Stadler and Blau

FAMILY COURT OF AUSTRALIA

STADLER & BLAU

[2017] FamCA 452

FAMILY LAW – CHILDREN – Where the mother seeks to relocate with the three children to E Town – Where the father opposes the relocation – Consideration of section 60CC of the Family Law Act 1975 (Cth) – Consideration of the best interests of the children – Consideration as to the impact of proposed relocation on the children’s relationship with their father – Court finds that the mother and father will have equal shared parental responsibility of the children – Court finds a relocation to E Town will be in the best interests of the children – Orders made for the father to spend time with the children in Sydney prior to relocation – Orders made for the father to spend time with the children in E Town and for the children to return to Sydney to spend time with the father during school holidays.

Family Law Act 1975 (Cth), ss 60CC, 60CC(2), 60CC(3), 65DAA

Cases considered
Starr & Duggan [2009] FamCAFC 115
Sealey & Archer [2008] FamCAFC 142

APPLICANT:

Ms Stadler

RESPONDENT:

Mr Blau

FILE NUMBER:

SYC

3008

2014

DATE DELIVERED:

23 June 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

1-3 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Maurice

SOLICITOR FOR THE APPLICANT:

Shipton & Associates

SENIOR COUNSEL FOR THE RESPONDENT:

Mr Priestley SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

Orders

All prior parenting orders in respect of the children.
·B born … 2003 ("B")
·C born … 2005 ("C") and
· D born … 2006 ("D")
(collectively "the children") are discharged.
The mother and the father will have equal shared parental responsibility for the children.
The children will live with the mother.
The mother is permitted to relocate the children's residence to the metropolitan area of E Town, Queensland from a date one week prior to the commencement of Queensland Term 1 in 2018.
The parties forthwith will do all acts and things necessary to ensure that B and C are enrolled to attend E Town State High School and D to attend Suburb F Primary School.
Until the children relocate to E Town with the mother at the commencement of 2018, they will spend time with the father as follows:
6.1from the conclusion of school on Thursday until the commencement of school on Tuesday in each alternate week during school term time and
6.2from the conclusion of school on Monday until the commencement of school on Tuesday in each other week
6.3from 4.00 pm on the Saturday prior to Father's Day until the commencement of school on the following Monday in 2017
6.4for one half of the short school holidays in 2017 and the 2017/2018 Christmas vacation.
The children will spend time with the father as follows:
7.1in E Town during school terms, dependent upon the father's availability to travel to E Town, each alternate weekend from 3.00 pm on Friday to 9.00 am on Monday commencing on the second weekend following the resumption of the first school term after the date of these Orders, provided that the father may extend this time to 3.00 pm on Thursday until 9.00 am on Tuesday if his employment commitments permit him to do so
7.1.1the father will nominate to the mother in writing the dates upon which he intends to travel to E Town for the purposes of Order 7.1 within 21 days of the commencement of each school term
7.2for the whole of the Term 1 Queensland school holidays
7.3for the whole of the Term 2 Queensland school holidays
7.4for the second-half of the Term 4 Queensland school holidays in 2018 and in each alternate year thereafter
7.5for the first four weeks of the Term 4 Queensland school holidays in 2019 and in each alternate year thereafter and
7.6at any other time that the father may travel to E Town during school terms, upon his giving seven days' notice to the mother, from 3.00 pm on Friday until 9.00 am Monday or for up to two consecutive overnight periods on weekdays, provided that he will not seek to spend time with the children on the weekends of Mother's Day or proximate to the mother's birthday.
For the purposes of Orders 7.2 and 7.3, in the event that the father is unable to spend time with the children in either Term 1 or Term 2 school holidays, he may choose to make up that time with the children in the Term 3 school holidays, provided he gives two months' notice of his intention to do so.
For the purposes of Order 7.5, in the event that the father gives to the mother two months' notice of his intention to travel to Country G or any other overseas destination, the father may nominate dates of travel for up to five weeks of the school holidays.
10.1 For the purposes of Order 7.1, the mother will ensure that her property at H Street, Suburb F in the State of Queensland, or such other suitable property as the mother may acquire in the E Town area, is vacant and provide the father with a key to the premises in order that he may reside there with the children.
10.2For the purposes of order 7.1 the mother will provide the father with the use of a registered and serviceable motor vehicle for his use while he is in E Town.
10.3For the purposes of this Order, the mother will bear the costs of accommodation and motor vehicle use with the exception of purchase of petrol.
For the purposes of Order 7.1 the mother will book and meet the cost of two return flights for the father from Sydney to E Town per school term, provided that he gives to her at least two months' notice in writing as to the day and approximate time that he wishes to travel to and from E Town.
For the purposes of Order 7.3 the mother will book and meet the cost of the children's return flights from E Town to Sydney at the commencement and conclusion of the Terms 1 and 2 school holidays, provided that the father gives to the mother two months' notice in writing as to the days on which the children should travel to and from Sydney.
For the purposes of implementation of these Orders:
13.1the school term ends at 3.00 pm on the last day that any child attends school for the term and commences at 9.00 am on the first day that any child attends school for the term
13.2the school holidays commence at 3.00 pm on the last day that any child attends school for the term and ends at 9.00 am on the first day that any child attends school for the term
13.3the end of the first half of the school holidays will be 12.00 pm on the middle day of the school holidays if there are an uneven number of days in the school holidays or 8.00 pm on the last day of the first half of the school holidays if there are an even number of days in the school holidays
13.4in the event that the children are returning from or travelling to E Town for part of the school holidays, changeover shall take place at Sydney airport as close to the arrival time or check-in time for their flights as possible
13.5either parent if travelling overseas or interstate with the children may book flights which leave 24 hours earlier than the end of the school term or return 24 hours later than the commencement of the school term for the purposes of obtaining cheaper airfares
13.6at the start of each new school term the spend time with arrangements prescribed by Order 7.1 shall recommence in the same pattern of alternating weeks as if the school holiday period had not intervened.
For the purposes of effecting changeover pursuant to these Orders, the following will apply:
14.1when the changeover occurs at 3.00 pm or the conclusion of school, changeover shall occur at each child's school unless the child is not attending school on such day in which case Order 14.2 will apply for that child and
14.2all other changeovers will occur at the usual place of residence of the parent with whom the children are living when the changeover is to occur.
The mother will use her best endeavours to initiate communication with the children by telephone and Skype between the hours of 6.00 pm and 8.00 pm only on days when the children are living with or spending time with the father, unless there are other special circumstances which warrant a telephone call being initiated at another time, and the father may initiate communication with the children by telephone and Skype on any day and at all reasonable times when the children are with the mother.
At times when the children are travelling overseas with either parent, he or she will use their best endeavours to facilitate communication between the children and the non-travelling parent every second day.
The mother will provide a copy of these Orders and the telephone and email contact details of the father to the children's respective schools within seven days of receipt of sealed Orders from the Court.
The parents thereafter will do all acts and things and sign all documents required to authorise the schools to provide to the father at his own cost, all information relating to the welfare and progress of the children including but not limited to reports, newsletters, events, applications for school photographs and all other information relating to the children which is usually provided to the parents.
Each party will:
19.1advise the other party of the residential address of the children and of any changes to that address
19.2advise the other party of an emergency and urgent message contact number and of any changes to that number
19.3when wishing to take the child on a holiday within Australia, give to the other party no less than two weeks' notice of the intended holiday specifying the intended destination and contact numbers and provide a copy of a confirmed itinerary showing return flights if the children are travelling interstate.
19.4in the event that a child becomes ill, suffers an injury or requires medical treatment, the party having the care of the child at that time will at the first reasonable opportunity advise the other parent of the particulars of these circumstances.
If either party wishes to take the children out of Australia:
20.1that party will travel only within the times that the children spend with that party pursuant to these Orders unless otherwise agreed in writing between the parents
20.2that party will give to the other at least eight (8) weeks' prior written notice of the intended trip specifying the date and time of departure, the means of transport and all details pertaining thereto including details of the airline with whom the children will be travelling, the intended destination, contact numbers, including at least one mobile telephone number, and addresses for the child for the duration of the trip and the intended date and time of return.
No later than one month prior to the intended date of travel, the travelling party will provide to the other parent a confirmed itinerary showing the booking of the children on a return flight to Australia at the conclusion of the travel and the non-travelling parent shall provide to the travelling parent the passport(s) of the child or children which are held in that parent's possession pursuant to these Orders.
Both parents will do all acts and things and sign all documents necessary to maintain a current Australian passport for each of the children at all times.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3008 of 2014

Ms Stadler

Applicant

And

Mr Blau

Respondent

REASONS FOR JUDGMENT

The proceedings

Mr Blau and Ms Stadler are the parents of the three children:
·          B born in 2003 (14);
·          C born in 2005 (12); and
·          D born in 2006 (10).
These proceedings concern parenting arrangements in relation to the children. The mother's application included a proposal that she and the children relocate from Sydney to E Town. The father's proposal included an order that the mother be restrained from relocating the permanent residence of the children beyond a 15 kilometre radius of Suburb H Public School.

Background

The mother was born in 1971 in E Town and is presently 45 years of age. The father was born in 1975 in Country G and is currently aged 44 years. The parties met in the UK in October 1997 and began to live together in UK in 1998.
The parties married in E Town in 2001 and separated on 30 July 2013 in Sydney. They were divorced by an order which became final on 3 November 2014.
In 1992 the mother obtained a Bachelor of Arts. After the commencement of the relationship, and prior to the birth of B, she worked in administration. The mother did not work outside the family home for twelve years after B's birth.
In October 1999 the parties moved from UK to Australia. They stayed with the maternal grandmother in E Town until January 2000. They then moved to Sydney and rented accommodation at Suburb I. After their marriage in 2001, the parties moved to Country G.
In 2000 the mother sold a house at the J Town, which she owned prior to the relationship. In 2002 the parties purchased a property in Country G, using the proceeds of sale of the mother's J Town Property as a deposit. They sold this property when they returned to Australia.
The parties again stayed with the maternal grandmother in E Town when they returned to Australia in October/November 2003. In January 2004 they moved to Sydney and lived in rented accommodation at Suburb K and later at Suburb L.
In June 2005 the parties purchased a property at Suburb M, where they lived until April 2006. At that time, the father took on a contract with Company N and the family moved to Brisbane. They lived in rented accommodation in Brisbane until September 2007. They sold the Suburb M property in August 2007 and injected the sale proceeds into the purchase of a house in Brisbane.
The father's contract with Company N ended in early 2008 and he then was unemployed for a short period. In July 2008 the family moved to Sydney, to enable the father to take on a contract with Company O. They sold the Brisbane property and purchased a house at Suburb H on the northern beaches of Sydney.
Between July 2008 and May 2010 the father changed jobs twice and was unemployed for a period. In May 2010 he took on a contract with Company P and the family moved to Country G. In January 2011 they purchased a property north of Country G, which had been abandoned and required extensive renovations. The family lived in rented accommodation in Country G, until the mother and the children returned to Australia during the Christmas period of 2011/2012.
The father's job in Country G involved travel to Brisbane, where his employer was based, and also to North and South America. The mother deposed that he was absent from the family home, for business reasons, for approximately eight weeks between January 2011 and June 2011.
The father was required to spend four weeks in Brisbane early in 2011 and the parties agreed that the mother and the children would accompany him to Australia. The father remained in Brisbane and the mother and the children travelled to E Town, where they stayed with the maternal family for one month. The parties and the children then returned to Country G.
When the children's Country G school year finished in June 2011, the parties agreed that they would return to Australia. The mother and the children moved into the Suburb H home. The father worked on a fly-in fly-out arrangement based in Brisbane.
Between June 2011 and December 2011 the father continued to travel interstate and overseas in the course of his employment with Company P. During the 2011/2012 Christmas school holidays the mother and the children spent six weeks in E Town with her family.
In October 2012 the father obtained a short-term contract in Sydney with the Department of Education. He moved into the Suburb H property with the mother and the children.
Early in 2013 the mother obtained part-time employment. She had been out of the paid workforce for over a decade when she obtained this employment.
The mother travelled to E Town alone in each of June and July 2013, for purposes associated with the estate of her late grandmother. When she arrived in Sydney after the trip in July 2013, she discovered that there were no funds in the parties' joint account and that she was unable to use their credit card. The father had vacated the former matrimonial home and taken various contents during her absence.
In August 2013 the mother travelled to E Town for purposes associated with the estate of her late grandmother. During her absence, the father removed additional items from the former matrimonial home. He transferred the electricity, telephone and Foxtel accounts from his name to that of the mother. He cancelled the family health insurance and took out a new policy which covered himself and the children.
In December 2013 the mother purchased a property at Suburb F, which is a suburb of E Town, at a price of $132,000. The purchase money came from a post-separation inheritance from her grandmother and a loan of $20,000 from the maternal grandmother. The mother received rental income from this property.
After the separation, and by agreement between the parties, the children spent time with the father from Friday afternoon until Tuesday morning in each alternate week. On 13 August 2014 the parties consented to interim orders which continued this arrangement and added time with the father on Monday afternoon in each alternate week and during school holidays.
In December 2013 the mother commenced a relationship with Mr Q, who was her high school boyfriend in E Town. They lived together in Brisbane for approximately one year and separated amicably early in 1990, when he returned to E Town.
Mr Q has a son, R, who is 13 years old. R's mother lives in E Town and he spends approximately equal time with each of his parents. By agreement between Mr Q and his ex-wife, R makes regular trips to the North America to spend time with his maternal family.
The children first met Mr Q in October 2013 and spent time with him and his son during the Christmas school holidays in that year. At this time they were unaware of his relationship with the mother. She concluded that the children related well to Mr Q and R and made them aware of the relationship in about February 2014. The mother and children spent time with Mr Q and R during the Easter 2014 school holidays, when they went camping, boating and fishing in E Town.
In January 2014 the Child Support Agency issued an assessment and the father made his first payment in February 2014. By mid-2014, he had accrued arrears of child support in the sum of approximately $1,700. By October 2014 the arrears of child support had increased to $2,319. Each of the parties has made various applications for administrative review to the Child Support Agency.
On 20 May 2014 the mother commenced these proceedings in the Federal Circuit Court. She sought orders for property settlement and parenting arrangements, which included the proposal for relocation to E Town. On 6 August 2014 the father filed a Response, by which he sought orders for property settlement and parenting arrangements which included an injunction to restrain the mother from relocating the children's usual place of residence beyond 15 kilometres from Suburb H Public School.

On 13 August 2014 the parties agreed to interim orders for the sale of the Suburb H property. The sale settled in November 2014 and the net proceeds were lodged in a controlled monies account. On 27 January 2015 orders were made which released the sum of $60,000 to each of the parties.
In February 2015 the mother secured a lease of a house at Suburb S, at a rental of $795 per week. The mother deposed that this property is old and run down and requires repairs. The terms of the lease obliged the mother to pay a four-week bond and nine months rental in advance. In February 2015 each of the parties received $35,000 from the sale proceeds of the Suburb H property. The mother used these funds to satisfy the conditions of her lease.
After the sale of the Suburb H property, the father rented accommodation. Currently he lives in a four-bedroom home with a swimming pool, for which he pays rental of $1,250 per week.
In June/July 2015 the children spent three weeks in Country G with the father during the school holidays. With no prior notice to the mother or the children, the father took his girlfriend, Ms T, on this trip. The children became aware that Ms T would accompany them only when she met them at the airport. The father and Ms T began to live together in September 2015.
Ms T is a 37 year old from Country G, who holds qualifications in science. She moved from Country G to Sydney in approximately 2012 and met the father in about 2013.
In October 2015 the father consented to the release of $31,000 from the sale proceeds of the Suburb H property, to enable the mother to pay further rental in advance. The mother first requested the father's consent to the release of funds for that purpose early in August 2015.
On 29 November 2015 an incident occurred at the father's home, to which he summoned police officers. For reasons which appear below, I am of the view that this incident reflects poorly on both parents and Ms T.
Early in 2016 both parties observed behavioural changes in C, whom they both consider to be a sensitive child. The mother's solicitors wrote to the father's lawyers on 11 April 2016 and suggested that the boys attend counselling. The father proceeded to select a psychologist and booked six appointments for all three children, without any consultation with the mother. She was in E Town when the father advised her of these arrangements.
In July 2016 the mother's landlord agreed to extend her lease for nine months, provided that rental was paid in advance. The father agreed to the release of $31,000 from the sale proceeds of the Suburb H property for that purpose.
On 31 August 2016 the parties consented to final orders for settlement of property. On the same day, these proceedings were listed in a callover for trial directions and allocation of hearing dates. An order was made that Ms U, a single expert, prepare an updating report. Ms U had previously prepared a report dated 7 December 2014.
By a letter dated 14 August 2016 the father's solicitor advised the mother's lawyer that he refused to meet half of Ms U's fees and that he required a Family Consultant to prepare a report. The father continued his refusal to meet half of Ms U's fees after the order was made on 31 August 2016. Ultimately the mother agreed to pay the whole of Ms U's fees, to obviate the risk that the proceedings would not be dealt with on the allocated trial dates.
In November 2016 the mother purchased a home unit at Suburb V in E Town. She invested the funds which she received from the final property settlement into the purchase of this property.

The evidence and witnesses

The applicant mother relied on the following affidavits:
1. Ms Stadler (the mother) affirmed on 14 December 2016;
2.Ms W Stadler (the maternal grandmother) sworn on 11 December 2016; and
3.Mr Q (partner of the mother) sworn on 13 December 2016.
All of these witnesses gave oral evidence by way of cross-examination. The mother also relied upon a Financial Statement which she verified by affidavit sworn on 16 February 2017.
The respondent father relied on the following affidavits:
1. Mr Blau (the father) sworn on 21 December 2016
2. Ms T (partner of the father) sworn on 10 February 2017.
The father did not provide an updated Financial Statement, despite the fact that he raised economic issues in the course of the proceedings. In re-examination he tendered a Financial Statement verified by his affidavit sworn on 5 August 2014 (Exhibit 12). As appears below, his own evidence was that his financial position has improved since 2014.
The single expert, Ms U, provided reports dated 7 December 2014 and 9 February 2017. Ms U also gave oral evidence. I found the evidence of Ms U to be balanced, well-reasoned and of considerable assistance.

Approach to these proceedings

In his written outline of submissions, counsel for the mother identified the approach to be adopted in these proceedings as follows:
Consistent with High Court and Full Court Authority summarised by the Full Court from paragraph 33 of Starr & Duggan [2009] FamCAFC 115 the Full Court said that the approach to parenting applications involving relocation of a child is (from paragraph 38):
However, it is important to emphasise (as was made clear in
Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
1. first make findings concerning the relevant s 60CC factors;
2.then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child's best interests; and
3.then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
b.Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child's best interests, including the proposal to relocate.
In his closing submissions senior counsel for the father said words to the effect:
There is no dispute as to counsel for the applicant mother's legislative pathway.

The proposals of the parties

The applicant mother's primary proposal was that the children relocate with her to E Town at the beginning of 2018. They would spend time with the father for the whole of the terms 1 and 2 school holidays and for four weeks during the Christmas vacation. The children would spend each alternate weekend with the father in E Town, with the mother to meet the cost of two of his return flights per term. She would also purchase air tickets for the children's travel to Sydney for the terms 1 and 2 school holidays.
The mother proposed that she would make her apartment at Suburb V and her car available for the father's use while he is in E Town to spend time with the children. These arrangements would be free of charge to the father. The mother proposed regular Skype communication between the father and the children. The mother's proposal included overseas travel for the children with each parent. She proposed that the travelling parent provide to the other party eight weeks' notice and full particulars of the overseas arrangements.
In the alternative, the mother proposed that she and the children live within a fifteen kilometre radius of Suburb X School. The children would spend time with the father each alternate weekend and for three hours on each other Monday afternoon. They would spend half of the terms 1 and 4 holidays and the whole of the April vacation with the father.
The father proposed that the children live with each parent in week-about equal time arrangement during school term time. They would spend equivalent time with each parent during school holidays. The father proposed that the children communicate with each parent by telephone, Skype and email on an unrestricted basis. As noted, he sought an injunction to restrain the mother from moving the children's usual place of residence outside a fifteen kilometre radius of Suburb H Public School.
The father made no proposals as to the time which the children should spend with him if they relocate with the mother to E Town. The only alternative proposals put by the father were based on a scenario in which the mother relocated to E Town without the children. Nothing in the mother's affidavit or the two expert reports provided any basis for the father to assume that the mother would relocate without the children. In fact, the single expert reported in December 2014 that the mother "said that she would never choose to relocate to E Town without the children". The father proposed to continue to live in Sydney, if the children relocate to E Town with the mother.
Each of the parties proposed that there be equal shared parental responsibility for the children. They both sought orders that the children spend time with each parent on special occasions.

Section 60CC considerations

Section 60CC(2)

There is no doubt that each of the children enjoy and benefit from a meaningful relationship with both of their parents. In the first report, the single expert opined as follows:
70.This is a matter where the children appear to have a strong and loving relationship with their father. While the children certainly appear influenced by their mother's wishes and views, there was no evidence that [Ms Stadler] has been anything other than encouraging and facilitative of [Mr Blau's] relationship with the children and this is borne out by the children's strongly expressed wishes to maintain regular visits with their father if they move to Queensland.
71.At the same time, [Ms Stadler] has been the children's primary caregiver since birth and she gave up paid work in order to do this. The children have been used to their father coming and going out of their life and their mother being the constant. Their relatively smooth adjustment to the separation reflects this reality.
As appears below, however, the co-parenting relationship between the parties regrettably has deteriorated since December 2014. In the second report Ms U described the children's situation as one of "[living] in the middle of a toxic parental conflict where they have to devote an inappropriate amount of time to ‘managing’ this conflict by trying (without any real prospect of success) to keep both parents happy."
In his affidavit, the father expressed concern that the mother's partner Mr Q may present a risk to the children.
He deposed as follows:
99.I know very little about [Ms Stadler's] partner [Mr Q]. Documents produced under subpoena by the Queensland Police Service (which I will seek to have tendered on my behalf at the final hearing) seem to suggest that [Mr Q] may have anger management issues and/or violence issues in circumstances where he has been convicted of a Breach of a Domestic Violence Order and Assault. This is concerning to me and I am concerned that our children will be exposed to behaviour which may put them at risk."
In fact, no such Queensland Police Service documents were tendered in the case for the father. In his affidavit Mr Q deposed that he has four criminal convictions, the most recent being in 2003. He explained that he was involved in a bar fight in approximately 1995 and an incident at a sports event in about 1998, both of which occurred when he was affected by alcohol.
Mr Q deposed that a person who proved to be a plain-clothes police officer questioned his girlfriend "in an intense and aggressive manner", after a fight at the sports event, in which they had no involvement. Mr Q deposed that he pushed the man away from his girlfriend and was charged with assault of a police officer.
Mr Q deposed further that a former girlfriend obtained a domestic violence order against him in 1999, although their relationship involved no physical violence. He deposed that he contacted her on many occasions prior to the making of the order. He set out in his affidavit that he pleaded guilty to a breach of the order, after an incident at a nightclub which he could not recall as he was affected by alcohol.
Mr Q also deposed that he was convicted of supply of false or misleading information in about 2003. He explained in his affidavit that he applied for a handgun licence in the course of his employment at an E Town business and failed to refer to his previous convictions. His unchallenged evidence was that a part-owner of the business told him that it was unnecessary to refer to convictions which were older than five years and he relied on that advice.
None of this evidence by Mr Q was challenged by way of

cross-examination. No submission was put on behalf of the father to the effect that Mr Q poses a risk of any kind to the children. I find that there is no risk of exposure of the children to abuse, neglect or family violence in the care of either parent.

Section 60CC(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

In both reports, all three children expressed to the single expert clear views in favour of the proposed relocation. At the time of the interviews in December 2016 B, C and D were aged 14, 11 and 10 respectively. The single expert opined:
12.The children are now two years older than when they were first interviewed by the report writer. This is a significant period of time in terms of their developmental status, and in particular their cognitive capacity and emotional maturity. They are aged 14, 11 and 10 and as such, their views in this matter should carry considerable weight.
13.Each child expressed a view that they wish to relocate with their mother. After considerable reality testing of a number of possible future scenarios by the report writer, they continued to hold these views. The children also expressed a great deal of affection for their father and a strong wish for the conflict between their parents to end as soon as possible.
B told Ms U that she feels "more definite" now about the proposed relocation. She reported as follows:
20.[B] said that she is still very keen to move to [E Town], for similar reasons to those she talked about in 2014. [B] said that she is aware her father thinks that "Mum is putting it (wanting to move [E Town]) in our heads. That she is brainwashing us. But she's not". [B] was adamant that her views are her own. She said that she actually feels "more definite about (the proposed move) now than she did in 2014 and, in reflecting on why that is the case she said, going into high school has been hard. I was upset when I didn't get into the dance program. And there's so much drama in an all-girls school." She said that in the past two years, she has become very familiar and comfortable with [E Town] and she deepened her friendships that she has up there. B named her friends as being … (who both go to [E Town] High School). [B] said that she had also learned that "even though you have to audition for the (school’s) dance program, if you don't get in you can still do (dance) as an elective."
21.[B] said that while she understands that her father would not necessarily be able to travel to [E Town] to see her and her siblings on a regular basis, "I don't think we would lose touch with him. If he can't come up, then we could come down". [B] said that she would miss her father if she didn't see him as regularly, but we would really love spending time with him in the holidays."
The single expert reported on her interview with C as follows:
'26.In relation to the proposed relocation, [C] said that, I still want to move to [E Town]. I love E Town because my family is up there." The Family Consultant asked C if he was worried that he would end up spending less time with his father, if they moved. He nodded, and said "But my mum said that we could sort it out with Dad." [C] said that he would miss his father "a lot" if they didn't spend as much time with him as they do now. The Family Consultant asked [C] if the thought of how much he would miss his father (if their time with him was, for example, restricted to school holidays only) would change his mind about moving to [E Town]. After a long silence he said "well maybe we could come down for a long weekend?"'
The single expert explored with D his views about the proposed relocation and reported:
32.[D] was asked about his views in relation to a possible move to [E Town]. He said, I say to Dad that I want to move to [E Town] and he says to me that we won't really see him. But that's not true because we would see him in the school holidays." The Family Consultant asked [D] if he would miss his father, if they only saw him in the holidays. [D] said, "Yes, I would miss him but I still want to live in [E Town]. Because I want to live somewhere different. I am used to moving and it's an adventure." [D] said he has made a good friend in [E Town], … "and I've met some of his friends". [D] said that he would miss his friends in Sydney "but I am pretty good at making friends."
33.[D] said it would be "annoying" if the judge decided that he couldn't move to [E Town] "because I really want to go!" because all of our cousins and our granny lives up there and I don't get to see them much. And mum likes it because it's warmer". [D] said that his father doesn't have to worry about not seeing them as much "because I could see him in the school holidays and that's enough to keep things going."

The single expert opined that the father was "dismissive" of the children's expressed views. She noted that he told her that the Court should "determine what is in the children's best interests without taking the children's views into account (or at least not giving them undue weight)." In cross-examination the father said that he did "not think they understand the difference between holidays and living there, the consequences such as just driving to dad's place."
The father conceded in cross-examination that "it could be that [B] has weighed up the various options and reached her own decision". He said that he has not discussed the possibility of influence from the mother with B during the last two years. The father disputed the proposition that he is "not sensitive to her feelings."
As noted, the single expert observed in her first report that the children appeared to be "influenced by their mother's wishes and views". In her second report and in her oral evidence Ms U referred to "reality testing" of the relocation proposal which she had carried out with the children. In her oral evidence she said words to the effect:
They are very familiar with [E Town], unlike in relocation cases. I did a lot of reality testing, for example what about if dad is not able to get up there as often as everyone would like, note school term visits, and they still said they wanted to go. We also talked about the difference between holidays and living there. On that point they were virtually unshiftable.
I accept the evidence of the single expert as to the "reality testing" which she carried out with the children in relation to the relocation proposal. I accept her expert opinion to the effect that the views of the children are based in the reality of their own experiences and are not attributable, in any substantial sense, to influence by the mother. In her oral evidence, Ms U summarised her opinion as to the views of the children as "my view is that their views are their own."
I agree with the expert assessment of Ms U that the views of the children should carry "considerable weight". I do not suggest that the children's views are determinative of any parenting issue, including that of the proposed relocation. I am satisfied that the children have attained an age and level of maturity such that substantial weight should be attached to their stated views.

(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)

As noted above, the evidence demonstrated that the children enjoy a close and loving relationship with each of their parents. B expressed to the single expert that she likes Mr Q and R but harboured reservations in relation to Ms T. C and D also expressed reservations in relation to Ms T to the single expert.
In December 2014 B said to Ms U that she "really likes" Mr Q and R. She outlined in favourable terms the process by which the mother introduced Mr Q into the lives of herself and her brothers. B described to Ms U that the mother arranged for the children to become acquainted with Mr Q and to share activities with him and his son, before she made them aware of the relationship. She said that the mother asked the children "if he could be her boyfriend" and that they "said great". B also commented favourably on the mother's informing the children that she would not live with Mr Q immediately upon a relocation to E Town.
The child B contrasted the mother's introduction of Mr Q to the children's experience of the entry of Ms T into their lives. Ms U reported as follows:
22.[B] reflected on the introduction of her father's partner [Ms T] in 2015. She said that "It was REALLY unexpected! She was suddenly living with him, after he told us (that they were together) in [Country G]. We didn't really get time to adjust. And now they're getting engaged. They had a surprise engagement party (on the most recent trip to [Country G]) and they didn't tell us (beforehand)." [B] said that she doesn't get on that well with [Ms T] because she still feels somewhat put out by the way in which [Ms T] was (in her eyes) so quickly introduced to [B] and her siblings and then almost immediately commenced living with [Mr Blau]."
The child C also expressed to the single expert dissatisfaction about the way in which the father introduced Ms T to the lives of the children. He said that "it was a bit of a shock". When the father was asked to comment on this statement in cross-examination, he said "it is hard for me to say whether we rushed it …"
The child D also made adverse comments in relation to Ms T. The single expert reported as follows:
30.… In relation to his father's partner, [D] said that "[Ms T] was visiting Dad's house but Dad didn't tell us (that she was his girlfriend). I wasn't that happy when [B] told me about them. Because sometimes [Ms T] can be a bit bossy. I can't really remember who but one time she made [C] really upset."
In her oral evidence Ms U said that the children had provided to her additional information concerning Ms T, which they did not wish her to convey to the adults. She said words to the effect: "The children expressed other views about [Ms T] that they wanted to be off the record because they did not want to hurt adults. It had nothing to do with their safety." Ms U did not elaborate further what the children said to her in relation to Ms T.
I am satisfied, and I find, that the children enjoy a close and loving relationship with each of their parents. I am satisfied that they like Mr Q, and his son R, and that they are comfortable and relaxed in their company. I conclude that the children have unspecified reservations concerning Ms T but which are not of such a nature that they are reluctant to spend considerable time with the father.

(c) the extent to which each of the child’s parents 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

There was no evidence that either parent has failed to take up an opportunity to participate in decisions concerning major long-term issues in relation to the children. Both parties have complied with interim orders in relation to the children's time with the father.
The father complained that the mother has not afforded him time with the children in addition to that which has been provided by interim orders. Simultaneously, he complained that the mother has asked him to care for the children when she travelled to E Town. The mother contended that she has provided the father with additional time on approximately thirty occasions, while he maintained to the single expert "in three years, all I have got is three extra nights." There was no objective evidence to corroborate the contentions of either party.
I am satisfied that each of the parties is a committed parent but, regrettably, their mutual distrust and acrimony compromise their capacity to cooperate with each other in relation to the children. The single expert has pointed out to the parties the likely impact upon the children of their situation of "[living] in the middle of a toxic parental conflict". It can only be hoped that they take steps to address this serious concern raised by the single expert.

(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

In my view, the evidence gave rise to some concerns with respect to the father's attitude to payment of child support and provision of financial assistance to the mother, with whom they live for greater time. Arrears of child support have accrued and the father has made a number of applications for deduction of non-agency payments.
The father owed arrears of child support of $2,139 as at 10 October 2014 (mother's annexure 13). He had received approximately CAD $42,000 from the proceeds of sale of a cottage in Country G by 5 August 2014 (Exhibit 13). In cross-examination the father said that there were no arrears of child support between June 2014 and 5 August 2014. If that is the case, arrears accrued between August 2014 and October 2014. At that time, the father had funds available to him from the proceeds of sale of the property in Country G.
On 18 February 2014 a Child Support Agency officer wrote to the mother and informed her that certain non-agency payments had not been credited as sought by the father. This letter contained the following table:

Date of payment	Type	Description	Amount we were asked to credit	Amount credited	Amount disallowed	Reason if disallowed
17/12/2013	Third Party Payment	LUNCH ORDER	$20.29	$0.00	$20.29	No Mutual Intention
30/11/2013	Third Party Payment	FOXTEL	$84.30	$0.00	$84.30	No Mutual Intention
16/12/2013	Third Party Payment	HOME LOAN	$300.00	$0.00	$300.00	No Mutual Intention
17/12/2013	Third Party Payment	CHILDRENS CLOTHES	$108.39	$0.00	$108.39	No Mutual Intention
13/12/2013	Third Party Payment	ELECTRICITY	$434.26	$434.26	$0.00
14/12/2013	Third Party Payment	CAR REGISTRATION	$236.00	$236.00	$0.00
16/12/203	Third Party Payment	HOME LOAN	$500.00	$0.00	$500.00	No Mutual Intention
17/12/2013	Third Party Payment	CAR INSURANCE	$288.89	$288.89	$0.00

Similarly, a Child Support Agency officer advised the mother of the following disallowed claims on 26 March 2014:

Date of payment	Type	Description	Amount we were asked to credit	Amount credited	Amount disallowed	Reason if disallowed
08/02/2014	Third Party Payment	BALLET CLOTHES / SHOES	$182.35	$0.00	$182.35	No Mutual Intention
07/02/2014	Third Party Payment	DENTAL FOR B	$263.00	$0.00	$263.00	No Mutual Intention
27/02/2014	Third Party Payment	SCHOOL ITEMS YR 3 BOOKS	$65.46	$0.00	$65.46	No Mutual Intention
27/02/2014	Third Party Payment	SCOOL (sic) ITEMS YR2 BOOKS	$83.09	$0.00	$83.09	No Mutual Intention
27/01/2014	Third Party Payment	SCHOOL ITEMS YR 6 BOOKS	$55.09	$0.00	$55.09	No Mutual Intention

In October 2015 the father's child support liability was reduced to $10,476 per annum, based on an income of $75,850. The mother sought a review and the Child Support Agency delegate set the father's income for the period 1 October 2015 to 31 December 2016 at $159,252 per annum. The father elected not to participate in this review process.
The mother gave the following uncontradicted evidence of conversations with the father in relation to dental treatment for B and financial assistance in addition to child support:
258.In approximately mid-2016 [Mr Blau] and I have had consultations with a dentist regarding braces for [B]. The dentist said "The cost of full treatment for her jaw and teeth is going to be between $8,000 and $12,000." I said to [Mr Blau] "I can't possibly afford that". He said to me "I pay you child support so you have to pay these expenses". The dentist where [Mr Blau] booked [B] in is an expensive private [Suburb Y] clinic. I have said to him "Can't we take her somewhere a bit cheaper? He said "No".
259.This is predominantly a cosmetic issue for [B], although I agree I would like her to have braces. I plan to renovate and sell the apartment owned by me in [Suburb F], Queensland to pay my legal costs of these proceedings and I will also pay for [B's] braces from this money …
The mother also gave this uncontradicted evidence:
265.At least once per term I say to [Mr Blau] "Can you please give me some extra money for the kids' activities?" as the child support which [Mr Blau] pays only just covers their education and basic costs of living. [Mr Blau] always says "Everything is covered by child support. I'm not paying you any more."
As appears below, the father alleged that the mother has manufactured a situation of financial hardship in Sydney in order to bolster her case for a relocation to E Town with the children. This mindset seems to colour the father's attitude to the level of financial assistance which he is prepared to offer to the mother for the support of the children. I consider that the disallowed claims for non-agency payments illustrate this attitude on the part of the father. Nothing in the evidence suggested to me that his approach is likely to soften in the foreseeable future.

(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

A change in the nature, duration and frequency of the children's time with the father would be an inevitable consequence of a relocation to E Town. For the purposes of this subsection, the issue is the likely effect on the children of any change in their circumstances.
I have referred above to the evidence of the single expert as to the strength of the relationship between the children and the father. I have no reason to doubt her assessment that this relationship will "weather the storm of relocation". Ms U considered also that the children are all of an age which will assist them to cope with the relocation process.
I do not share the father's view that the children are incapable of appreciating the difference between permanent residence and holidays in E Town. As noted, the father conceded ultimately that B may have considered all of the options and made an independent decision in favour of relocation.
I accept that the single expert carried out effective "reality testing" with the children in relation to the impact upon them of a move to E Town. It seemed to me that the children gave thoughtful answers to Ms U when she discussed with them a potential reduction in their time with the father. As Ms U noted, they each offered suggestions to address that scenario. In that context, B and C offered to travel to Sydney to spend time with the father.
I do not accept the father's contention that the mother has engineered a situation of financial hardship for herself in Sydney. The father confidently asserted that the mother could obtain more lucrative employment and cheaper accommodation on the northern beaches. No examples of more lucrative employment or cheaper accommodation were put to the mother for her comment in cross-examination.
The father criticised the mother for her regular air travel to E Town. He deposed:
139.I assert that [Ms Stadler] prioritises meeting the costs of travel to [E Town] over meeting expenses that are referable to the children. …
I accept the mother's evidence to the effect that she makes advance bookings and secures the cheapest possible air fares. I accept also that she regards her trips to E Town as "a lifeline". There was no challenge to the evidence of Mr Q that "[Ms Stadler] and I have been splitting the costs of her flights home for the last three years."
In my view, the mother's economic circumstances would be improved by a move to E Town. Her two real estate purchases in E Town demonstrate that she is far more likely to achieve the financial security of ownership, of a home for herself and the children outside of Sydney. She purchased a townhouse for $132,000 in 2013 and a home unit from the funds which she received as a final property settlement in 2016. The purchase price of the home unit was not in evidence but the mother deposed that she received a net sum of approximately $166,000 from the final property settlement.
I accept the mother's evidence that she has made enquiries in relation to employment in E Town and has established contacts and a network during her trips to spend time with her family and Mr Q. I accept entirely the evidence of the maternal grandmother to the effect that she will offer practical assistance to the mother, for example by collecting the children on school afternoons. With this support, the mother is likely to have greater opportunity to increase her hours of work and income. In a practical sense, more favourable economic conditions are likely to improve the quality of life of the mother and the children.
A relocation to E Town would provide the mother with the emotional support of Mr Q on a full-time basis. Their relationship has subsisted for more than three years, in difficult circumstances of geographical separation and these unresolved proceedings. I accept the assessment of the single expert that their decision not to live together immediately was child focussed, rather than any indication of a lack of commitment to their relationship.
There was no challenge to the evidence of Mr Q that he could not move to Sydney to live with the mother. He deposed that his son and extended family live in E Town, where he owns a home. He has stable and secure employment in E Town. Mr Q gave unchallenged evidence that the mother and the children spend time regularly with his parents and his sister and her family in E Town.
I accept that the mother experiences genuine stress and unhappiness while living in Sydney. She began to pursue a life in E Town for the family prior to the parties' separation. Clearly, this wish on her part has intensified since the breakdown of the marriage.
The single expert observed in January 2017 that the mother "appeared more anxious and stressed and at times became quite emotional. She expressed a great deal of anger, frustration and at times despair with the fact that the dispute remains unheard and therefore unresolved". Ms U reported that the mother told her that she believed that her "emotional functioning has deteriorated over the last two years", "as the resentment of being trapped her (in Sydney) has built and built".
The mother told Ms U that she agreed that some of her emails to the father "verge on hysterical" and said that she was "freaked out and stressed out". The mother explained to Ms U that:
I know it doesn't sound good sometimes but they are the only release I have. It's like therapy for me. And really at the end of it all, I am still rational.
I will consider the contents of some of these emails below, in the context of the respective capacities of the parents to meet the needs of the children.
The mother deposed that she would have no cash reserves at her disposal within two years, if she is required to continue to live on the northern beaches. When Ms U raised this belief of the mother with the father, he replied "Her view is her view. I can't comment about whether she will run out of money".
Ms U noted that the father then became angry with her and said:
I really feel that I am being put in a position where I am being asked to try and work out all her finances for her. It's not fair. She's not working at full capacity and she can afford to take time to fly to E Town …
Ms U commented as follows as to the father's attitude to the mother's alleged situation on the northern beaches:
102.[Mr Blau's] attitude to [Ms Stadler's] assertions of future financial hardship appears to have hardened in the last two years. His attitude, in fact, bordered on dismissive and contemptuous and he showed a distinct lack of empathy for [Ms Stadler] and a lack of willingness to accept that her views have some objective validity."
I agree with this assessment of the single expert. As noted, nothing in the evidence gave an indication that the father's attitude may soften in the future.
The single expert was asked for her opinions as to the children's potential reactions, in the event that they do not move to E Town. In her oral evidence she said:
·"I think definitely there will be a period when she (B) would be angry with the father and think it is his fault. Teenagers are very black and white".
·"I think it would be fairly confronting for the children to not go to Queensland and move into week about. I can't say what would happen."
·"I think there are significant risks [if there is no relocation]."
The single expert was asked in cross-examination to comment on the father's proposal for an equal time week-about arrangement. She said: "On the situation as it stands, the essential elements for shared care are not present". She opined that a week-about arrangement would require:
·   close proximity of parents
·   parental communication
·   ability of parents to work together in a respectful way.
The single expert said that the fact that "the children are not enthusiastic about [Ms T]" "would not necessarily rule out shared care". She said children frequently have negative views about the partner of a parent. She said also that "shared care can work in a parallel parenting situation". Nonetheless, Ms U was not shaken in her view that "the essential elements of shared care are not present."
In his affidavit the father offered these perceptions of the current state of the co-parenting relationship between the parties:
·   "communication between [Ms Stadler] and me is strained"
·   "at present, there is little trust between [Ms Stadler] and I which I am of the view has arisen as a result of our respective positions concerning [Ms Stadler’s] relocation application"
·   "I recognise that a strained relationship between [Ms Stadler] and I impacts significantly on our children".
It thus seems to me that the father's own evidence is contra-indicative to his proposal for a week-about equal time parenting arrangement.

(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

As noted above, the father provided no evidence as to his current financial position. In cross-examination he said that his economic circumstances improved during 2016, in comparison to his 2015 position. The father conceded in cross-examination that he has not been "financially stretched" since December 2014. As also noted above, the Child Support Agency adjusted the father's income as an annual sum of $159,252 for the period 1 October 2015 to 31 December 2016.

The father made no proposal that he assist with the costs of the children spending time with him, in the event that they relocate to E Town. I am satisfied that he has the financial capacity to render this assistance but elected to make no proposal to do so. He stated in cross-examination that he and his partner would move to smaller premises, in the event of a relocation of the children, which would increase his disposable income.
Obviously, the mother's likely income in E Town is unknown at this stage. I have found, on the balance of probabilities, that her financial position is likely to improve in the event of a relocation. I am thus satisfied that the parties have sufficient economic capacity to maintain a meaningful relationship between the children and the father, if they move to E Town.

(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

and

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

The children's school reports (Exhibit 5) indicate that they are polite and

well-behaved members of their school communities and are achieving academically. In my view, credit is due to each of the parents for this personal and academic success of their children.
I consider that criticisms can rightly be levelled at each of the parties for aspects of their conduct since the separation. As noted above, I am of the view that the mother, the father and Ms T all behaved poorly during an incident on 29 November 2015.
The mother had purchased tickets for C and D to attend B's end-of-year dance concert, as had been the practice during the marriage. The children were in the care of the father pursuant to interim orders on that date. According to the father, the boys told him that day that they did not want to go to the concert. He agreed that they need not attend the concert, provided that they bought flowers and card for B.
The father then took D to a barbeque with friends. C had a sore foot and he remained at home with Ms T. The father left the barbeque and collected B's friend, whom he took to the dance concert. The friends at the barbeque returned D to the home of the father and Ms T.
According to the father, the mother confronted him at the concert and said that she intended to collect the boys from his home. The father responded by saying to the mother "I will call the cops". He rang the police and two officers attended the home.
Ms T deposed that the mother arrived at her home and demanded that she hand the boys to her. She maintained that the mother was screaming and hitting a gate. She told C that he "did not need to go" with the mother. The friends from the barbeque then arrived with D and, ultimately, the boys left with the mother.
According to the mother, Ms T said to her "get off my property or I will call the police". She asserted that the mother said to the father's friend from the barbeque "[Mr Blau] does this stuff all the time, he's trying to push me to have a nervous breakdown or kill myself!"
In cross-examination the father confirmed that he called the police and asserted that he had taken appropriate action. In cross-examination Ms T said that she "did not know what message it sent to [C]" when she told him not to go with the mother.
In my view, this incident involved unnecessary and non-child-focussed conduct on the part of all three adults. I consider that they all share in the responsibility for the stress which must have been placed on the boys. In my view, each of the parents was determined to have his and her own way and Ms T unquestioningly took the part of the father.
The father referred in his affidavit to multiple emails and text messages which he has received from the mother on the issue of relocation to E Town. He deposed:
I am concerned that [Ms Stadler's] emails have contained statements which have been bizarre at times, extreme, out of proportion and concerning in their contents even to the point where I have proposed, through my solicitors, that the children come and live primarily with me."
The father set out some of these communications from the mother in his affidavit and tendered further emails and text messages (Exhibit 7, 8 and 9).
There is no doubt that the tone and contents of some of the mother's communications with the father were rude, dramatic, threatening and which presented ultimatums unless he agreed to the proposed relocation. A particularly unmeritorious example was her threat, in November 2013, to create taxation problems for the father if he continued to resist the relocation to E Town (Exhibit 8). Inter alia, the mother wrote in this email:
If your answer is no, the next step for me is to make the final court submission which includes everything in our case (ie full financial disclosure) and once your tax evasion is down in writing the solicitor is bound by law to report it. I cannot stop or avoid this as I am also required to tell the truth about all financial information and clearly I would not be lying for you in court.
This email continued:
Do you know the saying? – be careful what you wish for – and if your wish is to force us to stay in Sydney you will end up burnt out with the stress and added responsibility and a whole load of debt including government fines, and a financial hole so deep you will never get out of it in your lifetime plus an unforgiving ex-wife and unhappy children who just beg me to take them with me every time I go to [E Town].
Despite his alleged concerns for the children, arising from the contents of the mother's emails and text messages, the father made no interim application for primary residence. Apparently, he was content to allow the children to remain in the care of the mother for nine days per fortnight and during the school holidays. His current application that the children live with each parent in a week-about arrangement, in my view, is similarly inconsistent with the concerns to which he deposed in his affidavit. I am conscious that the father contended that the quality of the parties' interaction has improved in recent times.
I accept the view of the single expert that:
"… [Ms Stadler's] behaviour towards [Mr Blau] comes from a place of high emotion, in particular her palpable frustration over what she views as his unconscionable continuing resistance to the relocation proposal and her sense of looming despair that nothing is ever going to change for the better."
I do not condone the rudeness and threats contained in some of the mother's correspondence with the father. It does seem to me, however, that her conduct should be viewed in the context of her emotional state.
I do not accept that the mother's email and text message communication with the father gives rise to concern in relation to her capacity to provide for the children's needs. I consider that each of the parties holds an unsympathetic and unforgiving attitude to the other, which impacts negatively on their capacity to co-parent the children.
The father maintained that the mother would impede his ongoing relationship with the children, in the event that they moved to E Town. I have difficulty with this contention, inter alia, in light of the mother's compliance with interim orders for the children to spend time with the father for a period of approximately three years.
The father's contention seemed to be that the mother's alleged failure to offer time in addition to that provided by orders means that she will not facilitate the children's relationship with him after relocation. As noted above the father complained simultaneously that the mother has not offered more than three days additional time and that she wanted him to care for the children to accommodate her travel to E Town.
The father's contention as to the mother's likely non-facilitation of the children's time and relationship with him, in the event of a relocation, is inconsistent with the assessment of the single expert. Ms U opined as follows:
113.It is the writer's view that this is not, in any sense, a relocation proposal motivated by a mother's desire to cut the father out of the children's lives. [Ms Stadler] has offered an apartment and a car for [Mr Blau] to use at any time he wishes, and she has proposed to fund one return trip to [E Town] per month for him to spend time with the children. It is likely that she will agree to virtually anything [Mr Blau] wants (in regards to spending time with the children) if she is relieved of what is for her, a crushing sense of anxiety, and a lack of hope about her future, if she were to remain in Sydney."
I consider that Mr Q would play a positive role in supporting the children's relationship with the father if they move to E Town. He has implemented a flexible shared care arrangement for R with his ex-wife. He accommodates at least three trips per year to North America for R with his mother. He stated in his affidavit that these trips mean that he sometimes does not see R for a month but he understands that he likes to see his maternal family.
I do not accept the father's contention that the mother will fail to facilitate the children's relationship with him if they move to E Town. In my view, there are strong indications to the contrary. The mother has a history of compliance with orders, including arrangements for the children to travel to Country G with the father. The single expert did not consider that the mother is motivated by any desire to remove the father from the lives of the children. Mr Q has an admirable record of flexible and constructive co-parenting of R with his

ex-wife.

(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

In my view, there is likely to be further litigation in the event that the mother is required to remain living on the northern beaches and depletes her available money in approximately two years. In practical terms, her situation would become unsustainable in these circumstances.
The single expert noted that B will be a Year 11 student in two years and "at a critical stage". Implicitly, Ms U expressed concern at the likely impact on B of a breakdown of the mother's living arrangements at that time.

Equal time or substantial and significant time

The father confidently asserted to the single expert "I know they want more time with me". The children made no statement to Ms U to that effect. In fact, they all spoke in favour of the proposed relocation.
Ms U reported:
108.Each of the children was clear that they would miss their father if they didn't spend time with him as they do now, but it was not enough to make them change their minds about moving. The Family Consultant commented that they might only see their father in the school holidays or perhaps only for one night in a weekend on occasions; and they each said that while this would not be ideal (and made some thoughtful suggestions of how this issue could be overcome) it was not a deal-breaker for them. They instead talked about how much they enjoyed doing things like going to [Country G] with their father to see their family over there and how this was similar to them wanting to move to [E Town]."
The children thus expressed to the single expert no wish to spend increased time with the father. In fact, they opted for relocation to E Town in circumstances where Ms U clearly directed their focus onto the consequent reduction in time with the father.
I have referred above to the evidence which the single expert gave in relation to the difficulty of an equal time arrangement. I have referred also to the father's own evidence of the existence of factors which would militate against a

week-about regime.
The single expert did not consider that the children's apparently problematic relationship with Ms T was a determinative factor against equal time. Nonetheless, this matter raises concerns as to the children's attitude to spending increased time with Ms T. The likely impact of increased time with Ms T is an unknown factor.
I have referred above to the expert opinions of Ms U in relation to the likely reactions of the children, in the event that they are unable to relocate to E Town with the mother. She referred to "significant risks" in that scenario and her view that there will "definitely" be a period in which B will be angry with and "blame" the father.
I have referred also to my assessment that the mother's emotional state and economic circumstances will be highly likely to improve if she and the children relocate to E Town. I accept the submission on behalf of the mother, to the effect that there will be beneficial flow-on effects to the children in such circumstances.
The father will not move to E Town and the mother is not prepared to leave Sydney without the children. Accordingly, an equal time regime can be implemented only if the mother and the children remain in Sydney. For the above reasons, I am satisfied, and I find, that equal time is not in the best interests of the children given that this regime could occur only in Sydney on the proposals of the parties.
In my view, similar considerations militate against an arrangement of substantial and significant time for the children with each parent. Such a regime can be accommodated only if the mother and the children remain in Sydney.
Equal or substantial and significant time with each parent would not be reasonably practicable, if the children relocate to E Town with the mother. The flight time between Sydney and E Town is approximately three and-a-half hours.

Conclusion

I have concluded that a relocation to E Town with the mother will best meet the interests of the children. It is then a question of determining what arrangements should be put in place for the children to spend time and communicate with the father.
The mother's alternate proposal of a move to the Suburb X area found no favour with the father and appeared to be a compromise which she offered only with considerable reluctance. In my view, the many unknowns which such a move would involve signal that no further consideration need be given to this proposal.
The single expert recommended that the children spend six nights per fortnight with the father, until they relocate to E Town with the mother at the beginning of 2018. She was clear that this arrangement was intended as a temporary measure, intended to bolster the relationship between the children and the father prior to their departure for E Town. The mother offered her consent to this proposal. Neither party submitted a Minute for the purposes of implementation of this proposal.
As noted, the father elected to put no proposals as to arrangements for the children to spend time and communicate with him in the event that they relocate to E Town with the mother. His submissions did not address the proposals of the mother in these circumstances. In these circumstances, I will adopt substantially the proposals of the mother.
It will be a matter for the father to decide whether he wishes to travel to E Town as frequently as is contemplated by the proposals of the mother. I will make orders which require the father to nominate in advance the dates upon which he proposes to travel to E Town to spend time with the children.

I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 23 June 2017.

Associate:

Date: 23 June 2017

[2017] FamCA 452

23 June 2017

Key Legal Topics

Areas of Law

Family Law