counselling as an indicator of its likely success in the future.  I conclude that the parties’ ability to communicate in the future will be poor.  That conclusion is not just based on the failure of the post separation parenting counselling that I had previously ordered, but on the overall dynamics between the parties and my observations of each of the parties individually during the course of this hearing.

   162.4.It is likely that the impact on the children of forcing a co-parenting arrangement, in circumstances where there is no reasonable prospect the parents can communicate, will be deleterious on the children.

   162.5.There are no other matters I consider relevant pursuant to s 65DAA(5)(e) FLA.

7. Considering all the matters under s 65DAA(5) FLA, I find that given the level at which the parties are able to communicate, it is not in this case reasonably practical for the children to spend equal time with each parent or substantial and significant time with the parent with whom the children do not ordinarily reside.

CONCLUSIONS IN RELATION TO WHAT IS IN THE CHILDREN’S BEST INTERESTS

1. Although prior to separation the mother was the primary caregiver, the children now have a strong attachment to both parents.

2. An order allowing the children to relocate to Sydney with the mother will not preclude the children from having the benefit of a meaningful relationship with their father.

3. There is no need to protect the children from their mother, nor any unacceptable risk of psychological harm in her care, particularly if she is allowed to move back to Sydney.  I find that the mother will feel less isolated and be under less stress in the future if she can return to Sydney.  I am satisfied that the mother’s relationships with her parents are good and she will settle well into their household.  It is not a Pollyanna fantasy.

4. I accept Dr M’s evidence that the mother’s capacity as a parent will improve if she is able to relocate to her parent’s home in Sydney; that this will have a positive impact on the children; that it is likely that the move will reduce the current conflict between the parents.  I find that reduction in conflict is in the long term best interests of the children.

5. I acknowledge a move away from the father will be disruptive for the children.  They will feel a loss.  Travel for contact will be more difficult.  However, against that I must balance the other matters that point favourably towards a move.

6. In this finely balanced case, I find that it is in the children’s best interests to be allowed to move back to Sydney with their mother.

CHANGE OF SURNAME

1. As already mentioned, there is a dispute about the surname by which the children will be known.  The children’s surname is currently “Everly”.  This was an agreement that the parties reached at a time when it was their mutual expectation that they would marry and remain together as a couple on a long standing basis.  The father proposed that the mother’s surname, “Perkins”, be added as another middle name to both L’s and H’s names.  H already has three given names.  That proposal was not accepted by the mother.  The mother’s position is that if I decline to make an order changing the children’s surname to Perkins-Everly, then she wishes for the name to remain as it is, without inserting Perkins as an additional middle name.  Her reason is that middle names are regarded as less important than first and last names and are often abbreviated to an initial.  The father agreed with that position.  Therefore, the choices as put by the parents at the conclusion of the hearing are either a change of the surname of the children to “Perkins-Everly” or that I order no change at all to the children’s names.

2. The mother also sought an order that the costs of the change of name (registration fees etc) be borne equally between the parties.  The father did not speak against that.

3. I am asked to decide whether a change in the children’s surname is in their best interests.  It is the mother’s position that given the current state of parental communication, it is important from the mother’s point of view, given that she has always had the surname Perkins, that the children share her name along with the father. 

4. The mother also submits that it is in the children’s best interests for them to have both of their parents named in a hyphenated surname because it gives them a clear message that reflects their origin.

5. The mother wishes to make this change to encourage the children to identify equally with both parents.  Dr M also referred to identification benefits for the children if the name is hyphenated.  Counsel for the mother also pointed out that in a situation of high conflict, a hyphenated name will serve the dual purpose of reassuring the children of their origin and reducing the chances of one party being ousted from the children’s lives.

6. The father opposed the mother’s application in this respect, based on his experience that children with hyphenated names are teased because of them.

7. I think that in this case where there is a dysfunctional relationship between the parents, there is significant strength in the argument that a hyphenated name will increase the identification of each child with both parents.  I do not regard the possibility of any future teasing by other children as of sufficient gravity to override that benefit.  I find that it is in the children’s best interests that the children’s name be changed to “Perkins-Everly” and that the parties split any associated costs. 

I certify that the preceding one hundred & seventy-six (176) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.  

Associate: 
Date:  6 November 2009