SAYLOR & CHERUTTI

[2015] FamCA 432

FAMILY COURT OF AUSTRALIA

SAYLOR & CHERUTTI [2015] FamCA 432

FAMILY LAW – CHILDREN – Final parenting orders – Where both parties seek equal shared parental responsibility – Where the mother seeks that the children re-locate to Queensland – Where the children currently reside in Sydney with the father – Where the mother lives in Queensland with a new partner and has a new child to that partner – Where it is not practical for the father to re-locate to Queensland – Where the mother un-enrolled the children from their school in Sydney – Whether the parties should have equal time – Where it is found that an equal time regime is not reasonably practicable – Where the children are currently “thriving” in Sydney – Best interests of the children – Where the children are to live with the father – Where the parties have equal shared parental responsibility for the children.

Family Law Act 1975 (Cth) s 60B, s 60B, s 61DA, s65DAA(1) MRR v GR (2010) 263 ALR 368 Taylor v Barker (2007) 37 FamLR 461
APPLICANT:	Mr Saylor

RESPONDENT: Ms Cherutti

FILE NUMBER: SYC 7368 of 2013

DATE DELIVERED: 21 May 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 19, 20 and 22 January and 6 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sansom

SOLICITOR FOR THE APPLICANT: Abrams Turner Whelan Family Lawyers

RESPONDENT: Ms Cherutti on her own behalf

Orders

1. That all existing Orders in relation to the children:

   ·B born … 2007

   ·C born … 2008

   ·D born … 2012

   (“the children”) are discharged.

2. That the parties have equal shared parental responsibility for the children.

3. That the children live with the father.

4. That the children spend time with the mother in E Town, Queensland as follows:

   (a)during the Terms 1, 2 and 3 school holidays, from the first Tuesday of the school holiday period until the last Saturday of the holiday period;

   (b)for a period of three weeks during the December/January school holiday period as follows:

   (i)in odd-numbered years, from the Saturday immediately after the last day of the school term; and

   (ii)in even-numbered years, commencing on 3 January.

   (c)on one weekend per school term from Friday afternoon until Monday afternoon (“the Queensland mid-term weekend”) upon the mother giving to the father no less than four weeks’ written notice of the selected dates and provided that this time includes public holidays whenever possible; and

   (d)       at any other time as may be agreed in writing by the parties.

5. For the purposes of implementation of Order 4:

   (a)the father will book the children’s flights to and from E Town for time with the mother during the Term 1 and Term 3 holidays and he will be solely responsible for the costs of those airfares;

   (b)the mother will book the children’s flights to and from E Town for the children’s time with her during the Term 2 and December/January holidays and she will be solely responsible for the costs of those airfares;

   (c)the mother will book the children’s flights to and from E Town for the purposes of Order 4(c) and the parties shall be equally responsible for the cost of those airfares;

   (d)the mother and father will meet at Brisbane Airport for changeover, unless otherwise agreed in writing; and

   (e)each party will meet the cost of their own flights.

6. That in addition to the time in Order 4, the mother is at liberty to spend time with the children in Sydney as follows:

   (a)for one weekend each school term from the conclusion of school on Friday until 5.00 pm on Sunday with the mother to provide the father with at least two weeks’ written notice of the proposed dates (“the Sydney midterm weekend”); and

   (b)in the event that the mother travels to Sydney at any other time, for up to seven out of fourteen days, provided that the mother gives to the father at least two weeks’ written notice and facilitates the children’s attendance at school during this period.

7. For the purposes of implementation of Order 6, for the Sydney midterm weekend:

   (a)the mother will book her return airfare to Sydney and notify the father of flight times; and

   (b)the mother and father shall be equally responsible for the costs of the mother’s airfares, with the father to reimburse the mother for his half share within seven days of the mother providing notice of the flight dates.

8. That the mother will communicate with the children as follows:

   (a)during school term time by Skype on three nights per week, being Tuesday, Thursday and Sunday and by telephone on each other night with the mother to initiate the Skype call or telephone the children between 7.30 pm and 8.00 pm;

   (b)during the school holidays the father will use his best endeavours to make the children available to communicate with the mother by Skype or telephone each night between 7.30 pm and 8.00 pm wherever practicable; and

   (c)for the purposes of this Order, in the event that the children are not available, the father will notify the mother as soon as is practicable.

9. That the mother and father will ensure that the other parent is kept informed of his and her residence contact phone number and email address and shall notify the other party of any change within 48 hours.

10. That should a medical emergency arise in relation to any of the children while they are in the care of one party, then that party will notify the other as soon as practicable of the time and nature of such medical emergency, the name and address of any treating medical practitioner and/or hospital and the location of the children.

11. That in the event that any of the children become ill or injured whilst in the care of one party, that the party will notify the other forthwith and ensure that the child or children attends upon a medical practitioner without delay.

12. That if requested by the other, each party will notify the other of the name, address and telephone number of the children’s treating health professionals and sign any authority so as to release to the other particulars of the children’s health or treatment.

13. That each party will ensure that the other is advised of any medical or specialist appointments relating to the children and ensure that the other is kept advised of the names and contact numbers of such practitioners to allow the other to participate, visit or speak with such practitioner.

14. That the parties will authorise the Principal of any school or day care centre that the children may attend to provide to the mother with copies of school reports, school photographs, notices of parent/teacher meetings, school assemblies, sports and swimming carnivals and any other school activities to which parents are invited to attend and any other correspondence or notification otherwise relevant to the children.

15. Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached to the sealed Orders and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Saylor & Cherutti has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7368  of 2013

Mr Saylor

Applicant

And

Ms Cherutti

Respondent

REASONS FOR JUDGMENT

Proceedings

1. Ms Cherutti (“the mother”) and Mr Saylor (“the father”) are the parents of three children:

   ·B born in 2007 (8);

   ·C born in 2008 (6); and

   ·D born in 2012 (2).

   The children have lived with the father in Sydney since 30 April 2014.  This arrangement was confirmed by consent interim orders made on 26 May 2014.

2. The mother lives at E Town in Queensland with her partner, Mr H.  The children spend time with the mother in Queensland during school holidays and on one weekend per term.  These arrangements are also the subject of interim orders made by consent on 26 May 2014.

3. At the conclusion of the trial on 22 January 2015 the mother, who was unrepresented, expressed concern that she was unable to tender documents in relation to the children’s school attendance during 2013 and 2014.  There had been a suggestion in the case of the father that she failed repeatedly to cause the children to arrive at school punctually.

4. I decided to afford the mother an opportunity to tender such documents as she saw fit in relation to the children’s school attendance.  Accordingly I made the following orders and directions on 22 January 2015:

   1.Leave is granted to the mother to issue a subpoena to produce documents to the Department of Education, which subpoena is returnable before Registrar George at 9.00 am on 12 February 2015 with appearances to be by telephone.

   2.The Case Coordinator is requested to provide copies of the documents produced by the Department of Education to the mother and the solicitor for the father.

   3.Within 7 days from the date of despatch, the mother shall in writing identify to the solicitor for the father and Registrar George the documents produced by the Department of Education which she proposes to tender in her case and within a further 7 days the solicitor for the father will indicate consent or objection to such tender to the mother and Registrar George.

   4.Each of the parties shall provide any additional submissions arising from the tender of such documents in writing within 7 days thereof.

   5.The proceedings are adjourned part-heard before Stevenson J to 9.30 am on 6 March 2015, upon which date judgment will be reserved and no appearances are necessary.

5. I admitted into evidence (Exhibit 14) documents described by the mother in these terms:

   1.2 pages of Admission records, which show the children’s attendance 2013 to 2014;

   2.Email from [Mr Saylor] to [F School] dated 19 May 2014;

   3.Absent letter for [B] dated 24 October 2014;

   4.Email from [Ms Cherutti] to [F School], 16 February 2015;

   5.Email from [Ms G] to [Ms Cherutti], 17 February 2015;

   6.Attendance record produced from [F School];

   7.Emails between [Ms Cherutti] and [Ms G], 17 February 2015;

   8.Copies of [B’s] and [C’s] semester one reports from [F School], 2014.

The proposals of the parties

1. The applicant father proposed that the children continue to live with him and that they spend time with the mother in E Town during school holidays and on one weekend per term in Sydney.  He was willing to facilitate the children spending additional time with the mother in Sydney by arrangement between the parties.  He proposed that he and the mother have equal shared parental responsibility.

2. The father made no proposal that he relocate to E Town and indicated clearly that he will remain in Sydney, in the event that the children move interstate to live with the mother.  He maintained that employment opportunities in the vicinity of E Town would be very limited in his area of expertise.  He contended that he would have no support from family or friends in E Town.  The father gave uncontradicted evidence in relation to these two contentions.

3. The mother proposed that the children relocate to E Town to live with her, Mr H and their half-sister.  She and Mr H have a daughter, J, who was born in 2014 and is now 12 months of age.  Mr H owns a home in E Town which is currently occupied by himself, the mother and J.  The mother proposed that the children spend time with the father for most of the school holidays and on one weekend approximately every three months.

4. Unsurprisingly, the mother experienced substantial conflict as to whether she would remain in E Town if the children continued to live in Sydney with the father.  Understandably she appeared to be torn between a strong wish to continue her happy life with Mr H and J in E Town and anguish at an ongoing separation from B, C and D.  Ultimately, my impression was that the mother would opt to remain in E Town and spend as much time as possible with the children.  She submitted a detailed proposal for such time in her Case Information document.

Background

1. The father was born in 1976 and is presently 38 years of age.  He works full-time as a salesman and lives with the children at the home of his parents in Suburb I.

2. The mother was born in 1980 and is currently 34 years of age.  Her partner Mr H was born in 1982 and is presently 32 years old.  He is employed as a tradesman at K Town, which is approximately twenty minutes distance from E Town.  Mr H is fully responsible for the financial support of the mother.

3. Mr H has two children, L and M, who are aged 10 and 8 respectively.  They live with their mother in E Town and spend time with their father on a regular basis.

4. The parties began to live together in 2001 and married in 2004.  There was a dispute as to the date of their separation, with the mother and father contending respectively that their relationship broke down finally in December 2012 or May 2013.

5. The mother and Mr H met on-line and established a relationship in April 2013.  They first had contact in person in July 2013, when Mr H travelled to Sydney.  In 2013 the children spent time in E Town with the mother and Mr H, apparently without the knowledge or consent of the father.  During 2014 the children spent time with each of the parties in accordance with interim orders made by consent.

6. In August 2013 the mother notified the father in writing of her wish to relocate with the children to E Town.  The father’s solicitors clearly indicated his opposition to this proposal in a letter dated 20 August 2013.  On the same date the mother gave a written undertaking, witnessed by a Legal Aid solicitor, that she would not relocate the children beyond 100 kilometres of Suburb N.  At this time, the mother and the children lived in rented premises in that suburb.

7. In November 2013 the mother withdrew B from school and took the children to E Town, without the father’s knowledge or consent.  When the father was informed by staff at B’s school that she had been withdrawn in November 2013, he filed an application for a recovery order which was listed urgently on 16 December 2013.

8. On the return date of the father’s application the parties consented to interim orders to the following effect:

   1.That the parties have equal shared parental responsibility.

   2.That the father pay to the mother a sum of $10,000 from the proceeds of sale of the former matrimonial home to be applied for her to rent premises in Sydney.

   3.That the mother return the children to Sydney by 5 January 2013.

   4.That the father have care of the children from 27 December 2013 to 5 January 2013.

   5.That the children spend time with the father on each alternate weekend.

   6.That [C] and [B] be enrolled at Suburb N Public School.”

9. The parties consented to further interim orders on 23 January 2014.  These orders provided that the children spend three nights per fortnight and half of the April and July school holidays with the father and otherwise live with the mother.  Provision was made for expedition of the final hearing, which was then fixed for 26, 27 and 28 May 2014.

10. On 29 April 2014 the mother requested that the father collect the children from school on the following day.  At this time she was pregnant with Mr H’s child and in E Town.  The mother was admitted to hospital on 1 May 2014 and discharged on 4 May 2014.  She was unable to travel and remained in E Town until J’s birth on 29 May 2014.  J’s expected birth date was 15 June 2014.

11. On 26 May 2014 the parties consented to interim orders which provided that they have equal shared parental responsibility and that the children live with the father in the Sydney metropolitan area.  The orders provided further that the children spend time with the mother in E Town on one weekend per term; for half of the April and Christmas school holidays and the whole of the terms two and three vacations.  The parties agreed to effect changeovers at Brisbane airport.

12. The orders of 26 May 2014 provided that the parties apply the balance of the proceeds of sale of their former matrimonial home to meet the costs of the children’s airfares for their travel between Sydney and E Town.  On the depletion of that fund, the parties were required to share equally the cost of the children’s travel.

The evidence and witnesses

1. The applicant father relied upon written and oral evidence from himself and the paternal grandmother, Ms O Saylor.  The respondent mother relied upon written and oral evidence of herself and her partner, Mr H.  I accept that all of these witnesses made genuine efforts to be truthful and frank in their evidence.  I had the benefit of two reports and oral evidence from a single expert, Dr P.  I found the evidence of Dr P to be of considerable assistance.

Approach to these proceedings

1. In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings.  Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out two “primary” and 14 “additional” considerations, to which the Court must have regard in determining what orders are in a child’s best interests. 

2. The Court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2).  Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.

3. Section 61DA requires the Court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility.  This presumption does not apply if there are reasonable grounds for the Court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence.  The presumption may be rebutted by evidence which satisfies the Court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.

4. If a parenting order provides for equal shared parental responsibility the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)).  If there is no order for equal time, the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent.  The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3), (4) and (5).  There is no temporal definition of “substantial and significant time”.

5. In MRR v GR (2010) 263 ALR 368 the High Court of Australia said:

   [8] Subsection (1) of s 65DAA is headed “Equal time” and provides:

   If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   Subsection (3) explains what is meant by the phrase “substantial and significant time”.

   [9] Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”

   …

   [13] Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”

   …

   [15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”

1. In Taylor v Barker (2008) 37 FamLR 461 the Full Court (Bryant CJ and Finn J) considered the proper approach to cases which involve a proposal by one party to bring about a significant change to the place of residence of a child. Their Honours said, inter alia at pages 462-463:

   (i)When dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible:

   U v U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36; Bolitho v Cohen(2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458, applied.

   (ii)There was no substance in the argument that the magistrate had erred in dealing with the issue of relocation and the reasons for it as a separate and determinative issue. A relocation proposal should continue to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the relevant s.60CC matters; however, such a proposal now also needs to be considered in the context of s.5DAA. Given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s.60CC(1) provides that in determining what is in the child’s best interests, the court must consider the matters set out in subs (2) (primary considerations) and subs (3) (additional considerations) of that section, it would seem only logical that the court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.

   …

   (v)The legislation gives no guidance as to the stage at which a court should commence a consideration of the relocation proposal, but if having found advantages in “substantial and significant time” (or for that matter in “equal time”), the magistrate had then turned to consider the “reasonable practicability” of such an arrangement, some assistance would have been gained from s.65DAA(5). A consideration of these matters would have required the magistrate to evaluate the differing proposals of the mother and father and to consider whether “substantial and significant time” would be “reasonably practicable” if the mother were to relocate to Queensland. This would seem to be a logical path to follow but as the legislation does not prescribe an order in which the relocation proposals are to be considered, it was not possible to conclude that the magistrate’s decision was incorrectly reached.

   (vi)The options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.

The presumption of equal shared parental responsibility

1. The father’s Minute of Proposed Orders provided that the parties have equal shared parental responsibility for the children.  In final submissions his counsel said words to the effect, “There is no reason why there should not be shared parental responsibility.”

2. In her Response to Initiating Application filed on 20 December 2013 the mother sought an order that the parties have equal shared parental responsibility.  At that time, the mother had the benefit of legal representation.  She has since consented to interim orders that the parties have equal shared parental responsibility on a number of occasions.  In so far as I am aware, the mother at no stage has sought any different order in relation to parental responsibility.

3. The single expert, Dr P, recommended that the parties have equal shared parental responsibility.  The evidence raised no concerns as to child abuse or family violence, nor any reason why equal shared parental responsibility would not be in the best interests of the children.

4. Accordingly, I will make an order that the parties have equal shared parental responsibility.  I am thus required to consider whether it is in the children’s best interests, and reasonably practicable, for them to spend equal or substantial and significant time with each of their parents.

The best interests of the children:  Section 60CC considerations

Primary considerations

1. The father contended that a number of incidents give rise to concerns in relation to the mother’s mental health and/or emotional stability.  Notably, on 11 September 2013, she expressed an intention to jump off a balcony at a time when the children were in her care.  Counsel for the father fairly characterised this incident as ‘cry for help’, rather than a ‘suicide attempt.’

2. The relevant COPS entry (Exhibit 3) recorded that the mother contacted Lifeline and cooperated with police and ambulance officers who attended her home.  She was taken to Suburb Q Hospital and permitted to leave after approximately three hours, in the company of her aunt and uncle.  In her oral evidence the mother said:  “I asked for assistance at a low point in my life, primarily focussing on the children.”  I accept this evidence of the mother with regard to her intentions on this occasion.

3. To the mother’s considerable credit, she has sought professional assistance with her mental health issues on several occasions.  Dr P opined that she “has actively pursued a range of appropriate interventions for her mental health.”

4. Dr P summarised these interventions as follows in his first report:

   16.… She was currently engaged with the Personal Helpers and Mentors (PhaMs) Program, coordinated by New Horizons.  She was engaged with the Northern Sydney Partners in Recovery Program (NSPIR), coordinated through Medicare Local.  She had engaged in individual therapy with a psychologist, [Ms R].  Her description of this therapeutic intervention was consistent with [Ms R’s] confidential progress report dated 26 March, 2014.  [Ms Cherutti] had completed eight sessions of psychological treatment under Access to Allied Psychological Services (ATAPS).  She was identified to have mood dysregulation, Anxiety, third trimester of pregnancy, low income, adjustment to separation from her husband, impending custody proceedings, and minimum support.  She had been compliant with counselling, CBT/problem solving, assertive communication and self-care, mindfulness/distress tolerance, relaxation skills and psycho-education.  [Ms R] had diagnosed an Adjustment Disorder with Anxious and Depressed Mood associated with the acrimonious separation from her husband.

5. Dr P summarised “a significant history of mental illness” which, unfortunately, has afflicted the mother’s family.  He reported:

   17.This occurred in the context of a significant family history of mental illness.  [Ms Cherutti’s] mother, the children’s maternal grandmother, had suffered from Post Natal Depression, Bipolar Disorder and Attention Deficit Hyperactivity Disorder.  She had been hospitalised on two occasions and had been treated with medication, Electro Convulsive Therapy (ECT) and group therapy.  Her father, the maternal grandfather, had untreated physical and emotional symptoms of Anxiety.  Her sister, [Ms S], had been hospitalised in the context of recurrent deliberate self-harm, illicit drug taking, volatile mood and aggressive outbursts.  She had been treated with a range of medications including Valium, Xanax, Lexapro and dexamphetamine for Attention Deficit Hyperactivity Disorder.  At the conclusion of the assessment, in response to direct questioning, [Ms Cherutti] reported that [Ms S] had allegedly been sexually abused by their brother, [Mr T].  [Mr T] was identified to have a history of Polysubstance Abuse.  Their youngest sister, [Ms U], had also been diagnosed with ADHD and had been treated with methylphenidate (Ritalin).  Her younger brother, [Mr V], appeared to be the only well-adjusted member of the family, having found his place in the army.

6. In his Outline of Case document, counsel for the father made this fair concession:  “There do not at this time seem any obvious risk factors at play”.  In final submissions counsel for the father said:  “There are no protection issues.”  I agree with this implied concession that the mother has effectively addressed her mental health issues.  Nothing in the evidence suggested a need for protection of the children in the care of the father and paternal grandparents.

7. Both parties were quick to acknowledge the important role of the other in the lives of the children.  In answer to questions from the mother, the father said:  “I have been trying as best I can to facilitate their time with you.  Yes, we could rely on each other if I lived in [E Town]”.  In cross-examination the mother said of the father:  “Absolutely [Mr Saylor] is a very good, loving, caring father.  Yes he has made changes since the children came into his primary care, that is a good thing”.

8. I construe these statements to be a mutual concession by the parties that the children will benefit from a meaningful relationship with each of their parents.  I draw the same inference from the competing proposals of the parties which provide for as much unsupervised time in the care of the other parent as is reasonably possible, given the distance between their homes.

9. Dr P observed the children with their father and paternal grandmother and also with their mother and Mr H.  He opined:

   130.The children were observed to have a good relationship with both parents and the extended family, including their paternal grandparents and maternal aunt.  There was no evidence that they suffered from any emotional or behavioural problems.

   …

   Despite the mother’s recurrent Post Natal Depression, there was no evidence of insecure attachment.

Additional considerations

1. I have considered each of the matters referred to in section 60CC(3), not all of which are relevant to the present proceedings.  I make no reference in these reasons to considerations which are clearly irrelevant for present purposes, such as subsection 60CC(3)(h).

2. Dr P explored with B and C their views in relation to the proposed relocation to E Town.  He reported that they all spoke favourably of the potential move to Queensland but cautioned that significant weight should not be attached to their stated views.  In relation to B, Dr P reported as follows:

   73.When she stayed in Sydney, she would stay with her Mum and visit Dad.  When asked what it would be like to go to Queensland and live there, [B] responded:  “I really want to move to Queensland”.  She initially said that there would be nothing bad about this.  When asked if she would miss her Dad, [B] responded:  “Sometimes I do and sometimes I don’t miss Dad.  I’m a little homesick down here for Queensland.””

3. Dr P reported on his interview with C as follows:

   59.When asked who he lived with, [C] responded:  “With Mummy and [Mr H] down here, but we’re hoping to go up to Queensland.  That will be fun.  Mummy and [Mr H] were talking about it.  [Mr H] was saying it’s easy to get you up there, to Mummy, because she really wants to go up to Queensland.”  When asked what he thought about this, [C] replied:  “I think there’s a good park.  The park is really cool and it’s next door to the beach in [E Town].  It’s really cool”.  When asked if there were any problems about going to Queensland, [C] responded:  “There’s no problems.  Our real Dad, he is making us stay down here because he’s worried that he won’t see me and [B] ever again if we go to [E Town].”  [C] said that [Mr B] had told him.  When asked if he would miss anyone if he moved to [E Town], [C] responded:  “I’d miss my cousins.  I’d miss my Nannie and Pop.  I’d miss my aunty.  And I’d miss everyone in my family down here if I’m up at [E Town].  I’d miss my real Daddy lots.  He actually goes up to [E Town] for work.  So we could probably see him when we go to [E Town].  Right now, I miss all my other family in [E Town].”

4. Dr P was of the view that the children expressed support for the proposed relocation due to their awareness of their mother’s emotional fragility.  He offered this analysis at [130]:

   They were however aware of their mother’s vulnerable mental state and stress associated with missing her partner.  The children thus supported their mother’s wish to relocate to [E Town], while acknowledging that they would miss their father and extended family in Sydney.  The older children spoke in a naïve and optimistic manner about such a move, reflecting their mother’s views that they could maintain their relationship with their father with regular contact, despite the challenging logistics.

5. In the second interview, B told Dr P that she “would prefer to live with mum”.  She described, at [23], that she “missed her mum a lot” and suggested “It might be possible to swap between the two houses”.

6. In November 2014, C told Dr P that he “preferred to live with dad”.  He reported that C said:  “It’s like my brain is splitting into two pieces.  I don’t know what’s happening.  It’s really annoying.  Which person do we have to live with.  I really want to live with mum and dad”.  C added:  “This is really simple.  We live with dad but mum is in Queensland.  And one day, we miss her, but we can’t go to see her.  That’s the problem”.

7. When interviewed together in November 2014, B and C “spoke positively about all aspects of their daily routine, attendance at school and family life in [Suburb I]”.  Dr P described as “detailed and authentic” their positive account of life in the primary care of their father.

8. I have no reason to doubt that Dr P was correct in his analysis of the weight to be attached to the children’s stated views in support of the proposed relocation.  In any event, they also spoke positively of their life in the primary care of the father and indicated that they wished to live with both parents.

9. I have referred above to some of the evidence of Dr P in relation to the nature of the children’s relationship with each of their parents.  There is no doubt that they enjoy a close and loving relationship with both their father and their mother.

10. Dr P referred to “responsive and caring interactions” between Mr H and the children.  In April 2014 he observed the children in the company of the paternal grandparents.  He reported at [109]:  “Delightful interactions were observed, including [B] making April Fool’s Day jokes with her grandparents”.

11. The evidence indicated that there are problematic aspects to the relationships of the mother and the children with the maternal extended family.  In fact, the mother sought an injunction to restrain the father from placing the children in the unsupervised presence of her parents, grandparents and siblings.  In her oral evidence the mother said:  “I don’t see a problem with [Mr Saylor] taking the children to them as long as he is there.”

12. It was evident that several members of the mother’s family were highly critical of her relationship with Mr H and directed cruel abuse at her.  I will not recount in these reasons the offensive communications from the maternal grandmother and aunt, which are annexed to an affidavit sworn by the mother on 16 December 2013.

13. On 16 November 2013 the mother made a report to police of the contents of a letter which she received from her grandfather.  The relevant COPS entry (Exhibit 3) described this letter as “disturbing and inappropriate items through the mail.”  I have no doubt that communications of this nature were deeply disturbing for the mother.

14. The uncontradicted evidence of the mother was that she has now reconciled with the maternal grandmother.  She agreed with a suggestion from counsel for the father that family therapy could well assist in the repair of these relationships.

15. The tyranny of distance means that it is impossible to achieve for the children an optimal outcome to these proceedings.  In the present regime, they miss their mother but have the benefit of a stable and happy life in the care of the father and paternal grandparents.  The father has made changes to his lifestyle and employment arrangements so as to accommodate the needs of the children.  In doing so, he has demonstrated insight and an ability to prioritise the children’s needs.

16. On the other hand, a return to the primary care of the mother would place the children in an untested situation.  The mother’s relationship with Mr H appears to be happy and stable but is in its relative infancy.  The children so far have spent only leisure time in the household of the mother and Mr H.

17. Dr P expressed real concerns as to the mother’s ability to sustain her currently stable mental health.  In his oral evidence he observed:  “The mother remains somewhat vulnerable emotionally.  There are unresolved proceedings where she is unrepresented.  There is a painful separation from her children.  Her distress is amplified on each separation.  She has been vulnerable to anxiety and panic even with a stable, happy relationship”.

18. Dr P was of the opinion that the mother “showed a lack of insight into her actions which resulted in her living in [E Town] and the children in Sydney”.  In response to questions from the mother he elaborated on this assessment as follows:  “I have not used the term “self-centred”.  It is my view that you were focussed on how you were feeling when you were establishing a new relationship and deciding to move to [E Town].”

19. In his second report Dr P opined:

    33.The children will continue to benefit from a significant and substantive relationship with both parents.  The mother’s relocation to [E Town] placed limitations on their capacity to do so.  This was most unfortunate but an inevitable consequence of the mother’s decision to relocate interstate.  It was evident that she lacked the maturity to accept responsibility for her actions.”

20. In my view, the mother at times acted precipitously and without primary focus on the needs of the children in the early stages of her relationship with Mr  H.  They met in person for the first time in July 2013.  On 15 August 2013, the mother wrote to the father and conveyed a unilateral intention to relocate with the children to E Town in September 2013.  A few weeks later she entered into a six month lease of a property in E Town, despite the father’s lack of consent to the proposed relocation.  In November 2013 she removed B from school and took the children to E Town, without the father’s knowledge or consent and contrary to her written undertaking of 20  August 2013.  In her oral evidence the mother said:  “I regret the errors I made in the first six months.”  The fact remains, however, that she alone made these choices.

21. As noted above, the mother tendered into evidence the children’s school attendance records for 2013 and part of 2014.  Contrary to the mother’s assertion, I do not regard these records as “critical to [her] case”.  It is readily apparent that the mother’s circumstances were difficult and challenging in 2013 and 2014 prior to her relocation to E Town.  If the children were sometimes late for school, I consider that the mother could offer reasonable explanations.  In those circumstances, I do not consider that the children’s school attendance during these years reflects adversely on the mother’s capacity to provide for their needs.

1. The children are fortunate that they have two parents who are devoted to them and strongly wish that they receive the best in life, according to their respective perceptions.  As counsel for the father observed in his final submissions “the children are lucky to have two loving parents.”  In all likelihood, they would be capable of negotiating their own arrangements for the care of the children if they lived in close proximity. 

Conclusion

1. The children have now lived in a stable and constructive situation with the father and the paternal grandparents for 11 months.  In the opinion of Dr P, at [32]:  “All three children were thriving given that their developmental needs had been appropriately addressed by their father with the support of the paternal grandparents.”

2. I am loath to disturb the children’s current stability by acceding to the mother’s proposal that they relocate to E Town.  As noted, such a move would place them in a largely untested situation.  I hope that the mother’s relationship with Mr H continues to flourish but I am conscious of the risk of breakdown, which would leave her and the children at great distance from family support.

3. I am unpersuaded that the mother has given realistic consideration to the implications for the children of the proposed relocation.  She painted a rosy picture of life for them in E Town and seemed to me to underestimate the effects of the resultant disruption.

4. The mother maintained that the father travels to central Queensland for employment purposes and could utilise these trips to spend time with the children.  Subpoena’d airline records (Exhibit 2), however, do not support that contention.  The father travelled to E Town in 2005, 2006, 2007 and 2009 but he has since changed employers.  I thus regard that aspect of the mother’s proposal for the children to spend time with the father as ill-considered and grounded in convenience.

5. The mother offered to provide to the father the use of a motor vehicle and petrol, food, toys, bicycles and camping equipment when he travels to E Town to spend time with the children.  I have doubts as to whether, realistically, she could provide this assistance.

6. The mother is completely dependent upon Mr H for financial support and they have been pressed for funds in the past.  In August 2014 it was necessary for the children’s return flights to be rebooked, as D was unable to travel due to an ear infection.  The mother gave evidence that she and Mr H had insufficient available cash and that his credit cards were “maxed out”.  I have no doubt that the mother made this offer sincerely but I suspect that she did not consider the practical implications of her proposal.

7. I can envisage no arrangement in which the children’s best interests could be met by their spending equal time with each of their parents.  No matter what time split may be put in place they would be required to endure the disruption, inter alia, of attending two schools in different education systems;  living in two homes in separate states and moving between two sets of friends.  It seems clear to me that no equal time regime could be regarded as reasonably practicable, with the mother and father living respectively in E Town and Sydney.

8. These same considerations dictate that it would be contrary to the children’s best interests, and not reasonably practicable, that they spend substantial and significant time with each parent while they live at a great distance from each other.  Accordingly, I will determine appropriate parenting orders in respect of the children by reference to their best interests.

9. In summary I am not prepared to place the children’s current stability, in a situation where they are “thriving”, in jeopardy.  They have already experienced disruptions and uncertainty and I cannot be certain that the mother could sustain a stable environment as their primary carer.  I will accordingly make orders which will cause the children to live with the father, who will continue to receive assistance from the paternal grandparents.  I will make orders for the children to spend time and communicate with the mother which are, essentially, a combination of the respective proposals of the parties.

Specific Issues

1. As noted, the mother sought orders to restrain the father from placing the children in the unsupervised care of her parents, grandparents and siblings.  This application sits uncomfortably with the mother’s evidence that she has reconciled with the maternal grandmother.

2. In my view, there was insufficient evidence of recent conduct on the part of the maternal family to warrant the making of such an injunctive order.  I will entrust the father with responsibility for appropriate monitoring of the children’s interaction with their maternal relatives.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 21 May 2015.

Associate:  M. Rankin

Date:  21 May 2015