Tassell & Bannister
[2023] FedCFamC2F 688
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tassell & Bannister [2023] FedCFamC2F 688
File number(s): DGC 2010 of 2022 Judgment of: JUDGE JENKINS Date of judgment: 9 June 2023 Catchwords: FAMILY LAW Relocation – mother lives in City B, Victoria – father lives in City C, Western Australia – father a transport worker with the Armed Forces – father is likely to move again in next twelve months – risk to children – children with special needs – ability to meet needs – neglect – lack of supervision – exposure to drug affected persons – splitting siblings – children permitted to relocate to live with the father Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CA, 60CC, 65DAA
Cases cited: AMS v AIF [1999] HCA 26
A & A: Relocation Approach [2000] FamCA 751
Godfrey & Sanders [2007] FamCA 102
Grella & Jamieson [2017] FamCAFC 21
Heath & Hemming (No 2) [2011] FamCA 749
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Morgan & Miles [2007] FamCA 1230
MRR v GR [2010] HCA 4
Starr & Duggan [2009] FamCAFC 115
Taylor & Barker [2007] FamCA 1246
U v U [2002] HCA 36
Wendland & Wendland [2017] FamCAFC 244
Division: Division 2 Family Law Number of paragraphs: 146 Date of last submission/s: 3 March 2023 Date of hearing: 27 February - 3 March 2023 Place: Melbourne Counsel for the Applicant: Ms Bastick Solicitor for the Applicant: Johnstone and Reimer Lawyers Counsel for the Respondent: Mr Wiener Solicitor for the Respondent: Van Beveren Lawyers Counsel for the Independent Children's Lawyer: Mr Goddard Solicitor for the Independent Children's Lawyer: Taft Lawyers ORDERS
DGC 2010 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR TASSELL
Applicant
AND: MS BANNISTER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE JENKINS
DATE OF ORDER:
9 JUNE 2023
THE COURT ORDERS THAT:
1.All previous parenting Orders be discharged.
2.The mother and the father have equal shared parental responsibility with respect to the children, X ("X") born in 2011, and Y ("Y") born in 2013 (collectively "the children").
3.The children live with the father commencing 30 June 2023 or such other date as agreed between the parties in writing.
4.The children be permitted to relocate to wherever the father is posted by the Armed Forces provided the location is in the Commonwealth of Australia.
5.The children spend time and communicate with the mother as follows:
(a)by FaceTime/video call as agreed between the parties, or failing agreement, each Thursday and Sunday for a period of up to 30 minutes with the mother to call the father at 7.30pm and for such purpose the father ensure:
(i)his mobile's/ electronic device's battery is adequately charged to receive the calls;
(ii)the children are available to receive the call; and
(iii)the children are afforded privacy during their communication with the mother.
(b)notwithstanding any period the children are living with the father:
(i)at 2.00pm on Christmas Day and at 7.30pm on the children's birthdays, the mother's birthday, Easter Sunday and Mother's Day by FaceTime/video call for a period of up to 30 minutes with the mother to contact the father and for such purpose the father ensure:
A.his mobile's / electronic device's battery is adequately charged to receive the calls;
B.the children are available to receive the call; and
C.the children are afforded privacy during their communication with the mother.
(ii)for the gazetted Western Australian school term holidays, or the relevant school term holidays applicable to where the father is living at that time, as agreed between the mother and the father in writing, and failing agreement, with their mother, for ten days, commencing two (2) days after the conclusion of the school term;
(iii)for the gazetted Western Australian long summer school holidays, or the relevant long summer school holidays applicable to where the father is living at that time, unless otherwise agreed between the mother and the father in writing, the children shall be in the care of the mother:
A.in 2023 and each alternate year thereafter, for the first half commencing from 4.00pm two (2) days after the conclusion of the last day of school term until 4.00pm on the day calculated to be halfway through the said holiday; and
B.in 2024 and each alternate year thereafter, for the second half commencing from 4:00pm on the middle Saturday until two days prior to the commencement of the new school year; and
(iv)at such further and other times as may be agreed between the parties in writing.
6.That during the operation of order 5(b)(ii) and (iii) herein:
(a)order 5(a) and 5(b)(i) shall be suspended;
(b)the children shall communicate with the father by FaceTime/video call as agreed between the parties, or failing agreement as follows:
(i)each Thursday and Sunday for a period of up to 30 minutes; and
(ii)at 2.00pm AEDT on Christmas Day and at 7.30pm AEDT on the children's birthdays, the father's birthday, the stepmother's birthday, Easter Sunday and Father's Day for a period of up to 30 minutes.
(c)with the father to contact the mother and for such purpose the mother ensure:
(i)her mobile's/electronic device's battery is adequately charged to receive the calls;
(ii)the children are available to receive the call; and
(iii)the children are afforded privacy during their communication with the father.
7.The operation of order 5 to resume after the conclusion of each of the gazetted school holidays.
8.For purposes of all changeovers, unless otherwise agreed between the parties in writing by text message and/or email, the following, shall apply:
(a)in the event that the parties are residing in the same state as each other, changeover is to occur as agreed between the parties in writing and failing agreement, at a mutually agreed halfway point between the parties' respective residential homes;
(b)in the event that the parties are residing interstate from each other, changeover is to occur as agreed between the parties in writing and failing agreement:
(i)the children shall travel between states by way of air travel in the accompaniment of the party in whose care the children's time is concluding, unless agreed between the parties in writing that the children shall travel as registered unaccompanied minors; and
(ii)changeover shall occur as agreed in writing between the parties, or failing agreement, at the assigned domestic arrival airport gate at the airport which the children are travelling into.
9.For the purposes of FaceTime/video calls between the mother and the children time references herein refer to the time zone where the children are residing.
10.For the purposes of any air travel for the children pursuant to orders 5 & 6, the expenses of any air travel shall be borne solely by the father.
11.For the purposes of any air travel requiring the accompaniment of a party pursuant to order 8, the party in whose care the children's time is concluding shall be at liberty to nominate an agent to accompany the children on their behalf, providing that the person is known to the children and has been agreed upon between the parties in writing at least 12 hours prior to any intended air travel.
12.The mother and the father keep each other informed in writing (including by text message) of their current residential address and mobile and/or landline telephone numbers and inform the other in writing (including by text message) of any changes thereto within 24 hours of such change.
13.The mother and the father shall be authorised pursuant to this order and if required they shall do all acts and things and sign all documents and authorities necessary, to allow each of them to:
(a)receive from any relevant authority or professional, information in relation to the children's health records including but not limited to medical and dental records;
(b)have access to and receive information from any medical/health professional(s) upon whom the children or either of them may attend upon from time to time;
(c)receive from any school attended by the children or either of them, all notices, reports, photographs, invitations (including but not limited to parent teacher interviews, fetes, concerts, open days and special events) and other documentation provided to parents by the schools and the expenses, if any, of such items received shall be borne by the receiving parent;
(d)attend upon the children's school upon any invitation issued on behalf of the school for any function including but not limited to parent-teacher interviews or otherwise for the bona fide purpose of enquiry as to the children's welfare or educational progress;
(e)attend any extra-curricular or sporting activity the children may be involved in;
(f)be named as an emergency contact at the children's school.
14.The mother and the father shall:
(a)inform each other by either telephone, text message or email of any serious injury or illness suffered or sustained by the children or either of them while in their care as soon as practicable following the onset of the said injury or illness;
(b)provide each other with the particulars of any treatment or medication required or received by the children or either of them;
(c)provide each other the name and address of any medical/health professionals involved with the children or either of them and be permitted to discuss or receive information concerning health issues from the said professionals;
(d)ensure that any prescriptions or prescribed medications for the children or either of them are administered when the children are in their care and accompany the children or either of them at changeover as required.
15.The mother and the father be and are hereby restrained by injunction from:
(a)denigrating the other party or any members of the other party's household or family members to or in the presence or hearing of the children or either of them, and from permitting any other person from doing so;
(b)discussing these proceedings with or in the presence or hearing of the children or either of them and from permitting any other person from doing so;
(c)exposing the children or either of them to any form of violence, threats or intimidation and from permitting any other person from doing so.
16.The mother be restrained by injunction from bringing the children into contact with Mr D.
17.The father shall do all acts and things necessary to renew the children's passports at least six (6) months prior to their expiry, at the parties' equal shared expense.
18.The father shall retain the children's passports and the mother shall ensure the children's passports are returned to the father within two (2) days of the mother returning to Australia following any travel with the children.
19.Each party shall be at liberty to travel interstate or overseas with either or both children provided that:
(a)the party intending to travel with the children provide the other with 28 days written notice of any intended international travel and 14 days written notice of any intended interstate travel;
(b)the party intending to travel with the children provide the other with a copy of the following documents no less than 21 days prior to the proposed international travel and no less than seven (7) days prior to the proposed interstate travel:
(i)a proposed itinerary;
(ii)a true copy of the children's travel tickets including prepaid return tickets; and
(iii)details of the intended accommodation and contact telephone numbers of where the children are residing.
(c)the party travelling with the children shall facilitate the other having reasonable telephone or video communication with the children whilst they are away; and
(d)the party travelling with the children shall facilitate makeup time between the children and the non-travelling parent as agreed in writing between the parties, if they are travelling with the children outside of their prescribed time pursuant to these orders.
20.For the purposes of order 19, the parties are not to withhold consent to any interstate or overseas travel unless the non-consenting party can provide reasonable evidence as to why the children cannot travel, within seven (7) days of the request to travel.
21.The parents communicate in relation to the children via the parenting application, App Close.
22.In the event the father receives written confirmation of an international posting the parties have liberty to apply on an urgent basis.
23.The Independent Children's Lawyer shall provide a copy of the psychiatric assessment of Dr E dated 12 September 2022 to the mother's counsellor Ms F of G Counselling within seven (7) days hereof.
24.Upon compliance with order 23 hereof the Independent Children's Lawyer be discharged.
25.Pursuant to Sections 62B and 65DA of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Tassell & Bannister has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS
INTRODUCTION
This is a parenting matter regarding the care arrangements for X, aged 11 years and Y aged 9 years (“the children”).
The applicant father, Mr Tassell (“the father”), is 36 years old.
The respondent mother, Ms Bannister (“the mother”), is 36 years old.
The children currently live with the mother in City B, Victoria and spend time with their father in City C, Western Australia where he is posted with the Armed Forces. (“the Armed Forces”).
This is the father’s application to have the children reside with him and his partner Ms H (“Ms H”) in City C and any city to which he is reposted thereafter. They have been married since 2022. They have no children together.
BACKGROUND
The parents met in City B in 2008 and separated in or about March 2015.
After separation the children lived with the mother and spent time with the father on alternate weekends and school holidays.
In 2016 the mother relocated to City J with the children. At around this time the father and Ms H moved to Suburb K. City J is several hundred kilometres and approximately 4.5 hours’ drive from Suburb K. Both locations are in Victoria. The father and Ms H continued to spend alternate weekends and holiday time with the children.
In about 2016 X was diagnosed with high functioning Autism Spectrum Disorder (“ASD”). He is due to be reassessed however this is yet to occur.
In 2018 the mother commenced a relationship with Mr D (“Mr D”). They subsequently had twins; L and M (“the twins”) who at the time of the Trial were three years of age. M is thought to also have ASD although he has not been formally diagnosed given his age.
In late 2019 the mother and Mr D relocated back to City B with all of the children.
In 2021 the father joined the Armed Forces and commenced his training in City N, Victoria. The children continued to spend alternate weekends with Ms H in Suburb K, who would bring the children to City N to see the father. In 2022 Ms H relocated to City N.
In September 2021 the parties reached agreement that the children would live with the father and Ms H in City N from 7 January 2022. The parents dispute whether this was to be for one year or two years. Although not expressly stated in the agreement, the children thereafter spent time with the mother on alternate weekends.
The mother and Mr D separated in 2022. The twins live with the mother and spend time with Mr D as agreed.
In May 2022 the father received about two weeks’ notice that he would be reposted to City C.
The mother was made aware of this posting in May 2022. The father says she did not oppose the move. The mother says it was presented to her as a fait accompli and that she took time to process what it meant for her and the children.
The father relocated to City C in 2022. The children remained in the care of Ms H in City N and continued to spend time with the mother on alternate weekends.
On 12 June 2022 the mother overheld the children.
The father consequently initiated these proceedings on 28 June 2022.
The children have remained in the mother’s care on an interim basis. The father has spent time with them on weekends in Victoria, when he has been able to travel, and for three weeks in the 2022/23 Christmas holidays in City C.
THE EVIDENCE
It has not been possible to include every aspect of each of the parties' evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
THE RELEVANT LEGAL PRINCIPLES
Relocation cases are often the most difficult cases for the Court to decide.
It is abundantly clear that whilst this matter involves a question of relocation, this is not a separate category of parenting cases. The law must still be applied, referring to the objects and principles of the Family Law Act 1975 (Cth) ("the Act"), the 'best interests' considerations pursuant to s 60CA of the Act, and to the rights of parents, including their right to choose where to live.
I am required to evaluate the parties' competing proposals and to consider the advantages and disadvantages to the children of each of those proposals. The question of relocation is not to be considered as a separate or discrete issue, but it is just one of the proposals for the children's living arrangements that I must take into account. These matters are set out in cases including AMS v AIF [1999] HCA 26 ("AMS"), A & A: Relocation Approach [2000] FamCA 751 ("A & A"), U v U [2002] HCA 36 and Taylor & Barker [2007] FamCA 1246.
As observed by Kent J in Heath & Hemming (No 2) [2011] FamCA 749 at [101]:
In some cases, the determination of “best interests” may well mean that one party’s choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child’s “best interests” being served by Orders which do not give one parent “optimal” arrangements or outcomes.
I note the following propositions as set out by Boland J in Morgan & Miles [2007] FamCA 1230 (“Morgan & Miles”) at [80]:
·That the child’s best interests remain the paramount but not sole consideration;
·That a parent wishing to move does not need to demonstrate "compelling" reasons;
·The child’s best interests must be weighed and balanced with the "right" of the proposed relocating parent’s to freedom of movement.
I observe however that the Full Court has made it clear that the principles set out in Morgan & Miles are not intended to be a checklist or even a definitive guide.
I also note neither party bears any onus to show why the children should be permitted to relocate to City C or be required to stay living in City B. My determination is to be made having regard to the whole of the evidence.
Section 65D of the Act directs the Court to make such parenting orders as it thinks proper. As to what is "proper", and how the Court's discretion is to be exercised, the Full Court of the Family Court of Australia in Grella & Jamieson [2017] FamCAFC 21 at [18] said:
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.
PARENTAL RESPONSIBILITY
The parties agree that there should be an order for equal shared parental responsibility.
Until the issue of relocation arose, the parties were able to negotiate parenting arrangements and otherwise make decisions for the children for a period of seven and a half years, without any Court orders, and did so despite the geographical distance between them. Under cross-examination the mother agreed that she, Mr D, Ms H and the father had parented together as a unit. She said they shared the same schedule, stating that “Ms H [Ms H] is great at that stuff”. Although this positive working relationship has been impacted by the father failing to notify the mother of his posting to City C before he spoke to the children about the move, the mother overholding the children and the litigation generally, it appears likely that the parties will be able to continue to make joint decisions for the children. Accordingly I find it is in the best interests of the children for the parties to have equal shared parental responsibility.
As I am making such an order, pursuant to s 65DAA of the Act I must consider firstly whether equal time is in the children’s best interests and whether an order to that effect is reasonably practicable. If the answer to either of those questions is negative, I must then consider whether substantial and significant time is both in the children's best interests and reasonably practicable. This is the approach set out by the High Court in MRR v GR [2010] HCA 4, in which the High Court emphasised the Court must be satisfied both that the order is in the child's best interests and reasonably practicable before consideration can be given to the order being made (emphasis added).
I am not required to consider the children's best interests or questions of reasonable practicability in any particular order. However, as suggested by the Full Court in Starr & Duggan [2009] FamCAFC 115 at [38] a logical approach would be to:
·first make findings concerning the relevant s 60CC factors;
·then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child's best interests; and
·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.
I shall follow that logical approach.
THE CONSIDERATIONS PURSUANT TO SECTION 60CC OF THE ACT
In determining the best interests of the children, there are two primary matters or considerations, and several additional matters or considerations I am required to take into account.
Section 60CC(2) of the Act sets out the two primary considerations I must consider being:
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying those primary considerations, I am required to give greater weight to the need to protect children from harm.
I must also weigh and consider the additional considerations set out in s 60CC(3) of the Act.
The primary considerations
Meaningful relationship
There is no dispute in this matter that the children would significantly benefit from having a meaningful relationship with both of their parents.
In the case of McCall & Clark [2009] FamCAFC 92 ("McCall"), the Full Court of the Family Court of Australia observed that whilst the Act does not provide a definition of the word "meaningful", they noted with approval the view of Brown J in the decision of Mazorski & Albright [2007] FamCA 520, in which her Honour said the term was synonymous with notions such as "significant", "important", "of consequence" and "valuable to the child".
In the case of Godfrey & Sanders [2007] FamCA 102, Kay J noted at [37]:
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
That was subsequently endorsed by the Full Court in McCall.
Ms R, who prepared the Family Report in this matter, was of the view that whilst on either proposal the quality of the relationship with the non-resident parent would be different, the children are of an age where they can maintain a meaningful relationship via FaceTime and holiday visits with the non-resident parent.
Risk of harm
This is not a case where either party asserts the children are at risk of physical harm by the other parent. The mother does however raise concerns about Ms H. In the Family Report, the mother alleged that the children are “terrified” of Ms H. The mother’s evidence is upon returning from visiting the father and Ms H in City C in October 2022 X told the mother he felt “unsafe” whilst staying with them. Whilst in City C he also started texting the mother and referring to Ms H as “the enemy”.
The mother says the children have complained about matters such as:
·If one child misbehaves both are punished;
·The children are only allowed limited time in the shower;
·That Y was told she could not have certain foods because they will make her “fat and ugly”;
·That the father and Ms H do not acknowledge Y’s fear of the dark or provide a night light;
·Ms H takes the children on long hikes over 10 kilometres;
·Ms H limits their times with friends; and
·Ms H has threatened to hit them with a wooden spoon.
Ms H and the father largely deny these allegations save that Ms H agrees that shower times are limited to 10 minutes (due to a limited hot water supply) and that both children may be disciplined if one complains because they may both be at fault. Of note, in the Family Report X identified hiking as a positive aspect of spending time with Ms H, not a negative one.
Furthermore, the allegations that the children were fearful of Ms H were not consistent with the observations of the children and Ms H in the Family Report. Nor has this been identified as an issue by the children’s school who say they present as “safe, secure, happy children”.
In addition, the mother did not raise concerns about Ms H, prior to the proposed relocation although she now says in her evidence that once the children moved to live with the father they would come back crying. It seems that the mother is not so much concerned about physical risk or neglect of the children but rather that they “were not enjoying their time” and that Ms H was “picking on them and making them feel guilty about the fact that they have been living with me [the mother] and not them” and or attempting to bribe them with promises of money to spend at the businesses and other things if they remained in City C. All of which are specifically denied by Ms H.
Ultimately the mother conceded under cross-examination that the children may be exaggerating some of their concerns and that she did not believe that Ms H would hit them with a wooden spoon. Furthermore, seemingly in contradiction to all of her concerns, she said that Ms H was “a great step-mother”.
In regard to the mother, whilst the father is not concerned about physical harm per se, he does raise the possibility of neglect. He says he has had concerns for some time and that these became more acute in 2021. Although the father did not report these concerns to the Department of Families, Fairness and Housing (“the Department”) a notification was received in 2019 as follows:
…concerns for lack of stability for the children in [Ms Bannister]'s care (children having no structure, often having McDonalds and watching movies rated M), [X] who is diagnosed with Autism having issues with emotional regulation (hitting himself, spitting and hitting other children at school), [Ms Bannister]'s mental health (depression) and allegations of [Ms Bannister] selling synthetic [illegal substances].
(as per the original)
However the Department did not take any action and there has been no subsequent intervention in regard to the children or the twins.
The father’s concerns relate to the mother’s accommodation, the children’s exposure to drug affected people at the mother’s retail business (“the retail business”), lack of supervision of the children, school absences, the mother’s ability to ensure the children attend specialist services and the mother’s general mental health.
In regard to the mother’s home, the father says he has had concerns about the state of the mother’s home, going back to when she lived in City J and annexes photos of her home from that time. Despite this, the father and Ms H stayed there on three or four occasions in order to spend time with the children. He also acknowledges that he had visited the mother’s houses in Suburb O and Suburb P, suburbs of City B, and that the conditions had improved, albeit he says marginally.
In terms of the retail business, the mother has historically been involved in running retail businesses which sell substances of dependence, firstly in City J and later in Suburb P. Part of her business was selling illegal substances of dependence or “Q” which attracted a certain kind of clientele, namely drug affected customers. It is not in dispute that the children were exposed to an incident which occurred at the City J business in which the mother was approached by a drug affected customer who threatened to stab her with a knife, although she was unsure if the person actually had a knife or not. During this incident the mother was on speaker phone to Mr D who was with the children at that time. The children subsequently reported hearing the event unfold. The father’s evidence is that the children have repeatedly brought up the incident and that they believe she was attacked with a knife and X may believe she was sexually assaulted. The father says the children report “drug men” loitering around the business premises and that they have to hide out the back. Furthermore, in August 2021 Y was worried about being “taken or touched” and that the people at the business premises were worrying her.
Dr E, who conducted psychiatric assessments of each of the parents and prepared a report dated 12 September 2022, reported that the mother:
…acknowledged that the children had been traumatised by the previous knife attack at the [business]… She acknowledged that the children heard everything on the phone at that point, noting that [X] had been somewhat disruptive at school and at home.
As a result of all these things, [Mr Tassell] approached [Ms Bannister] in or about September 2021, having prepared a parenting plan regarding the long term care of the children who were to reside with him and to have substantial time with her.
Mr D gave evidence that he estimated when he was working there they would average between “three to ten” drug affected customers per week. Furthermore, there was an incident in September 2022 in which Mr D attempted to intervene between two males fighting outside and was consequently injured. The children were apparently witness to this. However at Trial the mother gave evidence that she no longer sold illegal substances of dependence from the retail business and did not advertise regular substances of dependence as they could not compete with the retail businesses.
Despite the mother’s assertions, the father maintained that substances of dependence products are still the main source of income for the business, and in particular illegal substances of dependence. I note the mother in her Trial affidavit still refers to the business as “the substances of dependence business”.
Furthermore, even if I accept the mother’s evidence that she no longer sells substances of dependence, she conceded in evidence that she had recently collected illegal substances of dependence for nearby business owners as “a lot of businesses either side sell it”. Leaving aside the issue of the mother’s involvement in this illegal activity, and what it says about her parenting, the inference is that drug affected persons may still be loitering outside neighbouring businesses. Nonetheless, the mother’s case is that she intends for her business to move to online only so this would not be an issue. I have some difficulties with her evidence in this regard to which I shall return to in due course.
Nonetheless, the father’s case is that his concerns were not so high as to say the children ought not spend three weeks with the mother at Christmas and substantial time in each of the term holidays. It appears to me the concerns go more to the issue of whether the mother is able to meet the children’s needs rather than an unacceptable risk of harm.
However the father is clear the children would be at risk if brought into contact with Mr D. Mr D has been convicted of indecent assault with a child under 16 years being one or both of his then 3 and 5 year old half siblings, although the evidence was not entirely clear. Indeed, precisely what was alleged to have occurred is unknown. Mr D says he was never told and that no summary was ever read out. He says he pleaded guilty because “he did not have $100,000 to defend himself”. I do not accept that Mr D could have pleaded guilty without having been shown a summary or at the very least a summary having been read to the Court. Mr D must have been aware of the precise act he pleaded guilty to at the time of the plea.
Despite this, the mother’s Counsel argued that the father was aware that Mr D had a criminal history, including indecent assault, and did nothing which indicates he was not really concerned. The father denies this. It was further argued that the children have not made any complaint about Mr D. Nonetheless, given the seriousness of the charge and Mr D’s failure to acknowledge any responsibility for his actions, I find that the children would be at an unacceptable risk of harm if left alone with Mr D. Furthermore, given the mother does not believe he committed the indecent act and had no issue with commencing a relationship with him in the first place, despite his age and that he was a self-confessed user and dealer of illicit drugs, and that he is still her “best friend” I do not have faith that the mother would adequately supervise the children’s time with Mr D. As such a blanket injunction is necessary to protect the children. In making such an injunction I have assessed the risk to the children against inconvenience to the mother of having to ensure Mr D does not come into contact with them. I acknowledge the mother and Mr D share the care of the twins and that this will create difficulties, in particular for changeover, however this inconvenience is outweighed by the risk to the children.
Additional considerations
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 the Family Report dated 22 August 2022 Ms R stated that X seemed to have a preference for living with mother but that Y did not really express a view. In regard to relocating to City C, X said at [65] and [68]:
I'd feel quite sad, not only leaving my mum but leaving my little brother and sister behind. I play a lot with them. I would not want to leave them and they're my friends because we made such strong connections. And my other friends at school.
I could possibly manage. I reckon I could go a fair amount of time. One thing I won't manage is being without dad. I've been with dad my whole life.
(as per the original)
In relation to staying with his mother, X said at [66] and [69]:
I'd be quite happy. Jumping off the walls. I'd be sad leaving my dad. We've had awesome adventures together. What's wrong with using Skype. We have invented things for a reason; we invented Skype.
It would be hard for me to decide. I would want to stay at the [Suburb O] house. At the [Suburb O] house I’ve learnt to cook. Last night I made mashed potatoes. I first got my pen licence at mum's house.
(as per the original)
In regard to Y, Ms R reported at [78] and [79]:
[Y] was asked how she would feel if the adults decide they will live in [City C] with [Mr Tassell]. She said, "I wouldn't like it coz I'll only get to see mum on the holidays”.
[Y] was asked how she would feel if it is decided they live with [Ms Bannister], she said, "I'd still feel sad because I wouldn't get to see my dad as often. I would see my dad every second weekend". I then explained to [Y] that it would only be in the school holiday time.
(as per the original)
Prior to the Trial the Independent Children’s Lawyer (“the ICL”) spoke with the children who reported wanting to stay living with the mother.
However, X has been diagnosed with ASD and Ms R noted that as such he may view things as “black and white”. Her evidence is that both children also showed loyalty to the parent with whom they were with as a means of dealing with the conflict.
The mother’s case is that if the children wished to move to City C she would not stand in their way. The father also says that he consulted the children regarding their wishes in relation to the move and whether they would prefer to stay in City N with Ms H. As such, both parties appear to have given serious consideration to the children’s wishes in regard to this move.
Nonetheless, the children are young and X, although high functioning and quite confident, has ASD. In addition the children are potentially caught in a loyalty bind between the parents and at the time they were spoken to by the ICL had not seen the father for about two months.
Accordingly, the wishes of the children will only have limited weight in this matter.
The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
In the Family Report the observations of both parents with the children, were described in almost identical terms, that being they were both at [83] and [84]:
relaxed, comfortable, smiled easily and often, [they] made eye contact… [each parent] was very attentive, providing guidance and structure.
Ms R concluded that each parent and Ms H appeared to have a warm and close relationship with the children and she observed no concerns about the nature of the relationships.
I have already addressed the allegations against Ms H and the children’s alleged fear of her. However in regard to their relationship with her generally they appeared quite balanced in their comments in the Family Report and were able to identify both positive and negatives aspects of their relationship with her and each of the parties.
In the end, despite her express concerns about Ms H, the mother under cross-examination conceded she was overall “a great step-mother”.
The children are also reportedly close to the twins. The children have lived with the twins since their birth save for the period between January 2022 and June 2022 when they saw them every second weekend.
It was clear to Ms R that X “feels very close” to the twins and that Y was particularly close to L. However in regard to the boys, the mother’s evidence was that their bond was not the same after the children went to live with the father. Ms R's view was that this may not necessarily have been because of the change in living arrangements, as they saw each other each alternate weekend but rather may have been part of a natural process due to their ages. The mother also points out that because of their ASD they sometimes clash, so I cannot discount that this is a factor.
The extent to which each of the child’s parents have taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child
A refreshing aspect of this case is that the parents as well as Ms H and Mr D were able to effectively work together for many years to facilitate the children spending time with each parent and that they were able to make decisions for the children where required, without the intervention of the Court.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
On either proposal the children are likely to be impacted by spending large periods away from the other parent. If the children live with the father they will also be separated from their half siblings L and M.
In addition, the father does not dispute that upon graduating from Armed Forces training in mid-2023 he will be reposted interstate, although the father has applied for further training which if he is accepted would see him remain in City C for a further 6 to 12 months prior to the reposting. Any reposting is likely to be for a period of 3 to 4 years and could be to City S, City T, City U, Region V or City W but not Victoria. The father says he would be able to pick his type of work and his preferred work is based in City U.
However, the father's case is that the children are unlikely to be significantly affected by such moves. He argues the children have experienced a number of changes in their lives and have proven to be resilient. Ms H, in the Family Report, said that the children thrived when they moved to City N and that they were adaptable and formed friendships quickly.
Consistent with this, Ms R’s assessment at [93] and [94] was that:
[X] and [Y] are both at a developmental age where they are able to retain long-term memory, they are able to manage communication either by phone or facetime, skype or any video concept.
[X] and [Y] have well developed relationships with both [Mr Tassell] and with [Ms Bannister], so such relationships can be maintained over distance.
(as per the original)
In addition, Ms R was of the view that the twins were at an age where they would be able to remember the children and that this would be assisted by communication using FaceTime. Ms R’s evidence was that the children could continue to have a strong bond with the twins provided both parents facilitated and encouraged it. She noted that children are more accustomed to FaceTime these days and the children in this case would otherwise spend significant time in the school holidays together. She accepted the relationship would however be “different”.
In terms of future re-postings, Ms R’s evidence was that many armed forces children move “all the time”, including children who are autistic. It came to light during her evidence that Ms R had been married to an armed forces worker and her experience was that the force children were provided with a lot of support and that the families were well looked after. She also pointed out that the children would have additional support through school and ongoing counselling.
Although the mother’s case is that the children would be destabilised by the move, she also agrees that if they wanted to go City C she would have supported this. In addition the mother did not appear to believe that X had any particular need for stability given his ASD, stating that stability for Y was more of a concern. Indeed the mother was considering a further school move for X, despite the number of school changes X has already experienced.
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
The flight from Melbourne to City C is approximately 4 hours plus the drive to and from the airport to City B. The travel time will be even longer if the father is reposted to City W or City Z.
To his credit the father has offered to pay for the trips in each of the holidays, regardless of which orders are made. He may also be able to afford to fly to Victoria from time to time on weekends if the children reside in Victoria.
No matter where the father is posted to in future, noting that Victoria is not an option, the children flying to spend weekends with the other parent is likely to be impractical.
The children will be able to communicate via FaceTime, which will go some way to maintaining the relationship between visits but this is of course no substitution for the non-resident parent being involved in the children's day to day lives.
The capacity of each of the child’s parents and 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
As already discussed the father has had concerns about the mother’s capacity to care for the children on a full time basis for some time. Whilst he conceded she could generally meet their day to day needs it was the cumulative effect of ongoing care that was of concern to him.
The mother’s evidence was that managing the children used to be difficult but that it was no longer an issue. She says she manages her time and delegates.
The parties’ mental health
Both parties were psychiatrically assessed by Dr E.
Post-separation the father struggled with low mood and was briefly medicated. Dr E diagnosed him with adjustment disorder with depressed and anxious mood in remission. There is however no serious suggestion that his mental health is a live issue in this case.
The mother however has a long history of mental health issues. In Dr E’s report he records that the mother suffered:
…“massive” depression and outbursts from the age of 8 onwards which occurred in the context of her mother abandoning her. Those emotions have continued with her throughout her life.
Following X’s birth she was diagnosed with postnatal depression and has been managed with medication ever since. However, aside from a period in the middle of 2022 when she had psychotic symptoms following a medication change, she has been relatively stable.
Dr E’s diagnosis was that the mother suffered from depression and many mental health conditions. The latter was the consequence of a series of unstable and dysfunctional relationships. He concluded that overall there was “a conveyed sense of deep-seated longstanding vulnerability” and that she had:
little in the way of strong support network, has a longstanding psychiatric illness with depressive and anxious symptoms, somatisation, impressed as having limited insight as to her vulnerability and its impact on the children.
Dr E was concerned that because of the mother’s diagnosis that she would struggle to be on her own.
In terms of supports, the mother is estranged from her mother and her father lives in City J, although she speaks to him daily. Otherwise, the mother gave evidence that she is able to rely upon three friends; Ms BA, Mr BB and Mr BC. Little is known about these people as they were not on affidavit or called to give evidence. Whilst the mother’s Counsel submitted that the mother was not privately funded so had limited resources to arrange additional witnesses, the Court nonetheless has to base decisions on evidence and that evidence was simply not available to corroborate the mother’s position. The Court was therefore not able to assess the appropriateness, ability, willingness and/or commitment of these people in supporting the mother on an ongoing basis. The father understands the mother has some extended family living in her area but the contact is limited. The mother did not specifically mention this family. It appears that in the past the mother has also relied heavily upon Mr D for example in April 2022 when she changed her medication. This is problematic given the injunction that is to be made with respect to Mr D.
Nonetheless, Dr E was of the view that the mother had been endeavouring to manage her mental health by attending her GP for medication and counselling, which appeared to be of good quality. He noted she had been candid with her doctor in terms of needing changes in her medication from time to time. Although it was not clear to him how much work had been done on “trauma informed treatment”.
The mother’s work hours
Part of the father’s concern is the amount of time the mother works in the retail business, and his belief the children are either left unsupervised in the rear of the business or are allowed to stay home, which is across the road, on their own.
The mother told Dr E that she worked 6 or 7 days per week. Dr E reported:
[Ms Bannister] anticipates that the children will come with her to work. There is a playroom out the back. She acknowledged that in those circumstances she was likely to be “flat out” with four children under the age of 7, working 6-7 days a week. Part of the plan is that when the children are with her and home from school, she will close the [business].
The mother’s evidence in her Trial affidavit at [74] that:
The children are only ever left at home if I need to grab something from the [business] which takes no more than five minutes and they are left with a phone in case they need me or anything happens.
The mother also says that the children spend time at the business on Saturdays and school holidays “when I am unable to take time off”. The mother says the business has a playroom and a kitchen and bathroom so it is “no different from if I was at home with the children”. However there is clearly a distinction between spending time at home with the mother fully available than when she is working in the business, especially given the children’s special needs.
The father’s evidence is that it is not uncommon for the children to arrive home from the business after 7:00pm as that is when they have their video call with him. The children also tell him that they are allowed to go home unsupervised and X sometimes cooks the dinner. The mother denies this.
In any event, the mother’s evidence at Trial was that she now works reduced hours and that she has two friends who can watch the business in afternoons and on alternate Saturdays. As already discussed, neither of these friends was on affidavit or available to be cross-examined.
In any event, it appears that the mother does not obtain much of a financial benefit from its operation. Mr D gave evidence that she did not draw any wage from the business as there were essentially no profits after expenses other than to retain some “director’s drawings” to pay for her phone, fuel and groceries. The mother said the week before she received $300 “all up”. Under cross-examination, she said she did not expect to get “a proper wage” for about 12 months. However she also said she planned to shut the business and run it online although she had no experience of doing so, save for selling on websites. It is evident from this that the mother is likely to struggle to meet any additional costs such as after care and for her own counselling once her VOCAT payments cease.
I do not accept on the evidence before me that the mother has reduced her hours at the business or that she intends to close it entirely. These assertions were only raised in her evidence in chief and not in her Trial affidavit or in the Family Report. Furthermore, to reduce her hours the mother would need the support of others, and there is no evidence to corroborate her assertion that she has this support. I only have the mother’s evidence, which was vague as to the precise hours this support could be provided and for what period of time into the future. It was also unclear how she would be able to afford to pay her friends or if they were “volunteering” as well.
As such, I find on the evidence that the children spend substantial time at the business whilst the mother is working. Consequently it is probable that they are often unsupervised at the rear of the business and/or spend time in the business itself which exposes them to the possibility of coming into contact with drug affected customers.
School attendance
The father is also concerned about the number of absences the children have had from school. He has calculated that Y had 15 full day absences and 6 partial absences between June and September 2022 and X had 14 full day absences and 5 partial absences. Consequently an interim order was made on 11 October 2022 that the mother ensure the children attend school and if not, she inform the father by text and obtain a medical certificate. Since that time the father says that the children have continued to have a large number of absences and that the mother has not provided him with medical certificates.
The mother gave various reasons for school absences, including that Y has chronic stomach issues. Having heard the mother’s evidence, I do not accept her reasons for being unable to get the children to school. None of the reasons justified the number of days out of school save for possibly Y’s stomach issues however these were not mentioned in the mother’s Trial affidavit and were uncorroborated by medical evidence. Furthermore, despite what was allegedly a chronic problem, at the time of Trial Y was yet to undergo any testing to identify the issue.
These absences are significant given Ms R’s evidence as to the huge impact failure to attend school consistently has on children including not just academic but socially. Her evidence was it affects not only their sense of self but their confidence and their friendships.
The children’s access to allied health services
X has been diagnosed with ASD and suffers from anxiety and Post-Traumatic Stress Disorder. Y also has anxiety.
The father asserts that he and Ms H had largely arranged services for the children in the past. However the mother says she originally organised the speech therapist whilst they were living in City J but agreed in her cross-examination that Ms H was often responsible for medical appointments, especially around the time the mother had the twins. The father says between August 2019 and December 2020 he took the children to appointments on his alternate weekends. The mother says it was shared. However it appears common ground that between January 2021 and January 2022, following the father entering into the work premises, the children did not attend any services.
The father’s evidence is that upon the children coming into his fulltime care in January 2022 he was able to arrange services for the children through his employer. Ms H told Ms R that the children started with a counsellor in about March 2022 and attended seven or eight sessions in the time up until June 2022 when the mother overheld them.
It is also common ground that from June 2022, when the children went into the mother’s care, until January 2023, the children were again without allied health assistance. This was in spite of orders being made in October 2022 that the mother was to obtain referrals to a counsellor for the children and an occupational therapist for X and to thereafter ensure their attendance.
At the time of the Trial, X had attended only one session with a psychologist and that was in the week prior. This is particularly concerning given the behavior exhibited by X in September last year when he had sworn at school staff and thrown a chair which accidentally hit someone.
In the mother’s Trial affidavit she says that she has been continually making enquiries about speech pathologists and psychologists in the City B area, however she provides no evidence to corroborate this claim. Furthermore, whilst I accept the mother would have been subject to waiting lists in the public system, she had a myriad of other excuses for the delay in services which were less than convincing. For example with respect to X needing glasses the mother firstly said under cross-examination that she booked the optometrist but “they had to cancel” however later said she “got confused about the date and forgot”. In regard to attendance upon an occupational therapist she said she was not sure if one was required. However in the January 2021 report from Ms BD, occupational therapist, it was strongly recommended that X receive ongoing occupational therapy sessions on a regular fortnightly basis.
The mother’s concerns about the children in the father’s care
The mother does not seriously challenge the ability of the father to meet the children’s needs on a day to day basis. The mother told Ms R that the father “is a great dad and always has been” although she added Ms H “rules the roost but when Mr Tassell is on his own he is a great dad”. It is not in dispute that whilst in the fathers care the children were able to access allied health services as required and made substantial gains in key areas in their learning.
The father says that his work hours are from 8:00am to 4:00pm Monday to Friday, although he sometimes starts and finishes a bit later. The father’s evidence is that if he were unavailable, that Ms H would be able to assist with getting the children to and from school. Ms H’s evidence is that she will be looking for casual employment that fits in with the children’s schooling or that otherwise they would make use of out of hours care. The children had not previously attended after care but there was nothing in the evidence that suggested this would be problematic for them.
The Armed Forces have provided the father with confirmation that X has been recognised as a “dependent with special needs” and the father has provided evidence of the budget allocated for this purpose. Whilst the budget does not outline exactly what the funds are to be allocated for the mother did not dispute that X’s needs could and would be met by the armed forces. In addition, the father has identified a paediatrician, counselling services, occupational therapists and speech therapists in his area and confirmed their availability.
In regards to Ms H, she has been involved in the children’s lives since February 2016. Whilst the father was in training in City N in 2021 she cared for the children on alternate weekends. Ms H was also heavily involved in changeovers when the children lived in City J. Furthermore, she has volunteered at hobby classes, school camps and events. On the evidence I find she is more than capable of meeting the children’s day to day needs.
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
The matters relevant to this consideration have already been substantially canvassed.
Attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Part of the responsibility of parenthood is encouraging a relationship with the other parent. In this regard the mother is concerned that if the children were to move to City C, the father may move from there without telling her and that this may well include overseas. She says he has travelled interstate in the past without notifying her. However the father and Ms H emphatically deny not notifying the mother of their interstate travels. I do not accept that the father would move without notifying the mother or would in any other way fail to encourage the relationship between the children and the mother.
Another one of the responsibilities of parenting is protecting children from potential harm. In this case, there is reason to question the mother’s ability to do this, in particular because of her decision to enter a relationship with Mr D who was 19 years old and a user and seller of illicit drugs at or around the time she met him. The evidence was that Mr D was cautioned by the police for possessing illicit drugs in 2016. Of further concern however is that he said under cross-examination that he was not using the drugs at the time but rather was selling it and that it was only after receiving the caution that he began using the substance. In addition, as already discussed Mr D had a conviction for indecent assault on children of a similar age to the children in this matter at the time of Trial.
Ms R’s evidence was that the mother’s relationship with Mr D calls into question the mother’s ability to protect the children. I agree with that statement.
Any family violence involving the child or a member of the child’s family
Although raised in the Family Report, family violence is not seriously pressed as an issue in this case.
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
It is in my view preferable to make orders that will end the litigation between the parties, and not lead to further Court hearings.
Any other face or circumstance that the court thinks is relevant
It is undisputed that, in determining a parenting matter in which one parent wishes to relocate, the children’s best interests remain the paramount, but not the only consideration. It is settled authority that parents have a right of freedom of mobility, but that right “…must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent”, pursuant to the High Court’s decision in U v U.
In AMS, Kirby J said at [145]:
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.
(footnotes omitted; as per the original)
His Honour also said that the Court is not obliged to ignore parents' legitimate interests and desires, and cannot view the children's best interests "…in the abstract, separate from the circumstances of the parent with whom the child resides."
In U v U, Kirby J went onto say further at [146]:
Courts, exercising such discretions, should not ignore the disproportionate burden typically cast upon women by their being effectively immobilised as the custodial/residence parent.
In A & A, the Full Court of the Family Court of Australia observed that the ultimate issue in a relocation case is of course 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.
Whilst not required to provide a compelling reason for the move, it is apparent that the father as a transport worker had no choice but to move to his new posting in City C or leave the armed forces.
REASONABLE PRACTICABILITY
In determining whether it is reasonably practicable for a child to spend equal, or substantial and significant time with their parents, s 65DAA(5) sets out the following:
(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.
It is not reasonably practicable on either party’s proposal for the children to live in an equal shared care arrangement or to spend substantial and significant time with each parent, other than in the school holidays.
CONSIDERATION OF THE COMPETING PROPOSALS
Consideration must be given to each of the proposed arrangements of the parties. I am, of course, not bound by those proposals.
Advantages of the children living in City B with the mother:
(a)The children would be able to see their mother on a daily basis;
(b)The children would see their half siblings M and L on a daily basis;
(c)The children could stay in the City B area where they have been living for almost 12 months and where they lived for a couple of years prior to moving into the father’s care;
(d)The children could continue in their current routine.
Disadvantages of the children living in City B with the mother:
(a)The children would only see the father on school holidays or occasionally during the term;
(b)The children would spend large periods of time in the mother’s business after school and on weekends;
(c)The children would be left unsupervised for periods whilst the mother is working at the business;
(d)It is likely the children would be exposed to drug affected customers in the vicinity of the business on a weekly basis;
(e)It is likely the children would be unable to attend extra-curricular activities directly afterschool or on Saturdays;
(f)It is likely the children’s education would be disrupted due to absences and lateness;
(g)It is likely the children would not receive consistent ongoing treatment from their allied health professionals;
(h)The mother has limited supports to call upon if she struggles with the care of the children;
(i)The father would not be available to provide regular respite for the mother;
(j)The father would not be able to provide a check and balance as he would not be regularly seeing the children.
Advantages of the children living in City C or such other location the father should reside in Australia:
(a)The children would see the father on a daily basis;
(b)It is likely the children would consistently attend school and on time;
(c)It is likely the children would regularly attend their allied health professionals;
(d)The children would have access to specialist services through his employer;
(e)The father has the practical support of his wife, Ms H;
(f)The Armed Forces provides additional supports for relocated families;
Disadvantages of the children living in City C with the father or such other locations the father should reside:
(a)The children would not see their mother on a daily basis;
(b)The children would not spend time with L and M on a daily basis;
(c)The children would have to move cities and schools on a not infrequent basis which may impact their ability to retain friends.
DETERMINATION
It was put in final submissions that relocation cases are notoriously difficulty and that this is an extremely finely balanced case. I agree with those submissions.
However balancing all the considerations and taking into account the advantages to the children and the disadvantages to them of the competing proposals, I am satisfied that it is in the children’s best interests to live with the father and his partner Ms H in such location as the Armed Forces may post the father from time to time provided that location is within Australia. I accept that pursuant to the Full Court in Wendland & Wendland [2017] FamCAFC 244 this will effectively be issuing the father with a “blank cheque” in terms of relocation, however this will not extend to overseas. Without knowing the specific destination it is not possible to assess whether such a move would be in the children’s best interests including whether the location poses any risk to the children, whether their allied health needs could be met or whether it would otherwise impact their ability to maintain a relationship with the mother.
Whilst the move and any future moves will necessarily cause instability for the children, I accept on the evidence that the father and Ms H are better able to meet the needs of the children and provide day to day stability than the mother, including ensuring the children attend school and their allied health professionals. This will also minimise the time the children are at risk of being left unsupervised or exposed to drug affected persons at the business, although this remains a concern. In coming to this decision, I have considered the reality that the children are likely to be frequently cared for by their step-mother rather than a parent but for all of the reasons I have already mentioned, I find this to nonetheless be in the best interests of the children.
The parties otherwise proposed mirror spend time orders and various other orders by consent, accordingly I will make orders as proposed noting that where the mother is to FaceTime/video call the children the times refer to the time zone where the children are residing.
I will also make the injunction with respect to Mr D for the reasons already outlined.
In order to allow for the children to complete the current school term and to settle into the father’s care, the change of residence shall commence from the start of the Western Australia school holidays, noting this is half way through the Victorian school holidays, or on such other date as agreed between the parties to fit in with flight dates and times.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding one hundred and forty-six (146) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 9 June 2023
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