Phillip and Chatsworth

FEDERAL CIRCUIT COURT OF AUSTRALIA

PHILLIP & CHATSWORTH

[2018] FCCA 405

Catchwords:
FAMILY LAW – Application by mother to relocate from (omitted) to (omitted) (1 hour away) – father opposing relocation as likely to lessen or fracture his relationship with the children – mother’s partner relocating
to (omitted) – mother’s desire to relocate genuine and not punitive of father – father’s opposition likewise sincere and not designed to harass mother – distance included not insurmountable – relocation clearly in children’s best interests.

Legislation:

Family Law Act 1975, s.60CC

Goode v Goode [2006] FamCA 1346

Applicant:

MS PHILLIP

Respondent:

MR CHATSWORTH

File Number:

DGC 1550 of 2016

Judgment of:

Judge Burchardt

Hearing dates:

12 & 13 February 2018

Date of Last Submission:

13 February 2018

Delivered at:

Dandenong

Delivered on:

1 March 2018

REPRESENTATION

The Applicant:

In Person

The Respondent:

In Person

Counsel for the Independent Children’s Lawyer:

Mr O’Connell

Solicitors for the Independent Children’s Lawyer:

McCormack & Co

ORDERS

The parties have equal shared parental responsibility in respect of the children, X born (omitted) 2008 and Y born (omitted) 2011 (“the children”).
The mother be permitted to relocate to (omitted) with the children at the end of Term 1 in 2018.
The children live with their mother.
The children spend time and communicate with their father;
(a)until the mother relocates, from 5:30 pm Friday to the commencement of School Monday each alternate week;
(b)upon the mother relocating, from 5:30 pm on Friday to 5:30 pm on Sunday in each alternate week;
(c)for half the School Term Holidays and in default of agreement, the first half.
(d)for half the Long School Summer Holidays as agreed between the parties; and
(e)on Special Occasions such as Easter, Christmas, Children’s Birthdays and Mother’s and Father’s Days by agreement.
Upon the mother relocating, changeover is to occur at (omitted) in (omitted).
The mother is not to permit her brother to be with the children unless one at least of the mother, her partner, or the maternal grandparents are present.
The appointment of the Independent Children’s Lawyer be discharged.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1550 of 2016

MS PHILLIP

Applicant

And

MR CHATSWORTH

Respondent

REASONS FOR JUDGMENT

This is a parenting dispute about the best interests of two young boys: X, born (omitted) 2008, and Y born (omitted) 2011.
The central matter in dispute for present purposes is whether the mother should be permitted to relocate from (omitted) to (omitted), as she desires, or whether she should be required to remain in (omitted), as the father desires. Although I am no wise without sympathy for the father, whose position is entirely understandable, for the reasons that follows it is quite clear the mother should indeed be permitted to relocate, as indeed the Independent Children's Lawyer submits should be the case.

Uncontroversial Matters

The father was born on (omitted) 1981 and works as an (occupation omitted). The mother was born on (omitted) 1982, and works as a (occupation omitted) for a (employer omitted). The parties appear to have met in about 2002 and married in 2006. They then separated on 10 August 2012 and divorced on 17 January 2015.
The father has re-partnered with, and subsequently married, Ms C. Ms C has a son by a previous relationship, A, born (omitted) 2004, and there is a child of the relationship, B, born (omitted) 2014. At no point in his affidavit material does the father depose, so far as I can see, as to exactly when his relationship with Ms C commenced, but from a question put to him in cross‑examination, it may have been either at the end of this relationship or shortly thereafter.
The mother was previously in a relationship with Mr M, whom she married on (omitted) 2015. It is common cause that relationship was a volatile one. The mother is now separated from Mr M, and has nothing further to do with him. The mother has re‑partnered with Mr D in early 2017. He has two children, C, who is 10, and D, who is 8. It should be noted that neither Ms C nor Mr D are on affidavit or were called as witnesses in the proceeding.
Following separation time appears to have proceeded relatively amicably between the parties until April 2016. On 20 April 2016 the father decided not to return X and Y to the mother’s care because of reported concerns about their safety. I will return to this aspect of the dispute in due course, but it is common cause that he took out an Intervention Order against the mother and that they were prevented from seeing her until they were returned to her by Court order on 24 August 2016.
Time has continued on a Friday to Monday each alternate weekend basis, and the father did not receive any overnight time until the last week preceding the long summer holidays in 2017. He has since spent the second half of the school summer holidays in 2018 with the children.
Although the parties have filed a certain amount of affidavit material, including trenchant and vivid criticisms of one another, it is not necessary or appropriate, given the way the trial has run, to traverse those materials. I have of course read the affidavits and have regard to their content.
A previous family report in 2017 in my view has been well and truly overtaken by events. The Court has the benefit of a report from

Ms J dated 29 January 2018. Indeed it is from that report that the details of Mr D, for example, and his children, are taken, because they are not otherwise on affidavit. Neither party sought to cross-examine

Ms J.

The Report of Ms J

Ms J noted that in addition to obtaining an Intervention Order, the father changed the children’s school and day care from (omitted) to (omitted) as it was closer to his residence (paragraph 2). The report noted that the mother continues to reside at the home of her parents in (omitted), where she moved in April 2016. Her parents relocated to (omitted) last year, and are now seeking to sell the property. It was noted that the new partner, Mr D, currently resides in (omitted) but had plans to buy a home in (omitted) to reside close to his children (paragraph 4).
It is not necessary to traverse the findings of the report in any great detail. I should say, however, in passing, that Ms J’s descriptions of what the parties had said to her coincides, as far as I can see, exactly with what they had to say in Court. I note at paragraph 9 the report recorded:
“Ms Phillip presented as still distressed about the father’s decision to withhold the children and stopping her from spending time, see or speak to them for several months. … Ms Phillip also perceived that the legal system was still supportive of Mr Chatsworth despite the fact that he had ‘wronged her and the children by taking them away from her’ which made her angry and hostile towards him. … Ms Phillip seemed convinced that Mr Chatsworth withheld the children to gain legal and financial advantage for him rather than genuinely concerned about the safety and wellbeing of the children.”
It should be noted that Ms Phillip was not slow to accuse the father of having lied and manipulated matters to her disadvantage. The report noted the mother’s concerns that she felt intimidated by her proximity to the father and Ms C (paragraph 16) and likewise her concern that she was tired and stressed about living close to her former partner (paragraph 17). The mother commented unfavourably upon the father moving as he wished when she was not free to do so (paragraph 17).
The report noted problems arising from the mother’s brother, Mr S, who is listed on the sex offenders list. This matter was further explored during the hearing. Mr D was interviewed and he said the relationship started in (omitted) 2017. He was a former (occupation omitted) and is presently employed by the (employer omitted).
The father presented as keen to have extra time with his children. At paragraph 28 the report recorded:
“The father further reported that after X had disclosed to him about the family violence in the home of Ms Phillip reportedly often instigated by her, he had consulted the police and the child protection and as advised by them decided to take out an Intervention Order against the mother. He remarked that ‘I handled it the best way that I could at the time.’”
The father was opposed to the mother’s plan to relocate, and has asserted that this might be a response to his desire for more time (paragraph 32), and also expressed concern that the move might interrupt the children’s sporting activities (paragraph 33).
The interview with Ms C, who also presented to Ms J, was in my view unremarkable. X made it clear that he wished to spend more time at his father’s home (paragraph 48). He might want one or two nights more, but noted that his father and stepmother were busy with their business activities. He enjoyed a positive relationship with his father, stepmother and siblings in his father’s home (paragraph 48).
X did not like his current school, and would wish to change again if he could. He did not mind the move to (omitted), although it might make it hard for him to spend extended time with his father (paragraph 49). He suggested that the move might be delayed for several years. He was concerned that his father might withhold him again.
Y presented to Ms J as a carefree and happy, bright boy. Ms J recorded – uncontroversially, in my view – that both children were primarily and securely attached to their mother and enjoyed a beneficial and positive relationship with their father. At paragraph 56 she recorded:
“… However, after the father decided to withhold the children in 2016, due to his concerns about the family violence incidents between Ms Phillip and her then husband Mr M and the children’s exposure to it, the dynamics of the parenting relationship between the father and the mother seemed to have turned bitter and hostile.”
At paragraph 57 the report recorded:
“… Based on the information received by the Police and Child Protection he had decided that the children should be in his care. Although his argument sounds reasonable on the surface, some of his and the stepmother’s behaviour at the time indicates that they had used the situation to their advantage.”
At paragraph 59-61, Ms J recorded:
“59. It is also noteworthy that at the time the father had withheld the children the mother had moved to reside at the home of her parents and there was no family violence at the home of the maternal grandparents. Even so there was no contact and communication made possible between the children and the mother.
60. On her part, Ms Phillip appears still extremely angry about the incident. Ms Phillip impressed as a person easily perturbed, emotionally intense and volatile. She admits that she was involved in verbally and physically aggressive situations with Mr M. It is noted that although she had not been abusive to the children directly, she must assume responsibility for exposing the children to family violence and to dangerous situation such as her meddling with the steering wheel of a moving car while the children were in the car driven by Mr M.
61. Ms Phillip asserts that the children have become insecure and anxious due to the father’s behaviour, however it is noted that the children are also apprehensive about the future possible volatile incidents between their mother and her current partner as they have been exposed to such situation before by the mother. Although Ms Phillip invests a lot of emotional energy being angry with Mr Chatsworth for what he did, she minimises her contribution to the problematic events that unfolded in her life.”
The report noted that the mother was adamant that she would relocate to (omitted), and would move even without the children. The report noted that there was a castigatory and punitive intent behind this decision. Ms J noted that the children had primarily bonded with their mother and had not reached an age where they could cope well if separated from her.
At paragraph 72 the report recorded:
“If there is relocation of the children, there will be a change of school for the children. Although generally disruptive, the children may also benefit from a fresh start in a country school. The parents need to be mindful that the long-term emotional wellbeing, positive social adjustment and overall optimum progress of the children is based on the quality of the parenting they receive from their parents, conflict free relationship between the separated parents and a cooperative sharing of the children’s responsibilities by the parents.”
Noteworthily – and in my view entirely accurately – Ms J said at paragraph 74:
“Both Ms Phillip and Mr Chatsworth need to forgive each other for their past follies and rebuild a positive communication channel between them if they wish to sincerely assist the children to achieve their best in life.”
The report recommended that the children continue to live with their mother, and in the event of relocation, attend a school close to the mother’s residence in (omitted). She recommended time for the father from Friday, 6:00 pm, until Sunday, 6:00 pm, and shared school holidays with changeovers at a mid-point between the homes; time with Mr S was to be permitted providing that the mother was personally present.
Ms J also recommended that both parents be involved in therapy sessions attended by the children with Ms G, psychologist, and follow her directions as to how to assist the children to overcome their fears and anxieties. Curiously, Ms J’s report in many ways not only replicates the evidence and submissions made at Court but paints an exact picture as to how the matter should proceed.

The Mother’s Opening and Evidence

What follows is taken from my notes.
The mother explained that she wished to relocate to (omitted). She is only in (omitted) because the father had withheld the children, given false information to the Department of Health and Human Services and obtained an Intervention Order against her. She wished to relocate so that her sons and herself could start afresh. Her partner has sold his home. They have support from her parents. Her parents have moved and are looking to sell the former home where she now lives.
The father could have half school holidays, and in the event of long weekends could have an additional Monday or Friday. She wanted matters to be more amicable for the children. She was quite prepared to make the children available for family events should the father have these. The relationship she had used to be amicable.
The mother was called; she adopted her affidavit as true and correct. Under cross-examination by counsel for the Independent Children's Lawyer the mother confirmed that she works full-time, Monday to Friday, from 9:00 am till 3:00 pm. The boys are in before and after‑school care. They are usually at school just before 7:00 am and picked up at 4:00 to 4:30 pm. The mother works at (employers omitted): one in (omitted) and one in (omitted). She wants to move to (omitted), and should she do so she would reduce her employment to Monday to Thursday. This would only be at (omitted). It is a 45-minute drive from (omitted) to (omitted).
The children would be taken to school at 8:15 am and the school in (omitted) has before and after care. There is actually a group of children who walk to school, the oldest of whom – and various others of whom – are 12. There are five of these children and the children might walk with them.
The mother has a friend in (omitted), Ms K, whom she has known from high school, who herself has three children aged 10, 8 and 7. Mr D is her partner and his children would be in the group who walk to school also. The mother complained that she had had to take a full-time job to pay for her lawyers; she will cut back when the Court proceeding is finished. She presently lives in her parents’ house in (omitted) and they have moved to (omitted).
She sees a lot of her parents, either weekly or at least every fortnight. The maternal grandmother works in (omitted) full-time in (omitted), and the maternal grandfather works in (omitted).
The mother met Mr D in (omitted) 2017 and they have been together since then, with some off and ons. The strain of the Court proceeding and what the children say on return from the father has been a stress. Mr D is very good with the children and with her. She and Mr D sit down and chat to the children. The mother asserted that the children have been told, “Mr D will leave your mum, just like everyone else”.
The father has recently relocated to (omitted), 15 minutes from where the mother lives. Before that he was five minutes away in (omitted). She has problems with the father’s wife.
Mr D works for a (employer omitted) and is an ex (occupation omitted). The (employer omitted) covers (omitted) to (omitted), but not (omitted). Mr D works in (omitted), which is 30 minutes’ drive from (omitted). His children come every fortnight and Wednesday, alternate nights. It would be fifty-fifty time between Mr D and his former partner when they move to (omitted).
Mr D’s house sale will go through in (omitted) 2018, and he will move to (omitted) because that is where his ex-wife lives. She and Mr D are looking on the market and will move when the Court case is over. They would let the children finish this term and start afresh in term 2. Her parents are waiting on the outcome of the Court proceedings to sell their home.
When it was put to her that X had told Ms J that perhaps the move should be delayed for several years, the mother asked if she does not move what would happen with Mr D? Everything would be in limbo for two years. She sees Mr D every Monday and Thursday and every weekend. The children have friends now, including some school friends. X would like to move schools. He was at (omitted) but his father put him to (omitted) in 2016. This was when she had not seen the children for four months. She was living in (omitted), next to (omitted), at the time.
X is still upset that he was moved from (omitted). School reports say X is okay, but she has had phone calls saying he is very upset. The mother said she was still angry with the father: “It was five months of my life I will never get back.” The mother said she sees how hurt her children are and she has lost two years of life; the whole process has affected everyone. X has heard a lot of adult discussion. X is looking forward to the move. The father has told the children they will be moving.
The mother says she does not feel safe in (omitted). A car had blown up a couple of streets away. Tellingly she said, “I need to move on with my life.” The mother accepts that X wants more time with his father. It is a one-hour drive from (omitted) to (omitted). In the last eight years the father has not sought extra time. He will have holidays but had not done so until the Christmas holidays, which was shared fifty-fifty. Before that it was just weekends. There are no problems about times at Christmas.
The father has only recently got involved in the children’s sport. She said that she could not see how the Court could keep her somewhere she does not want to stay and repeated that she is trying to move on with her life. The mother said that the husband walked out and left them (a remark which suggested perhaps that the separation was sudden and unexpected). She said that the father was only doing this because of Court and his current partner.
The mother is seeing a counsellor called Ms M, and has done since the end of 2017. X and she need mental health plans. She sees the counsellor every two months. X is anxious and associates Court hearings with his mother disappearing. The children were exposed to violence between her and her ex-husband. The father has seen her with a black eye and asked if everything was okay, to which she responded, “I’m okay.” She did not tell him about her problems. Things used to be amicable until his new wife came on the scene.

The mother would embrace the prospect of counselling with the father. The psychologist with whom X is engaged was engaged without asking if the father had consented. Communications are volatile. The father called her “a toxic human being”. Everything is by text, but both have email. She does not have the father’s email address. Texts are amicable at the moment, this being the case since both of the parents separately did a Parenting After Separation course. Things are tense at changeover.
The mother was extensively cross-examined by the father. It is perhaps not necessary to traverse the questioning in any great detail. The mother’s extremely accusatory attitude towards the father was made even clearer. She blames his present wife for everything. She accused the father of only recently wanting extra time and of walking out when the child was only 18 months old. When it was put to her that she could have taken out an Intervention Order against Ms C, the mother replied that she did not do so because it would cause the children a whole lot of issues. This answer, unlike much of her evidence that was given, suggested insight. The tense and unamicable inter-relationship between the mother and Ms C was only made clearer by the questions put.

The Submissions and Evidence of the Father

The father opened and made it clear that he would prefer the mother not to relocate. They interrelate with A and B and there is another baby due shortly. School holidays have only been in the last two holidays, but he would like an extra night or two, say from Thursday to Tuesday, or Friday to Tuesday. He emphasised the importance of routine. When called to give evidence, the father confirmed that his affidavits are true and correct.
Under cross-examination by counsel for the Independent Children's Lawyer, the father confirmed that he works full-time from Monday to Friday from 7:00 am till 3:30 pm. His head office is in (omitted), but he only goes there to put in his paperwork once a week or fortnight. His work is service or maintenance for bodies such as (omitted), schools and banks. He has had this employment for three years. He sometimes works as far away as (omitted), although his work is usually around (omitted) and (omitted), although he covers (omitted). He does not do overtime. This is so that he can get home to his children.
He has been with his wife for five years this October. She is a (occupation omitted) working for (employer omitted) in (omitted) three days a week. A is 13 and goes to (omitted) High School. His mother drops him off. Next year he will go on his own, whether walking or riding. It is about one kilometre.
B is three years old, and still has two clubbed feet. He wears braces for 14 hours a night and goes to the (omitted) Hospital once a month for check-ups. The new child is due on (omitted) 2018. The father lives at (omitted), which is about a one-hour drive from (omitted). He is renting with the lease expiring in December 2018 or January 2019. He has an option to renew, but will buy eventually. He wants the children settled and happy, and this could be in either (omitted) or (omitted).
The father conceded that (omitted) has become more unsafe over the years, but the children are safe at his home. All his wife, Ms C’s, family live around (omitted). She has a number of siblings. All their friends live in (omitted), and indeed that is where he was brought up. The father complained that a lot of stuff getting back to the mother about him and his wife was not true.
I would interpolate that it is quite apparent both of these parties have been the subject of reports made to them by third parties about the other parent in fashions that are clearly malicious gossip and unhelpful.
The father said that X has picked up on trust issues; everything has changed since April 2016. He kept the children because the DHHS and police advised him to do so and he obtained an Intervention Order on behalf of the children because of what Mr M and X had told them. CPS spoke to X in the home.
The mother was punching Mr M in the head and pulled on the steering wheel of the moving car which caused it to swerve. The mother had hit X accidentally, and would never hit him deliberately. He had not let the mother see the children because she needed to sort herself out. He had contacted her and she screamed at him. He had never stopped the mother from seeing the children, but this had to be supervised. He said the mother could have phoned at any time but did not do so.
He did not trust the maternal grandmother at the time and was scared that the mother might take off with the children. The father can understand that the mother was made very angry by this episode. He, however, acted correctly at the time; in hindsight he should have let the children have time with the mother, supervised by the maternal grandmother. The children did not ask to see the mother at that time.
Mr M made contact with him. X had just made his disclosure, and Mr M gave exactly the same story. He had seen the mother with a black eye and she said she had fallen down at (hobby omitted). Mr M had admitted arguments but said the mother was involved. Mr M saw Y on his birthday, but the mother did not. The father accepted that X had told Ms J he remembered not seeing his mother for four months. He felt sad when he read this. He had never told the children that they would keep the children from her indefinitely. She has been their carer. He had no choice in this. He hoped that the mother would stay in the area for the children. He knows that the mother does not like the area so much; she could, however, move to (omitted) or (omitted). Her partner’s work is in (omitted), which is only a half-hour drive; (omitted) and (omitted) would be less.
The father accepted the mother would be sad and angry if she did not live in (omitted). A is doing very well at school, but needs some friends. There was discussion about various other places and how far away they were, which it is not necessary to traverse.
The father confirmed that he had tried, and asked for more time with the children, but not been granted it. He had one week in the last week of school in 2017, then a couple of weeks in the long summer holidays. The father has seen the children’s school reports which seem okay. He has spoken to X, who says he is going okay, and has a group of friends. He gets into some mischief in class, but this is addressed by the school. The father has been to the school often and says that the Principal says that X is generally a good kid but needs to pay more attention in class.
It was his own idea to talk to the Principal. The father described this as a general health check. X missed his school in (omitted) at the start. He moved the child to (omitted) because it was closer to the mother and his own home. He tried to ask the mother, but she said no. He sent text messages and even a phone call about this. The travel to (omitted) was about 20 to 25 minutes. He had spoken at length with X about this and his friends at (omitted) have gradually fallen away. Counselling for X would be a good idea and he would love to be involved.
Communications with the mother are by text. He has her email address and should use it. He noted that Ms J had recommended counselling and he agreed with this. He would like better communications with the mother, whether she moves or not. When cross-examined about Mr S, the mother’s brother, the father said he used to work with him. He is on the sex offender’s registry. A DHHS lady had said this was for a relationship with a minor. He was told that it was a 13-year-old, not a 17-year-old, as he had understood.
In the ultimate, he would like Mr S to spend only supervised time with the children. Supervision could be by the mother or the maternal grandparents, or Mr D. The father would like to have the children for half the school holidays, depending on which week he would ordinarily have the children anyway. It emerged in questioning that the parties have in fact worked out Christmas and special days by agreement between them.
Under cross-examination by the mother, the father confirmed that he had sent text messages about the school change from (omitted) to (omitted). Cross-examination then moved to the topic of an anaesthetic procedure in which it emerged that the father had not volunteered information about this to the mother who had only found out, as it were, by chance.
When it was put to him that X is not okay at the new school in (omitted) the father said he misses his friends, but likes his new friends, and is now doing better. He had spoken to X about the school, and he has no problems with it. He has said he is bored, but is doing well, and Y is also doing well. In hindsight the father agreed that the period he had withheld the children was too long but he acted on the advice of the DHHS and police. He had spoken to X first. X was crying and told him what had happened.
E is Mr M’s daughter, who was in the car at the time of the incident, and gave the exact same story. Mr M subsequently gave the exact same story. X had given the same story again to the Department and to the police.
The father was further cross-examined about his business with (omitted) but said that this was only restricted to friends and family.

Findings as to the Facts

Despite some residual bitterness on the part of the mother (“he walked out when the boy was only 18 months old”), these parties managed to get along fairly well following separation until April 2016. At that time X reported the mother grabbing the steering wheel of the car driven by Mr M, which was travelling at speed and which scared the children. He also reported being hit by his mother, although it is clear that this was an accidental elbow to the head.
The father acted on this information protectively, following advice from the Department and the police, and withheld the children from the mother until Court orders returned them to her in August 2016. To his credit he now realises that his conduct was excessive. Neither side covers themselves in any glory in this episode. Even now the mother, who remains extremely angry about it, fails to understand the extent of her own shortcomings.
She scared the children in the dreadful incident in the car, and fails to understand that her arguing with Mr M in X’s presence deeply distressed him. She explains away her own conduct all too readily. There is no reason whatsoever to doubt that the father was genuinely concerned by what X told him, and although his action in going to Mr M – whom he knew was estranged from the mother at the time – bespeaks a lack of judgment, the fact is he acted protectively.
However, I share Ms J’s reservation that his was not all there was to it. Consciously, or otherwise, he and Ms C turned the situation to their advantage. Thereafter things have gone from bad to worse in the parties’ interpersonal communications, not helped – as I have indicated earlier – by, it would seem, intermeddling from third parties.
Whoever’s version of past events is correct, I am clear in my mind as to two things: first, the mother’s desire to relocate is genuine. I accept the submission of counsel for the Independent Children's Lawyer that this move is not done to spite the father. Second, I entirely accept that the father genuinely wants more time with his children and has wished to do so for some time. His desire to do so is child orientated and his pursuit of this case has not – as the mother has asserted – been in any way designed simply to give her difficulty. I will deal with other factual matters in my assessment under the statute, but these overarching findings are significant.

The Submissions of the Independent Children’s Lawyer

Counsel submitted that the mother should be permitted to relocate at the end of this term. The father should spend time each alternate weekend from 5:30 pm on Friday to school on Monday until the relocation, whereupon it would have to be 5:30 pm on Sunday. Special days and half school holidays would be appropriate and special days are agreed.
Counsel submitted that the mother does not have to provide compelling reasons for her desire to relocate. It is a matter of balancing the various considerations to see whether relocation is in the children’s best interests. Counsel submitted the children had good relationships with both parents, but had always lived with the mother, who was their primary attachment. The father might be able to move closer, but A will always need to be in (omitted).
There was no holiday time until recently, but even if the change was made, X would still see the other children in his father’s home every two weeks.
Counsel referred to the issue of psychological abuse and submitted that there was some concern of the parents living too close together. They were both raised in (omitted), and the battle lines had been drawn since April 2016. This was having some effect on X, and there had been a sad realignment of family relationships. Counsel further submitted – entirely correctly, in my view – that social media has not been helpful, and that a bit of distance might help; a fresh start was a good idea.
Counsel submitted that if the mother was not permitted to relocate she would take it extremely hard. Her reasons for moving were not trivial. She does not like (omitted). She has been with her partner over a year and has friends in (omitted). Her parents wished to sell and also live in the (omitted) area. She was not moving to punish the father, and if she did not move she would be very sad and this would affect the children.
X has some issues and these may become more serious if the mother is rendered deeply unhappy. It was important that the relationship with the family in (omitted) be maintained, and the family friends. Counsel submitted this might diminish a bit, but would not be lost. Counsel noted that X was not against the move when he spoke to Ms J, although he would like to delay for a couple of years; this was not wise in the circumstances. X was not quite happy at his current school and a new start might be good for him.

Submissions of the Parents

The father’s submissions were short: he would prefer the mother to stay in (omitted). He would wish to continue the bond with himself, the stepmother and half siblings. This would be lessened if the mother relocates and the father feels strongly about this. He submitted that the extra night makes things so much better.
The mother, in her submissions, has said that she understands that the father wants more time but he will not have holiday times. In long weekends his weekends can be extended either to the Friday or the Monday. She was prepared to make the boys available for family occasions on notice. It was important that the boys have the father in their life. She needs to move on. She is looking to buy in (omitted) which is more affordable. She wants to put the whole thing behind her.
It should be noted that both parents, in response to questions from the bench, indicated a preparedness to engage in voluntary counselling to assist them in trying to resolve their difficulties with one another. Counsel for the Independent Children's Lawyer submitted that it was not necessary to make an order where the parties were prepared jointly to do this, and I agree. I expect the parties to engage in counselling to assist them to move on from the embitteredness that they have had in the past.

The Statutory Pathway

The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:
“Summary
[65]    In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).
7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)     the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)     days that do not fall on weekends and holidays; and
(b)     the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)     occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11.     The child’s best interests remain the overriding consideration.”

Equal Shared Parental Responsibility

No one has submitted that there ought not be equal-shared parental responsibility. Although there has been family violence in the children’s lives, the mother is no longer with Mr M and there is no suggestion of family violence in either of the father or mother’s current homes; quite the contrary. The difficulty is that the parties in the past have simply not exercised joint parental responsibility. The father unilaterally changed school in 2016 and made medical appointments without notifying the mother.

The mother has likewise failed to include the father in the counselling process X is presently undergoing. The parties need to understand that the children’s best interests will be served by their not only having joint parental responsibility but exercising it. This means involving the other parent in major long-term decisions about the children’s well‑being, most particularly in relation to health and education.
It is to be hoped that the counselling process will assist them better to do this. It should be noted, that as I saw the matter, the parties’ demeanour in Court – right at the death knock – suggested that each was starting to realise that the other may not be as bad as they previously thought, and that counselling might assist them to address their issues.
It should be noted that I agree with Ms J’s assessment of the mother, who is a person both volatile and labile. She must, in the long term, come to see that it is in her best interest to move on from her perceptions of the father, and in particular her anger about the 2016 events, if she is going to be able to give the children the best upbringing that she can. Likewise the father needs to move on from his concerns, which in many ways are mirror images of the mother’s.

The Primary Considerations - Section 60CC

Everyone agrees that it is appropriate that the children have the benefit of a meaningful relationship with each of their parents, and as indicated there is no need to protect the children from physical or psychological harm. I note, and agree with, the submission of the Independent Children's Lawyer that it may benefit the children for the parents to be at a somewhat greater distance apart.

The Additional Considerations - Section 60CC(3)(a)

X has expressed that he might like to move in several years. Given his age, that view must be approached with a measure of reserve.

Section 60CC(3)(b)

It is clear beyond doubt that the children have a close and primary attachment with their mother. So far as the evidence goes it appears they get along well with the mother’s new partner. Likewise, to the extent that the evidence reveals the matter, they seem to get on well with the two children in the partner’s household.
Similarly, the children get along well with the father’s wife and her two children, and they seem to have good relations with some of the extended family, although – as the evidence shows – there has been some bifurcation in dividing lines drawn between these families since 2016.

Section 60CC(3)(c)

The mother has plainly, at all times, been the person making decisions about major long-term issues, and been the primary carer. Ms J noted some slight failings on the father’s part in his spending time with the children in the past, but I should make it clear that I have no doubt that he now wishes to be fully engaged with them. He has not run this case to cause the mother difficulty. He genuinely wants to spend more time with his children. Whatever deficiencies he may have shown in the past, I am confident that they are indeed historical.

Subsection 60CC(3)(ca)

Both parties have, in my view, by and large properly fulfilled their obligations to maintain the children.

Section 60CC(3)(d)

Separation from the primary care of the mother would, as Ms J put it, plainly be very damaging for the children. Moreover, I note that the father himself has said he never intended to keep the children indefinitely from their mother. It is clear enough that everyone agrees that any significant change in their primary attachment would be devastating for the children.
Insofar as relocation would involve a diminution in time with the father, I accept that this must necessarily be likely to have some effect. Nonetheless, as counsel for the Independent Children's Lawyer correctly submitted, even if relocation takes place, they will still be seeing their father and his household every other weekend and half the holidays. The latter is, of course, a significant overall increase in time spent.

Section 60CC(3)(e)

There are obvious difficulties of transport and distance if relocation is permitted. This will not only impact upon the routine spend-time regime, but will undoubtedly impact to a greater or lesser extent on the children’s sporting activities. X is a keen sportsman and this is likely to be a significant matter for him. Nonetheless, the distances and times involved in this transport are not gigantic. The longest single amount of time complained of is about one hour. As I pointed out during submissions, travel time of one hour is something that afflicts many parents in Melbourne, and would not be thought excessive or unreasonable.
Time spent with a parent in a vehicle is not time denied. The children and parents are still together and can still talk and communicate, albeit to a degree limited by the necessity for the driver to concentrate on their task. It must be said however, that relocation to (omitted) will have some practical expense and difficulty, and this is plainly a factor to which weight must be given.

Section 60CC(3)(f)

Both the parents – and so far as the evidence reveals it, their partners – are well able to provide for the children’s needs, including their emotional and intellectual needs.

Section 60CC(3)(g)

I have already commented more than once upon the mother’s personality. It is volatile and labile. She is given to strong emotions. It is to be hoped that the cessation of these proceedings, and the counselling process envisaged, will assist her to come – most particularly insofar as the father is concerned – to grips with her past difficulties. Having said this, however, she is the children’s primary attachment and carer, and there is nothing to suggest she is anything other than an exceptionally good mother.
The father presented to me as marginally more insightful, albeit only marginally so. He likewise needs to move on from the distrust and difficulties he has had with the mother in the past.
Having said this, I would repeat what I said in open Court. Both these parents are thoroughly decent, law-abiding people, who are living in perfectly satisfactory relationships with partners of whom no criticism is appropriate.

Section 60CC(3)(h)

This is irrelevant.

Section 60CC(3)(i)

Subject to the measures of criticism already expressed, both of these parents have an appropriate attitude to the children and the responsibilities of parenthood.

Section 60CC(3)(j)

There has, of course, been family violence when the mother was living with Mr M, and this has had some effect on X. Counselling should assist him, and so too will the anticipated beneficent effects of the counselling in which the parents are going to engage.

Section 60CC(3)(k)

There is no longer any extant family violence order, and it was taken out in circumstances where it might be thought, in retrospect, to have been an over-reaction. I should repeat, however, that the mother’s lack of insight into the father’s motivation in taking the steps he did in April 2016 is marked.

Section 60CC(3)(l)

It is plainly appropriate to make final orders.

Section 60CC(3)(m)

This brings us at last to the nub of the case: the relocation question. Although there are factors tending against it, taken overall it is plainly in the children’s best interests that relocation be permitted. The mother has good reason to wish to relocate. She wants to start anew. This evidence was given with conviction, and I accept it. Her partner is relocating to (omitted) where they will be able to obtain a home that they own jointly.
Although there are anomalies in this decision, in the sense that she will still, as her partner, have significant travel, there is no doubt that the mother will have friends in (omitted) (and indeed already has some) and her own parents are close by and are supportive.
Conversely, should the mother not be permitted to relocate, she will be totally distraught; prospects of further good interaction with the father are likely to disappear altogether, given the volatility of her personality. Counsel for the Independent Children's Lawyer is correct to say that the Court cannot be held to ransom by the sheer self-serving wishes of the mother, but equally the fact of the mother’s distress and its likely effect upon the children is something the Court has to give weight to.
While the distance involved will be a problem to an extent, as I have already indicated, taken overall the mother’s desire to relocate is of itself entirely reasonable, and taken into consideration with the likely response in the event it is not permitted, the result is clear. It should be noted that I agree that it would probably benefit these parents to have some physical distance between them. The mother no longer likes living in (omitted) (although I suspect her assertions as to its undesirability are somewhat over exaggerated) and X would like a new school in any event.

Conclusion

Although I am keenly aware that the father will be very disappointed with this decision, the net result will be that he will be spending more time with his children than before. He loses one overnight on each alternate weekend, which is a net loss of 26 days per annum, but achieves half school holidays, which is an increase of not less than 42.
Matters, or course, are not to be measured in a purely arithmetic way, but I accept the submission of the Independent Children's Lawyer that he will still see these children each other weekend and his time in the holidays will be substantially increased. Taken overall, I am comfortably satisfied that it is appropriate for orders to permit the mother to relocate to be made at the end of the current school term.
I have drawn draft orders giving effect to these conclusions.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 1 March 2018

[2018] FCCA 405

1 March 2018

Key Legal Topics

Areas of Law

Family Law