SCHRODER & SCHRODER
[2018] FCCA 3463
•28 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SCHRODER & SCHRODER | [2018] FCCA 3463 |
| Catchwords: FAMILY LAW – Parenting – where mother seeks to relocate with the children to Town 1 and spend block time with the father in holiday periods – where father opposes relocation and seeks the children live with mother in Melbourne and spend substantial and significant time with him – whether mother's parenting capacity will be diminished if not permitted to relocate – where the parties communication and conflict would not support equal shared parental responsibility – where relocation is not in children’s’ best interests. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CC, 61C, 61DA, 65DAA |
| Cases cited: Hall & Hall (1979) FLC 90-713 |
| Applicant: | MR SCHRODER |
| Respondent: | MS SCHRODER |
| File Number: | DGC 1136 of 2017 |
| Judgment of: | Judge O'Sullivan |
| Hearing dates: | 6 & 7 September, 25 & 26 October 2018 |
| Date of Last Submission: | 26 October 2018 |
| Delivered at: | Dandenong |
| Delivered on: | 28 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Jenkins |
| Solicitors for the Applicant: | Kennedy Partners |
| Counsel for the Respondent: | Mr Scriva |
| Solicitors for the Respondent: | Pentana Stanton Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr Crozier-Durham |
| Solicitors for the Independent Children's Lawyer: | Victoria Legal Aid |
ORDERS
THE COURT ORDERS THAT:
All previous parenting orders for [X] born …2013 and [Y] born …2014 (“the children”) be discharged.
The mother have sole parental responsibility for making major long term decisions with respect to the children, including the issues of education and health subject to the requirement to provide the father with:
a.written notice of her views on such issues;
b.consulting with the father and making a genuine effort to come to a joint decision; and
c.if no agreement is reached between the parties within 21 days make a final decision and provide the father with written advice of the decision with respect to such issue.
The children live with the mother.
3A.The mother be restrained from relocating the residence of the children from Melbourne.
The children spend time and communicate with the father as follows:
a.During school term in a two week cycle:
1. in week one
a)from the conclusion of school/kindergarten on Tuesday or 3.30pm if not a school/kindergarten day until the commencement school/kindergarten on Wednesday or 9.00 am if Wednesday is not a school/kindergarten day.
b)from the conclusion of school/kindergarten on Friday or 3.30pm if Friday is not a school/kindergarten day until the commencement of school on Monday or 9.00 am if Monday is not a school day.
2. in week two from the conclusion of school/kindergarten on Tuesday or 3.30 pm if Tuesday is not a school/kindergarten day until the commencement of school/kindergarten on Wednesday or 9.00 am if not a school/kindergarten day.
3. by Skype on the alternate Saturday at 9.30am.
b.for one half of all gazetted school term holiday periods at times to be agreed and in default of agreement at 6.00 pm on the last day of school term and concluding at 6.00 pm on the second Saturday of such term holiday period.
c.for one half of the long school holidays as follows:
1. in 2018-19:
(a) from the conclusion of kindergarten on the last day of term until 4.00pm on 5 January 2019; and
(b) from 4.00pm on 20 January 2019 until the commencement of kindergarten or school on 29 January 2019;
2. in 2019-20 and thereafter for one block period
d.on Eid Al-Fitr and Eid Al-Adha for a minimum of twenty-four hours at times to be agreed.
e.if Father’s Day falls on a weekend when the children are not otherwise to spend time with the father from 5.00 pm on Father’s Day eve until the commencement of school on Monday, provided that time on Mother’s Day be suspended from 5.00 pm on the Mother’s Day Eve.
f.as may otherwise be agreed between the parties in writing.
Changeovers take place at school/kindergarten and if changeovers are to take place when the school or kindergarten is closed that the father collect the children from the residence of the mother at the commencement of their time with him and that the mother collect the children from the residence of the father at the conclusion of that time.
Each party be at liberty to telephone the children or to communicate with them by Skype or other electronic means at least twice per week when they are with the other party during holiday periods.
Each party who has care of the children forthwith notify the other party of any significant illness or injury suffered by the children, such notification to include the nature of the illness/injury, the details of any treatment received or medication prescribed by medical practitioners and the identity and contact details of the treating health professional and authorise the other parent to communicate with such professional if necessary.
Each party keep the other informed of any medical or health practitioner who is treating the children, including but not limited to general medical practitioners, dentists, counsellors and medical specialists and that each party be at liberty to liaise directly with such practitioners and these orders shall act as authority for such liaison.
Each of the parties provide the other with their contact address and telephone numbers and inform the other of any change in such address or telephone number as soon as practicable and not later than three days after such change.
Both parties be at liberty to liaise directly with the school/kindergarten attended by the children to obtain information about their progress at school and to seek copies of notices, newsletters, reports, photographs and other information normally provided to parents in relation to children.
Both parties be permitted to attend/participate in school or extra-curricular activities, functions and/or events normally attended by parents including but not limited to parent teacher interviews and sporting events.
Each of the parties by themselves, their servants and/or agents be restrained from :
a.denigrating, abusing, insulting or belittling the other party or his/her extended family to or in the presence and/or hearing of the children;
b.discussing these proceedings with or in the presence and/or hearing of the children; or
c.permitting another person to do so.
Without admitting the necessity each party be restrained from physically disciplining the children.
The father and the mother each undertake a post separation parenting course nominated by the Regional Coordinator of Child Dispute Services of the Dandenong Registry of the Court and at the conclusion of the course provide a copy of the certificate of completion to the other party’s solicitor.
The mother seek a referral from her general medical practitioner to a psychologist or other like professional for emotional support counselling and follow all reasonable directions of such practitioners.
Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and these particulars are included in these orders.
Certify pursuant to rule 21.15 of the Federal Circuit Rules that this matter reasonably required the employment of advocates.
All extant applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Schroder & Schroder is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 1136 of 2017
| MR SCHRODER |
Applicant
And
| MS SCHRODER |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern a dispute over parenting orders, as that term is defined in the Family Law Act 1975 (Cth) (“the Act”) for [X] born …2013, and [Y] born …2014 (“the children”).
Mr Schroder (“the father”) commenced these proceedings by application filed on 27 June 2017. Ms Schroder (“the mother”) filed a response on 31 August 2017.
After interim orders were made following an s.11F conference, the dispute between the father and the mother over parenting orders for the children was fixed for a trial which began on 6 September 2018 and concluded on 26 October 2018.
The mother sought an order permitting the children to relocate with her to Town 1. The father opposed the orders sought by the mother, contended her proposals were unrealistic and were contrary to the children’s best interests.
These reasons explain why I am satisfied that the final orders, as set out at the beginning of these reasons, are in the children’s best interests.
Background
The father is 37 year old, currently renting a house in Suburb A and is employed as a professional with the Employer 1. The mother is 45 years old, currently renting a house in Suburb B and doesn’t work outside the home.
The mother was born in Queensland, has been married previously and has an adult son from that relationship who lives on the Region V. The mother moved to Victoria in 2003 after the end of that relationship.
The parties commenced cohabitation in Melbourne in 2008. At that time, the mother’s eldest son lived with them, and they both worked up until [X] was born in 2013. After this, the father worked full time, the mother maintained the household and the parties purchased a property in Property D. During the relationship, the mother, on occasion, travelled with the children to see her father and step-siblings in Queensland. The children also spent regular time with the paternal family.
The parties separated under the one roof in April 2016 and physically separated in April 2017. The home in Property D was then sold. They are not yet divorced.
Since April 2017, the children who live with the mother have spent time with the father each week, including overnights each alternate weekend.
In 2017, the parties sought assistance from a family mediation centre and then signed a parenting plan.
By the time the parties physically separated, the mother had “reconnected” with a previous boyfriend, Mr T who lives in Town 1, via Facebook. They subsequently began a relationship and are now engaged.
The father commenced these proceedings in June 2017 after an unsuccessful application to the Family Court for consent orders. He also said that he had concerns that the mother wasn’t following the parenting plan, and would take the children to Queensland and not return.
The father met his current partner, Ms S, in late 2017. They commenced a relationship at the beginning of 2018 and on the first day of the trial, told the Court they are expecting a child in 2019.
The father’s application sought inter alia the children live with the mother, spend time with him, there be a restraint on the mother relocating the children’s residence, and he have permission to travel overseas with the children. In August 2017, after the application was filed, and before the first Court date, the father’s current solicitors went on the record.
The mother’s response sought inter alia an order to be able to relocate the children’s residence to Town 1, they live with her and spend time with the father for periods of up to 14 days during holiday periods.
At the first Court date in September 2017, both parties were represented. After the s.11F conference had been conducted, interim parenting orders were made, by consent, for the children to live with the mother and spend time with the father each week (and overnight time each alternate week). An order for the appointment of an Independent Children’s Lawyer was made along with an order under s.62G(2) for a family report. The children’s names were also placed on the Airport Watch List and the proceedings were fixed for trial.
So far as the Court was concerned, there the matter lay until after the family report was released in July 2018. On 10 August 2018, the father filed an amended application. The father’s amended application sought that the parties have equal shared parental responsibility and the mother be restrained from relocating the children’s residence. In addition he sought various live or spend time orders (up until and after [Y] started school).
On 15 August 2018, the mother’s previous solicitors withdrew and her current solicitors went on the record the following day.
On 23 August 2018, the mother filed an amended response seeking an order for equal shared parental responsibility, permission to relocate the children’s residence to Town 1 (and parenting orders up to and beyond 2022, in that event) as well as an Airport Watch List order and orders addressing certain long term issues for the children (e.g. education).
The trial
At the trial, which began on 6 September 2018, the father was represented by Ms Jenkins of Counsel, the mother by Mr Scriva of Counsel, and Mr Crozier-Durham appeared as Counsel for the Independent Children’s Lawyer.
The father had filed a case outline on 4 September 2018. Counsel for the father told the Court that her client relied on the following:
· the amended initiating application filed on 10 August 2018;
· the affidavit of evidence of the father filed on 10 August 2018;
· the affidavit of Ms S (the father’s partner) filed on 10 August 2018; and
· the affidavit of Dr R filed on 14 August 2018.
The mother had filed an outline of case on 3 September 2018. Counsel for the mother told the Court his client relied on the following:
· the amended response filed on 23 August 2018;
· the affidavit of the mother filed on 23 August 2018; and
· the affidavit of Mr T (the mother’s partner) filed on 23 August 2018.
Counsel for the Independent Children’s Lawyer told the Court his instructor relied on the case outline filed on 4 September 2018 and:
· the family report prepared by Ms Q (the family consultant) dated 13 July 2018.
At the start of the trial, after tendering minutes of proposed final orders (to which it will be necessary to return) Counsel for the parties advised the Court for the first time it was apparent the trial was not going to be contained within the time allocated.
The father’s evidence, his partner’s evidence and that given by the mother occupied the whole of the two days that had been allocated for the trial. At the end of the second day, the trial was adjourned, part heard to 25 October 2018 to hear the remainder of the evidence.
At the close of the evidence on 26 October 2018, each of the parties had an opportunity to tender minutes of proposed final orders (and make submissions) in light of the evidence as it transpired at trial. There were further interim parenting order made by consent (to cover the December and January period) and the Court then reserved judgment.
Whilst the dispute between the parties was primarily about the issue of relocation, much of the evidence of the father, the mother and her partner, focused on the dysfunctional interactions between the parties since physical separation.
This problem is best typified by the evidence that neither party had spoken to the other about enrolling the eldest child for school in 2019. It appeared each of the parties were hoping their position at trial would be vindicated and they could then (try to) make a decision on the issue. This is but one example of their inability to focus and make decisions about long term issues. That such an important issue for the children remained unresolved is unfortunately, congruent with the deeper malaise in their individual and collective interactions that was readily apparent during the trial.
For present purposes it is sufficient to note that, ultimately both parties accepted their post separation parenting relationship was dysfunctional and their attempts (if they could be called that) at communication were ineffectual.
Initial proposals of the parties
At the start of the trial, Counsel for the father provided the Court with a handwritten minute of the final orders sought by the father. In summary, the father’s ‘primary’ initial proposal was for the parties to have equal shared parental responsibility, the mother to be restrained from relocating the children’s residence from Melbourne, the children to “live with or spend time with” him in graduated periods each week (including overnights) up to and after the time the youngest child starts school, along with holidays, special occasions, the discharge of the Airport Watch List and orders for passports for the children.[1]
[1] see Exhibit A1
In the alternative (if relocation were permitted) the father sought orders inter alia for the children “to live or spend time” with him for all term holidays, half “end of year” holidays, along with Skype or Facetime three times each week and changeovers at Town 1 and Melbourne airports.[2]
[2] see Exhibit A2
Also at the start of the trial, Counsel for the mother provided the Court with a handwritten minute of the final orders sought by the mother. In summary, the mother’s ‘primary’ initial proposal was (as contained in her Case Outline) for the parties to have equal shared parental responsibility, for her to be permitted to relocate to Town 1 with the children within 6 weeks, and upon relocation (and until October 2022) the children spend time with the father for no more than 7 days during term holidays, 2 blocks of 7 days during long summer holidays, the parties to share the cost of travel, changeovers at Melbourne and Town 1 airports and the children to remain on the Airport Watch List.[3]
[3] see Exhibit R1
In the alternative, in the event relocation were not permitted, the mother sought the children live with her and spend time with the father alternate weekends Friday to Monday, and one overnight in the off week along with half school holidays and “special days and celebrations to be equally shared”. [4]
[4] see Exhibit R2
Finally, Counsel for the Independent Children’s Lawyer also provided the Court with a handwritten minute of the final orders sought by the Independent Children’s Lawyer. The first initial proposal of the Independent Children’s Lawyer was for the parties to have equal shared parental responsibility or alternatively no order in respect of parental responsibility. The Independent Children’s Lawyer’s initial proposal in the event “leave to relocate” was “not granted” was for the children to live with the mother and spend time with the father in a “two week cycle” for one overnight Tuesday to Wednesday and Friday to Sunday in week one and then in week two from after school Friday to noon on Saturday as well as special occasions and half school holidays.[5]
[5] see Exhibit ICL1
The alternative initial position the Independent Children’s Lawyer proposed was that in the event the mother was “granted leave to relocate the children from Victoria” for the father to spend time with the children for half of all term holidays and in the event he travelled to Town 1 on overnights each week and on weekends.[6]
[6] see Exhibit ICL2
The Report
On 8 September 2017 an order was made under s.62G(2) of the Act for the preparation of a family report which was released to the parties on 16 July 2018 (“the Report”). The Report was prepared on the basis of the material the parties had filed to the end of April 2018, interviews with the father, his partner, the mother, her partner, the children and an observation session of the children in the parties’ individual presence, all conducted on 10 July 2018. The Report set out, under the heading “Background”, what was said to be “Current arrangements” at paragraphs [1] to [4], as follows:
“1. This matter involves the children [X] born …2013 and [Y] born …2014. Post separation the children have lived in the primary care of the mother. Both parties reported that at the present time the children spend time with Mr Schroder in week one of a two week cycle on Tuesday from 6pm to 7.30pm and from 6pm Friday until 7.30am Monday and in week two from 6pm Friday until 12 noon Saturday. The children have spent block periods of time during Christmas 2017/2018 for seven overnights and in alternate weeks during the school holiday periods at Easter 2018 and July 2018.
2. Mr Schroder currently lives in Suburb A with his partner of eight months, Ms S aged forty one years, this situation in place for the past two months. Mr Schroder stated that he is employed on a full time basis as a professional working Monday to Friday from 9am until 5pm. He stated that he previously worked shifts, this changing following a promotion in September 2017. Mr Schroder described Ms S as his ‘life partner’ stating that this relationship was committed and long term in nature. Ms S is employed as a professional on a full time basis. Mr Schroder stated that he is renting a four bedroom house, with the children having a dedicated bedroom each and playroom.
3. Ms Schroder lives in Suburb B with the two children, this situation in place for the past six weeks. She stated that she is renting a three bedroom house, this being approximately thirty minutes travel time from the paternal home location. Ms Schroder has a partner of fifteen months, Mr T aged fifty years. She stated that the couple have known each other for nearly thirty years, having a relationship during high school and more recently re-connecting. Ms Schroder stated that Mr T has four children aged seventeen, fifteen, twelve and nine years who spend substantial time with him each week. Ms Schroder stated that Mr T is not engaged in employment, focusing on the care of his children. Ms Schroder stated that she grew up in Queensland with Mr T living in Town 1. Ms Schroder stated that she has an older son, Mr P aged twenty four years who lives on the Region V. She stated that Mr P is studying a Course and works as a tradesperson. Ms Schroder stated that she shares her house with the children’s godmother, Ms O, who would also relocate to live with the family in Town 1 should this occur in the future. Ms Schroder is not engaged in employment and is dependent upon Centrelink payments.
4. The parties commenced living together in 2008 and were married on the …2012. Final separation occurred on the 30 April 2016 with the parties living under the same roof until April 2017. Two children were born to the marriage, namely [X] and [Y].”
The Report then went on, under the heading “Relevant Family Background”, at paragraphs [4] to [6] to set out the history of the parties up until the commencement of these proceedings. The Report then turned to the “History of the dispute” at paragraphs [7] to [8]. After this the Report recorded, the position of the parties (at that time) under the heading “Proposal of the Parties” at paragraphs [9] to [10], as follows:
“9. Mr Schroder stated that he is opposed to the mother relocating to Queensland with the children. He described his concern that his parental relationship with the children would be substantially and negatively impacted by interstate relocation. He also described that in his opinion, the children’s emotional health would be impacted by relocation and the limited opportunity to spend time in paternal care. He stated that it is his preference if the children remain living in Melbourne. Mr Schroder is proposing that [X] and [Y] live in his primary care. He added that he is able to offer the children a stable and nurturing home environment with a strong connection with extended family members. Mr Schroder stated that he is supported in this undertaking by his partner and paternal grandmother. Mr Schroder stated that if the children remain in primary care in Melbourne it would be his preference to spend additional time with the children, this being between five and six overnight periods each fortnight with additional time during school holiday periods and on special occasions.
10. Ms Schroder is proposing that [X] and [Y] remain in her primary care. She is further proposing that she be given permission by the Court to relocate to Town 1, Queensland with the children. Ms Schroder described various advantages associated with relocation including being able to live with her partner, Mr T, being within close geographical proximity to support from members of the maternal family and established friendships and the opportunity to engage in future employment. Ms Schroder stated that she accepts that it is important for the children to maintain their relationship with Mr Schroder and have the regular and on-going opportunity to communicate and spend time with him. She stated that she would facilitate future arrangements, being flexible in this area. Ms Schroder stated that her personal circumstances would be negatively impacted should she remain living in Melbourne. Ms Schroder stated that if she remained in Melbourne, future time between the girls and Mr Schroder could occur on alternate weekends, by telephone and Skype at other times with additional time during school holidays and on special occasions. Ms Schroder stated that whilst she is agreeable to the children spending time for specific Muslim celebration dates, she would like this reciprocated as be able to spend time with the children at Easter and on Christmas Day. Ms Schroder stated that she is opposed to any change in primary care of the children.”
After listing and addressing what was said to be the “Risk Factors” at paragraphs [11] to [14], the Report went on to set out “Issues in Dispute and Issues identified during Assessment” at paragraphs [15] to [18]. Under the heading “Adults” the Report chronicled the presentation of and interviews with each of the father, mother and their partners, at paragraphs [19] to [39].
The Report then, under the headings “Children”, “Children’s Relationships” and “Observations of Interaction”, addressed the family consultant’s interactions with the family, at paragraphs [38] to [45]. Then the Report under the heading “Evaluation” recorded the following:
“46. [X] and [Y] experienced physical parental separation in April 2017. Since that time they have remained in primary maternal care. It appears that [X] and [Y] have been accustomed to primary maternal care both pre and post separation. Ms Schroder openly expressed her parental love, commitment and willingness to facilitate the paternal relationship between the girls and their father. She is considered to offer appropriate and nurturing care to the children.
47. It appears post separation [X] and [Y] have been accustomed to spending time with their father on a planned and weekly basis. Over the past ten months the girls spend time with their father for a block period of three overnight every second weekend, one overnight in the alternate weekend, one evening arrangement for dinner each fortnight with additional time during school holiday periods and on special occasions. It is acknowledged that Mr Schroder loves [X] and [Y], openly expressing his love and parental commitment and desire to spend meaningful and substantial time them.
48. Both parties have commenced new relationships post separation. Ms Schroder’s partner lives in Town 1, Queensland, this being the geographical area where she grew up and has long term connections with extended family and friends. Ms Schroder stated that it has been her long term desire to ‘go home’ to Queensland this independent of her relationship with her present partner. Ms Schroder stated that she has limited support, friendship and family connections in Melbourne. She stated that there are plans to marry her partner and form a family together, with the couple’s children described as developing positive sibling relationships and an acceptance of Mr T as a step-parent. Ms Schroder described a range of benefits to her future life should she be able to relocate with the girls to Queensland. She stated that it is her belief that [X] and [Y] could maintain a close relationship with their father and spend regular time and communication with him, this despite the geographical distance.
49. Mr Schroder is now living with his partner of eight months, Ms S. It is noted that this is not the first relationship Mr Schroder has experienced in the past seventeen months following separation. Mr Schroder and Ms S describe a happy and committed relationship with an acceptance and enjoyment of [X] and [Y] spending time in the paternal home. Mr Schroder strongly expressed his opposition to maternal relocation to Queensland, this in his opinion having the potential to diminish his parental relationship with [X] and [Y]. He clearly stated that it remains his preference for the girls to remain living in Melbourne, this providing the opportunity for him to spend substantial time with them.
50. Both parties described limited and at times challenging communication in respect to [X] and [Y]. Ms Schroder views paternal responses as inflexible and controlling in nature. Mr Schroder described Ms Schroder as a times engaging in emotive responses, noting that this has occurred on occasion at time of changeover. Both parties indicated a willingness to continue to communicate by text messaging and to share important information about the children. Both parties expressed concern and a lack of trust in what is being said to the girls in relation to adult and parental issues. Mr Schroder stated that the girls talk openly of relocating to live in Town 1. Ms Schroder stated that the children have been told to not interact with her partner in a positive and affectionate manner and to mis-behave so that they can live with their father.
51. Both parties stated that they are significantly opposed to proposed future parenting arrangements proposed by the other parent. Mr Schroder appears steadfastly opposed to maternal relocation to Queensland with [X] and [Y]. It appears that Mr Schroder is now proposing a change of primary care, this being substantially different to his proposed parenting arrangements as reflected in his Initiating Application. Ms Schroder expressed her strong opposition to a change in primary care, stressing that the children have been accustomed to primary maternal care throughout their lives both pre and post separation. Ms Schroder further expressed her distress in response to the paternal proposition to challenge primary care believing that the parties had reached agreement in this area for [X] and [Y] to live with her.
52. [X] and [Y] impress as bright, responsive and well cared for children. There appears to be acknowledgment from both parties that the girls love and are loved by each parent. Despite criticisms expressed by each party, there appears to be a parental acceptance that the children have a developed and positive relationship with each parent. Ms Schroder stressed that it is not her intention to deny the girls the on-going opportunity of maintaining their relationship with their father, supportive of planned and regular communication and time. Mr Schroder expressed his personal distress with the possibility of spending less time with the girls if maternal relocation were to occur.
53. Both parties appear to have some understanding and acceptance that [X] and [Y] have been exposed to parental unhappiness and at times openly expressed conflict. In particular [X] was described as a child with some awareness of parental issues, concerns in this area resulting in a referral in 2017 to Psychologist Ms N. Both parent acknowledged having communication with Ms N. It is noted that [X] is not currently engaged in child focused counselling. It is noted that [X] commences primary school in 2018 with a decision regarding choice of school needing to be made. It is noted that [X] made limited comments in relation to her family circumstances to the Report Writer. She indicated that she felt ‘happy’ with both parent and their respective partners, not expressing any particular worry. Clearly it is important to the emotional health of both [X] and [Y] that they not be directly involved in or exposed to parental views or negative comments in respect to the other parent.
54. The maternal proposal to relocate to Queensland is considered understandable given Ms Schroder’s personal circumstances and desire to establish a new life with her partner. Ms Schroder stressed that she would accommodate and be flexible in the area of paternal communication and future arrangements. Ms Schroder is proposing that [X] and [Y] spend time during school holidays with Mr Schroder with additional time if the father travels to Town 1. She stated that she is accepting of flexible communication by phone or Skye. However it is acknowledged that maternal relocation to Queensland is of significant geographical distance from Melbourne this obviously impacting upon the opportunity for the children to continue spending weekly time with Mr Schroder. There are also limitations in respect to Skype, phone and other forms of electronic contact given the young ages of the girls and the limit of their attention span.
55. It is acknowledged that the proposed maternal relocation will mean adjustment by [X] and [Y] to their new living circumstances. Whilst there are positive indications of the girls developing a positive relationship with both the maternal partner and his four children and their expressed enjoyment in this area, it will constitute a major change for them. The paternal proposal to change the primary living arrangements of [X] and [Y] is considered to be problematic. Whilst paternal love for the girls is acknowledged, it is considered that the paternal understanding of the emotional impact upon the girls in this area lacks some insight. It is further considered that the paternal proposal implies active involvement by his current partner and paternal grandmother given his full time work commitments.
56. The report prepared by Dr R in respect to Mr Schroder is acknowledged. It appears that in 2016 Mr Schroder attended two counselling sessions with Dr R with a diagnoses made of a major depressive disorder. Dr R reported that a referral was also made to Psychiatrist Dr M with two sessions attended by Mr Schroder in 2016. The prescription of anti-depressive medication was noted as beneficial to Mr Schroder. Mr Schroder stated that he has recently re-engaged with Dr R. It is considered that it would be helpful to the Court to receive a current psychological report from Dr R in respect to paternal mental health.
57. It is acknowledged by both parties that [X] and [Y] have been accustomed to primary maternal care with general post separation agreement in this area. The emotional impact upon the girls is likely be substantial should they experience a major change in this area and is not considered to be in their best interests. Given the young ages of [X] and [Y] and the limited nature of parental communication, some caution is also required in response to the paternal proposition to significantly extend the current arrangements to five or six overnight periods a fortnight.”
Finally, under the heading “Recommendations”, the Report provided:
“58. That the parties continue to have equal shared parental responsibility for [X] and [Y].
59. That [X] and [Y] remain in primary maternal care.
60. That [X] and [Y] continue to have the opportunity to spend planned time with each parent.
61. Formal acknowledgment is given to the various personal advantages and benefit to the mother in relation to the maternal proposal to relocate with [X] and [Y] to Queensland. Careful consideration and parental commitment will be needed to ensure that the children continue to have planned time in paternal care this involving time in Melbourne and Town 1 during school holiday periods and at other times as possible and agreed and remain connected through other forms of contact such as Skype, phone calls and Facetime. Further acknowledgement is given that relocation issues are complex and will have an emotional impact upon the father.
62. Should consideration be given to [X] and [Y] remaining in Melbourne in maternal care, that [X] and [Y] spend future time with their father on alternate weekends from Friday afternoon to Sunday afternoon, one overnight period in the alternate week, time during school holidays, time on special occasions and other times as agreed between the parties. Further consideration be given to the opportunity to accompany their mother to Queensland during school holiday periods.
63. That both parties attend a post separation parenting course in order to assist in the area of parental communication and decision making.
64. That the father provide a recent report from Dr R in respect to his mental health and comply with professional recommendations
65. That the mother is encouraged to engage in personal counselling this being considered as beneficial at this stressful time and to address past mental health challenges.
66. That the parties continue to communicate by email and text messaging in order to share and exchange information in respect to the children.
67. That [X] and [Y] not be exposed to parental conflict or expressed negative views of the other parent.”
Evidence at the trial
The father’s evidence
The father relied on his affidavit filed 10 August 2018. The father adopted that affidavit, which was taken into evidence, and he was cross examined.
An understanding of the father’s case (in opposing relocation) can be gleamed from the father’s affidavit where he deposed:
“54. I oppose the wife’s proposed relocation of the children’s principal place of residence to Town 1. The children are aged only three and five. I feel the children’s relationship with me will be damaged irretrievably if their principal residence is relocated to Town 1, given the wife’s unwillingness to encourage and foster any relationship with the children and the difficulty we would have putting adequate arrangements in place for the children to spend meaningful time with me.
58. If the children relocate to Town 1, their time with me will be restricted to school holidays. This would result in me having no involvement in their education, their extra-circular activities, their social networks, and their recreational pursuits. This is contrary to what I would be able to do, if the children remain in Melbourne. I have already expressed to the wife my willingness to take the children to their social events, such as invitations to their friends’ birthday parties when they are in my care.
59. I would have no input into their upbringing, or any intimacy with their day to day care. I recently cared for the children while the wife was in Queensland, which gave me the opportunity to take them to kindergarten and collect them afterward. This was rewarding for the children and me, as I was able to interact with their classmates and other parents and engage with the children at their place of education. If the children relocate to Town 1, they will miss my assistance with their homework and reading, my attendance to extra-curricular activities and school functions, and face to face time with me on Father’s Day, birthdays and religious occasions.
60. I feel this would marginalise my relationship with the children, and there is a real risk the children would lose their relationship with me completely, given their ages. The children are often emotional with they leave me and tell me they will miss me. I feel they will struggle with the extensive separation from me if they relocate to Town 1. While I can communicate with the children via Skype or telephone this is problematic – both [X] and [Y] are often distracted on Skype and telephone calls and find in difficult to sit still for extended periods of time.”
The father’s evidence was that he had been involved with the children from “the beginning”, and was concerned if the mother was permitted to relocate with the children his relationship with them would change.
The father acknowledged that he had never been the children’s primary carer but maintained his employment arrangements were now more flexible which would enable him to be more available to care for the children.
The father also acknowledged, if the mother was not given permission to relocate the children’s residence, the children should continue to live with the mother in Melbourne. However, he made clear that he believed the parties should move towards a shared care arrangement with the children.
In cross examination, the father was asked questions about what had been the arrangements when the parties separated under the one roof in April 2016. The father also acknowledged in response to questions in cross examination he had, had three main episodes of depressive illness, had attempted suicide twice (between 2006 and 2008), seen a psychiatrist in 2016, and been on medication. The father’s evidence was that he believed his mental health had improved and was being appropriately managed with the medication.
The father agreed with the proposition, put to him in cross-examination, that during the relationship the parties disagreed on appropriate discipline for the children due to different parenting styles and attitudes. The father’s evidence made clear, the parties’ ability to communicate had deteriorated since physical separation.
The father also made clear, in answer to questions in cross-examination, he did not believe a relationship with the children could be maintained via electronic communication if the children moved to Town 1. The father said it was “healthiest” for the children for both parents to be involved with them on a day to day basis.
The father’s evidence in response to questions from the mother’s Counsel was, if the mother was given permission to relocate the children’s residence, he did not believe they could sustain a meaningful relationship with him. The father’s evidence was that the children would just see time with him as a “holiday” and he wanted to be more than a “weekend parent”.
The father gave evidence in cross-examination he was not confident about being able to travel to Town 1 if the children were relocated, due to safety and financial concerns. The father also said that as he and his new partner were expecting a child and as such travel would not be possible.
The father said although he had made some initial enquiries about relocating (i.e. work and living arrangement) it was merely “…a passing idea”. The father’s evidence was he would not “uproot” his life. Ultimately, it was not suggested that such a move was an option for him particularly having regard to the evidence of his employment situation and that he is expecting a child with his new partner next year.
In his affidavit filed 10 August 2018, the father had deposed to why he believed that ultimately, shared care was in the children’s best interests.[7] The father said, in his evidence in cross-examination that the proposal he raised with the family consultant (as recorded in the Report) for the children to live with him, rather than with the mother in Town 1, would he believed have had “less impact” on them than a move to Town 1.
[7] see paragraphs 65-66 of father’s affidavit filed 10 August 2018
When asked whether the mother would be disappointed if not given permission to relocate, the father said that “sometimes (you) have to put (the) kids first”. In answer to questions in cross examination the father sought to explain his proposal for the children in the event the mother was not permitted to relocate the children’s residence to Town 1. The father’ evidence was that he believed this was more beneficial to the children as he said it would enable them to spend more time with him. It appeared from his evidence before the Court that the father’s confidence that the parties could ultimately share the care of the children appeared to rest entirely on his “hope” that they could do so “post final orders”.
In his affidavit filed 10 August 2018, the father deposed to why he wanted the children’s names removed from the Airport Watch List.[8] The father was asked about why he sought that the children’s names be removed from the Airport Watch List. His evidence made clear that whilst he did not currently have any plans to travel overseas with the children he did not feel he should “…have to ask” (the mother) if, and when he did.
[8] see paragraph 70 of father’s affidavit filed 10 August 2018
When asked questions by Counsel for the Independent Children’s Lawyer in cross-examination, the father’s evidence made clear he was uncertain about when and where the children (or at least the eldest child) would be starting school. It appeared from his evidence before the Court at least that from his point of view, decisions on that issue had been put on hold pending the outcome of these proceedings.
Notwithstanding the news that he and his new partner would be expecting a child in early 2019, the father did not agree with the proposition put to him in cross-examination that there were likely to be a certain amount of “unknowns” in 2019 that could be stressful for him.
The father acknowledged, in answer to questions from Counsel for the Independent Children’s Lawyer, that his relationship with the mother was “strained” and they only communicated by text. The father said he would have more confidence in communicating maturely with the mother “once” there were final orders in place. However he also acknowledged the mutual allegations that both parents denigrated the other.
Finally, in response to questions from Counsel for the Independent Children’s Lawyer, the father’s evidence made clear his proposals for care of the children relied on the support and assistance from his partner, his mother and his family.
The father’s partner’s evidence
The father’s partner, Ms S, was called to give evidence and was cross-examined. Ms S confirmed the recent news of her pregnancy was unexpected She said that she and the father had never considered relocating to Town 1 to be nearer to the children, if the mother were given permission to move their residence.
Ms S also gave evidence about how her relationship with the father began, when and how she first met the children, her employment arrangements and earning capacity. I accept her evidence.
Dr R
An issue was raised by the mother, in her first affidavit, as to the father’s mental health. Prior to the trial, the father obtained a report from his treating psychologist, Dr R. Dr R prepared a report dated 8 August 2018 filed under cover of an affidavit affirmed on 14 August 2018.
Dr R, who was not required for cross-examination, set out his understanding of the father’s mental health history which dated back to 2016. Dr R’s report was to the effect that the father’s previous symptoms of depression had been effectively treated. There was no reason given to doubt this evidence.
The mother’s evidence
The mother relied on her affidavit filed 23 August 2018. The mother adopted that affidavit which was taken into evidence and she was cross examined.
In her affidavit the mother set out under the headings “Relocation to Town 1” and “Mr T” her evidence in chief on the issue of relocation[9]. In her affidavit the mother also claimed it was difficult to support herself on her pension.
[9] see paragraphs 8-17 of the mother’s affidavit filed 23 August 2018
The mother also deposed in her affidavit why she believed the children’s names should remain on the Airport Watch List.[10] In that affidavit, the mother had deposed that she had never said anything negative about the father[11]. The mother also deposed to not involving the children in discussions about the proceedings.[12] Contrary to the claims made in her affidavit, and as shall become clear presently, that is not entirely correct. In fact, the mother’s evidence before the Court did elicit a number of admissions that she had denigrated the father.
[10] see paragraph 19 of the mother’s affidavit filed 23 August 2018
[11] see paragraphs 41, 61 & 63 of the mother’s affidavit filed 23 August 2018
[12] see paragraph 43 and 44 of the mother’s affidavit filed 23 August 2018
Notwithstanding her primary proposal, the mother’s evidence before the Court was that should permission to relocate Town 1 not be granted, she would continue to live with the children in Melbourne.
The mother agreed with the proposition put to her by Counsel for the father that there were three reasons for her application to relocate the children’s residence to Town 1. The mother agreed these were:
a)that her partner was there;
b)that it was closer to her extended family; and
c)that she believed there was an opportunity for her to get work.
The mother’s evidence in cross-examination made clear she had not spoken to her (estranged) mother for many years. The mother also accepted that her father and step-siblings were many hours away from Town 1, and her eldest son lived on the Region V. In addition, the mother’s evidence also made clear, despite driving to Queensland several times since separation, she had only stopped once to visit her family in Queensland.
The mother agreed that she had said that the father “disgusted” and “horrified” her as a parent. The mother said, in cross-examination, she believed Mr T was a better role model for the children than the father. However, the mother agreed she had only spent time with Mr T in person on four or five occasions over 18 months and was only able to explain the former given the latter by saying Mr T was more relaxed. The mother also said in cross examination, that if she was not given permission to relocate the children’s residence, her relationship with Mr T would have to be a long-distance one.
The mother’s evidence before the Court left the clear impression that her application for permission to relocate the children’s residence to Town 1 was not about her “going home” and more about being with her new partner. The mother’s evidence in cross-examination made clear she had done little, beyond saying that she and the children would be living with Mr T and his children, to address practical arrangements for the children in Town 1. It also appeared that she had not turned her mind to how they would be financially supported or whether it would be easy for her to get (nor made inquiries about) employment (which she said she wouldn’t do until the youngest child started school). The mother’s evidence made clear she had not sought information about enrolling the children in school in Town 1 (beyond saying they would go to the same school as Mr T’s children).
Counsel for the father pursued the mother in cross-examination about an earlier iteration of her proposal for parenting orders for the children. This had been to allow the mother to move with the children to Town 2 pending a move to Town 1. The mother’s evidence, in response, was this was “just a thought” and she had decided, on the first day of the trial, that it was “not a good idea.”
When asked about plans for the eldest child’s schooling, the mother acknowledged the parents were “…behind the ball” as no steps had been taken to enrol the eldest child in school in 2019 in Victoria. However, the mother sought to explain this on the basis that she was still not sure about the future.
Counsel for the father repeatedly questioned the mother about the stability of her living and personal arrangements, including the development of her relationship with Mr T. The mother’s evidence was, consistent with that given by Mr T such as it was, that they just “clicked” again nearly 30 years after their earlier relationship had broken down. The mother said that it was her understanding that Mr T would not move from Town 1 and that he had not worked in over 16 years. The mother went on to say that if she was allowed to relocate with the children to Town 1, she would be the one who would have to find work as Mr T would not be working as he was concerned about inter alia his Centrelink payments.
Counsel for the father’s questioning of the mother revealed little or no practical inquiries had been made by the mother about what living arrangements would be like in Town 1. The mother’s response when challenged that she had not thought through her proposal was to attempt to deflect the criticism by saying she had not been that presumptuous.
When questioned about the role of the father with the children when they were living together, the mother’s evidence was that he was not particularly hands on and did not understand much about the children’s emotional wellbeing. The mother agreed she had described the father as “pathetic”, “disgusting” and “vindictive” and had done so on social media.
The mother was asked about her relationship with Mr T, with whom she said she had “an instant connection” (after almost 30 years apart). The mother said she believed Mr T was probably more relaxed (than the father) and not as uptight. When taken to the subpoena material and Mr T’s police records, the mother said the offences recorded were something that had occurred “when he was in his 20s”.
The mother acknowledged that she and the father were not able to negotiate things that other parents typically do. However, the mother recognised that the children had a “close” relationship with the father and with the wider, paternal family. The mother agreed that her proposal to move to Town 1 would “probably” have a substantial impact on those relationships.
The mother was asked about an issue that arose from material produced in response to a subpoena filed on behalf of the father to Victoria Police.[13] In that material it was recorded that the mother had, earlier this year, contacted police in relation to an allegation of marital rape. These allegations had not been referred to in the mother’s affidavit and when questioned about the timing and result of that contact by her with police, the mother’s response was that the police did not take the matter any further.
[13] see Exhibit A5
The mother was also confronted by Counsel for the father with what was suggested to be her “history of dishonesty”. The subpoena material from Victoria Police revealed that during the period of 2005 to 2016, the mother was convicted of a number of dishonesty offences in Victoria. In 2005 she was convicted of theft. In 2008 she was convicted of obtaining property by deception. In 2016, she was convicted of obtaining financial advantage by deception. The mother’s response to this was to point out how long ago those convictions were and that although she pled guilty to those offences she squarely blamed her mother, or others for many of them.
Counsel for the Independent Children’s Lawyer asked the mother a series of questions about arrangements in the event that permission to relocate the children residence was not permitted. The mother said that the children should remain living with her in Melbourne and not spend increased time with the father. When asked about her relationship with Mr T, the mother’s evidence was that regardless of whether permission to relocate was forthcoming or not, the relationship would continue and ultimately, she wished to marry him.
When asked why she should be given permission to relocate her evidence in response was she believed that if she was happy and content, that she would be a better parent. Tellingly, despite the period of time she had been in Victoria, the mother agreed she blamed the father for not being close to her family and friends in Queensland.
The mother deposed to inter alia having “wonderful support networks” in Queensland and that the children’s god mother (who currently lives with her in Victoria and sat in the well of the Court during part of the trial) would also relocate to Town 1 with her and the children. Despite this, the mother led no evidence from any of her family in Queensland or anyone other than Mr T, in support of her case.
During her evidence, the mother was reluctant to make any concessions that went against her case and had a tendency to minimise any disadvantages or obstacles that were suggested to her as meaning that the relocation could have some difficulty.
The mother’s evidence left the strong impression that she was determined that it was the right thing for her to relocate, but that she had paid little regard to the practical implications for the children of her proposal. The mother appeared to have made her plans (such as they were) very much on the basis that she needed to accommodate her current partner’s desire to remain living in Town 1.
The mother’s partner’s evidence
Mr T gave evidence and was cross-examined. Mr T adopted his affidavit filed 23 August 2018.
In response to questions in cross-examination, Mr T said he had first met the mother 30 years ago, when he was around 20 or 21 years old and she was 15 or 16 years old. Mr T said they had a brief relationship at that time before their paths went different ways. Mr T acknowledged he had been in trouble with the police at that time.
Mr T said he and the mother “reconnected” on Facebook about six years ago, and their relationship became more significant in early 2017. Mr T put this down to the mother’s relationship with the father ending.
When asked about the commencement of the relationship with the mother, Mr T said that they had decided to “give it another go” before they had met (again) in person. Mr T gave evidence of the times he had spent in person with the mother since May 2017. He said that after only four days together in May 2017, they decided to take their relationship to “the next level”.
Mr T agreed, over the course of about 18 months that he and the mother had only spent time together during holidays, on four or five occasions, and the children had only been to Town 1 twice.
Mr T gave evidence of his family arrangements in Town 1 and confirmed he had not worked since 2005. He agreed that if the mother moved to Town 1 (with the children) neither he nor the mother would be working. Tellingly, he admitted that he and the mother had not sat down together to work out whether they could afford to live together while supporting both his and her children.
Mr T said if the mother and the children moved to Town 1, up to seven or eight people would be living in his four-bedroom rental property. Mr T admitted that he did not know whether they could meet the costs of supporting them.
Mr T confirmed he “couldn’t” move to Victoria to live with the mother as he wanted to be involved in his own children’s lives. He also did not suggest that moving to Victoria would be an option when the majority of his children were more independent.
When asked what he and the mother would do if she was not permitted to relocate the children’s residence to Town 1, Mr T initially said they would “cross that bridge when (they) got to it” before saying they would “work on it” and then finally saying that they may have to go their “separate ways” if it did not work out.
Mr T agreed he had referred to the father as “fucking hopeless” during a Skype call with the mother, while the children were present. Mr T said the mother had also agreed with this description.
When questioned about the allegation reportedly made by the mother and referred to in the Victoria Police subpoena material about martial rape, he said that it was “just an allegation”. Mr T also admitted that he did not know the details of the mother’s historical convictions for dishonesty.
Mr T gave evidence that he did not know what social security the mother received (or would receive) if she and the children moved to Town 1. Mr T also admitted that he and the mother had never discussed what money they each received from Centrelink.
Mr T acknowledged that in the event the mother moved with the children, she would have to rely on what money they had (which appeared to be only social security payments) to support all the children and pay for the travel arrangements the mother proposed so the children could see the father. Mr T’s evidence was they would have to “save up” to do this.
The family consultant’s evidence
The family consultant who prepared the Report was called to give evidence and was cross-examined. The family consultant confirmed the details in the Report and that her qualifications were attached to the Report. The family consultant also confirmed she had been provided with, and had read the parties’ trial material along with their subsequent proposals for the final orders.
In response to questions from Counsel for the Independent Children’s Lawyer, the family consultant explained the rationale for the recommendations she had made in the Report. The family consultant acknowledged that if relocation was not permitted, the children could continue to spend regular alternate weekend time with the father and move also to time overnight with the father in the other week.
The family consultant also explained her recommendations for the mother to attend counselling. In response to questions from Counsel for the mother, the family consultant gave evidence that she saw this recommendation as a proactive measure. The family consultant explained this recommendation was made due to certain “vulnerabilities” the mother had told her about during the interview for the Report.
When asked whether the children’s relationship with the father was strong enough to “weather the tyranny of distance” (if relocation was granted) the family consultant said this would be “challenging”. The family consultant explained this was because the (mother’s) proposed location was “difficult to access” and there were “significant geographical obstacles” to the children having “reasonable and meaningful time” with the father.
The family consultant was asked by Counsel for the mother about the mother’s emotional wellbeing if relocation were not permitted. The family consultant acknowledged it would be “a difficult situation” for the mother, but said in her evidence that she was “not concerned” it would “impact the parenting or mothering of the children”.
In response to questions from Counsel for the father, the family consultant said she understood “a significant factor” in the mother’s proposal to relocate the children’s residence was her relationship with Mr T. The family consultant acknowledged (what was said to be the mother’s lack of insight into) how relocation would impact on the children did “concern” her, given the history of the mother’s relationship with Mr T.
The family consultant, in response to questions from Counsel for the father, gave evidence she believed the mother had made the children aware of her plans to relocate to Town 1. The family consultant said this was not a practice she endorsed and it raised “real concerns”. The family consultant agreed it showed a lack of insight by the mother. Furthermore, when it was suggested it appeared that the mother had no practical financial plan about how the children would see the father the family consultant said this was an “issue”.
The family consultant agreed, in her evidence before the Court with the proposition put to her that the mother’s proposal to relocate the children’s residence was an “untested situation with no real life pressures”. When asked how such a proposal could be in the children’s best interests, the family consultant said she did not make such a recommendation. When asked about her views on the mother’s proposal, the family consultant said it was not her “determination to make”.
The family consultant was asked whether the mother’s proposal was another example of her moving away for a “fresh start”. The family consultant said in response that was a “possibility”. However, the family consultant emphasised that in her interview with the mother, she had had no reason not to accept what the mother had said.
When pressed to express an opinion on the spend-time arrangements for the children in the event they did not relocate, the family consultant gave evidence she did not have a “significant issue” with the parties proposals as long as the arrangements were practicable, and the “majority of the care” was undertaken by that parent. Finally, in response to questions by Counsel for the Independent Children’s Lawyer in re-examination, the family consultant confirmed, given the evidence of the parties that she supported the father’s proposal for spend time arrangements in the event that relocation was not permitted. However, she maintained she did not support equal time for the children given their ages and the history of the parties’ relationship.
The Full Court in Hall & Hall [1979] FLC 90-713 made certain observations about the general nature of the role of family reports and the evidence of family consultants, such as that given in this case. I also bear in mind what subsequent Full Court decisions had to say about the weight the Court can, and should place on any recommendation such as those made by the family consultant in this case.[14] Each of the parties had an opportunity to cross examine the family consultant. It is for the Court to decide what is in the children’s best interests. In doing so, it will be necessary to bear the evidence of the family consultant in mind, including giving appropriate weight to her evidence, which included her concession that she was a social worker and not a psychologist.
[14] see Reeves v Grinter [2017] FamCAFC 19 at para [15] to [16] and authorities referred to.
Final proposals of the parties
Appendix One to these reasons is the full text of the father’s final proposal at the close of the evidence. In summary, the father sought inter alia that the parties have equal shared parental responsibility, the mother be restrained from relocating the children’s residence from Melbourne, the children live with the mother and (if relocation were not permitted) spend time with the father on a fortnightly rotation. In the alternative, (if relocation were permitted) the father sought inter alia that the children spend time with him for the entirety of the children’s term school holidays and half of the children’s end of year school holidays, as well as weekly Skype or Facetime.[15]
[15] see Exhibit A6
Appendix Two to these reasons is the full text of the mother’s final proposal at the close of the evidence. In summary, the mother sought that relocation be permitted, the children live with her and spend time with the father for the whole of the school days during school term holidays, and four weeks during the end of year school holidays. Additionally, the mother sought an order for sole parental responsibility (as and for the reasons contended for by the Independent Children’s Lawyer) and that the children’s names remain on the Airport Watch list. In the alternative (if relocation was not permitted) the mother sought the children live with her, she have sole parental responsibility and the father spend time with the children each alternate weekend.[16]
[16] see Exhibit R5 & R6
Appendix Three to these reasons is the full text of the Independent Children’s Lawyer’s final proposal at the close of the evidence. In summary, the Independent Children’s Lawyer sought that the mother be restrained from relocating with the children to Town 1, the mother have sole parental responsibility, the children live with the mother and spend time with the father in two week cycles during the school term, and in block periods during the holidays. The Independent Children’s Lawyer proposed in the alternative, and in the event relocation were permitted, that the children live with the mother, the mother have sole parental responsibility and spend time with the father during school holidays and communicate via Skype no less than three times per week.[17]
Final submissions
[17] see Exhibit ICL3
The Independent Children’s Lawyer’s position
Counsel for the Independent Children’s Lawyer said in final submissions it was “clear” after the evidence that the mother’s proposal to relocate was “not supported”. Counsel for the Independent Children’s Lawyer said the Court should not permit relocation and make final orders in accordance with those at Appendix Three.
In submissions, Counsel for the Independent Children’s Lawyer carefully addressed each of the relevant statutory considerations in Part VII of the Act, in light of the evidence. Whilst those submissions went into considerable detail, it is only necessary to note the following.
Counsel for the Independent Children’s Lawyer, in the context of the section 60CC considerations, submitted that the children had good relationships with both parents, but the relationship with the father would be “diminished” if relocation were permitted.
Counsel for the Independent Children’s Lawyer submitted that the evidence revealed that the parties do not communicate other than by text message, and there had been instances of unilateral decision-making on long-term issues by both parents.
Counsel for the Independent Children’s Lawyer submitted that the “big problem in this case” was that the children’s relationship (with the father) would be diminished if relocation was permitted, and, on the mother’s proposal, the holiday time with the father meant the children would be away from the mother for a “long time”. Counsel for the Independent Children’s Lawyer also submitted the evidence showed there would be “considerable financial expense” associated with the mother’s proposal, and there is “doubt” about her ability to afford it.
Counsel for the Independent Children’s Lawyer, in addressing the capacity of the parents to provide for the children’s needs, submitted that the Court was required to consider whether this was best done in Melbourne or Town 1 and contended it was the former. The evidence was that the mother would not be happy in that event, Counsel for the Independent Children’s Lawyer submitted that nonetheless, the evidence was that it would not impact her parenting capacity.
Counsel for the Independent Children’s Lawyer noted that the mother’s evidence was if the relocation were permitted, the children’s relationship with the father would not be diminished. However, Counsel for the Independent Children’s Lawyer submitted that it was “difficult to see this won’t be so”. Counsel for the Independent Children’s Lawyer submitted the mother’s plan was “not well thought out”, her relationship with Mr T was “not tested” and there was “uncertainty” about the mother’s ability to provide financially for the children in Town 1.
When addressing the attitude of each of the parents to the responsibilities of parenthood, Counsel for the Independent Children’s Lawyer submitted they had managed to provide for the children in Melbourne since separation. However, there was evidence that the mother had exposed the children to the dispute over the move to Town 1 and her “derogatory” comments of the father.
In relation to the factors relevant to family violence, Counsel for the Independent Children’s Lawyer submitted there was no suggestion the father had been violent, and the allegation the mother made earlier this year of marital rape was not pursued by either the police or the mother.
Counsel for the Independent Children’s Lawyer submitted that the “nub of the case” was whether relocation to Town 1 would advance the welfare of the children. Counsel for the Independent Children’s Lawyer submitted that the current arrangement for the children living with the mother (and spending time with the father) in Melbourne had “by and large” worked and on the evidence, the Court could not know whether what was said to be the mother’s “radical” proposal would work.
Counsel for the Independent Children’s Lawyer submitted that the mother asked the Court to take her at her word. In the circumstances and in light of all the evidence he said it was the Independent Children’s Lawyer’s position that it was more likely to be in the children’s best interests that they remain in Melbourne and there be final orders in terms of Appendix Three.
The father’s position
Counsel for the father, relied on the written submissions filed prior to the trial. In final submissions, Counsel for the father noted that a relocation case required the Court to determine what was in the children’s best interests by following the statutory pathway referred to under Part VII of the Act.
Noting that the mother enjoyed the right of freedom of movement and did not need a reason to relocate herself, Counsel for the father submitted the mother’s case appeared to be related to her new relationship with Mr T more than anything else.
It was submitted there was “little, if any, evidence” of additional support for the mother (apart from Mr T) in Town 1. It was submitted that in light of the evidence, “it was hard to see” how the mother could provide financially either for the children in Town 1 or fund her share of the travel for the children to spend time with the father in Melbourne. Counsel for the father contended that the mother’s evidence in relation to employment opportunities was “just speculation”.
Counsel for the father submitted that on the evidence, the Court could not be satisfied the mother could afford or facilitate her proposal for the children to spend time with the father. It was submitted that the “vagueness” of the mother’s plan and proposal was “more than evident”.
Counsel for the father submitted that the “lack of planning” in relation to the mother’s proposal to relocate the children’s residence to [X] was “clear from the beginning”. She had “rushed” into a relationship with Mr T and then sought an order from the Court with “very little planning or thought”. It was submitted that the evidence of the mother and Mr T in relation to the realities of day-to-day life in Town 1 for the children was “alarming, to say the least”.
Counsel for the father asked the Court to make adverse findings against the mother in relation to inter alia her attitude towards the father and the importance of the children’s relationship with him. Counsel for the father contended that the evidence showed the mother’s proposal had given very little thought to the logistics and realities of relocating.
It was submitted the mother had a “history” of moving away for a fresh start, and this had to be factored in when assessing the likely stability of the proposed relocation for the children.
Noting there was no evidence led by the mother that her psychological welfare or parenting capacity would be adversely affected if she was not permitted to relocate the children’s residence, Counsel for the father acknowledged that although she would not be happy, the evidence of the family consultant was that there were no real concerns for the mother’s parenting capacity in that event.
Counsel for the father detailed in her submissions why the father’s proposed orders for spend time in the event relocation was not permitted should be preferred to those of the mother as being more likely to be in the children’s best interests.
However, Counsel for the father acknowledged that in light of the evidence, there were “problems” with the orders sought by her client for equal shared parental responsibility, and acknowledged it was open on the evidence for the Court to find the presumption was rebutted.
The mother’s position
Counsel for the mother sought to rely on written submissions in support of his client’s final proposal at Appendix Two.
Counsel for the mother acknowledged that those submissions had not been provided to the father or the Independent Children’s Lawyer in advance and also ranged beyond the evidence at trial and had to defer to the Court’s findings in that regard. Counsel for the mother also accepted the written submissions found no support in the evidence to advance an argument of the adverse impact on the mother’s psychological welfare or her parenting capacity if she was not given permission to relocate the children’s residence to Town 1.
Accepting that a number of the mother’s reasons for relocation were not made out on the evidence, Counsel for the mother nonetheless, maintained his client would be “miserable” if permission to relocate with the children was refused. Counsel for the mother asked rhetorically how it could be said his client’s plan was “an experiment likely to fail” if she and Mr T had never lived together.
Counsel for the mother’s oral submissions sought to draw on a number of cases referred to in his written submissions, in support of the argument that his client’s reaction (if permission to relocate the children’s residence was refused) would have the potential to adversely impact the children.[18] However, he acknowledged the family consultant’s evidence was that she was not satisfied that would be the case.
[18] Selkin & Artliff –Selkin [2013] FamCA 19, Fragomeli & Fragmeli (1993) FLC 92-393 at 80,023
Given the above, and as those submissions sought to recite a number of decisions which were already referred to by the other parties in their submissions, it is not necessary to quote them verbatim. However, the following extract allows an understanding of the argument advanced by Counsel for the mother in final submissions, albeit in the face of the acknowledgment that many of these submissions were not congruent with the weight of the evidence:
“17. Of the reasons given by the mother, it is conceded that only the mother’s wish to be with Mr T is persuasive. The mother admits that her job opportunities would at best be enhanced to a marginal degree by relocation in that she may be able to rely an old contacts to find work. Likewise, the relocation would not mean she will live in close proximity to her family but would only make it more convenient for her family to travel to visit the children…
20 The mother understands that the relocation of the children will result in a radical reduction in the quantity of time they would otherwise be able to spend with their father and other significant members of their family in Melbourne. There is no disguising that the children’s relationship with their father will be substantially affected as they will not spend as frequent time with him, which currently is on a weekly basis. The children will rely more heavily on electronic communication for their ability to maintain regular personal relations with their father. For a time this may seem inadequate given their young age. Notwithstanding the adverse impact that relocation will have on the children’s established relationships, particularly with their father, the mother contends that relocation is, in the final analysis, in the children’s best interests.
21 The statutory instruction to treat the best interests of the children as the paramount consideration does not entitle a Court to ignore the legitimate interest and desires of a parent. The law recognises that the child’s interests cannot be assessed in the abstract, separate from the circumstances of her primary care. The law recognises that the interests of a relocating custodial parent can ever be completely disassociated from the interests of the child. As Kirby J notes in AMS v AIF:
“Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child.”
Considerations of freedom of movement of a primary carer are germane to a child’s best interest, particularly in respect of the potential ramifications arsing for a parent of effectively confining her indefinitely in some way in a location not of her choosing. Of itself, a parent’s freedom of movement may have implications for the welfare of the child, particularly if that parent has primary responsibility for the care the child. For obvious reasons, a parent’s ability to function effectively, as a parent, is likely to be important to the child’s welfare. If the Court unduly interferes with the way of life which a primary carer legitimately wishes to adopt, the resulting frustration and bitterness may adversely affect the child concerned: Fragomeli & Fragoemli (1993) FLC92-393 at 80, 023.
22 The law recognises that, where the parent seeking to relocate is a primary carer special considerations may apply as the parent’s interests will necessarily impact on those of the child. Selkin & Artliff-Selkin [2013] FamCA 19, approved the judgment of Kirby J in AMS v AIF which notes that although
“…priority must be accorded to the child’s welfare and rights… [these]…cannot be views in the abstract m separate from the circumstances of the parent with whom the child resides.”
If the mother is to remain the children’s unchallenged primary caregiver, it is not possible to abstractly separate the children’s best interests from the mother’s “legitimate interest and desire to relocate”. The primary carer‘s happiness and emotional health are clearly important considerations when determining the best interests of the children…
…
25 The law recognises that, in some select cases, the legitimate interest of the unchallenged primary carer to relocate may very well turn out to be co-extensive with the interests of the child. It is submitted that the present case falls into this category. The ability of the children to spend significant and substantial time with the father, as important as this consideration is, must give way to the need to preserve the primary carer mother’s emotional integrity which would be strained unless relocation with the children were permitted.
The difficulty confronting many of the contentions contained in the written submissions upon which Counsel for the mother sought to rely was the absence of corroborative or supporting evidence at trial beyond his client’s claims. Counsel for the mother made no effort to cavil with the submission made on behalf of the Independent Children’s Lawyer that the presumption of equal shared parental responsibility was rebutted under section 61DA(4) of the Act. Counsel for the mother accepted it was open to the Court in light of the evidence to make an order for sole parental responsibility.
Save for seeking to rely on the final orders sought by his client in the event relocation were not permitted (and as set out as an alternative of Appendix Two) Counsel for the mother maintained the children’s names should remain on the Airport Watch List.
Approach to parenting orders
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The maturity, sex, lifestyle and background (including lifestyle. Culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children
The father’s case made reference to his cultural background and the value placed on this by the extended paternal family for the children to be able to be exposed to the benefits of cultural and other celebrations associated with that background.
However, weighing each of the proposals before the Court, I am not satisfied this factor tells more powerfully, in favour of one or the other of these proposals.
The attitude to the children, and the responsibilities of parenthood, demonstrated by each of the children’s parents
In the father’s case outline it had been contended inter alia that the mother would be less likely to promote, encourage or facilitate his relationship with the children in the event their residence was relocated to Town 1 and pointed to her propensity to denigrate him.
Whilst the mother in her evidence firstly denied this and then later admitted she had denigrated him, the father’s evidence was consistent. The father expressed his belief the mother had thwarted his attempts to forge a stronger relationship with the children, which he implied demonstrated an impaired attitude to her parental responsibility to ensure the children’s enjoyment of a healthy and loving relationship with him.
The father’s case was that this was a powerful reason why she should be restrained from relocating with the children to Town 1. He feared if the relocation occurred, then the children’s relationship with him would wither, with consequential emotional detriment for the children. The father said this was the case because, even if they were capable of sustaining regular electronic communication, the mother would fail to ensure they are ready, willing, and able to spend time or communicate with him with sufficient regularity so that, having regard to their ages, that relationship could be sustained.
More generally, both parties blame the other for their conflict which reflects poorly on them in terms of this factor. So much was evident from the way in which they instructed their lawyers to conduct the trial and their evidence certainly only served to reinforce their inability to communicate.
When considering each of the parties proposals in the context of this factor, those which reflect a considered approach to the responsibilities of parenthood and what is necessary to prioritise the children’s best interests should be privileged.
Any family violence involving the children or a member of the children’s family
Neither party deposed or gave evidence that the children were at risk of family violence. There have been no family violence intervention orders.
Whether it would be preferable to make the order that would be least likely to lead to the institutions of further proceedings in relation to the children
The current arrangements of the parties for the children to live and the time spend with the other parent may well be the subject of future change as the children age. The Court is conscious that the parties are weary of litigation both in terms of the financial and emotional cost which was clearly evident during the course of the trial.
To a very large degree, the circumstances in which the children will find themselves are either by remaining in the mother’s care in Melbourne, or in the mother’s care significantly removed from Melbourne in Town 1 and cut off from the more regular physical interaction of the father.
The orders that are least likely to lead to the institution of further proceedings are of course to be preferred, and in that regard, I accept the submissions of Counsel for the Independent Children’s Lawyer that the orders proposed by his instructor, were consistent with the family consultant’s evidence and having regard to the children’s past and present living arrangements and are more likely to promote the children’s best interests.
Parental Responsibility
At the close of the evidence, Counsel for all the parties conceded, given the evidence, the Court could find that the presumption of equal shared parental responsibility had been rebutted under s.61DA(4). The Independent Children’s Lawyer’s submissions as to why the presumption should be rebutted and the evidence of the parties’ acrimony and lack of ability to co-operate is noted and consistent with the evidence before the Court.
Notwithstanding that the presumption doesn’t apply and has been rebutted, the father still wanted an order made vesting the parties with equal shared parental responsibility for the children. Such an order could indeed still be made, but only if the children’s best interests warranted it. In this case, such an order is not warranted, because on the evidence the parties probably cannot share parental responsibility for the children in the manner envisaged by the law (i.e. s 65DAC). Of course it would also be difficult for the parties to share parental responsibility for the children if they live at opposite ends of the country.
Both parties evidence makes clear sharing of responsibility for making long term decisions about the children has been unworkable. There is nothing to suggest requiring the parties to make these types of decisions would lead to any different outcome.
It would not be in the best interests of the children for there to be continuing conflict over a long term issue such as education, and the evidence indicated this has been the case, with no way of resolving it. Moreover, the evidence demonstrated they are not readily able to courteously consult each other, make a genuine effort to compromise, or reach consensus on important issues related to the children. Their post separation parental relationship has been characterised by conflict and the evidence afforded little scope for any optimism about a positive change notwithstanding their quixotic hopes to the contrary.
In the circumstances, the preponderance of evidence favoured the investiture of one party with sole parental responsibility for the children. Since ultimately it was not controversial that the mother will remain the residential parent, sole parental responsibility for long term decisions must rest with her. However, as the Independent Children’s Lawyer proposed the mother should be obliged to take the father’s views into account and to notify him of the decisions she makes. I accept this.
Children’s living arrangements
Because of the conclusion arrived at in relation to equal shared parental responsibility, s.65DAA is not engaged. In any event, having abandoned his proposal that the children live with him, the father doesn’t press an equal time arrangement and seeks that the children spend substantial and significant time with him.
Implicitly, apart from the issue of relocation, the mother concedes that a regime closely approximating substantial and significant time would be in the children’s best interests, because that is what she proposes in the alternative. However, the only way such a regime can be facilitated is if relocation is not permitted. Therefore, it is necessary to determine whether it is the children’s best interests to live in Town 1 or Melbourne.
In the case outline filed on behalf of the mother it had been contended there were “various advantages associated with relocating to Town 1 including the mother being permitted to live with her partner and establish a life for her there, being in close geographical proximity to the maternal family and established friendships and the opportunity for the mother to engage in future employment”.
When ultimately, this contention was boiled down after the evidence, it was conceded by Counsel for the mother the reason for her relocation request was due to her wish to live with Mr T. Counsel for the mother rejected the possibility that this could suggest his client tended to place her personal wishes ahead of the best interests of the children and it is noted the mother abjured the option of moving to Town 1 without the children.
There are advantages to the mother’s proposal. The mother is the children’s primary carer and the Court must consider her right as an adult to freedom of movement, her right to pursue her own happiness and a relationship with Mr T which could have vicarious benefits for the children (however, this is unknown).
The availability of family support to a parent, including such things as reliable quality child care, financial assistance, and emotional support can be very important considerations in parenting cases involving relocation and are factors to be balanced and weighed when considering competing proposals.[24] They have been. In this case, aside from Mr T’s evidence (such as it was) and the mother’s various claims, there was a remarkable absence of detail in the mother’s case about those matters.
[24] see McCall v Clark (2009) FLC 93-405 at [131]-[135]; Hepburn & Noble (2010) FLC 93-438 at [43], [49]-[64].
The Independent Children’s Lawyer’s final proposal opposing the mother having permission to relocate the children’s residence (which the father largely supports) will give the children regular and frequent time with the father. Subject to the commencement of school, their routines will be continued. They will not be required to confront the changes proposed by the mother and the expense, logistics and the demands this would impose on them to spend time with the father.
If the children were permitted to relocate to Town 1, the benefits would be that:
a)the children and mother would be living closer to (but still some distance from) the extended maternal family;
b)the mother would be able to live with Mr T;
c)tension between the parents may decrease as a result of lack of frequent contact;
d)the mother says the children will spend time with the father during school holidays; and
e)the children would be able to continue to live with the mother.
If the children were permitted to relocate to Town 1, the detriments would be that:
a)the children will be living in unfamiliar surroundings;
b)there would be a diminution in the quality of the children’s relationship with the father and the children’s time with the father will be restricted and dependent on the father’s ability to travel to Town 1 and the children’s ability (and the mother being able to afford) to travel to Melbourne;
c)the children’s time with the extended paternal family would be restricted;
d)the mother may expose the children to the adult issues including her negative views of the father; and
e)time and communication between the father and the children would be impacted depending on the mother’s attitude to the parenting.
If the children were not permitted to relocate to Town 1, the benefits would be that:
a)the children can remain living in an environment in which they are familiar, attend the same school and maintain the same relationships; and
b)the children will continue to spend regular time with the father and have the benefit of him involved in day to day interactions at home and school.
If the children were not permitted to relocate to Town 1, the detriments would be that:
a)the mother may need to seek some assistance to address her disappointment in not being able to move to Town 1 and this disappointment may impact negatively on the children.
What parenting orders should be made
I am not persuaded that it is in the best interests of the children for their residence to be relocated and live with the mother in Town 1. I accept the evidence of the concerns of the family consultant that this relocation results in significant diminution in the time that the children can spend with the father. I am most troubled as to the effect on the children of the father having significantly less involvement in their life, and I have reservations about the children’s ability to cope with the enormity of the changes proposed by the mother.
I am also concerned that the mother’s proposal is ill considered in many respects and notwithstanding all her assurances of the children remaining in a close relationship with the father after the move that this may not be sustainable. I have referred to the practical reality of the mother’s move. I am satisfied that despite her assertions, the evidence does not point to her being in any better financial position. The mother’s relationship with Mr T is untested and moving the children into a new blended family, without the continuing regular presence of the father in their lives, represents a major upheaval in these children’s lives.
The orders for time spent between the children and the father as sought by the Independent Children’s Lawyer are to be preferred over all other proposals. They are consistent with the evidence of the family consultant, have the support of the father, afford the children time on weekends with each parent and there was no evidence that they were not practicable. The same conclusion is arrived at in relation to the orders sought in relation to school and long summer holidays and other special occasions.
In relation to the 2018/2019 holidays, this will be in terms the parties had agreed. The Independent Children’s Lawyer also sought a number of other orders which, in light of the evidence, are necessary and more likely to promote the children’s best interests. In particular, the orders for the parties to attend a parenting course and the mother to seek a referral for external support along with the other orders which Counsel for the mother did not cavil with in final submissions.
Weighing all those matters in the balance and in light of the discussion of the statutory considerations leads to the conclusion that the children’s best interests do not lie in their residence being relocated to Town 1.
The father sought orders for the removal of the children from the Airport Watch List. The mother opposed this and the Independent Children’s Lawyer didn’t expressly support either party. The issue was only addressed by the parties in their evidence in passing and from the father’s point of view was sought so, it appeared, he didn’t have to seek the mother’s permission in the future if he wished to travel with the children.
The considerations to do with children travelling outside Australia are addressed in Kuebler & Kuebler (1978) FLC 90-434 and Line & Line (1997) FLC 90-729. There was certainly none of the necessary evidence, on the issues referred to in those authorities, for the Court to be able to be satisfied where the parents disagreed as to whether it was in the children’s best interests to travel overseas, and it appeared from what was said in submissions the children do not have passports in any event. Given the above, having the children on the Airport Watch List provides certainty that they remain amenable to the jurisdiction of the Court and it is in their best interests.
Conclusion
For these reasons I will make orders as set out at the beginning of these reasons for decision as I am satisfied in light of all of the evidence and having considered the submissions made by the parties that they are in the children’s best interests.
I certify that the preceding two hundred and twenty four (224) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Date: 28 November 2018
APPENDIX ONE
Father’s final proposal
The orders made by the Federal Circuit Court of Australia on 8 September 2017 be discharged including the order appointing the Independent Children’s Lawyer.
The parties have equal shared parental responsibility of the children [X] born on …2013 and [Y] born on …2014 ("the children").
The mother be and is hereby restrained from relocating the children's principal place of residence from Melbourne in the State of Victoria.
The children live or spend time with the father as follows:
4.1.During school terms on a fortnightly rotation as follows:
4.1.1.In week one:
(a)From the conclusion of school/kindergarten (or 3.30pm, if the children are not in school/kindergarten) on Tuesday until the commencement of school/kindergarten (or 9:00am if the children are not in school/kindergarten) on Wednesday;
(b)From the conclusion of school/kindergarten (or 3.30pm if the children are not in school/kindergarten) on Friday until the commencement of school/kindergarten (or 9.00am if the children are not in school/kindergarten) on Monday.
4.1.2.In week two from the conclusion of school/kindergarten (or 3.30pm if the children are not in school/kindergarten) on Tuesday until the commencement of school/kindergarten (or 9.00am if the children are not in school/kindergarten) on Wednesday.
4.2.By Skype on the alternate Saturday in week two at 9.30am.
4.3.For one half of the children's term school holidays at such dates and times as may be agreed upon between the parties in writing but in default of agreement:
4.3.1.For the first half in 2018 and alternating yearly thereafter; and
4.3.2.For the second half in 2019 and alternating yearly thereafter.
4.4.For one half of the children's end of year or Christmas school holiday as follows:
4.4.1.During the 2018/2019 school holiday from 4:00 pm on 5 January 2019 until 4:00 pm on 20 January 2019.
4.4.2.For one half of the children's end of year school holiday commencing in 2019/2020 at dates and times as may be agreed upon between the parties in writing but in default of agreement:
(a)For the first half in 2019/2020 (including Christmas Day) and alternating yearly thereafter; and
(b)For the second half in 2020/2021 and alternating yearly thereafter.
4.5.On Eid Al-Fitr and Eid Al-Adha (Bayram) for a minimum of 24 hours at such times as may be agreed upon between the parties in writing.
4.6.On the Father's Day weekend in each year from 5:00 pm on Saturday until the commencement of kindergarten or school (or 9:00 am if the children are not in kindergarten/school) on Monday.
4.7.If the children are not otherwise living or spending time with the father pursuant to these orders, on each of the children's birthdays as follows:
4.7.1.If the birthday falls on a weekday, from 4:00 pm to 7:30 pm; and
4.7.2.If the birthday falls on a weekend, from 2:00 pm to 6:00 pm.
4.8.At such further or other times as may be agreed upon between the parties in writing.
The children live with the mother at all other times.
The children's time with the father be suspended, so that they spend time with the mother:
6.1.For one half of the children's term school holidays at such dates and times as may be agreed upon between the parties in writing but in default of agreement:
6.1.1.For the second half in 2018 and alternating yearly thereafter; and
6.1.2.For the first half in 2019 and alternating yearly thereafter.
6.2.For one half of the children's end of year or Christmas school holiday as follows:
6.2.1.During the 2018/2019 holiday:
(a)From the conclusion of kindergarten on the last day of term until 4:00 pm on 5 January 2019; and
(b)From 4:00 pm on 20 January 2019 until the commencement of kindergarten or school on 29 January 2019.
6.2.2.For one half of the children's school holiday commencing in 2019/2020 at dates and times as may be agreed upon between the parties in writing but in default of agreement:
(a)For the second half in 2019/2020 and alternating yearly thereafter; and
(b)For the first half in 2020/2021 (including Christmas Day) and alternating yearly thereafter.
6.3.On the Mother's Day weekend in each year from 5:00 pm on Saturday until the commencement of kindergarten or school (or 9:00 am if the children are not in kindergarten/school) on Monday;
6.4.If the children are not otherwise living or spending time with the mother pursuant to these orders, on each of the children's birthdays as follows:
6.4.1.If birthday falls on a weekday, from 4:00 pm to 7:30 pm; and
6.4.2.If the birthday falls on a weekend, from 2:00 pm to 6:00 pm.
6.5.At such further or other times as may be agreed upon between the parties in writing.
For the purposes of calculating each party's school holiday time with the children, the term and end of year or Christmas school holiday is deemed to:
7.1.Commence at the conclusion of kindergarten or school on the last day of term; and
7.2.Conclude at the commencement of kindergarten or school on the first day of the new term.
During periods the children live with one parent for 7 days or more, that parent will make the children available to speak to the other parent by Skype on at least two occasions and will do all necessary things to facilitate such communication.
All changeovers that do not take place at the children's kindergarten or school will take place as follows:
9.1.The father will collect the children from the mother's residence at the commencement of his time; and
9.2.The mother will collect the children from the father's residence at the conclusion of the father's time.
Each parent be authorised to request from the principal of the children's school and/or kindergarten a copy of all school/kindergarten reports, notices, newsletters, application forms for photographs and other material ordinarily disseminated to parents and each parent is at liberty to provide the principal with a sealed copy of this order.
Each parent be at liberty to attend:
11.1.The children's kindergarten or school functions and events and all curricular and extra-curricular activities to which parents are ordinarily invited; and
11.2.The children's parent/teacher interviews and other kindergarten/school meetings to which parents are ordinarily invited.
Each parent advise the other parent of any illness or injury affecting the children or either of them while in that parent's care as soon as practicable and each parent be at liberty to visit the child/ren in the event of any hospitalisation.
Each parent will provide to the other details of the children's treating health professionals from time to time and details of any attendances by the children or either of them upon such treating health professionals while in that parent's care as soon as practicable (including details of any medications prescribed and vaccinations administered to the children) AND FURTHER each parent is authorised to consult with the children's treating health professionals regarding the children and each parent is at liberty to provide the health professionals with a sealed copy of these orders to evidence such authorisation.
Each parent notify the other parent within 7 days of any change to his or her residential address and contact details (including email and mobile telephone).
Each parent be at liberty to travel interstate with the children during his or her time with the children upon giving the other parent at least 7 days' written notice of his or her intention to travel including a copy of the children's return travel tickets (if applicable) and contact details.
Order 7 of the orders made on 8 September 2017 be discharged AND THE COURT REQUESTS THAT the Australian Federal Police remove the names of the children [X] born on …2013 and [Y] born on …2014 from the Airport Watch List at all points of international arrivals and departures in the Commonwealth of Australia.
The parties do all such acts and things, and sign all such documents, as may be necessary to obtain Australian passports for the children and to renew the passports of each of the children as and when they expire.
Each parent be at liberty to travel overseas with the children during his or her time with the children provided he or she gives the other parent at least 30 days' written notice of his or her intention to travel including:
18.1.The proposed dates of travel;
18.2.A copy of the children's return travel tickets; and
18.3.Contact and accommodation details,
and each parent make the children's passports available to the other parent for the purposes of such travel (including arranging or booking the travel).
The parties, their servants and/or agents be and are hereby restrained from abusing, insulting, belittling or otherwise denigrating the other party or any member of the other party's household in the presence or hearing of the children or permitting any other person to do so.
Without admitting the necessity of same, the parties be and are hereby restrained from physically disciplining the children.
In the event either parent intends to travel with the children during such time the children are not otherwise living or spending time with that parent pursuant to these orders, the parents be and are hereby restrained from discussing the intended travel with the children unless he or she has first obtained the consent of the other parent to the intended travel.
The father and the mother each undertake a post separation parenting course nominated by the Regional Coordinator of Child Dispute Services of the Dandenong Registry of the Court and at the conclusion of the course provide a copy of the certificate of completion to the other party’s solicitor.
The mother seek a referral from her general medical practitioner or a psychologist of other like professional for emotional support counselling and follows all reasonable directions of such practitioner.
Usual orders pursuant to sections 65DA(2) and 62B.
All extant applications be otherwise dismissed.
Certify pursuant to rule 21.15 of the Federal Circuit Rules that this matter reasonably required the employment of advocates.
In the alternative to orders 3 to 9 (in the event the mother is permitted to relocate the children’s principal place of residence to Town 1):
The children live or spend time and communicate with the father as follows:
27.1.For the entirety of each of the children's term school holidays;
27.2.For one half or three weeks, whichever is the longer, of the children's end of year or Christmas school holiday at such dates and times as may be agreed upon between the parties in writing, but in default of agreement:
27.2.1.For the first three weeks in 2018/2019 and alternating yearly thereafter (such time to include Christmas and New Year's Eve); and
27.2.2.For the last three weeks in 2019/2020 and alternating yearly thereafter.
27.3.For up to seven consecutive days during the children's school term upon the father providing the mother with at least 7 days' written notice, such time to take place in Town 1 and to not exceed four occasions each school term.
27.4.By Skype or Facetime three times each week at such dates and times as may be agreed upon between the parties in writing, but in default of agreement each Tuesday and Thursday at 6:30 pm and each Sunday at 1:00 pm, with such time to be calculated by reference to the time in Victoria.
27.5.At such further or other times as may be agreed upon between the parties in writing.
The children live with the mother at all other times.
For the purposes of calculating each party's school holiday time with the children, the term and end of year or Christmas school holiday is deemed to:
29.1.Commence at 5:00 pm the day after the last day of the school term, with such time to be calculated by reference to the time in Queensland; and
29.2.Conclude at 5:00 pm on the day prior to the first day of the new term, with such time to be calculated by reference to the time in Queensland.
For the purposes of changeover and unless otherwise agreed between the parents in writing:
30.1.If the father's time takes place outside Town 1:
30.1.1.The father collect the children from Town 1 airport at the commencement of his time; and
30.1.2.The father deliver the children to the mother at Melbourne airport at the conclusion of his time and the mother be responsible for the costs of the children's return travel to Town 1.
30.2.If the father's time takes place in Town 1 all changeovers will take place at the children's school/kindergarten save that, if the children are not in school/kindergarten:
30.2.1.The father collect the children from the mother's residence at the commencement of his time; and
30.2.2.The mother collect the children from the father's residence at the conclusion of his time.
APPENDIX TWO
Mother’s final proposal
In the event that the mother is permitted to relocate to Town 1:
The children live with the mother.
The children spend time with the father as follows:
a)for the whole of the school term holidays;
b)for four (4) weeks of the long summer vacation (excluding Christmas Day);
c)for one week per month in Town 1 provided:
i.the father provide one week notice to the mother;
ii.the father ensures the children attend all usual school, extracurricular activities and social engagements;
d)by telephone and Skype on two (2) occasions per week and on any special occasion the father is not having face to face time with the children.
In the event the father is in Town 1 on any special occasions the mother shall spend time with the children on special occasions for no less than 2 hours on school days and for no less than 4 hours on non-school days.
The Airport Watchlist Order remain for a period of 2 years.
The mother have sole parental responsibility for making major long term decisions with respect to the children, [X] born …2013 and [Y] born …2014 including the issues of educations and health subject to the requirements to provide the father with:
a)written notice of her views on such issues;
b)consulting with the father and making a genuine effort to come to a joint decision; and
c)if no agreement is reached between the parties within 21 days, make a final decision and provide the father with written advice of the decision with respect to such issue.
In the event that the mother is not permitted to relocate to Town 1:
The children live with the mother.
Spend time and communicate with the father as follows:
a)each alternate weekend from the conclusion of school or kindergarten on Friday to the commencement of school or kindergarten on Monday.
b)in the other week from after school on Friday to 1:00pm Saturday.
c)two weeks in the long summer vacation; and
d)by telephone and Skype on one (1) occasion as selected by the father;
e)or the purposes of special occasions, the father shall spend time with the children on the two Muslim holidays and the mother shall spend time with the children on the two Christian holidays.
f)on other special holidays, including birthdays, the children shall spend time with both parents, save for being interstate.
The Airport Watchlist Order remains for a period of 2 years.
The mother have sole parental responsibility for making major long term decisions with respect to the children, [X] born …2013 and [Y] born …2014 including the issues of educations and health subject to the requirements to provide the father with:
a)written notice of her views on such issues;
b)consulting with the father and making a genuine effort to come to a joint decision; and
c)if no agreement is reached between the parties within 21 days, make a final decision and provide the father with written advice of the decision with respect to such issue.
APPENDIX THREE
Independent Children’s Lawyer’s final proposal
That all previous orders be discharged including the order appointing the Independent Children’s Lawyer.
That the mother have sole parental responsibility for making major long term decisions with respect to the children [X] born …2013 and [Y] born …2014, including the issues of education and health subject to the requirement to provide the father with:
a)Written notice of her views on such issues
b)Consulting with the father and making a genuine effort to come to a joint decision; and
if no agreement is reached between the parties within 21 days make a final decision and provide the father with written advice of the decision with respect to such issue.
That [X] and [Y] live with the mother.
In the event that the Mother is not granted leave to relocated the children’s residence to Town 1
3A.That the wife be restrained from relocating residence of [X] and [Y] from Melbourne.
That [X] and [Y] spend time and communicate with the Father as follows:
a)During school term in a two week cycle:
1.In week one
a.from the conclusion of school/kindergarten on Tuesday or 3.30pm if not a school/kindergarten day until the commencement school/kindergarten on Wednesday or 9am if Wednesday is not a school/kindergarten day.
b.from the conclusion of school/kindergarten on Friday or 3.30pm if Friday is not a school/kindergarten day until the commencement of school on Monday or 9am if Monday is not a school day.
2.In week two from the conclusion of school/kindergarten on Tuesday or 3.30pm if Tuesday is not a school/kindergarten day until the commencement of school/kindergarten on Wednesday or 9am if not a school/kindergarten day.
3.By Skype on the alternate Saturday at 9.30am.
b)For one half of all gazetted school term holiday periods at times to be agreed and in default of agreement at 6pm on the last day of school term and concluding at 6pm on the second Saturday of such term holiday period.
c)For one half of the long school holidays as follows:
1.In 2018-19 for two periods of ten days each.
2.In 2019-20 and thereafter for one block period
d)On Eid Al-Fitr and Eid Al-Adha for a minimum of twenty-four hours at times to be agreed.
e)If Father’s Day falls on a weekend when [X] and [Y] are not otherwise to spend time with the Father from 5pm on Father’s Day eve until the commencement of school on Monday, provided that time on Mother’s Day be suspended from 5pm on the Mother’s Day Eve.
f)As may otherwise be agreed between the parties in writing.
That changeovers take place at school/kindergarten and if changeovers are to take place when the school or kindergarten is closed that the Father collect [X] and [Y] from the residence of the Mother at the commencement of his time and that the Mother collect [X] and [Y] from the residence of the Father at the conclusion of his time.
That each party be at liberty to telephone [X] and [Y] or to communicate with them by Skype or other electronic means at least twice per week when they are with the other party during holiday periods.
In the event that the Mother is granted leave to relocate the children’s residence to Town 1
That [X] and [Y] spend time and communicate with the Father as follows:
a)During all gazetted school term holiday periods for a period of twelve days commencing in default of agreement at noon on the first Saturday of such holiday period.
b)For one half of the long school holidays and in default of agreement for the first half in 2018-19 and the second half in 2019-20.
c)By telephone, Skype or other electronic means on not less than three occasions per week.
d)As may otherwise be agreed between the parties in writing.
Other orders whether the Mother remains in Melbourne or relocates to Town 1
That party who has care of [X] and [Y] forthwith notify the other party of any significant illness or injury suffered by [X] and [Y], such notification to include the nature of the illness/injury, the details of any treatment received or medication prescribed by medical practitioners and the identity and contact details of the treating health professional and authorise the other parent to communicate with such professional if necessary.
That each party keep the other informed of any medical or health practitioner who is treating [X] and [Y], including but not limited to general medical practitioners, dentists, counsellors and medical specialists and that each party be at liberty to liaise directly with such practitioners and these orders shall act as authority for such liaison.
That each of the parties provide the other with their contact address and telephone numbers and inform the other of any change in such address or telephone number as soon as practicable and not later than three days after such change.
That both parties be at liberty to liaise directly with the school/kindergarten attended by [X] and [Y] to obtain information about their progress at school and to seek copies of notices, newsletters, reports, photographs and other information normally provided to parents in relation to children.
That both parties be permitted to attend/participate in school or extra curricular activities, functions and/or events normally attended by parents including but not limited to parent teacher interviews and sporting events.
That each of the parties by themselves, their servants and/or agents be restrained from :
a)Denigrating, abusing, insulting or belittling the other party or his/her extended family to or in the presence and/or hearing of [X] and [Y];
b)Discussing these proceedings with or in the presence and/or hearing of [X] and [Y]; or
permitting another person to do so.
That without admitting the necessity each party be restrained form physically disciplining [X] and [Y].
That the Father and the Mother each undertake a post separation parenting course nominated by the Regional Coordinator of Child Dispute Services of the Dandenong Registry of the Court and at the conclusion of the course provide a copy of the certificate of completion to the other party’s solicitor.
That the mother seek a referral from her general medical practitioner to a psychologist or other like professional for emotional support counselling and follow all reasonable directions of such practitioners.
Usual orders pursuant to sections 65DA (2) and 62B.
That all extant applications be otherwise dismissed.
Certify pursuant to rule 21.15 of the Federal Circuit Rules that this matter reasonably required the employment of advocates.
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Jurisdiction
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Procedural Fairness
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Remedies
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Costs
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Statutory Construction
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