Ryans & Minoles

[2008] FamCA 190

FAMILY COURT OF AUSTRALIA

RYANS & MINOLES [2008] FamCA 190

FAMILY LAW – CHILDREN – live with – spend time with

Family Law Act 1975 (Cth)

U v U (2002) FLC 93-112; (2002) 29 Fam LR 74

APPLICANT: MS RYANS

RESPONDENT: MR MINOLES

FILE NUMBER: SYC 91 of 2008

DATE DELIVERED: 20 February 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 20 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Christie

SOLICITOR FOR THE APPLICANT: Gayle Meredith & Associates

COUNSEL FOR THE RESPONDENT: Mr Levy

SOLICITOR FOR THE RESPONDENT: Coleman & Greig

Orders

1. Orders are made in terms of paragraphs 1, 3, 4, 5, 6, 8, 9, 10, 11 and 12 of the Interim Orders sought by the mother in her Amended Initiating Application dated 20 February 2008 as set out hereunder.  In relation to paragraph 1.2.1 the figures “6:00 pm” are to be replaced with “not later than 8:00 pm” and in 1.2.2 “7:00 pm is to be replaced with “not later than 7:30 pm”:

“1.In the event that the father relocates outside a 30 kilometre radius of the mother’s residence:

1.1.That the children, S born … December 1996 and J born … August 1998 (“the children”), live with the mother.

1.2.That the children spend time with the father:

1.2.1.during school term from the conclusion of school on Friday afternoon until not later than 8:00 pm on Sunday evening unless the father gives the mother no less than seven days’ written notice by email that his work commitments prevent him from doing so and in the event that the father notifies the mother of his unavailability to spend time with the children at least seven days that the father be entitled to add an additional two days to the next school holiday period in which he is to spend time with the children in accordance with these Orders;

1.2.2.from after school until not later than 7.30 pm on any weekday that the father is in Sydney so long as the father provides the mother with no less than seven days’ written notice by email of his intention to spend time with the children;

1.2.3.for one half of all school holidays as agreed between the parties and failing agreement for the second half in 2008 and each alternate year thereafter and the first half in 2009 and each alternate year thereafter;

1.2.4.notwithstanding any other order, on Fathers Day from 9.00 am to 5.00 pm;

1.2.5.at any other time as may be mutually agreed between the parties;

1.2.6.that the father’s time with the children be suspended from 9.00 am to 5.00 pm on Mothers Day.

3.That the mother and father each have joint parental responsibility for making decisions about the long term care, welfare and development of the children.

4.That the mother and father each have sole parental responsibility for making decisions about the day to day care, welfare and development of the children during such time that the children live with them.

5.That the mother and father keep each other informed about the health, welfare and education of the children.

6.That the mother and father do all things, sign all documents and give all necessary consents so as to enrol the children at C Primary School.

8.That the mother and father inform one another of any serious illness or medical attention required by the children.

9.That the mother and father each provide telephone contact numbers for the children when either party is not residing at his or her normal place of residence with the children for a period of more than 2 days.

10.That the mother and father do all acts and things and sign all documents necessary to enable the other party to liaise with the children’s school, doctors and any relevant organisation in respect of the children’s health, welfare and education.

11.That the mother and father keep each other informed of any school event or extracurricular activity to which parents are entitled to attend.

12.That the father be responsible for transporting the children to and from the mother’s residence at the commencement and conclusion of the time that the children live with him.”

IT IS NOTED

1. That the arrangements in paragraph 1.2 will commence on Monday, 25 February 2008 and that the children will remain with the father until 6:00 pm on 22 February 2008.

1. The parties propose to inform the children about the interim arrangements at 6:00 pm on 21 February 2008.

IT IS FURTHER ORDERED

1. Pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children.

1. The Legal Aid Commission of New South Wales is requested to make arrangements as soon as possible for appropriate representation for the children.

1. The solicitor for the mother is to advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid Commission of New South Wales of this order within seven days.

1. Each party make available to the Legal Aid Commission of New South Wales, copies of all documents filed in these proceedings and to be filed in these proceedings as soon as practicable.

1. The parties are to facilitate the attendance upon their representative of the children at times, dates and places requested by their representative.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 91 of 2008

MS RYANS

Applicant

And

MR MINOLES

Respondent

REASONS FOR JUDGMENT

1. These are proceedings for interim parenting orders.  The mother and father are 41 and 45 years of age respectively.  They started to live together in 1991, were married in May of 1996, separated in April of 2004 and were divorced on 27 September 2005.  They have two children, S, 11 years of age, and J. The documents say 10 but I make him nine years of age.  The mother is a school teacher.  She has repartnered, although she and her partner live in separate residences.  The father too has repartnered, with Ms B.  Ms B has two children, who are nine and seven, or thereabouts. 

2. The matter comes before the Court because, in November last year, the father announced that he was moving to the southern highlands. At separation the parties were living in a Sydney suburb, the mother moved out and the children have, over time, settled into a pattern whereby they live with the father during the week and with the mother during the weekend. The mother did not agree to the move to the southern highlands.  I think an undertaking was given before a Registrar that the father would not cause the children's residence to be moved until the end of this month.  The issue before me is the living arrangements for these subject children between now and a final hearing.

3. The legislation provides a sequence for decision‑making and it starts with the issue of parental decision‑making.  There is a rebuttable presumption which does not apply in situations of violence, and that is not relevant here; of equal shared parental responsibility.  The legislation speaks about an order being made about that.  Rather unusually, in this case, the parties agree to such an order.  The Response and the Application no longer address the same matters because the original application has been amended. However, the mother sought an order that she and the father have joint parental responsibility for decision‑making, which was probably intended to be the same as equal shared parental responsibility. That provision of the mother’s interim orders the father agrees with. Thus the presumption applies. That means I am to consider, with a view to ordering, the children spending equal time with the parties, and, if I do not order that, I am to consider, with a view to ordering, the children spending substantial and significant time with each of the parents.

4. All decisions are to be made in the best interests of the children.  How one decides what is in the best interests of the children is referred to in the legislation at s 60CC. 

5. The Court struggled with the issue of relocation cases over time.  It must be said, the relevant law is all referring to final hearings, not interim hearings.  I think the position is that there is no such thing as a relocation case, as such. I am to make an order in the best interests of the children.  There are considerations in relation to proposals where a party wants to change the residence of a child, which are picked up in the course of s 60CC considerations.  Certainly, the Court has been critical of first-instance decisions where it was suggested by a trial Judge or Magistrate that there was some sort of onus on a parent wanting to move, or onus on a parent seeking to prevent a move, that had to be discharged before the orders could be made. 

6. Firstly, the other relevant background facts are these:   The mother does not drive. She has a medical condition that does not inconvenience her except for that. That means that the transport arrangements are left substantially to the father.  The father says, and there is no dispute about it, that the arrangement that they have come to over time has been largely a reaction to the working arrangements of the parties. Much of the father's work is on weekends. Otherwise, at least while he lived in Sydney, he was able to work from home. That is his intention when he moves to the Southern Highlands. The mother is engaged as a school teacher during the week and, therefore, that gives her some freedom on the weekends. That is how the current pattern came about.  There is a fair bit of evidence about how the parties tried to soften the blow for the children of their separation. The mother moved out but came back from time to time, in the mornings and so on, to try and normalise life and give some sort of transition for the children and to help them cope with the separation of their parents. 

7. As to the reasons for his move, the father says:  that the lease was up on the property that was the former matrimonial home, where he was living in with the children. His partner has an 84 year‑old father who lives in the Southern Highlands. It would be expensive to buy a home in Sydney and feasible to buy a home in the Southern Highlands. In addition there are lifestyle reasons for the move. 

8. The next thing to be said is that the father made no real effort to sort this out before litigation became necessary.  Instead of working this out beforehand and reaching a consensus position with the mother, the father has taken steps, which he now either says are irrevocable steps or, in any event, he has irrevocably decided that he will move to the southern highlands, whatever orders are made in relation to the children.  It was the mother who went to a Family Relationship Centre and tried to press for a resolution. It sounds as though, although it is a bit unclear, the father did not respond quickly enough to that approach, or, for some other reason, the opportunity timed out and these proceedings were necessitated. 

9. The proposals are these: 

10. The father proposes that the integrity of the existing arrangement be maintained by him doing the additional driving.  He says that, from his point of view, the children did not spend every weekend with the mother but he says that he is willing, in the interim, to facilitate an arrangement whereby every weekend they have time with the mother. He will do the driving. He says that, now, the children are interested in this move and they would be upset if the move was not undertaken.  It is his case that his proposal reflects little change, it is just that his driving will be a little bit more onerous.

11. Mr Levy, who must own a rocket sled, says that it is a one‑hour trip from the southern highlands to Sydney. 

12. The mother's proposal comes in various forms.  She proposes something in the event that the parties are living within 30 kilometres of each other, which I think is something like what was, with an addition of Tuesday evenings spent with her during the school week. If the children live further than 30 kilometres away, say, at the southern highlands, then the children would be with the father every weekend and from after school until 7 pm on any weekday that he is available, provided he gives some notice, and otherwise they would live with her.  I think, otherwise, the parties agree about special days and half the school holidays and so on.

13. Running through s 60CC.  Firstly, there are primary considerations - having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, from being subjected or exposed to abuse, neglect or family violence.  I think, to be fair to them, each of the parties says that they want to foster a meaningful relationship with the parents.  The only shadow that is cast over the arrangements here is, if I make orders in accordance with the mother's arrangement and the father sticks to what he says, then he is likely to see the children less because his time will be necessarily limited to weekends and he is usually working on the weekends. He has said that he will be moving to the southern highlands, whatever happens.  So that might not assist with there being a meaningful relationship with both parents.  It needs to be said, of course, that outcome arises because of what the father has done.

The additional considerations, any views expressed by a child, then any factors, such as the child's maturity or level of understanding that the Court thinks relevant and the weight that it should give to the child's views. 

1. The parties do not agree about this.  The parties have had the advantage of child‑inclusive counselling.  Ms M, family consultant, saw the parties and the children and there is a very thoughtful and helpful report of that interaction. The purpose of the report was to feed back to the parties the perspective of the children.  It does not do the same job as a family report, which would recommend outcomes to the Court.  I do not know that there has been much change in the parties' positions since this feedback occurred.

2. As to the children's views, each of the children expressed some reservations about moving to the southern highlands.  S presented, as described each of the parents, as quiet and a bit introverted. She is also quite able to articulate her feelings.  S’s reservation about moving to the southern highlands is to do with feeling further away from her mother, even though she recognises that under the father’s proposals, the current pattern of living arrangements would not change.  She feels that she would miss her mother, although she also does not want to lose her father.  S would use a magic wand if she could, to stay where she lives now, to buy the house in which she, her father and brother currently live; and another wish is that she not move and that she spend more time with her mother. 

3. J is nine, straightforward of manner, very intelligent, strong‑minded, wants his parents back together.  He has a clear idea about what he wants, which is to move to the southern highlands with his father. When he starts high school, he would like to live with his mother and go to C High. J’s reservation about living in the southern highlands is that it would involve an hour and a half travel to his mother's home and he considers this to be a waste of time.  He also said he gets carsick. He has positive feelings about the prospect of moving to the southern highlands; including some excitement about changing schools.  J does not like the idea of not living with his father at this point in time. That is to do with how little he would see his father. As it is, J misses having time to play with his father.  J would use a magic wand if he could, to bring his parents back together and he used his first wish for that purpose as well.

4. So that is what we know about the children's wishes. The parents too have given evidence about the children's wishes, about tears on the occasion of the announcement of the move. Since then the father reports J saying that he wanted to go to the southern highlands saying "When are we going?"  The parties agree that the children have been caught up in all of this and know a lot more about it than they should. The parties disagree about how the children found out.

The nature of the relationship of the child with each of the child's parents. 

1. The children are attached to both parents, says Ms M.  The children like their parents' partners.  They are getting used to living with the father's partner and her two children.  The counsellor says that the parents love and are proud of their children; they know and appreciate the children's different personalities.  It seems that there is a good relationship between the parents and the children and a growing relationship between the partners and the children. 

The willingness of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent.

1. The report‑writer and the parties say that they have cooperated well in developing a workable arrangement.  The parents have reported a steady improvement in their relationship, lessening of angry feelings towards one another with the passing of time.  The children confirm they have not experienced a great deal of exposure to arguments between their parents since the marital separation.  The children have had a certain pattern of care since their parents separated; this has met their needs in the context of the demands of their parents' working lives.  This seems to have worked well for everybody until this recent development, says Ms M. 

The likely effect of changes in the child's circumstances, including the likely effect of separation from either of his or her parents, or any other child or other person.

1. That is something that Ms M highlights in terms of the children's fears.  She says something to the effect that this issue has revived for the children fears of the loss of a parent that would have attended the initial separation.  In practical terms, the children will see their mother, roughly, as they do now, if I make the orders that the father seeks.  If I make the order the mother seeks, they are almost certain to see him less, probably a significant amount less. 

As to the practical difficulty and expense of a child spending time with 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.

1. This is a problem that the father seeks, through his counsel, to minimise.  It is going to have an impact.  The whereis site on the Internet has Sydney and the southern highlands 136 kilometres apart; and somebody driving something slower than Mr Levy's rocket sled does it in an hour and 36 minutes, says that site.  It must be said, though, it is a trip in two halves, involving the worst aspects of Sydney's traffic at the end of a trip along the expressway.  So the time taken will very much depend on the hours of travel.  It is something that we know is preying on J’s mind. It sounds like he does not think that is a very good use of his time.  As is said on behalf of the mother, because she does not drive, the move will take any flexibility out of her arrangements.  She would like to move to a situation where there is a regular evening during the week.  She could do that by public transport within the bounds of Sydney; she cannot do that if the children are in the southern highlands.  I think counsel for the mother said she is already doing some things during the week. There is not much evidence about that unless I have missed something in the affidavit.  There is a reference to some orthodontal work but I do not think, unless I have missed it, that there is any extensive evidence about a pattern of the mother having time with the children during the week, whether it is for some fixed extracurricular activity or just on a casual basis.  I may be wrong about that but I could not see it.

1. That is relevant here - this is the practical difficulty and expense of a child spending time with, being an effect of a change.  I appreciate that those addition periods are not happening now but there is no reason, except for something that I will come to in a moment, why I am restricted to the arrangements that apply now, in my consideration of what would be in the best interests of the children going forward.  As I said, in the sequence of things, I am to consider, with a view to ordering, equal time. Then, if I do not do that, I am to consider substantial and significant time. I would think that regular school‑week interaction would be necessary for substantial and significant time. Further, we know already that J has reservations about spending an hour and a half in the car. That will be three hours, perhaps more, of every weekend spent roaring up and down the highway.  In the dark of winter and at the end of a long week, sometimes people do not feel as inclined to put children in the car. What has been fairly easy for the parties to deliver on, from G to where the mother has been living prior to her recent move to C in Sydney’s suburbs, would become prohibitive. There is the potential for issues such as “The children are not well," "I have a flat tyre," or whatever, to interfere with what would be a ready willingness to deliver a child over a shorter distance. 

As to the capacity of the parents and others to provide for the needs of the children, including emotional and intellectual needs…

1. It is pretty clear from what the parties have said and what the report-writer has said that this could very much come into issue. The parties have been able to cooperate and try - and, within the limits of accommodating their own working needs, have cooperated and shown a capacity - to provide for the needs of the children. With this dispute however, they have left their children, in a difficult situation.  Ms M says:

   "For their individual interviews, I found mutual criticism evident and evident anger, including in relation to old injuries."

2. That is the parents:

   "I could say that the good child-focused aspects of their parenting relationship could very well come under serious threat with this dispute."

   "Although the distances involved are not great, the proposed distribution of time remains the same.  There would be a psychological effect of moving out of Sydney, if the mother does not also move, which is one of the options to be explored.  A geographical move away from a parent can reopen old wounds for the children related to their parents' separation and can lead to anxiety about losing a parent.  The no‑win aspect of this for the children is evident."

The maturity, sex, lifestyle and background of the children and of each of the children's parents; any special characteristics of the children.

1. I do not think there is anything to record here. The children are relatively young but there do not seem to be any special vulnerabilities for the children.  There are no cultural issues that I am aware of.

The attitudes of the child and responsibilities of parents demonstrated by each of the child's parents.

1. Apart from this present problem, the parties have demonstrated a very proper attitude.

Any family violence.

1. There is some criticism of each of the parties, not much.  It was not raised before this incident came up, so it seems that it is probably not a significant issue. 

2. It is accepted that there are relocation cases and relocation cases and, as I say, they do not have a separate place in the world but there was a decision last year, of Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343 wherein Boland J - dealing with an appeal from a Magistrate who had required a mother to return about the same distance, 140‑odd kilometres - looked at the authorities and refers to another Full Court decision of D and SV (2003) FLC 93 137; (2003) 30 Fam LR 91. This is before the more recent amendments to the legislation. It was a decision about a move between two places in Victoria, I think from the verges of Melbourne, further out.

3. There is a whole lot of discussion about this issue, which I will try and shorten if I can.  The parties lived together in Melbourne's eastern suburbs, to near Geelong; a distance of 115 kilometres.  There is a discussion about this issue of distance:

   "Whilst it was not a ground of appeal, we raised with counsel for the respondent the issue of whether, in the context of this relatively short move, the relocation principles in those cases should apply to this case."

4. That is Mr Levy's point on behalf of the husband in the case before me.

   "It was her submission that any move of residence that required a significant change in the existing parenting arrangements can bring the principles discussed in those cases into play."

   "Clearly, the less distance involved in the move, the more readily satisfactorily alternative contact arrangements or logistical arrangements for shared residence are likely to be available."

5. There is discussion of the American situation, where, along with parental responsibility, the custodian often has an express right to move within a distance - in Michigan, 100 miles; South Dakota, 70 miles etc. Their Honours, in that case, did not think that it was appropriate for there to be arbitrary limits.

6. Coming back to her Honour's decision, this was a decision at first instance by Brewster FM in Canberra.  The mother moved the children to a small town on the coast of New South Wales from another small town 144 km away.  Her Honour said:

   "S 60I requires parents, if no exclusionary factors such as abuse, family violence or urgency apply, where there is an order under s 61C, or s 61B is operative, to make a genuine effort to resolve the dispute with a family dispute resolution practitioner. 

   In considering whether the child should live with the parent who proposes to relocate a Court must be satisfied the parents have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute; make orders, having regard to the child's best interest as the paramount, but not the sole consideration; Be guided in its determination by the objects and principles underpinning the legislation. 

   This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of a child.

   If making a parent order, or proposing to make an order, apply the presumption, unless excluded by reasons of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.

   In making an order for equal shared parental responsibility, have regard to the fact that there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing."

7. That does not apply here, because everybody wants it:

   "When dealing with an application involving intrastate, interstate or international relocation of a child, may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impracticable for the parties to equally share [them]."

8. That does not apply here. 

   "The Court must carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals.  Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child's best interests, make such order which may provide:

   - that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;

   - that the child lives with the non‑relocating parent and spend time with, and communicates with, the other parent;

   - that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;

   - that the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other."

9. Her Honour goes on:

   "no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case - "

   "It follows from my exposition of the legislation, that earlier core principles:

   - that the child's best interests remain the paramount but not sole consideration;

   - that a parent wishing to move does not need to demonstrate 'compelling' reasons;

   - that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child's best interests; and

   - the child's best interests must be weighed and balanced with the 'right' of the proposed relocating parent's freedom of movement,

   remain valid."

10. Her Honour goes on:

    "It is important to note that there are no separate provisions of the Act dealing with interim, as distinct from final orders, although s 61D(3) does not require mandatory application of the presumption of equal shared parental responsibility on the making of an interim order.  Thus there is no legislative mandate to consider different criteria in interim parenting applications involving relocation to final applications, although the former will, of necessity, be an abridged inquiry.

    I have noted above that cases before the introduction of the amending Act generally apply the principles enunciated in Cowling, and particularly had regard to those factors relevant to a child's stability as the foundation for orders maintaining the existing arrangements.  Thus generally Courts prohibited a relocation on an interim basis, or made orders which provided for the return of a child if only a short period had elapsed after a unilateral relocation by one parent.

    The cases demonstrate that, sensibly, Judges recognise that these very difficult cases, often with far-reaching consequences for the child, required the full investigation, which can only occur at a final hearing or now, by issues being identified and determined in a less adversarial trial, as contemplated in Div 12A of Pt VII."

11. Then her Honour went on to talk about Goode v Goode.  Her Honour quoted some papers in relation to relocation and a Family Law Council 2006 report to the Attorney-General in relation to relocation.  In this case, where a mother relocated with the children from a small coastal town to another town 144 km away, so that she could be in the context of her family, the Federal Magistrate had ordered the mother come back and required the father to do some things to assist in relation to accommodation, and the appeal was dismissed.

12. Her Honour referred to the possibility of the Court coming up with its own proposals.  That's a reference to a decision by the High Court of U v U.  In D & SV, the Full Court said this about that:

    "Recently, in U v U [2002], Gummow and Callinan JJ, with whom Gleeson CJ, McHugh and Hayne JJ agreed, said that:

    'We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties but the Court is not, on any view, bound by the proposals of the parties.  The Court has to look at the matters stated in s 68F and elsewhere - "

13. That is the old s 60CC -

    " - in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child's best interests. Nevertheless, as Hayne J said, that is not to say that the Family Court is to embark on some roving inquiry about the matter, unfettered by any regard for the evidence led and the matters which the parties seek to contest. Due account must be taken of the fact that proceedings in the Family Court are conducted in the framework of adversarial procedure familiar to the common law."

14. I think that means I am not required to consider some other option that has not been discussed by the parties, or to canvass with them the integrity of their own decisions about what they will do.  In that regard, importantly, the father said, through his counsel, whatever the order is, he will be moving to the southern highlands, and, although there is reference in Ms M’s report to some discussion about it, there does not seem to be any proposal on behalf of the mother to move from Sydney to the southern highlands.  One can see, in terms of the mother’s circumstances with her partner in Sydney, the school she teaches at in Sydney and she not being able to drive, such a move would be impracticable.  So that is where we get to.

15. I think, weighing all that up, the better arrangement, albeit certainly not ideal - is the proposal of the mother.  We have a situation where the legislation now gives an encouragement to optimum involvement of parents with children. It does not matter much that that has not been possible or that it has not pleased the parties to put it in place in the past. What is clear however is that it would be very difficult in the future if the move occurs. 

16. I think this would have been a lot easier decision had the mother not also intended to move the children's schools.  One would think that it might have been nice if the children remained where they were, at G Public School, in Years 6 and 4, but neither of the parties proposed that. Thus the children were facing a change of school anyway. I note that J has said he is very keen not to continue at the G school.  It seems to me that there are changes of significance in the move proposed by the father.  It is not as simple as saying, "It's an hour away" or "an hour and 36 minutes away", or "138 kilometres away". Extra travel is stressful and dangerous and it might well be inimical to the best interests of these children in the medium term.

17. The father’s proposal prevents the flexibilities that would have otherwise been available, due to the limits on the mother's capacity for movement.  She gives some evidence about what she has been able to cobble together with the children living in Sydney, with the assistance of her parents, for the purposes of sporting events and so on, and also her partner doing some of the driving. It would be an entirely different thing for such arrangements to be made from Sydney to the southern highlands during the school week, when the mother is fully occupied in Sydney and the children also fully occupied during that week.

18. As to the positive aspect of the orders and the time the father can spend, we have a couple of things to consider.  I do not want to make orders that he cannot, or will not, meet. Thus the arrangement must have some flexibility and provision for notice, so that he can take up what opportunities are available.

19. I would think, if none of this had happened, there would have been no significant reason for any major change, perhaps, except for some more formalised midweek involvement for the mother. That is something that S has referred to. Now I am at large in the matter.

20. What I am saying in a long-winded way is, if the father decides at this late stage to maintain a base in Sydney until the matter is dealt with on a final basis and his proposals can be fully assessed and we can get some experts in to see what the real impact is going to be on the children, then, I think, there would be no real reason for changing the integrity of what there was, subject to that minor change. 

21. The parties might like to consider the wording of the orders around the “beyond 30‑kilometre" proposal of the mother so that there is some flexibility for the father. Their representatives might have some views about it now or might like to think about it. 

22. The other thing is, it would have been nice if the children had been represented, so that this outcome could have presented to them in the best way.  That is not possible but the parties might like to talk about how they are each going to represent this to the children.  Children naturally think that problems between parents are their fault. Parents exist and the Court exists to take the pressure off them.  So, if there is a way of objectifying this problem as a problem that the parties are each working away at, and are going to get some advice and some assistance about and will try and resolve – that would be good. "Your father loves you and I love you," if that message gets through from their mother and that their interests will be taken into account, that is a message that we would like to see get through to them. 

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  25 March 2008