Serle and Serle

[2008] FMCAfam 253

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SERLE & SERLE [2008] FMCAfam 253

FAMILY LAW – Parenting – relocation – [L] to [C] – four to five hours drive – father’s family influential in [L] area – mother somewhat intimidated – father controlling – father working up to 75 hours per week – whether father could relocate too – mother primary carer.

Family Law Act 1975 ss.60B, 60ca, 60cc(1), 60cc(2), 60cc(3), 60cc(4), 60cc(4A), 61da, 65daa

A & A: Relocation Approach (2000) 26 Fam LR 382, (2000) FLC 93-035; [2000] FamCA 751
AMS v AIF (1999) 199 CLR 160; FLC 92-852
KB & TC (2005) 33 Fam LR 471, (2005) FLC 93-224; [2005] FamCA 458
Sampson v Hartnett [2007] FamCA 1365
Taylor and Barker (2007) 37 Fam LR 461, [2007] FamCA 1246
U v U [2002] HCA 36 (2002) 211 CLR 238

Applicant: MR SERLE

Respondent: MS SERLE

File Number: DGC 152 of 2008

Judgment of: Riley FM

Hearing dates: 18 & 19 March 2008

Date of Last Submission: 19 March 2008

Delivered at: Melbourne

Delivered on: 17 April 2008

REPRESENTATION

Counsel for the Applicant: Mr Curtain

Solicitors for the Applicant: McCormack & Co Solicitors

Counsel for the Respondent: Ms Baczynski

Solicitors for the Respondent: Reale Lawyers

ORDERS

1. The mother and father have equal shared parental responsibility for S born in 2002 (“S”) and B born in 2005 (“B”).

2. S and B live with their mother.

3. After 4 July 2008, the mother be restrained from living more than

   
   

   60 kilometres from [L] in the State of Victoria.

4. After 4 July 2008, S and B spend time with their father:

   (a)from after school on each alternate Thursday to 5.00 pm the following Sunday, or the following Monday if it is not a school day;

   (b)in the alternate week, from after school Thursday to before school Friday;

   (c)for the first half of the school term holidays;

   (d)for the first half of the summer holidays, except for the period from 5.00 pm on Christmas Eve until 5.00 pm on Christmas Day, in 2008 and each alternate year thereafter;

   (e)for the second half of the summer holidays, as well as the period from 5.00 pm on Christmas Eve to 5.00 pm on Christmas Day, in 2009 and each alternate year thereafter; and

   (f)for two hours on each of the children’s and the father’s birthdays at times to be agreed.

5. If Father’s Day falls on a weekend that S and B would not spend with their father, then S and B are to spend that weekend with their father instead of the following weekend.

6. If Mother’s Day falls on a weekend that S and B would spend with their father, then S and B are to spend that weekend with their mother instead of the following weekend.

7. If either of S and B’s birthdays fall on a day that S and B are spending with their father, S and B are to spend two hours with their mother on that day at times to be agreed.

8. Changeover is to be effected at S’s school on school days and at the shopping centre closest to the mother’s home on other days.

9. The mother is to notify the father in writing of the address of the shopping centre on or before 3 July 2008.

10. S and B are to communicate with their father by telephone at 7.00 pm each Tuesday and otherwise when they wish.

11. The mother is to buy and make available for the use of both parties a communication book for the purpose of communicating any information about S and B’s needs or activities.

12. The father is restrained from:

    (a)discussing reconciliation with the mother, unless the mother expressly authorises the father to discuss reconciliation with her;

    (b)in any way pressuring the mother to reconcile with him; and

    (c)expressly or impliedly requesting anyone else to pressure the mother to reconcile with the father or discuss with the mother reconciliation with the father.

13. Notwithstanding order 1 hereof, the mother is at liberty to choose a primary school, within 60 kilometres of [L], and 10 kilometres of her home, for S and B to attend.

14. S and B may remain living in [C] until the school holidays commencing on 27 June 2008, when S and B are to spend the first week of the school holidays with their father.

15. Until 27 June 2008, S and B are to spend two out of three weekends with their father from 6.00 pm Friday until 5.00 pm Sunday, to be adjusted to ensure that S attends pony club while in the father’s care, and with changeover to be effected at [X] on the northbound side.

16. The parties may vary the terms of any of these orders by agreement.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

DGC 152 of 2008

MR SERLE

Applicant

And

MS SERLE

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for parenting orders in respect of S who was born in 2002 and who is now 5½ years old and B who was born in 2005 and who is now 2½ years old.  Their mother has always been the children’s primary carer.  She is an excellent mother and, until recently, was a loving wife.  Their father worked very long hours in the agricultural and earthmoving industries and provided for the family in a material sense.  They lived on a farm in [L] in West Gippsland owned by the father’s parents.  The father worked for his parents’ business and also had his own business.

2. However, the mother felt isolated and unsupported in her care of the children and somewhat oppressed by the father’s family, who are prominent and influential in the district.  She asked the father to spend Sundays with her, S and B, but he said he had to work.  She asked him to go on a number of family holidays, but he refused.  She asked him to attend marriage counselling, but he said they could work it out themselves. 

3. Last Christmas, the family planned to have a holiday at [C].  The mother took the children there on Boxing Day, with the expectation that the father would arrive in a few days.  On 29 or 30 December 2008, the mother telephoned the father and said she missed him and wished he was with her.  He said he had to finish off some hay jobs and would be up there for New Year’s Eve.  The mother became upset and replied that she might as well be a single mother.  The father was unable to contact the mother by telephone after this.  He arrived in [C] at 12.20 am on 1 January 2008.  The mother refused to speak to him.  He stayed at a friend’s house overnight and returned to the farm the next day. 

4. The mother has remained in [C] since then.  She wishes to stay there with the children.  The father wants her to return with the children to [L].  It is about four hours drive from [C] to [L].

Proposals

1. The father essentially proposes that:

   a)the parents have equal shared parental responsibility for the children;

   b)the children live with their mother;

   c)during school term, the children spend time with their father:

   i)from after school Thursday to before school Monday each alternate week; and

   ii)from after school Wednesday to before school on Friday each other week;

   d)the children spend half school holidays with their father;

   e)

   the mother be restrained from removing the children more than

   
   

   30 kilometres from [L]; and

   f)the mother be restrained from enrolling the children in a school other than [L] Primary School.

2. The mother agrees that the children should live with her and that there should be equal shared parental responsibility.  Otherwise, the mother essentially proposes that:

   a)she be permitted to relocate with the children to [C];

   b)the children attend school in [C];

   c)the children spend with their father in [L]:

   i)two weekends out of three;

   ii)all school term holidays; and

   iii)half the summer holidays; and

   d)the children communicate with their father by telephone each alternate day.

3. Dr Simon Kennedy wrote a report on the family.  He essentially recommended that:

   a)either the mother or the father relocate so that they live in the general vicinity of each other;

   b)due to work limitations on the father, it may be advantageous for the mother to relocate to Melbourne;

   c)the children live with their mother;

   d)the children spend four or five days a fortnight with their father, for example:

   i)Friday afternoon to Monday morning in alternate weeks; and

   ii)Thursday afternoon to Friday morning in the other week.

History of the marriage

1. The mother is 29 years old and the father is 31 years old.  They met when the mother was 16 years old.  They began living together in 1998, initially in [P], with the paternal grandfather, who they helped to care for.  In mid-1999, the parties bought a house in [P], close to the mother's parents.  In 2000, the mother's mother died of breast cancer.  The parties married on 30 June 2001.  In August 2001, the paternal grandfather died.  In February 2002, the parties sold their house in [P].  The proceeds of sale are in a bank account.  The parties moved back to the paternal grandfather's home in [P].  In May 2002, S was born. 

2. On 1 August 2002, the father was severely injured in a work accident.  He had tried to warn some other people of the danger of trying to load a trailer onto a truck with an inadequate lifting machine when the lifting machine collapsed and the trailer fell onto the father.  He spent one month in [X] hospital and another month in a rehabilitation hospital in [K].  The mother visited him every day while he was in hospital. 

3. In June 2003, the parties moved to a beef farm in [L] which was bought at about that time by the father's parents.  The parties were able to live there rent free in exchange for the father working the farm.  It requires about eight to ten hours work each week.  The father gradually recovered and returned to the earthmoving industry.  He is now able to, and during the marriage often did, work 75 hours per week.  However, he has been left with some facial scarring and a damaged larynx which results in him having a hoarse sounding voice.  He also has some breathing difficulties.

4. B was born in 2005.  S attended [L] kindergarten in 2007.  It had been intended by the parents that she would attend [L] Primary School commencing this year.  The uniform for that school was bought for her last December.  S had attended swimming lessons in [P] and became a member of the [X] Pony Club last year.  She attends on the fourth Sunday of each month with one of her cousins on her father's side.  B attended a playgroup in [L] last year and it had been planned that he would continue to do so this year.

5. The mother took the children to kindergarten and playgroup in [L].  She was the purchasing officer at the kindergarten.  The mother said that the father had minimal involvement with the kindergarten or playgroup.  She said he had only been to a Father’s Day event at the kindergarten and S’s end of year concert.  He said he had been to the kindergarten to drop off a load of topsoil on one occasion and a load of mulch on another occasion.  He said that he had dropped off hay at the playgroup for a country farm.  He did not claim to have been involved with the other parents or children at the playgroup or kindergarten.  I accept the evidence of both parties on these matters.

6. The mother took the children to swimming lessons.  Until the children are three years of age, a parent is required to be in the pool with them.  The mother did that with S and still does that with B.  The father never attended the children’s swimming lessons.

7. The father’s family likes horses and it was decided that S would join the pony club.  Although the mother has no knowledge of horses, the father left it to her to choose a pony for S.  The meetings last virtually the whole day.  The mother usually took S to pony club and led her around while she sat on the pony.  However, on occasion, the father did that.

8. The mother said the father has a dominating personality and was controlling.  The father denied that.  However, the family report writer described him as having, “an extremely intense manner, and a tendency to be somewhat inclined to see the world from his own position rather than those of others.”  I accept the report writer’s opinion.

9. By way of example, the mother said that she was not allowed to buy the children clothes or toys without the father's permission, and when she did so at Christmas time, she and the father argued afterwards.  The father said that he had never stopped the mother buying clothes or toys and denied arguing about this matter with the mother.  However, he conceded that he had disagreed with the mother's purchases and asked whether the children really needed them as they had a lot of things already.  I am satisfied that the mother felt constrained about buying things for the children and that the father tried to impose his views about these matters on the mother.

10. Similarly, the mother said that S had always expressed a wish to attend dance classes but the father would not allow it.  The father said in cross examination, “I have never not allowed S to go to dance classes.”  I prefer the mother's evidence.  In my view, the father may not have said in express terms that S could not go to dance classes but that he made it clear nevertheless that he did not consider that she should go.

11. The mother also said that she was not allowed to buy a Christmas tree last year as the father said that, as usual, he would buy the tree.  He eventually did so on 23 December, after S had asked her mother a number of times if they would be having a Christmas tree.  The father conceded that S had also asked him about the Christmas tree and he told her that he would not let her down.  The father said pressure of work had prevented him buying a tree earlier. 

12. It is customary to have the Christmas tree a week to 10 days before Christmas.  Decorating the tree and putting presents under it is part of the excitement and anticipation of Christmas.  It was natural that S would worry if she had no tree until two days before Christmas.  In my view, the father did let S down by leaving the purchase of the tree so late.  If he was unable to buy the tree in good time himself, he should have allowed the mother to buy the tree at the appropriate time.

13. The mother said that she had no choice in the move to the farm at [L]. She said that she had told the father that their independence would be affected by moving to his parent's property.  She said that the father's parents are domineering and had told her how to care for the children and, in particular, how to toilet train S.  The mother said the move was difficult for her and she felt isolated and alone as she did not know anyone apart from the father’s family.

14. The father said that the move to the farm was by mutual agreement.  He said that the mother and father had looked at the property together before his parents had bought it.  He saw the move to the farm as a chance to further his rehabilitation and as a good environment for the children.  The father's parents live in [P] and he has a sister who lives in [W].

15. I accept that the mother did not want to move to the farm and that the father imposed his will on her in relation to the move.  I accept that the father's parents told the mother how to bring up her children.  Except where there is evidence of child abuse, grandparents should not interfere in the upbringing of their grandchildren.  They should offer advice only when asked and, even then, with the greatest of tact.  I accept that the mother felt that the father’s parents are domineering.  I accept that this would have been difficult for the mother to cope with.

16. I also accept that the mother felt isolated at [L].  It is a country town about 30 kilometres east of [P], where the mother had previously lived, and where her father and stepmother continue to live.  The mother has a brother, Mr T, who lives with his wife and children in [B].  She has elderly grandparents who live in [L].  She has an aunt who attended court with her and who lives in [G].  The mother has a close friend,

    
    

    Ms C, who lives in [R] and has three children.  The mother was Ms C’s bridesmaid.  The father claimed that the mother was friends with a neighbour at [L] by the name of Ms W.  However, the mother said that she was only an acquaintance.  I accept the mother's evidence in this regard. 

17. The mother conceded that she had emotional support in the area.  I take this to mean emotional support in the [P] area, as opposed to the [L] area.  While [P] is only about half an hour's drive from [L], and [R] and [B] are about the same distance again, it is probably a little too far to be able to meet frequently with friends for a casual coffee or talk.  All in all, I accept that the mother felt lonely and isolated on the farm, especially as her husband worked such long hours. 

18. The mother also said that when the father was recovering from his injuries, he would take her to the bedroom to have sex with her when the children were nearby and needed supervision.  The mother said that she explained this to the father but he would persist.  She said that when she maintained her refusal, the father would become very annoyed and say he was going to work and then leave.  On one occasion, the mother said that the father grabbed her by the wrist and left a bruise.

19. The father denied that he had tried to have sex with the mother when the children were nearby.  However, he did say that the children always came first with her.  He also said that on one occasion he did grab the mother by the wrist and tried to pull her towards him and she pulled back at the same time, hurting her wrist.  I accept the mother’s evidence on these matters.

20. The mother said that the father had a pornographic magazine in their bedroom which was discovered by S.  The father’s response was to say that children should not be allowed in the parent’s bedroom.  That attitude may have been commonplace two or three generations ago.  However, parents tend to be much more child focused these days, and welcome their children into their bedroom, even early in the morning.  If the father wishes to keep pornography at home, he should store it where the children will not be able to find it.

21. The mother also said that the father insisted on making home videos of the two of them engaging in sexual activities together and insisted on taking photographs of them of a sexual nature.  The mother said that she was uncomfortable with this but the father placed a considerable amount of pressure on her to acquiesce and she felt that it was futile to protest.  The father said that the mother participated willingly in these matters.  I prefer the mother’s evidence.  It fits with the overall dynamic of the father imposing his will and the mother giving in.

22. The mother also said that when anything was not in accordance with the father's wishes, he frequently became very angry and verbally abusive.  She said he often belittled her, criticised her appearance, and shouted and swore.  The mother said that the father told S, “Mum’s being a bitch” and “Mum’s being a grumpy cow.” The father conceded that he said these things but said the mother said similar things to him.  He said such things were said jokingly on both sides. 

23. There is nothing funny in such comments.  It is difficult for children, and it can be damaging for them, to hear one of their parents denigrating the other.  The father conceded that during the marriage he had sometimes been angry but denied that he had been very angry.  I accept that from the mother's point of view the father appeared to be very angry.  I also accept that he was verbally abusive. 

24. The mother said the father was rarely at home and their minimal interaction revolved around ensuring that his needs and wishes were met. The mother said that she had to acquiesce to the father's wishes so that the children would not see them arguing.  However, she said there was still tension in the household.  She said she and the children were always constrained due to the father's behaviour.  I accept this evidence.

1. The mother said that the father would not go on family holidays that the mother proposed.  However, he did go with the family for a weekend to [E] a steam rally and for another weekend to a youth masters event in [D].  These were both trips that held particular interest for the father.

2. The father also agreed that during the marriage he had gone four times to a saloon bar as a single man.  He agreed that he had not worn his wedding ring during most of the marriage.  He said that, in his work, it could pose a risk of injury. 

3. The father agreed that he had been keen on one of his wife's friends, Ms H, and had compared his wife to Ms H.  He said that he thought

   
   

   Ms H was a good worker, who would do extra to make more money and was tidy on the property.  He said that he gave Ms H some seat covers for her car.  The father denied that Ms H was not keen on him.  The mother and Ms H have continued to be friends. 

The mother’s reasons for relocating to [C]

1. The mother had a number of reasons for leaving the father.  However, her reasons for relocating to [C] seem to be that:

   a)[C] is a long way from [L];

   b)the mother happened to be in [C] when she decided to separate;

   c)her friend Ms H lives there with her husband;

   d)Ms H is able to help and support the mother; and

   e)Ms H happened to have a suitable house for the mother to rent. 

2. The mother has not repartnered with anyone in [C] or anywhere else.  She did not go to [C] to pursue work opportunities.  The only work the mother does in [C] is the milking of Ms H's cows when S and B are with their father or at school and in playgroup.  [C] is no doubt a pleasant enough country town but the mother has no connection with it apart from her friend Ms H.

3. The mother appeared in court unrepresented on 24 January 2008.  She was asked by Federal Magistrate Connolly what caused the separation.  The mother said that it was because the father did not spend any time with the family but instead often worked until nearly 2 or 3 o'clock in the morning and often worked seven days a week.  The mother at that stage did not mention the father's controlling behaviour. 

4. In an affidavit sworn on 31 January 2008, the mother reiterated the issues about the father's work habits and also described the father's controlling nature.  The mother said that she was concerned that if she returned to [L], the father, his friends and family would pressure her to return to the marriage.  She said that she had already received numerous telephone calls from the father's friends telling her that she should return to [L] and to the father.  I accept that evidence.

5. The mother also said in her affidavit sworn on 31 January 2008 that her new home in [C] was close to her friends who were willing and able to offer her assistance when needed, and was close to a park, bike tracks and a swimming pool.  She said that S wanted to learn to fish and the mother was organising for her to attend dance classes. The mother also said that the children had made friends in [C] and she had bought the children a puppy.  I accept all of that evidence.  However, the same amenities are no doubt available in innumerable locations in West Gippsland and Melbourne. The mother has mentioned one friend in [C], namely, Ms H.  However, the mother also has her friend, Ms C, in [R]. 

6. In an affidavit sworn on 13 March 2008, the mother reiterated that she had moved to [C] to get away from the father's controlling behaviour.  She also said that she and the children were always constrained due to the father's behaviour including his inclination to become very angry and abusive.  The mother also said that the father’s family were very prominent in the [L] and [P] areas.  She said that members of the Serle family were revered in those areas and people often stopped to greet them on the street.  She said that the family is heavily involved in the community including in the Scouts, the [X] festival, election nights, the car club and the fire brigade.  The father said that, when he walked down the main street of [P] 10 years ago, he knew every third person, but now he would know only one. 

7. I understand that [P] now has a population of 19,000 and there has in recent times been a big influx of people who are new to the area.  However, I accept the mother’s evidence that the Serle family remains prominent and influential in the [L] and [P] areas. 

8. As far as [C] itself is concerned, the mother said in her affidavit sworn on 13 March 2008 that [C] had a very friendly and close community where families often went on outings together.  Ms H’s son began prep at [C] primary school at the same time as S, which helped her settle in.  The mother said that S likes her teacher and is progressing well.  The mother said that she was involved in the school by assisting in the reading recovery program and in the canteen.  I accept that evidence.  Equally, I do not doubt that there are many close and friendly communities in and around Melbourne.  I expect that S would manage well at any school she attended and that the mother could provide similar assistance at any school that S attended. 

9. The mother said that B enjoys a playgroup that he attends in [C].  I expect that he would enjoy any playgroup he attended.  The mother said she was involved in a positive parenting program in [C].  Again, such programs are available in many localities around the State.

10. The mother said that the children were well settled in [C].  The father's counsel challenged the mother's qualifications to give that evidence.  The term “well settled” has a special significance in parenting matters.  I accept that the mother's opinion is of little value as evidence.  However, the mother also said that S looks forward to going to school every day, has made friends, brags about what she has done at school and says that she will miss her school and her teacher over the weekend.  All of this indicates that S is happy at school.  However, at the time of the final hearing, the children had only been in [C] for 2½ months.  It is an overstatement to suggest that they were well settled, in the sense that they were firmly entrenched in [C].

11. In any event, Dr Kennedy described S as:

    a)bright, outgoing and positive;

    b)a generally untroubled child, who appeared to be coping relatively well with the separation, despite the obvious changes;

    c)quite a well attached child, particularly to her mother; and

    d)a well functioning child, who does not have any significant psychological issues at this point.

12. Dr Kennedy did not provide a similar evaluation of B, perhaps because he is only 2½ years old.  In any event, I consider that Dr Kennedy’s evidence indicates that the children are comfortable where they are.  However, that is not to say that they would not be comfortable elsewhere.  I do not accept that there would be any particular difficulties for them in moving from [C].

13. The mother also claimed in her affidavit sworn on 13 March 2008 that she had a strong support system in [C].  She did not provide details of the support system.  It seems to consist essentially of Ms H and Ms H’s social network. 

14. In oral evidence, the mother said that she wished to stay in [C] because:

    a)she had the support of her friend Ms H;

    b)Ms H “helped out” with the children when needed;

    c)[C] had a very relaxed and social atmosphere;

    d)there were pools, parks and riding tracks for the children; and

    e)the house she is living in is a fully furnished, “fully brand-new, renovated property”.

15. The mother did not give any evidence about the cost of comparable properties close to [L].  Nor did she challenge the father's evidence that there is ample, suitable accommodation at a comparable rental in the [L]/[R]/[P] area.  Accordingly, I accept the father’s evidence on this matter.

16. As stated above, I do not doubt that the amenities available in [C] are also available in many other localities in Melbourne and the West Gippsland areas. 

17. In relation to Ms H “helping out” the mother with the children, Ms H swore an affidavit on 12 March 2008 in which she said that she and her husband would continue assisting the mother and the children whenever it may be necessary.  Neither the mother nor Ms H gave any detail about the type of help that Ms H provided or the extent of it.  All in all, I am unable to conclude that Ms H helps the mother in anything other than the usual ways that women who socialise together commonly help each other with their children.

18. In this regard, the mother agreed that she had emotional support in the [R]/[L] area.  She agreed that Ms C had helped her by accommodating her on 11 and 12 January 2008 when the mother returned to [L] to collect some items from the farm.  The mother also agreed that she had known Ms C for many years and Ms C had three children.  It was not put expressly to the mother that Ms C would “help out” with S and B.  However, I do not doubt that, if the mother lived nearby, Ms C would help the mother with her children in the usual ways that women do, just as the mother would help Ms C.

19. The mother said that she was not so close to her brother Mr T who lives in [B] that he would “take on the stress of having to look after me and my family and my kids”.  However, she conceded that he would help her emotionally and in any other way that she wanted assistance. 

20. All in all, I am satisfied that, if the mother relocated to the [R] or [B] areas, she would have emotional and other supports from people with whom she has existing relationships.  If she relocated to another area in the general vicinity of [L], I do not doubt that the mother, through school and playgroups, would soon find other parents who could provide her with emotional and other supports.

21. In cross-examination, the mother conceded that she had moved to [C] partly to put a physical barrier of 400 kilometres between herself and her husband.  She conceded that she created that barrier for her own needs and not for the children's needs.  However she also said that while they were in [C], without the father, she saw the children become much more relaxed and said they were allowed to have fun and just be kids enjoying themselves. 

22. I accept that one of the mother's reasons for moving to [C] was to put a distance between herself and the father’s domination and controlling behaviour.  However, I also accept that the children were constrained, on the rare occasions when the father was at home, by his moods. 

The father’s reasons for not wanting to leave [L]

1. Apart from working on the farm owned by his parents, the father runs a business which does earthmoving work and agricultural work such as hay cutting.  The father owns a small amount of the necessary machinery himself and otherwise hires it from a business owned by his parents.  There was no suggestion that the father hires the equipment from his parents at anything less than commercial rates.  The father does some earthmoving work on his own account and some through his parents’ business.

2. The father said that he would not be able to get a job in [C].  He said that WorkCover had to pay for any additional operations that he needed in the future as a result of his accident in 2002.  He said that he had such an operation in August or September 2007 on his eye socket after some mesh had come adrift.  He said:

   I believe that the employer at the time, whoever has employed me, if something has got to be done, it's then their WorkCover that’s footing the bill for it.

3. He said that for that reason, no employer would take him on.  I do not accept the father's evidence on this issue.  He is not an expert on WorkCover and is not qualified to give that evidence.  He did not give evidence of any particular experience he had had in trying to obtain a job.  The evidence he gave is inherently unlikely.  The father’s counsel did not rely on the evidence given by the father as set out in paragraph 58 above and submitted that the father had not said that at all.

4. The mother gave evidence that [C] is an agricultural area that has plenty of semi-skilled work.  The mother is not an expert in employment in [C].  However, it is a notorious fact that there is a skills shortage in the agricultural sector.

5. Dr Kennedy said he had some professional experience with people who had been on WorkCover.  He said that employers were reluctant to take on an employee who had had a WorkCover claim in the past.  However, he accepted that some employers would take into account the circumstances that had given rise to the WorkCover claim.  A salient feature of the father's WorkCover claim is that it was the result of a genuine accident.  Having said that, however, I accept that the realities of employment are such that a prospective employer may be reluctant to employ the father. 

6. The father was asked whether he could start a business somewhere other than [L].  The father said he could not because he did not have half a million dollars to buy equipment.  At present, the father either works through his parents’ business or hires equipment from them.  There was no evidence to suggest that there are firms in or around [C] that hire out earthmoving or agricultural equipment.  In any event, the father could be expected to have greater difficulty winning contracts on his own account in a new area than performing contracts won by his parents’ business and winning contracts on his own account in an area where his family is prominent and influential.

7. Obviously, there are difficulties in starting a new business in a new area.  The father has a very great business advantage in the West Gippsland area in that he and his family are well known there.  It may be that, if the father were so minded, he could start a successful business elsewhere in Victoria.  However, the reality is that many new businesses fail.  Overall, it would be very difficult, and financially risky, for the father to attempt to start a new business in or around [C].

8. Otherwise, the father's reasons for wishing to stay in [L] are that he has lived his whole life in the area and his friends and family are in the area.

Post-separation

1. The mother is renting a house in [C] owned by Ms H and her husband.  The house has been recently renovated.  Photographs tendered to the court show the house to be neat, clean and comfortable.  Ms H and her husband also live in [C] some distance from the mother. 

2. The mother pays $200 per week in rent, although this amount is offset to an unspecified extent in exchange for the mother milking Ms H’s cows.  The mother only does this when the children are spending time with their father or are at school and day care.  The mother receives the family tax benefit of $400 per fortnight, the single parents’ pension of $500 per fortnight and $291 per month in child support.  That works out to about $525 per week.

3. Apart from milking the cows, the mother does not work outside the home.  Before having children, the mother worked in cafes and such like.

4. On 11 and 12 January 2008, the mother returned to [L] to collect some items from the farm.  She stayed with her friend Ms C in [R].  The father did not know that the mother would be at the farm on 11 January 2008 but she told him that she would be there on 12 January 2008.  The mother went to the farm with her children and with her friends Ms C and Ms H.  The father attended with one of his brothers and two other men.

5. There was an altercation witnessed by the children.  The father insisted that Ms H leave the property.  She waited on the road in front of the farm.  The mother had a trailer attached to the Land Cruiser that she had taken to [C] on Boxing Day and had filled the trailer with some possessions.  The father insisted that the mother take the Statesman instead of the Land Cruiser.  The father and his friends had used their cars to block the exit of the mother and her friends.  The mother eventually agreed to take the Statesman and only her own clothes, some of the children's clothes, some sheets, some of her mother's possessions and a few of the children's toys.

6. The father's counsel criticised the mother for bringing the children with her when she should have anticipated that there would be a scene.  He said that the separation was very recent, had been precipitated by the mother and the father was naturally upset about it.  To my mind, this is a classic case of blaming the victim.  The mother naturally had the children with her because they are so young.  She should have been able to take her possessions, and a fair share of the joint possessions, without being subjected to angry words or intimidation.

7. It is common ground that the Statesman is nowhere near as good a car as the Land Cruiser.  The father maintained that the mother could not have the Land Cruiser because it was owned by his business.  He also has another four wheel drive that he uses in the business as well as a truck.  The Statesman is quite old and needs repairs.  It has a very small net value.  In my view, the father should have allowed the mother to take the Land Cruiser for her to drive his children around in, and he should have completed the appropriate paperwork for the mother to legitimately use the Land Cruiser.  The fact that he did not do so is another example of the father being unfair and domineering.

8. The father filed an application on 18 January 2008 seeking the orders outlined above.  On 24 January 2008, Federal Magistrate Connolly ordered that the children spend time with their father from 4.00 pm that day until 6.00 pm. on Sunday 27 January 2008 and otherwise live with their mother.  The matter was adjourned for interim hearing on

   
   1 February 2008

   .

9. On 1 February 2008, the parties were ordered by consent to attend family dispute resolution at 10.30 am.  That process was not successful.  Later on 1 February 2008, it was essentially ordered until further order that:

   a)S and B live with their mother;

   b)S and B spend each weekend from 6.00pm on Friday until 5.00pm on Sunday with their father;

   c)S and B spend such time with their father mid week in [C] as the parties agree; and

   d)changeover is to be effected at [X]

   Otherwise, the matter was adjourned for final hearing on 18 March 2008.

10. The orders were complied with.  The father went to [C] on two occasions to spend time with the children there.  As a prep student, S did not need to attend school on Wednesdays.  The father spent two Wednesdays with S and B.  He was able to stay in the family's caravan while he was there.

11. The mother said that S had told her that while she was spending time with her father on Wednesday 20 February 2008, the father had driven around the mother's house twice, entered her backyard and played there with the children and the dog, and closed the back security door of the house which had been left open.  The mother said she felt violated by the father's actions and went to Ms H’s home.  While there, the father drove past Ms H's house even though it is not on the usual route for the return trip to [L]. 

12. Ms H swore an affidavit on 12 March 2008 in which she confirmed that the father’s car had gone past her house at high speed at about

    
    6.30 pm

    on 20 February 2008 and confirmed that her house is not on the usual route to leave [C]. The father denied the allegations.  He did not cross-examine Ms H.  I accept the mother’s and Ms H's evidence on these matters.  It is detailed and is consistent with the father's overall approach.

13. The father said that it had been very difficult for him to travel to [C] due to the distance.  He said that the trip takes four or five hours each way.  I accept that evidence.

14. The mother alleged that at changeover at [X]  the father on a couple of occasions came into [X] and sat with the mother and children and pressed her to reconcile.  The father said that he had gone to the toilet in [X] and come out to find the children sitting at a table alone near the door while the mother was at the counter ordering food.  He said he sat with them so they would not be abducted.  That may be so, but he should have left when the mother returned and he should not have pressed the mother to reconcile in front of the children.

1. The mother also alleged that the father gave B a chocolate bar to stop him crying when the mother was having difficulty putting him into his car seat.  The father said he only offered B one Smartie on that occasion and did the same on another occasion.  That may be so, but the mother's point is that children should not be offered sweets at all when they are behaving badly.  It is an entirely valid point that is well supported by child-care experts.

2. The father has reduced his working hours to care for the children each weekend.  There was some suggestion that he might have arranged for his mother to care for the children but that does not appear to be the case.

3. The father said that changeovers in [X] are difficult because it is a four or five hour round trip.  He said that he has been spending $400 a week on petrol.  I accept that evidence.  More importantly, I consider that it would have been hard on the children to be spending eight to 10 hours travelling each weekend.

4. The mother at the hearing said that she would be prepared to bring the children by train to [P] on two of the three Fridays that she proposes they spend with their father but said they should continue to have changeover in [X] on Sundays.  This would certainly reduce the burden on the father but would not substantially reduce the burden on the children.  The travelling would still be very tiring for them.

5. At the conclusion of the hearing on 19 March 2008, it was ordered by consent that, until judgment was handed down:

   a)the children live with their mother; and

   b)the children spend time with their father:

   i)from 26 March 2008 until 6 April 2008; and

   ii)for two out of three weekends from 6.00 pm Friday until 5.00 pm Sunday, with the weekends to be adjusted to ensure that S is able to attend pony club when in the father’s care.

Dr Kennedy’s evidence

1. Dr Kennedy indicated in his family report that there had been no particular difficulties with S or B but that the mother had had some difficulty after B was born due largely to the fact that she had little support at the time.  Dr Kennedy considered that the mother had not had any period of anxiety or depression which could be considered problematic.  He said that she had dealt as well as she could with the issues of her mother dying and her husband having a serious accident.  Dr Kennedy reported that, following the separation, the mother felt upset but liberated.  He said that the mother wanted the children to be able to see their father as much as possible.  She said that he was a good father and she said that the relationship between the children and their father was positive.

2. Dr Kennedy reported that:

   a)the mother presented as a very patient, skilled parent who enjoyed spending time with her children;

   b)the attachment of both children to their mother was positive and well-developed;

   c)the relationship between the mother and the children was very positive; and

   d)the mother showed sound parenting skills.

3. In relation to S, as well as the matters stated in paragraph 45 above,

   
   

   Dr Kennedy reported that S said that her father lives far away and she misses him very much.  S spoke about both parents positively and was well-behaved and cooperative with her mother.

4. Dr Kennedy noted that the father reported that he had a somewhat short fuse.  The father acknowledged that he had worked too hard and that at times there had been no great family life.  Dr Kennedy considered that the father had not fully accepted the end of the relationship and sometimes went into denial and blamed others, particularly Ms H, for the separation.  Dr Kennedy considered that the father’s mode of operation is to be somewhat controlling and to tend to suffocate others with his benevolence or, sometimes, a desire to get his own way. 

   
   

   Dr Kennedy considered that it was uncertain whether the father would be able to reduce his working hours in the long term.

5. Dr Kennedy also reported that at the family report interview:

   a)the children were very excited to see their father and rushed to speak to him and hug him;

   b)the children brought their father into the room;

   c)he split his time between them effectively;

   d)he was slightly intense in his interpersonal style but was warm and attentive with the children;

   e)the children responded well to their father and he was able to assist them in their play;

   f)the children were both soundly attached to their father; and

   g)the father has sound parenting skills and the ability to attend well to the children.

6. Dr Kennedy concluded that the children have their primary attachment to their mother but have a positive relationship with their father as well.  Dr Kennedy considered that the interaction between the parents was such that it would be appropriate for the parents to relocate to be within the general vicinity of each other.  Dr Kennedy considered that given the limitations on the father's ability to relocate there would be advantages in the mother relocating to Melbourne.  Dr Kennedy said that it was important that the mother establishes herself in a location where she feels that there is some support as well as some opportunities for her to work. 

7. Dr Kennedy recommended that the children continue to live primarily with their mother as she has been their primary carer to date and in view of the father's focus on work.  Given the children's ages,

   
   

   Dr Kennedy thought it would be appropriate for the children to spend four or five nights per fortnight in two blocks with their father, and for the amount of time to be reviewed in the future.  On the assumption that either the mother or the father relocated, Dr Kennedy thought it would be appropriate for the children to spend Friday afternoon to Monday morning with their father in one week and Thursday afternoon to Friday morning in the other week.

8. In oral evidence, Dr Kennedy emphasised the benefits of the mother living in [X] which is growing rapidly and offers many work opportunities.  He said that he had considered the mother's concerns about the father's family being dominant in the area.  He said that the father’s family would not be known in [suburbs omitted], for example, and the mother could live there without undue pressure. 

9. Dr Kennedy did not recommend that the mother should return to [L].  Rather, the thrust of his recommendation was that the mother could live perhaps 50 or 60 kilometres from [L] and not be pressured by the father or his family.  She would then be close enough to the father for the children to spend substantial and significant time with him.  Additionally, she would have more opportunities for work if she returned to the outer suburbs of Melbourne than if she stayed in a country town.  Dr Kennedy considered that good work opportunities for the mother, as well as the father, would be in the best interest of the children as it would lead to them having a higher standard of living.

10. Dr Kennedy also considered that the pressure felt by the mother from the father’s family and friends would subside over time.  The father said that there would be no pressure from his family and friends because hardly anyone knew about the separation yet.  This is indicative of the father’s inability to accept the separation.  He has not told people about the separation because he does not accept it.  The reality is that, if the mother moved back to the area and found separate accommodation, it would soon be known that the mother and father had separated.  However, I do accept Dr Kennedy’s view that any simmering resentment felt by the father’s family and friends about the separation would subside over time.  However, from the mother’s point of view, it may take an inordinately long time.

Authorities concerning relocation

AMS v AIF

1. The relevant principles in relocation matters were explained by Kirby J in the High Court in AMS v AIF (1999) 199 CLR 160; FLC 92-852 as follows (citations omitted):

   142.  First, each case depends on the application of the governing legislation which, in turn, is in a constant state of amendment and re-expression. Care must therefore be observed in applying propositions advanced in particular jurisdictions where the legislative duties of the courts are relevantly different. Necessarily, the facts of each case are unique. Those facts call forth a “careful and delicate analysis”, which renders previous decisions of limited assistance, except in so far as they offer illustrations which may tend to promote a general consistency of approachhttp://web2.westlaw.com/result/result.aspx?cite=199+CLR+160&cxt=DC&fcl=False&rp=%2fFind%2fdefault.wl&ss=CNT&docsample=False&cnt=DOC&n=1&rlt=CLID_FQRLT363923118&service=Find&ReferenceSDU=214&ReferencePositionType=T&ReferencePosition=FN%3BFFN%2E140&AP=&fn=_top&rs=WLW6.07&mt=WestlawAustralia&vr=2.0&sv=Split&sp=famcourt-2004.

   143 Secondly, unless legislation provides otherwise, no single factor is dispositive of decisions governing the residence of a child in a context of the proposed relocation of the parent with whom the child resides. It is necessary for a court, making decisions affecting the child’s place of residence, to attempt a resolution of often irreconcilable considerations. Statute may, and commonly does, instruct that the “welfare” (or “best interests”) of the child should be the paramount consideration. It may provide a list of considerations or “principles” to be applied in the exercise of the court’s powers. However, the “paramount” consideration is not the same as the “sole” or “only” consideration. The relevance of enumerated statutory principles will depend upon the circumstances of the particular case. Preconceived notions as to the weight which must be given to particular factors are incompatible with the exercise of an individualised judicial discretion such as is mandated by Australian legislation.

   144 Thirdly, a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.

   146 Fifthly, whilst legislative reform sometimes reflecting international law, has laid increased emphasis upon the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with each of them on a regular basis, the rule is not an absolute one. Courts recognise the implications of the application of that right for the custodial (or residence) parent, and particularly because most of them are women. To avoid unnecessary derogations from women’s equality or the “feminisation of poverty” resulting from the effective immobilisation of a custodial (or residence) parent, some Canadian judges have lately proposed a presumptive deference in favour of the right of the custodial (or residence) parent to reside where she or he decides unless good reason, relevant to the welfare or best interests of the child, is demonstrated to the contrary. Although this presumption was supported by a minority in the Supreme Court of Canada in Gordon v Goertz, it was rejected by the majority as incompatible with the individualised assessment required by the statute, addressed as it is to the best interests of the child. The objective of the minority was understandable. However, the reasoning of the majority is preferable, at least so far as the applicable Australian legislation is concerned.

   147   Sixthly, in evaluating disputes concerning an expressed desire of a custodial (or residence) parent to relocate the residence at which the child will reside in circumstances which necessarily diminish the opportunities of the other parent to have access to, and contact with, the child, courts have suggested, rightly in my view, that a more relaxed attitude should be adopted to relocation within Australia than relocation overseas. This approach is connected with the ready availability of reliable transport and telecommunications, social and cultural factors, the absence of many dangers which exist in other parts of the world and notions of national community. But even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child’s contact with, and access to, the other parent. Proof that the custodial (or residence) parent has remarried and wishes to join a new spouse overseas; wishes to return to a supportive family in the land of origin, or has a well thought out and reasonable plan of migration may suffice to convince the court having jurisdiction over the child, that the best interests of the child favour continuance of the custodial (or residence) arrangement in another jurisdiction but with different orders as to access and contact.

   148   Seventhly, just as, depending upon the legislation, conditions may be placed upon a custodial (or residence) parent as to where the child may reside according to its best interests, when it is proposed that residence arrangements change, the very fact of disturbing them (particularly if likely in practice to alter access to, and contact with, the other parent) will present a consideration that must be taken into account in judging whether new arrangements should be approved. If a parent seeks to change arrangements affecting the residence of, access to or contact with the child, he or she must demonstrate that the proposed new arrangement is for the welfare of, or in the best interests of, the child. Because the child’s access to, and contact with, the other parent will necessarily be diminished to the extent that relocation of its residence disturbs a physical proximity which has hitherto existed, it will often be necessary to adjust orders as to access. This will be done to offer new and different facilities of access and contact such as longer periods of residence with the other parent during school holidays and at other times.

   149   Eighthly, although at common law the concept of custody was indivisible, statute has altered this position. Joint custody and guardianship became increasingly common even before recent legislation made shared parental responsibility for a child the modern norm. Yet even now, courts necessarily retain the power to order otherwise. Under the legislation, before it was changed, the determination of whether joint or sole guardianship should be ordered was within the discretion of the court. Departure from the norm of shared parental responsibility is also within the court’s discretion.

A v A: Relocation Approach

1. In the matter of A & A: Relocation Approach (2000) 26 Fam LR 382, (2000) FLC 93-035; [2000] FamCA 751, the Full Court of the Family Court set out a guide for courts in considering relocation matters. That guide is set out at [108] as follows:

   In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:

   * The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.

   * A court cannot require the applicant for the child's relocation to demonstrate "compelling reasons" for the relocation of a child's residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances:

   * It is necessary for a court to evaluate each of the proposals advanced by the parties.

   * A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be 'permitted'."

   * 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.

   * It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) - (l) of that subsection.

   * The object and principles of s60B provide guidance to a court's obligation to consider the matters in s68F(2) that arise in the context of the particular case.

   * It is to be expected that reasons for decision will display three stages of analysis and:

   1. A court will identify the relevant competing proposals;

   2. For each relevant s68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s60B;

   * As one, but only one, of the matters considered under s68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.

   * The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.

   * Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.

   3. On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child's best interests are the paramount but not sole consideration.

   * The process of evaluating the proposals must have regard to the following issues:

   a) None of the parties bears an onus:

   * In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.

   b) The importance of a party's right to freedom of movement:

   * In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s92 of the Constitution, where applicable.

   * In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child's rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.

   c) Matters of weight should be explained:

   * In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.

   * In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.

KB & TC and U v U

1. More recently, in KB & TC (2005) 33 Fam LR 471, (2005) FLC 93-224 [2005] FamCA 458, a differently constituted Full Court of the Family Court (Bryant CJ, May and Boland JJ) considered the High Court decision of U v U [2002] HCA 36 (2002) 211 CLR 238.  In KB & TC, the Full Family Court said:

   70. In U v U (2002) 211 CLR 238 at 260 Gummow and Callinan JJ said:

   “We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. Whether the Court is obliged, or will be able in every case to treat each of the three steps as discrete and in the suggested order may be another question. But the Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s 68F and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child’s best interests.”

   71. In U v U the High Court reaffirmed that the “overarching issue” (at 260) is to ensure any parenting order is in the best interests of the particular child. We accept that whilst in some cases each s 68F(2) factor may be relevant in determining what is in the best interests of a child, in other cases a more limited examination of s 68F(2) factors may be appropriate as being the only relevant (our emphasis) factors to the particular issue to be determined.

   72.    We discern that the decision in U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s 68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.

   …

   83.    In U v U at paragraph 70 Gummow and Callinan JJ, when dealing with the appellant’s argument that the trial Judge had failed “to focus on, analyse and reach a conclusion on the separate proposals of the respondent and the appellant...”, said:

   “There is, in our opinion, an air of artificiality about the appellant’s argument on the first ground. No doubt there will be cases, perhaps many cases, in which a court can and should adopt, with few changes or additions, the arrangements proposed by one of the parties for the future of the child or children whose welfare is paramount, in preference to the other.

   ...

   There will, however also be cases, and not a few of them we suspect, in which it will simply not be possible for a judge to adopt exclusively or perhaps even substantially, a proposal of either party. In such a case the final order will evolve out of the evidence as it emerges, and submissions as they are developed.”

   84.    Hayne J at paragraphs 171 and 172, also dealt with the requirement, in some cases, for a trial Judge to look beyond the proposals of the parties, in his or her fundamental task of ensuring the parenting orders made are in the best interests of a child. He said:

   “171.     In these circumstances, it would be quite wrong to treat the decision that is to be made as confined to a choice between whatever may be the particular ‘proposals’ that the parents may make for the residence of, and contact with, the child. So to confine the inquiry would, in this case, have required the Family Court to ignore admittedly relevant evidence that was led about what the mother would do if it were decided that the child should live in Australia rather than India. More fundamentally, it would confine the Court’s inquiry to what the parents suggested would be in the best interests of the child, regardless of whether those suggestions were informed, even wholly dictated, by the selfish interests of one or other of the parents. To confine the inquiry in this way would, therefore, disobey the fundamental requirement of the Act that the Court regard the best interests of the child as paramount. Those interests may, or may not, coincide with what one or both of the parents put forward to the Family Court as appropriate arrangements for residence and contact.

   172. That is not to say that the Family Court is to embark upon some roving inquiry about the matter, unfettered by any regard for the evidence led and the matters which the parties seek to contest. Due account must be taken of the fact that proceedings in the Family Court are conducted in a framework of adversarial procedure familiar to the common law. (I do not stay to consider how or to what extent that adversarial model has been modified by the Act or rules of court made under it.)”

   85.    The requirement to look beyond the proposals of the parties highlights the fundamental difference in litigation involving the welfare of a child, and ordinary inter partes litigation. This unique requirement may necessitate a trial Judge crafting orders which are outside the proposals presented by either party, subject to the caveats expressed by Hayne J set out above. This task requires a trial Judge to afford the parties procedural fairness by indicating and inviting comment on changes to the parties’ own proposals, for example, by way of additional or different contact to that proposed by the relocating party, or a limitation to a period of restraint in removing a child from its present geographical location.

2. In U & U, Gaudron J, in dissent, noted at [35] that:

   “it is noteworthy that in this case there was no consideration of the possibility that the father could return to India permanently to avail himself of frequent and regular contact with his daughter. The failure to explore that possibility, particularly given the father’s origins, his professional qualifications and family contacts in India, seems to me to be explicable only on the basis of an assumption, inherently sexist, that a father’s choice as to where he lives is beyond challenge in a way that a mother’s is not.

3. Hayne J, also in U & U, at [173-175], made an observation to a similar effect:

   In this case, there were only three outcomes which were raised by the parties in the proposals which they made and in the way in which the matter was conducted at trial. Put shortly, and incompletely, those three outcomes were that the child would reside with the father in Australia, with the mother in India or with the mother in Australia. All of those outcomes assumed that the father would remain in Australia.

   There may have been some sufficient and compelling reason for the parties to make that assumption and to conduct the litigation on this premise. But neither the premise nor the reasons for adopting it were explored in evidence or in argument in the courts below and therefore these matters could not be tested or examined in this Court. The premise is not one which, in relocation cases, should be accepted as a matter of course.

   When one parent (for whatever reason) wishes a child who is, or is to be, resident with that parent to move to a place distant from the other parent, it should not be assumed that that other parent cannot, or should not, contemplate moving to be near the child. There may be (and for all that is known, in this case there was) compelling reason for that other parent (here, the father) not to move, but it would ordinarily be expected that these reasons would be explored in evidence and the validity of any assumption that the other parent will not move would be examined. Just as, in this case, the mother was asked what she would do, if she could not have the child reside with her in India, so too it might have been expected that the father would be asked what he would do, if the mother were to have the child reside with her in India. Such questions should not be treated as mere forensic tests of parental devotion, to which only one answer is seen as being satisfactory proof of being a loving parent. Rather, they are no more than a prelude to a deeper inquiry about where the best interests of the child may lie and what arrangements will best serve those interests.

4. Their Honours’ observations highlight that the best interests of the child may be such that, where one parent wishes to relocate, the other parent should also consider relocating to be closer to the child.  In this case, that would mean that consideration should be given to the father relocating to [C] or elsewhere.

Post 1 July 2006

1. Substantial changes to the Family Law Act 1975 were introduced with effect from 1 July 2006. The fundamental principles to be applied in relocation matters do not appear to have greatly changed from the authorities set out above.  However, the particular steps to be followed and factors to be considered in parenting matters in general, and relocation matters in particular, have been somewhat modified. 

2. In Sampson v Hartnett [2007] FamCA 1365, Bryant CJ and Warnick J held at [58] that the court has the power to restrain a parent from relocating and the power to order a parent to relocate, if that is in the best interests of the child. Their Honours indicated that the power to order a parent to relocate would be properly exercised in fairly rare circumstances.

3. Additionally, in Taylor and Barker (2007) 37 Fam LR 461, [2007] FamCA 1246, Bryant CJ and Finn J said:

   77. His Honour, correctly in our view, endeavoured first to consider without regard to the relocation proposal, whether it was in the child’s best interests to spend “equal time” with each parent. When he concluded that it was not, he did not need to consider whether “equal time” was “reasonably practicable”.

   78. But he did have to move to consider, the option of “substantial and significant time” which he regarded as having “obvious and very significant” advantages. The legislation gives no guidance as to the stage at which a court should commence a consideration of the relocation proposal, but if having found advantages in “substantial and significant time” (or for that matter in “equal time”), his Honour had then turned to consider the “reasonable practicability” of such an arrangement, some assistance would have been gained from s65DAA (5) which provides:

   In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a) how far apart the parents live from each other; and

   (b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents, and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d) the impact that an arrangement of that kind would have on the child; and

   (e) such other matters as the court considers relevant.

   79. A consideration of these matters would have required his Honour to evaluate the differing proposals of the mother and father and to consider whether “substantial and significant time” would be “reasonably practicable” if the mother were to relocate to Queensland. This would seem to be a logical path to follow but as the legislation does not prescribe an order in which the relocation proposals are to be considered, we are not prepared to find that his Honour’s decision was incorrectly reached.

   80. His Honour did not specifically find that the mother’s proposal for the child to spend time with the father did not come within the definition of “substantial and significant time” as arguably it might have. However, he clearly recognised that the mother’s proposal was very different from the existing arrangements which he had found to have advantages for the child, so nothing ultimately turns on whether the time which the child was to spend with the father under his Honour’s orders did amount to “substantial and significant time”. Ultimately the advantages of the mother’s proposal outweighed, in his Honour’s opinion, the advantages of the existing arrangements, which would have been “reasonably practicable” if the mother remained in Canberra, but was not if she moved to Queensland.

   81. We acknowledge that his Honour’s approach to the application of s 65DAA, which we have endorsed, does require that the matters which the court has to consider under that section (being “equal time” or “substantial and significant time”), must initially be considered without regard to any relocation proposal which might also be before the court. However any relocation proposal will then have to be balanced against the option of “equal time” or of “substantial and significant time” if either of those options has been found to be in the child’s best interests, with the outcome normally emerging from a consideration of whether such an arrangement was “reasonably practicable”.

   82. We also acknowledge that this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter, and that at least prior to the 2006 legislative amendments, the preferred approach was not to consider a relocation proposal separately from other proposals in relation to the child’s living arrangements.

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

Best interests of the child

1. Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):

   1.The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 60ca of the Act provides that:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

   However, the best interests of the child are not the only consideration.

3. Section 60cc(1) of the Act relevantly provides that:

   Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

   The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.  I will address those considerations in order.

2(a)  the benefit to the child of having a meaningful relationship with both of the child’s parents

1. It is obvious that S and B would benefit from having a meaningful relationship with both of their parents.  The mother and father are both good parents with good parenting skills.

2(b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. The incident resulting in the mother having a bruised wrist was isolated.  The children have been exposed to a number of arguments. Also, the father has inappropriately attempted to engage in sexual activity when the children were nearby and has left pornographic material where the children could find it.  Otherwise, the children have been well cared for and they are not at significant risk of being exposed to abuse, neglect or family violence.

3(a)  any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The children in this case are too young to have expressed a view. 

3(b)  the nature of the relationship of the child with:

(i)         each of the child’s parents; and

(ii)    other persons (including any grandparent or other relative of the child)

1. The children have a very strong relationship with their mother who has been their primary carer throughout their lives.  They have a positive relationship with their father.  They have good relationships of varying strengths with the members of their extended family on both sides.

3(c)  the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

1. In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:

   4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

   (a)     has taken, or failed to take, the opportunity:

   (i)     to participate in making decisions about major long term issues in relation to the child; and

   (ii)     to spend time with the child; and

   (iii)   to communicate with the child; and

   (b)     has facilitated, or failed to facilitate, the other parent:

   (i)     participating in making decisions about major long term issues in relation to the child; and

   (ii)     spending time with the child; and

   (iii)   communicating with the child; and

   (c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

   4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

2. The mother has clearly spent a good deal of time with the children and has participated actively in their lives.  However, at the time of separation, she removed the children a very great distance from their father and to that extent seriously diminished the prospects of the children spending time with their father.  She also overrode the joint decision that had been made about the school S would attend and enrolled S in another school without consultation.

1. The father prior to separation spent very little time with his children but did fulfil his parental obligation to maintain his children.  Since separation, he has paid $291 per month in child support.  He has facilitated the children spending time with their mother.

3(d)  the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)         either of his or her parents; or

(ii)       any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. Given that the mother has been the children’s primary carer, it could be very damaging for them if they were separated from her.  It would be less damaging for them if they were separated from their father, but damaging none the less. 

3(e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. There are very significant practical difficulties with the children spending time with both parents on a regular basis if one continues to live in [C] and the other in [L].  The four to five hours travel each way would undoubtedly be very tiring for the children and also very expensive for the parents.  The practical difficulties and expense are very likely to substantially diminish the children’s right to maintain personal relations and direct contact with both parents on a regular basis.

3(f)       the capacity of:

(i)         each of the child’s parents; and

(ii)    any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

1. Both parents are capable of providing for the children’s needs, including their emotional and intellectual needs.  However, I consider that the mother is more capable than the father in this regard. 

   
   

   Dr Kennedy stated that she has a more relaxed style of parenting while the father is more intense.

3(g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. The father’s background as the member of a prominent and  influential family in the [P] area is a significant factor in this case.  It will limit the places where the mother will be able to live without being subjected to pressure from the father’s family and friends.  The father has not shown a great deal of maturity, in that he has a limited capacity to see things from another’s point of view and was unable to adapt when the mother clearly expressed her need for the father to spend more time with her and the children.

2. S and B are very young. S is only 5½ and B is only 2½.

3(i)       the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. Both parents have shown good attitudes to the responsibilities of parenthood except as noted in relation to paragraph 60CC(3)(c).

3(j)       any family violence involving the child or a member of the child’s family

1. Apart from the bruising of the mother’s wrist, and the arguments in front of the children, there are no matters of significance in relation to this factor.

3(k)  any family violence order that applies to the child or a member of the child’s family, if:

(i)         the order is a final order; or

(ii)    the making of the order was contested by a person

1. No such order has been made in this case.

3(l)       whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. It would be preferable to make the order that would be the least likely to lead to the institution of further proceedings. 

3(m) any other fact or circumstance that the court thinks is relevant

1. There are no other facts or circumstances that are relevant.

Equal shared parental responsibility

1. Section 61da of the Act provides as follows:

   1.When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   2.The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)family violence.

   3.When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   4.The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

2. In this case, the parties agree that it would be in the best interests of the children for their parents to have equal shared parental responsibility.  I also consider that it is in the best interests of the children for the parents to have equal shared parental responsibility.  There will be an order accordingly.

Equal or substantial and significant time with each parent

1. Where the parents have equal joint parental responsibility, s.65daa of the Act requires the court to consider the children spending equal time, or a substantial and significant time, with each parent. It provides as follows:

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

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

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

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

   2.If:

   (a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; 

   the court must:

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

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

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

   3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i)     days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)the time the child spends with the parent allows the parent to be involved in:

   (i)          the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   4.Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)how far apart the parents live from each other; and

   (b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)the impact that an arrangement of that kind would have on the child; and

   (e)such other matters as the court considers relevant.

2. I do not consider that it is in the children’s best interests for them to spend equal time with both parents.  Dr Kennedy considered that, for children of S and B’s ages, and in view of the other circumstances of the case, it was in the children’s best interests to live predominantly with their mother and spend four or five days a fortnight with their father in two blocks.  In broad terms, I accept that recommendation.  The mother has been the children’s primary carer.  The father in the past has worked very long hours.  He said in evidence that he would only work when they are at school.  However, B will not be at school for three years.  The father did not appear to have properly thought through the present realities.  While the father has not worked on weekends in recent weeks to be with the children, I do not think it is realistic that he could be responsible for them half of the time.  Indeed, he does not seek to, although, if it came to it, he gamely said that he would look after the children on all but alternate weekends.

3. I consider that it would be in the children’s best interests to spend substantial and significant time, as defined, with both of their parents.  However, that would not be practicable if the parents continue to live as far away from each other as they do at the moment.  Otherwise, the parents have the capacity to communicate with each other to resolve difficulties that might arise in the implementation of such an arrangement. 

Resolution

1. Having considered the evidence as a whole and having considered all of the prescribed factors, I consider that it is in the best interests of the children that they live with their mother within 60 kilometres of [L].  This will enable the children to spend substantial and significant time with their father.  It will enable the mother to live in an area where the father’s family are not prominent and influential. It will enable the mother to have ample opportunities for work, and perhaps further education, and the children to have a range of educational opportunities. 

2. Being within 60 kilometres of [L] means that the mother could live in [R], near her friend Ms C, or in [B], near her brother Mr T.  Alternatively, she could live in [suburbs omitted].  In any of these places, she would not be subjected to pressure from the father’s family or friends. [B] and [R] are large centres where the influence of the father’s family would be minimal.  In [suburbs omitted], I consider that the influence of the father’s family would be virtually non-existent.

3. The father sought orders that the mother be restrained from living more than 30 kilometres from [L].  I consider that distance to be too little.  It would confine the mother to an area where she would feel under pressure from the father’s family and friends.  It is not unusual where there has been a separation for parents to drive for an hour or so to see their children. I expect that a distance of 60 kilometres from [L] would be within about that time.  This will be much more bearable for the children than four or five hours each way.

4. While it is possible that the father could relocate to [C] and start a successful business there, it may take quite some time and it may not be successful.  This would have an adverse impact on the children’s long term financial well being.  All in all, I consider that the children’s best interests would be better served if the mother were to relocate rather than the father.  I expect that she could live reasonably close to her friend Ms C or brother Mr T and have the sort of support she is likely to receive long term in [C].  Alternatively, if the mother were to relocate to [suburbs omitted], I expect that she would soon make friends with other parents and receive emotional and other supports from them.

5. The mother said that if she had to leave [C], she would prefer the children to go to school in [L], as she knows it is a good school.  I think that the mother might wish to reconsider that view.  Other things being equal, it is desirable for children to go to a school near their home, so that they can form friendships with children in the neighbourhood, and so that they do not have to travel too far.  I would suggest that the children should go to the school closest to where the mother decides to live.  While the parents are to have equal shared parental responsibility, I consider that the mother should be at liberty to choose which primary school the children are to attend, provided that it is within 60 kilometres of [L] and provided that it is within 10 kilometres of her home.  There will be orders accordingly.

6. The next question is how much time the children should spend with their father.  Dr Kennedy’s recommended four or five nights a fortnight in two blocks.  I consider that four nights a fortnight would be in the best interests of the children, given the father’s history of giving priority to his work and the tender ages of the children.  In my view, to enable the children to have the benefit of the father’s involvement in their schooling and other activities, it is in the best interests of the children that they spend time with their father from after school Thursday to 5.00 pm on Sunday (or Monday if it is not a school day) in alternate weeks, and from after school Thursday to before school Friday in the other week.  This will give them one clear weekend with their mother each fortnight.  Spending every Sunday night with their mother will give them an easier start to the school week.  The children should also spend half school holidays and a reasonable amount of time on special occasions with their father.

7. I consider that the existing orders should continue until the mid year school holidays.  That will give the mother time to find suitable accommodation and make enquiries about suitable schools.

8. Changeover should be at school on school days, and at the shopping centre nearest the mother’s home on other days.  The mother will need to advise the father of the address of the shopping centre once she has settled on a home.  This may entail the father doing a good deal of travelling.  I consider that is not unreasonable, given that the mother is to be restricted in where she may live.  In time, the parties may wish to arrange for changeover on Sundays at the mother’s home.  However, until the father proves himself capable of not imposing on the mother, I consider that changeover should be at a neutral venue.

9. The mother proposed that the children communicate with the father by telephone each alternate day.  This proposal was put forward on the assumption that the children would be living in [C].  I consider each alternate day to be too often.  In my view, it is in the best interests of the children that they communicate with the father each Tuesday at 7.00 pm and otherwise when they wish.

10. The mother proposed a communication book.  The father said it was unnecessary.  I consider that a communication book would be helpful, at least in the beginning.  It will be more difficult for the father to exert undue influence over the mother if he has to write down his communications, and there will be a permanent record of them to dissuade him from saying anything inappropriate.

11. The father said he would consent to an order that he not discuss with the mother the possibility of reconciliation or harass her about reconciliation.  I consider that it would be helpful to make such an order.  It should include a restraint on the father requesting anyone else to discuss with the mother that she reconcile with the father or pressuring the mother in any way to reconcile with the father.  There will be orders accordingly.

I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate:  Catherine Wilson

Date:  17 April 2008