Sealey and Archer

FAMILY COURT OF AUSTRALIA

SEALEY & ARCHER

[2007] FamCA 432

FAMILY LAW - CHILDREN – Best interests of a child - With whom a child shall live - Relocation interstate

Family Law Act 1975 (Cth)

A & A [2004] FamCA 456
A-v-A Relocation Approach (2000) FLC ¶93-035
H-v-L (2000) FLC ¶93-036
AMS v AIF; AIF v AMS (1999) ¶92-852
D and SV (2003) FLC ¶93-137
U and U (2002) FLC ¶93-112
M & K [2007] FMCA Fam 26
Bolitho v Cohen (2005) FLC ¶93-224

APPLICANT:

Ms Sealey

RESPONDENT:

Mr Archer

FILE NUMBER:

SYF

3395

2005

DATE DELIVERED:

15 May 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Justice Le Poer Trench

HEARING DATE:

30 April 2007 and 1, 2 and 3 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schonell

COUNSEL FOR THE RESPONDENT:

Mr Campton

Orders

The parenting orders of 6 July 2005 be discharged.
Mr Archer (“the father”) and Mrs Archer (also known as Sealey) (“the mother”) have equal shared parental responsibility for their children:
(a)A son born in August 1995
(b)The elder daughter born in November 1997 and
(c)The younger daughter born in September 2001
(“the children”) and consequently the parties have joint responsibility in consultation with one another for making decisions for the long term care, welfare and development of the children.
The children live with the mother at the following times:
(a)during school terms if the Mother so elects as follows:
(i)from Monday at the commencement of the school day to the conclusion of school the following Friday in each alternate week; and
(ii)upon seven days’ written notice, the children can continue to live with the mother in accordance with Order 3(a)(i) above until the following Monday at the commencement of the school day, or if a long weekend until the following Tuesday at the commencement of the school day.
(b)during school holidays as follows:
(i)for the duration of the terms one (1) and three (3) school holidays, commencing on the day immediately following the last school day and concluding at 6.00 pm three nights prior to the commencement of the next school term
(ii)during the term (2) school holidays for all but eight nights of the school holiday period with the father to select his eight nights at least 28 days prior to the holidays.
(iii)during Easter if it falls outside of a school holiday period commencing on the Thursday prior to Good Friday and concluding at 6.00 pm Easter Monday
(iv)during the December/January school holiday period commencing in December 2007 and each alternate year thereafter, from the day after the last day of school until 3.00 pm on Christmas Eve and from 9.00 am on 16 January until 9.00 am three days prior to the children returning to school
(v)during the December/January school holiday period commencing in 2008 and each alternate year thereafter, from the day after school concludes until 9.00 am 24 days prior to the first of the children returning to school
(vi)in the event that the mother and father are each in Sydney on Christmas/Boxing Day, then notwithstanding the provisions in order 3(b)(iv) and 3(b)(v) above, the children shall spend one half of such Christmas/Boxing Day period with the mother, being either from 12 noon on 24 December until 3.00 pm on 25 December or from 3.00 pm on 25 December until 6.00 pm on 26 December as may be agreed between the parties in particular having regard to which parent had the children with them for Christmas Eve in the previous year. In the event of a dispute the father is to decide.
(c)on Mother’s Day weekend from the conclusion of school Friday to 6.00 pm on Sunday or Monday morning if the mother is able to stay in Sydney on Sunday evening.
(d)on the children’s and the mother’s birthday, upon the mother providing the father with two (2) weeks’ notice that she is travelling to Sydney, then she may spend time with the children on any of their birthdays or the mother’s birthday as follows:
(i)if on a school day from after school to the commencement of school the following day
(ii)if on a weekend for a 24 hour period as agreed
(iii)or as agreed between the parties.
(e) at such other time as agreed between the parties.
At all other times the children live with the father.
In the event of the children being required by these orders to be otherwise in the care of the mother on Father’s Day then she is to ensure the children are returned to the Father on Saturday evening the day before and remain with him until 6.00 p.m. on Fathers’ Day.
In the event of the children being in the care of the mother on any of their birthdays or the fathers’ birthday pursuant to other provisions of these orders then the mother is to ensure all the children spend two hours in their fathers care on those days at times nominated by him.
The children have liberal telephone, email and web cam (subject to availability) communication with the mother and father at all reasonable times.
In the event that any of the children are ill or injured, the parent with whom the child is residing on that day shall promptly notify the other parent.
That the parties cooperate and consult with each other concerning the medical and dental treatment for the children.
Each party shall do all things necessary to ensure that the other party is kept informed at all times of the residential telephone, email address and all other contact numbers and address of the other party.
Each party shall keep the other informed of and not do anything to impede the attendance of the other parent at all events and activities in relation to the children’s school and extra-curricular activities in which each child is involved and to which parents are invited or would usually be expected to attend. Each party is at liberty to attend all such events. Further, each parent shall ensure that the other parent is provided with copies of school photographs, reports and school notes and otherwise shall keep the other informed of all school matters, functions, parent/teacher meetings, speech days, sporting events, carnivals and the like.
During school term time each parent is to ensure that when the children are in their care the children attend upon the extra-curricular activities in which they are enrolled.
During school term time each parent is to ensure that the children attend upon school organised weekend sporting and other activities in which the school expects them to participate unless both parents and the children’s school authorities agree that for a special occasion they should be excused from such participation.
From the commencement of 2008 the children are not to engage in any extra-curricular activity which is not agreed to in writing (or email) by each of the parties. This is not to apply to activities sourced for the children by a parent during that parent’s time with the children in school holidays.
Neither parent is to remove any of the children from school so that they are absent for any part of a school day for the purpose of spending time with that parent without the written consent of the other parent and the children’s school.
The father is restrained from leaving any of the children unsupervised by an adult whilst the children are in his care until they attain the age of 13 years and thereafter he is to exercise his discretion and consult with the mother for her view in relation to whether any of the children require adult supervision at all times.
The time which the mother exercises with the children in Sydney under these orders during school term is not to be delegated to another person other than for a few hours such as occasions when the mother attends a social function whilst she is in Sydney and arranges for the children to be cared for by a babysitter. If the mother is unable to attend Sydney for the purpose of spending her time or part thereof with the children then she is to give the father as much notice as possible and the parties are, at the option of the mother, to thereafter negotiate some make up time during some other part of that school term time.
In the event of the father having to travel away from Sydney on any occasion during school term and thereby having to arrange for the children to be cared for in his absence then he is to offer the mother the opportunity to care for the children in Sydney during that time or any part thereof. The father is to give the mother as much notice as possible of any such occasion.
During school holidays the parent who has the care of the children pursuant to these orders may arrange for the children to be cared for by a relative or other trusted adult at that parent’s discretion or alternatively may offer additional school holiday time to the other parent.

Notations:

A.The Court recommends that the parents forthwith agree upon a Community Based Organisation or specialist family therapist to engage with for the purpose of assisting them to form a cooperative and respectful parenting relationship and that they thereafter attend upon that organisation or person for that purpose.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3395 of 2005

Ms Sealey

Applicant

And

Mr Archer

Respondent

REASONS FOR JUDGMENT

Introduction

This case illustrates to me the very worst of impacts on a family of the adversarial system. This case has been fought hard and focused very much on the emotional battle between the parents rather than dealing with the best interests of the children. This hearing may well have served the needs of the parents to attack each other over the breakdown of their marriage but it could not in any fashion be said to have been in the children’s best interests. The parents have determined the manner in which the case has been heard (as is their right under the adversarial system) notwithstanding my requests for a different approach. The best part of the first day of the hearing was spent dealing with the objections to the affidavit material of the parties. The affidavit material was voluminous. The mother’s principal affidavit is 60 pages with 304 paragraphs. There is a volume of exhibits to the affidavit. That volume is about 35mm thick. Her update affidavit is 10 pages with 46 pages of annexure. The father’s affidavit is 57 pages long with 124 paragraphs. There are 155 pages of annexures to that affidavit. His update affidavit is 13 pages with about 40 to 60 pages of exhibits. Many parts of the affidavit material were objected to and either not read or alternatively were struck out. The cost to the parties has been immense. Since the commencement of these proceedings in December 2005 the mother has incurred and partly paid costs of $123,000. The father has incurred and partly paid costs of $96,550.
My request for the Family Consultant to give her oral evidence as the first witness in the hearing was objected to and although I pressed for this procedure it was ultimately defeated because of a refusal by counsel to ask any questions at that time. I make it clear that my criticism here is not of the lawyers as they do nothing more than represent their clients, on instructions, in an adversarial system. My criticism is of the system which the court and the Act has now discarded as not serving the best interests of children.
Because the parties lawyers have a responsibility and obligation to explain to their respective clients that there is and was the opportunity to consent to the case being heard under Division 12A of the amended Act or, prior to 1 July 2006, in Sydney, the ability to consent to participate in the Children’s Cases Program, and to have advised their clients that such a process would be quicker and cheaper for their clients, I must assume that one or both of the parties rejected that option.
The parents were given a clear message by their children through the means of the Family Report. They have chosen to ignore that message. The message is found in paragraph 42 of the Family Report where the son says his mother and her partner need to “cool down” and that his father needs to learn to “make better compromises”. In paragraph 44 the elder daughter wishes for her parents to reconcile and if that is not possible then they should be “nice to one another”.
Each of the parents and the mother’s partner were able to identify the elder daughter as the most vulnerable of the children to the parental conflict. The son and the elder daughter each identify strongly with their physical environment in Sydney and do not wish to move.

Introduction to the Issues in this Case

The son (aged 11), the elder daughter (aged 9) and younger daughter (aged 5) are the children of the father and the mother. In July 2005 they settled their property and children’s matters by signing terms of settlement for final orders. The orders provided for a shared time parenting arrangement for the care of the children. The children were to spend marginally more time with the mother than the father. To me it looked like a good working arrangement for the children. It enabled the children to have each of their parents participating in almost every aspect of their lives. The property settlement saw the father retain the former matrimonial home and the mother paid a substantial sum of money.
Following the separation of the parties in October or November 2004 the mother entered into a relationship with her partner. He is a resident of Victoria and has three children of his own. By December 2005 the relationship between the mother and her partner had developed to a point where the mother decided she would like to move with the children to E in Victoria to live with her partner. It was consequent upon that decision that she in December 2005 commenced these proceedings. Since that time the mother and her partner have been married. Their plans to live in E have changed because the mother’s partner’s former wife decided to move from E to Melbourne. Following proceedings in the Melbourne Registry of this Court agreement was reached which saw the mother’s partner consent to the move and new orders were made that see him spending equal time with the children’s mother caring for his children.
Each of the parents in this case professes a desire to have the other significantly involved in the children’s lives. Each acknowledges that the other loves the children and that the children love each parent.
The parents have a poor capacity to communicate face to face and their communication has been principally confined to e-mail or text messages. Each counsel for the parties has acknowledged actions on behalf of their client in the lead up to the hearing which do not reflect well on that parent.
It is trite to say that this case poses a difficult decision for the Court. Whatever the result the children will have to live with at least one of their parents being very dissatisfied with the result for a considerable period of time. There is the spectre that the parent who regards him or herself as the looser in this case will never give up the fight and will continue to undermine the orders of the Court and the settled nature of the residence with the other parent. The only way this might be avoided is if each parent comes to understand the emotional damage and scarring which will be inflicted on the children by continued parental conflict. To that end I asked the Family Consultant to paint the future picture for the children’s emotional development to the parties while they were in Court. Whether that information might help these children will largely depend upon the parent’s individual resolve to save their children from the appalling circumstance they now find themselves in.
Each of the parents is a highly intelligent, articulate person who in my assessment has the capacity to make a change in their parenting relationship for the benefit of the children and spare them further anguish and misery which they have surely suffered as a result of their parents’ marriage breaking down. The question is whether they each have the resolve and courage to do so.

The Issues

There were very few factual issues between the parties. The principal issue is which parent has the best proposal for the children’s future care? Which parent is best able to ensure the children continue to have a good and close relationship with the other parent? Which parent is best in tune with the children’s emotional needs? Which parent is best able to prioritise the children’s and the parents’ needs so that the children’s needs are placed first? What orders should be made to serve the best interests of the children?
The decision will necessarily see the children living in either Sydney or Melbourne. For a variety of reason which will be dealt with in these reasons the children will during school term necessarily see less of one parent than the other. Additional holiday time will be provided for the children to spend with the non residence parent and to some extent the children will have an opportunity to catch up with that parent. It must be acknowledged that the children’s lives will change from the present and on any view for the children not to be able to have their care shared equally, or almost equally, between their parents will see them the losers in the long run.
In the hearing of the case I was not asked to determine the Rice and Asplund (see the decision in Rice and Asplund (1979) FLC 90-725) issue. That is, given the orders made on 6 July 2005 were final orders, is there a change of circumstance which would warrant the Court rehearing the question of the children’s residence. Where an application to radically change the circumstance of the children’s residence and care within six months of final orders being made is instituted in the Court it is a common feature to see a challenge to the application being heard at all.
The approach of the father in this case in not pursuing such an application I commend and for his comfort say that in my opinion there is sufficient change of circumstances in the mother’s case to warrant the Court further hearing and determining the residence of the children.
One of the issues raised by the mother is that she has been the primary care giver of the children to this point in time and consequently if that role were to become the father’s by dint of the orders of the Court would the children cope well with such a change? I will deal with this issue, as with the others identified, in these reasons.

Background Facts

The parties married in March 1994. They separated under the one roof in late October or November 2004. In November 2004 the mother left the former matrimonial home and took up residence in a rental property at G.
The parties have three children: a son born in August 1995; an elder daughter born in November 1997; and a younger daughter born in September 2001.
In August 1996 the parties moved from Sydney to Auckland pursuing work for the father. They returned to Australia in June 2001 and purchased a property at B.
In July 2001 the son commenced attending school at D Public School.
In September 2001 the mother was diagnosed with acute myeloid leukaemia. In that same month, as a result of that diagnosis, the younger daughter’s birth was induced and she was born two months’ premature by way of caesarean. The younger daughter remained in hospital until December 2001. The mother was in hospital for a considerable period of time undertaking chemotherapy and other treatment.
In April 2002 the parties moved with their children to the former matrimonial home at F.
In October 2002 the mother purchased with her sister, A, a business “[Q business]” and commenced to work part time in that business.
In early 2003 the parties employed an au pair, Ms D, for two days a week.
In March 2004 the father purchased his current business “[Z Company]”.
In October 2004 the parties separately attended a self-development course in Victoria. Whilst at that course the mother met her partner for the first time.

On 6 July 2005 the parties entered into consent orders regarding parenting, property and child support matters. A binding financial agreement in relation to spouse maintenance was also entered into.
On 16 January 2006 the father made an application to the court seeking orders regarding the children attending private schools. This application was opposed by the mother. On 31 January orders were made by Judicial Registrar Johnston for the son to attend S College from 1 February 2006 and the elder daughter to attend X School from 1 February 2006. The younger daughter was to attend X school from 1 February 2007.
In June 2006 the mother and her partner purchased a property at E in Victoria. In July of that year the mother and her partner became engaged and were married in September 2006 in Victoria.
In December 2006 the mother’s partner entered into final consent orders with his former spouse. Amongst the orders made, by consent, was a notation that the father (the mother’s partner) would not seek to relocate to New South Wales. The effect of the orders requires the mother’s partner to remain living in eastern and south-east suburbs of Melbourne. His children live with him on the basis of equal time.
In February 2007 the mother and the mother’s partner moved residence to T, a suburb of Melbourne.
In February 2007 the mother commenced attending on Ms R, a psychologist practicing in the eastern suburbs of Sydney.
In March 2007 the mother moved from her rented premises in Sydney into a unit at P owned by her mother. The mother is required to pay a rental to her mother but it is less than the rental which she paid on the premises occupied by her prior to the change.

Matters arising from the Mother’s affidavit evidence

Paragraphs 15 through to 63 deal with the heading, “Care of the children during my marriage to [the father]”. These paragraphs largely go to support the contention of the mother that she has been the primary caregiver for the children to the point of separation. This is a matter which is conceded in the affidavit of the father. One matter which is referred to in this section is the period of time that the mother spent in hospital following her diagnosis of acute myeloid leukaemia. During the period September 2001 until December 2001 the mother had three courses of chemotherapy. During each course she resided in hospital. The first course required her to remain in hospital for two weeks. It is not clear from the mother’s affidavit exactly how long she was in hospital during this period. It was during this time that the father says he became more involved in the care of the children. It is not entirely clear to me from the mother’s affidavit if the father’s contention is conceded.
The parties agreed in about November 2004 for the mother to leave the former matrimonial home, after being provided with $20,000 and relocate to rental premises. They further agreed that they would then share the care of the children with the children residing with the father six nights each fortnight. The mother thereafter moved to the premises at G.
Following the orders entered into between the parties in July of 2005 the parties shared the care of the children with the mother being responsible for seven out of every ten school day afternoons a fortnight to care for the children. The children lived with the mother eight out of every fourteen nights.
The mother concedes that the children have since the separation continued to have a strong relationship with the father and also herself. Following the separation the father spoke to the children by phone once or twice a day when they were in the mother’s care. The mother objected to this however permitted it. After about twelve months following the separation the father reduced the frequency with which he spoke to the children by telephone when they were in their mother’s care and now speaks to them approximately once a week when they are with their mother.
In March 2005 the mother emailed to the father her “house rules”. It seems that the father has adopted similar house rules while the children are in his care.
Following the separation the son exhibited some behavioural problems. He spoke to a counsellor at school. By March 2005 the report from the counsellor indicated the son’s behaviour as having settled down.
It is a complaint of the mother’s that the father is over involved in the son’s life to the exclusion of the other two children. In her affidavit the mother sets out complaints which she says were made to her by the elder daughter in this regard.
The mother complains in paragraph 142 of her affidavit that on Sunday,

23 October 2005 the father refused to drop the children at her G home in accordance with Order 3.2 of the July 2005 orders. The mother said that she had arranged for her sister A to spend the night at the G home and care for the children whilst the mother spent an additional night in Melbourne. The mother rang the father when she received a call from her sister A advising the children had not been returned. The mother recites a conversation with the father where he asserted that he had sent her a text message advising that he would be keeping the children as she was not available to care for them. The mother apparently was at the movies and did not receive the text message. The mother thereafter caused her solicitors to write a letter of protest to the father which was exhibited to her affidavit. The mother complained that the father uses au pairs/babysitters to care for the children when he is not available and accordingly it was unfair for him not to deliver the children to her sister at the conclusion of his time with the children on that particular occasion.
During the course of the hearing the orders made on 6 July 2005 were looked at in some detail. Those orders provide, inter alia, in paragraphs 4.4 and 7.2 for notice to be given in the event of either parent being unable to care for the children in certain specific circumstances. The intention appears to be clearly that if either parent has to rely on other people to supervise or care for the children for other than a short period of time then the other parent should be offered the opportunity to care for the children during that time.
The mother complains in her affidavit that the father entered her house uninvited by her on a number of occasions during 2005. She required that he not enter the home. This was the case even if the father was invited by one of the children. The mother sets out in paragraph 156 of her affidavit that her lawyers advised her to contact the police should the father continue to enter the house uninvited. Annexed to the mother’s affidavit and marked as Exhibit “DLS22” is a letter dated 9 February 2006 from the mother’s solicitor to the father’s solicitor. This letter dealt with a dispute between the parties about the son not being made available to play school sport whilst he was in his mother’s care. The father took the view that this was a breach of the court orders. The letter complains further that the mother accuses the father of making arrangements for the elder daughter whilst the elder daughter is in the mother’s care. Finally the letter complains of the father entering the mother’s house on 6 February 2006 and walking through to the bathroom. The letter then advises that if there is a reoccurrence of such an invasion of the mother’s privacy she will “contact the police for his trespass into her property.” It is clear from the letter that the mother had accepted the advice of the solicitors and proposed to make a complaint to the police should the father enter her premises in a manner which she regarded as uninvited. I am pleased to say that nothing was raised in evidence to suggest that any complaint was in fact ever made by the mother to the police.
Whereas it is clear that the mother’s privacy should not at any time be invaded by the father and that he should never enter her premises uninvited, the implications for the children of the mother instigating action with the police against their father is very significant. There is nothing in the mother’s affidavit or in her oral evidence to indicate that she had any understanding of the implication of making the threat which she did through her solicitor’s letter referred to in annexure “DLS22”. It seemed to be a threat made as a result of her being exasperated by the father’s alleged constant refusal to comply with her requests not to enter her premises. The mother says that even following the lawyer’s letter the father did continue to enter the property uninvited. The mother complained that the father continued to attend at her front door when he returned the children or on other occasions associated with the children. In an email dated 16 May 2006 the mother in very strong terms told the father that he was not to come to her front door. She complains that he continued to deliver the children to the front door until July 2006 when he ceased doing so.
In paragraph 163 of her affidavit the mother says she can no longer talk to the father. She says that over the two previous years she has heard the father constantly say to her words such as “you are selfish”, “You never put the children first.” There are other statements attributed to the father. By March 2006 the mother requested the father not to speak to her on the phone or in person and to keep all communication to a minimum and via email only. The mother says she continues to find the father’s emails offensive and harassing. She says that from August 2005 through to 26 July 2006 there have been numerous emails between the parties and she sets out in paragraph 165 the numbers of emails.
The mother and father have a fundamental difference on the approach to the son playing rugby union. The mother holds the view that the son plays too much rugby.
This difference came to a head in early 2006. On 14 February 2006 the father advised the mother by email that W team’s registration was opening. The mother did not agree to the son being involved in the W team and spoke to both the son and the father about her view that he played too much rugby. The son was caught between the parents in this dispute and complained to his mother that his father told him that she was the reason why he could not play. Finally the parties had a meeting on 29 March 2006 with the father’s parents in relation to the issue. The father said that if the mother won’t let the son play then he can’t play. The issue continued to boil on and eventually the mother agreed to the son playing additional football with the W team on conditions that she stipulated and set out in paragraph 173. The father supported those conditions and the son was able to play football.
On 13 April 2006 the mother confirmed by email that she would not share the expenses of the W rugby as it was not an agreed expense and she then set out in paragraph 176 the content of some of that email. The wording of the email is in my opinion very inflammatory and accusing. She said, inter alia, “I do not trust you to act in a mature and sensible manner. I also do not trust you to act in the best interest of the children.” Later in the email she says as follows:
“I have allowed [the son] to play [W] even though I have serious reservations about too much rugby et cetera. I offered this compromise in good faith, in a bid to improve our relationship. I am just waiting now to see if you truly have any intentions of trying to act in a co-operative manner or once again you just say the words but do nothing.”
In paragraph 178 of the mother’s affidavit she sets out an extract from the father’s reply which on my observation appears to be a conciliatory and appropriate response. The wording of the mother’s original email may well have in other circumstances provoked a more acrimonious response.
Notwithstanding the response from the father as above referred to the mother sets out in paragraph 181 of her affidavit a further reply to that email. In my view the reply is attacking, provoking and detrimental to any co-operative parenting between the parties. Included in this reply are the following words:
“[Father] please show me where you have in any way contributed to any form of compromise in this current situation. [The son] is well aware that at no stage have you offered me any form of compromise”
…
“He has a clear understanding that you have no intention of trying to sort out the situation unless you get it all your way.”
“This behaviour is commonly known as bullying.”
“Be under no misunderstanding [the son] is completely aware that you flatly refuse to co-operate on any level and that once again I have been severely disappointed because you have been unable to be man enough to actually negotiate a fair deal.”
…
“I know my compromise is fair, I am just wondering where your compromise is? Will this ever end or are you just determined to make me pay for leaving you for the rest of my life? We all wonder when you will grow up and take responsibility for your own actions? We guess not in the foreseeable future.”
When I read that email I see evidence of a very angry person. The reference towards the end of the email to “we” does not specify who constitutes the “we”. On one reading it includes the mother and the children but given the history of the case might well be reference to the mother and her partner, Mr M, or some other persons.
At paragraph 186 of the mother’s affidavit she commences to set out the events which occurred in June and July 2006. At that time the mother said that she found out from the younger daughter that she was not going skiing with her siblings but rather going to Y with her Granny and D. Having ascertained this the mother then drew on Order 7.2 of the July 2005 orders and requested that the younger daughter be made available to her during holiday period. The mother seeks to justify her action by saying in her affidavit:
“It would have been a very special time for [the younger daughter] and I to spend together as a mother and daughter as at no other time have we had such time together without [the two elder children].”
The mother caused her solicitors to write to the father’s solicitors on 5 July 2006. That letter is annexure “DLS29” to the mother’s affidavit. The opening paragraph is:
“It has come to the mother’s attention that the father is intending to not take [the younger daughter] with him skiing but have her minded by the paternal grandparents at [Y].”
The letter goes on to threaten the father that if he does go ahead and have the younger daughter cared for by her grandparents rather than himself during the holiday the mother proposes to take the matter further.
The father’s solicitors replied by letter dated 6 July 2006. In that letter they pointed out that this was not a circumstance where the younger daughter was being cared for by someone other than the father because he was not capable of caring for her at the time but rather that it was his intention to facilitate the younger daughter enjoying a holiday with her grandparents and cousins in Y. The letter advises the mother that if she indicates an objection to the holiday as planned then the father will change the holiday plans. The letter points out an accusation by the father that the mother has breached the orders on numerous occasions and in particular Order 4.4 without action being taken by the father. The letter required an answer by 12 noon on 7 July 2006.
A letter was sent by the mother’s solicitors to the father’s solicitors on 7 July 2006. In that letter the mother acknowledged that the two elder children were very much looking forward to a skiing holiday. She said that she had “no problem” with the paternal grandparents caring for any or all of the children at different times when appropriate.
The following paragraphs appear in the mother’s affidavit and also the letter:
“If the husband is prepared to communicate his wishes then the mother is more than willing to try and work in with the husband’s holiday arrangements however, the mother also feels that this would be a special opportunity for the mother and daughter [younger] (4) to spend some quality one on one time together, while the other children are enjoying time with their father.
She is also extremely upset that the husband is willing to cancel all the children’s plans just to ensure that he does not have to give the mother the option of caring for [the younger daughter]. Clearly these changes of arrangements that inevitably will cause enormous stress to all the children, are a direct result of the mother’s request that he merely comply with the orders that he clearly admits that he has chosen to ignore.”
Following that exchange the father sent an email to the mother outlining his travel proposals and offering for the younger daughter to stay with the mother until Monday when his parents will take her to Y. He also then offered that his parents on return from Y would provide the younger daughter to the mother for Friday and that upon the father’s return on Saturday afternoon he would collect the younger daughter from the mother.
In paragraph 191 of her affidavit the mother said she replied on that day “with a compromise” which was that she would take the younger daughter to Melbourne with her until Tuesday and then the younger daughter would spend from Tuesday to Friday with her grandparents in Y. The mother sent three text messages requesting a response and at 3.30 pm on that day telephoned the father and said, “Go and read your email now and ring me back”. The father replied with a message about having people for a barbeque. On 8 July the father emailed the mother advising as follows:
“Given the legal position that you have taken on this I am left with no choice but to cancel the ski holiday unless you agree to the plans I outlined.”
In paragraph 193 of her affidavit the mother sets out her reply which she sent on 8 July. Again that reply as recited in the mother’s affidavit contained what I would describe as inflammatory statements such as, “I find it incredible”, “I will not be bullied or blackmailed by you.”
The father replied. In that reply he changed the plans so that he was able to care for the younger daughter until Tuesday and then advised that the younger daughter would be with “[N] and [I]” for the period Tuesday through to Friday. There were exchanges of emails on 10 July 2006 the last of which being at 4.34 pm to the mother from the father as follows:
“Dear [Mother], for the sake of clarity I have asked if I can take [the two elder children] skiing and have [the younger daughter] stay with her cousins for Tuesday, Wednesday and Thursday and be returned to you on Friday afternoon at a time that suits you.
If you do not agree I will not go skiing and will stay with all three children. As such [the younger daughter] will be with me on Friday and I will return all the children at 6.00 pm next Monday.
I am truly sorry that this has reached this point. I only ever wanted to give the kids a fun holiday. Regards [the father].”
As best I can see from the mother’s affidavit and from the annexures that email was never replied to. Paragraph 195 and 196 of the mother’s affidavit sets out what happened thereafter. It is as follows:
“On 11 July 2006 I received a telephone call from [the elder daughter] who was now in [Y] spending time with [the father] for the school holidays. She sounded very distressed and I could hear her sobbing in the telephone and saying words to the effect ‘Mum why can’t we go skiing?’ I replied words to the effect ‘I don’t know, it’s your Dad’s decision. When you are with Dad it’s his decision.’ I also spoke with [the son] during this phone call and he said words to the effect ‘Dad said that he would get in trouble from you if he takes us skiing’. I replied words to the effect ‘[Son] you know it is Dad’s decision. I can’t make Dad do anything when you are with him. It is his decision and when you are with me it is my decision.’ [The son] was also very upset about missing out on his skiing holiday.”

In my opinion this incident demonstrates the very worst of parenting by each of the mother and father. Ultimately it is my view that the request made by the father on 10 July 2006 by email to be able to take the children skiing and have the younger daughter stay with his relatives in Y was a reasonable request. That request was not replied to by the mother in the affirmative and consequently the children did not go skiing. I have no doubt that the younger daughter would have enjoyed her time with her cousins in Y as is effectively acknowledged by the mother in her affidavit material where she acknowledged that she had no objection to the children spending time with those relatives in Y. It also appears from the mother’s affidavit that her stated plan to “spend some quality one on one time together” with the younger daughter actually involved the younger daughter spending time with the mother in Melbourne with her husband. Thus the one on one time was to be two on one time with the mother and her partner.
The last part of the above mentioned references from the mother’s affidavit illustrate to me that each of the parents had endeavoured to convince the children that their lost skiing holiday was the other parent’s fault when clearly each of the parents had contributed to the circumstances which led to the children’s disappointment.
At paragraph 204 the mother complains that the father has breached court orders in that he has refused to return the children to “[A’s] care when I was not available on Sunday evenings to collect the children as I was in Melbourne and had arranged for my sister to be available for the children.” The mother acknowledged in paragraph 204 that the father had in November 2005 through an email stated a preference to look after the children on Sunday nights if the mother was not available.
The mother then sought to have an agreement reached where the father would change his Wednesday night to every second Sunday night. Her exact proposal was contained in an email dated 22 February 2006 which was for the father to swap his Wednesday afternoon and night for the mother’s Thursday afternoon and her Sunday night. She says that this was an exact exchange in terms of time. This dispute festered on for a considerable period of time. The father concluded by not agreeing to a change of time however he requested that he be able to care for the children in lieu of the mother’s sister on Sunday evenings when she was unable to return to Melbourne on time. No agreement was reached and as far as I can see on the evidence the children continued to be cared for from time to time on Sunday evenings by the mother’s sister, or friends which would appear to be directly contrary to the position being promoted by the mother in the argument about the children’s ski holiday with their father and the time that the younger daughter should spend with her mother. As I understand the position being put by the mother on that occasion it was that she was available to care for the younger daughter it would have been a good time for she and the younger daughter to have together.
As far as I can see from this issue there probably is no doubt that the children would enjoy occasionally the opportunity to spend some time with their Aunt A. However, given that the father was available to care for the children on Sunday nights when the mother was not, because she chose to remain in Melbourne an additional night, it is hard to fathom the logic of why it was in the children’s best interests that their aunt should be caring for them rather than their father.
In paragraphs 209 through to 215 the mother sets out matters relating to the relationship between her husband, Mr M, and the father, and between her husband and the children. On 29 May 2005 the father first met the mother’s partner. The mother in her affidavit does not refer to any action on her part to introduce the two men. She says that at a changeover on that day the father brought the children to her house at G. She says, “In doing so he met [her partner] as he was also at the [G] home.” What the mother does not say is that she played no active part in introducing the two. The father’s affidavit gives details of the meeting and he was not challenged about his evidence on this point. On the father’s evidence he was somewhat surprised by [the mother’s partner] approaching him and introducing himself. The father sets out the interaction between the two men on that occasion which was less than cordial. In my opinion a reasonable and objective view of the circumstances at that time would have led the mother to conclude that the meeting between the mother’s partner and the father in the circumstances in which it took place was likely to be less than cordial. The children were present on that occasion and indeed the mother’s affidavit recites the fact that the son reported to her that, “Dad and [the mother’s partner] talking outside”.
In an email to the mother on 30 May 2005 the father set out, in my opinion, a perfectly appropriate email about the meeting between the two men. In her response to his email which she sent on 31 May 2005 the mother has interlined her own comments and replies. In the second paragraph she says this:
“I felt that it was appropriate for [the mother’s husband] to introduce himself in an adult manner considering the circumstances.”
By including those words it is clear that the mother orchestrated the meeting between the father and [her partner]. In arranging that meeting in a way which did not see her introduce him to the father in the absence of the children she has, in my opinion, demonstrated very poor insight. It should have been reasonably anticipated by her, given the emotions which had been expressed to her by the father to that point of time, that he would be most unhappy about meeting the mother’s partner in those circumstances. She should reasonably have predicted that there may have been strong words pass between the two men and that to allow the children to be proximate to such an interchange would have been damaging to them.
The father had asked the mother to not have the mother’s partner turn up to watch the children’s games on the weekends when they were with the father and the mother was not accompanying her partner to watch those games. The mother’s reply to that request was, “that is your opinion not mine.”
In the last paragraph of the email from the father he said this:
“[Mother], my focus remains to do what I think is best for the kids. The less we have to do with each other the better but this is overridden by anything that involves the kids. In this regard it would be better if our joint interaction with the kids be it sport or school events be done without partners at this time. Again, in time I would expect that this will change.”
The mother’s response was:
“[Father], my focus has always been on the kids since they were born. I feel very strongly about this and I most certainly do not agree. It is very important that the kids feel comfortable around all people involved in their lives and there should not be any discrimination in this area. Kids do not need to know about conflict between their parents.”
Again this seems to me to be a resolve by the mother to have her partner involved in every aspect of the children’s lives including aspects that did not directly involve her, such as his attending sporting functions of the children which the mother herself did not attend. It seems to me that this was a determination that was driven by her own desires and her own needs rather than the needs of the children. It is hard to see how it benefits the children to have her partner attend at sporting functions where the mother was not attending and where the children were in the care of the father on that particular occasion knowing that at that time his attendance was likely to be disturbing to the father and consequently impact on the way in which he could at that time and would at that time be interacting with the children. In my view this demonstrated a lack of insight which the mother had as to the impact on her children of her insistence that her partner be involved in the children’s lives to that level.
In paragraphs 229 through to paragraph 296 the mother sets out in her affidavit details of her marriage to her partner and proposals to relocate to reside in E, Victoria. The mother’s affidavit was sworn on 5 October 2006 and by the end of 2006 her proposal to reside in E had changed because her partner’s circumstances had changed. The mother and her partner met in October 2004 at a self-development course in Victoria. This was the course that each of the mother and father attended individually on the recommendation of their therapist who they were working with in Sydney in respect of their marital relationship. At the time of the swearing of the affidavit the mother’s partner had three children who were J age 9, S age 7 and M age 5. Those children were living at E near Melbourne in Victoria where each of the mother’s partner and his former wife resided.
In paragraph 249 the mother recites a conversation between herself and her partner. The conversation is built on the presumption that the mother could relocate the children to E at her will. In June 2006 the mother and her partner found a house at E which they decided to purchase. They acquired the property. The property had a delayed settlement until December 2006.
During the school holidays in July and September 2006 the mother took the children to stay at E in the new home. She said she observed the children had a fantastic time at that home. She said that she had observed the children have adjusted to the routine in the home at E and that she and her partner had resolved to enforce the same house rules for their children. The mother said that when the children have been staying with her in her G house they have complained of being bored. She said that there was no complaint of being bored while the children stayed with her in E.
In July 2006 the mother’s partner proposed marriage to the mother. In paragraphs 264 through to 269 the mother sets out her conversations with the children in respect of her re-marriage. The elder daughter’s immediate response to the news was, “does this mean we will move to Melbourne?” The mother said she replied, “I’m not sure yet but things will change probably not until next year.” The elder daughter then asked, “What about Dad?” The mother says that the elder daughter responded to the initial announcement with excitement.
When the mother told the son of her news about marrying her partner he asked the same question as his sister, “Are we moving to Melbourne?” The mother told him, “I don’t know yet. Dad and I have to work that out.” The son replied, “I don’t want to go.” In that conversation the mother told the son, “Your opinion matters to me [son], and it is really important that you keep talking to me so that I know what is going on in your head.” The mother recites further conversations with the son about the possible move to Melbourne. The mother has discussed with the children schools which the children could possibly attend close to E.
The mother reports that the younger daughter was excited about the move to Victoria.
As part of her proposal to move the children to E the mother investigated schools. She said in paragraph 273 the children have secured places at four schools. When the father ascertained that the mother was speaking to the children about schooling and was enrolling them in schools he protested.
The mother complained that she and the father have not been able to agree to attend mediation to discuss options for the children’s time with each parent should the mother relocate to Victoria. In paragraph 276 of her affidavit she points out that her lawyer proposed mediation to explore these avenues. A copy of the letter sent by her lawyer to the father’s lawyer dated 15 August 2006 was annexed.
In paragraph 277 the mother says as follows:
“Under cover of letter dated the 4^th September 2006 [the father’s] lawyer advised that a mediation based on my proposal was unacceptable to [the father]. Exhibited and marked DLS50 is a copy of the correspondence from [the father’s] lawyers dated 4 September 2006.”
An examination of Exhibit DLS49 to the mother’s affidavit shows the following paragraph as the second paragraph in the letter:
“Our client would like to attend mediation provided that the focus of the mediation is to address issues of the husband’s time with the children in the event that our client relocates to Melbourne with the children.”
In Exhibit DLS50 the second paragraph of the letter from the father’s solicitor to the mother’s solicitor is as follows:
“Your client’s proposal to limit the terms upon which a mediation should occur is not appropriate.”
In my opinion it was perfectly appropriate for the father to reject the mother’s conditional offer of mediation. There seems to have been no other attempt, which is referred to in the affidavit material, to mediate these issues.
The mother in her affidavit says that if she moves to Melbourne she will be able to be available full-time to care for the children.
In paragraph 295 the mother says that she has found the past two years of splitting her life between New South Wales and Victoria as difficult and stressful. She said, “I am happiest when I am with my children, [my partner] and his children at the [E] home.” In paragraph 296 she said, “When I am with [my partner] I feel emotionally secure and relaxed”.
In her second affidavit filed on 26 March 2007 the mother annexed a copy of orders entered into between her partner and his former wife in respect of their children on 21 December 2006. These orders provided for the mother’s partner’s three children to attend O Primary School from the commencement of the 2007 school year until such time as they complete their primary schooling. The orders envisaged that the mother’s partner would relocate his residence within reasonable proximity of O Primary School. The orders noted as follows, “The husband has no intention of seeking a relocation to Sydney with the children.” Also annexed to those orders were earlier orders made 14 February 2006. Those orders provided for the children to live with the mother’s partner from Tuesday after school until Wednesday after school in one week and from Friday after school until Monday after school in the following week. The children were to spend some school holiday periods with the mother’s partner as well.
The effect of the orders entered into by the mother’s partner on 21 December 2006 was to cause the mother in these proceedings to change her proposal from one where she was living at E to one where she will be living in T, a suburb of Melbourne. A consequence of this move is that the children have been told in considerable detail of the proposal to live at E, have been taken to see schools, have been informed of enrolments being sought for schools for them to attend and otherwise psychologically prepared by the mother for a life in E. The children now have been told by their mother that the E proposal is not to proceed and that they will now live with her in T and will attend O Primary School. The T property has been rented and the mother and her partner have rented out the E property. It appears from her oral evidence that it is anticipated the E property may be difficult to sell. It is reasonable to predict that the mother and her partner will probably sell the E property and look to buy a property in Melbourne in reasonably close proximity to where the mother’s partner’s children live with their mother.
In March of 2007 the mother left her property at G which had been rented and moved into her mother’s apartment at P. This is a three-bedroom accommodation and has been accommodating the children and the mother since that time. The rent on the P property from the mother’s mother is considerably less than that which the mother was paying for the G property. In lieu of rent for a period of eleven weeks the mother spent some $5,500 in renovations to the kitchen of the unit.
The mother in this affidavit also set out that she had been attending upon a clinical psychologist, Ms R. The mother said that following spending six weeks with her husband in Melbourne over the Christmas school holiday period and then returning to Sydney in January 2007 she became very distressed. She said that when in Melbourne she felt close and secure in her relationship with her husband and the children were happy. The mother says that she regards living in Sydney as living in a hostile environment. She said she felt uncomfortable in Sydney, uncomfortable in the schools that the children attend and at the local shops and even where she works in R. No explanation for the uncomfortable feeling in those environments was provided by the mother but I interpret, I think fairly, that it is reactive to the poor relationship she enjoys with the father in these proceedings.
In paragraph 37 the mother says that by the time her initial appointment with Ms R in February 2007 came about she felt overwhelmed by her current family situation. She felt at the brink of an emotional breakdown:
“The enormity of the long term implications of not being able to live with [my partner] has completely overwhelmed me as well as the day to day separation and isolation I am feeling in having to live away from my husband. I am now starting each day with a feeling of dread.”
The mother then describes how well she was whilst living in Melbourne with her husband and how unwell she feels living in Sydney. In paragraph 39 she said:
“I also feel that the children will not be allowed to move with me. It frightens me that the children may believe that my role as their mother is dismissed if they are not permitted to move with me or that a nanny can replace me.”
In paragraph 41 the mother says that the younger daughter said to her in November 2006 in the presence of the son and younger daughter:
‘“Are you definitely going to Melbourne?” I replied words to the effect, “Yes, but don’t worry your Dad and I are going to sort this out and you will still see both your parents a lot you’ll just see Dad in bigger chunks.” [The elder daughter] then said words to the effect, “Dad says that he’s not going to let us go to Melbourne and if we stay he’ll buy us a boat and a home entertainment centre but not if we go with you.”’
In paragraph 43 the mother says:
“It is of grave concern to me how our marriage can last a long distance over a long term period of time. I feel very alone and in not having [my partner], my chosen lifelong companion to enjoy our family life together whilst living in the same home.”
In her oral evidence the mother confirmed that she had told the children she was proposing to live in Melbourne full-time before the interviews took place for the Family Report.
The mother relied on an affidavit from her husband. Annexed to that affidavit were photographs of the house at E. In his evidence the mother’s partner identified a photograph of the son sitting at a computer. It is interesting to note that in paragraph 261 of the mother’s first affidavit she says:
“[The son] also spends a lot of time in front of the computer at the [G] house as there is no backyard for him to play.”
This paragraph formed part of a series of paragraphs designed to show that the E property was most desirable for the children because it had a great deal of outside space and activities for them to engage in as opposed to the G house which was occupied by the mother which did not have outside activities and therefore the son spent a lot of time in front of the computer. The affidavit of the mother’s husband is largely corroborative of the affidavit evidence of the mother. The thrust of the affidavit is to establish that the children from each of the parties’ family and the mother’s partner’s family have developed a good and close relationship. In paragraph 39 the mother’s partner says that he has tried to establish a civil relationship with the father in these proceedings. He then recites his version of the conversation that took place on or about 29 May 2005.

In paragraph 40 of his affidavit the mother’s partner refers to a further incident which he said occurred in June 2006. He explains that the son and elder daughter had a clash in their Saturday sporting schedules and the mother had suggested to the father that he could take one of the children to their games if the father called the mother by 8.00 pm on Friday night. The father had not called and on Saturday morning the mother said to me words to the effect, “I’ll take [the elder daughter] to soccer and you take [the son] and [younger daughter] to his rugby game I will then join you at rugby after [the elder daughter’s] soccer game.” The affidavit then recites that after the mother had left with the elder daughter, the father rang the mother’s phone number and said, “Can I take [the son] to rugby?” I said to the father words to the effect, “Arrangements have been organised as you did not get back to [the mother] last night.” In this trip apparently the mother’s partner had failed to ensure that the son had his rugby gear and approximately thirty minutes into the trip he ascertained that the son was not properly equipped. The mother’s partner stopped at a chemist to get a new mouthguard for the son and advised the son that he could borrow some shoes from one of the other boys who had just finished a game. On route to the field the mother’s partner said that the father had rung him three times to ask, “Where are you?”
In paragraph 41, although not confessing outright to this fact it is apparent that the mother’s partner arrived late with the son to start his match. The son’s father approached the mother’s partner and said, “How could you do this to my son?” The mother’s partner replied, “[…], it’s okay, [the son] hasn’t missed the game and he can still play. [The son] just made a mistake he forgot his bag.”
The material set out in paragraph 40 and 41 of the affidavit of the mother’s partner raised concerns for me. In the first place there does not appear to be any reason why the son could not have been taken to the rugby match by his father even though he had not returned the mother’s call by the 8.00 pm deadline which the mother had set. In my opinion it was highhanded and insensitive on the part of the mother’s partner to have taken the stand he did and it does not augur well for the children in the future if their care is to be shared by their mother with her partner and he continues to apply his supervision of them in the manner illustrated in the paragraphs in his affidavit above referred to.
In paragraph 42 the mother’s partner asserts that his relationship with the father is largely civil and courteous. He refers to a telephone conversation he had with the father in respect of dropping the children off early for a holiday. He then said that he and his mother had previously discussed and agreed that he should speak to the father and arrange the children’s plans if it is in the children’s interests to vary the orders that are in place for their time with each parent.
Towards the end of his affidavit which was sworn in October 2006 the mother’s partner describes the residence at E. As I have referred to earlier this proposal has now changed.
Ms R, Treating Clinical Psychologist, signed an affidavit which annexed a report in relation to the mother prepared by Ms R. The report was dated 27 March 2007. The report highlights that the mother has consulted with Ms R on 19 February 2007, 1 March 2007, 13 March 2007, 19 and 26 March 2007. Her oral evidence was that there has been a recent consultation with the mother. In her report Ms R says as follows:
“In every session [the mother] has presented as a warm, honest, open and flexible adult who thinks in a rational and logical way. She has shown a willingness to explore all options and has evidenced a capacity to validate everybody’s needs.”
She also said:
“At no time did I find [the mother] to be malicious or vengeful towards her ex-husband. On the contrary I found her to be exceptionally understanding of his rights and feelings as the father of her children. She is also cognisant of the relationship her children have with extended family in Sydney and finds herself in the untenable situation of trying to please everyone.”
Ms R said that of the symptoms seen in the mother as follows:
“[The mother] was extremely agitated when I first saw her. She cried easily and copiously and expressed feelings of disempowerment and of being trapped. I believe that she is suffering from a mild form of agitated depression. This depression could be attributed to the stressful situation [the mother] finds herself in.”
Towards the end of the report under Clinical Observations, Ms R reports:
“The mental state of a mother affects the mental state of her children. A distressed mum creates feelings of distress in her offspring. Right now [the mother] is struggling to maintain her sense of balance and to be the calm and happy mother she wants to be.”
In her oral evidence Ms R told the Court that she has practiced as a therapist and has not been involved in any diagnostic practice for about ten years. She does not have the capacity to prescribe medication. She said that in relation to the prescription of medication that she works closely with her client’s GP. She was unable to say who the mother’s GP was. Ms R said that although the mother was considerably agitated when first seen there has been a quick turnaround and she does not present as agitated in the later sessions. Ms R in her oral evidence differentiated between agitated depression and mild depression and said that the mother was still quite energised when she saw Ms R.
Ms R said that when the mother first saw her she was feeling trapped. In the last few sessions she had become empowered and will move to Melbourne with or without the children. She proposes to fight as hard as she can for the children.
At the conclusion of the cross-examination and re-examination of Ms R, I asked her about her statement that the mother had not been malicious or vengeful in her attitude towards her ex-husband. I asked her if the mother had told her she detested the father would she still have reached the conclusion that the mother had not been malicious or vengeful. Her answer confirmed that she would not have included those words in the report.

The Mother’s Cross-examination

The mother was required for cross-examination. Matters of particular note in her evidence include the following.
In cross-examination it was put to the mother that she did not tell the Family Consultant that she was “going to live in Melbourne come hell or high water.” Her reply was, “No, but I did say I was definitely moving.” She said that she had made the decision to move to Melbourne with or without the children in about October 2006 before the Family Report interviews. She claimed that she had told the children of this and she said to them:
“I am going to live in Melbourne and Dad and I will work something out to make sure I see a lot of you. I want you to live with me.”
She claimed that conversation took place before the children saw the Family Consultant.
The mother was questioned about her applications to the L School for the children’s enrolment. She was asked why she had left the father’s name off the application form and she replied, “I didn’t think he was part of it.” She was asked why she had not told the father about the enrolments until September 2006 and she replied, “I didn’t know whether he needed to know.” She said that if the children lived in Victoria with her she felt that the father should know about the children’s school enrolments.
The mother was asked about the move from E to Melbourne. She was asked whether the E property had been sold. She replied no, that it had been rented and it was not on the market. She said that she and her husband do not propose to move back to E. She conceded that her children and her husband’s children have never lived in the T house together. She conceded that the most time the children have spent living together has been for a period a little in excess of two weeks. She said that if the children remain in Sydney it is unlikely that she would live in Sydney on weekends. She has not spoken to her mother about a long term arrangement where she would spend four days a week once a fortnight in Sydney with the children and using her mother’s apartment. She said that she would try to make the arrangement work but she thought it would be very hard to do so. She said:
“I am so tired, the travelling, trying to juggle time and houses, just the whole situation, it is just unviable on the long term basis.”
In her cross-examination that continued on 1 May 2007 the mother was asked whether she prioritised her husband over her children in her life. She said no, she can’t do that, they get equal priority. She said that if the orders were made for the children to remain in Sydney in their father’s care she will come to Sydney as often as she can. She knows that her children need her.
The mother was shown copies of enrolment forms for schools in Victoria. She agreed that on the enrolment form her partner had been noted as the children’s guardian. She acknowledged that she had not put anything in the enrolment form about the father. She said that she had spoken to the school and advised them there was a father and that she would need a court order for the enrolments to go ahead.
The mother was asked whether she had asked her husband could he live in Sydney and she said yes. She recalled that she asked him in late 2005 when she concluded it was going to be too difficult to live in two different States. As best she could remember she said the last time they had discussed the possibility of her partner moving to Sydney was when the decision needed to be made for them to move to Melbourne from E. She agreed that this was before the Family Report interviews.
The mother was cross-examined about paragraph 17 of the Family Report. In that paragraph the following sentence appears in relation to the mother’s proposal to move to Melbourne:
“Both [the mother] and [her partner] believe that with continued reassurance of this kind the children could cope and “be fine” with not having their father involved in their daily lives.”
It was put to the mother that the reverse of that arrangement she would see as not being fine for either herself or the children. She replied:
“I would come to Sydney and maintain a residence if that is what is necessary. If [the father] had a residence in Melbourne he could do the same.”
In relation to her attendance upon Ms R and her health generally the mother was taken to paragraph 77 of her first affidavit. She was taken to a particular part of that paragraph which was in these terms, “In November 2004 I was struggling to get through days.” She was asked whether that is how she feels now. Her answer was, “I am better now but just going through a period.”
The mother was asked whether her husband has told her he would not move from where his children live. She replied, no, “It would be irresponsible for [my partner] to move from his work.”
The mother acknowledged that the longest period she and her husband have been in the same house together is eight weeks.
In relation to questions about the subject children and the mother’s partner’s children living together the mother conceded that her partners son, S, suffers from a mild form of ADHD.
The mother conceded that in June 2006 she did not think it was best for her children to live in T. It was put to her that if it was not for her partner’s children she would not have proposed a move to T for her children. She agreed with that proposition.
The mother agrees that she grew up in the eastern suburbs of Sydney; that she has one sister living in Canberra; her mother living in Z although having an apartment in Sydney; she has four sisters, a father and a step-mother all living in the eastern suburbs of Sydney. She also agreed that she had no family living in Melbourne apart from her husband.
The mother was asked what rugby union facilities would be available for the son to participate in if he lived in Melbourne. Her answers indicated that she had carried out very little investigation of that. She said that the elder daughter could play soccer and she nominated the R club however she did not know whether they allowed mixed competition. She conceded that she had made no enquiries about the possibility of the elder daughter playing soccer in Melbourne.
The mother was taken to paragraph 142 of her affidavit where she made a complaint that the father had not returned the children to her sister, A, on a Sunday evening when the mother had stayed in Melbourne. It as put to the mother that she did not tell the father she was proposing to stay in Melbourne on that occasion or that she was in Melbourne. She replied, “I had no intention of telling him where I was.” It was put to the mother that she detested the father and she replied, “No, I am not going to tell him.” It was put to her that she had said to him that, “The children will end up detesting you the way I do” and she replied that she had said that. It was put to her that is what she believes and she replied, “I do if he keeps treating me the way he is.” She agreed that the longest period of time the children have had away from their father was two weeks. The mother said that on the occasion that the son struck her in April 2006 it was the father who caused it. This was the occasion when there was an argument about whether the son should play rugby with the W team. She conceded that the son had hit her again in 2005. She agreed that she had taken the son to see Dr S before he was ten. She also agreed that she was concerned at that time that the son was angry and irrational.
The mother was asked, “Do you think it will be difficult for [the son] to be away from school, playing rugby and friends?” She replied, “I think he would be relieved.” The mother was asked by me if the son was to indicate and/or say after a period of six months of living in Melbourne with her that he was miserable and wanted to return to Sydney what would she do? She replied:
“I would talk to him but six months is not enough. If he was really wanting to return I would consider sending him back.”
There are two things about this paragraph which require comment from me. Firstly I do not accept that the son would be “relieved” to be away from Sydney. This statement is directly in conflict with the assessment of the Family Consultant in relation to the son’s views. It would also be contrary to an assessment by the Family Consultant of the son’s relationships with his parents. I interpret that report as support for the position that if the son was required to make a choice between his parents he would choose to live with his father.
For reasons which appear later in these reasons I do not accept that the mother would return the son to live with his father in Sydney if the son was unhappy in Melbourne and requesting to live with his father. When the mother gave that evidence I did not accept that she was genuine in her answer. Given everything else that she had said in her evidence, both in affidavit form and orally, I do not accept that the mother would bow to a request by the son to be returned to Sydney to live with his father. I conclude that the mother has so much emotional investment in the proposal for she and her children to live with her husband in Melbourne in a happy, harmonious family environment that she could not and would not accept anything less from them. I fear that she would convince herself that although the son might say he was miserable that really he was not.
The mother agreed that the elder daughter was well settled at the X school.
The mother asserted that the children receive mixed messages from their father. When asked what that meant she said that the son seems to be more important because of his sporting associations.
The mother agreed that her husband enrolled the children in Victorian Nippers and in so doing nominated himself as the guardian of the children. The mother was asked whether she had discussed this with the father to which she replied, “It was a holiday plan. I don’t have to discuss that with him.”
The mother was asked about telephone communication between the children and their father and her view that it was harassing. She said that the current rate of phone calls once every two days is not harassing for her.
The mother was asked about the children’s ability to cope with further changes as proposed by her. She said, “I think my children adapt well to change, that is what they have had deal with. They are what they are today because of the changes they have had to deal with.”

The Father’s Evidence

The father’s affidavit was filed on 6 October 2006. The matters of particular note in that affidavit are set out hereafter.
In January 2006 as a result of disputes between the parties as to whether the children should commence private schooling the father filed an application in the Court. On 31 January 2006 Judicial Registrar Johnston made orders that the son commence at S College on 1 February 2006, the elder daughter commence at X school on the same day and that the younger daughter commence at X school in February 2007. Little of this dispute is set out in the evidence and so the background appears to be only that the father wanted the children to commence their private schooling and the mother opposed that.
Having set out some background facts and great detail of the day to day care which the father exercises with the children the father in paragraph 41 set out details of occasions where the parties have been able to agree to some variations of the orders made in July 2005.
In paragraph 43 the father sets out eight occasions when he has returned the children to the mother on Sunday evening and she has not been at home. These would appear to be the occasions which the mother refers to in her affidavit when she remained in Melbourne and arranged for her sister to care for the children on Sunday night. The father says in paragraph 44 that he has made a number of requests of the mother to allow the children to stay with him on Sunday evening rather than being cared for by other people as the mother has not returned to Sydney. He says those requests have been denied.
In paragraph 47 the father says that in March 2005 the mother informed him that the son had been hitting her. He then spoke to the son at length.
The father says that in August 2005 the son attended at Dr S. A copy of the report from Dr S is annexure “B” to the father’s affidavit. The report detailed different reports from each of the mother and father. The mother raised concerns about the son’s behaviour including anger outbursts and irrationality. She told Dr S that the son had been hitting out against her. The father reported that he does not have the same behaviour from the son in his household. The mother said that the son was occasionally resistant to going to school. In summary the Doctor says as follows:
“[The son] is a boy of good intellectual ability with well developed basic skills. He does not have attention deficit / hyperactivity disorder. He does seem to have episodic angry outbursts when with his mother and [his mother] might benefit from advice about ways of managing this. I have recommended a psychologist who could provide this advice.”
In paragraph 49 of the father’s affidavit he refers to an incident which occurred in April 2006. It is not clear whether the son was present and observed or heard the altercation between the parents. It is consistent with my observation of each of the parents in the witness box that in such circumstances the father would have the capacity to remain composed and contained and that the mother could easily become angry and blaming in her criticism of the father.
The father and the son have a joint interest in rugby. The father has been involved in rugby with the son for some considerable time and in 2005 he was the coach for the son’s Under 10s W team. In that year they made the finals. In 2006 whilst not being the coach he was actively involved in the EW Junior Rugby Union Club and the son’s team. He has also been the Age Manager for the son’s Nippers for three years and in those years the son received championship awards for both beach and water disciplines. Similarly the father has attended the elder daughter’s soccer games throughout the season. He has been involved in coaching activities under the direction of the main coach. He took the elder daughter to and attended every coaching session. He is the Age Manager for the elder daughter’s Nippers age group in this 2006 / 2007 season. In paragraphs 56 through to 60 inclusive the father sets out conversations he has had with the elder daughter particularly in relation to the possible move to Melbourne. Likewise in paragraph 63 through to 69 the father has set out conversations with the children about moving to Melbourne. He says that the older two children have clearly said they do not want to move to Melbourne. In paragraph 66 the father sets out a conversation he had with the elder daughter where he said to her, “I promise you I’m doing everything I can to keep you in Sydney.”

The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child’s best interests.

Each of the parties counsel addressed in submissions the advantages and disadvantages of the proposals of each party. The parties proposals are contained in their minutes of order which have been referred to earlier in these reasons.
The father’s counsel identified the advantages and disadvantages of the mother’s proposals as being:
Advantages of Mother’s Proposals
(a) The mother would be happy with the arrangement.
(b) The children will spend more time in their mother’s care.
Disadvantages of Mother’s Proposal
(a)The move to Melbourne would appear to be contrary to the children’s wishes to live in Sydney.
(b)The children would be unable to maintain the existing balance of time the children spend with each parent.
(c)The children will have to change schools in circumstances where they are currently well settled and achieving satisfactorily.
(d)The children will have to build a new network of friends.
(e)The children will need to join new sporting associations.
(f)The children will spend less time with their father than they do now and importantly less time across all the different aspects of their lives.
(g)The move may adversely impact upon the relationship between the children and their father, and the children and their extended family who live in Sydney.
(h)The children will have to adjust to living in a home which includes the mother’s partner and his children. The children have only had limited opportunity to trial those arrangement.
The father’s counsel identified the advantages of the father’s proposal:
Advantages of the Father’s Proposal
(a)All of the advantages of the current arrangement if the mother elects to continue to care for the children in Sydney during school term on the basis of every second week with her.
The father’s counsel did not identify the disadvantages of the proposal however they were really dependant upon the mother’s ability to care for the children in Sydney during school term. The disadvantages of the mother’s proposals were reasonably identified by the mother’s counsel in his submissions.
The mother’s counsel identified the advantages of the mother’s proposals as follows:
(a)The children will be cared for by the mother the person who until the separation (and the mother contends after separation as well) carried out the majority of the day to day care of the children.
(b)The mother will be available full time to care for the children.
The mother’s counsel identified the advantages of the children remaining in Sydney as:
(a)No change of schools, housing, friends or sporting activities.
(b)This needs to be considered in the light of the change which the son will make to high school next year albeit within the same school.
(c)The father will spend more time with their father.
The disadvantages identified by the mother’s counsel include:
(a)The father is untested in the extended role of caring for the children. This is a reference to the fact that there will be more days during school terms that the father will be required to care for the children.
(b)The father has inappropriately left the two girls alone in the house whilst not being physically supervised by the cleaners/babysitters.
(c)The children may not cope well with having their mother less actively involved in their daily care. In this regard the father was able to identify that the elder daughter is likely to be the most vulnerable.
Considering those submissions I find the advantages and disadvantages of the father’s proposal to be as follows:

Advantages of the Father’s Proposal
(a)The father will be pleased he has not lost the children from his daily life.
(b)The children will remain living in Sydney a matter about which the two older children have expressed a desire.
(c)At least half of the children’s care will be provided by the father.
(d)There is a strong prospect that the children will have the mother involved in their care on an almost equal shared time basis at least in the short term.
(e)There will be no requirement for the children to face changes of residence, school, sporting activities, friends and extra curricular activities which they currently enjoy.
(f)The children will be able to spend holiday time with their mother in Melbourne in her residence there.
(g)The children will not have to adjust to living in a household which includes the mother’s partner’s three children during their school terms. One of the implications for the children of living in the blended family, which is proposed by the mother, is that the subject children will have to share their mother’s time with their step siblings.
(h)They will live in a household which will be supportive of an ongoing positive relationship with their mother. To this end it is unlikely that the children will feel under any restraint to make contact with their mother by phone should they feel the need to do so. The emotional environment in the father’s house will be more conducive to the ongoing capacity of the children to develop their relationship with their mother, her husband and his family.
(i)I am confident that in such circumstances the children will be able to have a “meaningful relationship” with each parent

The Disadvantages of the Father’s Proposal
(a)The children will spend slightly less time being cared for by their mother in the short term and may spend considerably less time being cared for by the mother in the long term.
(b)The children’s mother will be very distressed by the loss of this case. She may well not support the children emotionally in accepting the orders and getting on with life.
(c)The mother’s emotional health may suffer.
(d)The mother will not be physically close by so that if the children need her at a particular moment she will not be there if she is living in Melbourne.
(e)In the long term the mother may not be as involved in the children’s schooling, sporting and extracurricular activities if she is unable to continue to spend each alternate week in Sydney during school term.
(f)The prospect of damage to the parental relationship between the younger daughter and her mother given the child’s age, stage of development and the possible spaces of time between visits with her mother.

I find the advantages and disadvantages of the mother’s proposals to be as follows:
Advantages of the Mother’s Proposal
(a)The children will have their mother involved in their daily care for at least half of the available time in which they need care.
(b)The mother will be available full time to care for the children as she will not be working.
(c)The mother will be happy and content with the arrangement. This is likely to have a positive impact on her emotional health and may make her attitude towards the father soften a little.
Disadvantages of the Mother’s Proposal
(a)The children will be moved from Sydney to Melbourne to the mother’s house where they will be based during their school term.
(b)The children have had very little practice of living in the same household as their mother, her partner and his children. They have had very little experience of living in the property currently being rented by the mother in T.
(c)At some time in the future there is a high prospect of further change for the children should the mother and her husband purchase a house in Melbourne. That prospect appears more probable than not.
(d)The children will need to change schools, friends, sporting associations, other extracurricular activities.
(e)The children will see much less of their father.
(f)Unlike the situation which will occur in Sydney in the short term at least the father will not be able to spend from Monday afternoon through to Friday morning in Melbourne caring for the children every second week during school term.
(g)They will live in a house with their mother which I have found to be emotionally antipathetic to the father. This could add an additional burden to the task of allowing the younger daughter to maintain her relationship with the father.
(h)The children may feel constrained in being able to exercise their relationship with their father in their mother’s household.
(i)Living in Melbourne is contrary to the children’s wishes and in relation to the son in particular may give rise to further conflict between he and his mother. To this end it is reasonably predictable that the son may be angry with a decision which sees him relocate to Melbourne.
(j)The children would probably miss the interaction which they are able to have in Sydney with their extended family.
(k)The children will not have their father involved to the same extent which he is now in their schooling, sporting and extracurricular activities. To that end it may well impact on the quality of the relationship they have with him now which in part must be based on his consistent interest and involvement in those activities.
(l)The possibility of damage to the relationship between the younger daughter and her father given her age, stage of development and the frequency with which face to face visits might reasonably be able to be facilitated.
(m)The father is likely to be very distressed by the decision for the children to live in Melbourne.

The Court should not be restricted in its orders to those orders sought by the parties. If there are other orders which cater to the best interests of the children then, subject to the rules of procedural fairness, the Court should make such orders. See U and U (2002) FLC ¶93-112 Bolitho v Cohen (2005) FLC ¶93-224.

I am cognisant of this requirement and I will consider what other orders could or should be made in the best interests of the children which may not have been sought by either parent.

Where the undisputed residence parent wishes to move the question to be answered is whether in all the circumstances it is appropriate to restrain him or her from being able to choose the children’s place of residence

In this case I have found that there should be an equal shared time parenting order subject to practicalities. In such circumstances it could not be said that there is an “undisputed residence parent”.
Until the date of separation in 2004 it is common ground between the parties that the mother was the parent most involved in and responsible for the daily care of the children. Following the separation that changed and the father has been involved in the care of the children on an almost equal time basis.
I find that as there is no uncontested residence parent this heading does not require further attention.

Any other reason the Court might have to restrain the resident parent re-locating the children’s physical residence

This heading does not apply as there is no uncontested residence parent at the time of the hearing before me.

Balancing of all considerations under Section 60CC

In my view the matters referred to by me as I dealt with the various sub sections of section 60CC lead to a conclusion that the children’s best interests are more likely to be promoted by the father than by the mother. I will discuss this further later in these reasons.

Conclusion

One of the issues raised by the mother is that she has been the primary care giver of the children to this point in time and consequently whether if that role were to become the father’s by dint of the orders of the Court would the children cope well with such a change? I will deal with this issue, as with the others identified, in these reasons.
Reviewing all of the available evidence I am left with the overall picture of the mother having a naïve attitude to and understanding of the impact on the children and the father of the circumstances surrounding the separation of the parties in October 2004 and the emergence of the mother’s relationship with her partner. I am left with the sense that the mother is emotionally immature in that she has tried her hardest to force the situation where she, her partner, his children and her children would all live in a harmonious and loving relationship in Melbourne and that the father and children would willingly and supportively facilitate her dream. The mother appears to have disregarded or seen as wrong the wishes and views of the children as set out in the Family Report. She has disregarded the recommendation of the Family Consultant. She appears to have now moved to a position where the involvement of the father in the children’s lives is only relevant to the mother where he complies with her plans for the children. The evidence satisfies me that she has reached a point where she will not speak to the father on the phone or face to face unless she instigates it. In her e-mail correspondence with the father she appears to me to adopt an aggressive approach which is evident in many of her e-mails. Whilst mouthing an absolute resolve to not exclude the father from the children’s lives she has been insensitive to his position particularly where she has sought to secure places for the children in Victorian private schools and in so doing made no mention of his existence and instead had her partner noted as a guardian/sponsor of the children.
It is clear to me that the son holds a clear preference to reside in Sydney and not change from his school. He wishes to continue his involvement with his sport in Sydney. He has significant friendships and associations in Sydney which would be substantially disrupted by a move to Melbourne. He also would appear to want to have his mother significantly involved in his care. The same position emerges for the elder daughter. She is happy and progressing well in her school. For her a move to Melbourne means a change of physical residence, school, friends and sporting associations. The younger daughter is really too young to have her wishes realistically assessed. She has however commenced her formal schooling in Sydney this year and a change for her at this time must be seen as having some disruptive impact upon her.
The mother’s reaction to the obvious disruption to the children of a move to Melbourne is that they will adapt. With the benefit of hindsight it is just as well the father did not agree to the mother’s proposals in early 2006. That would have lead to a relocation to E, the children being enrolled in schools in that area then having to be moved to Melbourne and to A Public school when the arrangements for the mother’s partner’s children changed so radically as a result of their mother’s move to Melbourne. I am however cognisant of the fact that had the parties’ children been well settled in schools at E, the mother’s partner may have taken a different position in the proceedings between he and his former wife in relation to her proposed move to Melbourne from E. Regrettably though I must conclude I could not be certain about this. I am left with a sense of concern that in the mother’s view of priorities her partner and his relationship with his children would be prioritised over any disruption to her children’s lives which a move from E to Melbourne could have.
The mother has indicated on occasions that she resents the intrusion of the father telephoning the children. She has described these phone calls in her emails as “harassment” by the father of her. I consider that there is a probability that the mother would restrict the children’s telephone communication with the father and would otherwise not encourage the children to speak to their father frequently, (daily if necessary) because she holds some view that this somehow interferes with the “family atmosphere” she wishes to achieve in Melbourne with her husband. If phone calls between the children and their father were perceived by the mother to somehow disrupt that atmosphere I think she would find it very difficult to give the children the clear message that she supported communication between the children and their father. In my view the mother would prioritise the children’s involvement with “the Melbourne family unit” to that of the promotion of their relationship with their father.
Of particular concern to the Family Consultant was the advancement and support of the younger daughter’s relationship with each of her parents. Given the younger daughter’s age and developmental stage it was clear that she will need help to make sure that her relationship with the absent parent is not damaged. The sensitivity of each parent to this matter will be of the upmost importance in ensuring the younger daughter can maintain and develop her relationship with the absent parent. Given all that has been outlined above and my assessment of the parties having seen them give their oral evidence and read their written evidence I have concerns that the mother could provide the means to adequately support the younger daughter through this difficult and crucial time of her development. I assess the father as being more in tune with this need and able to facilitate this very important relationship for the younger daughter than the mother. I assess him as having the steadiness of personality to be able to in most circumstance put aside the emotional issues between the parties and to put the best interests of the children ahead of his own interests where that is required. I have no confidence that the mother could do that with any regularity.
It is my assessment of the mother that she remains very angry and bitter about perceived actions of the father. I say perceived because she clearly sees herself as the victim in this relationship. That is she sees the father as harassing, manipulative, obstructive, bullying and uncompromising. I do not find that the evidence substantiates those conclusions in the main. There are certainly examples of behaviour of the father which could be described as uncompromising and disrespectful. I refer in particular to the invasion of the mother’s house by the father contrary to her wishes. I refer to the incident described as the lost ski holiday for the children in mid 2006, however, in the majority of examples of communication between the parties I find it is the mother who predominantly fills the tags of manipulative, obstructive, bullying and uncompromising rather than the father. Further I can clearly see the emergence of the father out of the upset and hurt that he obviously felt following the separation to a position where I am satisfied that he is able to see things through the children’s eyes and predominantly suggest courses of action which best suit their needs. There are exceptions to this and that is why I use the term predominantly. I do not find the mother has this ability. It seems to me that she has become more involved in the dispute between the parents since the separation and I find that predominantly she does not exhibit the ability to see how proposals of and actions by the parents impact on the children. I find she cannot identify with the children’s plight in the parental conflict and she is therefore unable to provide relief for them from the consequences of that conflict. I could not be confident that she has the ability to predominantly make decisions for the children which are based on their needs rather than her own.
I hold a concern that the mother will not allow the children to recover from this case. I think there is a significant prospect that she will through her actions and words seek to undermine the orders of the court and manipulate the children to ask their father to change their residence to the mother in Melbourne. It is my opinion that the mother will need a considerable amount of help from a therapeutic psychologist or therapeutic family psychiatrist to change from her current state. She is angry with the father for opposing her moving the children to Melbourne. She appears to have convinced herself that she is the victim in this family rather than the children and I think there is a significant prospect she will be vengeful against the father. If that be correct I conclude there must be a real chance she would blindly use the children as instruments in that vengeance all the time denying that she was.

This case to a significant extent turns on my assessment of the parent who is most likely to promote the relationship with the absent parent should it eventuate that the parents can’t each participate significantly in the children’s lives during school term. I have determined that the parent I would most trust with that task in this case is the father.
The Family Consultant pointed out in her report at paragraph 52 that the older two children have had to deal with a significant number of major changes in their lives over the last 5 years. The further changes which would be occasioned by the mother’s proposal are a change of residence to Melbourne, living with greater regularity with the mother’s partner’s children, a new school, seeing less of their father during school term, having to make new friends and joining new sporting associations and teams. In the father’s proposal the only significant change for the children will occur if and when the mother determines she can no longer attend to care for the children during school term as she does now.
The evidence of the father, particularly his oral evidence, impressed me as illustrating a greater insight to the needs of the children than the mother. He shows all the signs of having emotionally dealt with the breakdown of his marriage whilst acknowledging that it was difficult for him. He shows no sign of being vengeful or vindictive towards the mother or her partner. He does seem genuinely driven by a reasonably objective view of what is in the best interests of the children. He does appear to have the capacity to look at the children’s position in this dispute in an objective way and appreciate for them the nature and extent of their relationship with their mother and the likely impact on them of not having her to participate in their lives in the same way that she does now. He illustrates an understanding of the mother’s predicament and shows empathy for the mother. Although given a number of opportunities to be critical of the mother and show some antipathy towards her the father did not do so.
What flows from the above directly impacts of the children’s ability to maintain a meaningful relationship with the parent who will be less actively involved in the children’s daily care. In the younger daughter’s case, given her developmental stage, if she is to maintain her relationship with the less actively involved parent she will need frequent, positive reminders of that parent. Looking at each of the parents I conclude it is the father who will be best equipped to provide that positive image of the mother for the younger daughter. I am not confident that the mother would be able to convince the children that she does hold a positive view of the father. She clearly dislikes and probably detests the father. Given the close relationship the children have with her I think it probable they would know her views.
I find that the father’s proposals for the children’s future care are most likely of the parents competing proposals to best promote the children’s future emotional well being and their relationships with each of their parents. To that end it will ensure the children maintain a meaningful relationship with each parent.
At the conclusions of the submissions in this matter I said to the parties that the reasons for judgement which I will have to deliver in this case are likely to bring hurt and disappointment to at least one of the parties. I said that it is the nature of these types of cases that one of the parties will be bitterly disappointed.
I have been required to make a clear choice for the children because their parents were incapable of doing that for them. The reasons need to be clear and decisive. I have had to focus on differences in personalities and parenting styles of the parents. That has meant that I have had to draw contrasts between what each parent has to offer the children. I have had to make findings which I am sure will be hurtful to the mother and about which she will be resentful and no doubt, see most of the findings as unfair. These findings are necessary but also destructive in that they exacerbate parental conflict rather than resolve it. If parental conflict is exacerbated then that is very much contrary to the best interests of the children. The parents chose the adversarial path for the determination of this case. They could have chosen the less adversarial path. When the parents chose the adversarial path they unwittingly (I hope) condemned their children to the consequence of the negative impact of those proceedings on the parental relationship. I predict that the parental relationship in this case will take a long time to heal if it ever does. I suspect the mother will not easily accept the decision of the Court. I think it is possible that she will consciously or otherwise portray herself as the victim in this marital struggle to the children. If so the children will be likely to be hurt further. There must be a significant chance that they will come to blame themselves for their mother’s grief. The older two know that they made it clear to the Family Consultant they wanted to live in Sydney and they must have seen that as a vote for their father in this contest. The potential psychological scarring for these children of an ongoing dispute between their parents rather than an accepting of the situation and an attempt to move forward in a positive mood must be significant. I would recommend for the children’s sake that the mother seeks urgent supporting therapy to help her deal with this loss.
Before closing these reasons I wish to comment on the manner of the cross-examination by the mother’s counsel of the father and his witnesses in this case. Mr Schonell is a senior practitioner in the court and his cross-examination was one of the best I have seen for a long time for a variety of reasons. It was relevant, sensitive, productive and helpful. His professionalism was outstanding and deserves commending.

The Orders

The orders of the court cannot reflect an equal shared time parenting arrangement for the children which I determine to be in their best interests for practical reasons. The mother will be residing in Melbourne. She will provide her children with as much of her time as she can reasonably manage. In the short term she has committed to living in Sydney every second week for four nights in order to participate in their care during school term time. Realistically all I can do is order that the children live with her in Sydney during that time or for an extension to seven nights from Monday evening to the following Monday morning each alternate week if she is able to facilitate that.
As stated earlier there should be an order for equal shared parental responsibility for the children.
The children should spend additional time with their mother during school holidays. The proposal for the children to spend the bulk of the holidays at the end of terms 1 and 3 in each school year together with some of the Winter and summer holidays with their mother seems appropriate. This will enable them to catch up on lost time with their mother during school term.
The father should have eight days with the children during the mid year school holidays. This will enable a skiing holiday with him if that can be organised. It would permit the mother likewise to spend a skiing holiday with the children if she so chose.
There should be an equitable sharing of Christmas Day and birthdays.
There should be liberal telephone and e-mail communication between the children and the absent parent wherever the children are living at the time.
Orders should be made compelling the provision of information between the parents in relation to a number of aspects of the children’s lives.
Each parent should have free and unfettered right to attend any of the children’s activities and this should be encouraged and facilitate by each parent. Orders should be made to this effect.
There has been considerable conflict between the parents about the children’s extracurricular activities. The conflict has largely been about the son’s participation in Rugby. The mother holds the view that the son plays too much Rugby. In order to avoid further conflict the parties should agree in writing about the extra curricular activities the children should engage in during school term. I should say here that if the mother is not going to be able to spend a reasonable amount of time with the children on weekends during school term then she should not be unduly prescriptive as to the extracurricular activities the children engage in on weekends in Sydney and the father should have a reasonable say in those matters.
As referred to earlier I propose to make an order restraining the father from leaving the children unsupervised by an adult. Such supervision is to be physical to the extent that the supervisor must be in the same house as the children at the time of the supervision. This order should operate at least until each child has attained the age of 13 years. He should consult with the mother on this matter.
A matter which has caused conflict between the parties is the mother requiring her sister and others to supervise and care for the children during school term and on her Sunday evening when she remained in Melbourne. This should not occur in the future. If the mother is not available to be in Sydney with the children during school term then they should be in his care.
In the event of the mother not being available to exercise her time with the children during school term she should provide as much notice of same to the father as she reasonably can and then the children should be cared for by the father.
Each parent should be able to organise the children’s time during that parent’s time in school holidays. Consequently if a parent arranges for a child or the children to spend time with a relative or friend that should not be capable of being interfered with by the other parent. Accordingly there will be an order to this effect.
In the event of the father having to absent himself from Sydney during school term for any reason during the time he is to have the children in his care then he is to offer the mother the opportunity to care for the children in Sydney during that time before he makes other arrangements for their care.
There will be orders to facilitate a proper exchange of information about matters touching on the children’s health.
Orders need to be made to ensure each parent has the contact details for the children at all times.
The children should spend Mothers’ Day with the mother and Fathers’ Day with the father.
The parties should have the opportunity to share time with the children on Christmas Day and Boxing Day if the parents are both in Sydney for that time. They should negotiate this time having regard to where the children spent this time last year. In the event of a dispute I trust the father to determine it in the best interests of the children and with fairness between the parties. The children should not miss out because the parents cannot conclude an agreement about this time.
The parents should both be able to share time with the children on their birthdays.
I am required to consider what orders best meet the children’s best interests. In this regard I am required to not restrict myself to the orders sought by either of the parties. I have made some orders which were not particularly sought by either party. They do however, deal with issues which arose during the trial and are likely to be a problem for the children if no orders are made. One example of this relates to the children’s school weekend activities. There is evidence that while the mother has been living in Melbourne she took the girls out of their school early on Friday and kept them away from school until the following Tuesday. She did not have the father’s agreement to this course of action. The mother had obtained the school authorities consent to this action. This type of unilateral action potentially raises a problem for the children because their father was not consulted nor consented to that action. The children should not be dealt with in this way by either parent. The order I will make will cause the children not to be exposed to this type of situation in the future. It supports the children’s emotional well being because they will know such occasions have the support and consent of both parents.

I certify that the preceding three-hundred and twenty-seven (327) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench

Associate:

Date: 15 May 2007

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

[2007] FamCA 432

15 May 2007

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