Picard & Picard (No 2)
[2025] FedCFamC2F 37
•28 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Picard & Picard (No 2) [2025] FedCFamC2F 37
File number(s): BRC 8521 of 2024 Judgment of: JUDGE BERTONE Date of judgment: 28 January 2025 Catchwords: FAMILY LAW – Where final parenting orders were made on 15 November 2017 for equal time and equal shared parental responsibility – Where Mother is relocating to Perth from City B with or without the children –– Where Mother seeks orders to relocate children to Perth in time for start of new school year - Where final parenting orders are not workable – Where Father opposes relocation and seeks orders that the children live within City B with him – Mother seeks costs for s65DAAA Legislation: Family Law Act 1975 (Cth), Part VII Cases cited: AMS v AIF; AIF v AMS (1999) FLC 92-852
Baghti & Baghti and Ors [2015] FamCAFC 71
Nada and Nettle (Costs) [2014] FamCAFC 207
Penfold v Penfold (1980) 144 CLR 311;
U v U [2002] HCA 36
Whisprun Pty Ltd & Dixon [2003] HCA
Division: Division 2 Family Law Number of paragraphs: 218 Date of last submission/s: 17 January 2025 Date of hearing: 16 January 2025 – 17 January 2025 Place: Brisbane Counsel for the Applicant: Ms K Chesterman Solicitor for the Applicant: Groom & Lavers Solicitors Counsel for the Respondent: Mr T Jordan Solicitor for the Respondent: Best Wilson Buckley Family Law ORDERS
BRC 8521 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PICARD
Applicant
AND: MR PICARD
Respondent
ORDER MADE BY:
JUDGE BERTONE
DATE OF ORDER:
24 JANUARY 2025
THE COURT ORDERS:
1.All previous parenting orders are discharged.
2.The Mother and Father have joint decision making authority for the major long-term decisions concerning the children, X born in 2012 and Y born in 2013 (“the children”) and they shall consult with each other about all matters concerning the children’s long term care, welfare and development, including but not limited to matters concerning:
(a)Health and medical needs;
(b)Education, including selection of schools the children are to attend;
(c)Religion; and
(d)Living arrangements in terms of any changes thereto that would be significantly more difficult for the children to spend time with the other parent.
3.The parents shall consult with each other about decisions to be made in the exercise of their joint decision making responsibility as follows:
(a)Each shall inform the other parent about the decisions proposed to be made;
(b)Each shall consult with the other with a view to reaching terms upon which they may agree; and
(c)Each make a genuine effort to come to a joint decision with the other parent.
CO-PARENTING ARRANGEMENTS
4.The children shall live with, spend time with, and/or communicate with each of their parents for such periods of time, or in such manner, as might be agreed between the parents in writing and, failing further or other agreement, in accordance with the succeeding provisions of these orders.
TIME ARRANGEMENTS
5.Commencing 31 January 2025, the Mother is at liberty to relocate the children’s place of residence to Perth, Western Australia.
6.Until such time that the children relocate to Perth, the children shall spend time with their Father as follows:
(a)From 9:00am on 23 January 2025 until 5:00pm on 30 January 2025.
7.Prior to the Father’s relocation to Perth, the children shall live with the Mother, and spend time with the Father as follows:
(a)The Father be at liberty to spend time with the children in Western Australia during the school term with the provision of at least 14 days written notice being given to the Mother, provided that the children continue to attend school as required and attend their extra-curricular activities as scheduled;
(b)For the time pursuant to this order the time can occur for up to one week each school term;
(c)For the entire Easter school holiday period in 2025; and
(d)For the entire June/July school holiday period in 2025.
8.Upon the Father relocating to Perth, the children shall resume spending time with the parents as follows:
(a)The children live between the parents on a five-night, two night, each week equal time arrangement:
(i)In week 1, with the Father for five nights and with the Mother for two nights; and
(ii)In week 2, with the Mother for five nights and with the Father for two nights.
(b)Changeovers are to occur each Friday after school or at 3pm.
DURING SCHOOL HOLIDAY PERIODS IF BOTH PARENTS ARE IN PERTH
9.The children spend time with the Mother for the first half of the school holiday periods, in odd numbered years, and in even numbered years with the Father.
10.The children spend time with the Father for the second half of the school holiday periods, in odd numbered years, and in even numbered years with the Mother.
11.Provided the Father gives the Mother not less than eight weeks’ notice, each year the Father may elect to spend the whole of one mid-year term holiday with the children for the purpose of spending time with the children in City B.
12.Upon the Father providing the Mother with fourteen days written notice of an intended visit from his mother, father or both of them, or any of the Fathers other family members, the Mother shall propose one additional night each week and the Father shall propose one full weekend (from after school Friday until before school Monday) whilst the Father’s family is in Perth for the children to spend extra time with the Father and his family, provided however that the children spend no less than one night with the Mother in any one week block. This additional time with the Father’s family must not at any time:
(a)Be less than twenty-one days following any trip by the children to Queensland;
(b)Interfere with any block period of time that the children are to spend with the Mother pursuant to these orders;
(c)Amount to more than fourteen days in any calendar year;
(d)Interfere with the Mother’s pre-existing plans, involving the children, during that period which cannot reasonably be re-scheduled; and
(e)Prevent the children from spending less than one night with the Mother in any one week block.
SPECIAL DAYS
13.Notwithstanding any contrary arrangements pursuant to the balance of these Orders, the children will spend time and communicate with their parents on special occasion as follows:
Christmas Day
14.Unless otherwise agreed, the children shall spend Christmas with each parent:
(a)From 10:00am Christmas Eve until 10:00am Boxing Day in 2025 and alternate years thereafter with the mother,
(b)From 10:00am Christmas Eve until 10:00am Boxing Day in 2026 and alternate years thereafter with the father, and
(c)In the event both parents are in the same town on Christmas Day, then the other parent is at liberty to spend time with the children:
(i)for two hours on Christmas Day; at a time agreed between the parents and failing agreement at 9:00am; and
(ii)from 10:00am Boxing Day the following day.
Easter
15.Unless otherwise agreed, the children shall spend Easter with each parent:
(a)Commencing 2025 and in each odd numbered year thereafter, with the Father from 12:00pm on Easter Saturday until 5:00pm on Easter Monday; and
(b)Commencing 2026 and in each even numbered year thereafter, with the Mother from 12:00pm on Easter Saturday until 5:00pm on Easter Monday;
Birthdays
16.The children shall spend time with each parent:
(a)On the birthday of the children, provided both parents are in the same State, unless otherwise agreed:
(i)If a school day, from after school until 5:30pm;
(ii)If a non-school day, from 11:30am until 4:30pm; and
(iii)With the parent who is spending time with the children to be responsible to collect and return the children.
(b)On the birthday of either parent, provided both parents are in the same State, unless otherwise agreed:
(i)If a school day from after school until 6:30pm;
(ii)If a non-school day, from 11:30am to 4:30pm; and
(iii)With the parent who is spending time with the children to be responsible to collect and return the children.
Father's Day
17.The children shall spend time with the Father on Father’s Day from:
(a)3:00pm Saturday until 5:00pm Sunday, with the Father to be responsible to collect and return the children; and
Mother's Day
18.The children shall spend time with the Mother on Mother’s Day from:
(a)3:00pm Saturday until 5:00pm Sunday with the Mother to be responsible to collect the return the children.
CHILDREN’S COMMUNICATION WITH THE PARENTS
19.When the children are spending time with either parent, the other parent shall be at liberty to communicate with the children:
(a)By telephone:
(i)At all reasonable times when one or both of the children wishes to communicate with the other parent;
(ii)At all such times as the children might reasonably request consistent with their daily routines and commitments;
(iii)At all reasonable times when the other parent wishes to communicate with one or both of the children;
(iv)On the children's birthdays; and
(v)The parent that the children are with will, so far as possible having regard to the children's ages, let the children take such calls in private, and without interruption.
(b)Via internet, email, Skype and any such other form of on-line or electronic communication at all such times as the children or the other parent might reasonably request consistent with the children’s daily routines and commitments.
(c)So far as possible, having regard to the children's ages, both parents shall let the children communicate with the other parent in private and without interruption.
20.The children shall be at liberty to use their own electronic devices to communicate with the parent with whom they are not spending time at all reasonable times provided the number and length of such communication is not excessive and they do not unreasonably interfere with the children's time with the parent with whom they are spending time.
21.The parent receiving a call from the children shall exercise consideration and respect for the other parent if the call follows a disagreement between the child and the parent with whom they are spending time ensuring the children are unable to play one parent off against the other.
CHANGEOVERS
22.Unless otherwise agreed, all changeovers occurring on a school day are to take place at the children’s school. On a non-school day:
(a)The Father or his nominee will collect the children from the Mother's residence at the commencement of any time when the children are to be in his care; and
(b)The Mother or her nominee will collect the children from the Father's residence at the commencement of any time when the children are to be in the Mother's care; and
23.The parent that is concluding their time will ensure the children have their items that move between the houses ready to be collected by the children that afternoon, or otherwise that parent will deliver the items to the other parent that evening.
INTERSTATE TRAVEL
24.Unless the parties otherwise agree in writing, the children shall not travel interstate without an adult companion until X is fourteen years of age. Until that time, the parent wishing for the child or children to travel must accompany them or must arrange for a nominee approved by the other parent to travel with them.
COSTS OF TRAVEL
25.The parents are to share the cost of air travel for the purposes of these Orders, which includes:
(a)The cost of four return flights per child per year between City B and Perth, Perth and City B are to be shared equally by the parents; and
(b)The cost of any additional flights in excess of the above are to be paid for by the parent at whose request the children are intending to travel.
SPECIFIC ISSUES
26.During the time the children are with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children; and
(d)Not discuss any adult matters with the children or in their hearing.
27.The Mother and Father shall:
(a)Keep the other parent informed at all times of their residential address, email address and landline contact telephone number and advise of any change to this within 24 hours;
(b)Keep the other parent informed of the names, contact details and addresses of any treating medical or other health practitioners who treat the children and as far as reasonably practicable, the Mother and Father shall use the same medical practitioner for the children's treatment;
(c)Advise the other parent of any medical appointments made for the children in advance of such appointment;
(d)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children;
(e)Inform the other parent as soon as reasonably practicable of any time the children have spent off school or day care whilst in that parent's care for medical or other reasons; and
(f)Should the children be on any medication (whether prescribed by a medical practitioner or not) each parent shall keep the other informed as to the nature of the medication and as far as reasonably practicable, ensure that the medication accompanies the children at any changeover between the parents and in any event, subject to either parent receiving appropriate medical advice to the contrary, each parent shall take all reasonable steps necessary to ensure that any medication being taken by the children whilst in the care of one parent is continued for the children whilst in the care of the other.
28.These Orders authorise any medical or other health practitioners to release the children's medical information to both of the parents.
29.Any education institution which are attended by the children are hereby authorised and empowered to provide to both parents any information about the children's educational progress and school related activities and supply both parents with copies of school progress reports, photographs, certificates and awards obtained by the children. Any out-of-pocket expense connected to any such request shall be the responsibility of the party who made such request.
30.Both parties are at liberty to attend the children's sporting and extra-curricular activities; and any other school event to which parents are typically invited to attend.
CALCULATION OF SCHOOL HOLIDAY TIME
31.For the purpose of special occasion time in these Orders, the school holiday time shall commence:
(a)When a parent's time falls in the first half of the holidays from after school on the day the school term finishes and conclude at 5:00pm on the day calculated to be half of the holidays;
(b)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 and shall end at 9:00am on the day the school term recommences; and
(c)School holidays shall be deemed to commence at the conclusion of school on the last day of the relevant school term and conclude at the commencement of school on the first day of the relevant school term 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 then changeover shall occur at 12 noon on the day deemed to be the middle day of the school holiday period.
FAMILY DISPUTE RESOLUTION
32.In the event of any dispute as to the interpretation, implementation or enforcement of this Order (including any claim by a parent that it should be varied) the parents shall first attend Family Dispute Resolution (“FDR”) with an FDR Practitioner appointed by the parents and make a genuine attempt to resolve the dispute.
33.Failing agreement as to that appointment the parent raising the dispute shall nominate three FDR Practitioners, one of whom shall be chosen by the other parent within fourteen days failing which the initial parent can nominate the mediator.
34.Both parents will attend the mediation, and each will pay half of the costs of the mediator for the mediation.
COSTS
35.The Mother’s application for costs against the Father for the hearing on 20 November 2024 is dismissed.
THE COURT NOTES:
A.All time referred to in these Orders is pursuant to the local time where the children are residing.
B.It is intended that if the parents need to make urgent arrangements for the children to attend Western Australia or Queensland to attend any grandparents last days, and/or funerals, the parents will work together to ensure that all efforts are made to arrange this.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BERTONE
These are parenting proceedings for orders in respect of X born in 2012 and Y born in 2013.
X is 13 years of age and is about to start Year 8. Y turns 12 this year and is about to start Year 7.
The parents were married in 2010 and separated in July 2015.
At the time the parents met, the Father was living in Melbourne and the Mother was living in Perth where she had lived since her birth. In early 2010, the Father secured a work transfer to the Perth office of his employer and the parents commenced living together.
Both children were born in Perth and in early 2014 the family moved to City B.
It is not controversial that the children have lived in City B since 2014.
What is controversial it seems is that the Mother deposes to the move to City B being temporary for a period of two years. The Father does not agree.
In my view, whether or not the parents agreed to the move to City B on either a short or long‑term basis, is not germane to the issue now before me.
Final Parenting Orders were made by Judge Baumann (as he then was) on 15 November 2017 (the “Final Parenting Orders”) and provide for the parents to have equal shared parental responsibility, and for the children to live equally with the parents on a 5/2/5/2 arrangement.
The Final Parenting Orders have now been in place for seven years. The parents have worked hard to co-parent the children in that time. They both agree that the shared care arrangement has worked well for the children.
The Mother now wishes to relocate with the children to Perth. She sought that leave in the original tranche of the proceedings which resulted in the Final Parentings Orders. Needless to say, she was not successful at that time.
The Father opposes the children relocating with the Mother to Perth.
The parents both agree that if they are living in the same place, whether it be City B or Perth, the children should continue to live in the equal time arrangement.
THE PARENTS’ POSITIONS
The Mother was represented by Ms Chesterman, of Counsel.
The Father was represented by Mr Jordan, of Counsel.
The Mother has sold her house in City B and is living with her father in Perth. At the time of the trial before me, she and the children had been spending some of the school holidays in Perth, before their scheduled return to Brisbane on 22 January 2025.
The Mother’s position is that she is going to live in Perth, whether or not the children are living with her.
The Father opposes the children relocating to Perth. He says the Mother is choosing to move to Perth, and the consequence of that choice being that the children ought to remain in his primary care in City B.
The Mother’s Case Outline filed 15 January 2025 sets out her proposed orders for three possible scenarios:
(1)Proposal A – the children reside with both parents in Perth and continue the equal time arrangement;
(2)Proposal B – the children reside with their Mother in Perth and spend time with their Father, who would live in City B; and
(3)Proposal C – the children reside with their Father in City B and spend time with their Mother, who would live in Perth.
The Father’s Case Outline filed 15 January 2025 sets out his proposed orders for three possible scenarios:
(1)Proposal A – the children reside with the Father in City B and spend time with the Mother, who would live in Perth;
(2)Proposal B – the children reside with the Mother in Perth and spend time with their Father, who would live in City B; and
(3)Proposal C – if the children are living in Perth with their Mother, and if the Father chooses to relocate to Perth, then the equal time arrangement would resume.
The parents agree that they will continue to make joint decisions about the children’s major long-term issues, irrespective of where they each lived.
There was a great deal of commonality contained in each of the parent’s orders that showed they were able to agree to many issues.
CONSENT MINUTES
At the end of the evidence, and during submissions, Mr Jordan and Ms Chesterman advised me that the parents had worked to create one document which sets out the orders that were agreed and those orders that require my determination. The orders that remain in dispute are referred to as proposals A and B.
This document is Exhibit 1.
Proposal A sets out the proposed orders in the event that I grant the Mother liberty to relocate with the children to Perth. This is the Mother’s preferred position.
Proposal B sets out the proposed orders in the event that I decide the children ought to live with the Father in City B. This is the Father’s preferred position.
After I reserved my decision, my Chambers received correspondence on 20 January 2025 and 22 January 2025 from each of the legal representatives of the parents advising of me of some changes to the orders in Exhibit 1.
By consent, I have received and have considered:
(1)An amended minute of proposed orders – Exhibit 2; and
(2)A small bundle of correspondence from each of the Solicitors dated 22 January 2025 – Exhibit 3.
The parents have largely agreed to consent orders for the remainder of the parenting orders. Counsel for the Mother advised that the agreed orders are from paragraphs 18 to 32.
Those orders to which the parents have agreed provide for:
(1)Interstate travel;
(2)Special days;
(3)Costs of travel;
(4)Specific issues including:
(a)Privacy of the children;
(b)No denigration of the other parent;
(c)Not discussing adult issues with the children;
(d)Keeping the other parent informed of all medical appointments, medication or health issues; and
(e)Keeping the other parent informed about their residential address, email address and phone number.
(5)The usual suite of authorities;
(6)Calculation of school holiday time; and
(7)Family dispute resolution.
ISSUES FOR MY DETERMINATION
The remaining issues for my determination are:
(1)Whether it is in the children’s best interests to live with their Mother in Perth;
(2)Whether it is in the children's best interests to live with their Father in City B; and
(3)Whether I ought to make a costs order against the Father for the hearing on 20 November 2024.
MATERIAL READ
I have read and considered the material relied upon by each party, and exhibits tendered at the trial, which includes:
(1)Mother’s Amended Initiating Application filed 15 January 2025;
(2)Mother’s Affidavit filed 11 October 2024;
(3)Mother’s Affidavit filed 16 December 2024;
(4)Mother’s Financial Statement filed 16 December 2024;
(5)Affidavit of Ms C filed 11 October 2024;
(6)Mother’s Case Outline filed 1 November 2024;
(7)Mother’s Case Outline filed 15 January 2025;
(8)Father’s Amended Response filed 27 November 2024;
(9)Father’s Affidavit filed 29 November 2024;
(10)Father’s Affidavit filed 19 December 2024;
(11)Father’s Financial Statement filed 19 December 2024;
(12)Father’s Case Outline filed 15 January 2025;
(13)Affidavit of Ms E filed 10 December 2024; and
(14)Exhibits 1, 2 and 3.
I have considered the evidence and submissions made on behalf of the parties. I am not required to mention every fact or argument put forward by a party, and I do not propose to address every submission made.[1]
[1] Whisprun Pty Ltd & Dixon [2003] HCA 45; Baghti & Baghti and Ors [2015] FamCAFC 71.
Where in the reasons that follow I made statements of fact, these should be regarded as findings of fact.
THE MOTHER’S PROPOSAL FOR THE CHILDREN TO LIVE WITH HER IN PERTH
The Mother was born in Perth and lived there until she was 32 years. She and the Father met when he was working in Melbourne, and they were married in Perth.
Both children were born in Perth. The parents then agreed to move their family to City B when X was around 2 and Y was an infant.
The duration of the move to City B is not agreed, but there is no dispute that the reason for the move to City B was to be closer to the paternal family.
The Mother’s father is aged 74 and her mother is aged 71. Her parents have been divorced for many years, but have remained amicable and live nearby each other in Perth.
The Mother’s evidence is that her father’s health has deteriorated – he has medical conditions and other elderly impairments that impact his day-to-day life.[2]
[2] Mother’s Affidavit filed 11 October 2024, page 6, paragraph 26.
The Mother’s evidence is that the maternal grandmother’s health has deteriorated significantly over the last few years. In addition, the maternal grandmother lost her husband, Mr D, in 2023. The Mother has therefore flown back to Perth more often to assist her.
In 2024, the maternal grandmother had an operation which resulted in the maternal grandmother being in intensive care. The Mother stayed in Perth then for two weeks so she could visit every day and talk to the doctors.
Then in mid-2024, the maternal grandmother had a further operation. The Mother’s evidence is that she was not able to fly back to Perth for that procedure, having already flown back to Perth four times by that stage and was planning a trip in late 2024 with the children. [3]
[3] Mother’s Affidavit filed 11 October 2024, page 6-7, paragraphs 29 - 33.
In late 2024, during her visit to Perth, the Mother observed how her mother’s health was affecting her. During a shopping trip, the maternal grandmother had a dizzy spell and fell. Both her mother and father have told her that this happens frequently.
The Mother’s evidence is that her frequent trips to Perth have been disruptive to the children’s routine.
The Mother’s evidence [4] is that the decision to leave Queensland is the most heartbreaking and difficult decision of her life and has not been taken lightly. As an only child, she says she feels obliged to be in Perth with her parents when they need her. She wants the Father to move to Perth as well so that the children can remain in their equal time care arrangement.
[4] Ibid, paragraph 10.
Mr Jordan cross-examined the Mother about the inconsistencies in her affidavit evidence and the lack of medical evidence to support her assertions about her mother’s health.
The Father accepted in cross-examination that he was not suggesting the Mother was orchestrating some story to justify her move to Perth, and that there are serious medical issues that the Mother has based the move on.[5]
[5] Transcript of proceedings, day 1, page 49, lines 1-8.
The Father also accepted that he had not sought the disclosure of medical evidence through his Solicitors.
I do not consider the discrepancies in the Mother’s affidavit evidence are of great moment.
The Father has been aware for some time that the maternal grandmother was unwell, and he seemed not to challenge that.
I do not accept that the Mother ought to have produced medical evidence of the gravity of her parents’ deteriorating state of health, and prognosis, to support the need for the Mother to move now.
The Mother’s reason for moving to Perth is relevant, but as the High Court has said, [6] she does not need to show “compelling reasons”.
[6] AMS v AIF; AIF v AMS (1999) FLC 92-852.
Advantages
The Mother contends there are the following advantages to the children moving to Perth with her:
(1)The children will be able to spend more time with their maternal grandparents and will have the opportunity to build on their existing relationship;
(2)The Mother and children will have long term secure accommodation by living in the home of the maternal grandfather. This is the home they stay in during visits to Perth.
(3)The children are familiar with this home and they already have their own bedroom and their own space;
(4)The Mother proposes the children attend F School, which is the school she herself attended. The Mother organised a tour at the school for the children to reduce their angst and worry. The school is in walking distance from the maternal grandfather’s home;
(5)Y has made two friends from the times she has visited Perth. These are the daughters of one of the Mother’s friends – G and J – they live next door to the maternal grandfather’s home. These neighbouring girls will also be attending F School;
(6)The children will be able to stay in regular telephone/electronic contact with their paternal relatives and their friends;
(7)The paternal relatives can visit the children in Perth and the children will still be able to see family and friends when they visit City B;
(8)The Mother has a close and loving relationship with her parents. She describes her father as her best friend.[7] She will be able to care for her parents by living nearby, without having upheaval to the children of the frequent travel between Queensland and Western Australia;
(9)Since the Final Parenting Orders were made in 2017, the Mother has continued to struggle with her mental health and has been unhappy. She says she will be a better Mother to the girls living in Perth;
(10)The Mother’s financial situation will improve as she will be able to live rent-free with her father, and she will not have the expense of flying so frequently between Queensland and Western Australia to care for her parents. She has already secured full‑time employment in Perth;
(11)Being a larger city than City B, Perth offers the children more opportunities for education, university and has the advantage of nearby beaches;
(12)Y and her Mother are sports fans, and they can enjoy some home games, including participating in the activities that that come with being a club member. Y wants to play sports and has dreamt of playing for her favourite team;
(13)X, like her Father, is also a sports fan, and so I assume she will be able to watch his team when they go to play in Perth;
(14)The Father has lived in Perth and has worked in Perth. She says that he should be able to able to get a work transfer to Perth;
(15)The Father still has friends in Perth with whom he recently caught up; and
(16)The Mother will help the Father to secure appropriate accommodation, should he wish to move to Perth too.
[7] Mother’s Affidavit filed 11 October 2024, page 23, paragraph 120.
Disadvantages
Having considered the affidavit evidence, and heard the cross-examination of the parents and Ms E, I find the following disadvantages to moving the children to Perth:
(1)Unless the Father moves too, the children will no longer see their Father as frequently as they do now;
(2)The children have lived in an equal time arrangement for seven years. They have not lived away from their Father for longer than a two-week holiday;
(3)The children have lived most of their lives in City B and have close relationships with their whole extended paternal family who live nearby. They will no longer be able to see their extended paternal family as regularly as they do now;
(4)X loves her school and has close friends. She has expressed a strong wish to remain living in City B. Moving to Perth will go against X’s wishes; and
(5)The children have no lived experience of living in their Mother’s primary care away from their Father.
THE FATHER’S PROPOSAL FOR THE CHILDREN TO LIVE WITH HIM IN CITY B
The Father’s preferred position is that the children remain living with both parents in City B.
The Father accepts that because the Mother has already moved to Perth, his proposal is for the children to live in his primary care in City B.
The Father says that the Mother is choosing to move to Perth, therefore causing the equal time arrangement the children have enjoyed for many years, to be changed.
Advantages
The Father contends there are the following advantages to the children living with him in City B:
(1)The children have spent almost all of their lives living in City B and have very close relationships with his extended family. They love spending time with their cousins and have many sleepovers with their grandparents, aunts and uncles and cousins;
(2)The Father’s parents, Mr H and Ms K, live in City B, only a few minutes’ drive from the Father’s home that he shares with the children. His sister, Ms L, lives with them;
(3)The Father has two other siblings, Ms M who lives approximately 40 minutes away and Mr N who lives in Suburb O;
(4)He is living in a property owned by his sister, which provides him and the children with secure long-term accommodation. He says the rent that he pays his sister is reduced rent compared to market value;
(5)Whilst in the Father’s care, the children have been living in the Father’s home since Christmas 2023 and they are familiar with this home;
(6)X has already started High School at P School and she will start year 8 in 2025. She loves her school. X has made many friends and enjoys spending time with these friends outside of school hours;
(7)X has recently commenced playing under 12 sports along with one of her school friends, Q. The Father is involved with the club, volunteering as coach;
(8)X has expressed a strong wish to remain living in City B and living with her Father in City B is in accordance with her wishes;
(9)Y is due to start grade 7 at P School. She has also commenced under 12 sports on the same team as X and both children have made some wonderful new friends; and
(10)The children will continue to enjoy the stability of the life they have lived in City B, the close relationships they have with the Father and the extended parental family, and continue to attend the school that X has commenced attended and that has been previously agreed that would be attended by both children.
Disadvantages
Having considered the affidavit evidence, and heard the cross-examination of the parents and Ms E, I find the following disadvantages to the children moving into the Father’s primary care with the their Mother living in Perth:
(1)The children will no longer see their Mother as frequently as they do now;
(2)The children have lived in an equal time arrangement for seven years;
(3)The children have not lived away from their Mother for longer than a two week holiday;
(4)One of the benefits of the equal time arrangement and the parents living in proximity to each other, has enabled the children at times spend an extra night in the care of the other parent and spend the night away from each other. This cannot occur if the children are living primarily with their Father and their Mother is on the other side of the country;
(5)There have been times where each of the children has wanted to be with their Mother, particularly at sensitive times for these young girls such as when they have had their period, and this will no longer be able to continue;
(6)The Father thinks the children will cope with the Mother not remaining in City B in close proximity to the children and he conceded that it was hard to know and thought that Y may be more affected;[8]
(7)The children do not have their own room, they have to share their bedroom. This is problematic given X’s comments to the report writer that one of the options she had thought about was that she would stay living with the Father in City B and that Y would go to live with the Mother in Perth. The Father said in cross-examination that the children can have their own room. If that is so, I do not know why they are currently sharing a room. Both parents have given evidence that the children have wanted a break from each other, and this is less likely to able to occur when they are sharing a bedroom and do not have their own space; and
(8)The children have no lived experience of living in their Father’s primary care away from their Mother.
[8] Family report of Ms E dated 4 December 2024, paragraph 3.30.
LEGAL PRINCIPLES
In considering parenting orders, I am required to consider the objects of Part VII of the Act.
Section 60B Objects of Part
The objects of this Part are:
(a)To ensure that the best interests of children are met, including by ensuring their safety; and
(b)To give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
In deciding whether to make a particular parenting order, I am required by section 60CA to regard the best interests of the children as the paramount consideration.
Section 60CC sets out how a court determines is in a child’s best interests.
Section 60CC
Determining child’s best interests
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a)Consider the matters set out in subsection (2); and
(b)If the child is an Aboriginal or Torres Strait Islander child – also consider the matters set out in subsection (3).
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)The child; and
(ii)Each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)Any views expressed by the child;
(c)The developmental, psychological, emotional and cultural needs of the child;
(d)The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)Anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)Any history of family violence, abuse, or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)Any family violence order that applies or has applied to the child or a member of the child’s family.
In proceedings for parenting orders, s60CA of the Family Law Act 1975 (Cth) (‘The Act’) states I am to have regard to the children’s best interests as the paramount consideration.
S60CC sets out the factors I must take into account to determine the children’s best interests.
Safety of the Children and Each Parent
Neither parent is raising any risk issues for the children in the other parent’s care. It is a credit to the parents that they have co-parented effectively for the last seven years. They both agree that if they were to remain in the same place, neither parent has any hesitation to continue with the equal time arrangement.
There is no evidence before me of any family violence or protection order in favour of, or against, either parent, and there is no evidence of any family violence allegations.
I am satisfied that on either parent’s proposed orders those orders will promote the safety of the children.
Any Views Expressed by the Children
X
X is aged 13 and has completed Year 7 at P School. X is due to commence Year 8 this year. X was interviewed by Ms E on 3 December 2024.
X expressed strong views to Ms E in her interview. At paragraph 5.6, X stated she knew the interview was due to her Mother wanting to relocate the children to Perth with her but she wants to stay in City B. X said she is settled at her school and does not want change again.
X’s wish is to remain in City B and travel to Perth for the school holidays to visit her Mother.
X said to Ms E that she wanted the people who make the decision about her family to know that she does not want to go and that she would be very upset if she was ordered to move.
In cross-examination, the Father said that he knows X does not want to move to Perth and that she is settled in City B. The Mother in her cross-examination acknowledged that X has expressed strong views about not wanting to move to Perth.
Mr Jordan cross-examined the Mother about X’s views expressed at 5.6 that she would be very upset if she was ordered to move to Perth with her mother. The Mother responded: “[X] would be very upset if I did not take her to the shopping centre to buy make-up.” [9]
[9] Transcript of proceedings day 1, page 32 lines 16 – 17.
The Mother was cross-examined about X further. She was asked if X was mature for her age. The Mother said “yes and no.” After Mr Jordan concluded his cross-examination, I then asked the Mother what she meant by that and she said,
“[X] is a mature girl for her age at 12 and now – and now 13. But [X] still has moments of being very immature as well. And one of the examples – it’s probably a terrible example, but we were going up to Woolworths one day, and she was carrying – and I asked her to get the shopping bags out of the car. And then as soon as she got out of the car, she said, “I’m not carrying these. You’re carrying these. This is embarrassing”. And I was just like, “Oh, I” – you know, mucking around with her, saying, “I didn’t realise carrying shopping bags for your mother was so embarrassing”. But she’s very much a child that – and at that age, they’re worried about what their peers think of her, and how they see her and things like that.”[10]
[10] Transcript of proceedings, day 1, page 36 lines 21 – 36.
I took the Mother to mean that there are many things that X, at her age, would be very upset about. I have little doubt the Mother is right about that.
The Mother said that X did not have all the information when she met with Ms E for the family report interviews. I asked the Mother what information she thought X should have had that she did not have, the Mother responded: “At the time of the report writer, she didn’t know that her dad was – may have moved to Perth with her.”[11]
[11] Ibid, page 36, lines 44 – 46.
The Mother said that she thought that it would have made a difference to X’s view because “[X] would be more relieved that she would have both parents.”[12]
[12] Ibid, page 37, lines 27 – 34.
The Father said, “I don’t believe it would have changed X’s position on whether she would want to relocate.”[13]
[13] Ibid, page 54, lines 34 – 36.
When Ms E was cross-examined in respect of X’s interview with her, Ms E said that:
“[X] said to me, ‘We’ve got a plan A, B, C and D actually. We’ve got a plan A which was to stay in the [City B] area for her to spend time in Perth for the holidays and mum would come over when she could. Plan B would be to go to Perth.’ She did say that – and I have got it in words – that ‘that would upset me.’ She would hope that if that had to happen that her dad would move as well. And she also said plan C would be – so that plan B, going to Perth, but her dad going over. Plan C would be her staying in [City B], but her mum in Perth, and she admitted that she would miss her mum, but she was quite savvy with technology, Facetime, talking on the phone quite a lot. And plan D she identified is, [Y] could go there, but she said, ‘I don’t think that would happen, because I don’t think mum and dad would let us live separately.’ So she was a young girl that had given some significant…solutions, in my words- they are my words – that [X] had come up with herself. So once she had raised those solutions with me, we talked about that.[14]
[14] Ibid page 72, line 44 – page 73, line 30.
These plans were not fully described in the family report. Ms E said in her cross-examination that X, when expressing plan B (i.e. the move to Perth) said she hoped the Father would move too. By articulating these four plans, it seems to me that X has considered the different scenarios. She clearly prefers plan A, which is to remain in with her Father in City B. However, Ms E evidence in cross-examination provides more context from her interview with X than was expressed in the family report.
Ms E formed the view that X was a mature young person. However, as Ms E confirmed to me during her cross-examination, X has never had a care arrangement where she has lived primarily with her Father and has not been able to see her Mother each week. For most of X’s life, she has been in the continuous care of both of her parents.
I asked Ms E about the paragraphs in her report relating to X’s interview and in particular the reference to X saying that she will miss her Mother. Ms E agreed that X does not have a lived experienced of being without her Mother.
Ms E said whether that would have a detrimental impact on her (X) when she has that lived experience, Ms E said, ‘We don’t know. So she’s certainly at that age, which is really a difficult age for most teenage girls, where they - you know, they’re going through a lot of different changes’.[15]
[15] Transcript of proceedings day 1, page 85, lines 28-30.
Ms E stated during cross-examination, quite rightly, that as we do not have a crystal ball, it is difficult to know how X will go with the reality of living away from her Mother. Ms E said that a few months down the track, X may re-think her connection and miss her mum.[16]
[16] Ibid page 87, lines 35-44.
Ms E said, “And without a crystal ball, whilst [X] says she will be fine, and she understands that her Mother needs to go, whether [X] in six months’ time feel very differently and whether that will cause her some emotionally distress at not being able to spend that girl time with her Mother, that is certainly a possibility.”[17]
[17] Ibid page 85, lines 5-9.
I accept that X has expressed a strong view about her preference to remain living in City B with her Father. X loves her school and has many friends. However, her friendships may change, and her school life may change.
I accept Ms E’s evidence[18] that as a teenager, social connections become extremely important to them so that for X, if I make an order that she is to relocate to Perth, that will be something she will have to adjust to and she will adjust to better if she has the support of both of her parents.
[18] Ibid page 83, lines 34-38.
I must balance X’s views in the context of X not having a lived experience of being in her Father’s primary care away from her Mother.
Y
Y is aged 11 and has completed grade 6 at R School . Y is due to commence high school this year. Y’s high school is currently unknown. Y was interviewed by Ms E on 3 December 2024.
Y expressed contrasting views to X.
It seems that Y has a closer relationship to her Mother.
Y stated to Ms E that she wishes to move to Perth as she thinks City B is boring and that there will be more opportunities in Perth for her.
Y has a strong desire to do arts and told Ms E that her Mother and her Nanna informed her that the best arts school is in Perth.
In her interview with Ms E, Y was asked to describe her relationship with her parents, and she said she has a strong relationship with her Mother and told Ms E that she thinks that they “have things in common”. She said that she loves that her Mother “can talk to me like an adult”.[19]
[19]Family Report of Ms E dated 4 December 2024, page 21, paragraph 5.14.
I do not accept that the Mother has consciously influenced Y.
In cross-examination, I asked Ms E what the impact on X would be if her Mother moved to Perth and she remained living in City B with her Father.
Ms E answered, “so I think it would be more detrimental for Y. I think that she appears to have the closer relationship to her Mother. I’m not saying that she hasn’t got a meaningful relationship with - with her Father, but she seems to be, on what she says, very close to her – to her Mother.”[20]
[20] Transcript of proceedings, day 1, page 84, lines 41-44.
In the Father’s interview with Ms E, he said that he thinks the girls will cope (living with him and with the Mother moving to Perth). However, he conceded it was hard to know and thought that Y may be more affected.[21] I take this to mean that the Father agrees that Y has a close relationship with her Mother.
[21] Family Report of Ms E dated 4 December 2024, page 18, paragraph 3.30.
Unlike X, Y did not discuss alternate plans with Ms E. Y wants to live with her Mother in Perth. Moving Y to Perth with her Mother would be in line with her expressed views.
The Developmental, Psychological, Emotional and Cultural Needs of the Children
X and Y have been well cared for by both of their parents who have worked very hard to make sure the children have all of their needs met.
I accept Ms E’s description of the children as being charming young girls who are really well behaved which is a tribute to the parenting that they have received.[22]
[22] Transcript of proceedings, day 1, page 83, lines 24-26.
Both the children are doing very well academically and have many extra-curricular activities to enjoy.
The girls are well loved by their parents and their extended family on both sides.
On either parent’s preferred proposal, there will be a significant change in the care arrangements for these two children.
The Capacity of Each Parent to Provide for Each Child’s Needs
The Mother
In cross-examination, the Mother stated that X is a 12 year old girl (X has just turned 13) and still has moments of being very immature as well. She gave an example of being at the supermarket one day and how she behaved that way was an example of what the Mother was telling me that X is very much a child who is worried about what her peers think of her.
The Mother said that on the one hand you have a child that has initially said she does not want to move to Perth because it is scary, and change is scary. But on the other hand, X does not want to help carry shopping bags because she is embarrassed about what her friends are going to think about her. The Mother said no doubt that the Father would see the same.[23]
[23] Transcript of proceedings, day 1, page 36, lines 21-36.
The Mother also states in her affidavit that the children frequently talk to her about ‘secrets’ that they do not feel comfortable talking to their Father about. The Mother believes the children choose to confide in her as she ‘talks to them like an adult’ and shows compassion and understanding. The Mother does not believe the Father shows the same compassion and understanding to the children.[24]
[24] Mother’s Affidavit filed 11 October 2024, page 18, paragraph 96.
On an occasion that the children were spending time with their Father, Y requested that the Mother attend the Father’s home to talk to her as she has gotten her period.[25] The Mother reports that Y was embarrassed and only wanted to talk to the Mother.
[25] Mother’s Affidavit filed 11 October 2024, page 18-19, paragraph 97.
In respect of X’s comments to the family report writer, I asked the Mother if she was asking me to disregard X has specified to the report writer. She replied:
‘I can understand what you have read from [X]. And I – and I understand, because I can put myself in the– her shoes. And I get it. But she has never lived in Perth – or very rarely in Perth. And she would be okay. And I know that. I would not be here if I didn’t believe my children were best suited into [City B]. I honestly wouldn’t. I wouldn’t do that to my children. I wouldn’t do that to [Mr Picard].[26]
[26] Transcript of proceedings, day 1, page 39, lines 34-39
The Mother’s evidence is that she has struggled with her mental health. The Mother’s mental health was raised as an issue in the first tranche of proceedings and Dr S completed a psychiatric assessment.
I do not have the evidence of Dr S before me, but I do have the findings made by Judge Baumann (as he then was) in the Judgment he delivered in this matter on 13 October 2017.
At paragraph 31, his Honour references the following from Dr S’s evidence:
“…the issue of the Mother’s relocation to Perth is certainly complex. It would be my view that the Mother remaining in [City B] is in fact a perpetuating factor in her mental health difficulties and whilst I am of the view that she may well be able to overcome these difficulties my view would be that that the Mother would benefit considerably from moving closer to her family and friends. Of course, whether this is in the best interests of the children is a different matter. It would certainly not be my view that the children would be at risk of harm in the care of the mother if she were to remain in [City B]”.
At the time of the judgment before his Honour, Judge Baumann (as he was then), the Mother was in a new relationship and she was coping quite well.
The Mother’s current clinical psychologist, Ms C, provided an Affidavit filed 11 October 2024 and was cross-examined in the hearing before me.
The Mother had been attending Ms C since October 2023, under a mental health care plan, drafted by the Mother’s general practitioner Dr T, which cited anxiety and depressed as reported issues.
Ms C’s evidence is that the Mother’s symptoms and reports are more consistent with situational anxiety, which is usually a temporary form of stress that occurs in certain situations. She opines that for the Mother, that this is the stress and concern regarding her own mother’s health and the distance she is from her.
I accept Ms C’s assessment of the Mother as being someone who views her role as a Mother as equally important as her role as a daughter. I also accept her assessment that the Mother is impacted by feelings that she is letting her daughters, X and Y, down and is abandoning them (by her decision to move to Perth).
Ms C does not hold any concerns for the Mother to care for herself and her children and maintain employment regardless of the outcome of these proceedings.
I find that the Mother is appropriately accessing medical support for her mental health and I do not have any concerns about her ability to care for the children.
The Father
The Father has been able to care for the children in an equal time arrangement with the Mother for the past seven years, but he has not had the children in his primary care for an extended period of time.
The Father’s evidence is that the children have the benefit of close relationships with the paternal family, which includes the children having many sleepovers with their grandparents, aunts, uncles and cousins.
The Father works full-time and when he was unable to access sufficient leave to take his full week with the children during the June/July school holidays, the children went on a road trip with his parents. This road trip must have been before the deterioration in the health of the paternal grandfather.
The paternal grandfather was diagnosed with dementia in 2019, and his condition has worsened after moving from the property in mid-2021. He is now fully dependent on the care of his wife, the paternal grandmother, and his daughter Ms L, who now lives with the paternal grandparents.
The Father’s evidence is that in the last two years, he has needed to assist his mother helping his father with everyday tasks, such as showering and toileting.
The Father said his mother is caring for his father in their home currently, but it is quite a burden for her.[27] He said his sister, Ms L, cares for her father “when her own health allows her to do so.” [28]
[27] Father’s Affidavit filed 29 November 2024 paragraph 24
[28] Ibid paragraph 29
On one occasion the paternal grandmother was in hospital and so the Father was required to stay overnight. His evidence goes on to say that the paternal grandfather is fully dependent on the care of the paternal grandmother or other family members.[29]
[29] Ibid. paragraphs 26 – 27.
The Father’s other sister, Ms M, lives with her family some 40 minutes away in Town V.
The Father’s brother, Mr N, lives with his family in Suburb O, Brisbane which is a great distance away from City B. Mr N’s wife is expecting their third child.
In the Mother’s affidavit[30] she discusses some recent events which she says show that the children would struggle to live with the Father and only spend time with her in the school holidays.
[30] Mother’s Affidavit filed 11 October 2024, page 20, paragraph 106.
The Mother highlights times of X becoming distressed and refusing to stay at her Father’s house and insisting the Mother pick her up.
The Mother goes on to say that Y equally has had times where she has refused to go to her Father’s house.
The Father agreed in cross-examination that the children have, at times, stayed behind at one parent’s house.[31]
[31] Transcript of proceedings day 1, page 45 lines 34 – 35.
Ms Chesterman cross-examined the Father about the children sometimes requesting to go to the other parent’s house at times the girls have been fighting, or having normal sibling rivalry. The Father replied, “Yes, that has happened, but it has been few and far between.”[32]
[32] Ibid, page 45, lines 28 – 32.
When Ms Chesterman put to the Father that this was not something they could do if the girls were full-time in City B with him, the Father replied, “No, but they would have family members that they could stay with if that was the situation.”[33]
[33] Ibid page 45, lines 34 – 35.
None of the paternal family gave evidence in these proceedings.
Based on the Father’s evidence of the deterioration in the paternal grandfather’s health, and the indistinct health issues now faced by his sister Ms L, I find that it is highly unlikely that the paternal grandparents and Ms L will be available to assist the Father in his new role of primary carer to the children.
Mr N and Ms M both live a significant distance from City B. This means the children’s ability to have a break from each other by staying with their paternal family is greatly reduced.
I also find that the significant distance that Mr N and Ms M live away from City B means that:
(1)It is unlikely that the Father would have their assistance in his new role of full-time carer to the children; and
(2)The Father will be called upon to help more with his father’s care.
Early in the proceedings, a dispute arose between the parents about how the children would be told about the Mother’s decision to move to Perth. The Mother filed her application in this Court on 25 June 2024 and on 27 June 2024, the Mother’s Solicitors wrote to the Father advising him that she wanted to tell the children about the relocation as soon as possible, and by the parents jointly.[34]
[34] Mother’s Affidavit filed 11 October 2024, page 10, paragraph 56 and Annexure MSP09.
The Mother sent a message to the Father on 1 July 2024 asking if he would join her in telling the children about her decision, and he replied that he would like to be present. She replied telling him what she had in mind, and he agreed. Sometime later, the Father messaged the Mother saying that he had sought legal advice and so he would not be attending.[35]
[35] Ibid, Annexure MSP10.
Further communications between the parents ensued, with Father seeking to postpone telling the children until they started counselling, which took some time to organise.[36]
[36] Ibid, Annexure MSP11.
In the end, the Mother informed the children of her intention to relocate in July 2024, without the Father present. She did so, she said, because:
(1)She wanted to give the children time to digest the information that their mum was leaving at the end of the year;
(2)She did not want to keep a secret from the children;
(3)She had to sell her house and needed to start packing and preparing the house for the sale;
(4)If the girls were not told of the decision, they would be confused about why she was packing;
(5)She had already made numerous trips to Perth because of her mother’s ill health; and
(6)She did not want to delay the decision and just disappear at the end of the year.[37]
[37] Ibid, paragraphs 69 – 75.
The Mother tried to include the Father in that process. He declined. Not only would this have ensured the Father heard what the Mother actually told the children, it would also have provided the children with the support of both their parents at a difficult time.
Given that the Mother had decided she was moving to Perth at the end of 2024, with or without the children, I find that it was essential for the children to be given as much support as possible from both their parents around this imminent and significant change in their circumstances.
I find that this was a situation where the Mother was more conscious of the children’s emotional needs than the Father.
In cross-examination before me, the Father gave evidence about a conversation he had with Y about the move to Perth.
The Father said that he and Y were sitting on the couch at his home and she asked him if they moved to Perth would he move too. The Father said in reply, “I would have to give it some serious consideration.”[38]
[38] Transcript of proceedings, day 1, page 53, lines 20 – 45 to page 54, lines 1 – 10.
The Father said that X was not with them, and she was probably in her room.
The Father’s evidence in cross-examination about this conversation was:
(1)He does not recall when it occurred, but it could have been in the last 6 months;
(2)He did not depose to it in any of his affidavits for trial;
(3)He did not tell the Mother about this conversation, and he did not accept Counsel’s proposition that he should have told the Mother; and
(4)He accepts that it might have given the girls some comfort to know that if they did move to Perth he would move too
The Father deposed to other conversations he had with the children and the dates upon which these conversations occurred. For example:
(1)A conversation with X where she said: “when Mum moves to Perth can we move into her house?”[39];
(2)A conversation he had with Y where she said: “please don’t make me be the new kid.”[40]; and
(3)Conversations with Y about getting off her device and his concern about the amount of social media the children are allowed to use in the Mother’s care; [41] and
(4)When X said she hated Perth. [42]
[39] Father’s Affidavit filed 29 November 2024, pages 10-11, paragraph 54.
[40] Father’s Affidavit filed 29 November 2024, page 13, paragraph 62.
[41] Father’s Affidavit filed 19 December 2024, pages 3-5, paragraphs 7 – 14.
[42] Ibid, page 8, paragraph 24.
It seems to me that the conversations the Father deposes to with specificity in his affidavit evidence are there to cast the Mother in a negative light and to support his case for the children to live with him.
I find that it is more probable than not that the conversation the Father had on the couch with Y took place after the family report interviews.
I make this finding because Ms E said in her evidence, that at the time of the interviews, she did not think the children had been told if they go to Perth, Dad will follow. She did not think that was something that had been said to them.[43]
[43] Transcript of proceedings day 1, page 86, lines 5 – 10.
The conversation does not support the Father’s case and perhaps that is why he cannot recall when it occurred. I am troubled by his answer that he did not need to communicate with the Mother about this conversation.
There was another conversation the Father had with Y that he did not communicate to the Mother. This is the conversation Y had with the Father which resulted in the note she wrote and left on the fridge,[44] the Father deposes this conversation taking place on 28 October 2024.
[44] Father’s Affidavit filed 29 November 2024, page 13, paragraph 62, and Annexure MRP10.
The Father says at the end of that paragraph “[Ms Picard] has been made aware of the note written and attached to the fridge by [Y]”.
The issue of the note left by Y was first raised on 20 November 2024 at the hearing before me. The Father was self-represented, and Ms Chesterman appeared for the Mother.
The Father led evidence from the Bar Table about this note. When the Mother’s Counsel confirmed that the Mother knew nothing about this note, the Father admitted that he had not told the Mother about this note nor had he provided her with a copy of the note.
This was despite the fact that the conversation with Y and the note took place some three weeks prior to the hearing before me.
Neither parent was cross-examined about this note, and ultimately, what am I to make of it.
However, I am troubled that this was another occasion where the Father did not consider it necessary to communicate with the Mother about an issue emerging for Y. Instead, he kept the Mother in the dark until the matter was raised in his evidence.
I find these are examples of the Father putting his own needs above the needs of the children, in this case, Y.
The Benefit to Each Child of Being Able to have a Relationship with their Parents and Significant People
I accept the children have a warm and loving relationship with each parent. This relationship is well established, and I am confident that the parents will each continue to support the children’s relationship with the other parent.
The children have a close relationship with the paternal family. The Mother wants the children to have the chance to build on their relationships with the maternal grandparents. This is important to her as X and Y are the only grandchildren of the maternal grandparents.
I am satisfied that the Mother will support the children to maintain their relationship with the Father and the paternal family if they were to relocate to Perth.
Any Other Relevant Matter
Father’s ability to move to Perth
The Father said in evidence, and in final submissions made by his Counsel, Mr Jordan, if I allow the children to move to Perth with the Mother, then the Father will move to Perth too.
This is also confirmed by the orders set out in Proposal A of Exhibit 2.
As the High Court[45] has said, in considering this matter, I must also turn my mind to the possibility of the Father moving to Perth. If the Father moves to Perth, then the parents have agreed to a resumption of the equal time arrangement.
[45] U v U [2002] HCA 36.
For the Reasons that follow, I find that the Father is able to move to Perth.
The Father is aged 47 and is employed full-time as a Public Servant with a government authority.
The Father has worked with a government authority in Melbourne, Brisbane and Region U[46] before moving back to City B in 2014. He remained working for a government authority in City B until 2018. He then worked elsewhere in City B until returning to a government authority in early 2023 where he is currently acting in a professional role. [47]
[46] Transcript of proceedings day 1. page 57. lines 35 – 43.
[47] Ibid. page 52. lines 30 – 45 to page 53, line 1.
The Father has not made enquiries with his employer as to whether or not he can get a job in Perth.[48]
[48] Transcript of proceedings day 1, page 53, lines 10 – 15.
Based on the fact that the Father has worked for a government authority in multiple cities, and he was able to transfer from Melbourne to Perth and then from Perth to City B, I find that it is highly likely that the Father will be able to secure employment with a government authority in Perth.
The Father does not own property in City B. He lives in a property owned by his sister for which he pays $350.00 per week.
The Father’s evidence is that he had an initial 12 month lease that would have expired last month. It has not been renewed so he is there on a month to month basis. It is not through a real estate agent as it is directly through his sister.[49]
[49] Ibid, page 57, lines 26 – 31.
Accordingly, I find that the Father is not bound by a lease that would have cost consequences for him to break.
The Father is concerned that the rent in Perth is higher. I do not have cogent evidence about the rental disparity. However, noting that the Father pays less than market rent in City B, it is likely that the Father will have to pay more for rent per week in Perth.
The Father’s Financial Statement [50] shows that he has a gross income of $1,780 per week and expenses of about $1,283 per week. This means there is a surplus of income over expenditure of almost $500 per week.
[50] Father’s Financial Statement filed 19 December 2024.
I note that the Father has a debt to his parents for legal fees that he is repaying in the amount of $300 per week. This amount is not added into his weekly expenses so this must now be included. That reduces the surplus to around $200 per week.
Whilst it may be true that the Father will pay more rent in Perth than City B, it is possible he may earn more income in Perth. As the Father did not make any enquiries this is unknown.
In any event, I am satisfied that the Father has the financial capacity to move to Perth.
The Father has older parents and his father has recently had significant health issues. The Father has been called upon to help care for his father.
The Father has a mother and sister who live with the paternal grandfather and care for him. The Father also has two other siblings to help. Whilst it is no doubt going to be emotionally difficult for the Father to move away from his elderly parents, he has siblings to help share the physical and emotional load.
I also take comfort from the Father’s comments to Ms E that he does not believe the grandparents should be the deciding factors.[51]
[51] Family Report of Ms E dated 4 December 2024, page 17, paragraph 3.28.
ORDERS IN THE CHILDREN’S BEST INTERESTS
I am concerned about the children’s relationship with the Mother, particularly Y, if the children live with the Father full-time whilst she lives in Perth. As the children have gotten older, and have gone through puberty, they seem to have needed their Mother more.
I do not mean this as a criticism of the Father – he is clearly a dedicated and loving father to these girls. However, I must recognise the stage the children are at now and the evidence of Ms E given in cross-examination.
These children have never been away from their Mother for longer than two weeks. They have reached out for their Mother at times recently when they have been in the Father’s care.
I accept Ms E’s evidence that the Mother moving to Perth will be detrimental to the two children. Whilst X thinks she will be fine, she may well soon struggle with the reality of living without her Mother.
For Y, who is very close to her Mother, Ms E said it would be very detrimental.
I find that it will be detrimental to both children, and very detrimental to Y, to live in the Father’s full-time care whilst their Mother lives in Perth.
The children are now facing a lot of change and no doubt there will be some tough times ahead. They will need the support of both of their parents to get through.
Being able to have the children in Perth will alleviate the Mother of significant stress and anxiety from having to choose between her role as a daughter and as a mother. As the High Court has said, the best interests of the children are the paramount consideration, but not the only consideration.[52]
[52] AMS v AIF; AIF v AMS (1999) FLC 92-852.
I find that the reduced stress and anxiety for the Mother will have a positive flow on effect that will benefit the children.
I am satisfied that the Mother has shown a greater capacity to meet the children’s emotional needs and I find that it is in the children’s best interests to live with the Mother.
Therefore, I will grant the Mother liberty to relocate the children to Perth.
I am satisfied that the Father is able to move to Perth. I accept his evidence that he is willing to move to Perth if I allowed the children to relocate with their Mother. This will be of great support to the children who will then be able to remain in the equal time arrangement that has been their lived experience since 2017.
I am confident that both parents will continue to support the children to maintain their relationship with the paternal family.
Given that the parents came to consent orders about other ancillary orders, save for the relocation issue, I am satisfied that the orders they ask me to make, which are set out at the commencement of these Reasons, are in the best interests of X and Y.
WHETHER I OUGHT TO MAKE A COSTS ORDER AGAINST THE FATHER FOR THE HEARING ON 20 NOVEMBER 2024
Given the Father opposed the Mother’s application to reconsider the parenting orders, the matter was set down before me on 20 November 2024 for the discrete issue pursuant to section 65DAAA of the Act.
As I decided there had been a significant change in circumstances, I reserved the Mother’s costs to the Trial. The Mother now seeks an order for costs against the Father in the sum of either $6,280.88 or $9,422.90, depending on the items allowed on the scale of costs.[53]
[53] Mother’s Affidavit filed 16 December 2024, Annexure 09.
The general principle with respect to costs, pursuant to section 117(1) of the Act, is that each party shall bear their own costs.
Section 117(2) provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to the relevant factors set out in subsection 117(2A), make such order as to costs as it considered just.
As the High Court said in Penfold v Penfold[54] section 117(2) “requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs.”[55]
[54] Penfold v Penfold (1980) 144 CLR 311.
[55] Ibid. Per Stephen, Mason, Aickin, and Wilson JJ at page 315.
Financial circumstances
The Mother and Father both filed a Financial Statement to which I have had regard.
The Mother earns a greater income than the Father. Despite the equal time arrangement, the Mother is assessed to pay the Father child support of around $55 per week.
The Mother has greater expenses than her income. The Father, as I have found above, has a surplus of around $200 per week.
The Mother has assets in the order of $1,251,165 and liabilities of $695,337. She therefore has net assets in the order of $555,828 plus $260,874 in superannuation.
The Father does not own real property. He owns a car, has some savings and some furniture and chattels worth around $39,383 and debts of $50,000. He has more superannuation than the Mother, in the sum of $422,954 but is unable to access those monies until retirement.
Even if I were to find that the Father was impecunious, which I do not, I note that impecuniosity is not a bar to a costs order. [56]
[56] Nada and Nettle (Costs) [2014] FamCAFC 207.
The Father was wholly unsuccessful
True it is that the Father was wholly unsuccessful in respect of the section 65DAAA hearing.
The Father’s opposition to the Mother’s application was fruitless because, as I pointed out to the Father at the hearing, there had clearly been a significant change in circumstances. With the Mother’s move to Perth the Final Parenting Orders were completely unworkable.
The Father ought not to have forced the Mother to go to the expense of the section 65DAAA discrete hearing.
Any other relevant matter
However, because of the Father’s opposition, the matter came before me for that discrete hearing.
Due to the fact that the matter came before me, I was able to find urgent trial dates to hear the matter in January 2025 prior to the school year commencing. I did that so the children would have certainty starting the school year.
The Mother did not have to incur the significant legal costs she would have had to incur if the matter had gone back to a Judicial Registrar and then ultimately, into the list of matters waiting for trial dates. Essentially, the Mother’s application was fast-tracked.
The legal fees incurred have been significant, but I consider that the legal fees are ultimately less than would have been incurred.
Accordingly, in all the circumstances of this case, I am not satisfied that I ought to depart from the usual principle that each party ought to bear their own costs.
I therefore dismiss the Mother’s application for costs of the hearing on 20 November 2024.
I certify that the preceding two hundred and eighteen (218) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bertone. Associate:
Dated: 28 January 2025
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