U and U - [2004] FMCAfam 145

FEDERAL MAGISTRATES COURT OF AUSTRALIA

U & U

[2004] FMCAfam 145

FAMILY LAW – CHILDREN – Children's wishes – whether child’s wishes should be departed from – whether siblings should be separated – effect of parents’ behaviour on child's wishes.

Family Law Act 1975 (Cth), ss.60B, 65E, 68F

R v R; Children's wishes (2000) FLC 93-000

Applicant:

J U

Respondent:

J U

File No:

MLM 1912 of 2003

Delivered on:

1 April 2004

Delivered at:

Melbourne

Hearing dates:

10, 11 & 12 March 2004

Judgment of:

Phipps FM

REPRESENTATION

Counsel for the Applicant:

Ms Tulloch

Solicitors for the Applicant:

Anthony Peterson & Co

Counsel for the Respondent:

Ms Johnson

Solicitors for the Respondent:

Wall Lawyers

Counsel for the Child Representative:

Mr Meehan

Solicitors for the Child Representative::

Septimus Jones & Lee

ORDERS

That the Order made in the Family Court of Australia on 4 July 2003 and all extant interim orders be discharged from 19 April 2004.
That the Husband and the Wife be jointly responsible for the long-term-care, welfare and development of the children of the marriage A E U born 10 September 1989 and J M U born 9 January 1993.
That the child A E U reside with the Husband and he be responsible for her day-to-day care, welfare and development except when she is in the care of the Wife.
That the child J M U reside with the Wife and she be responsible for her day-to-day care, welfare and development except when she is in the care of the Husband.
That the Wife have contact with the child A as follows:
(a)for half of each of A’s school term and summer holidays at times to be agreed but so that the contact does not coincide with a time of contact of J with the Husband;
(b)for one weekend during the school term provided that the Wife gives 14 days notice of the intended weekend contact prior to such contact taking place and provided that the contact does not coincide with a time of contact of J with the Husband;
(c)for up to two additional weekends during the school term as agreed between the parties provided that the Wife give 14 days notice of the intended weekend contact prior to such contact taking place and provided that the contact does not coincide with the time of contact of J with the Husband.
That the Husband have contact with J as follows:
(a)for half of each of J’s school term and summer holidays at times to be agreed but so that the contact does not coincide with a time of contact of A with the Wife;
(b)for one weekend during the school term provided that the Husband gives 14 days notice of the intended weekend contact prior to such contact taking place and provided that the contact does not coincide with a time of contact of A with the Wife;
(c)for up to two additional weekends during the school term as agreed between the parties provided that the Husband gives 14 days notice of the intended weekend contact prior to such contact taking place and provided that the contact does not coincide with the time of contact of A with the Wife.
That for the purpose of contact, each party is to deliver and collect each child at the airport closest to the party’s residential address.
That the cost of air travel for the purpose of contact is to be shared equally between the parties.
That during periods when either or both children are residing with or on contact with a party, the other party is permitted to telephone the child or children each Wednesday between 5 p.m. and 7 p.m. and at other times provided that such other telephone contact is not unreasonable or excessive.
That each party is to provide the other with copies of all school reports, photographs and notices from the school of the child resident with the party.
That each party is restrained by injunction from denigrating the other party in the presence of the children or either of them.
That each party is restrained by injunction from causing or allowing the children or either of them to attend to attend any counsellor adviser or therapist, other than a qualified medical practitioner or the counsellor Ms Carver without the consent in writing of the other party.
That the Order appointing the Child Representative be discharged.
That there be liberty to apply in respect of any interim orders and contact orders until Friday 16 April 2004.

AND THE COURT NOTES:

A.That pursuant to paragraph 6 of the Order made in the Family Court of Australia on 29 October 2003 the parties and the child representative have agreed the mother have contact with the said children between the 3^rd and 18^th of April 2004.
B.That pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these order create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 1912 of 2003

J U

Applicant

And

J U

Respondent

REASONS FOR JUDGMENT

Introduction

The application concerns residence of J M U born 9 January 1993 (aged 11). She is the younger child of the marriage of the parties. There is one other child, A E U born 10 September 1989 (aged 14). The parties agree that A should continue to reside with her Father in accordance with her wishes. J currently resides with her Father. The issue in this application is whether that should continue to be the case or whether she should reside with her Mother. The Husband resides in M and the Wife in B B. The Wife intends continuing to live in B B whatever the result of the application.
Both parties are aged 47 and were born in C. They knew each other in C. The Husband moved to G and then to A. The Mother married, moved to G and then separated. She has a son from the marriage, L, aged 24. The Husband and Wife had kept in touch, and the Wife and L came to A sponsored by the Husband. They were married in A on

3 April 1988. They separated under one roof in November 2001 and ceased residing in the same home in March 2002. After that the children resided with the Wife. A few months later the Husband moved to a residence close by.
About the time of separation the parties were seeing a counsellor, Mr Brady. The Husband says that with Mr Brady's assistance, significant contact was agreed upon with the aim of there being shared care in about nine months time. The Wife says that while she might have expressed agreement at the time it was something that was forced upon her by the Husband. Whether or not there was agreement, the Husband had extensive contact with the children following separation.

Court proceedings and subsequent history

On 9 November 2002, the Wife moved to B B with the children. In M, the Children were enrolled in the W R S School. The Mother enrolled them in the B B R S School. She had not told the Husband she was moving to B B although she had told him she was moving out of her residence in M. Once she had re-located, she informed the Husband, but said that she had gone only for a holiday.
On 13 November 2002 the Husband filed an application in the Family Court of Australia at the Melbourne Registry for both children and property Orders. So far as the children were concerned the application was that they reside half the time with each parent.
The children came to M for contact with the Husband at Christmas.

A case management conference was held on 7 January 2003. Both parties were represented by solicitors. By this date the Wife had decided to stay in B B permanently with the children. The Husband learnt of this at the case management conference.
The Husband then applied for a Recovery Order. This application was heard in the Family Court of Australia on 30 January 2003 by Registrar Fitzgibbon. He made Orders that the children must be returned to M to reside with the Wife if she returned as well, and with the Husband if she did not. The Residence Orders were expressed as Interim Orders and provision was made for contact whichever event took place.
The Wife elected to stay in B B and the children returned to M to reside with the Father. They returned to the S School at W.
The Order of 30 January 2003 provided for a welfare report to be prepared. This was done by Mr Vincent Papaleo and is dated the

29 May 2003. The Wife told Mr Papaleo that in her opinion returning to B B and being allowed to continue their primary relationship with her would serve the best interests of the children. She had not genuinely considered the possibility that the children would not be returned to her care, and believed that she would reside in B B with them. She made it clear that in the event that the children were not allowed to return she would remain in B B, a place where she felt an intense sense of belonging. She described significant improvements in all aspects of her mental and physical health, both of which she said had deteriorated significantly over the course of her marriage, during which she felt no genuine sense of commitment with her Husband.
The Husband said to Mr Papaleo that he believed that he should have substantial input in the life of the children. He did not want to deprive the children of a relationship with their Mother and still hoped that she would return to M and a shared residence arrangement could be implemented. He felt it was not in the best interests of the children to move to B B and that it should not be about the children accommodating to the Mother's lifestyle choices, but rather, their best interests should be elevated above all other considerations. He believed that it was not in their best interests that their lives be disrupted now, or that they be removed from their social, family and normal supports to accommodate what was in reality the best interests of their Mother and her choices. He was aware that the children loved their Mother, have a good relationship with her, and that J, in particular, was finding the separation from her Mother difficult.
A’s wishes were quite clear. She wanted to remain in M with her friends at her current School. She understood that her Mother wanted both her and her sister to live in B B but that was not what she wanted. She was respectful of her Mother's wishes and fully acknowledged her Mother was now much happier and how much better she felt living in B B. She acknowledged that her relationship with her Father had improved significantly, even though initially she was quite scared of him. She recalled that previously he had not been much a part of family life, she felt that he didn't do much for her, or that she was a priority to him. Since residing with him, however the relationship had improved substantially, and she appreciated the extent of his efforts and the amount of change he had undertaken. A’s perspective was that the best outcome would be for her Mother to return to M so that she could resume regular contact with her. She was quite angry with her Mother, explaining that her Mother didn't care enough about them and she felt that B B is more important. A difficulty for A was her appreciation that J was missing her Mother. She would have preferred not being separated from her sister but emphasised that J should be with her Mother because that is what she wanted and that the most important consideration is for J’s wishes to be respected.
J said that she would like to live with her Mother but to see her Father regularly. She was worried that her Father might move away if she went to live with her Mother. She made it clear that her wish was to remain in M, her strong preference being for her Mother to return. She seemed reconciled that the best option was to spend six months of the year with each parent as this would be the only practical means by which J could resolve the conflict. She stated clearly that she would prefer to live with her Mother but she also said she simply could not leave her friends in M. She believed that her Mother would not relocate and that she made it clear that she would not leave B B. She acknowledged that the relationship with her Father had improved significantly, that she cared for her Father, feels well treated by him, however misses her Mother.
Mr Papaleo observed the children with both parents. He observed a warm, close, loving and supporting relationship between the Wife and the children and said the same observations were evident when the children were seen in the company of their Father. They played easily and cooperatively, there was good humour, they maintained close and spontaneous physical contact and affection, there was much laughter, and a sense of confidence and security about the interaction.
In his conclusion, Mr Papaleo observed that the children were doing extremely well. They had a good relationship with their Father, they had numerous supports and familiar networks at a time in their lives when they were making a psychological transition primarily from their parents to their friendship group, a process which was identified as important by both children. He observed that the Husband was coping and managing well and that he believed that it was not in the best interests of the children that they be separated or relocated, especially so when the Mother could move back to M but chose not to.
After this report, Final Orders were made by consent on 4 July 2003. They provided for the children to reside with the Husband and for the Wife to have contact for one weekend during the school term, for up to two additional weekends during each school term as agreed and for the duration of all school holiday periods but with the Husband, upon the giving notice, to have the children for up to 14 days in the Christmas/ summer holidays and up to seven days in each term holiday.
After these Orders were made the Husband engaged a psychologist, Ms Carver, to counsel the children. She saw both for some months and then A, at the suggestion of Ms Carver, stopped. J continued to see her. The Husband’s evidence is that on one occasion J and Ms Carver invited him to attend one of the counselling sessions. The Husband says the J clearly conveyed her unhappiness about being separated from the Wife and expressed a desire to live with the Wife. She asked whether it would be possible to spend one school term in B B. The Husband says he explained to J making such decisions was not easy as there were a number of serious implications. He said that on the advice of Ms Carver he had not discussed his thoughts or rationale with J for not agreeing to her suggestion that she spend at least a term in B B with her Mother.
The children went to B B for contact during the September school holidays, arriving on 11 September 2003. A returned to M on

26 September 2003 as had been arranged between the Husband and Wife. It had been arranged between Husband and Wife that J would return on 2 October 2003 but she did not.
On the 15 September 2003 the Mother took both children to what she described as a healing session with Amrita Hobbs. A brochure which was tendered shows that she is a qualified teacher and that she conducts sessions involving rituals for girls and parents which are about growing up and their relationship with parents. A report or letter by Miss Hobbs was attached to an affidavit sworn by the Mother on

29 September 2003 and filed with the local Court of New South Wales at B B. The report says the session went for approximately six hours. It says that Ms Hobbs asked each of them to write about their life story. She says that she talked about this and processed what were the most difficult times. She asked them to write promises to themselves and each other and subsequently completed the session acknowledging the things they wish to say to each other and what they loved about each other.
Attached to Ms Hobbs report are two documents, one headed "from J’s story" and the other headed "from A’s life story". At the bottom of A’s story is written in handwriting "I asked A to sign this as an accurate record of what she said; she agreed." Beneath is the signature "A. U ". From these two documents it is clear that the conflict between the parents and the dispute about with whom the children should reside was discussed.
The Wife is a music teacher and teaches at three schools in the B B area, including the S School. She said she obtained the brochure about Amrita Hobbs at the S School.
While the children were with their Mother for the September holidays, the Husband received a letter dated 17 September 2003 from the Family Assistance Office. The letter stated that the Family Assistance Office had received information which suggested that there had been a recent change in the care of the children. The Wife said that she had gone to the Family Assistance Office to tell them that J was living with her.
The Wife enrolled J in the S School at B B. She said that when J arrived she wanted to meet her friends and asked if she could be enrolled in the school and said that she came with everything, lunchbox etc.
The Father travelled to B B after receipt of the letter from the Family Assistance Office. He arrived on 19 September 2003. He saw the children but was not aware that the Wife did not intend that J return.
On 29 September 2003, the Wife filed an application in the Local Court of New South Wales at B B returnable on the 30 September 2003. The application sought that it be heard on an urgent ex-parte basis and that there be an Order that J reside with the Wife. The Court refused to deal with the application on the 30 September 2003 and directed that notice be given to the Husband. J was due to return on 2 October 2003. The Wife sent the Husband a facsimile on 1 October 2003 stating that J would not be coming. Later that day the Husband learned of the Court application.
A hearing took place in the local Court at B B on 3 October 2003. The Wife’s application was refused and the Court Ordered that J be returned pursuant to the Court Order forthwith. The Wife was ordered to pay the Husband’s costs assessed at $1,600 and all applications were transferred to the Family Court of Australia at Melbourne.
The Wife did not return J to M until 8 October 2003. The Wife says that she was unable to obtain a direct flight until then, and she did not want J to have to change planes at S. J wrote a letter on 6 October 2003 which the Wife sent by facsimile to the Husband. In that letter J said that she wanted to remain living with her Mother.
On 29 October 2003 in the Family Court, Judicial Registrar Ramsden made an Order appointing a separate representative and for an updated report by Mr Papaleo. The Wife’s contact with the children was suspended and it was Ordered that the Wife have such contact with the children as might be agreed between the parties and the child representative. On 17 December 2003 the application was transferred to the Federal Magistrate's Court. The application before this Court is the one filed in the local Court of New South Wales at B B on

29 September 2003 and the Husband’s response to that application.
Mr Papaleo saw the parties and the children on 3 December 2003. The Wife was clear that J wished to live with her and that she had been distressed by the previous Court Orders that she live with the Husband. The Husband said to Mr Papaleo that J settled very quickly and very well after the initial Orders but said she missed her Mother. He described a very dramatic and abrupt change in J’s behaviour following the more recent visit to B B. Mr Papaleo said that the issue of J and her welfare was a source of much concern to the Husband, who quite freely admitted that he does not know what is the best thing to do and does not want to separate J from her sister A. He believed that the children were settled in M, that they had a network of friends and supports. He was concerned that the true motivation of the Wife was not the welfare of J, but the need to have J to make the Wife happy. He believed J would do what she thinks would help her Mother.

Mr Papaleo's report says that J was adamant that she wants to live with her Mother, with whom she feels a special relationship, closeness and trust. She told Mr Papaleo that life in B B would be far better because she needs her Mother so much and feels that she can't live without her. By way of contrast, she felt less safe with her Father, feels lesser a priority to him, and feels less emotionally contained and safe in his care. He said that J was not prepared to enter into any discussion about her feelings about her Mother returning to M, rather, defended her Mother's decision by being negative and critical of her Father.
Mr Papaleo says that J clearly wants to reside with her Mother, but would accept the Court decision to live with her Father in M. In his report, and in his oral evidence, Mr Papaleo said that it concerned him that in order to support the wish to move to B B J had to so extensively denigrate her Father. He said she exercised enormous denial in relation to her Mother and her Mother's refusal to come to M. She said that she didn't think that her mind would ever change. She was not concerned about the impact of separation from her Father, sister or friends and she idealised what she thought life would be in B B.
According to Mr Papaleo, A was a strong advocate for her sister's wish to reside in B B with her Mother. She was equally clear however that notwithstanding her support for her sister, that it was her wish to remain in M and she really emphasised the importance of her relationship with her friends and her school. According to A it was important that J live with her Mother and that with the passage of time her sister's distress and yearning for that relationship became stronger. A described her sister as being depressed and crying every day and even though she would prefer that her sister and herself not be separated she recognised the importance of J being with her Mother. She described J and her Mother as having a very strong relationship, that J missed her Mother terribly and even though she too had a close relationship with her Mother, at this stage in her life, she feels a relationship with her peer group is more important.
Mr Papaleo concluded that there seemed little doubt that J desperately wanted to reside with her Mother in B B. Her views have changed significantly and had intensified with the passage of time. He considered that in reality there was little option other than to support J’s wishes but he made the recommendation with a clear expression of concern about the intransigence of the Mother and the qualified nature of her concerns for her children, which did not take precedence over the concerns for herself.
J's school teacher gave evidence. She had prepared a report verified by the affidavit and she gave oral evidence. She had taught J for five years. She commenced in class one and J was now in class five. She described her as very bright student who shows tremendous interest and enthusiasm in all she does. She had seen no evidence that J's personal situation had affected her educational performance and progress or her social standing at school. Upon her return from her unexpected and extended stay at B B and the subsequent Court intervention ordering her return, she was pale and quiet. However, since the last term of 2003 and particularly during the current term, although she expresses the wish to live with her Mother, J has been extremely settled and very happy at school.
She said that she checked in with A and J from time to time. Two days prior to when she gave evidence she had taken J aside. She described the conversation. She said that J is mature and confident and very certain of herself. She told her that she wanted to live with her Mother. She thought some of J’s language was acquired. J spoke of B B as a place to heal the soul, not M. She said that these were unusual expressions for a child J’s age. However, she said that J does not say what other people want her to say.
L gave evidence. He described his relationship with his sisters; obviously a very good one. J has told him that she wishes to live with her Mother.
On behalf of the Mother, an affidavit attaching an assessment report by a psychologist was filed. This confirms what the Mother said that she felt that the Husband had ruined her life and that she could not live in M.

Law to be applied

The application has to be decided in accordance with the relevant provisions contained in part VII of the Family Law Act 1975. Section 60B sets out the objects and principles underlying part VII. Section 65E provides in deciding whether to make a particular Order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. Section 68F(2) sets out matters which the Court must consider in determining what is in the child’s best interests.

Section 68F(2) considerations

·Children's wishes

The most significant of the section 68F(2) factors is children's wishes. There is no dispute that J's wish is that she should live with her Mother. The recommendation of the Child Representative was that J remain living with her Father. The submission recognised the significance of J's stated wish. The factors against making an order in accordance with J's wishes were several. The actions of the Wife are criticised. The actions criticised were taking the children to Amrita Hobbs for a healing session, enrolling J in the B B School, making an application to the local Court at B B for an ex-parte residence Order, sending J's letter to her Father requesting that she be allowed to remain in B B and delaying J's return to M. It was submitted that J was in denial about her Mother’s behaviour and was denying that there was anything good about M. Emphasis was placed on the teacher’s evidence that J was now well settled in school. Reference was made to Mr Papaleo’s consideration of this evidence. He said that a consideration was to look at how well the child was doing in her current environment. The teacher’s evidence showed that J was well settled and doing well. The Child Representative points to the teacher’s evidence about how well J is doing at school in her school work and her social relationships. Overall, the submission was that when all of these matters were taken into account, it would not be in J's best interests to make an Order in accordance with her stated wish.
Significant matters in the teacher’s evidence is that immediately prior to the hearing, J again stated that she wished to live with her Mother. The teacher said that J is mature and confident and certain of herself. She said that she was not influenced by what other people think although she was concerned about the way she described life in B B.
Mr Papaleo’s concerns are her idealised view of life in B B and her criticism of her Father. He is critical of the Mother who he considers puts her supposed interests ahead of the children. While it may be that she can no longer live in M, Mr Papaleo puts the view that she did not need to move as far away as B B.
The approach to be taken to children's wishes it is set out in R v R; Children's wishes (2000) FLC 93 -000. Proper weight must be given to children's wishes. Appropriate and careful consideration must be given to them. They should not be simply treated as a factor in the determination of the child’s best interests without giving them further significance. When validly held wishes are departed from, good reasons should be shown for doing so. There are many factors that go to the weight which should be given to the wishes of children and these will vary from case to case. Ultimately, it is a process of intuitive synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a commonsense way as one of the factors in the overall assessment of the children's best interests.
·Relationship with parents and others and likely effect of changes
The relationship of J with her parents, her sister A and her brother L and the likely effect of any change in those circumstances are relevant considerations. There is a close relationship with both parents. Until February 2003, the Mother was the primary carer of both children. The Husband has worked hard at improving his relationship with the children. He has been able to adjust his work hours to suit. If J is to live in B B undoubtedly her relationship with her Mother will be enhanced. How that will affect her relationship with her Father is a matter of speculation. The Husband will, I consider, want to maintain and improve his relationship with J. J may change the negative view of her Father which she put to Mr. Papaleo.
The Wife described conflicts between J and A. It was apparent throughout the Wife’s evidence that she was intent on furthering her case for J to live with her. She described conflicts between J and A and went so far as to say she feared one might injure the other. However, ultimately in answer to a question from me, she said that the relationship between J and A and their fights and disagreement were because of their age. There had been periods in the past when they got on well and she considered that there would be periods in the future when the same would happen.
J and A have a good relationship with each other. I do not consider that J would necessarily suffer if she was to live in B B. A is a strong supporter of J's wish to live in B B. It may be that J’s relationship with L will improve if she lives in B B. However, he is an adult sibling with whom she has a good relationship. He has travelled in the past and may travel again and will not necessarily remain in B B.
·Difficulty and expense of contact
It is clear that if J is to live in B B, there will be the difficulty and expense of travel between B B and M to enable her to have contact, and to maintain personal relations with the Husband. The same is true of contact with her Mother if she lives in M.
·Capacity to care for children
In the Wife’s case, several incidents were raised which was said to reflect upon the Husband’s capacity to care for the children. These were: that the Husband visited friends with J and became drunk, was vomiting and had to come home with J in a taxi: that he left the children by themselves in a shopping centre while he worked: and that he left children alone when he returned home late from Court one day. None reflect on the Husband’s overall capacity to care for the children. He admitted he had too much drink on one occasion and that combined with other circumstances made him ill. While it may have been upsetting for J she was not at risk of any harm. The Husband’s evidence showed that J and A were together at the shopping centre and were safely occupied. The Husband was not as late home from Court as the Wife alleged and there was no risk to J.

·Need to protect children from harm – family violence

Violence and its effect on the children, and the need to protect them were matters canvassed in the hearing. The Wife alleged violence in the past by the Husband. To an extent, the Husband acknowledged this. He conceded there was a time when he considered he was entitled to meet force with force. He now acknowledges that was inappropriate. He said that when the children were young he used physical chastisement. He did this because that was the way he was brought up. He now knows that it is possible to bring up children without physical chastisement. I was impressed with the Husband’s evidence in this respect. Whatever violence might have occurred in the past, there is now no risk of violence to the children or violence in their presence.
·Likelihood of further proceedings
The need to make an Order least likely to lead to the institution of further proceedings in relation to J has some relevance. The Mother did not think that the Order made on 4 July 2003 was the conclusion of the question of where the children would live. She said she considered that eventually the children would come to live with her. It is quite apparent that the Wife has attempted to influence J's wishes, as much to satisfy the Wife’s wishes as J’s. If an Order is made that J remains living with the Husband, and she continues to say that she wishes to live with the Wife, it is likely that the Wife will bring further proceedings.
·Other matters
This application to change J's residence was commenced less than three months after Final Orders had been made. The circumstances justify consideration of all the applications because J's stated wishes have changed.

Conclusion

J's stated wish to live with the Wife has not come about only because of what occurred during September contact and subsequent events. In the earlier interview with Mr Papaleo her preference was to live with her Mother in M. She showed a strong relationship with her Mother, and that was acknowledged by her sister. Her sister was stating a strong wish to remain in M. The Mother says that J was told that she had only 30% of the say and A 70%. Whether or not that was said to J in those terms, it is likely that she considered that A, with her strong wish to stay in M, had the greater say and that she should stay with A. The counselling sessions with Ms Carver in which the Husband participated was after the July Order. In December, when Mr Papaleo again interviewed her, she was not putting a changed view, but a strengthened view. While the Wife might have influenced J for selfish reasons, I consider that the Wife’s actions only assisted in the strengthening of J's wish. The Wife’s actions were not the reason or even the dominant reason for the strengthening of J’s wishes.
J has stated a clear wish. She is mature enough to be able to decide what she wants to do. She may have a romanticised view of life in B B, but she has spent long enough there to know what it is like to be there with her Mother. A’s wishes are relevant. She supports J’s desire to live with her Mother. While a decision that J live with her Mother would separate the sisters, both say that is what should happen. Of all the relevant considerations, the children’s wishes are the most significant. When children’s wishes are considered with all the other circumstances, I consider that it is in J’s best interests that she reside with her Mother.
Contact presents some difficulty because school holidays for the two children do not coincide. The Mother has put a proposal which deals with the first 12 months in the event that A is in M and J is in B B. The parties are in agreement that holiday contract should be supplemented by weekend contact during term time. Contact should be such that the children spend as much time together as possible. The Order of 4 July 2003 required agreement about the detail of contact. Notwithstanding that J was not returned in September, the parties have been able to reach agreement as required. An appropriate Order is for each child to have contact with the other parent for half of each school holidays at a time at which the other child is residing with that parent, and for one weekend each term and two additional weekend's each term as already agreed in the Orders of 4 July 2003 but with the proviso that those children are together on this weekends.
The cost of travel for contact is an issue. The Father put a proposal that in the event that both children were residing with him that the Wife pay all airfares if her liability for Child Support was assessed as nil. The Order of 4 July 2003 provided for the Wife to pay travelling expenses for contact if she elected to live outside the State of Victoria. The Husband’s income is higher than the Wife’s. This will probably result in the Husband being assessed to pay some Child Support to the Wife. In the circumstances I consider that the just result is that the parties share the cost of travel for contact.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: Sherryn Kwong

Date: 1 April 2004