Vane and Taggart

[2018] FCCA 5

FEDERAL CIRCUIT COURT OF AUSTRALIA

VANE & TAGGART [2018] FCCA 5

Catchwords:
FAMILY LAW – Parenting – relocation – best interests of the child – equal shared parental responsibility.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 65DAA

Applicant: MR VANE

Respondent: MS TAGGART

File Number: MLC 330 of 2016

Judgment of: Judge Mercuri

Hearing dates: 4, 5 and 6 December 2017

Date of Last Submission: 6 December 2017

Delivered at: Melbourne

Delivered on: 23 January 2018

REPRESENTATION

Counsel for the Applicant: Ms Papson

Solicitors for the Applicant: Stuthridge Legal

Advocate for the Respondent: Mr Stevenson

Solicitors for the Respondent: Ace Solicitors

ORDERS

1. The parties have equal shared parental responsibility for the children X born (omitted) 2009 and Y born (omitted) 2012 (“the children”).

2. The children live with the mother.

3. The children spend time and communicate with the father as follows:

   (a)at all times that is agreed upon by the parties;

   (b)for 10 consecutive days during Queensland school term holidays as agreed and failing agreement from the first Saturday after the conclusion of school term until 6:00pm on the second Tuesday in the school holiday period;

   (c)for 3 consecutive weeks during the Queensland long summer holidays as agreed and failing agreement:

   (i)commencing in the 2018/2019 holidays and each alternate year thereafter from the first Saturday after the conclusion of term 4 until 6:00pm on the middle Sunday of the Queensland long summer holidays; and

   (ii)commencing in 2019/2020 holidays and each alternate year thereafter commencing on the middle Sunday of the Queensland long summer holidays until 6:00pm on the last Sunday of the holidays;

   (d)for two long weekends each year as agreed and failing agreement, on the Queensland Labour Day and the Queensland Queen’s Birthday long weekends, such time to be spent either in Queensland, Victoria or such other location determined by the father;

   (e)if the children are not already spending time with the father, on Father’s Day, Christmas Day, each of the children’s birthdays and the father’s birthday, by telephone or Skype at such times to be agreed and failing agreement, between 5:00pm and 7:00pm; and

   (f)

   by telephone or Skype at least once a week at such times to be agreed and failing agreement, each Tuesday between 5:00pm and

   
   

   7:00pm.

4. The costs of the children’s travel to and from Queensland pursuant to these orders will be shared equally between the parties.

5. Unless otherwise agreed between the parties in writing, the father will collect and deliver the children at (omitted), unless he has arranged flights for the children to meet him in Melbourne, in which case he will provide the mother with:

   (a)at least 7 days’ notice in advance;

   (b)an itinerary for the children’s flights and copies of the return flights; and

   (c)confirmation that the chosen airline will allow minors to fly unaccompanied under the supervision of airline staff.

6. Changeover, if occurring in(omitted), is to occur between the father and the maternal grandparents or either of them and not between the parties themselves.

7. The parties:

   (a)attend and complete, as soon as practicable, a parenting apart post-separation program (“the program”) at an organisation or organisations as nominated by:

   (i)in the case of the father, the Regional Coordinator of Child Dispute Services in the Melbourne Registry of the Federal Circuit Court of Australia; and

   (ii)in the case of the mother, the Regional Coordinator of Child Dispute Services in the Brisbane Registry of the Federal Circuit Court of Australia;

   (b)sign all such documents and do such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;

   (c)each pay and otherwise be responsible for all costs associated with their program; and

   (d)provide an appropriate certificate of completion of the program to the other parent or his or her solicitors.

8. The mother will continue to attend a literacy improvement program until such time as recommended by the organisers of that program.

9. The parties, their servants and agents are hereby restrained by injunction from:

   (a)abusing, rebuking, belittling or otherwise denigrating each other or any member of the other’s household, in the presence or hearing of the children nor permitting any other person to do so;

   (b)discussing these proceedings or any parenting matters in the presence or hearing of the children nor permitting any other person to do so; and

   (c)exposing the children to any person under the influence of any illicit substance nor permitting any other person to do so.

10. Each party will keep the other advised of their current address and phone number.

11. Each parent will immediately inform the other of any serious illness or medical emergency that the children or any of them may suffer and authorise the other parent to immediately speak to any treating health practitioners.

12. Each parent will keep the other informed of any changes to their residential address, telephone numbers or email address within 48 hours of any such change.

13. The mother will authorise the father to receive copies at his expense of the children’s school reports, photographs, newsletters and other like documents.

14. The mother and father be permitted to attend all functions, events and activities associated with the children’s schooling at which parents normally attend.

15. The mother and father will refrain from using or being under the influence of illicit drugs at any time when the children are under their care.

16. Pursuant to section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

AND THE COURT NOTES THAT:

(A)Pursuant to section 62B of the Family Law Act 1975 (Cth), information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

(B)Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 330 of 2016

MR VANE

Applicant

And

MS TAGGART

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by the father, Mr Vane born (omitted) 1988 for parenting orders in respect of his children, X born (omitted) 2009 (“X”) and Y born (omitted) 2012 (“Y”) (“the children”).

2. The father seeks orders that the children be returned to live with him in (omitted) Victoria and that they spend time with the mother, such time to depend on whether the mother also relocates to (omitted) (or the (omitted) region) or remains in Brisbane. The father also seeks various consequential orders including that the mother undertake a post-separation parenting program, a mental health plan and continue to attend her literacy improvement programs. 

3. The mother, Ms Taggart born (omitted) 1968 seeks orders that the children continue living with her and spend time with the father. 

Issues in dispute

1. The key issues in dispute are:

   a)where the children should live and with whom;

   b)time spent with the other parent; and

   c)who should meet any costs of travel between the parent’s residences.

Summary

1. I have determined that it is in the children’s best interests that:

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

   b)the children continue to live with the mother;

   c)the mother not be required to relocate to Victoria but continue to undertake a literacy improvement program;

   d)the children spend time with the father during school holidays and two long weekends during the year;

   e)the costs of travel to facilitate time with the father be shared equally; and

   f)both parents attend post separation parenting courses.

Background

1. The father and the mother commenced a relationship in (omitted) 2005. The parties met when the father was working for the mother’s family as (occupation omitted). As a result of the nature of the family’s work, the couple travelled for work principally in Queensland, New South Wales, Victoria and South Australia, each year until 2011, when the mother became pregnant with the parties’ second child, Y.

2. It is common ground that the parties lived principally in Melbourne for the next two years or so. At all relevant times, and until June 2014, whenever the parties were in Melbourne, they lived in a housing commission flat in (omitted) which had been allocated to the mother.

3. In about June 2014, the parties together with their children, moved back to Brisbane to live with the maternal grandparents. They remained there until about March 2015 when they returned to Victoria. On their return to Melbourne, the parties rented a house in (omitted).

4. On or about 1 December 2015, as a result of increasing conflict between the parties, the police were called to the family home. Following this incident, the mother initially left the family home in (omitted). Ultimately, an IVO was obtained against the father naming the mother and the children as affected family members (“AFM”).

5. The relationship between the parties finally broke down shortly after this incident in December 2015 and the father then moved to (omitted) to live with his now partner, Ms A. Ms A has two children from a prior relationship who live with her. The father and Ms A have also since had a son together, A born (omitted) 2017 (“Mr J”).

6. Shortly after their relationship came to an end and the father moved to (omitted), at some point between 10 and 17 December 2015, the mother moved back to Brisbane with the children to live in the maternal grandparents’ home.

7. The father filed his application in this Court seeking recovery of the children on 15 January 2016. The matter first came before his Honour Judge Wilson on 8 February 2016, at which time orders were made for the children to reside with the mother and spend time with the father in Brisbane.

8. On 8 December 2016, interim orders were made by consent removing the restriction for the father’s time with the children to be limited to the Brisbane area and permitting the father to travel with the children to his residence in Victoria.

9. The parties attended upon a family consultant, Mr J, in Queensland on 16 October 2017. Mr J prepared a written report.

10. The matter was listed for final hearing on 4 December 2017.

The proposals of the parties

The father’s proposal

1. The orders which the father seeks are set out in his outline of case filed on 29 November 2017. In summary, he is seeking that:

   a)the parents have equal shared parental responsibility;

   b)the children live with the father in (omitted), Victoria and that they be returned to live with the father not less than two weeks prior to the beginning of the 2018 school year;

   c)if the mother returns to Victoria and lives within a 45 minute drive of (omitted), the children spend time with the mother;

   i)during school terms on each alternate weekend;

   ii)for half of the school holidays; and

   iii)such other times as agreed;

   d)changeovers to occur at either a McDonald’s restaurant or a police station;

   e)the children spend special occasions with each parent;

   f)if the mother does not return to Victoria and live within a
   45 minute drive from (omitted), but remains in Queensland, then the children spend time with the mother for half of each of the school holidays and that the cost of travel be shared between the parties;

   g)each parent keep the other advised of their residential address and contact telephone numbers, have access to the children’s schools and kindergartens for reports, photographs, newsletters and notices and each parent advise the other of any significant medical condition suffered by either of the children;

   h)the mother communicate with the children by telephone or Skype each Tuesday night at 4:30pm with the mother to call the father and the father shall ensure that the children are available to take the call;

   i)the mother:

   i)enrol in and complete a post separation parenting course;

   ii)attend upon a general practitioner for the purpose of undertaking a mental health plan for counselling, follow the advice of treating practitioners and provide evidence of her attendance to the father; and

   iii)continue to attend literacy improvement programs; and

   j)the mother be restrained from denigrating the father or any member of his household within the presence or hearing of the children.

The mother’s proposal

1. The mother’s proposal as set out in her outline of case filed on
   4 December 2017, is that:

   a)the children live with the mother;

   b)the parties have equal shared parental responsibility for the long-term care welfare and development of the children;

   c)each of the parties have parental responsibilities of each child during periods that they are staying with that parent;

   d)the children spend time with and communicate with their father as follows:

   i)at all times that is agreed upon by the parties;

   ii)every second weekend from 5:00pm Friday to 8:00pm Sunday;

   iii)for the second half of all school holidays;

   iv)the changeover point for each of the contact times shall be (omitted);

   v)the father shall be responsible for all travelling costs;

   vi)the father must advise the mother by text message or other means of communication of his intention to visit or take the children and of the travel arrangements by no later than 48 hours before the start of that contact period; and

   vii)by telephone at least once a week;

   e)Each parent shall:

   i)keep the other parent advised of their contact details;

   ii)be at liberty to obtain any information from the children’s school, kindergarten or medical practitioner;

   iii)advise the other as soon as practicable of any significant medical condition suffered by either of the children;

   iv)be restrained by themselves, their servants and agents by injunction from denigrating the other party or any member of the party’s family in the presence or hearing of the children; and

   v)be restrained from taking illicit drugs during the times that they are with the children.

2. In the course of the hearing, the mother indicated that she was happy for the father to spend as much time as he could with the children and that she was happy for the father to come and stay in the granny flat in the maternal grandparents’ home so that he could see the children more frequently. She also offered to pay some of the costs associated with the father flying to Brisbane to spend time with the children.

Documents relied upon by the parties

The father

1. The father relied upon the following:

   a)amended initiating application filed 10 November 2017;

   b)trial affidavit of Mr Vane dated 10 November 2017;

   c)affidavit of Ms E dated 8 June 2016;

   d)affidavit of Mr Vane dated 9 June 2016;

   e)affidavit of  Mr Vane dated 1 December 2016; and

   f)outline of case filed 29 November 2017.

The mother

1. The mother relied upon the following:

   a)response filed 8 February 2016;

   b)affidavit of Ms Taggart dated 7 February 2016;

   c)affidavit of Ms Taggart dated 29 November 2017;

   d)affidavit of Ms B dated 29 November 2017;

   e)affidavit of Mr E dated 29 November 2017; and

   f)outline of case filed 4 December 2017.

Evidence

The father

1. The father gave evidence and was cross examined. The father presented as a genuine and honest witness who was doing his best to answer questions put to him honestly and made appropriate concessions. Whilst he clearly had concerns about the mother’s parenting capacity, I was impressed by his desire not to overstate those concerns and his ability to concede the possibility that the mother may have acted appropriately in particular instances.

2. I am satisfied that the father has the children’s best interests in mind. He appears to have turned his life around and understandably wants to make a life for his family, including his children from his relationship with the mother.

3. At the hearing, the father gave evidence that he has not used illicit drugs for over two years, that he rarely drinks alcohol, that he and his current partner have a good relationship, that he has a positive relationship with her children and that they have stable accommodation where they have been living for almost 2 years.

4. He also gave evidence that both he and his partner work and that they are planning to buy a house in the near future in the (omitted) area. He gave evidence that he has no intention of moving from the (omitted) area.[1]

   [1]Transcript page 16 at lines 15 to 29.

5. The father gave evidence that his current income is $1,200 per week net.[2] The father also gave evidence that for the children to travel as unaccompanied minors from Queensland to Melbourne, the cost is between $900 and $1,100 return for both children.[3]

   [2]Transcript page 9 at line 23.

   [3]Transcript page 9 at lines 2 to 13.

6. The father, in cross examination, gave evidence that the distance from (omitted) to the airport, “is about an hour and a half at most with traffic”.[4]

   [4]Transcript page 23 at lines 35 to 36.

The mother

1. The mother gave evidence and was cross examined. She provided this evidence in a frank manner and I believe she was doing her best to be honest and open. She made concessions against her interests, in particular, in relation to her history of drug use. Having said that, I formed the view that she underplayed the level of tension in the maternal grandparents’ home. I did not form the view that she did this to intentionally mislead the Court, but rather, because she considers this level of conflict a normal way for a family to interact. This may well be the case in her family.

2. I am satisfied that the mother is doing the best she can to provide for the children’s wellbeing and to meet their physical, social and educational needs.

3. It is of some concern that neither parent appeared to fully appreciate that the conflict between them has an impact on the children. For her part, the mother questioned the father’s commitment to the children given that he has now re-partnered and has a ‘new family’. For his part, the father acknowledged that he did not wish to discuss anything with the mother.

4. Importantly, Mr J noted:

   Regardless of where the children live, both parents must adjust their current approach to parenting if they are to prioritise the future needs of the children. At this stage, the children would benefit from stable expectations and shared routines between the two households. To the extent possible and practicable Mr Vane and Ms Taggart should work together to lessen any burden on the children by improving their communication, sharing information and making important welfare and development decisions together. X was reported to be demonstrating behaviours indicative of increased stress and emotional confusion. It is possible that she is reaching the limits of her capacity to self-manage the implications of her situation. Both parents need to take this observation on board if they wish to limit any potential psychological harm.[5]

   [5]Family Report at paragraph 104.

1. The financial situation that both parents find themselves, with limited resources, make regular frequent flights to and from Brisbane difficult.

Ms E

1. Ms E gave evidence by telephone. She was a former neighbour of the maternal grandparents, knew the parties and observed their interactions whilst they lived in the maternal grandparents’ home. Ms E gave evidence that she moved from her home across the road from the maternal grandparents in about June 2016 and although she has spoken to the father and the maternal grandfather by telephone on occasion, she has otherwise not directly observed either the mother or the children since June 2016.

2. Ms E’s evidence was generally supportive of the father being a good parent and was fairly critical of the mother’s parenting capacity.

3. Ms E gave evidence that shortly after the mother returned to Brisbane, she and the mother discussed the mother’s separation from the father and Ms E said words to the effect that she thought that ‘Mr Vane is a better parent’.[6] She said that after this, the mother refused to speak to her and refused to let the children speak to her. Ms E took exception to this.

   [6]Transcript page 65 at lines 40 to 41.

4. Whilst I accept Ms E’s evidence of what she observed in the maternal grandparents’ home, I have assigned that evidence limited weight given that in large part, it related to events which occurred well before the separation of the parties and the mother’s relocation to Brisbane in December 2015. To the extent that she has directly observed the family post-separation, these observations were prior to June 2016. Also, Ms E’s view has arguably been influenced by the breakdown in her relationship with the mother following the mother’s return to Brisbane after separation.

Mr J, family report writer

1. Mr J interviewed the father and his new partner, Ms A, the mother, the maternal grandparents and the children. Mr J also observed the children with the father and his partner, with the mother and with the maternal grandparents. Mr J prepared a detailed 30 page report of his assessment in relation to this matter.

2. In essence, Mr J recommended that:

   a)the mother and father have equal shared parental responsibilities for the children’s long-term welfare and development needs;

   b)the children be relocated to Victoria and live with the mother;

   c)that any such relocation occur prior to the children recommencing school in 2018;

   d)the current orders remain in place until the relocation occurs;

   e)to the extent possible and practicable, the mother be supported by Save the Children to access professional supports and community housing options in Victoria as part of the mother’s transition to Victoria with the children;

   f)the children spend time with the father for five days and nights each fortnight, such time to be divided between alternate weekends and weekdays; and

   g)both parents attend a parenting orders program.

3. In the alternative, Mr J recommended that if the children were to continue to live in Brisbane, consideration be given to increasing regular time between the children and Mr Vane to the extent possible and practicable.

4. Mr J’s observations of the children with each of the parents indicate that the children appear to have a close bond with each parent.

5. Mr J in his evidence in Court confirmed the main concern for these children is: “the conflict between the parents, and more so X because she has very definitely tried to use diplomatic strategies to… avoid getting embedded in that conflict”.[7]

   [7]Transcript page 90 at lines 37 to 40.

6. In cross-examination, Mr J conceded that:

   apart from the emotional and psychological consequences of the parents being in dispute and… the lack of time that they’re able to spend with the father, and the fact that he doesn’t seem to be… as involved as… he ought to be with… significant issues that impact the long-term welfare and development and the fact that he can’t be involved in day to day issues and attending school and extracurricular activities… I think they… seem to be adjusting well. There are no significant concerns.[8]

   [8]Transcript page 91 at lines 18 to 27.

7. Importantly, Mr J recommends that irrespective of the location in which they live, that the children live with the mother and spend substantial time with the father. He is not suggesting that the children live with the father. Mr J acknowledges that the children’s primary connection is with the mother. Moreover, he acknowledges that she has adequate parental capacity.[9]

   [9]Transcript page 97 at lines 14 to 24.

8. It is clear from his report, and his evidence in this matter that Mr J was particularly concerned about the fact that Ms Taggart relocated to Queensland unilaterally. While noting that Ms Taggart said that she acted on advice from the police at the time:

   …nevertheless she did act unilaterally and unless the Court is confident that she acted in the best interests of the children, the fact that she removed the children from Victoria should be given significant weight, in my opinion.[10]

   [10]Family Report at paragraph 95.

9. He went on to say: “relocating the children so far away has had a negative impact on the children’s ability to spend regular time with each parent…”[11]

   [11]Family Report at paragraph 96 and transcript page 90 at line 37.

10. This was a significant consideration in coming to his recommendation that the mother be required to move back to Victoria.  In his view, one parent deciding, without consultation with the other, to take such a drastic measure ought to be given significant weight in considering how best to deal with this matter going forward.[12] In answering some questions about the potential benefits of the children relocating to Victoria, Mr J’s views about the unilateral relocation by the mother were expressed as follows:

    If that was a unilateral relocation, and they’re back to where they were unilaterally relocated from, the benefit is they’ve then got… access to both parents to maintain those important bonds that they have to the best degree that they can…have more opportunities to develop, maintain, strengthen their bonds with each parent.[13]

    [12]Transcript page 87 at lines 5 to 12.

    [13]Transcript page 106 at line 19 to 24.

11. Mr J did however, concede that a move back to Victoria for the mother, without the support structures that she has in place in Brisbane would pose a significant risk to the mother’s wellbeing and therefore to that of the children.[14]

    [14]Transcript page 102 at lines 6 to 7 and at line 30.

12. Insofar as it was suggested that the fact that X has already completed three years of school in Queensland and that the stability factors weigh against relocating her, Mr J noted that, whilst that is a factor, given X’s presentation and lack of development delays, there are no contra indications from that perspective to relocating the children to Victoria at this stage.

13. Mr J stated that one of the difficulties going forward with an arrangement which would see the father having his time with the children occur predominantly during school holidays is that as children get older they want to spend school holidays with their friends and peers or undertaking activities that they have developed during the school year. A requirement that the children travel interstate for each of their school holidays will inhibit or limit their capacity to do this and this could become an issue of conflict down the track.

Mr E

1. Mr E, the maternal grandfather gave evidence. He is 82 years old and has lived at his current home address for over 50 years. Mr E presented as an honest witness. He clearly was supportive of his daughter, however, to his credit, at no stage, in supporting his daughter, did he seek to denigrate Mr Vane.

2. Indeed, Mr E happily conceded that Mr Vane was a good father[15] and that he should have an active role in the lives of his children.[16] Mr E stated that Mr Vane is welcome to stay at the maternal grandparents’ home in Brisbane any time he wishes, if that would assist him in spending time with the children.[17]

   [15]Transcript page 166 at lines 8 to 10.

   [16]Transcript page 166 at lines 15 to 16 and 32 to 33.

   [17]Transcript page 167 at lines 4 to 5.

3. Mr E acknowledged that from time to time, his daughter and his wife had arguments and that there was sometimes tension between them. He also acknowledged that his daughter sometimes argued with his granddaughter, L.

Ms B

1. Ms B, the maternal grandmother also gave evidence in these proceedings and was cross-examined. Her evidence was also given in an open and transparent manner.

2. Ms B gave evidence that she was 72 years of age and had been diagnosed with cancer some 18 months earlier. She said that she was undertaking some treatment which has had a positive effect and as a result, her condition has now stabilised.

3. Ms B gave evidence that from time to time, she and her daughter would argue, although she stated that they would then make up. For example, she said:

   Ms Taggart and I argued and then we would make up. You know, it’s just a – it’s not a bad relationship. It’s a mother/daughter relationship. I think, well, not so much now, but then I think her with the babies and, you know, now she is quite placid.[18]

   [18]Transcript page 176 at line 35.

4. Moreover, Ms B conceded that although there were times in the past when she and the mother fought and would not speak for some days, the situation was no longer like that at the moment.[19]

   [19]Transcript page 177 at line 7.

5. Ms B also conceded that at times when there were arguments between her and her daughter, the children were in the home and also that her daughter would scream and yell at her. She also conceded that her daughter would fight with her granddaughter, L and that sometimes those fights would last for days or longer.[20]

   [20]Transcript page 179 at lines 10 to 16.

6. Ms B conceded that Mr Vane is a good father and that he should play an active role in the children’s lives.[21]

   [21]Transcript page 182 at lines 16 to 19.

Factual issues for determination

1. In considering the evidence in this case, the following issues have arisen for determination:

   a)where the family principally lived during the parent’s relationship;

   b)the circumstances which led to the mother relocating to Brisbane with the children in December 2015;

   c)the quality of the environment in which the children currently reside and in particular:

   i)whether they are being exposed to conflict between the mother and the maternal grandmother, or the mother and her niece, L; and

   ii)whether the mother has recommenced using illicit drugs;

   d)the parties’ relative parenting capacity and whether they are able to support the children to have a relationship with the other parent; and

   e)the nature of support presently available to the mother in Brisbane and whether this might be replicated if she were to return to Victoria.

2. I will address each of these issues briefly.

Where did the family principally live during the relationship?

1. There was a significant dispute between the parties as to where they substantially lived during their relationship.  The father’s case was that their primary residence during the relationship was Melbourne; initially the mother’s housing commission flat in (omitted) and then just prior to separation, their home in (omitted).  The father’s case is that the couple travelled for work and spent time in New South Wales, Queensland and South Australia as part of that travel, but substantially lived in Melbourne. The father acknowledges that they did stay with the maternal grandparents from time to time in their home in Brisbane.

2. The mother’s case was that, essentially the couple had three homes, their residence in Melbourne (i.e. the (omitted) flat and then more recently, their home in (omitted)), the maternal grandparents’ home in Brisbane and the caravan they stayed in when travelling for work.

3. The mother also gave evidence that the flat in which she and the father resided in (omitted) was in an area where there were lots of drugs and that when they had the children, they decided that it was not a good environment for the children to grow up in. It was for this reason that the mother and father gave up that flat and moved back to Brisbane in 2014.

4. There was some dispute as to the reasons why the parents moved back to Melbourne and into rental accommodation in (omitted) in 2015. The mother’s evidence was that their move to Melbourne was initiated by the father even though she wanted to stay in Queensland.

5. Both Mr and Ms B also gave evidence that there were periods of time during their relationship when the parties stayed at the family home in Brisbane, when they travelled with the (employment omitted) around Australia and at other times they lived in Melbourne.

6. After X was born, Mr E gave evidence that the mother and father did not do as much travelling and that there were periods of time when they lived in Melbourne. He also gave evidence that the home that they were living in at (omitted) was not a very nice place to live, that there were drugs in the area and there were hypodermic needles everywhere.

7. Having regard to all of the available evidence, I find that the parties lived between Melbourne (initially (omitted) and then for a short period in (omitted)), Brisbane and their caravan when they travelled for various (employments omitted).

What were the circumstances which led to the mother’s relocation to Brisbane?

1. It is common ground that there was an incident which occurred between the parties on 1 December 2015 which resulted in an intervention order being taken out by the police against the father in the mother’s favour.

2. The mother gave evidence that, following this incident and the granting of an intervention order against the father, the police told her that she should move back to Queensland where she had family support. The mother said:

   I just wanted to protect my kids against the family violence, and I wanted to go somewhere it was safe for me and my children, instead of copping abuse every day, and it went on for months. [22]

   [22] Transcript page 125 at lines 5 to 8.

3. Her evidence is that she acted on this advice.

4. The subpoena material produced by Victoria Police is consistent with this. The following case progress narrative is entered into the LEAP report:

   The AFM and RESP are/were in a de facto relationship for about 10 years and have two children aged 6 & 3 years. On Tuesday, the 1^st of December 2015, the RESP and AFM have been at home with there (sic) children, and started to argue over the RESP wanting the AFM to leave the house and other matters. The RESP and AFM have both made separate called (sic) to police and 000 in relation to their argument. Police attended and spoke to both parties, nil threats, nil assaults, nil criminal damage. The RESP wanted the AFM to leave but the AFM would leave (sic) as their two children were asleep. Both parties uncooperative with police and refused to provide details of the argument. The AFM after speaking to police left the address with her two children to go and stay at a family members address for the night. Verbal argument only…[23]

   [23] Exhibit A – Victoria Police LEAP Sub Incident Summary Report dated 2 December 2015.

5. Exhibit A also contained the following entry in respect of an incident on 9 December 2015:

   The AFM and RESP have been in a relationship for 10 years and have two children together aged 6 & 3. The AFM and RESP moved from Qld approximately 6 months ago & the AFM became aware the RESP was having an affair and confronted him. The AFM contacted DHS & police & disclosed to police on

   
   

   09/12/2015 controlling behaviours the RESP is exhibiting. The RESP in the past has taken her key card & refused to give her access to her money, has taken their son and left without a return date of contact with the AFM and threatens to take the children away permanently. The AFM is on a pension & the RESP receives benefits as the carer of the children. On (sic) 1/12/2015 the AFM & RESP had a verbal argument & police attended. The AFM left the property with the children & slept in the car before staying at a friend’s place for a couple of nights. The RESP asked the AFM to return home. Since returning home the RESP had continued to put the AFM down, swearing at her in front of the children & the children witness’s (sic) the RESP telling her he wants nothing to do with her & she means nothing to him. The RESP refuse’s (sic) to give the AFM money to buy food, nappies & essentials for the children & controls the AFM knowing she cannot read or write asking her to sign documents without explaining what they say or mean. The RESP does not treat the AFM with respect… Police have concerns for the mental wellbeing of the AFM & the development of the children being continually exposed to the controlling behaviour & family violence in the home.[24]

   [24] Exhibit A – Victoria Police LEAP Sub Incident Summary Report dated 9 December 2015.

6. In relation to the incident which occurred on 1 December 2015, the mother conceded that the father did not “kick (her) out” of the home, rather, she said that: “he got the police to kick us out. I begged, in front of the police, for him not to kick us out, and I says, ‘I will leave early in the morning.’ He just looked at me and he says, ‘Just take her’”.[25]

   [25]Transcript page 123 at lines 24 to 26.

7. The mother’s evidence was that after witnessing the father’s behaviour at the home the police said they would not let her stay there with him. She further stated:

   I begged him, “Please, Mr Vane, if you want us to leave, we will go first thing in the morning.”

   He says, “Just go. Go.”

   And he was slamming the – he jumped in the car door and slammed it. And the police grabbed me, because I was just trying to talk to him. He didn’t want to talk. [26]

   [26]Transcript page 123 at lines 35 to 39.

8. It is also common ground that a couple of days later, the mother returned to the (omitted) home with the children and when the father returned from work, the mother tried to talk to the father and “that’s when he threatened me again”.

9. After this altercation, the father packed some items and left when the police were almost in attendance and it was at that point, that the interim intervention order was served upon him naming the mother as an affected family member.[27] The intervention order stated that the father was not to talk to the mother, contact or communicate with her or come within 200 metres of where she lived.[28]

   [27]Transcript page 124 at lines 5 to 21.

   [28]Transcript page 124 at lines 23 to 26.

10. The intervention order was initially obtained in December 2015 on an interim basis and then on a final basis in January 2016. The mother conceded that she did not make an application to extend that order as by January 2016, she was not living in (omitted) and therefore was not coming into contact on a regular basis with the father.

11. Mr and Ms B both gave evidence that in December 2015, the mother moved up to the maternal grandparents’ home at short notice. Mr E said that this move was initially a bit of a shock as he had understood that there were issues between his daughter and Mr Vane, that they had been “blueing badly”, that he had suggested to his daughter that she send the kids up for Christmas and his daughter and Mr Vane could then sort their issues out. He was then surprised to later find that his daughter was coming up with the children.[29]

    [29] Transcript at page 160 at line 42 to page 161 at line 16.

12. Ms B confirmed this and stated that her granddaughter, L had helped her daughter move back to Brisbane.

13. It is the case that the mother relocated to Brisbane with the children in December 2015, without first seeking the consent of the father or a Court order permitting her to do so. However, I find that in doing so, she acted upon advice from the police in the context of moving out of a highly conflictual situation and in the context that she was effectively moving back to one of the homes that the family had lived in over the years.

1. I also find that when she moved back to Brisbane, the father was no longer living in Melbourne but had himself moved to (omitted), some two hours away from Melbourne.

2. I am also satisfied on the basis of the evidence that the home in (omitted) was leased in the father’s name not in the parents’ joint names and that lease was due to expire on April 2016.

What is the quality of the environment in which the children now live?

A          Conflict

1. As stated above, the father maintained that he has concerns about the environment in which the children live due to the conflict between the mother and the maternal grandmother and also the conflict between the mother and L.

2. The mother downplayed any such tension and stated that whilst they have their “blues” they always make up and that overall, they are a very close-knit family. The mother stated that in terms of her relationship with the maternal grandmother, there was never anything very serious between them and that they have overcome many issues over the course of their relationship.

3. In response to questions from the father’s counsel, Mr E gave evidence that there were arguments between the mother and the maternal grandmother but that they generally made up. Mr E also gave evidence that it was towards the latter part of the period during which the mother and father lived at the maternal grandparents’ home in 2014 and “before they left when things became uncomfortable”.[30]

   [30] Transcript page 158 at lines 45 to 46.

4. Mr E also confirmed that his granddaughter, L, had a caravan on the maternal grandparents’ property and that she lived there from time to time when she was not otherwise travelling. Mr E confirmed that L and the mother sometimes had arguments and do not speak to each other and confirmed that at the time of the trial, they were not speaking to each other.

5. Ms B confirmed that, she and her daughter argued from time to time but then they made up. She indicated that their arguments were consistent with any mother/daughter relationship. Ms B indicated that there were more arguments when her daughter was living with them in Brisbane around 2014, when the children were babies. Of her daughter’s demeanour, she said “now she is quite placid”.[31]

   [31] Transcript page 170 at lines 37 to 38.

6. In response to questions about the environment in the maternal grandparents’ home and whether there are arguments between the adults at which the children are either present or witnesses, Ms B gave evidence that she and her husband live in the upstairs part of the home and generally if there was a dispute between her and her daughter, she would come upstairs and they would argue upstairs whilst the children were downstairs. She did concede that her daughter would scream and yell at her. Ms B also conceded that L and her daughter sometimes had arguments, but indicated that when the argument was over, they were very close and were always there to help each other. She pointed to the fact that L assisted in her daughter’s move to Queensland in December 2015.

7. I find on the basis of the available evidence that the mother did have arguments from time to time both with the maternal grandmother and her niece, L. I accept the evidence of the maternal grandmother that these arguments were more common when the children were younger. 

8. I am not satisfied on the basis of the available evidence that any such arguments make the maternal grandparents’ home an inappropriate place for the children to live.

B           Mother’s alleged drug use

1. It is common ground that both parents have a history of drug use and both parties gave evidence they no longer use drugs.

2. The father pointed to a telephone discussion he had with X in March 2016 in which she disclosed that her mother was using marijuana. It is common ground that this conversation occurred and that the mother tried to tell the father (either directly or indirectly) that this was not correct.[32]

   [32]Transcript page 11 at lines 44 to 47 and page 12 at lines 1 to 11.

3. The mother denied that she is currently using drugs.

4. I am not satisfied on the basis of the evidence that the mother is currently using drugs.

5. Moreover, the proposed orders address this issue.

Parties’ relative parenting capacity and support for children’s relationship with the other parent

1. Mr J interviewed both parents and made the following comments about the father:

   Mr Vane was articulate and relaxed. Generally, he attempted to be child focused in providing information, although he did allow adult issues to influence his thinking at times and he seemed unable to acknowledge his own limitations and contributions to the parenting dispute. He also seemed to be at a loss about how he might contribute towards improving the current situation (emphasis added).[33]

   [33]Family Report at paragraph 35.

2. In relation to the mother, Mr J notes:

   Reflecting on her proposal, Ms Taggart reported “I am the mother and the kids should stay with their mother. He’s got three different kids to three different women, how long is he going to be with her?” Reflecting on her position, Ms Taggart reported having no intention of disrupting the relationship between the children and Mr Vane…[34]

   [34]Family Report at paragraph 63.

3. The father has expressed concerns about the mother’s capacity to parent the children particularly with regard to the mother’s:

   a)parenting style;

   b)capacity to foster a positive relationship between the children and the father and half sibling;

   c)illiteracy; and

   d)drug use.

4. Mr J also noted that the father expressed the following concerns to him:

   Mr Vane alleges X never knows what is expected of her and can’t tell adults about her feelings for fear of reprisals. Likewise, he alleges the children have limited routines due to the alleged chaotic and inconsistent nature of Ms Taggart’s presentation.  He claims “X always says she wants to live with me, but she’s scared of the consequences if she tells anyone.” He reported being seriously concerned about the impact of Ms Taggart’s long-term mental health given the reported circumstances.  Reflecting on his fears, he stressed: “I want the children to have the upbringing they need and deserve. Their mental health is being put at risk by their mother. You can already see it in my daughter (emphasis added).”[35]

   [35]Family Report at paragraph 42.

5. The mother denied that she is unable to care for the children and that she does not adequately feed them or attend to their daily needs. Importantly, the mother gave evidence that both X and Y are progressing well at school.[36]

   [36]Affidavit of Ms Taggart sworn 7 February 2015 at exhibit 5; affidavit of Ms Taggart sworn 29 November 2017 at annexures T-5 to T-11 and exhibit B.

6. In relation to parenting style, the father expressed concern that since the children have been living principally with the mother, he has noticed a change in X’s behaviour especially. He gave evidence that she screams and misbehaves more now and he believes that this is reflective of the behaviour that X is exposed to in the maternal grandparents’ home.

7. In relation to fostering a positive relationship with the father, the mother conceded that when she initially moved to Brisbane, she did make some disparaging statements about the father in the presence of the children. She says however that, at that stage she was “very hostile because of Mr Vane’s lies… I didn’t know what he’d been doing behind my back”.[37]

   [37]Transcript page 131 at lines 1 to 5.

8. Ms E gave evidence about the mother seeking to interfere with the father’s time when he went to Brisbane, by having the children of her friend who was visiting, call out to Y and X over the fence. The mother gave evidence that she had friends visiting her that day who had children, and that it was her friend’s children who were jumping on the trampoline in the front yard and calling out to Y from across the street while they were visiting with his father. Ms Taggart denied that she was encouraging this and indeed gave evidence that she told the children to stop calling out to Y and asked her friend to ask her children to stop doing the same. Having observed her in the witness box, I accept the mother’s evidence regarding this.

9. The father gave evidence that he believed that the mother was still using drugs. I have addressed this issue above.[38]

   [38]Transcript page 11 at lines 44 to 47 and page 12 at lines 1 to 11.

10. The mother openly conceded that she had a heroin addiction for some 10 years. She states that this was before she met the father and well before she had children. She states that her mother and father helped her at this time. The mother also gave evidence that both she and the father used marijuana during their relationship and that they both had tried speed and ice.

11. In relation to the drug screens requested as part of these proceedings, the mother stated that she did obtain one drug screen and that when requested, she attended for the other two drug screens however the ‘paperwork was not in order’ and therefore she was unable to comply with the request. She stated however, that she was prepared to take the drug screen because she does not currently use drugs.

12. The mother also denied that she is currently using marijuana. In relation to the incident referred to in paragraph 92 above, the mother gave evidence that she acknowledged that she had overheard X saying this to the father during one of her telephone calls. However, she denied that she was smoking marijuana. She said that a friend of hers was over and her friend was smoking something other than an illicit drug.[39]

    [39]Transcript page 137 at line 35 to page 138 at line 9.

13. The father alleges that because of her illiteracy, the mother is not capable of attending to the children’s medical needs. At paragraph 54 of his trial affidavit, the father gave evidence that on or about 12 March 2016, X complained of pains in her stomach. The father states that the mother took X to the doctor who suspected appendicitis and said that if it got worse she should take X to the hospital. The father stated that the following morning the pain was so great that the mother called an ambulance. The father further stated that X continued to have stomach pains and that the mother did not take her to a doctor or specialist to follow-up, rather gave her Metamucil every day which is not designed for children under 12.

14. The mother denied this allegation and says that when her daughter complained of stomach pains, the mother took her to the doctor on that day (a Friday) and that the doctor suggested that it may be appendicitis but that she should just wait and see. When the pain did not subside, the mother called an ambulance the following day (a Saturday), and took her to the hospital. The mother denied giving X's Metamucil. The mother also annexed to her affidavit correspondence from the family’s treating doctor indicating that the children are appropriately cared for and reviewed when necessary.

15. The mother acknowledged that she is illiterate and gave evidence that she is seeking support in relation to this through a church run group. Moreover, to ensure that her children are not disadvantaged by this, the mother gave evidence that she has organised support for X at school which includes having open communication with X’s teachers, enrolling her in homework club and developing a strong relationship with the principal and the school. X attends homework club each Wednesday and does her homework at this time.

16. Attached to the mother’s affidavit of 29 November 2017 are numerous reports which indicate that both X and Y are settled in school and performing well both academically and socially. She gave evidence that X and Y are also involved in (hobbies omitted) at school.

17. There is also evidence of the mother’s active involvement in the children’s education.[40]

    [40] See in particular annexure T-12, a letter from the school chaplain Mr J dated 27 July 2016.

18. Both parents acknowledged the need for the children to have a positive relationship with both parents. The mother indicated that she would like to discuss the children and issues relating to the children directly with the father but that he is not interested in talking to her.

19. I am satisfied that both parents have adequate parenting capacity and would support a positive relationship with the other parent. I am also satisfied that both parents would benefit from attendance at parenting programs aimed at, among other things, facilitating constructive post separation communication between them.

Support for the mother

1. There was significant evidence given in this case about the level of support available to the mother in Brisbane. 

2. The mother gave evidence of the support networks that she has in Brisbane which include:

   a)the local church;

   b)parents of her children’s school friends;

   c)participating in a parenting course;

   d)volunteering at a church op shop;

   e)she has been provided with support through Save the Children in the form of Mr O; and

   f)steps taken to improve her literacy.

3. The mother has also provided evidence that she is supported by various organisations in her community, and also participates and provides support to others through her activities. For example, she gave evidence that she provides support to a woman with significant disabilities and mental health issues. Annexed to her affidavit is a letter from Mr D which describes the work that the mother has done with that organisation.[41]

   [41]Affidavit of Ms Taggart sworn 29 November 2017 at annexure T-17.

4. The father acknowledged this but maintained that similar support networks exist in (omitted) and that if she were to move to the (omitted) region, she could re-establish those supports. 

5. Whilst the mother conceded that these services may well be available in Victoria, she stated that she does not have any connections to Victoria other than those she had when she lived in (omitted).  The mother gave evidence that she was very concerned about returning to (omitted) because many of the people that she knew there were involved with drugs and she was worried that she would revert to that drug culture if she were to return to (omitted).

6. The mother has no connection to (omitted) and has never lived in (omitted), or the (omitted) region.

7. I am satisfied that there would, in all likelihood, be similar support networks in (omitted) and the (omitted) region, although no evidence was led by the father as to the specific services available, the quality of those services or if there are any waiting periods to access those services. 

8. The key support which would not be available to the mother if she were to relocate to Victoria is the support of the maternal grandparents.  I am satisfied that the maternal grandparents not only provide emotional and family support, but also provide the mother, and importantly, the children, with rent free accommodation in a home. Whilst the father submitted that the maternal grandparents are elderly and have had health issues, I am satisfied that currently, they are willing and able to provide that support to the mother and the children and that it is significant in all of the circumstances.

9. I also find that the maternal grandparents have a positive disposition toward the father and that this is also of benefit to the children’s relationship with him.[42]

   [42] Family Report at paragraph 73.

10. Mr J acknowledged the risk to the mother of a move back to Victoria without her family to support her[43] particularly in relation to the risk of relapse with regard to drug use.[44]

    [43] Family Report at paragraph 99.

    [44] Family Report at paragraph 110.

The applicable law

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the provisions relating to children. Section 60B sets out the objects of the act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how the Court is to determine what is in a child’s best interests.

2. Section 60CC(1) of the Act provides that:

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

3. The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.

4. Section 60CC(2) of the Act provides that:

   The primary considerations are:

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

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

5. Subsection 60CC(2A) provides that:

   In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (2)(b).

6. I will firstly consider the primary considerations of the Act.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

1. Both parents acknowledge the importance of ensuring that the children have a meaningful relationship with each parent.

2. The difficulty in this case arises from the fact that the mother and the children currently live with the maternal grandparents in Brisbane and the father lives with his new partner and child in (omitted), a regional town some distance from Melbourne, Victoria.

3. There was no suggestion during the trial that the children should not have a meaningful relationship with both their parents.  The issue in this case is how that can be facilitated and whether it requires the children to relocate to Victoria in order for this to occur.

4. I am satisfied that the proposed orders will enable the children to maintain their close bond with both parents.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. Both parties gave evidence of a relationship in which they both admit to having consumed illicit drugs, during which time they each engaged in verbal abuse of one another.  It is common ground that, on or about
   1 December 2015, there was an argument between the mother and the father which resulted in the police being called to the family home in (omitted). It is also common ground that the children were asleep at the time in the family home. The mother said that the father asked her to leave the premises and that the police effectively removed her and the children from the family home that evening.

2. As stated above, the documents produced by Victoria Police under subpoena are consistent with the evidence given in relation to this matter by the mother. In particular, it seems from the police records that the argument related to the mother becoming aware that the father was having an affair and confronting him about this. I find that the police were sufficiently concerned about the mother and children’s well-being to remove them from the (omitted) home on the evening of the altercation.

3. It is also common ground that on 10 December 2015, an interim intervention order was made at the Magistrates’ Court at Broadmeadows against the father naming the mother and the children as affected family members. This order was served upon the father shortly thereafter.

4. It appears that the conflict between the mother and the father was related to their relationship. The fact that the relationship has come to an end means that the risks of ongoing conflict are reduced. This is consistent with the assessment made by Mr J in his evidence to the Court. There is no suggestion by either party that either the mother or the father is subjecting the children to any physical or psychological harm. I do note that the father has suggested that the mother’s mental health is not good. There is no evidence to support this assertion.

5. As discussed above, the father has alleged that the children are exposed to conflict in the maternal grandparents’ home. The evidence before me is that L is not currently living in the maternal grandparents’ home. Having heard from the maternal grandmother and observing her in the witness box, I am satisfied that any conflict between her and the mother is not sufficiently concerning enough to warrant an order removing the children from that environment.

1. I will now consider the additional considerations set out in section 60CC(3) of the Act.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. The family report notes that X has expressed the view that ideally she would like her parents to get back together again. The father submits that this is evidence of her wanting to spend more time with him.

2. Even if this is what she means, whilst some weight can be placed on what is expressed by X, I am mindful of the fact that given her age (8 years old) she may not fully appreciate the complexities of the circumstances which exist in this particular case.

3. The family report also notes that Y is happy living with his mother and spending time with his father. Again, given Y’s age (5 years old), limited weight can be placed on his view.

Section 60CC(3)(b) the nature of the relationship of the child with:

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

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

1. The father and the mother appropriately conceded that their children each have a strong attachment to both parents.  They also appropriately conceded that the children have very strong ties to the maternal grandparents, with whom they have spent significant time since they were born, both in Brisbane and whilst travelling on (employment omitted).

2. The father and the mother also acknowledged the importance of the children being able to develop a relationship with the father’s new son, Mr J. In this regard, Mr J’s comments are also relevant, namely, the importance of facilitating this relationship at an early stage.

Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

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

(ii)    to spend time with the child; and

(iii)   to communicate with the child

Participation in making decisions about major long-term issues in relation to the children

1. It is apparent that each parent has sought to be involved in major decisions about the children’s welfare. They have not been able to reach agreement about many such issues. I further refer to this issue under the heading ‘equal shared parental responsibility’ below.

2. For his part, the father has demonstrated his desire to participate in the children’s lives by initiating this very application some weeks after the mother moved back to Queensland with the children. The father in his evidence stated that he has had difficulty participating in decisions about long-term issues relating to the children because the mother has excluded him from those decisions.

3. For her part, the mother says that the father has not shown any real interest in the children’s development. She says that she would like to be able to communicate with the father about the children, but that when she has tried to engage with the father he has failed or refused to be involved.

Opportunity to spend time with and communicate with the children

1. Both parents are seeking that the children live with them and spend time with the other parent.  

2. The children currently live with their mother and there have been no allegations that she had failed to spend time or communicate with them.

3. The children currently spend time with the father over the school holidays. The father has consistently sought to spend as much time as possible with the children, including telephone time.

Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. The evidence of the mother is that she has and continues to provide for the children’s needs. She does this on a pension with support from her parents from time to time. Of particular relevance is the fact that she and the children are provided with rent-free accommodation with her parents.

2. In addition to providing for their physical needs, the mother is to be commended for her efforts in establishing supports and communication with the school to ensure that the children’s educational and social needs are being met. The reports provided by the school in relation to both children speak volumes of the impact of the mother’s efforts in this regard.

3. The father pays child support to the mother in accordance with an administrative assessment by the Child Support Agency. He currently pays child support of $115 per week and in addition, has paid for all travel to spend time with his children since the mother moved to Queensland. 

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)     either of his or her parents; or

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

1. The mother proposes that the children remain living with her in Brisbane and continue to attend (omitted) Primary School. She also proposes that the father spend time with the children in accordance with the existing arrangements.

2. The father proposes that the children live with him and spend time with the mother. He proposes two alternative options depending on whether the mother relocates to Victoria or remains in Brisbane.

3. The mother’s proposal would not result in any significant change for the children.

4. The father’s proposal would result in the children being removed from their current living arrangements, their school and potentially, if the mother were not to relocate, their mother, who has, to date, been the primary carer.

5. The father’s preferred proposal would also see the children moving away from their maternal grandparents, with whom they have lived on a daily basis for the last two years and spent significant time with in the years prior to that including, particularly, in the case of X, whilst travelling on their (employment omitted).

6. The mother’s proposal would limit the time the children have to establish a relationship with their brother Mr J, although there will be some capacity for this relationship to flourish in the time they spend with the father.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. The mother and children currently live in Brisbane and the father now lives in (omitted).

2. It is self-evident that unless one of the parents relocates, it would not be possible for the children to spend substantial time with the other parent, other than during school holidays.

3. There are practical difficulties and expenses associated with whichever proposal is adopted in this case. If the mother’s proposal is accepted, the practical difficulty for the father is that, given his current work situation, income and his parental obligations to his youngest child, he will have limited capacity to see the children on a regular basis during school terms. This will, no doubt have implications on his ability to participate in the children’s education, activities and to become intrinsically involved in their day-to-day lives. There are also the cost implications of travel (either for the father or for the children) to and from Queensland to allow time to be spent together.

4. Equally, there are practical difficulties if the father’s proposal is accepted. If the mother were to relocate to a place within 45 minutes of (omitted), and the children live with the father, there is a practical issue about where the mother will live and how she will provide adequate accommodation for herself and the children when they spend time with her in or around (omitted).

5. The evidence is that the mother is currently in receipt of a pension and is illiterate. Although she is undertaking a course to address her literacy, there are clear limitations on her capacity to obtain employment.

6. At the moment, she has the benefit of rent-free accommodation of a fairly high standard and is able to apply her income for the benefit of the children. It was submitted and I accept that if she were required to relocate, her prospects of obtaining accommodation of a similar standard would be significantly reduced. This is likely to impose additional stress on her and the children and ultimately has the potential to lead to further conflict between the parents.

7. Requiring the mother to relocate to Victoria would also give rise to a further potential risk for the mother, with consequential implications for the children, namely, the risk that as a recovered drug addict, without appropriate supports around her and a stable life situation, the mother may revert back to using illicit drugs again.

8. It was suggested by the father that the supports the mother has access to in Queensland are equally available in (omitted). The mother conceded that such supports undoubtedly do exist in (omitted); however, she has no connection to (omitted) or the (omitted) area. As such, the mother would have to re-establish herself from a position of total isolation.

Section 60CC(3)(f) the capacity of:

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

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

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

1. In my view, the evidence in this matter clearly establishes that both parents have adequate parenting capacity. It may be said that they each have different parenting styles, however this does not detract from them demonstrating that they are able and willing to care and provide for the needs of their children emotionally, physically and intellectually.

2. It is notable that notwithstanding the mother’s acknowledged limitations given her illiteracy, she has recognised this and has put in place structures and supports not only around her, but, more importantly, around her children to ensure that they are able to maximise the benefit of the education which they are being given.

3. Much has been said about the state of the maternal grandparents’ home and the level of conflict within that home. I accept that the mother from time to time engages in arguments with her mother, her father and her niece. Evidence was not given in these proceedings by L and I am therefore not able to make any comments specifically in relation to that relationship. However, what is apparent from the evidence given by the maternal grandparents is that they have a loving and accepting relationship with their daughter and that they have provided support to her in dealing with many complex and confronting challenges that she has faced in her life. In the course of giving evidence, the mother did not shy away from her 10 year long heroin addiction or seek to excuse it. She simply acknowledged it and recognised that she had overcome that addiction with the ongoing help and support of her parents.

4. I was also very struck by the support that the maternal grandparents and in particular, Mr E was prepared to provide to the father, notwithstanding that his relationship with their daughter had come to an end.

5. This support without any apparent judgment is, in my view, likely to continue to provide the mother with the assistance that she needs to bolster her capacity to meet the needs of the children into the future, including facilitating a positive relationship with the father.

6. In terms of the father, he too has indicated that he has changed his lifestyle in the last two years and that he now no longer engages in drug taking. He has also given evidence that his relationship with Ms A is a positive one, that they do not argue or fight and that their home is a happy one. This is to be commended and it is clear from the father’s evidence that he has the capacity to provide for the emotional and intellectual needs of the children.

7. Importantly, Mr J recommended that the children continue to live with the mother and as stated above, accepted that the mother has adequate parenting capacity. As noted by Mr J, the key inhibitor to these parents providing for their children’s emotional and intellectual needs is the level of conflict between them. Any action that they might take individually or collectively to reduce this conflict will benefit their children.

8. In this regard, I note that both parties have indicated a preparedness to engage in parenting programs which might assist with their communication and post-separation parenting.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant

1. These factors are not relevant in this case.  To the extent that both parents had a history of drug use, they have given evidence which I accept that they have stopped using drugs.

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i)     the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)    the likely impact any proposed parenting order under this Part will have on that right;

1. This is not a relevant consideration.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. Each of the parents care deeply for their children and wish to be actively involved in their lives. It is unfortunate that the level of conflict between the parents has adversely impacted on their ability to co-parent. It is also regrettable that the situation became so untenable for the mother that she felt that she had no option but to return to her home in Queensland when her relationship with the father broke down.

2. The fact that she did this is not entirely unreasonable given that as a result of her travelling lifestyle, she did not have strong ties to Victoria or Melbourne for that matter, outside of her relationship with the father.

3. Both parents have sought significant involvement in their children’s lives and to maximise the time they can spend with them.

4. As stated above, Mr J placed significant weight on the “unilateral relocation” by the mother to Brisbane and indicated that this was a strong factor in favour of an order directing the mother to return to Victoria. I have had regard to the circumstances surrounding the mother’s move to Queensland in December 2015 in their entirety, in particular:

   a)the escalating conflict between the parents resulting in an intervention order being obtained against the father;

   b)the advice from the police to the mother firstly to take the children and leave the (omitted) home and subsequently to return to Queensland where her family lived; and

   c)the concurrent move by the father from (omitted) to (omitted) some 2 hours from Melbourne.

5. I find on balance that the mother’s decision to move to Brisbane was in all of the circumstances at the time in the best interests of the children. I do not accept the father’s characterisation of the move as one taken out of spite in response to the mother becoming aware of the father’s new relationship.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family

1. I have addressed the issues relating to the making of the intervention order in December 2015. That incident, on no version, was directed to the children although it is common ground that the children from time to time may have witnessed arguments and verbal abuse between the parents. There is no suggestion by either party that there are risks of ongoing family violence in this case.

2. At its highest, it has been suggested that, changeover arrangements should occur at an independent place to minimise the risk of bad behaviour by either party.

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

(i)     the nature of the order;

(ii)    the circumstances in which the order was made;

(iii)   any evidence admitted in proceedings for the order;

(iv)   any findings made by the Court in, or in proceedings for, the order;

(v)     any other relevant matter

1. There are no family violence orders. The intervention order made in this matter expired in January 2017 and no extension has been sought.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. A resolution of the current dispute is highly desirable.

2. The children require stability in living and spend time arrangements. A reduction of the parental conflict will be of immense benefit to the children.

Section 60CC(3)(m) any other fact or circumstance that the Court thinks is relevant

1. All relevant facts and circumstances have been referred to in these reasons.

Equal shared parental responsibility

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

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

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

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

   (b)     family violence.

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

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

2. Both parties in this case seek equal shared parental responsibility and it is appropriate that such an order be made.

3. The presumption in section 61DA is not rebutted in this case.

Equal or substantial and significant time with each parent

1. Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of section 65DAA of the Act require the Court to consider the child spending equal time, or a substantial and significant time, with each parent. Subsections (1) to (5) inclusive of section 65DAA provide as follows:

   Equal time

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

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

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

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

   Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

   Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

   Substantial and significant time

   (2)    If:

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

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

   the court must:

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

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

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

   Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

   Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

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

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

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

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

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

   (i) the child’s daily routine; and

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

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

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

Reasonable practicality

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

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

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

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

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

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

Note:Paragraph (c) reference to future capacity – the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

Statutory Pathway

1. In this case, neither party is seeking equal time with each parent. For completeness, having regard to the age and developmental stage of the children in this case, I am not satisfied that it would be in the children’s best interests to spend equal time with each parent.

2. As noted by Mr J, it is important for the children to have a sense of stability in their lives and I note that even Mr J’s recommendation for the children to spend 5 out of 14 days with the father (and the balance with the mother) in the event that they relocate to Victoria, is not considered equal time under the legislation.

3. In my view, equal time is also not reasonably practicable having regard to the distance between the parties’ respective homes. 

4. Having come to that view and turning to the requirements of section 65DAA(2), the court must consider whether it would be in the children’s best interests to spend substantial and significant time with each of the parents. Substantial and significant time is defined in section 65DAA(3).

5. Given the particular circumstances of this case, I am not satisfied that the children spending substantial and significant time with each of the parents would be in their best interests.

6. The only way that the children could spend substantial and significant time with each of the parents within the meaning of that term under section 65DAA(3), is if either the mother moves to (omitted) or the (omitted) region, or the father moves to Brisbane. It was not part of either party’s case that the father would move to Brisbane given his connections now to (omitted). Given the risks identified with the mother’s move to (omitted) or the (omitted) region, and the potential for her life to significantly deteriorate (with a consequential impact on the children) without the supports around her that she has worked to put in place in Brisbane, I am not satisfied that it is in the children’s best interests to impose such a requirement on the mother.

7. Further, I do not think it is in the children’s best interests, given their connection to her as their primary carer and their age and stage of development to order that they move out of her primary care to live with the father. In this regard, I note that Mr J also does not recommend that the children live with the father.

8. I do not find that it is reasonably practicable to make an order for substantial and significant time with the father, having regard to both the distance between the parties’ respective homes and their financial circumstances. 

9. The father has expressed concerns that because the mother “unilaterally relocated” to Brisbane in December 2015, his ability to spend substantial and significant time with his children has in effect been gazumped. It is true that the mother did not discuss her decision to move to Queensland with the father at the time. In essence, if that was her intention and if agreement could not have been reached with the father at the time, the appropriate course would have been for the mother to make an application to this court in relation to parenting matters, including an order that she be permitted to move to Queensland with her children. Unfortunately, that did not occur.

10. I refer to paragraph 182 above and my findings regarding the mother’s move to Brisbane.

11. I find on the evidence that the children are thriving in their current environment and have been able to maintain a strong relationship with their father, notwithstanding the distance between them and the relatively limited time they have been able to spend together to date.

12. I also find that the children would not have the lifestyle that they currently enjoy if the mother was forced to move either back to Melbourne or to (omitted) and live without the benefit of the rent-free accommodation provided by the maternal grandparents.

Conclusion

Living arrangements

1. For each of the above reasons, I am of the view that it is in the children’s best interests to live with the mother and remain in Brisbane.

Spend time arrangements

1. Having come to this view, I am however, concerned to ensure that the father has significant time within the limitations imposed by the distance between his and the mother’s home and the cost implications of travel between the two. To this end, and having regard to the concessions made by the mother about holiday time, I am satisfied that it is in the best interests of the children to spend 10 days each school holidays with the father at times to be agreed and failing agreement, commencing on the first Saturday of school holidays and three weeks during the long summer holidays, also initially commencing from the first Saturday of the long summer holidays for a block of three weeks, alternating each year unless otherwise agreed.

2. I also consider it appropriate that the children spend two long weekends during each year with the father to be agreed between the parties and failing agreement, the Queensland Labour Day and the Queensland Queen’s Birthday long weekends, such time to be spent either in Queensland or in Victoria, or such other location as determined by the father.

3. The costs of travel for the children should be shared equally by the parties.

4. I am satisfied that the orders made are in the best interests of the children.

I certify that the preceding two hundred and nine (209) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date:  23 January 2018