R and R - [2007] FMCAfam 29

FEDERAL MAGISTRATES COURT OF AUSTRALIA

R & R

[2007] FMCAfam 29

FAMILY LAW – Interim arrangements for parenting of three children aged 9, 8 and 4 – mother unilaterally removed children from A S, Northern Territory to Y, S A in September 2006 – father commences proceedings in November 2006 – considerations of status quo in regards to parenting arrangements and acquiescence to them by father – allegations of family violence and abuse – whether presumption of equal shared parental responsibility should be rebutted – best interest of children – children’s entitlement to have a “meaningful” relationship with both parents.

Family Law Act 1975 – ss.4, 60B, 60CA, 60CC, 61DA, 61DB, 64B, 65DAA, 65DAC

Goode & Goode [2006] Fam CA 1346
Cowling v Cowling (1998) FLC 92-801
JG & BG 18 Fam LR 255
Campbell and Spalding (unreported) Full Court of the Family delivered 15 May 1998

Applicant:

R R

Respondent:

J R

File number:

DNM3069 of 2006

Judgment of:

Brown FM

Hearing date:

22 January 2007

Delivered at:

Darwin

Delivered on:

25 January 2007

REPRESENTATION

Counsel for the Applicant:

Ms Dickson

Solicitors for the Applicant:

Collier Deane

Counsel for the Respondent:

Ms Lewis

Solicitors for the Respondent:

Christopher Ganzis & Co

ORDERS

The parties’ competing applications be fixed for final hearing in the week long sittings of the court at A S commencing on 28 May 2007 and if not reached in that circuit on 28 and 29 August 2007 at A S as a fixture.
The applicant pay the hearing fee of THREE HUNDRED AND SIXTY FOUR DOLLARS ($364.00) or file a remission certificate in respect thereof within 28 days of today’s date.
The parties file and serve all affidavits of evidence on which they propose to rely at final hearing by 1 May 2007.
A family report be prepared.
The parties retain joint responsibility for making all decisions relating to major long term issues pertaining to the children of the marriage A J R born 29 April 1997; I M R born 17 September 1998 and S M R born 29 January 2002, hereinafter referred to as “the children”.
The mother return the children to A S by 6.00pm on 31 January 2007 at her own expense.

UNTIL FURTHER OR OTHER ORDER:

Provided the mother elects to live permanently in the municipal area of the Township of A S after 31 January 2007 the children live with her and spend time with the father as follows:
(a)During school terms on alternate weekends from after school on Friday until the commencement of school the following Monday or Tuesday in the event that the preceding Monday is a public holiday;
(b)During each school week from after school on Tuesday until the commencement of school the following Wednesday;
(c)For half of each school holiday period.
In the event that the mother does not elect to return to live in A S after 31 January 2007, the children live with the father in A S and spend time with the mother as follows:
(a)For the whole of the end of first term Northern Territory school holiday in 2007 and for half of each school holiday thereafter;
(b)And at any other times as may be agreed between the parties.
In the event the mother elects to return to live in A S after 31 January 2007, the father forthwith vacate the former family home situated at 24 Lindsay Avenue, A S provided the mother, through her solicitor, informs the father of her intention to live in the said property with the children concerned.
The parties keep the other informed of any illness or accident concerning the children and provide the other with details of all medical treatment prescribed and the names of all treating doctors.
The children communicate with each of the parties by telephone, when not in the care of that party, on a liberal basis but on no less than three occasions each week.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DARWIN

DNM3069 of 2006

R R

Applicant

And

J R

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern interim parenting arrangements for three children A J R born 29 April 1997; I M R born 17 September 1998 and S M R born 29 January 2002. The parties to the proceedings are the children’s father, R R and their mother, J R.
The parties married on 18 September 1993. They lived, until September of 2006, as a family, with the children concerned, in A S. Both A and I went to school in A S. It is common ground that the parties separated, in difficult circumstances, on 28 September 2006. On that date, the mother left A S, with the three children and went to Y, in S A, where her parents live. She remains there, with the children, until the present time. The mother acknowledges that she did not have the father’s prior consent to move the children from A S, but did so secretly, whilst he was interstate on a business trip.
The father commenced these proceedings on 16 November 2006, in the court’s registry at A S, where he continues to live in the parties’ former family home. On both an interim and final basis, he seeks orders that the parties have “equal shared parental responsibility” for the three children concerned. This is a concept created by section 61DA of the Family Law Act 1975 “the Act”.
Section 61DA creates a presumption, which the court must apply before it makes any parenting order in respect of a child. It is to be presumed that it is in the best interests of the child concerned that his or her parents have “equal shared parental responsibility” for that child. If the presumption is applied, certain things follow by virtue of section 65DAA of the Act. Principally, the court must consider whether orders should be made which result in the child concerned spending either “equal time” or “substantial and significant time” with both his or her parents.
The presumption does not apply if there are reasonable grounds for the court to believe that the child concerned has been subject to abuse or family violence. Interim hearings provide particular difficulties for the court in this regard. Such hearings must be dealt with expeditiously, often, as here, in response to situations of urgency.
As a result, the court’s decision is based, at the interim stage, only on a study of the documents before it and the submissions of the parties’ legal representatives. There is no provision, at this point, for a more exhaustive hearing, particularly the taking of oral evidence and cross-examination, which would allow the court to make findings about credibility or truthfulness. Accordingly, it is difficult, if not impossible, for the court to make findings of fact about significant matters, which are in dispute between the parties, at the interim stage.
Section 61DA(3) reads as follows:
“When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.”
Pursuant to the provisions of sub-section 4, the presumption may also be rebutted by evidence which satisfies the court that it would not be in the best interests of the child for his or her parents to have such equal shared parental responsibility.
Once this presumption has been applied, the court must then consider whether it is both reasonably practicable and in the child concerned’s best interests for the parents concerned to spend either equal time or substantial and significant time with the child concerned. The relevant criteria to be applied by the court to assess the issues of reasonableness and practicality are set out in section 65DAA(5). These principals apply at both the interim and final determination stage.
It is the father’s position that the presumption created by section 61DA should be applied in this case and therefore, the court should make orders that would see the children living with both their parents for equal periods of time, on a week about basis. Accordingly, as the mother moved the children from A S, without his permission, it is his position that the mother should be ordered to return the children to A S forthwith, so such care arrangements may begin. Obviously this will depend on whether the mother herself returns to A S permanently.
If the mother decides herself to return to live in A S, the father’s position is that the shared parenting relationship can begin. However, if the mother elects not to return to live in A S, it is his position that the children should live predominantly with him and spend time, with their mother, during school holiday periods. The father is critical of the mother for making a major decision regarding the children – namely where they should live – without reference to him. It is his case that the court should not endorse the mother’s unilateral and precipitate action, which he asserts is contrary to the spirit of Part VII of the Family Law Act 1975, which is the part of the Act which deals with arrangements for children.
It is the mother’s position that she had no alternative but to leave A S secretly, when she did. It is her evidence that she and the children were fleeing an abusive relationship with the father. She is particularly critical of what she describes as the father’s “financial abuse” of her, which relates to what she categorises as his “chronic gambling addiction”. In addition, she categorises the father as being emotionally volatile, verbally and emotionally abusive of her and on occasion physically violent.
In addition it is the mother’s further position that, as a result of electronic communications forwarded to her by the father, he led her to believe that he agreed to her and the children remaining living in Y, as he was immediately moving himself to A. She contends that it was not until the father made his formal application to the court, some six or so weeks after she had left A S, that she became aware that he required her to return the children to A S. It is her position that, in the intervening period, she has made arrangements for her and the children’s accommodation in Y and for the children to attend school there.
As a result of these matters, it is the mother’s position that the presumption, created by section 61DA, does not apply in this case. She wishes to continue living with the children in Y. In such circumstances, she argues that it would neither be a practical nor in their best interests for the children to spend either equal or substantial and significant time with the father, as he currently seeks on an interim basis.
The father vehemently denies that he has ever behaved in an inappropriate or violent way towards the mother. He does acknowledge prior difficulties with gambling, but asserts these difficulties are under control, with psychological treatment. It is his position that, up until the stage the children were removed from A S, he was an engaged and caring father. It is his position that the mother has unilaterally acted in a way which is calculated to prevent him having a “meaningful” relationship with the children, in the sense envisaged by the Act.
It is against this difficult and conflictual background that the court must make interim orders for arrangements for the care of the children. These orders are likely to remain in place until the parties’ competing applications can be finally heard, which is likely to be in the second half of 2007.

Background

The father is employed as an education and development officer by the Northern Territory Police, Fire and Emergency Services. The mother has qualifications as a registered midwife and nurse. The father was born in 1961 and the mother in 1960.
On 25 September 2006, the father left A S to attend a two-day conference in M. He returned to A S on 28 September 2006 and discovered the mother and children had left A S.
The father discovered a note at this stage, which the mother acknowledges she wrote and left for him. The note indicated that she and the children had gone to S A for “a break”. It is clearly the tone of the note that the mother considered there were serious difficulties in the relationship between her and the father. She requested the father not contact her.
The mother acknowledges that she had not previously discussed with the father her plans to leave A S with the children. She contends that leaving A S in this manner was her “only option” due to what she describes as “domestic violence within our relationship.”
On 30 September 2006, the mother sent the father an email in which she informed him that she would not be returning to A S and wished to dissolve the marriage between the parties and seek a division of assets. The mother also indicated that she would not deny the father “access to the girls.”
It is the father’s position that these developments left him in a state of emotional shock. Given the circumstances of this matter, I have no reason to disbelieve him in this regard. It is also his position that he was hopeful that he and the mother might at least explore the possibility of reconciliation and as such, she might return to A S with the children. It is on this basis that he asserts that he did not instantly bring proceedings seeking the children’s return to A S. Needless to say, it is the mother’s position that she unequivocally informed the father of her position, which was that she and the children would not be returning to A S with her acquiescence.
On 10 October and 21 October 2006, the father sent two email messages to the mother. In the first, he indicated that he had resigned his job and was relocating to A. He indicated his intention to sell the former matrimonial home. In the second email, he indicated a desire to live in A, separate from the mother, if necessary, so that “the girls can lead a normal life with all their family and relatives.” It should be noted that Y is approximately two and a half hours drive from A.
It is on the basis of these emails that the mother asserts that she understood the father was himself intending to move to A and accordingly she elected to go ahead and make arrangements for herself and the children to remain in Y. It seems that many emails passed between the parties, in what were obviously emotionally traumatic circumstances for both. In particular, on 9 October 2006, the father wrote to the mother as follows:
“I love you dearly, but at the end of the day what you have gone and done is totally unacceptable and completely distressing to me.
What you have achieved – taking the children and yourself interstate without discussing it with me, and then make plans to enrol the girls at St C in Y without my knowledge is very difficult to accept.”[1]
[1] See father’s affidavit at exhibit “D”
Given the distance between Y and A and the tone of a number of the father’s emails to her, I consider any contention by the mother that the father had acquiesced in the children moving permanently to Y to be either naïve or misconceived. Certainly it seems clear that the father did not greet the prospect of A and I being enrolled at school in Y with any enthusiasm. It is also clear at an early stage, he indicated to the mother his view that she had acted in what he regarded as a high-handed manner.
After the mother and the children left A S, the father arranged to travel to S A from time to time. During those visits, the father was able to spend time with the children. The arrangement has been that the father flies to A every second weekend or so and travels to P W, which is about half way between A and Y. The children are exchanged between the parties at this point. It is the father’s position that this arrangement has placed a severe financial burden upon him.
The father’s application was filed on 16 November 2006. It was made returnable before the court on 4 December 2006. The mother was provided with a copy of the application by way of a courier delivery in Y shortly afterwards. She was only able to file her answering material on 4 December 2006. At this stage, the father took issue with many of the matters raised in her affidavit, particularly the mother’s attribution of him as a violent and emotionally abusive person.
At this stage, both parties agreed that it would be useful for each of them to more closely consider the affidavit material and, if necessary, file additional material. In addition, as the school holidays were approaching, both thought it appropriate for the parties to focus, in the short term, on the best arrangements by which the children could spend time with each of their parents in the long end of year school holiday.
To both parties’ credit, they were able to agree on arrangements whereby the children spent about four weeks of the holiday with the father and the remaining two weeks with the mother. The father spent some time with the children at his family’s beach home in S A and also a shorter period of time with the children in A S. However, given that the school year is about to begin, it is now important that both parties know where the children will be attending school in 2007.
It is the father’s position that both A and I were well settled at Our L of the S H College in A S until September of 2006. On the other hand, it is the mother’s position that the children have been successfully enrolled in St C’s M School in Y, a school which they previously attended in March/April of 2006, when their parents were on an overseas holiday and they were being cared for by their maternal grandparents in Y.
Both parties seek orders that the hearing of their respective applications for final orders be fixed for hearing as a matter of urgency. In addition, the mother seeks that the proceedings herein be transferred to the registry of the court at A.
Both parties have filed a number of affidavits in support of their respective positions. In the father’s case, he relies on the following documents:
i)His application filed 16 November 2006;
ii)An affidavit of himself filed 16 November 2006;
iii)Two affidavit of himself filed by facsimile 18 January 2007.
In the mother’s case, she relies on the following documents:
i)Her response file 6 December 2006;
ii)An affidavit of herself filed 4 December 2006;
iii)An affidavit of herself filed by facsimile 19 January 2007.
Both parties were represented by counsel at the interim hearing, which took place on 22 January 2007. The parties and their respective counsel attended court in A and were joined to me in the court at D by way of a telephone link. I concede that this was not the most emotionally satisfying manner in which to conduct the proceedings, but it was the most expedient.
As has previously been indicated, it was not possible for either the father or mother to give additional oral evidence in these proceedings. Accordingly, it is not possible for me to make definitive findings of fact about matters, which are in dispute between the parties. There are many such matters in this case.
As discussed by the Full Court of the Family Court in the case of Goode & Goode[2], after setting out these matters of background, I will now turn to the more vexed area of the issues which are in dispute between them. Chiefly these areas centre on issues of violence and abuse and the prior and existing arrangements for the care of the children.
[2] Goode & Goode [2006] Fam CA 1346

Matters in dispute between the parties

The father deposes that he “has always shared the responsibility for caring for our children” with the mother, particularly taking them to and from school; preparing meals; supervising homework; and generally attending to their needs.[3] The mother acknowledges this assertion as “correct” but asserts that the father has “greatly exaggerated” his involvement with the children.[4]
[3] See father’s first affidavit at paragraph 24
[4] See mother’s first affidavit at paragraph 2.15
The father describes himself as a “hands-on” father and asserts he has a “special bond” with the children concerned. He also deposes that he has regularly attended their sporting activities. The mother does not specifically refute these assertions, although it is the tone of her affidavit material that she has provided more of the substantive parenting of the children up to this stage.

The parties also have very different views as to how well the children have settled into their living arrangements in Y. From the father’s point of view, they have not settled well. He asserts that, when the children spent some time with him in A S, they were delighted to be back in what they regarded as their home. From the mother’s perspective, the children have adjusted to the change relatively well and it would be far more difficult for them to have to now return to A S, after a period of approximately four months. In addition, she points to what she regards as the uncertainty of the father’s future living arrangements, particularly in the light of his assertion that he was immediately moving to A.
However, the mother’s greatest objection to the children returning to A S is that it would constitute an unsafe environment for them, due to “the husband’s problems with gambling, financial management, anger issues and domestic violence.” In his initial affidavit, the father alludes to previously having had a gambling problem, which at times resulted in him spending more money than was prudent, but he denies that his gambling has ever affected his ability to provide financially for the family. It is the father’s position that he is currently receiving counselling in respect of issues to do with gambling and also to assist him with the issues which have arisen from the parties’ separation.
At both the stage of his initial affidavit and in his most recent one, he specifically denies allegations of physical violence and of ever having been abusive towards the children. He acknowledges that he and the mother at times engaged in arguments, which involved the exchange of mutual abuse.
The mother has provided, in nine pages of her first affidavit, which consists of some twenty pages, particulars of various incidents which she categorises variously as financial abuse; physical violence; emotional abuse; verbal abuse; and social abuse. In his most recent affidavit, the father asserts he will be able to respond in detail to allegations of financial abuse, physical violence, verbal abuse and social abuse, presumably at the final hearing stage. As previously indicated, he specifically denies any physical violence towards the mother or that he has screamed at the children.
In terms of financial abuse, it is the mother’s position that the father controlled all the parties’ funds, during their marriage; stole whatever money she had from her; obtained credit, which the parties could not afford; and squandered whatever money he had in compulsive gambling, which persisted throughout the parties’ relationship. She categorises herself as being bullied and intimidated by the father, so that he could continue his gambling, which was severely disruptive to the family’s stability, not only in a financial sense but also socially, as the father isolated himself from family and friends, in his preoccupation with horse racing.
The mother asserts that she has been left with a $30,000.00 debt to Centrelink, which relates to the father’s failure to disclose his income properly, both to her and the social security authorities. She also asserts that, in the past, due to the father’s failure to pay the necessary mortgage repayments on the family home, the bank concerned threatened to foreclose and this resulted in the property being transferred into her sole name, when the mortgage was refinanced. I have not been provided with any specific documents in regards to these matters.
The mother asserts that the father has thrown objects at her and driven in a reckless manner, whilst she and the children have been in the car with him. The mother does not give any specific dates when these incidents occurred and acknowledges that she has never been directly physically harmed by any alleged assault on her by the father. Certainly it is the case that the mother has not previously applied for a domestic violence restraining order against the father or consulted a medical practitioner in respect of any injuries allegedly received by her.
The mother categorises the father as being “extremely controlling and manipulative” and of having a volatile temperament. She asserts that this left her fearful of the husband and too intimidated to leave the relationship. It does seem to be the position that the parties have previously separated. During these periods, the mother asserts that the father stalked her and effectively coerced her into returning to the relationship.
Due to his volatile temperament, the mother asserts that the father would often engage in verbal tantrums against her and the children. It is also her position that the father would use a derogatory name for her and was intent on keeping her socially isolated, particularly whilst the parties were living in A S. She also describes him as a “compulsive liar”.
Clearly the mother’s view of the father is entirely negative. She portrays a person who is angry, impulsive and dishonest, to the verge of being sociopathic. Apart from her assertion of this state of affairs, there is currently very little evidence to corroborate the truth of this state of affairs. The mother has attached to her affidavit, two emails from a R C and N K on the one hand and on the other from a J B. The writers of these emails describe verbal aggression from the father towards the mother and the children and what is described as a verbal “outburst” from the father. The father objected to the admission of these emails into evidence. Ms C and Ms K also describe having observed the father to be a loving father.
The issue of the father’s temperament and his past behaviour towards the mother and the children is the central issue in this interim hearing and likely to remain so when the parties’ final applications are heard. The Full Court of the Family Court has cautioned, on a number of occasions, regarding the difficulties which are likely to arise if the court, at the interim stage, involves itself in issues of fact or matters relating to the merits of the parties’ substantive cases, in circumstances in which definitive findings of fact are not possible.[5] However, given the structure of the applicable legislation, which recognises the significant detriments which may be caused to children by exposure to conduct, which may be characterised generally as family violence, the court must make some assessment of the possible risks to the children concerned, constituted by such behaviour.
[5] See Cowling v Cowling (1998) FLC 92-801 at 85,006 and Goode & Goode (supra) at paragraph 68
Family violence is not homogeneous in its qualities. It can range in character from impulsive behaviour that arises as a result of a stressful situation, such as relationship breakdown or it can be more systematic and deliberate and arise from a clear power imbalance between the parties concerned.[6] I am not in a position to resolve this issue here. Clearly the mother asserts that the father’s behaviour is systematic and considered and designed intentionally to humiliate and intimidate her. The father’s view is that his behaviour, wherever it can be criticised, occurred in response to the stressors in the parties’ relationship and was replicated against him by the mother.
[6] See JG & BG 18 Fam LR 255 at 261
Pursuant to amendments made to the Family Law Act 1975 brought about by the Family Law Amendment (Shared Parental Responsibility) Act 2006 the definition of “family violence” has been changed. Pursuant to the provisions of section 4 of the Act it is defined as:
“conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.”
This definition now includes an objective level. Fear or apprehension of violence must be reasonable. It is of course not unknown for parties in acrimonious proceedings, such as these, to exaggerate unfortunate incidents which have previously occurred. At this stage, I am simply unable to ascertain the truth or otherwise of the mother’s assertions, which if true, in my view, potentially pose very serious threats to the children concerned.
Allegations of family violence are easy to make; may be very difficult to refute; and indeed may be difficult to prove definitively. This is because family violence, more often than not, arises in the private confines of the family home and, in its victims, may evoke emotions such as embarrassment, shame, disempowerment and fear, which render its reporting to appropriate authorities difficult and accordingly may make independent verification of it problematic. Clearly, these difficulties are compounded at the interim stage.
As a result, the court must exercise caution in both too readily accepting such allegations, and on the other hand, too readily dismissing them because of a lack of corroborating evidence. It is now, I think, generally accepted that family violence is prevalent in all social settings and walks of life. In my view, it was for reasons of this kind that the legislature saw fit to insert section 61DA(3) into the legislation.

The legal framework to be applied

I now turn to the legal framework in which this matter must be determined. The law pertaining to the making of parenting orders is set out in Part VII of the Family Law Act 1975. The Act has been significantly amended by the provisions of the Family Law Amendment (Shared Parental Responsibility Act) 2006. Of the amendment the Full Court in Goode & Goode[7] said as follows:
“In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable.”
[7] Goode & Goode [2006] FamCA 1346 at paragraph 72
No distinction is made in the application of this legal framework to decisions made in respect of children at the interim or final stage. In this, as in all matters to do with children, the best interests of the child concerned is the court’s paramount or most important consideration.[8] However, given the abridged nature of interim proceedings, the court must be cautious about being drawn into issues of fact or matters relating to the substantive merits of the parties’ respective cases at this stage.
[8] See Family Law Act 1975 at section 60CA
At the commencement of Part VII is provided a list of aims and principles, which the court is directed to try to achieve to ensure that a child’s best interests are met through any parenting order it makes. A parenting order is what it suggests – a court order dealing with such issues as: the persons with whom a child should live; spend time and communicate with; and the persons, who should have responsibility for making decisions, both significant and otherwise, about a child.[9]Obviously these persons are most usually the parents of the child concerned, but not always.
[9] See Family Law Act 1975 at section 64B(2)
The lists of objects or aims of the legislation are set out in section 60B(1). They are as follows:
“(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The principles, which underpin these objects, are set out in section 60B(2) and are as follows:
“(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
As is apparent, each of these objects and principles are to be applied by the court, when it makes a parenting order, in a manner which is consistent with achieving the best interests of the child concerned. The provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006 have amended the objects and principles of Part VII of the Family Law Act 1975 in a significant way.
The Family Law Act 1975 provides a list of matters or considerations, which the court is required to take into account, when determining which parenting order is likely to be in the child’s best interests. This list is set out in section 60CC. There are two tiers of considerations, firstly matters which are considered to be “primary” and those which are described as being “additional”.
The primary considerations, as outlined in section 60CC(2), are as follows:
“(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”
It seems clear that the overall importance of these two considerations is elevated over the additional considerations. The intention being to ensure that the focus of the court is on achieving the first two objects of the Act, namely protecting children from harm and ensuring they have a meaningful relationship with both their parents.
The two primary considerations have equal application and one is not to be considered superior to the other. However, I take it that the importance to be given to each of these considerations will depend on the particular circumstances of any given case.
In section 60CC(3) are set out the “additional considerations”. These additional considerations are as follows:
“(a)Any views expressed by the child concerned and any factors such as the child’s maturity or level of understanding that is relevant in the circumstances;
(b) The nature of the relationship of the child concerned with the child’s parents and with other persons (including grandparents);
(c) The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent;[10]
(d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or from any other person (including grandparents) with whom he or she has been living;
(e)The practical difficulty and expense of the child spending time and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)The capacity of parents or any persons (including grandparents) to provide for the needs of the child, including emotional and intellectual needs;
[10] This consideration is taken up by section 60CC(4) whereby the court is required to consider the extent to which a parent has or has not failed to participate in decision making about any particular child or has or has not failed to spend time with the child.
(g) The child’s maturity, sex, lifestyle and background;
(h) If the child is Aboriginal, the child’s right to enjoy his or her Aboriginal culture and the impact of any proposed order on that right;
(i)The attitude to the child and the responsibilities of parenthood as displayed by the child’s parents;
(j)Any family violence involving the child or a member of the child’s family;
(k)Any applicable family violence orders and whether such an order is a final order or was contested;
(l)The orders which are the least likely to lead to the institution of further proceedings;
(m)Any other fact or circumstance.”
Although the additional considerations are subsidiary to the primary considerations, it seems they are to be applied in a common sense way, focusing on the child’s best interests. Accordingly, there may be some instances where one of the additional considerations or a combination of them, may outweigh the primary considerations.[11] However, it seems clear that it is the legislature’s intention that the court’s central concern should be on constructing orders which protect children from harm and ensuring that they have a meaningful relationship with both their parents.
[11] See explanatory memorandum to Family Law Amendment (Shared Parental Responsibility) Bill 2006 at paragraph 51
Given the importance the legislation places on children having a meaningful relationship with both their parents, whenever possible and appropriate, section 61DA creates for the court a presumption or starting point, when it comes to make any parenting order in respect of a child. It is to be presumed that it is in the best interests of the child concerned for the child’s parents “to have equal shared parental responsibility for the child.”
Section 61DA(2) qualifies this presumption on a number of bases namely, it is not appropriate to apply the presumption, if there are reasonable grounds to believe that child abuse or family violence has occurred.
Section 61DA (3) applies only to interim parenting orders. It gives the court a discretion not to apply the presumption where the circumstances are such that it would not be appropriate to do so. No criteria are provided specifically by the legislation in regards to the type of circumstances where it “would not be appropriate” for the presumption to be applied. Accordingly the sub-section is likely to be pivotal, in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
In Goode the Full Court indicated that the discretion was not to be exercised in a “broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult.”[12] By this I take it the court must find from the overall circumstances of the case, some cogent reason to exercise the discretion.
[12] See Goode & Goode (supra) at paragraph 78
Finally, pursuant to section 61DA (4), the presumption may be rebutted if evidence exists, which satisfies the court that it would not be in the best interests of the child concerned for an order for shared equal parental responsibility to be made. In the context of an interim hearing, it is likely to be often problematic for clear, uncontroverted evidence to be found, in regards to a child’s best interests, given the abridged form such interim hearings take.
However, this presumption, of equal shared parental responsibility, does not of itself determine the amount of time the child concerned spends with each of his or her parents. This issue is dealt with by section 65DAA. Pursuant to the section, if the court makes an order that a child’s parents are to have equal shared parental responsibility for their child, it must then consider whether the child spends either equal and if not equal then substantial and significant time with both his or her parents.

“Equal time” is as the term suggests. “Substantial and significant time” is defined by section 65DAA(3) and includes days that fall on both weekdays, weekends and holidays in a way which is calculated to allow the parent concerned to be involved in the child’s daily routine and other occasions which are likely to be of particular significance to the child concerned.
The clear rationale underlying section 65DAA would appear to be that children benefit, if they are able to interact with their parents, as much as possible, in a variety of environments and circumstances. The implication being that children benefit if their parental relationships are given depth and dimension by them being able to interact with their parents in a variety of roles and settings, which are not artificially confined to either weekdays or weekends or school holidays.
Clearly, there will be many cases where it is not possible for the court to consider making an order either that the child concerned lives with his or her parents for equal periods of time or for substantial and significant periods. Whether such outcomes are appropriate will depend on the court’s consideration of whether such orders are likely to be in the child’s overall best interests and the practicality or workability of such orders.
In section 65DAA(5) are listed the criteria which the court must consider in determining whether it is “reasonably practicable” for a child to spend either “equal time” or “substantial and significant time” with both of his or her parents. The criteria are as follows:
“(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.”
It is of significance that the applicable legislation requires[13] the court to consider making either an order for equal time or substantial and significant time. The Full Court in Goode has made it clear that this is an active task, rather than a tokenistic or mechanical one, which must be undertaken within the overall legislative framework of Part VII of the Act. In Goode, the Full Court found the meaning of “consider” in section 65DAA:
“… [suggested] a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s 65DAA (1)(a), being the best interests of the child, and s 65DAA (1)(b), reasonable practicability, are met. The same considerations apply to s 65DAA(2).”
[13] This occurs because of the use of the word “must” in the relevant part of the section.
Accordingly the intellectual process required by section 65DAA is more than an active thought process in the abstract sense. Rather it is one which is to be directed to the consideration of a specific objective, namely an order resulting in either equal time or substantial and significant time. This interpretation suggests that it is to be taken that it is the intention of the legislation that the exercise of the discretion, in the broad sense, will more often than not lead to such an outcome.
However, it should also be noted that, if the presumption is applied at the interim stage, it must be specifically disregarded, by the court, at the final stage, when a more exhaustive hearing is possible.[14]
[14] See section 61DB of the Act
Finally, it should be noted that pursuant to section 65D the court is empowered to make whatever parenting order it thinks proper, subject to the presumption of equal shared parental responsibility created by section 61DA. However, clearly this discretion is not uncontrolled and must be exercised in the light of the entire legislative structure of Part VII of the Act.
In Goode & Goode the Full Court directed that in determining interim hearings, after identifying the competing proposals of the parties; the issues in dispute; and any agreed issues; the court should:
·Consider the section 60CC matters relevant and, if possible make any relevant findings of fact;
·Decide whether the presumption in section 61DA should be applied or if it is rebutted because:
ØThere are reasonable grounds to believe child abuse or family violence has occurred;
ØOr, in interim proceedings only, it would not be appropriate to apply the presumption;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child’s best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent, unless it is contrary to the children’s best interests as result of the consideration of any relevant section 60CC matter or is impracticable in the terms of section 65DAA(5);
·If neither equal time or substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child, when considering applicable matters in section 60CC;
·If the presumption is rebutted or found not to apply then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.

Discussion

The first requirement for the court is to examine the various section 60CC factors, which apply to the circumstances of the case. Clearly the positions of the parties are polarised in the extreme. This makes the task of the court making any findings of fact problematic. The legislation places two considerations in a position of pre-eminence – the need to protect the child concerned from abuse and the benefit of the child having a meaningful relationship with both of his or her parents.
The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if such parental relationships are enhanced. This has application to the so-called status quo principle, to which I will return shortly.
In terms of family violence and abuse, the emphasis in the legislation is also prospective, concerned with the making of orders which are protective of the child concerned. Accordingly, an allegation of abuse or family violence, of itself, will not necessarily engage the application of section 61DA nor indeed negate the presumption created by section 61DA(1). The allegation must be closely examined by the court, bearing in mind the abridged nature of the hearing at the interim stage.
It seems to me the children concerned in this case had, in the past, a meaningful relationship, in the beneficial sense envisaged by the legislation, with the father, whilst they lived in A S. It is common ground that the father and the children occupied the same home and the father parented them, from time to time, particularly whilst the mother was working. The mother concedes that the father was involved in their care in the past, although she disputes that this involvement was as extensive, as the father now contends. In addition, the mother has conceded the benefits of the children spending time with the father, for extended periods during school holidays and on weekends, following the parties’ separation. By necessary implication, she concedes that there are some benefits, which are likely to come to the children, if they have some level of relationship with their father.
The central issue in this case is whether the protective concerns raised by the mother are of such magnitude that they should assume greater importance than considerations relating to the level of meaning, which the children are likely to derive from their relationship with their father.
Obviously, if the children are able to spend time with their father, during school holidays and are able to speak to him regularly on the telephone, the relationship between them will retain some level of meaning in future. But, if the children remain living in Y and the father remains living in A S, for obvious practical reasons, the level of relationship will not be able to maintain the optimal level, as envisaged by the applicable legislation. In the vernacular, the father will be a “holiday dad”, rather than one engaged in aspects of day to day care. These competing considerations must be weighed against one another.
At this juncture, the court is unable to determine definitively the truth or otherwise of many of the mother’s allegations, the most significant of which are strenuously denied by the father. It is the mother’s position that the volatility of the situation confronting her and her extreme fear of the father drove her to the drastic course of secretly leaving A S with the children, whilst the father was interstate.
In my view, the mother had other options to pursue, in regards to securing her own protection, in these circumstances, even if they are subsequently established to be true, other than unilaterally removing the children from A S. These options included the engagement of the formal legal mechanisms designed to secure her protection from family violence – namely a domestic violence order. I concede however that the system involved in applying for such an order is often intimidating to many, particularly the victims of domestic violence. I also concede that it was likely to have been difficult for the mother to secure alternative accommodation for herself in A S, in such circumstances, particularly if the father was unwilling to vacate the former family home.
However, regardless of those considerations, I consider it instructive to consider what would have been the likely outcome of court proceedings, if the mother had applied to a court in A S to relocate the children to Y, on the basis of the allegations raised in her current application and the father had vehemently opposed such application.
I consider it unlikely that such an application would have been successful, given the other avenues available to the court to protect both the mother and the children, other than them living approximately 1,500 kilometres away from the father, particularly as the mother herself concedes in her application that the children have both an entitlement to maintain some level of relationship with the father and that this level of relationship should be maintained in future by the children spending extended periods of time with him, without any requirement for supervision.
The measures available to protect the mother include an injunction for personal protection under section 68B of the Family Law Act 1975 or a family violence order under state based legislation. In my view, there is a level of tension between the mother’s view that the father’s home is likely to represent an unsafe environment and her acknowledgement that the children will benefit from spending time with him.
As I have already indicated, in my view, the application of the mechanisms in the legislation, regarding family violence, are intended to be protective of the children concerned in the future, rather than punitive of a party’s past unsatisfactory conduct. However, I am also aware of the emphasis, in the relevant case law, of the importance of children having access to appropriate role models for their future behaviour. A person who behaves violently or abusively in order to resolve conflict is generally not regarded as such a satisfactory role model.
The mother’s case is not that she has been exposed to protracted episodes of physical violence. Her complaint is of emotional abuse and financial irresponsibility, fed by the father’s gambling addiction. It seems to me likely that these threats to the children, if true, will be significantly reduced if the parties are living in separate households. The mother will not be subject to the alleged financial predation of the father and so will be better placed to provide for the children’s financial security. In addition, at this stage, it is not possible to definitively establish whether the father has a current gambling addiction, in the face of his assertion that his difficulty is currently in remission due to counselling. It also seems to me to be likely that the potential for “emotional abuse”, of the kind complained of by the mother, is much reduced if the parties live in separate establishments, even if they are in the same town.
Bearing all these matters in mind, it is my view that the consideration of the children having a meaningful relationship with both their parents, particularly their father, at this interim stage, assumes some level of pre-eminence in this case. I am fortified in this view by the fact that the mother can seek a domestic violence order against the father, for her protection, if necessary. It is also the case that the father has indicated, if the court directs the children to return to live in A S, and the mother herself elects to return there, he is prepared to vacate the former family home for them. These factors significantly allay my concerns about the issues of family violence raised by the mother, which I acknowledge are significant.
I know turn to consider some of the relevant additional considerations, which are listed in section 60CC(3). At this point, it is not possible to ascertain definitively what are the views of the children in this matter. However, I consider it likely that all of the children, particularly the two eldest, are feeling torn in their loyalties between their parents. Undoubtedly, the parties’ separation was traumatic for all concerned, including the children.
For reasons already provided, I am satisfied that the children are likely to have a very significant relationship with each of their parents. It also seems likely that their relationships with their various grandparents, both paternal and maternal, are close ones. The mother points to the fact that the children have close familial relationships in S A. This is undoubtedly the case.
It is the father’s case that the mother has been derelict in her responsibility to facilitate a close and loving relationship between him and the children. He categorises the mother’s decision to move the children from A S to Y, without his approval, as unilateral and precipitate and, as such, contrary to the children’s best interests.
The structure of the applicable legislation encourages parents to consult one another about major issues affecting their children and to endeavour to make joint decision about their care. Section (4) of the Act includes in the definition of “major long-term issues”, changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent. Undoubtedly, the mother’s decision to move the children to Y, even if the father moved himself to A, rendered it significantly more difficult for him to spend time with A, I and S.
What are commonly called relocation cases create significant difficulties for the court, as such cases often require the court to consider competing principles which are difficult to reconcile. On the one hand, it is the right of a person to live how and where he or she chooses, separate from the other spouse concerned, at the end of the marriage or significant relationship between them. On the other hand, it is the entitlement of the parties’ children to have a meaningful relationship with both their parents, regardless of that separation. As a result of these matters, the High Court has determined that relocation cases require a close considerations and a delicate analysis of the various issues involved.
The Full Court of the Family Court in the case of Campbell and Spalding[15], said as follows:
“In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as relocation being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parent from what it or they had been immediately beforehand.”
[15] Campbell and Spalding (unreported) Full Court of the Family Court Ellis, Lindermayer, Warnick JJ delivered 15 May 1998
The judgment of the Court was delivered by Warnick J. What His Honour seems to have been saying in this passage, is that a parent cannot set up a change of circumstances, in a relocation case, vis-a-vis the other parent and then have the advantage of using that as the background against which the court, ultimately at final hearing, will be evaluating the competing proposals of the parties as to how the interests of the child or children concerned will be best served. Rather the parties’ proposals should be judged against the background of long standing arrangements for the care of the children. Otherwise, to use the jargon, that would not be a level playing field and may, in certain circumstances, pre-empt the need for a final hearing at all.
It is the father’s position that, if the court accedes to the mother’s proposals at this stage, it will give defacto approval to her unilateral action in changing the children’s place of residence, which is contrary to the spirit of the Act, as it has rendered it more difficult for him to spend time with the children and so have the optimal level of relationship with them. It will also most likely have the consequence of making his application to oppose the relocation of the children to Y nugatory. In my view, there is significant substance to the father’s contention in this regard.
It is the mother’s position that it is likely to be significantly detrimental to the children, if they are forced to return to live in A S after becoming accustomed to living in Y. Clearly, the children have lived in Y for one school term. In this regard, the mother points to what she believes is the apparent acquiescence of the father to this state of affairs and his delay in instituting proceedings to compel the children’s return to A S. She asserts that a status quo has evolved in favour of the children remaining in Y.
These are references to principles in the case law, as it was previously enunciated, in cases such as Cilento and Cowling. Prior to the Full Court’s decision in Goode and the legislative changes brought about by the Family Law Amendment (Shared Parental Responsibility) Act 2006, there was an emphasis in interim children’s proceedings, on the preservation of long standing arrangements for the care of the children involved, unless there were strong indications relevant to the child’s welfare to contrary.[16]
[16] See Cowling v Cowling (1998) FLC 92-801 at 85,006
In my view, any acquiescence expressed by the father to the children remaining in Y was at best muted and qualified and at worst non-existent. Certainly, I have difficulty in accepting that the father’s conduct can be held to represent a retrospective approval of the mother’s decision to move the children from A S to Y. In my view, the evidence is fairly clear that the mother was set on remaining in Y, with the children, regardless of what the father’s intentions might have been.
As has previously been indicated, in Goode, the Full Court has spoken of the legislature’s intent, both at the interim and final stage, to direct the court to fashion parenting orders that will favour the substantial involvement of both parents in their children’s lives, subject to considerations of the children’s overall best interests, particularly protective concerns. This emphasis has led to a disavowal, by the Full Court, of any general principle that a status quo in respect of arrangements for the care of children should be preserved at the interim stage. The Full Court said as follows:
“This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interest concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.”[17]
[17] See Goode (supra) at paragraph 72

In my view, there are likely to be potentially deleterious consequences for A, I and S, both if they remain in Y and if their circumstances are changed. The extreme mistrust and mutual antipathy between the parties is likely to represent a significant threat to the children’s ongoing emotional wellbeing. It is also uncertain where the father will live in A S, if he vacates the former family home. This adds a level of uncertainty about his proposals for the care of the children, if he is successful in his application. However difficulties of this sort are common, in the aftermath of marital separation.
Clearly, the parties have very different views about their past involvement in providing care for the children. These are the types of considerations which arise under section 60CC(3), (f), (g) and (i) of the Act. It is not possible to make findings of fact about these significant matters, other than to say the mother concedes that the father has had some level of involvement in the children’s care and some capacity to provide for their physical needs, although obviously she is very critical of his level of ability to satisfy their emotional requirements.
At this point, it is also likely to be difficult and expensive for the children to spend time with their father, if he remains in A S and they remain in Y. It seems self-apparent that it is likely to be very expensive for the father to travel to S A, to see the children during weekends in school terms. Accordingly, this is a state of affairs which is likely to have implications for the children’s entitlement to maintain a personal relationship with their father, which is sustained on a regular basis. I concede that these difficulties will be alleviated if the father moves to A but it is still a significant distance between A and Y.

Conclusions

I have come to the conclusion that there are not sufficiently reasonable grounds, in the sense that there is objective evidence currently before the court, for the presumption created by section 61DA(1) to be rebutted by reason of the allegations raised by the mother that the father has engaged in either abuse involving the children or family violence.
I now turn to consider the more difficult question of whether, in the context of this interim hearing, it would not be appropriate for the presumption to be applied. I accept that the evidence led before me, at this stage, is limited. However, to my mind, that is not of itself sufficient to engage the discretion provided by section 61DA(3). The Full Court has indicated that the discretion is not to be exercised in a manner which is broadly exclusionary.
By this I take it, the discretion is to be engaged when potentially very serious matters of family violence or child abuse are raised, in the material, which can be neither definitively established nor definitively negated, within the context of an interim hearing but, which if true, are likely to have very serious detrimental consequences for the children concerned. In such a situation, the discretion may be engaged because of the pre-eminence required to be given to issues of child protection.
In this case, I do not regard the mother’s concerns as trivial nor as obviously manufactured or exaggerated. Her concerns are not established but nor can they easily be dismissed. It is of concern that the form of the legislation may exacerbate the natural tendency of parties, following relationship breakdown, to exaggerate the past failings of their former partners, either unconsciously or for perceived tactical advantage. However, I do not think that this is necessarily the case here.
Regardless of whether the evidence at the subsequent final hearing establishes or does not establish that there were proper grounds for the mother to move away from A S, with the children as she did, it is apparent that there is a significant level of dysfunction in the parental relationship between the parties. Whether that relationship can be ameliorated, in the longer term, is uncertain. Pursuant to section 65DAC, if an order is made for shared parental responsibility, the parties concerned are required to consult and make a genuine effort to come to a joint decision about major long term issues to do with their children. At this stage, I have considerable reservations about whether the parties are likely to be able to engage in such a consultative and consensual decision making process about their children.
Pursuant to section 65DAE, parents do not have to consult on matters which are not concerned with major long-term issues, when the children are spending time with one or other of them.
Accordingly, in the circumstances of this particular case, I have come to the conclusion that it would not be appropriate for the presumption created by section 61DA(1) to be applied. As a result, the mechanisms created by section 65DAA are not engaged.
However, it is clear from what was said by the Full Court in Goode, that the court, at the interim stage, is required to take a different approach to that previously propounded in such cases as Cowling, which emphasised the desirability of the court making orders which result in maintenance of pre-existing care arrangements for children, until final hearing. The Full Court said as follows:
“Even absent the application of the presumption and thus the requirement to consider equal or substantial and significant time where it is not contrary to the child’s best interests and otherwise practicable, the addition of sub-section (a) to section 60B(1), which is to ensure that children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests, is not necessarily consistent with a preference at an interim stage in favour of maintaining a status quo. That is not to say that maintenance of a stable arrangement will not be in the best interests of children in a particular case, but it will be one of the factors to be considered pursuant to the additional considerations in section 60CC(3) and to be determined in conjunction with the primarily consideration in section 60CC(2)(a) of the benefit to the child of having a meaningful relationship with both of the child’s parents.”[18]
[18] See Goode & Goode (supra) at paragraph 80
Accordingly, at this stage, the court is required to consider the relevant section 60CC factors and fashion the orders, which at this stage, it believes will serve the best interests of the children concerned. In making these orders, the court must be mindful of the prevailing ethos of the legislation, particularly the likely beneficial consequences, for the children concerned, of both their parents being as engaged, as much as possible, in providing for their care, in a variety of settings.
Given my views about the various factors in section 60CC(2), particularly the desirability of the children concerned having a meaningful relationship with both their parents, I have concluded that, in the interim, the children’s best interests will be served if they return to live in A S. This conclusion is predicated on the assumption the mother herself will elect to return to A S. She has not definitively indicated that she will return to A S, if the outcome is not the one of her preference. Her application is silent in this regard. I am satisfied that, in such circumstances, appropriate arrangements can be made to protect both the children and her from harm, as a result of potential exposure to family violence.
In reaching this conclusion, I have been strongly influenced by what I regard as the unilateral actions of the mother in removing the children to Y from A S. As I have indicated, there were potentially other options available to the mother, to protect the children and herself independent of the extreme step of secretly taking the children away from the parties’ family home. Actions such as this are contrary, in my view, to the intention of the legislature as reflected in the Family Law Amendment (Shared Parental Responsibility) Act 2006, particularly the objects and principles as set out in sections 60B(1)(a) and (2)(a), (b), (c) and (d) of the Act.
Issues to with relocation are difficult but, in my view, it is incumbent upon the court to ensure that such issues are adjudicated, as far as is possible, on a level playing field. The issues, which the mother raises about the father’s behaviour and temperament, are serious. However, they remain allegations, which have not been formally established. It is a significant aspect of the mother’s case that she has not as yet provided any strong corroborating evidence in respect of her claims of family violence. I accept it will be difficult for the mother and children to return to A S. However, in my view, such an outcome would not expose the children to an unacceptable risk of harm.
In a formal sense, the mother has not indicated that she will return to A S, if the order of the court is that the children should return to live in the town. Clearly A S is currently an unpalatable place for the mother, largely because of its associations with the father. However, the mother is not without support in A S, having lived and worked in the town for the past several years. In addition, the children concerned have significant friendships and connections with A S. I will hold the father to his offer to vacate the former family home in the mother’s favour. This will provide both her and the children with some level of continuity, so far as their accommodation is concerned.
At this stage, given the uncertainty of where the father will be living in future, in the event the mother returns to A S; the high level of conflict between the parties; and my concerns engendered by the mother’s allegations about the father’s gambling and temperament, which though not established are nonetheless engaged; I consider that an arrangement whereby the children live with both of their parents, in A S, on an equal basis, is not likely to be in their best interests at this stage.
However, for the reasons already provided, I am satisfied that there is a significant relationship between the children and their father and he is capable of properly parenting them. For those reasons, I have formed the view that the children should live with the mother, in the event she returns to A S, but spend alternate weekends with their father and an overnight period, each school week with their father, as well as half of each school holiday. It is the mother’s prerogative not to return to A S. If that is her decision, orders will be made that the children live with the father.
I will also make orders which will enable the urgent hearing of this matter in A S at the earliest possible time. In all the circumstances, it is appropriate that a family report be prepared.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: C W

Date: 25 January 2007