Tiegs and Tiegs

[2010] FamCA 912

FAMILY COURT OF AUSTRALIA

TIEGS & TIEGS [2010] FamCA 912

FAMILY LAW – PARENTING PROCEEDINGS – Mother’s application to relocate with children in order to live on a rural property with her de facto partner – Father seeking substantial and significant time with children – No great quantitative difference between the parties proposals – Court not persuaded that the father’s proposal is reasonably practicable – Court of the opinion that the mother’s proposal is more preferable than that of the father in accordance with the best interests of the child –  Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705– MRR v GR (2010) ALR 368 – AMS v AIF (1999) 163 ALR 501

Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705
MRR v GR (2010) ALR 368

AMS v AIF (1999) 163 ALR 501

Family Law Act 1975 (Cth) Section 65DAA

APPLICANT: Ms Tiegs

RESPONDENT: Mr Tiegs

FILE NUMBER: CAC 1244 of 2009

DATE DELIVERED: 11 August 2010

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Coleman J

HEARING DATES: 9 - 11 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Harper

SOLICITOR FOR THE APPLICANT: Farrell Lusher Solicitors

COUNSEL FOR THE RESPONDENT: Ms Wheeler

SOLICITOR FOR THE RESPONDENT: Friedlieb Byrne Solicitors

Orders

1. The current orders will continue until the commencement of term 4 of the school year, albeit, of course, Y is not attending school.

2. The parents have joint parental responsibility for the children, X, born … June 2004, and Y, born … June 2006.

3. The children spend time with the mother other than at times when they are with the father.

4. The children spend time with the father during school terms in each four-weekend cycle on weekends 1, 2, and 3,  such time to commence at the completion of school on the Friday preceding each of those weekends and to conclude with the commencement of school on the Monday or Tuesday following each such weekend, provided that if the father is unable to do so, the father shall collect the children from the mother in T at 5 pm on Friday, and the mother shall collect the children from the father in W at 5 pm on Sunday. The children also spend time with the father during each four-week cycle during school term from 5 pm to 7 pm in W on the Wednesday following the third weekend and the Wednesday following the fourth weekend, and the mother is to be responsible for delivering the children to W and returning them from W.

5. Subject to any other agreed minute of order, the children spend one week of each mid-year school holiday period with the father, which, in the absence of agreement, will be a period running from 5 pm on the Friday immediately following the end of school term to 5 pm the following Sunday week.

6. The children spend one half of Christmas school holiday periods with the father, which, in the absence of agreement shall this year, and in each alternate year thereafter, be the first half of such holiday periods, the second half of each such holiday period in the other alternate years.

7. Subject to contrary agreement, the children spend a period of not less than four hours on each of their birthdays with the father, which shall be spent in the T region if the birthday falls on a school day.

8. The children spend each Father's Day with the father in the event of that not being a period of time otherwise spent with him.

9. The children spend each Mother's Day with the mother in the event of Mother’s Day falling at a time which is not part of a period of time spent with her.

10. For Christmas Day 2010 and each alternate year thereafter, the children spend from 3 pm Christmas Day to 12 midday Boxing Day with the father. In Christmas 2011 and each alternate year thereafter, the children are to spend from midday Christmas Eve to 3 pm Christmas Day with the father.

11. Subject to any contrary agreement or an order of the Court providing otherwise, changeovers pursuant to these orders occur in a public place, be that a park, service station, or McDonald's, agreed from time to time by the parties.

12. Each parent is to permit the children to receive phone calls from the parent with whom they are not then spending time on a daily basis between 6 pm and 7 pm.

13. Each party is directed to authorise the children's schools, preschools, or other relevant entities to advise the other parent of any information relating to the children, including school reports, newsletters, notification of school activities, parent-teacher nights, and the like, and to inform the other parent of any emergent medical or other emergency in relation to the children.

14. In the event of either child suffering any illness or injury requiring medical attention or hospitalisation whilst in the care of either parent, that parent shall be authorised to take such steps and secure such treatment as shall be deemed appropriate at the time, and thereafter, as soon as practicable, notify the other parent of all relevant details relating to the child's health and safety.

15. Each parent is to advise the other of any change of landline or mobile telephone number within 24 hours of such change, and each parent is to notify the other parent of any change of address within seven days.

16. Reserve liberty to file a minute of order reflecting any consent variation to any of these orders within 21 days, and if there is a consent minute fine tuning, amending, or whatever, I will simply make that order in chambers and regross the orders to reflect that change.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER:  CAC 1244 of 2009

MS TIEGS

Applicant

And

MR TIEGS

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The proceedings before the Court are parenting proceedings pursuant to Part VII of the Family Law Act (“the Act”) with respect to two children.

2. The children, X, born in June 2004, and Y, born in June 2006, are the children of Mr Tiegs, hereinafter referred to as the father, and Ms Tiegs, hereinafter referred to as the mother.

3. The formal positions of the parties are set out, in case of the mother, in an application filed by her in July 2009. By that application, the proceedings were commenced. The mother's position as it now stands is, in essence, that during school term, the children spend in any four-weekend period the first, second, and third weekends with the father, and from 5 to 7 on the Wednesday in the week following the fourth weekend, which is also the week preceding the commencement of the next round of four weekends. Holiday contact, special occasions, and matters of that kind are also dealt with in the minutes of order sought by the mother. Although those matters have sensibly not been the subject of intense agitation at trial, there does not appear to be great disagreement between the parties as to school holiday provisions and what might be termed “special occasion provisions” appropriate to be ordered.

4. The father's position, subject to what follows, is set out in a document prepared by his counsel and headed Preliminary Summary of Argument, filed 3 August 2010, in which, under the heading A Parenting Case, a series of orders is set out. The crux of the father's primary relief is that, as pleaded, the children would effectively spend equal time with him and with the mother. The father's primary or preferred position is, as his learned counsel confirmed at the conclusion of the trial, slightly, but not insignificantly for legal purposes, different, in that he seeks, in essence, an 8/6 division of each 14 day period during school term in favour of the mother. To that extent, his primary position or preferred position has thus changed from seeking equal shared time to what, on any view of the evidence and the statutory provisions, would be substantial and significant time.

5. As is not in doubt, the mother's position is predicated upon her being able to have the children reside with her in the T area. The mother's position in relation to what she would do if the father's primary position were concluded to be in the best interests of the children, having regard to the relevant provisions of Part VII of this Act, is that she would, whether remaining where she currently lives or living somewhere else, move to a place which enabled her to comply with such a regime of time being spent with the children's parents, rather than suffer orders in accordance with the father's alternate position.

6. The father's alternate position if the Court does not prefer the mother's primary proposal, that the children primarily reside with him and that the mother spend virtually mirror reverse time with the children to that which the mother proposes if she is to reside in T with the children. The father's position, in essence, is that whilst it is possible that he may, if the children are to primarily reside in T with the mother, move closer to T, that is not his present intention.

7. The father advances a number of reasons, which are genuine and substantial, for adopting the position which he currently adopts. As he said to the author of the second family report, and it is there recorded, if the mother is permitted to have the children reside with her away from W so that equal or almost equal shared time cannot be practical, the father will do the best he can in that eventuality. The father's ultimate position - and it is clearly without prejudice to his primary and alternate position - is that if, contrary to his case, the mother is permitted to have the children primarily reside in the T area, he would seek the opportunity to have time with the children from after school Friday to the commencement of school Monday on each of the three consecutive weekends in each four-weekend cycle, which the mother proposes that the children spend with him.

8. It is common ground that whatever orders the Court makes, there will not be any alteration to the existing orders until the commencement of the term 4 school year this year.

9. The proposals of the parties are not in doubt in the case of the father, but for reasons which will emerge, less than entirely certain in the case of the mother. The father's proposals are set out in detail at paragraph 161 and following of his affidavit of evidence-in-chief sworn in July this year. Those paragraphs, most relevantly, are 161 to 174 inclusive. Whilst the mother has historically expressed some reservations about aspects of the physical accommodation provided by the father, the evidence before the Court establishes, on balance, that the father could provide adequately in every material sense for the children, when they spend time with him, for any duration and on any basis.

10. Historically, and in what the evidence suggests is somewhat of an overreaction, the mother has, in response to what could not unfairly be described as some hypervigilance, referred to DoCS complaints which she has had about the father's physical care of the children. Two observations are relevant in that regard. The first is that there is no evidence before this Court that DoCS found anything raised by the mother to give rise to a concern as to the safety and wellbeing of the children. The second is that, with respect to the mother, as her own evidence revealed, the mother's own arrangements for the children have, from time to time, put them at not dissimilar risk.

11. On balance, even if one accepted all of the evidence both in relation to what has happened, and what might have happened when the children have been with the father, and what has happened and what might have happened when the children have been with the mother, no cause for concern as to the physical welfare of the children arises in either household.

12. The father's arrangements offer a measure of continuity in terms of X’s attendance at school, although, as the family consultant reminded the Court, X is in the very early stages of his schooling, and some continuity in terms of Y’s attendance at preschool. The family consultant's observations with respect to X resonate with respect to Y. The father's arrangements involve his being able to be flexible with his current employment in terms of taking the children to various activities:  school, preschool, and the like. He has a support network which, although not the subject of evidence from the providers of such network, has not been the subject of criticism of which the Court is aware at any stage during the trial. The absence of any evidence from the father's carers, accordingly, cannot properly assume significance in the proceedings and certainly cannot be, in any way, the subject of adverse reflection in terms of the father's proposals. Depending upon where the mother lived, the father's proposals could involve a continuation of what the counsellor described as somewhat complicated care arrangements for the two children.

13. The mother's proposal is articulated in her affidavit of evidence-in-chief, also filed in July. At paragraph 79 and following, under the heading My Proposal for The Future, the mother sets out what she proposes. It is perhaps convenient at this point to particularly address a submission made by learned counsel for the father with respect to the mother's proposal. Although not either said in a condescending or unfair way and not taken as such, at least by the Court, the submission of learned counsel for the father was that the mother's arrangements, and perhaps even the mother, had been "all over the shop" in the post-separation period, and particularly in the last two years.

14. First it is appropriate to deal with the mother’s current proposal. That proposal is that if permitted to primarily have the children reside with her in the T area, the mother will live in the T area in a de facto relationship with a Mr S. The mother has known Mr S, the evidence reveals, since about the end of last year. Mr S is a 38 year old man currently employed on a farm. His background is in agriculture as a station hand. There is no evidence that Mr S is other than a man of good character.

15. Mr S gave evidence. He impressed, in his evidence, in ways that will shortly be referred to. The reality is that, notwithstanding the genuine and reasonable hopes and expectations of the mother and Mr S, it remains to be seen how enduring and successful their relationship proves. It can, in fairness to the mother, be said that there is no evidence before this Court to suggest that the relationship is ill-advised, that either party has rushed into it, that there has been tension, or that the introduction of Mr S into the lives of the children has been inappropriately handled, or unduly hastened, or anything of that kind.

16. Mr S and the wife hope to purchase rural acreage. The Court emphasises "hope" in that dynamic. It may be that they will be able to do so. It may be that they will not be able to do so. The Court is able to find, and does find, however, that whether on acreage or anything else they own or rent, or on whatever other basis they might occupy it, the mother and Mr S will provide adequate physical accommodation for the children if they are to spend time with them in the T region. The mother has family contacts in the T region. She has the “prospect” of employment there. That word is chosen advisedly.

17. The mother is currently in a casual teaching position in T. She has given evidence of her expectations. They are only expectations, albeit given her history, qualifications, and experience, it could not fairly be said that they are or have been shown to be unrealistic, naive, or ill-founded expectations. The Court does not assume or find that the mother will secure employment at T if she is permitted to have the children reside there. It is possible that she will, but not certain. What the Court is comfortable in finding is that whether it be in employment or otherwise, in some or all of the ventures the mother has referred to, the mother and Mr S would provide adequately, in a financial sense, for the children, if they are to reside in the T area with the mother.

18. Whatever the mother's financial circumstances, the evidence does not suggest that she has or would have had the wherewithal to have put in place arrangements which, for all she knows, might not find favour with the Court. Very few litigants do. Given that the mother has been constrained by orders of the Court from endeavouring to set up a home in T, the Court must temper any criticisms which it is tempted to make, or urged to make, in that regard.

19. What the Court can do, and does, is looks at a person's history of stable and adequate caring for, in this case, her children, as an indicator of what is likely to happen in the future. It is highly significant in this case that to his credit, the father considers the best interests of the children would be served by their spending eight out of every 14 days during school term with their mother. That fundamental truth has to be kept in mind when assessing which of the competing proposals is likely to be in the children’s best interests.

20. The mother, as indeed would the father, will continue to promote a relationship between the other parent and the children wherever they live. There is no evidence that Mr S would not continue to promote a relationships between the father and the children. The father's candour in relation to the topic, and his insightfulness, as that emerged in his evidence yesterday, leaves the Court with little concern that the father would encourage the relationship between the mother and Mr S. Viewed in isolation, there is nothing about the mother's proposal which renders it either inherently superior or inferior to that of the father. The proposals are reasonable in every relevant sense to which reference has thus far been made. The mother’s arguments for the children if she is required to remain in the W area can also be so described.

21. It is perhaps convenient to deal with the submissions on behalf of the father in relation to the mother's changes of proposal at this point. The reality is that the mother relocated the residence of the children in January of 2009 to a property outside G. The evidence in relation to that move, can fairly be summarised as being that the father did not oppose the move, albeit he had reservations and conditionally accepted the mother's position in relation to making that move. As is not in doubt, the mother changed her position over the course of a weekend later in 2009. The mother's explanation for so doing, in the Court's view, was compelling. The reality is, however, that by the end of '09, the mother was wanting to move elsewhere, and the orders of the Court obliged her to remain within the vicinity of W.

22. The mother said in evidence, and she did not say this critically of the learned Federal Magistrate who made the orders, that, to the extent that she has not secured her proposed future arrangements to a greater extent than she has, she has been constrained by the orders which have obliged her to remain within the vicinity of W throughout this year. That is the reality. The physical changes in the proposals by the mother, as she clearly recognised, both before the first and second interview, particularly with the family consultant, and in her evidence before this Court, have had the potential to cause the children to be unsettled and to have complicated their caring arrangements.

23. The issue is the likelihood, as at least inferentially was submitted on behalf of the father, of the past two years being but a preview of what is likely to occur in the future. As learned counsel for the father reminded the Court, courts have no greater ability than anyone else to predict the future. Regrettably, the statute charges the Court with predicting the future, albeit by reference to specified criteria.

24. The mother was in a relationship with another man during 2009. She confided in the father in relation to that on occasions. There was no real doubt that the relationship was of some significance, whatever its real nature and extent. The children were aware of the man in question. They were in contact with him. The relationship ended. Within a comparatively short time thereafter, albeit the evidence does not suggest with inappropriate or indecent haste, the mother formed a relationship with Mr S. The evidence does not, as noted earlier, suggest or establish that Mr S was foisted upon the children. Nor does it establish that the children have been confused as a result of the mother's involvement with Mr S, or with the man with whom the mother had a relationship in 2009. The issue, although not conceptually related, can be seen as, on one view, the mother having formed two relationships within two years, one of which foundered within a relatively short time.

1. Factually, that is correct. But looked at from the perspective of the children, the Court is not persuaded by any evidence it has heard that the mother acted rashly, or unwisely. She may, as she conceded in her evidence, to her credit, have perhaps risked putting her own interests above those of the children, but the evidence does not reveal that risk to have materialised.

2. Before proceeding to deal with other relevant matters, it is perhaps helpful to provide some geographical context as to what follows. The Court was provided, at the commencement of the proceedings, with a very helpful map. It is not a topographical map, but it is helpful in that it gives some indication of certain of the areas. Relevantly, for present purposes, the father, as noted earlier, lives in W. The mother and the children currently, under the interim orders of the Federal Magistrates Court, are residing on a property at a place called K. The parties disagree as to how long it takes to travel between the locations to which reference is now being and will be made. In short, and perhaps not surprisingly, the mother's side of the case tends to shorten the travelling times, particularly between T and W, the father to extend them somewhat more than does the mother and Mr S. On the document which the Court has been provided, there are indications of distances and travel times. No one has ever adopted the travel times, nor, for that matter, specifically adopted the distances. But the latter have not been seriously contested.

3. In the absence of anything better, and comfortable in the knowledge that so doing probably reasonably reflects a mean of the times advanced by the parties, the Court approaches the proceedings on the basis that something in the order of one hour 47 minutes, as exhibit H1 suggests, would be a reasonable time to drive between W and T.

4. If one said travel from T to W took two hours, that would be a working timeframe, having regard, as the evidence suggests, to the reality that there are, at times, likely to be logging trucks on a section of the road which is on the T end, it is apparent, ringed by State Forests, and having regard to the location, particularly, of the T end the road, its proximity to the National Park, likely that road conditions may not always be optimal, and that slightly slower speeds are appropriate. Where the mother currently lives, K, doesn't seem to be in serious doubt as about half an hour, or thereabouts, from W. The father’s proposal would be able to be accommodated if the mother lived at K. It would not if she were to live at T.

5. The credit of the parties, or credibility of the parties, might be thought to be significant in these proceedings. Each of the three adults, who gave evidence, impressed in various ways in the evidence each gave. It would be unrealistic, and probably unnecessary, in any event, to attempt to make a blanket finding that where the evidence is in conflict, the evidence of any one person is to be preferred to that of the other. All three adults presented as essentially honest and impressive in the evidence that they gave. It is noteworthy that both of the parents made significant concessions both against their own interest and in favour of the other party.

6. To the extent that the parties differ in their accounts of events, and subject to one matter, there is not significant disagreement, in any event. The Court considers the event of significant disagreement more referable to the different perceptions of the parties than to any dishonesty or other factors normally subsumed within the context of credit findings. As is not in doubt, having heard the evidence, the father's perceptions have, to some extent, and not unfairly, been coloured by his admitted frustration at the breakup of the marriage, some of the actions of the mother, and his struggle to come to terms with the reality that a marriage that he did not wish to see end, had ended. For her part, the mother's perceptions are coloured by the impact upon her of domestic violence suffered by her at the hands of the father. It is appropriate to move now to that topic.

7. The mother's case is, in essence, that during the cohabitation, on approximately bi-monthly occasions, she was subjected to physical violence at the hands of the father. When the Court asked him to endeavour to quantify the occasions when he used physical force against the mother without her consent, the father suggested five or six occasions. In later evidence, the father seemed to concede that there had been “pushing and shoving” on an unspecified number of occasions in excess of that. Learned counsel for the father submitted that the Court should have regard to the absence of evidence of complaint to police, hospitals, medical practitioners, or anyone else. With respect to learned counsel for the husband, it has long, and sensibly been accepted, both in the literature and in authorities in this and other Courts, that far from being indicative of an absence of abuse, the failure to complain is entirely consistent with the reality of abuse.

8. The Court need not speculate about the absence of complaint. In re-examination, in moving testimony, the mother explained why she had not done any of the things which were traversed in cross-examination of her. The Court accepts the mother's evidence in that regard. Unless the mother is an actress of the highest order, rejecting her evidence with respect to that topic would be little short of perverse. The Court does accept her evidence. The significance of finding, as the Court does, that albeit the Court cannot find on as regular as a bi-monthly basis, the mother was subjected to physical abuse by the father during cohabitation, has continuing relevance for present purposes.

9. Violence is a topic picked up in the family consultant's reports. It is relevant and will be seen to be relevant within the context of section 65DAA(5). It should be noted that in her reports, the family consultant proceeded on the basis that the mother had suffered abuse at the hands of the father. With respect to the family consultant, whilst she may have believed that, she was not in a position to, nor, with respect, does the Court believe she purported to make findings about that. In a Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705 sense, to the extent that the family consultant's expert opinion evidence was predicated upon the reality of abuse, the Court's findings with respect to it provide that factual underpinning, or as is sometimes said in the cases where principles governing expert evidence are explored, the findings of the Court provide a basis for that expert opinion evidence.

10. As emerged during the course of final submissions, and as will be seen, the significance of the Court's findings with respect to domestic violence has multiple relevance. The mother's hypervigilance, to the extent that the evidence has revealed that in the past is the first aspect of their relevance. The second, is in relation to the mother's conscious or unconscious need to be somewhat distanced from the father. As will be seen when section 60CC factors are traversed, the findings have no implications adverse to the father in relation to the matters identified in section 60CC(3)(j) and (k). Their significance relates to the impact upon the mother or the reasonable practicality of making orders which oblige the mother to continue to reside in the W area.

11. The Court has had the benefit of two reports from a qualified and experienced family consultant, Ms D. Without wishing to unduly burden the record with lengthy extracts from Ms D’s reports, the opinions expressed in which the Court accepts, the following matters emerge as matters of significance in the determination of the current parenting proceedings.

12. It is not controversial, and there is an abundance of evidence establishing, as Ms D recorded in her first report of November last year, that each parent engaged positively with their children, and that the children engaged positively with each parent. In the context of her first report, to which the Court alluded to a few moments ago, Ms D said:

    The violence the mother has experienced could exacerbate a lack of wellbeing for her if she were living closer to the father. Some distance between the parties may create peace for both.

13. That opinion evidence, underpinned as it is by the Court's findings in relation to domestic violence during the course of cohabitation, resonates in the determination of the current dispute. It perhaps is convenient to record at this point, lest it be thought that it has been overlooked, that in the course of his evidence, the father testified that he had undergone anger management intervention with an appropriate agency. He revealed great insight, both in relation to his previous conduct, and its conceivable impact upon the mother. The father expressed contrition, which anyone seeing and hearing his evidence could not doubt was genuine.

14. There is little doubt that the father today has a level of insight into his own personality and behaviour and its implications for others, and particularly for the mother, which is significantly greater than it was in earlier times. The fact, of course, that the father has much greater insights into these things which enable him to conduct himself more appropriately in the future does not mean, nor can it be expected to mean, that the mother will not require time before the emotional scars of her experiences will disappear.

15. In her first report, whilst reiterating the good relationship between the father and the children, Ms D recorded that:

    The father appeared to accept that the mother had been the children's primary attachment but appeared not to understand that less of her at their ages and stages could be emotionally negative for them.

16. The reasons for that opinion were suggested to be because the children also have positive and close relations with their father. The report proceeded to suggest that:

    At the children's ages and stages, especially for [Y], ongoing contact with their primary carer was important, especially emotionally.

17. The clear import of Ms D’s report, as evidenced by the final paragraph, was that the children should spend rather more time with their mother than with their father. Properly analysed, the father's proposal is an 8/6 proposal on a 14-day period during school term. The mother's, properly analysed, and necessarily by reference to a 28-day period, is three lots of three, plus an afternoon, somewhat less time than the father's proposal, but not greatly so.

18. In her second report of July this year, Ms D referred to the parents undergoing a difficult communication, which would make the situation tense for the children, given the history, at pick-up and drop off. She proceeded to say that the children were:

    ...too young to comprehend the difficulties of the situation, have experienced many changes recently, and undergo a complex arrangement for care.

19. Ms D noted, accurately, that the mother's moves had exacerbated the situation. The mother conceded in her evidence that this was the case. An issue was identified by Ms D in relation to when Y should commence school. The evidence before this Court is inconclusive in that regard, although the father appeared to concede in cross-examination that perhaps, given the mother's experience and qualifications as a teacher, her opinion about when Y should start school might be entitled to somewhat more weight than his.

20. Ms D reiterated a theme from her earlier report in her second report with respect to the emotional primary attachment of the children to their mother, particularly in the case of X. The Court is cautious in approaching that evidence, given the cross-examination of Ms D in relation to what actually happened with X. The Court is satisfied that Ms D’s expert opinion was not impermissibly or unduly influenced by the dynamics of the meetings during which she observed X. Although the Court does not understand there to have been a particular submission in this regard, nor does the Court find Ms D’s expert opinion to be adversely impacted by any cross-examination of her on her notes. There is nothing in the evidence to establish that what Ms D recorded in her report other than accurately recorded the opinion she formed at the time of, and in reliance upon, her interviews with the parties and their children. There is no principle of law or logic that requires someone in the position of Ms D to record everything that was written during her interview.

21. Ms D continued to express a concern, or some concern, over how the father may deal with "emotional discomfort anxiety" for the children, given that he appeared not to understand the importance of the children in achieving comfort from their primary attachment. The evidence before the Court in relation to that topic is not greatly detailed, and it would be unfair, particularly in the light of other matters, to place great emphasis upon it. The effect, however, as her recommendations and the final paragraphs of her report confirm, of Ms D’s evidence was that the children spend rather more time with their mother than their father, albeit they should spend what, in a lay sense, would be clearly substantial time with their father. Implicit in Ms D’s recommendation was that the children reside at a distance from W which enabled such an arrangement to be implemented.

22. Ms D, as observed earlier, was cross-examined, and she presented as a dispassionate expert and completely even-handed, hesitating at times, as she said on one or two occasions, to say to counsel, in response to a question, something that she perceived accurately counsel then cross-examining her may not have wished to hear. In the course of her cross-examination, when told of the evidence of the mother with respect to the children's behaviour in recent times, which was not ultimately controversial, Ms D said that Y’s behaviour was "almost certainly" consistent with the current arrangements being less than entirely successful. She offered a number of possible diagnoses, one of which was possible separation anxiety. It is unnecessary for the Court to pursue that topic. The evidence probably does not permit a finding to be made in any event. But it is evidence which resonates in terms of how desirable it is for the current arrangements, which are not greatly dissimilar to those proposed by the father for the future, to continue.

23. In the course of her evidence, in a cogent fashion, Ms D explained the concepts of primary attachment and their significance. Her evidence ultimately would not necessarily render the father's proposal adverse to or inconsistent with the children's best interests. As noted earlier, when closely analysed, there is ultimately not a vast difference between what each parent proposes.

24. On balance, the Court understands Ms D’s position to be, and accepts it as being, that although the children could clearly cope with a proposal of the kind the father seeks to have continue, there is currently evidence of possible difficulties with that proposal. The evidence of Ms D establishes that the Court must be cautious not to jeopardise the emotional primary attachment of the children to their mother. Subject to the matters to which reference has been made, the Court does not understand Ms D to ultimately have resiled from or significantly qualified the broad thrust of the recommendations appearing in her second report.

25. Against the foregoing background, it is necessary to address the various and quite detailed statutory provisions by reference to which the case must be decided. Section 60B of the Act sets out the objectives of part VII of the Act. Part VII of the Act governs parenting proceedings. Section 60B(1)(a) provides:

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

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

26. In terms of section 60B(1)(a), whatever orders this Court makes, the children will have the continuing benefit of both of their parents having a meaningful involvement in their lives. The devil is in the detail, so to speak, however, because seeking to fulfil the objective of maximising the extent of that involvement, consistent with the best interests of the children, is ultimately what the case is all about. As learned counsel for the father sagely observed, all roads should lead to Rome. The objective of the provisions of section 60B (1)(a) is not relevant in this case for reasons which have previously been suggested.

27. Whatever the Court decides in this case, the children will receive adequate and proper parenting to help them achieve their full potential. These children, unlike many whose fate falls to be determined by Courts exercising jurisdiction under this Act, have very capable, committed, and caring parents. Indeed, one of the difficulties in deciding the case flows precisely from that and the willingness and ability of these parents to rise above their own feelings and put their children first. The Court is satisfied that with both parents having the benefit of gaining greater insight into the matters referred to in subsection (d), in the post-separation period, and during the course of giving evidence, there is no concern that the objective there recorded will not be achieved.

28. The principles underlying the Act are set out in section 60B(2). The Court is cognisant of those. In this case, there is no evidence which suggests that any orders which the Court might make, having regard to the competing proposals, would offend any of the five principles identified in section 60B(2). No party in these proceedings identifies as a first nation parent. Subsection (3) is thus not relevant. As is not in doubt, and section 60CA enshrines, the best interests is the paramount consideration in these proceedings. The best interest is not at large.

29. Section 60CC provides the matters by reference to which what is in a child's best interest is determined. In relation to that, as discussion with counsel yesterday revealed, there are two ways of approaching section 60CC and section 65DAA. Neither should result in a different outcome, but it is convenient for present purposes to approach the matter via subsection (5) of section 65DAA, having regard to the fact that the very first matter referred to in section 60CC(1) is that matter. Section 65DAA assumes significance by virtue of the fact that sensibly, by agreement, the statutory presumption of equal shared parental responsibility is to be preserved in this case. To the extent that the Court has to direct its mind to that issue, the evidence provides an abundance of support for preserving the presumption. That being so, and given the orders which the father seeks, section 65DAA(2) is enlivened, and in particular, the Court must consider the matters identified in section 65DAA(2)(c), (d), and (e). There is a measure of circularity in this, in that section 65DAA(2)(c) takes the Court back to section 60CC.

30. Turning then to section 60CC, the Court notes that there are there provided for in subsection (2) what are called primary considerations. In this case, the first primary consideration identified in subsection (a), will be achieved, or observed, irrespective of what order the Court makes. Any orders that could be made in these proceedings will preserve, for the children, the benefit of having a meaningful relationship with both parents. As was noted earlier, in other contexts, the primary consideration identified in 60CC(2)(b) does not arise. There is nothing to consider of that kind. Subsection (a) is such that there are no relevant wishes. This is a case about adult decisions and adults accepting responsibility for their children as, refreshingly, the parents in this case do.

31. The nature of the relationship of the children with each of the parents is very strong on both sides. Save with respect to the emotional primary attachment to which Ms D referred, it would be unrealistic to suggest that the children have a better or closer relationship with one parent than the other. Ms D identified the significance, as she reiterated in her oral evidence, of the children “needing” their mother. That does not make the mother's relationship with the children any better than that of the father. It makes it different. But the difference is not without importance. It has to be borne in mind that that difference does not, on a balanced reading of Ms D’s oral evidence, preclude what the father seeks from being in the children's best interests. To use the colloquial, the factor does, however, put the mother slightly ahead.

1. Other relationships do not assume significance. That is not said critically, but simply that there is nothing adverse about the relationship with Mr S, but for reasons learned counsel for the father advanced, it would not be realistic to elevate the mother's case by reference to it. Nor, however, does it detract from the mother's case.

2. Subsection (c) is relevant. As matters stand, the parents have the willingness and ability there referred to. That has not always necessarily been the case, although with respect to them, they have made a complicated and fairly onerous set of orders work, the evidence suggests, very satisfactorily for a not insignificant period of time. The factor is neutral. Although the subsection refers to "other parent", implicit in that, as noted earlier, is reference to Mr S, and the father's capacity and willingness and ability to promote the relationship with the mother in the context of her relationship with Mr S. Nor would the father seek to undermine the mother or Mr S or their relationship. Mr S has the capacity to preserve the relationship between the children and the father.

3. The likely effect of change in the children's circumstances, (d) as noted earlier, has to be seen in the light of the degree of difference between the proposals of the parents. The evidence of Ms D is that the children have shown that they are able to adjust. She did, however, add that fewer changes in their everyday life would allow them more time and energy for the tasks they have to undergo. The children do see their father on a somewhat greater basis now than would be the case if the mother's proposal were to be preferred. Other things being equal, and provided that whatever is now ordered becomes operative and does not involve complicated logistical arrangements and physical strain on parties and children, it could be said that adhering more closely to the current 8/6 division than the somewhat less equal division the mother proposes may be in the children's best interests. That factor would, accordingly, slightly favour the father.

4. The practical difficulty of the children spending time with one of the parents probably, although not so expressed, overlaps, in the circumstances of this case, with the question of reasonable practicality and is probably better considered in that context. So doing does not, the Court perceives, breach any obligation to consider this factor. It is apparent that there would be far less practical difficulty or expense of the children spending more time with the father if the mother lives in the W vicinity than would be the case if, as she seeks, she locates the children's residence to T.

5. The capacity of the parents is relevant. One respect in which capacity is relevant has already been referred to by reference to the evidence of Ms D, namely, the emotional primary attachment issue, and that identified by her in the first full dot point appearing at page 8 of her report, against the letter (f). Another is the mother’s psychological wellbeing, which is predicated upon findings which the Court has made with respect to domestic violence during the parties' cohabitation and on an occasion in May of 2009. The mother's capacity, whilst not on the evidence, being able to be found to be impaired if she is obliged to continue to reside within the W region, would be clearly enhanced for the reason identified by Ms D and underpinned by the evidence of the mother if she has the “space” which residing in T would provide.

6. Were this factor not referable to the Court's findings with respect to domestic violence, it may be that it could not legitimately be taken into account as a factor providing some support for the mother's proposal as being in the children's best interests. But it would, the Court perceives, be quite unrealistic and unjust, having made the findings it has and accepting the expert opinion evidence which is before it, and which it accepts, to discount or reject this factor. It is clearly relevant to the wellbeing of children that their emotional primary attachment parent is able to maximise his or her capacity to parent the child or children.

7. Reference was made by Ms D to issues of employment. Not surprisingly, and quite properly, learned counsel for the father made something of this in her submissions yesterday. The mother may secure teaching employment in T. She may not. As noted earlier, her expectations could not be described as fanciful. She has other possible avenues of support. Even if some or all of those failed, the evidence before the Court provides no rational basis for concluding that the mother would fail to provide financially adequately for the children if she were permitted to have them reside in the T area. The mother has certainty of employment if she resides in the W area.

8. Subsection (g) is relevant only to the extent that maturity of the children could be seen as emphasising or re-emphasising the emotional primary attachment issue to which Ms D referred. Even if it does, it cannot properly be taken into account twice in the mother's favour.

9. Subsection (i),  the attitude of the parents to the child and the responsibilities of parenthood demonstrated by each of the child's parents can be said to have historically been, on the one hand, commendable, whilst on the other hand, regrettably lacking. In the case of the father, the domestic violence during cohabitation and on at least one occasion subsequent to it and the pushing and shoving of the mother, at times in the presence of the children, cannot possibly be regarded as demonstrating an appropriate attitude. Albeit that the Court accepts the mother's explanations for the changes of arrangement and her hyper vigilance, the mother's attitude in the post-separation period has also been less than exemplary.

10. In so finding, the Court is significantly reliant upon the demeanour of the parties, the concessions they made, the insights against interest which each revealed, is comfortable in concluding that section 60CC(3)(i) does not materially favour either of the parties.

11. As noted earlier, (j) and (k) are not relevant, per se. In terms of (l), it might be said that no order made in this case would necessarily be unlikely to lead to the institution of further proceedings. There may be cases where that is possible, but objectively, that is not necessarily the case here.

12. On balance, section 60CC(3) could not be said to overwhelmingly favour the proposals of either party. It is a very finely balanced case. The children’s best interests would be served by their spending more time with their mother than with their father. Fortunately, the evidence before the Court suggests that even making the wrong decision would still result in these children having a better chance in life than in a great number of other cases.

13. For the purpose of section 65DAA(2)(c), the Court, having considered the best interests as mandated by that section, proceeds to consider subsection (d). The consideration mandated by section 65DAA(2)(c) would not preclude a regime of the kind sought by the father as being in the best interests of the children. That being so, consideration moves to subsection (d), that is, the reasonable practicality of such a regime. That, in turn, enlivens subsection (5), which provides that The Court must have regard to the matters there referred to, albeit one of the matters to which it must also have regard includes such other matters as the Court considers relevant. Subsection (a) refers to how far apart the parents live from each other. At present, distance does not support a conclusion of impracticality.

14. As the authorities make clear, if the Court decides that the best interests of the children would be served by their living in W, then the mother may well be faced with the option of losing their primary care or living within that region. How far the parents would live from each other, having regard to the mother's proposal, is significant. It involves two hour travel. It would render the father’s proposal impractical. The evidence, and particularly the evidence of Ms D, suggests that the current arrangement is not in the children's best interests.

15. The reasonableness of each party's position is logically relevant to a consideration of this topic, or if it is not, would, the Court perceives, be comfortably accommodated within subsection (e). However it assumes statutory relevance, it is necessary, given the right of freedom of movement of both parents, to explore, at least in some detail, the reasonableness of the competing proposals. As noted earlier, the mother's position is that would prefer to live in T. The mother is not currently living there, for reasons which she has detailed.

16. On no view of the matters reasons for not wanting to remain near W could it be said that the mother's proposal is unreasonable. Her current partner has a position of employment at T. His evidence is that he occupies a position on one of only three farms conducted or operated by his employer. Their precise location is unclear, but there is no evidence that they are anywhere near W. …. He may be able to, by some process or other, relocate, but there's no evidence that he could readily relocate. Mr S has secure employment which draws upon his experience in agriculture. He comes from T. It seems he has family in that area. The mother has family in that area. So it could not be fairly said or rationally concluded that the mother's proposal is unreasonable.

17. The Court infers that part of the mother's motivation for residing in T is to put some distance between herself and the father. The Court does not perceive that the choice of T was designed to defeat or render necessarily more difficult the father's relationship with the children. The orders the mother offers indicate her willingness, as it clearly emerged in her evidence, to take the children to W mid-week to see the father. Her demonstrated history of compliance with reasonably onerous orders to date provides circumstantial and other direct evidence supportive of a benign finding with respect to the mother’s preferred area of residence.

18. It is not unreasonable that the mother does not want to stay near W. It is not unreasonable that being forced, for all practical purposes, to remain where she does not wish to live would cause her unhappiness. She could cope with it. She would cope with it. The evidence does not enable the Court to find that her parenting capacity would thereby be impeded, but it is clear that it would be enhanced if she were able to reside at T. Acceptance of the mother's own evidence about the impact upon her of the father's domestic violence and the expert evidence of Ms D reinforces the reasonableness of the mother living at T.

19. The father, similarly, has a reasonable basis for his intention to continue to reside in W. He detailed that, both with respect to his family and other ties, the children's ties, his employment, the prospect of, the Court infers, some longer-term capital gain by retaining a property in W, things of that kind. It would be quite perverse to find that his stated current intention to continue to reside in W was other than reasonable. The position is thus that the reasonable proposals of the parties involve living about two hours distant by motor vehicle.

20. The evidence does not preclude making positive findings both as to the present and the future in terms of subsection (b). Why that is so is largely, as learned counsel for the father submitted, it is happening. The parents are demonstrating the capacity to implement an arrangement for the children spending substantial and significant time with each of the parents.

21. The more problematic issue relates to the matter identified in subsection (c). In relation to that, the current capacity to communicate and resolve difficulties is likely to be an impediment to the implementation of a substantial and significant time arrangement such as the father proposes. The evidence, as Ms D acknowledged, of the parents with respect to recent developments provides a basis for cautious optimism. All of that said, as the evidence of the parties reveals, scratching the surface in cross-examination does reveal some abiding and deep-seated obstacles to trust and effective communication between the parties. As noted earlier, whilst the father appears to have far greater insight into his conduct prior to May last year and its impact upon the mother, the evidence, including the evidence of Ms D, supports a finding that it will take the mother some time yet before there will be the requisite trust to enable the parties to communicate effectively.

22. That notwithstanding, reality demands that the Court be conscious of the fact that the parties have substantially complied with a reasonably onerous regime to date, the relationships of the children with each parent are entirely satisfactory, and that there is no rational basis for concluding that that will change. It is then necessary to proceed to subsection (d), and the impact of the two hour travel, which would involve considerable expense and inconvenience for both parents. The mother’s proposal has this weakness.

23. It involves more changeovers than does the mother's proposal. The father’s proposal has this weakness. The changeovers are not proposed at schools - that is to say they obviate contact with the schools and the children in a school context. They put the parents in the position of having to change over contact in circumstances about which Ms D has recorded her caveats. On balance, and particularly having regard to the distances involved, the travel, the time involved, the frequency of the changes proposed by the father's proposal, the Court is not persuaded that the arrangement he proposes is reasonably practical. It may be that it is. The Court does not find that it is impractical, but the obligation under subsection (d) is to find that it is reasonably practicable. On balance, the Court is not persuaded that it would be. Even if it were persuaded, and thereby were to proceed to subsection (e), to consider making an order to provide for a regime of the kind the father proposes, the Court would not be persuaded, on balance, that so doing was in the best interests of the children. Why that is so can and needs to be briefly articulated.

24. As noted earlier in these reasons, there is not a great quantitative difference between the proposals of the parties. Having regard to the evidence of Ms D, the Court perceives that the mother's proposal does facilitate preservation of the emotional primary attachment somewhat more effectively than does the father's. The mother’s parenting of the children would be likely to be enhanced if she has the “space” which the evidence supports her having. Such space would not compromise the father’s relationships with the children.

25. Moreover, the mother's proposal involves less disruption to the children's routine, predictability, and stability than does the father's proposal. In saying that, the Court is mindful of the definition in section 65DAA(3) of substantial and significant time, that is to say the importance placed by the legislature on children, in the course of having a meaningful relationship with both parents, not simply spending weekend time with the other parent. The other aspect of the mother's proposal which the Court perceives to be preferable to that of the father is that the evidence suggests that it raises the prospect of the children's time with both parents being optimised, if not in terms of the father, maximised.

26. It is, of course, the quality of the time children spend with the parent which is ultimately the most significant factor. The mother's proposal involves the father potentially having the children, and his evidence does not preclude this, and his learned counsel sought the opportunity to implement it, from after school Friday till the commencement of school Monday. It is not inconceivable, having regard to the father's evidence as to his ability to secure flexibility of his working hours, that he could do that. Through the week, whether the mother is employed or not, given her profession, her proposal optimises the time she would spend with the children.

27. The alternative, as proposed by the father, provides a somewhat different mix. Necessarily, weekends with him are somewhat truncated. Necessarily, as currently occurs, there are a number of people or entities involved in the care of the children during the time they spend with the father. Closely analysed, the Court perceives that both the quantity of time the father spends with the children under the mother's proposal and, in all probability, the quality of that time would actually be superior, albeit the time would be somewhat less with the mother's proposal, than that proposed by the father.

28. Section 65DAA’s operation appears to have been exhausted by the foregoing considerations. For more abundant caution, given the incorporation of section 65DAA into section 60CC, the Court revisits section 60CC(3)(m), and any other fact or circumstance that the Court thinks is relevant. Albeit in a finely balanced case, the reasons articulated thus far reveal the Court's preference for the mother's proposal to that of the father. That preference must be accommodated within the ambit of the best interests of the children. On balance, the Court is persuaded that the orders proposed satisfy that requirement.

I certify that the preceding eighty three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 11 August 2010.

Associate:

Date:  24 August 2010