Salamando and Salamando

FAMILY COURT OF AUSTRALIA

SALAMANDO & SALAMANDO

[2007] FamCA 708

FAMILY LAW – CHILDREN – WITH WHOM A CHILD LIVES – RELOCATION - Interim hearing

Family Law Act 1975

Applicant:

Mr Salamando

Respondent:

Mrs Salamando

File Number:

MLF

3175

2005

Date Delivered:

7 June 2007

Place Delivered:

Melbourne

Judgment of:

Carter J

Hearing Date:

29 May 2007

REPRESENTATION

Counsel for the Applicant:

Mr N J Ackman QC

Solicitor for the Applicant:

Ryan Carlisle Thomas

Solicitor for the Respondent:

Mr P Fildes

Solicitors for the Respondent:

Middleton Lawyers

Independent Children’s Solicitor:

Ms Lonergan

Orders

That the matter of Salamando is adjourned for mention before me at 9.30am on Tuesday, 26 June 2007.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3175 of 2005

Mr Salamando

Applicant

and

Mrs Salamando

Respondent

REASONS FOR JUDGMENT

Mr Salamando (“the husband”) and Mrs Salamando (“the wife”), are in dispute about interim parenting arrangements which need to be made for their four children, in particular, whether the three younger children should live in Queensland or in Victoria.
The oldest child is V, who is now 13 years old. The three younger children are A, who is now 11 years old, T, who is now eight years old, and G, who is now six years old.
V has been living with the husband in Melbourne since about July 2006. Until early May 2007, the three younger children were also living in Melbourne. They were with the wife and her partner, Mr F, but in circumstances which are in dispute, the wife, her partner, and the three youngest children all moved to Queensland, where the wife wishes to remain. Both in the short term and the long term, it is an essential part of the husband's case that the children should return to Victoria and continue to live there.

The Hearing

The hearing was conducted by way of affidavit evidence and submissions. There was no oral evidence or cross‑examination. The husband, the wife, and the Independent Children's Lawyer, were all legally represented. Mr Ackman of Her Majesty’s counsel, and Ms Delidis of counsel, appeared on behalf of the husband. Mr Geddes of Her Majesty’s counsel appeared on behalf of the wife. Ms Boymal of counsel appeared on behalf of the Independent Children's Lawyer.
The husband relied on the following:
·    his amended Application in a Case, filed 15 May 2007;
·    his affidavit filed 8 May 2007 (“the husband's first affidavit”);
·    his affidavit filed 18 May 2007 (“the husband's second affidavit”); and
·    his affidavit filed by leave, 29 May 2007 (“the husband’s third affidavit”).
The wife relied on the following:
·    her Response filed 22 May 2007;
·    her affidavit filed 22 May 2007 (“the wife's first affidavit”);
·    her affidavit filed by leave on 29 May 2007 (“the wife's second affidavit”);
·    the affidavit of Mr D, also filed by leave on 29 May 2007; and
·    the affidavit of the wife’s mother filed 23 May 2007.
Mr D is a psychologist and clinical neuroscientist whose evidence was largely, but not exclusively, concerned with V, his condition and his treatment.
Reference was also made during the hearing to documents which had been produced on subpoena and some extracts were read to me.

Background

The husband was born in January 1968, and he is 39 years of age. As I understand it, he is in full-time employment. The wife is 40 years of age, having been born in January 1967. She is presently engaged in home duties. The husband and the wife cohabited from February 1993. They were married on 21 August 1993. Final separation took place in April of 2005. I am not aware whether or not they are divorced.
Following separation, all four children lived with the wife and spent time with the husband by arrangement between the parties. No parenting orders have ever been made.
It appears to be common ground that the husband suffered from a depressive illness following the breakdown of the marriage. The wife has detailed a number of disturbing incidents, which she says in her material, took place in the second half of 2005 and again in the second half of 2006.
The husband appears to have acknowledged the incidents in 2005, qualifying this by saying that they occurred at the “height” of his illness, saying that, following upon each incident, he was taken to hospital. The husband added that he had little memory of the incidents in 2006, save that it was his belief that the time was July rather than in August 2006, as the wife had alleged.
According to his material, the 2006 incidents took place at a time when the husband had stopped taking his prescribed medication. He says he has now recovered from his illness and complaint with his medication.
I raise these matters only as part of the background, and should not be taken as determining any matters in issue as between the parties at this stage.
The wife commenced proceedings in this Court on 21 October 2005 when applications were filed on her behalf seeking interim and final orders. The husband responded on 15 November 2005, and interim consent orders were made on 16 January 2006 by Mushin J. The most significant of those orders were orders for a partial property settlement and lump sum child support with interim applications otherwise being dismissed.
In July 2006,V commenced living with the husband.
It appears to be common ground that V was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”), when he was about seven years old. It is sufficient at this stage to say that increasingly, the wife found difficulty in coping with V's behaviour, in addition to parenting the other children.
Whether the arrangement - that is to say for V to live with his father - was intended to be temporary or final is not a matter which needs to be determined at this stage. As I have already recorded, V has lived with his father since July 2006, and the wife does not seek to disturb those living arrangements, at least at this stage.
The incident or incidents in 2006, to which I have already referred, led to the Department of Human Services (“DHS”) becoming involved with this family, a notification having been received on 1 August 2006. The notified concerns were in relation to the husband having allegedly assaulted A in the presence of the three other children.
DHS conducted an investigation and on 11 September 2006 determined to substantiate protective concerns of “Likelihood of significant physical harm, Functioning affected by exposure to psychiatric illness, Kick/strike/punch/pull, and Substantial emotional trauma at a moderate level.”
During the course of the investigation, the husband acknowledged that he “attacked” A by putting his hands around her neck and pushing her to the ground, causing him to fall on her. Each of the children told the DHS workers that they had witnessed this incident and disclosed other matters of concern. A “Protective Plan Report” was prepared and implemented. DHS ceased its involvement with the family some three months later. Notwithstanding the notification and substantiated protective concerns, V continued to reside with his father.
On 12 January 2007, final orders were made by a Registrar of this Court, pursuant to Ch 10 of the Family Law Rules 2004, inter alia, discharging all previous orders and dismissing all extant applications. There was a notation to the orders that the husband and the wife had contemporaneously, with the execution of those orders, executed a Binding Financial Agreement and a Child Support Agreement.
It appears to be common ground that the parents had agreed, following the final property orders, to attend upon Mr R, a psychologist, for therapeutic counselling. It is the wife's evidence that she attended on Mr R on 1 February 2007, and raised with him the prospect of relocating with the children to the Sunshine Coast, Queensland. This followed on from what she described as a holiday which had been enjoyed in September 2006, when discussions about this move took place. I make clear that I make no determination of how the children related to that proposal when it was discussed during this holiday.
It is also common ground that the husband and the wife arranged to meet at the husband's residence in M. The three younger children were all present, V was not. According to the wife, the meeting took place on 9 February 2007. The husband said in his first affidavit that the meeting took place in or about late March 2007, and in his third affidavit, deposed that he recalled that the visit took place in March and not on 9 February 2007.
The wife's evidence is to the effect that the husband said that he had “no problem” with the proposed move, provided that the three younger children were happy to do so, and upon his inquiry, the children told him that they were happy about the move and that they were also pleased that they could fly to Melbourne to visit him and V.
The husband disputes that he consented to any relocation or that the children were supportive of any such move. I cannot of course determine the truth or otherwise of the parties' respective evidence in this regard. I do not, at this stage, turn to deal with the other matters which the wife said were discussed at the meeting.
It is the husband's evidence, and the wife has not denied, that all four children were with him during the weekend of Saturday, 17 March 2007.
Exhibit “W1” is the transcript of a text message which the wife says V sent her at 7.30 pm on 21 March 2007. I will not read it in full. It contains expletives, but it makes it clear that V does not want to live with his mother, does not want her to come to his school to talk about him. The message concludes with a demand that the wife “stay” in her “house” in Queensland. The last sentence of that text message leads to an inference that V was aware that, as at 21 March 2007, of the planned relocation to Queensland.
I note here that the husband deposed in his third affidavit that:
“[V] had no idea his mother and siblings were to relocate or had relocated until he received a call on 3 May from the wife’s stepfather ...”
This appears to conflict with Exhibit “W1”. There are a number of possible explanations for the apparent inconsistency, none of which can be explored at this stage.
It was the wife's evidence that after consent for the move had been given, arrangements commenced to be made, and in late March 2007, she and her partner flew to Queensland to inspect properties. She has deposed that she signed a Contract for Sale for a property in the Sunshine Coast in Queensland on 2 April 2007, and made other arrangements and preparations for the move, acting “in reliance on the father's consent to the relocation”.
The wife's evidence was that notwithstanding he had agreed to the move “the father’s behaviour remained aggressive and unpredictable”.
She has deposed to an incident on 26 March 2007, when threats were made in a telephone call from the husband. She says that her partner and the children were present during the conversation, as were her own mother and stepfather. According to the wife's evidence, A began to cry hysterically. The wife says that she notified the L Police, giving the police officer the husband's mobile telephone number. According to the wife, the police officer was to call the father and warn him to stay away. After that, the wife said that all the doors to the house were locked and those present “hid” inside. A, however, would not stay at the house that night, and the wife’s mother and stepfather took A with them to their own home where she stayed for the night.
There is some corroboration of this from the wife's mother's affidavit. The wife’s mother’s evidence confirms that A was in distress, and that she had been taken by her grandmother and her husband to their home because she refused to stay at the H property. The wife’s mother does not, however, confirm that she was present when the telephone call was received.
The wife's mother's affidavit was sworn on 21 May 2007. In par 3, she deposed to having read the wife's affidavit sworn in support of her Response. She went on to say that inasmuch as that affidavit related to her and the situations in which she had been involved (namely pars 29, 44, 25 and 55) she confirmed the contents thereof.
Given that the wife did not swear her affidavit until 22 May 2007, I can only conclude that the wife’s mother must have been referring to a draft affidavit. Further, none of the paragraphs she has referred to relate to situations in which the wife’s mother has been involved.
The husband responded to the allegation, denying that he had threatened the wife’s partner or anyone else. He said that he did not receive any call from any police officer and never went to the wife's house. In turn, he raises telephone calls which took place on 24 and 25 March 2007. The truth or otherwise of all these allegations must wait for determination by cross-examination in due course.
On or about 8 April 2007, according to the wife’s mother’s affidavit, she had a discussion with the husband over coffee. The detail of that conversation, as reported by the wife’s mother, indicates that the husband did not “express any objection to or reservations about the move, save and except that he thought the children flying down to Melbourne once per month would be too much.”
The wife’s mother had also sworn that the only matter about which the husband was unsure was the intended date of departure, which was also not known to the wife’s mother.
I note here that the husband’s third affidavit was filed on 29 May 2007. It was sworn in response to the wife's first affidavit. The husband reserved his right to respond in full in due course to the wife's affidavit, as well as the affidavit of her mother. I was told that this affidavit had been served at court on 22 May 2007.
I do note that the husband referred to par 59 of the wife's first affidavit, which concerned in part the possibility of the wife's mother and stepfather moving up to the Sunshine Coast. The husband referred to a discussion with the wife’s mother at a time when she had “recently spent time with [V]” by agreement. That may well be the time referred to by the wife’s mother, but I cannot be sure. The husband was at pains, however, to point out that the wife’s mother had told him that she and her husband had no intention of relocating to Queensland, amongst other things. I find it surprising that the husband did not take the opportunity to deny what the wife’s mother alleged to have been the content of the conversation, which she set out in her affidavit. Again, this matter will only be resolved on cross-examination.
The wife has sworn that she received a telephone call from the husband on 18 April 2007, in the course of which he asked her when the move to Queensland was to occur. The wife went on to say that she had told the husband that a deposit had been paid and that the move was likely to take place shortly, although she was not certain of the exact date. According to the wife, the husband became aggressive during this conversation, and told her that he might have changed his mind about “letting” the wife and children go to Queensland. The wife deposed that she was able to calm the husband down, and by the end of the conversation, he had explained that he simply wanted to be satisfied that the children were happy about the move.
The wife has further deposed that it was agreed that she would take the children to see Mr R, and that Mr R would assess whether the children did want to move to Queensland. Whilst the wife invited the husband to attend the session, she said that the husband declined. I pause here to wonder why it was thought necessary for the children to see Mr R in order to ascertain their wishes, noting the wife's earlier evidence that the children had already told their father that they were happy about the move. There may be a number of explanations for this. A determination will have to wait for another day.
In any event, the husband said in response in his third affidavit, that he believed a conversation with the wife took place in late April, rather on 18 April 2007. It was his evidence that in the course of that conversation, he reiterated that he had not agreed to the wife relocating, upon which she became abusive. He has set out what the wife allegedly said, but I do not need to repeat it for present purposes. The husband denied that the wife said anything about having put a deposit on a property. He concluded by saying that he did not discover that the wife took the children to see Mr R until his solicitors received a letter from the wife's solicitors on 1 May 2007.
I pause here to refer to the husband's first affidavit, and in particular, Annexure “PJS2”. That annexure is a copy letter, dated 27 April 2007, from the wife's solicitors to the husband's then solicitors. Attached to it is a copy of Mr R’s letter concerning the children's wishes. The solicitor's letter itself has a date stamp showing receipt on 1 May 2007. Mr R's letter, on the face of it, indicates that it was sent by email to the wife's solicitors, and it is also clear that it was sent by email to the husband's then solicitors on Sunday, 22 April 2007, at 12.50 pm. This would appear to contradict the husband's evidence that he did not know that the children had been taken to see Mr R, until his solicitors were notified by letter received from the wife's solicitors on 1 May 2007.
Again, there may be explanations for this apparent discrepancy, and again, the determination will have to wait.
As I have said, Mr R’s “report” forms part of Annexure “PJS2” to the husband's first affidavit. I will not set it out in full. For present purposes, it is sufficient to note that Mr R reported that he spoke with the three younger children separately and alone on 19 April 2007, and that all three children expressed a consistent and definite wish to relocate with their mother. They also all expressed a wish to spend some holiday time with their father.
The husband deposed in his first affidavit that on or about 26 April 2007, arrangements were made for him to spend time with the children. It was his evidence that he was to pick the children up on the following evening, however this did not eventuate, the wife cancelling at the last minute. The wife has not referred to this in her material.
The husband deposed in his first affidavit that it became apparent to him after a telephone conversation with the wife on or about 26 April 2007, that she was intending to relocate with the three youngest children of the marriage in the near future. He does not specify what circumstances or statements led him to form this view. He went on to say that he advised his then lawyers about this situation, given that he had not consented to the move.
Annexure “PJS1” to his affidavit is a copy of a letter which the husband understands and believes was sent by his then solicitors to the wife's solicitors by way of facsimile transmission and Document Exchange. The letter specifies, amongst other things, that the husband did not agree to the children relocating, and that he had instructed his solicitors to restrain the wife from leaving Victoria if she proposed to relocate.
Annexure “PJS2” to the husband’s first affidavit is, as I have already said, a letter dated 27 April 2007 from the wife’s solicitors to his solicitors. It does not refer to the letter of the same date forwarded by facsimile and Document Exchange by the husband’s solicitors, and I cannot determine whether it was sent in response to it or not. In any event, the letter confirms that the parents had undertaken “some discussions concerning the care of their four children as well as participating in some therapeutic counselling with Mr R.”
It was confirmed that V would continue to live with his father, at least for the time being. The letter went on to advise that the wife would “shortly be relocating to the Sunshine Coast in Queensland with the three younger children”. It was said that the wife would facilitate the three younger children spending time with their father in Melbourne from time to time as agreed between the parents, taking into account the children’s wishes. In a similar vein, and subject to V's wishes, it was said that the husband would facilitate V spending time with his mother from time to time.

Reference was made to the conference with Mr R concerning the proposed relocation, and as I have already recorded, a copy of that report was attached. It was suggested the parents should enter into formal residence and care orders concerning the children subsequent to the move, and the letter closed with advice that information concerning the children’s schooling would be provided “shortly”.
It is not absolutely clear from the letter, but it is certainly the case that there is no definite reference in that letter to an agreement having been reached by the husband and the wife. It is something which might perhaps be able to be inferred and it might or might not be significant to note that there was no specific reference to an agreement.
It is common ground that the husband telephoned the wife on 30 April 2007, and in the course of that telephone call asked for the return of the car which belonged to his company. The husband has sworn that it was a term of the Binding Financial Agreement that the wife would return that car within 14 days of the final capital payment to her. That capital payment took place on 17 April 2007 (see Annexure “PJS2” to the husband's first affidavit, which acknowledges receipt).
According to the wife's evidence, the husband told her words to the effect, but in more colourful terms, that he could not be bothered fighting her in Court about the relocation. The wife said that she told the husband that this was “fine”. The husband denies this.
According to the wife, she then became uneasy that the husband “still appeared to be undecided about the relocation”. The wife went on to say that she had been hopeful that Mr R’s report would bring the matter to an end. In the first affidavit, the wife went on to say that it was clear to her “that the father was enjoying what he perceived as having control over me, knowing that I had already purchased the property in Queensland, and had made definite plans to move with the children”.
She detailed a threat, which she said the husband had made to her during a subsequent telephone conversation. The husband has denied what the wife said.
The wife deposed that she changed the original plans for the move and brought it forward. This was, according to the wife, because of “the husband’s increasingly unpredictable and aggressive behaviour”. She also deposed the children “were becoming increasingly upset that the father would take steps to prevent us from moving to Queensland”.
According to the wife's first affidavit she, together with her mother and stepfather, attended the H home on 1 May 2007 and “rushed to pack up all of the family’s belongings ready for the move”. She went on to say that most of the furniture which the family would otherwise have taken to Queensland or sold, literally had to be “jammed” into a shed at the property. She concluded by saying, “I felt like a fugitive.”
On 1 May 2007, a letter was sent from the husband’s then solicitors to the wife's solicitors “requiring” an undertaking from the wife that she would not relocate with the children to Queensland without permission from the Court, and pending determination of the issue by the Court. Legal action was foreshadowed if the undertaking was not forthcoming (see Annexure “PJS3” to the husband's first affidavit).
It is clear, as I have said, from Annexure “PJS2”, that the letter from the wife's solicitors dated 27 April 2007, addressed to the husband’s then solicitors, was received on 1 May 2007. The letter from those solicitors to the wife’s solicitors of 1 May 2007, was not said to be in response to the earlier letter. I do not know when the letter was received by the wife's solicitors, or when its contents were communicated to her.
According to the wife's affidavit, she, the three youngest children and her own mother, travelled to Queensland on 2 May 2007. She also deposed that she telephoned V that evening to let him know that they had arrived safely in Queensland. She also spoke to the husband on this occasion. She deposed that the husband was extremely aggressive during the conversation, and threatened to cut her into pieces with a chainsaw. The wife explained in her first affidavit that the phone was on speaker and her mother and A also heard this threat. A was said to have burst into tears, running out of the room. The husband responded to this in his third affidavit.
According to his evidence, V had no idea his mother and siblings were to relocate or had relocated until he received a call on 3 May 2007, from the wife's stepfather concerning V’s dog. Whilst it would seem that V did not know that his mother and siblings had relocated, I cannot accept that V had “no idea” that his mother and siblings were to relocate, given Exhibit “W1”. The husband's version of the event differs from the wife and not just as to the date. The husband's evidence in his third affidavit in this regard, is also somewhat different from what he said in the fourth sentence of par 17 of his first affidavit. However, the husband did acknowledge in his third affidavit to a “very heated discussion” and during the course thereof to having made, “angry threats against the wife.”
It is common ground that the husband spoke by telephone with the three youngest children on 14 May 2007. The husband said in his third affidavit, that he had been unable to reach the wife or the children on either her mobile telephone or the children’s mobile phones until that time. However, in his second affidavit, he had deposed to a telephone call to the wife on her mobile phone on 9 May 2007, as well as a number of text messages that passed between the husband and the wife. The wife said in her first affidavit that the husband had not attempted to telephone her between 2 and 14 May 2007 and to the best of her knowledge he did not attempt to telephone the children either.
On 10 May 2007, the wife's solicitors wrote to Vincent Verduci and Associates, who had been acting for the husband (see Annexure “MS3” to the wife’s first affidavit). The letter makes it clear that the husband’s application and affidavit in support had been served. It is clear that the husband had changed solicitors, Messrs Ryan Carlisle Thomas, having filed a Notice of Address for Service on 11 May 2007, and having corresponded by facsimile with the wife’s solicitors on 11 May 2007 (see Annexure “PS1” to the husband’s second affidavit). Annexure PS2 to the same affidavit demonstrates that the wife’s solicitors responded by facsimile and mail on the same day, enclosing a copy of the letter which had been sent to the husband’s former solicitors. That letter set out a detailed response to earlier concerns which had been raised on behalf of the husband, together with the wife's proposals for him to continue to spend time and communicate with the children.
As seen, the husband spoke to the children by telephone on 14 May 2007. According to the wife's evidence, he asked them whether they were happy, what school was like, and whether they liked living in Queensland. He was said also to have told T and A that “he just wanted them to be happy”. The wife deposed that each of the children told their father that they were very happy. They told her what their father had said to them, and expressed relief that he appeared willing to permit them to remain in Queensland. The wife said that she heard each of the children’s responses to their father's questions, given that they were all sitting at the table at the time. The husband has denied this, save for the fact of the telephone discussion during which he says that he told the children that he wanted them to be happy and that he missed them.
In her first affidavit, the wife has described the circumstances in which the three youngest children now live on the Sunshine Coast. She has deposed that they settled quickly and easily into life there, and appear to be much more relaxed. A, in particular, was said to have confided in her mother, that she was happy to be living “far away” from her father.
The children have commenced a new school and, according to the wife's evidence, have already made new friends. However, they also stay in regular contact with friends from school in H. Plans were said to be on foot for one of A’s friends to visit during the next school term holidays and one of T’s friends was also planning a visit with his mother.
The wife's partner, Mr F, is employed as a manager at a company near where the family live, and the hours of his work are “family friendly”. He and the wife are looking at the possibility of running a business together, according to the wife's evidence, and the wife is also investigating the possibility of purchasing an investment property on the Sunshine Coast.
The wife has deposed that the intention is for the relocation to Queensland to be permanent, having the belief that on a long-term basis there are better educational and employment opportunities in Queensland than in H.
The wife has sworn that the family is financially secure. She owns the property at H as well as the Queensland property outright. The H property has been listed with a real estate agent. The wife deposed in her second affidavit that she had received advice that prospective tenants had been found who were willing to enter into a 12 month lease on the H property with an option for a further two years. Whilst negotiations were taking place, the wife confirmed that she had not taken any steps to conclude any arrangements with the prospective tenants.
The wife has described that she and her partner are in a serious and committed relationship and have plans to marry by the end of this year. The partner’s relationship with the children has been described by the wife as being “a close and loving relationship”. She gave some examples of this in her first affidavit, and elaborated on it in her second affidavit.
The husband's initial Form 2 application in a Case, which was filed on 8 May 2007, and his amended Form 2 Application both seek, amongst other things, interim orders that the children live with him. In his second affidavit, he has sworn that he is capable of meeting the children’s needs if they were to live with him, pointing out that V lives with him on a full-time basis, and that he can and does, meet all of V’s emotional, financial and day-to-day needs. He explained that he takes V to school each day, and assists him with his homework each evening. He swore that he was willing to care for the three youngest children as well, so as to ensure that they have a stable routine and remain in their school and home environment. His evidence was that he lived in a large home with all the appropriate amenities, and was able to be flexible with his work commitments to ensure the children’s needs were met.
In her first affidavit, the wife expressed concerns “about the dynamics when all four children are together”. She said that there was a great deal of sibling rivalry which was exacerbated by V’s hyperactivity, and expressed concern about the husband's inability to deal with this sort of behaviour. It is her case that the husband has a very short temper; that she has seen him lash out violently at the children in such circumstances; that he is unable to set boundaries for the children; and that he is not able to undertake basic parenting activities, such as providing the children with nutritious meals. Relevantly, she pointed out the husband’s affidavit did not address the “mechanics of his proposal” that the children live with him in Melbourne.
The husband has not responded to this part of the wife's first affidavit, although I do note that he purports to reserve his right to respond in full in due course. The husband's material discloses is that he lives in M and according to the wife's material that home is some 45 minutes drive from the H property. It would be difficult for that reason alone for the children, for example, to maintain their relationships with their H friends. To my mind, the husband is not seriously suggesting that the children should live with him on an interim basis. He explained in his second affidavit, that he had repeatedly told the wife, that he did not wish for the children to be removed from “their current home environment, school, friends and family support, extracurricular activities and, most importantly, from [V] and Me (sic)”. In the same affidavit, he sought that the children be returned to Victoria and “into their familiar school and home environment” until the final hearing of this case.
This may be academic, given that the wife will not stay in Queensland should the Court order that the children return to Victoria. However, it does raise questions about the husband which will need to be addressed in the fullness of time.
Further, it is undoubtedly the case that the husband has not spent a great deal of time with the children. The reasons for this are in dispute. However, on the husband's own evidence, he did not spend any time with A between August and December 2006, and since December 2006, he was “otherwise permitted” by the wife to see A on two to three occasions, and to see G on five to six occasions. Further, according to the husband, T spent time with his father on five days in January, and three days in February 2007, and all four children spent a whole weekend with him on the weekend of 17 March 2007. It also appears, on the evidence of both parents, that there may well be difficulties in the relationship between V and the three youngest children.

Proposals

It is the wife’s case that her proposal, should the children remain in Queensland, would have the practical effect of them spending more time with their father than was the case when they lived at H. In broad terms, the arrangement suggested by the wife, is that the children would spend time with the husband and V in Melbourne one weekend in each month, together with half of all school term holidays. V would fly up to Queensland one weekend each month and, accordingly, he would spend two weekends each month with his siblings, which equated to more time than was the case when they were living in H. The wife also offers to fund all of the travel expenses necessary to allow the three youngest children to fly to Melbourne to spend time with their father, and also to allow V to fly up to Queensland.
In addition, the wife proposed that the three youngest children would be made available for telephone contact with their father each Wednesday, between 6.30 pm and 7 pm Queensland time, with the call to be initiated by the three youngest children. It was also sought that V should be made available for telephone contact with his mother between 4 pm and 4.30 pm Victoria time each Wednesday, with the call to be initiated by the wife. It should also be noted that the wife sought on an interim basis that the parents have equal shared parental responsibility for V and that the mother should have sole parental responsibility for the three youngest children and that again, on an interim basis, the party with whom the children or any of them lived at any particular time should have sole parental responsibility for making decisions about their day-to-day care, welfare and development.
For his part, the husband sought in his amended Form 2 application, that all four children live with him on an interim basis and again on an interim basis that he have sole responsibility for making decisions about the day-to-day care, welfare and development of the children. He proposed, on an interim basis, that the wife spend time and communicate with the children at times to be agreed, or as determined by the Court. Additionally, he sought that the wife be restrained from removing, or attempting to remove, the children from Victoria, and also that she be restrained from changing the normal place of residence of the three youngest children to an area outside Victoria.
It should be noted that I have not found it necessary for present purposes to detail each and every order as sought by the husband or the wife. The proposal of the Independent Children’s Lawyer, in broad terms, was the wife should return to Victoria, and that the husband should spend time with the children on alternate weekends. Again I have not attempted to detail the proposal in full. It is fair to say that the focus by all parties, was more on the question of whether the children should remain in Queensland or return to Victoria, than on the detail of the periods of time that they should spend with their respective parents and each other.

Discussion

I have endeavoured to identify what is common ground and what is in dispute in the present case. I have noted a number of matters which must await determination at a later stage, given the circumscribed nature of the proceedings before me. However, a number of matters can be recorded at this stage as well.
Whilst no parenting orders have been made in this case, each of the husband and the wife has parental responsibility for all four children, pursuant to s 61C of the Act. That parental responsibility continues, notwithstanding that the husband and the wife have separated, and the responsibility may be exercised independently or jointly, provided there is no contrary order in force.
Parental responsibility is defined by s 61B to mean all the duties, powers, responsibilities and authority, which by law parents have in relation to children. Aspects of parental responsibility include matters relating to religion, education and the relocation of a child's home in a substantial way.
It may be that the husband did consent to the wife’s proposal to move to Queensland with the children. However, in my view, even if the husband did agree, this did not continue. This emerges from the wife’s own evidence, in my view.
I refer firstly to the wife’s evidence about the telephone discussion on 30 April 2007. It will be recalled that she swore that the husband had told her that he could not be bothered fighting her in Court about the relocation. Notwithstanding this, however, she went on to say that she became uneasy that the husband “still” - and I emphasise “still” – “appeared to be undecided” - and I emphasise “undecided” – “about the relocation”. Given the circumstances of the conversation which the wife has described, I cannot understand why the wife formed this conclusion. For the same reason, I do not understand why the wife went on to say that she had been hopeful that Mr R's report would bring the matter to an end.
The wife brought forward the plans for the move because of what she described as the father's increasingly unpredictable and aggressive behaviour, but also because the children were becoming increasingly upset that the father would take steps to prevent the family from moving to Queensland. The departure was hasty and in circumstances where the wife described the situation as one where she felt like a fugitive.
It may be that at trial the wife will establish that the husband had agreed to the move and that she had acted on that agreement, purchasing the house in Queensland, and making plans to move. However, the only inference that can be drawn from evidence as to the actual move was that the husband had changed his mind. Why else would she become uneasy because he “still” appeared to be undecided about the relocation? Why were the children becoming increasingly upset that the husband would take steps to prevent the relocation? Why did the wife bring forward the plans and act with such haste? The only inference that can be drawn is that at the actual time of the move, the wife did act unilaterally. That is not, of course, the end of it.
When I look at the husband's application and the evidence, to my mind it cannot be said that the husband is seriously suggesting the children should live with him on an interim basis. I have already spoken about this. It is the case, as the wife has said in her first affidavit, that the husband has not addressed the mechanics of his proposal. It is undoubtedly the case, as I have already said, that the husband has not spent a great deal of time with the children.

Relevant Legal Principles

Goode (2006) FLC ¶ 93-286, was the first case decided by the Full Court concerning the meaning and effect of the amendments to the Act, following the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). In so doing, the Full Court discussed and set out the appropriate principles to be applied in the determination of interim matters. Commencing at par 66, the Full Court turned to consider the extent to which Cowling (1998) FLC ¶ 92-801 continued to apply in interim parenting proceedings.
Their Honours held that some of the comments of the Full Court in Cowling remained apposite, noting that the procedure for making interim parenting orders would continue to be an abridged process where the scope of the inquiry was “significantly curtailed.”
Further, where the Court could not make findings as to facts, it should not be drawn into issues of fact, or matters relating to the merits of the substantive case, where findings were not possible. The Court would continue to look to the less contentious matters, such as the agreed facts and issues not in dispute, and would have regard to the arrangements for the children prior to separation. The circumstances of the parents and the children, and the parents’ prospective proposals for the future (see par 68).
The Full Court held that it was still the case that the Court was required to regard the best interests of the child as paramount in deciding what interim parenting order to make, however, pointed out that there were passages in Cowling which did not “sit comfortably” with the Act as amended.
At par 71, the Full Court held that the reasoning in Cowling in making interim decisions, particularly as to the relevance of the best interests of the child, of stability when the child is considered to be living in well settled circumstances, needed to be reconsidered in light of the changes to the Act.
Their Honours went on to say that it could be fairly said that there was 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, abuse and family violence, and provided that it was in their best interests and reasonably practicable. Accordingly where there is a status quo, or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests 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 of the children (see par 72). However, that was not to say that stability derived from a well settled arrangement might not ultimately be what the Court finds to be in the child's best interests, particularly where there is no ability to test controversial evidence. That evidence would be arrived at after a consideration of the matters contained in s 60CC, particularly sub-ss (3)(d) and (3)(m) and, if appropriate, sub-s (4) and sub-s (4)(a) (see par 73).
The Full Court felt it was clear that there was, and went on to explain, the difference between parental responsibility which exists as a result of s 61C, and an order for shared parental responsibility, the latter having the effect set out in s 65DAC (see par 39).
Section 61DA provides a presumption for the concept that it is in a child's best interests for the parents to have equal shared parental responsibility. That does not relate to the time the child spends with either parent, it relates to the allocation of parental responsibility (see par 40).
Section 65D(1) provides that I may make such parenting order as I think proper, subject, however, to the presumption of equal shared parental responsibility, parenting plans and Div 6 of Part VII.
The term “parenting order” is defined in s 64B(1), and in s 64B(2), the matters with which a parenting order may deal are set out.
In determining whether to make a particular parenting order, the Court is required, pursuant to s 60CA, to regard the best interests of the child as the paramount consideration. In determining what is in the child’s best interests, the Court is required to consider the primary considerations set out in s 60CC(2) and the additional considerations in s 60CC(3). The Court is also required to have regard to the objects of Part VII, which are set out in s 60B(1), and the principles underlying the objects, which are set out in s 60B(2).
There are two primary considerations and there are 13 additional considerations. The considerations are as follows:
“Section 60B(1) of the Act sets out the Objects of Part VII of the Act, namely to ensure the best interests of children are met by:
‘(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 underlying those Objects are set out in s 60B(2). Those principles apply except when it is or would be contrary to a child’s best interests:
‘(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).’ ”
If it is appropriate to apply the presumption set out in s 61DA(1), it is to be applied in relation to both final and interim orders, unless in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it.
The presumption of s 61DA(1) will not apply if there are reasonable grounds to believe that a parent, or a person who lives with a parent, has engaged in child abuse or family violence. If the Court is satisfied that the application of presumption would conflict with the best interests of the child, the presumption may be rebutted.
If the Court determines that the presumption does apply, the Court must then consider whether it would be in the child’s best interest to spend equal time with each parent; whether this is reasonably practicable; and then consider an order for equal time. The question of whether it would be in the child’s best interest to spend equal time with each parent, is determined by application of s 60CC, and s 60B. The question of whether it is reasonably practicable is determined by consideration of the matters set out in s 65DAA(5).
If the Court is satisfied that the presumption of equal shared parental responsibility does apply, but does not make an order for equal time, then it must consider whether the child spending substantial and significant time with each parent would be in the child's best interests and whether it is reasonably practicable, and then consider an order for substantial and significant time. “Substantial and significant time” is defined in s 65DAA(3), and in determining whether it is reasonably practicable the Court is required to have regard to sub-s (5) of the same section. In determining whether it would be in the child’s best interests to spend substantial and significant time with each parent, again the provisions of s 60CC and s 60B come into play.
Prior to the amendments which came into force in July 2006, the approach to be taken in relation to relocation cases was well settled. The most significant authorities are AMS v AIF (1999) 199 CLR 140; A v A Relocation Approach (2000) FLC ¶ 93-035; and U v U (2002) 211 CLR 238.
The effect on previous decisions concerning relocation as a result of the new amendments, was extensively analysed by Dessau J, in M & S (formerly E) [2006] FamCA ¶ 1408.
At par 38, her Honour held that the amendments did not cast an onus of proof on the application for relocation, it being clear that this was not the intent of the amendments, and concluded at par 39, that the relevant sections of the Act “direct the Court squarely to maintaining the important relationship between a child and his/her parents. But the child's best interests remain the Court’s paramount consideration … The legislature has not diminished the best interests test as integral to any parenting issues, including the difficult issue of relocation.”
In Godfrey and Sanders [2007] FamCA 102, Kay J, sitting as a single judge, pursuant to arrangements made under s 94AAA(3), heard an appeal from the decision of a Federal Magistrate in relation to an application by the mother to move to Brisbane. His Honour referred to Dessau J’s judgment, from which I have just quoted, and at par 32 found “no reason to depart from the conclusions reached by Dessau J that whilst the various provisions of the Act, as amended, emphasised the importance of maintaining an appropriate relationship between a child and its parents, the best interests of the child remain the paramount consideration.”
His Honour went on to say that:
“… the legislation requires that there be a primary consideration given to the benefit of the child having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.”

Further Discussion

In Goode, the Full Court said that in making interim decisions, the Court would still often be faced with conflicting facts, little helpful evidence, and disputes between the parents, as to what constituted the best interests of the child. Nonetheless, their Honours said, “the legislative pathway must be followed” (see par 81). The steps involved were set out in par 82, and I need not set them out in full.
Their Honours had already considered s 61DA(3) which provides that, when making an interim order, the presumption of equal shared parental responsibility applies, unless the Court considers that it would not be appropriate in the circumstances. At par 77 their Honours noted that this subsection was important, and went on to say in par 78 after further discussion that the subsection provided a discretion 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.”
As I have already said, the parties are at issue in a number of significant areas. I have endeavoured to set out what is common ground and what is in dispute, together with matters which require explanation. I have heard very little, if anything, by way of submission, as to the statutory consideration or the steps identified in par 82 of Goode. Certainly I have not been taken through them sequentially.
Having already identified the competing proposals of the parties and the areas in which the parties are at issue, and noted there are a number of agreed relevant facts, I now turn to the balance of the steps set out in par 82 of Goode, commencing with the matters in s 60CC. In doing so, however, it is important to recall that this is of necessity, an inquiry which is “significantly curtailed”.
The proceedings have been dealt with “on the papers”. A final determination of disputed facts in such circumstances, cannot and indeed should not, be made until after viva voce evidence, and in particular, until after cross‑examination. My task is to decide, on an interim basis, parenting arrangements for these children which are in their best interests pending the determination of the applications for final orders. Whilst the Act (apart from s 61DA(3)), does not draw any distinction between the principles to be applied in determining interim and final proceedings, the limited nature of the inquiry at this stage, together with the purpose of the inquiry, provide the context to the consideration and application of the statutory considerations.

Primary Considerations

I am required to consider the benefits to these children of having a meaningful relationship with both of their parents. This consideration echoes the object set out in paragraph s 60B(1)(a). It is a very important consideration. I am satisfied that the three youngest children currently enjoy a meaningful relationship with the wife. That is not the case so far as V is concerned. I am far less certain about the relationship of the three youngest children with their father, and in particular about A’s relationship with him. I am satisfied that V currently enjoys a meaningful relationship with his father.
The wife acknowledged in her first affidavit, that she appreciates the importance of encouraging an ongoing relationship between the children and their father, and between the younger children and V. She has deposed that she is willing to facilitate and encourage the children to spend time with their father, provided that he establishes “that he is stable and a fit and proper parent”. The proposals that the wife has set out in her Form 2A response, do not contain any such qualifications. It is clearly her case that the arrangements that she proposes, will continue to promote the three younger children’s relationship with their father, and that V’s relationship with her, would also be promoted by these arrangements.
In his first affidavit, the husband noted that after his health had improved in late 2006, he was starting to rebuild his relationship with the three youngest children. He noted that this was beneficial for “him” as well as for V. The husband does not refer in his affidavits to any proposals as to how the children would have a meaningful relationship with their mother should they live with him. His application for interim orders seeks that the wife spend time and communicate with the children as agreed between the parties or as determined by the Court.
A relationship where there is regular face‑to‑face contact is very different from a relationship where there is less frequent time spent, even if it is of longer duration. Of itself, that does not mean that it cannot be meaningful. However, to my mind, different considerations apply when the relationship is not strong.
The second of the primary considerations requires the Court to consider the need to protect a child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. This consideration reflects the objects set out in s 60AB(1)(b). “Family violence” is defined in s 64(1) of the Act. The evidence concerning the involvement of DHS with this family demonstrates that A was a victim of family violence, and I also note that DHS substantiated protective concerns relating to substantial emotional trauma at a moderate level. The wife has concerns about the father’s stability, aggression and anger. She has pointed to sibling rivalry, which is exacerbated by V’s hyperactivity and aggression, and the husband’s alleged inability to deal with this sort of behaviour. This matter may well need further investigation, however, the evidence at this stage, does not enable me to conclude that the children presently need protection in this regard.

Additional Considerations

The first of these requires a consideration of any views expressed by the children and any factors such as maturity or level of understanding which are considered relevant to the weight that should be given to those views.
Exhibit “W1” clearly sets out V’s views. I have already spoken about them. The three youngest children's views were expressed to Mr R. I have already spoken about those. The wife has also deposed in her written material to what the children's views are said to be. However, I have no evidence whatsoever as to the children’s maturity or level of understanding, nor indeed, as to whether they understand the longer-term implications for relocating to Queensland. The same observations can be made in respect of V.
In those circumstances I cannot determine what weight should be given to the views of any of the children.
I am required to consider the nature of the relationship of the children with each parent and other significant persons. I have touched on the children’s relationships with their parents earlier. Additionally, there is evidence from the wife that her partner has a close and loving relationship with the three youngest children.
I am required to consider the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent. This is a significant matter, but it is one which I am unable to determine on the evidence presently before me. On one hand, the husband says that the wife “permitted” him to spend time with the children when it suited her, prior to his illness. Otherwise, it appears to be the thrust of his evidence that the wife restricted him in seeing the children, and in particular A, since December 2006. On the other hand, the wife says that the husband’s contact with the three younger children since separation has been at best “sporadic” and that he has made virtually no effort to remain involved in their lives. The parties did, however, commence attendance upon Mr R for therapeutic counselling, and as I understand it, in relation to parenting issues. It would seem that some progress had been made, given that Mr R spoke of V having spent some time with his mother, and A having spent some time with her father.
The issue of the parents’ willingness and ability to facilitate and encourage a close and continuing relationship between the children and the other parent in reality cannot be examined or determined until they give evidence and undergo cross-examination, when an assessment of them in this regard can be made.
I am required to consider the likely effect of any changes in the circumstances of the children, including the likely effect of any separation from either parent or any other child or significant person with whom the children have been living. This is a very significant matter, given that the husband’s application on the face of it, seeks that the three youngest children live with him. That would have the effect of removing them from the care of their mother with whom they have been living since birth, and would also remove them from the wife’s partner who has been living in the wife’s household, on her evidence, since about September 2006.
The wife deposed in her first affidavit that during the marriage she was responsible for the day-to-day parenting of the children to the virtual exclusion of their father. She added that the husband worked long hours and displayed little interest in family life. The husband responded to this in his third affidavit. He agreed that he worked long hours, but said this was to ensure the family’s financial security. He said that he made a point, however, of not working on weekends, which were spent as a family. He does not, however, dispute that the wife was primarily responsible for the care of the children. In those circumstances it is necessary, in my view, that there should be evidence as to the effect on the three younger children of separation from their mother before any order to this effect is made.

Until very recently, the three younger children were living in Victoria. They have experienced a significant change in circumstances as a result of the move to live in Queensland. They are attending new schools. It is the wife's case that the children are thriving and have already adjusted well to the move. It is also the wife’s case that the practical effect of her proposal is that the husband would spend more time with the children than was the case when they lived in H. If the children came back to Victoria and lived with their mother, clearly there would be another change in their lives. However, they have only been living in Queensland since early May and they would be able to resume living with the wife in their former home at H. It could not be said that they were living in Queensland in well settled circumstances in the sense used in Cowling. I am not certain whether they would be able to return to the school they attended before going to Queensland, although the husband has submitted that they can, nor am I aware of what the wife’s partner would do, in the event the wife and children returned to Melbourne.
I am required to consider the practical difficulty and expense of the children spending time with and communicating with a parent, and whether that difficulty or expense will substantially affect the right of the children to maintain personal relations and direct contact with both parents on a regular basis. The wife proposes to pay for the costs of all children's travel between Melbourne and Queensland, and on her evidence, she can afford this. She also proposes that there should be telephone contact. It was submitted during these proceedings that the travel to enable the children to spend time with their respective parents on one weekend each month was quite substantial, and that is the case. It would be more onerous for T and G than it would be for the older children.
I am required to consider the capacity of each of the parents and any other person, including any grandparent or other relative, to provide for the needs of the children, including emotional and intellectual needs. It is safe to conclude the wife has the capacity to provide for the needs of the three youngest children, given the arrangements which followed separation. The husband has been caring for V since approximately July 2006, and it cannot therefore be said that he is untested. However, his capacity to care for all four children on an extended basis is certainly untested. Additionally, he is in employment. The wife also raises issues about his capacity to care for the children, both physically and emotionally.
I am required to consider the attitude to the children, and to the responsibilities of parenthood demonstrated by each parent. I have largely dealt with this in my earlier discussion, and the state of the evidence does not permit any further determination to be made.
I am required to consider any family violence involving the children or members of the children’s family. Again, I have dealt with this earlier, inasmuch as DHS’s investigation is concerned. The wife, however, raises other allegations about the husband's conduct, physical abuse of V and the other children, together with threats to her. These would fall within the definition of family violence, as set out in s 4(1). The husband has denied these allegations.
An allied consideration concerns any Family Violence Order that applies to the children, or a member of the children's family, if the order is a final order, or if the making of the order was contested. It is the case that an Interim Intervention Order was granted on 15 August 2005 against the husband in favour of the wife and the children. That order was made permanent and lasted until 20 December 2005. The husband acknowledges this however, points out that it took place at a time when his depressive illness was at its height.
I have considered the other additional considerations, but to my mind they are not relevant to the circumstances of this case at this stage.
The Court must also consider a variety of matters which are set out in s 60CC(4), which deal with the issue of the extent to which each of the children’s parents have fulfilled or failed to fulfil their responsibilities as a parent. In particular, consideration must be given to the extent to which each of the parents has taken, or failed to take the opportunity, to participate in making decisions about major long-term issues in relation to the children, and to spend time with the children, and to communicate with them.
Another matter for consideration, is the extent to which each of the parents has facilitated, or failed to facilitate, the other parent participating in making decisions about major long term issues in relation to the child, and spending time with the child and communicating with the child. It is further necessary to consider the extent to which each of the parents has fulfilled, or failed to fulfil his or her obligation to maintain the child or children.
“Major long term issues” are defined in s 4(1). The issues include, but are not limited to, issues about a child’s education, a child’s religious and cultural upbringing, and changes to a child’s living arrangements, which make it significantly more difficult for the child to spend time with a parent.
The first matter set out in s 60CC(4) may be of significance but cannot be determined at this stage. The third matter does not appear to be of relevance. The second matter, however, does assume significance in the circumstances of this case. It will have particular significance when the Court comes to determine whether or not the husband consented to the wife’s proposed relocation. It has significance, in any event, and regardless of that determination, given that the wife changed the original plans for the move, and brought it forward and departed in the circumstances which I have earlier discussed. Her actions, on her own evidence, must lead to an inference that she acted pre-emptively and in so doing, and at that stage, prevented the husband from participating in decision making about major long-term issues in relation to the children.

Section 61DA.

The question of parental responsibility was not really addressed in the submissions that I heard. In my view, the presumption of equal shared parental responsibility does not apply because of sub-s (2). There are reasonable grounds to believe that the husband has engaged in family violence. This emerges from the DHS investigation, and the husband’s own acknowledgment.
I note that neither the husband nor the wife seek equal shared parental responsibility, save that the wife does seek such an order limited, however, to V. This is an additional factor. It is relevant, but not determinative. The husband and the wife have in the past, been able to negotiate parenting arrangements, however, their attendance on Mr R for therapeutic counselling to improve the family's relationship demonstrates that there are problems. This litigation will not have assisted. The best interests of the children require an order in the circumstances that each parent have sole parenting responsibility for making all decisions for the child or children living with him or her, for the time being.

Conclusion

I am required to make an order which is in the best interests of the children, as a result of consideration of one or more of the matters in s 60CC, and with regard to s 60B, although even then I may need to consider equal time or substantial and significant time. In Goode's case, it was held that this would be especially so if one of the parties has sought it, or even if neither having sought it, the Court considers it would be in the best interests of the children, subject however, to having afforded procedural fairness.
Neither party has sought equal time or substantial and significant time, as explained within the meaning of the legislation. Further, in my view, such an order would not be in the best interests of the children.
In the circumstances of this case, I am satisfied, that until the hearing of the applications for final orders, it is in the best interests of the three youngest children that they primarily live with the wife. In my view, that situation should not change until there is a testing of the evidence generally and in particular of expert evidence which needs to be obtained as to the effect on these children of separation for significant periods from their mother.
That said, however, I am also of the opinion that it is in the best interests of these children that they should spend time with their father. The amount and circumstances of that time is a matter which will need to be considered, and very different considerations may well apply in A’s circumstances.
I am also satisfied that until the final hearing, it is in V’s best interests, that he primarily reside with his father. It has not been contended to the contrary. Again, however, I am also of the view that it is in his best interests that he spend time with his mother. How this is to be achieved is another matter which will need consideration.
In dealing with the difficult question of relocation I have considered and weighed the competing factors and proposals, albeit in the circumscribed setting of this interim hearing, and have done so for the purpose of determining the best interests of all the children. Those best interests must remain paramount, even above the wife’s freedom of movement.
In s 60B, the term “meaningful involvement” is used. In s 60CC(2), the section dealing with the primary considerations, the term “meaningful relationship” is used. Neither term is defined in the Act. The principles underlying the objects must be read as directed to achieving those objects. Section 60B(2)(a), (b), (c) and (d) are all relevant in this regard, although sub-s (d), like its predecessor, is in the nature of an exhortation to the parents.
The right of a child to “spend time on a regular basis” with both their parents and others, carries with it a clear understanding that it should also be as frequent as is appropriate, and by the various means which are considered to be in the child's best interests (see par 9.18 B and B; Family Law Reform Act 1995 (1997) FLC ¶ 92-755).
A meaningful relationship or involvement may not be perfect but it must be the best possible that can be achieved in all the circumstances in the children's best interests. The relationship between A and her father has not yet been completely established or re-established and there are significant difficulties in the relationship between V and his mother. There is some uncertainty about the relationship between the other younger children and their father. The best interests of all four children require that their relationships with both their parents be fostered and consolidated. This is more likely to be achieved, at this stage, if the children live in Victoria. It may well be that upon a final determination of this matter, and upon expert evidence being obtained, the proposals may be found to be sufficient to enable a meaningful if not perfect or optimal relationship to be sustained.
On a final determination of the contentious issues between these parents, the Court may find that the best interests of the three younger children require them to live with their mother in Queensland, but at this stage the best outcome for these children, in my view, requires them to live with their mother in their former home at H. Hopefully the mother’s partner will be able to join them there.
I appreciate that the wife will be extremely distressed at this decision. The three youngest children, and in particular A, may also be distressed. I also appreciate that it will involve a great deal of inconvenience at the very least, as well as disruption. The wife should not believe that she is being punished for her actions in relocating for that is simply not the case.
I am fortified in my conclusion by the fact that the Independent Children’s Lawyer supported the children’s return to Victoria, however the decision is mine alone, and one which I have made conformably with the relevant statutory provisions.

Time to be Spent by the Children with the Non-Residential Parent

This issue needs to be handled very carefully. The wife’s distress at returning to Victoria to live may well be noticed by the children, although for their sake she should seek to conceal it. The parents should also, I would recommend, continue with the therapeutic counselling which had been commenced prior to these proceedings.
The wife had proposed interim orders if she lived in Queensland, which would result in the three younger children spending time with their father on one weekend each month, for half of each school term holiday periods, and for half of the summer school holiday period. This may not at all be appropriate for A at this stage. It may be appropriate for the other two, but I have some concerns there as well, but A’s relationship with her father was, it would seem, delicately poised before she went to Queensland and again has probably not been assisted by this litigation. Similar considerations apply in respect of V. They may or may not apply in respect to T and G.
I will call for submissions before the orders are made. Subject to that, that is to say further submissions, I do not agree that the Independent Children’s Lawyer's proposal of alternative weekend time being spent should be adopted. Subject to submissions, I would order that the children return to Victoria towards the end of the approaching Victorian school term holidays. I also want to hear submissions about the future conduct of this matter. It is obvious, in my view, that a family report needs to be obtained, and the future listing of this matter will need to take that into account.
I need, in the circumstances of other cases today, to call upon counsel to assist in drafting of orders, after taking instructions as to some of the matters which I have outlined but, of course, to give effect to these Reasons for Judgment.

I certify that the preceding one hundred and fifty-eight (158) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter.

Associate:

Date: 17 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as SALAMANDO & SALAMANDO

[2007] FamCA 708

7 June 2007

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