Varley and Holman
[2017] FCCA 2856
•29 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VARLEY & HOLMAN | [2017] FCCA 2856 |
| Catchwords: FAMILY LAW – Children – final parenting orders – best interests of the children the paramount consideration – relocation – the mother’s wish to relocate with the children to (omitted) – no proposals for equal time arrangements – consideration of substantial and significant time – substantial and significant time constrained by father’s work commitments – no significant changes between the current interim consent orders and the father’s proposal for final parenting orders regarding the father’s time with the children – impact on the mother’s mental health and capacity to parent the children if not permitted to relocate a significant consideration – held that it is in the best interests of the children to permit the mother to relocate. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65AA, 65DAA |
| Cases cited: Adamson & Adamson [2014] FamCAFC 232 Collu & Rinaldo [2010] FamCAFC 53 G & C [2006] FamCA 994 |
| Applicant: | MR VARLEY |
| Respondent: | MS HOLMAN |
| File Number: | DGC 1688 of 2016 |
| Judgment of: | Judge Jones |
| Hearing dates: | 2-3 October 2017 |
| Date of Last Submission: | 3 October 2017 |
| Delivered at: | Dandenong |
| Delivered on: | 29 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Scriva |
| Solicitors for the Applicant: | Bayside Family Law Solutions |
| Counsel for the Respondent: | Ms Byrnes |
| Solicitors for the Respondent: | AMT Legal |
ORDERS
The proceedings be adjourned for mention on 8 December 2017 at 9.30am at the Melbourne Registry of the Federal Circuit Court.
The parties jointly prepare draft orders reflecting the judgment delivered this day, with such orders to be finalised on the adjourned date.
IT IS NOTED that publication of this judgment under the pseudonym Varley & Holman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 1688 of 2016
| MR VARLEY |
Applicant
And
| MS HOLMAN |
Respondent
REASONS FOR JUDGMENT
Introduction and Background
This decision concerns the future parenting arrangements for X born (omitted) 2007 (“X”) and Y born (omitted) 2009 (“Y”) (collectively “the children”). At the time of the hearing, X was ten years old and Y was seven years old. Both children attend the (omitted) Primary School in (omitted), in the State of Victoria. X is currently in Grade 4 and Y is in Grade 2.
The mother of the children is MS HOLMAN (nee (omitted)) born (omitted) 1977 (“the Mother”). The Mother is 40 years of age and is engaged in home duties, having recently sold a small business involving (business omitted). The Mother remarried to Mr G (“Mr G”) on (omitted) 2016, having commenced a relationship with Mr G in 2015. The Mother and Mr G have one child of the marriage, A born (omitted) 2016 (“A”).
The father of the children is MR VARLEY born (omitted) 1980 (“the Father”). The Father is 37 years of age and is employed as an (occupation omitted). The Father re-partnered with Ms E (“Ms E”) from early 2014 until August 2016.
The parties dispute the period during which they lived in a de facto relationship. The Father says the relationship subsisted between 2005 and 2012. The Mother says the period of cohabitation was from early 2006 until the parties separated in October 2011, but that the parties remained living under the same roof separately until January 2012 when the Father moved out of the former matrimonial home. The children remained living with the Mother thereafter.
On 17 August 2012, an Intervention Order was granted by the Magistrates’ Court of Victoria (“the First Intervention Order”) naming the Father as the respondent and the Mother as the affected family member. This Intervention Order expired on 18 August 2013.
On 30 October 2013, a second Intervention Order was granted by the Magistrates’ Court of Victoria (“the Second Intervention Order”) naming the Father as the respondent and the Mother as the affected family member. This Intervention Order expired on 30 October 2015. It should be noted that copies of the First and Second Intervention Orders have not been provided in evidence to the Court, however, the Father does not dispute the Mother’s evidence that these Intervention Orders were made.
From around August to November 2013, the Mother suspended the children’s time with the Father.
Following mediation at the Family Relationship Centre, (omitted), in the State of Victoria, the parties entered into a Parenting Plan in November 2013 for the children (Annexure A to the Father’s Affidavit filed on 28 September 2017). The Parenting Plan provided that the children spend time with the Father over each three week period as follows:
a)in the first week, from 6pm on Friday until 4pm on Sunday;
b)in the second week, from 5pm on Saturday until 4pm on Sunday; and
c)no time on the third weekend.
Provision was also made for the Father to spend time with the children on special occasions.
For various reasons, which the parties are in dispute about, the Father’s time with the children was not always in accordance with the Parenting Plan.
On 6 June 2016, the Father filed an Initiating Application in this Court seeking parenting orders. At the time that he filed the Initiating Application, the Father had not seen the children since late March 2016. The orders sought by the Father in the Initiating Application included that the children spend time with him in alternate weeks during the school term, for half of the mid-year school holidays, and on special occasions.
On 23 June 2016, the Mother filed a Response in which she sought orders that she be permitted to relocate with the children to the (omitted) area in Queensland. In her Amended Response filed on
9 January 2017, the Mother sought orders that she be permitted to relocate with the children to (omitted), Queensland.
On 29 June 2016, Interim Orders were made by consent. The Interim Orders provided, inter alia:
1. That the children of the relationship X born (omitted) 2007 and Y born (omitted) 2009 (“the children”) live with the Mother.
2. That the Mother be and is hereby restrained from relocating the children’s residence from the (omitted) area without the written consent of the Father or an order of the court.
3. That the children spend time and communicate with the Father as follows:
(a) Each alternate Tuesday from 4 PM to 6 PM commencing on 13 July 2016.
(b) Each alternate Sunday from 4 PM to 6 PM on the first 2 occasions and then from 3 PM to 6 PM commencing on 9 July 2016.
(c) At such further and other times as may be agreed between the parties from time to time in writing including by email provided that the time spent be:
(i) At a public child orientated venue such as a play centre ((omitted)), a public park, library, sport centre or the like.
(ii) The Father’s partner Ms E or another agreed person be in substantial attendance.
(iii) The Mother meet Ms E before 9 July 2016 at a mutually convenient location.
(iv) Changeover be conducted between Ms E or any agreed substituted person and the Mother and if the Mother is unable to attend because of advanced pregnancy or the birth of her child (due date (omitted) 2016) her fiancé, Mr G, or other agreed person attend changeover, such changeover to be at the public place unless agreed otherwise between the Mother and Ms E.
4. That the children continue to attend upon Dr I, psychologist, for counselling and the Mother do all things necessary to authorise the Father to speak to or to attend upon Dr I and both parents follow the lawful recommendations of Dr I in relation to the counselling and he be given a copy of these Orders by the Mother.
…
8. That the Father continue to attend the Life Works Men’s Behaviour Change Program and provide to the Mother a certificate of completion of that Program (scheduled to conclude on 23 August 2016).
9. That the Mother and Father each do all things necessary to engage Family Consultant, Ms L, to prepare a family report in these proceedings at equal joint expense, such report to be filed with the court prior to the next court hearing and it is noted that appointments have been made on 12 August 2016.
…
The Father completed the LifeWorks Men’s Behaviour Change Program on 23 August 2016.
A third Intervention Order was granted on 26 July 2016 by consent without admissions, naming the Father as the respondent and the Mother and the children as Affected Family Members. This Intervention Order expired on 26 July 2017.
Further Interim Orders were made by consent on 29 September 2016, which provided for the Father’s time with the children to progressively increase from 10 February 2017, with the Father to spend each alternate weekend from after school on Friday until 4pm on Sunday with the children. The Orders also provided for the Father to spend time with the children over the Christmas period, over the long term holidays, on Y’s birthday and at additional times as agreed between the parties in writing. Where changeover did not occur at school, the Orders provided that Mr G was permitted to be in attendance with the Mother and that Ms E (subject to her availability) continue to facilitate the changeovers. The Orders also permitted the parties to enrol the children, on a provisional basis, at any school(s) in the (omitted) region.
Further Interim Orders were made by consent on 6 February 2017, providing for the Father to spend additional time with the children, including days during the end of school term one and the Easter holidays, and half of the school term two holidays. The Orders also provided for the Father to spend time with the children on their birthdays and Father’s Day.
Proposed Orders
The Father proposes parenting orders which provide that the parents have equal shared parental responsibility for the children, that the children live with the Mother, and that the children spend time with the Father as follows:
(a)On each alternate weekend from 3.30pm or after school on Friday until 7pm Sunday, such time to extend to 7pm on Monday if it coincides with a RDO.
(b)From 3.30pm or after school on the day before Good Friday until 7pm on the Sunday after Easter Sunday.
(c)From 5pm on the Saturday immediately preceding Father’s Day until 7pm on Father’s Day.
(d)In 2017 and each alternate year thereafter:
i. From 10am on Christmas Eve until 3pm on Christmas Day; and
ii. From 10am on 2 January until 5pm on 9 January.
(e)In 2018 and each alternate year thereafter, from 3pm on Christmas Day until 5pm on 2 January.
(f)For one week of the June/July school term holidays in each year.
The Father also seeks orders that the Mother be restrained as follows:
(a)From bringing the children or either of them into contact with the organisation (omitted), its leaders, practitioners and facilities.
(b)From adopting any treatment methodologies recommended by (omitted).
…
The Mother’s proposed parenting orders provide that the parents have equal shared parental responsibility for the children, that the children live with the Mother and that the Mother be permitted to relocate the residence of the children to the (omitted) area in Queensland prior to the commencement of term one in 2018. The Mother also proposes the following orders:
4. That the children live and communicate with the Father as follows:
(a) Once each calendar month to coincide with the Father’s Rostered Day Off during school terms, in accordance with the Queensland Government Gazetted School Terms, from the conclusion of school Friday until the afternoon of the Monday and if the Monday is a non-school day and then the afternoon of the Tuesday;
(b) By email, telephone or Skype during school terms, in accordance with the Queensland Government Gazetted School Terms, between 7:00 pm and 7:30 pm (Queensland time) each Tuesday and Thursday or such other times by prior agreement;
(c) During the Term 1, 2 and 3 school holidays, as gazetted for the Queensland public school holidays, for one half of the term school holidays, at a time to be agreed between the parties, and in the absence of agreement, from the day that the school term ends to the afternoon on the day being the mid-point of the term holidays and for the purposes of this order, the term school holidays are deemed to commence on the last day of the school term and to end on the first day of the commencement of the following term;
(d) During the long summer holidays, as gazetted for the Queensland public school holidays, in 2018 and each alternate year thereafter, from 3:00 pm Christmas Eve until 10 January and in 2019 and each alternate year thereafter, from 3:00 pm on 28 December until 11 January;
(e) For Easter in each year from 10:00 am Good Friday until 7:00 pm Easter Monday should the Easter period not fall within a school term holiday;
(f) For Father’s Day from 1:00 pm on the preceding day until Sunday 5:00 pm;
(g) In the (omitted) region at times when the Father can travel to Queensland at any reasonable time by agreement;
(h) At such further or other times as may be agreed between the parties in writing.
5. That in addition to paragraph 4, the children live with the Mother:
(a) During the Term 1, 2 and 3 school holidays, as gazetted for the Queensland public school holidays, for one half of the school holidays when the children are not in the Father's care pursuant to Order 4(c) of these orders;
(b) For Mother’s Day from 1:00 pm on the preceding day until Sunday 5:00 pm;
6. That if the Mother is not permitted to relocate, the children spend time and communicate with the Father in accordance with Order 2j of the Interim Orders made 29 September 2016 and Orders 4 (c) to (f) and 4 (h) and 5 of these proposed orders save that the reference to “Queensland Government Gazetted” will be replaced with “Victorian Government Gazetted” and the reference to “Queensland time” in Order 4 (b) will be “Victorian time.”
7. That the Father’s time pursuant to paragraphs 4 (a) and 4 (b) hereof be suspended in all school holiday periods and recommence in the same cycle as if not interrupted by the school holidays.
8. That for the purpose of changeover, if the Father is not spending time in Queensland, the Father collect the children from Tullamarine Airport, Melbourne and at the conclusion of his time, the Mother collect the children from the (omitted) Airport with the children to travel as unaccompanied minors, save for the first two occasions the children travel to Melbourne to spend time with the Father where the Mother will accompany them on the flights to and from Melbourne. If the Father’s time spent with the children is in Queensland, then changeover shall take place at a public location as agreed to by the parties.
9. That the parties equally share the reasonable costs of the children travelling to Melbourne and returning to (omitted) and for this purpose the parents will use their best endeavours to pre-plan and pre-book the children’s flights to take advantage of the cheapest airfare available on the relevant days.
10. That both parties forthwith do all acts and things and sign all documents necessary to confirm the children’s enrolment at the (omitted) State School and ensure that their names and contact details are placed on the children’s respective school emergency contact lists.
11. That the Father and the Mother do all such acts and things and sign all such documents to request and authorise any school at which the children attend from time to time to provide copies of all reports, notices, information, newsletters, photographs, invitations for parent-teacher interviews and other information relating to the children’s education to both parties.
12. That the Father and the Mother both be permitted to attend all school activities including school concerts, school plays, excursions, parent teacher interviews and the like, normally attended by parents.
13. That each party give all necessary consents and authorities to enable the other party to obtain information concerning the children’s education, health care and extracurricular activities.
14. That the parties exchange information concerning the children by way of email or text messages.
15. That the parties shall immediately inform the other of any serious illness or injury sustained by the children whilst in their care and further provide any particulars of any treatment received by the children together with the name and address of the treatment provider and/or location at which the children are a patient.
16. That the parties shall each make available to the other any medication prescribed for the children to enable the other party to administer such medication to the children and the other party shall thereafter administer the mediation as prescribed or required and the medication shall pass between the parties so as to ensure that it is in the possession of the party with whom the children is living or spending time.
As the Mother’s proposed orders involve a change of residence for the children from an outer Melbourne suburb to (omitted) Queensland, the focus of the evidence at the hearing and the parties’ submissions was, unsurprisingly, on whether the proposed change in residence was in the best interests of the children.
Counsel for the Father and Counsel for the Mother agreed as to the settled principles in circumstances where a parenting order involves relocation of children (set out below at [134]-[144]). I have approached my task in deciding what parenting orders are in the best interests of the children the subject of these proceedings in accordance with those principles. Specifically, I have considered and evaluated both the Father’s and the Mother’s proposed parenting orders in accordance with the prescribed legislative pathway applicable to parenting orders under the Family Law Act 1975 (Cth) (“the Act”) (set out at [125]-[133] below).
Evidence
The Father relied on the following affidavits:
a)Affidavit of the Father filed on 28 September 2017; and
b)Affidavit of Ms E filed on 24 January 2017.
The Father did not tender any exhibits.
The Father and Ms E were cross-examined.
The Mother relied on the following affidavits:
a)Affidavit of the Mother filed on 9 January 2017;
b)Affidavit of the Mother filed on 25 September 2017;
c)Affidavit of Mr G filed on 9 January 2017;
d)Affidavit of Mr G filed on 25 September 2017;
e)Affidavit of Dr I filed on 26 September 2017; and
f)Affidavit of Dr D filed on 27 September 2017.
The Mother tendered the following exhibits:
a)Exhibit M1 – (omitted) Primary School Student Reports of the children for semester one in 2017;
b)Exhibit M2 – a Compass program report of school attendances of the children for the 2016 school year;
c)Exhibit M3 – child support assessment in relation to the children issued on 19 September 2017;
d)Exhibit M4 – correspondence from Mr D, the Managing Director/Founder of (omitted), dated 8 September 2016; and
e)Exhibit M5 – email correspondence from Ms M, (omitted) Queensland, (omitted), dated 28 September 2017.
The Mother, Mr G, Dr D and Dr I were cross-examined.
Various family reports prepared by child and family psychologist Ms L (“Ms L”) were marked as Court exhibits as follows:
a)Exhibit C1 – family report prepared by Ms L dated 18 September 2016 (“the First Family Report”); and
b)Exhibit C2 – family report prepared by Ms L dated 31 August 2017 (“the Second Family Report”).
Before setting out the evidence, it is appropriate to note that the parents agree that it is in the best interests of the children for them to live with the Mother who is the primary caregiver of the children. The Father does not seek in his proposed orders that the children live with him. Rather, the Father’s proposed orders are crafted around the limitations imposed on him by reason of his current employment and, as such, the Father seeks that the children spend alternate weekend time with him during the school term, with an extra day to coincide with any rostered day off (“RDO”) he has. The Father seeks holiday time with the children around the Christmas and Easter periods, and in the June/July school term holidays. The Father made it clear in his oral evidence that he would not seek further time with the children until he is in a position to establish a small business. The Father said that given his substantial debts, he would be unable to embark on establishing a small business (which would give him greater flexibility) in the medium term as it would inevitably involve a smaller income during its initial stages. The Father said that he hopes to become more flexible in the future so that he can spend more time with the children when they are teenagers.
Although the Father was unable to say much in his oral evidence that was positive about the Mother’s parental capacity, other than that she does her best to care for the children, the Father did not challenge that the Mother is a very good parent to the children or that she has clearly been responsible for carrying the burden of the children’s day-to-day needs during the week and during all other times the children are in the Mother’s care. This would not change under either of the parties’ proposed orders and there is no suggestion that the children are not thriving. It is apparent, at least from Ms L’s two family reports, that the main issue for the children to date has been the ongoing conflict between the parents.
There is no dispute that as a consequence of the time the Father has spent with the children from late 2016 to the date of trial, the Father has developed a close, loving, and meaningful relationship with the children.
The Father’s evidence
The Father lives in a rental property in (omitted), in the State of Victoria. He was formerly in a relationship with Ms E, with whom he cohabitated during the relationship. The Father said that he and Ms E remain good friends.
The Father works as an (occupation omitted) in the (omitted) industry. He deposes that he previously worked six days a week with an RDO every two or three weeks on a Monday, however, prior to the commencement of the children spending each alternate weekend with him, the Father says that he negotiated an arrangement with his employer so as to enable him to be available to collect the children from school each alternate Friday and not to work on the Saturday of those weeks. The Father says that in addition to his regular RDO, he is not required to work from Good Friday until the Thursday following Easter and is able to take the Thursday, Friday and Saturday following Easter as annual leave. Furthermore, the Father says he has four weeks of annual leave each year, however, that there is usually a shutdown period over the Christmas/New Year period in each year which requires him to take annual leave. The Father says that in the 2016/2017 year, the shutdown period ran from 23 December 2016 until 10 January 2017.
In his affidavits, the Father denies the Mother’s various allegations of family violence during and after their relationship. The Father denies the allegations of assault made by the Mother when she applied for the First Intervention Order. He says that there was some minor contact during conflict at a changeover, but that it did not involve assault.
With respect to the allegations made by the Mother in support of the Third Intervention Order, the Father concedes that he did send many text messages to the Mother in early April 2016, but says that he was trying to arrange to spend time with the children and the Mother was not responsive. The Father concedes that when discussing the Mother’s resistance to Y attending (hobby omitted) classes, he said to Y that if the Mother did not let Y out to go to the class, then he would knock down the door and take him to the class. The Father says, however, that he immediately said to Y not to worry and that it would not happen. The Father says that Y did not appear to be concerned about his comment at the time, and describes the statement as a silly, foolhardy comment.
The Father denies the Mother’s allegations that he made threats to kill the Mother, Mr G or their unborn child or to do them any harm.
The Father asserts that he poses no risk at all to the safety of the children.
At trial, Counsel for the Father conceded that there had been instances of family violence, however, argued that it was historical in nature. It seems to me that both parties treated the question of family violence as largely historical, and it certainly did not form any part of the Father’s or the Mother’s proposed orders.
The Father expresses concerns for the children arising from the Mother’s involvement in an organisation called (omitted), and describes the organisation as a “cult.” The Father’s concern is specifically with the beliefs adopted by (omitted) in relation to medical treatment, and that the Mother is adopting their recommended treatments when dealing with the children’s illnesses.
The Father says that he has a close and caring relationship with each of the children and that both children enjoy spending time with him. This is not disputed by the Mother. The Father says that during his time with the children they engage in various activities, such as going to the beach and playing on the rocks, visiting the (omitted) on the (omitted), and playing at home.
Although the Father says that the children tell him that they want to stay longer with him than is provided by the current Interim Orders, the Father’s proposed orders in relation to his time with the children do not vary significantly from the spend time arrangements as provided in those interim orders.
The Father identifies the areas of difference in the parents’ parenting styles. Firstly, he says that the Mother does not believe that the children should engage in outdoor activities, whereas he enjoys participating in a range of sports and physical activities. The Father says that he would like to enjoy these activities with the children on a regular basis. The Father says that the Mother’s views about physical activity reflect the beliefs of (omitted).
The second difference that the Father identifies, which has clearly been one cause of the conflict between the parents in the post-separation period, is in relation to the Mother’s evidence that Y has been diagnosed with asthma. The Father says that, when Y spends time with him, Y has only rarely suffered from symptoms of asthma, even when they engage in outdoor activities such as camping. The Father says, however, that he has now obtained Ventolin medication for Y so that he can give it to Y if and when necessary. The Father also says that when Y has been symptomatic and the Mother has asked the Father to administer Y’s reliever and/or preventer medication, he has done so. The Father disagrees with and has resisted the Mother’s request that he not feed Y dairy foods. The Father says that he believes that medical tests (which he did not specify) have shown that monosodium glutamate (“MSG”) is a contributor to asthma, and that the Mother feeds Y foods containing MSG.
The Father relies on the positive observations made by Ms L, the child and family psychologist appointed by the parties to prepare the Family Reports, of his relationship with the children and his ability to manage them.
The Father believes that his proposed parenting orders are in the best interests of the children.
The Father says that he opposes the Mother relocating to (omitted) with the children for the following reasons:
a)if the children live in Queensland, he would not be able to spend time with them often enough to maintain a close relationship with them and to have substantial involvement in their lives;
b)the time arrangements would inevitably be difficult and costly;
c)the Father has grave concerns that the Mother would find ways to undermine his relationship with the children and make it extremely difficult for him to maintain contact;
d)the children are settled in and are progressing well at their current school. The Father is concerned about the children’s ability, (especially that of X) to adjust to a new life at a new school, and having to make new friends so far away. The Father says that the parents had difficulties getting X to attend at childcare because he was so shy, and that he also struggled when he started kindergarten. This assertion is not disputed by the Mother. The Father says that when X started school, the parties chose (omitted) Primary School because of its smaller size and because X’s aunt was a grade prep teacher at the school and could support X;
e)the Father is concerned about the children missing school without him knowing or being able to take any steps to remedy the situation; and
f)the Father says that the Mother’s proposal is generally ill-conceived, and has not been properly considered.
The Father says that he is concerned that the Mother’s proposal to move to Queensland with the children is primarily based upon the business interests of her husband, Mr G, in (business omitted) (“(omitted)”), which is located in (omitted). The Father says that there are numerous uncertainties and issues in relation to the business, Mr G’s role in it and Mr G’s finances, including:
a)whether Mr G’s proposed role in the business will be financially advantageous to him and the Mother;
b)that no information has been provided about Mr G’s remuneration from previous employment, which would enable a comparison with his proposed role in (business omitted);
c)that no information has been provided about Mr G’s suitability for the role of (occupation omitted), including his qualifications, skills or experience, and further, that no information has been provided about the involvement of Mr G in the business to-date, or regarding his knowledge of the business. The Father says that Mr G has not been responsive to his solicitor’s request for a range of information and documents relating to Mr G’s business interest;
d)in the First Family Report prepared by Ms L, it is noted that Mr G “…has had a mobile lifestyle living in (omitted), Brisbane and (country omitted)” (the First Family Report at 15); and
e)if the relationship between the Mother and Mr G were to break down, the Father would be concerned that the Mother would remain living in Queensland with no means of supporting herself and the children. The Father says that even if the Mother’s wish was to return to Victoria to live, she might be unable to do so without the consent of Mr G.
The Father says he is concerned about the durability of the Mother’s relationship with Mr G, on the basis that it was formed very fast, and shortly after the Mother had a relationship with a man named Mr C, with whom she cohabitated for a while. The Father notes that the relationship between the Mother and Mr G began some two weeks after the Mother had suggested to the Father that, “…we all move to Queensland and…have a cooperative co-parenting relationship” (the Father’s Affidavit filed on 28 September 2017 at [99(h)]). In the Father’s view, Y’s bedwetting (which, at the time, the Mother ascribed to anxiety by Y about the Father) may well have been associated with changes in the Mother’s living arrangements.
The Father also expresses concern about the Mother’s intention to involve her father (“the Maternal Grandfather”) in the children’s lives. The Father says that during their relationship, the Mother told him that the Maternal Grandfather had abused her as a child.
The Father says that he would not be able to move to (omitted) because his employment as a (occupation omitted) is a specialty field. The Father says that there is very little construction in the (omitted) region, and that if he did move to (omitted) and was successful in obtaining employment as an (occupation omitted), his wages would be significantly less than what he earns in Melbourne (which is in the vicinity of $100,000 per annum). The Father says that his living costs would be greater in (omitted) than his current expenses in Melbourne, as he lives in a house that is owned by a friend, and consequently he pays reduced rent. The Father says that he currently has personal debts exceeding $103,000, and that he would not be able to discharge these debts on a lower income.
The Father gave the following evidence during cross-examination by the Counsel for the Mother:
a)the Father had spent the last weekend with the children, and his time with the children and changeover went well;
b)the Father does not have a proposal for parenting orders in the event that the Mother is permitted to live in (omitted) with the children;
c)the Father is aware that the Mother does not believe Y should be eating ice-cream, but he does not comply with this;
d)the Father has not taken up the offer to spend more time with the children under the current Interim Orders, because his work did not permit this;
e)the Father agrees with the observation by Ms L that the children and the Father have bonded and have a close relationship, and that the children love him and enjoy time with him, despite the various hiccups in time arrangements prior to the Interim Orders;
f)the Father does not agree that his relationship will endure with the children if they are permitted to live in (omitted) with the Mother;
g)the Father believes that if the children moved to (omitted), they would be upset, and may even blame him. The Father stated that often the children did not want to leave him after their time with him;
h)the Mother’s proposals for the children to spend time with the Father in the event that she were permitted to relocate with them to (omitted) involved significant difficulties and financial burdens;
i)the Father was not confident that Skype and/or FaceTime would provide an effective means for the children to communicate with him. The Father based this on the fact that when the children were young, they were easily distracted and that it did not work. The Father, however, conceded that as the children grow older, these electronic means would enable the Father to genuinely communicate with them, and would provide shared experiences;
j)the Father said he had estimated the costs of travel to be $1,200 for one weekend, and said that he could not afford this financial burden;
k)the Father asserted initially that he could be the primary caregiver, but subsequently recognised that, in between his weekend time with the children, it was the Mother who carried the burden of the day-to-day care of the children, such as taking them to school and to medical and dentist appointments. The Father maintained that he had attended school events and parent/teacher interviews recently;
l)the Father agreed that he had missed the school’s event for Father’s Day, as he had not looked on the school’s Compass portal. The Father also agreed he had missed the achievements awards ceremony for Y and X, but said this was because he was not told about it;
m)the Father agreed that, in the past, emails and/or SMS text messages that he sent to the Mother were vitriolic;
n)the Father accepted that the Mother was distressed and stressed, and conceded that it was possible that this could impact on the children;
o)Counsel for the Mother explored with the Father that the difference in the current spend-time arrangements and the Mother’s proposal was that she be permitted to relocate to (omitted). It was put to the Father that, under the Mother’s proposal, his time with the children would be for three weekends each school term, with one extra day attached to RDOs or a public holiday on the Monday. The Father acknowledged that there was a minimal difference in the time that he would spend with the children, however, he said that he would not be able to engage in activities as he now did, such as taking the children to cricket each alternate week. The Father acknowledged that in any event, he could make the children’s time with him memorable and fun;
p)the Father was cross-examined about his fear of losing the children. He explained that this arose out of the different beliefs of the parents, and his belief that if the Mother were permitted to move to (omitted), her parenting style would dominate. The Father believed that even if there Orders were made, the Mother would not obey them. The Father said that he maintained this belief, even though the Mother has complied with the Interim Orders since the Father completed the Men’s Behaviour Change Program;
q)when asked whether he gave the Mother credit for fostering the children’s relationship with him, the Father responded that she did facilitate the relationship when it was convenient to her, but at other times she did not;
r)during the cross-examination, the Father was taken to the (omitted) Primary School reports for Y and X for semester one in 2017 (Exhibit M1). The Father conceded that X was ahead of the year level in terms of achieving the skills as required by the school. The Father said that X sometimes forgot to bring his homework with him on weekends, but that he had not contacted the teachers about that. The Father conceded that Y was doing well. When asked whether, given that the children were doing well at school, he agreed that credit should be given to the Mother, the Father responded that the children’s attendance at school last year was poor, and that X was struggling with social skills and had not invited friends over to his home;
s)as to the children’s ability to cope with a change in schools, the Father maintained his position that they would not cope. The Father did agree that the Mother would assist in supporting X’s social skills, and that she had already provided support to the development of the children’s intellectual skills. When the Father was asked what steps he would take in relation to X’s difficulty in social skills, he said that he had not thought about it. The Father however agreed that X could be assisted by the school counsellor. The Father said that he had not yet contacted the school in (omitted) that the Mother has enrolled the children in, because he did not want to have to deal with this issue until he had to, and conceded that he had not spoken to the children’s current teachers about the move to (omitted) either. The Father said that this was because he was hoping that he would not have to. The Father conceded that he did not have any evidence from the children’s education providers about how the children would cope with transitioning to a new school in a new area;
t)with respect to the absence of the children from school (which the Father maintained was about 55 days for each of the children), the Father was taken to a Compass program student printout dated 21 September 2017 for the 2016 school year (Exhibit M2). This recorded that Y missed 27 days of school, and that X had missed 27½ days. The Father opined that this was excessive;
u)with respect to the Mother’s allegations that Y suffers from asthma, he said that he had not taken Y to attend a specialist, as he does not believe that Y suffers from asthma;
v)the Father accepted that the children like Mr G, but has deep concerns that the Mother and Mr G’s relationship will not be long-lasting. In the Father’s view, the relationship was too rushed and is too new. He noted that despite the Mother saying that she and Mr G are stressed by the present circumstances, they have stayed together. When asked whether Mr G supports the Mother, the Father was unable to answer;
w)the Father agreed that Mr G has invested in (business omitted), and that Mr G wants to assist his brother. However, the Father said that there is no financial advantage to the family unit as the business is not making money. The Father agreed that there were initial costs arising out of equipment purchase for the business, but maintains that the sales thus far have not been enough to cover the outlays;
x)the Father agreed that the Annual Reports for (business omitted) (Annexure G-4 to the Affidavit of Mr G filed on 25 September 2017) disclose an increase in sales from $19,000 in 2015 to $54,000 in 2016, and that $32,000 was spent on contractors in 2016. The Father also agreed that the evidence from Mr G was that the business proposes to lease further land for (omitted) production and that the business has actively engaged in advertising (Annexure G-7 to the Affidavit of Mr G filed on 25 September 2017). The Father accepted that subject to medical tests, Mr G would be employed by (employer omitted) and located in (omitted);
y)upon being cross-examined about the impact of his proposal and the Mother’s proposal, the Father said that he does not accept that the Mother is fragile, nor does he accept that were she to remain in Melbourne, her mental health would deteriorate. The Father said (contrary to his earlier evidence) that he believes the Mother and Mr G have an enduring relationship, which would survive even if Mr G was required to work in (omitted) and the Mother were to remain in Melbourne. The Father said that he is very concerned that the Mother’s proposed orders will have the effect of him losing the children, at the time they are reaching an older age, and need the Father as a role model. The Father conceded that he cannot spend time with the children for half of all school holidays, but accepted that his time with them could increase by spending time on the weekends which fall on either side of the week in the school holidays that the Father is to spend time with the children. The Father agreed that the Mother’s proposed orders would enable her to maintain an intact family, but said that on the other hand, the Mother’s proposed orders will be taking another family away; that is, his family and the children;
z)the Father agreed that his wages were previously garnisheed by the Child Support Agency for a period of two years, for the purpose of paying arrears. The Father said that since then, he has regularly paid the amount set in his Child Support Assessments and that his account is now in credit. The Father agreed he does not pay dental fees, medical fees or school costs, but said that the parents pay half of the cost of the children’s (hobbies omitted) lessons;
aa)with respect to the Mother’s parental capacity, the Father conceded that the Mother is a good mother, that she loves the children, and that he thinks she is “doing the right thing”. When asked what things the Mother does not do correctly, the Father pointed to her failure to engage the children in competitive sports, the children’s poor attendance at school, and the children’s diet. The Father said that he was not sure if he believed that there were more positives than negatives about the Mother’s parenting capacity, but he agreed that she was the children’s primary attachment figure, and that she cares for the them;
bb)the Father said that he agreed with Ms L’s description of X, and accepted that if the Mother was unhappy, it would have a negative impact on X;
cc)the Father conceded that he had talked to the children about the Court proceedings and, in particular, the Mother’s proposed relocation to (omitted). The Father said that he did not regret raising the topic of relocation with the children;
dd)the Father was asked about the Men’s Behaviour Change Program that he had attended. The Father said that he found it to be beneficial and, when prompted, he said that it taught him about how some things are interpreted, how behaviour could be perceived as aggressive, and about family violence. The Father said that he was provided with the skills to improve his communication with the Mother. The Father said that he still does not believe that he had ever been violent or aggressive towards the Mother. The Father said, however, that he was prepared to credit the Mother for urging him to undertake the Behaviour Change Program;
ee)in relation to family violence, the Father said that he knew that he had done wrong in the past, but that his actions or conduct were never as severe as the Mother made out. With respect to his statement to Y that he would kick down the door to take Y to (hobby omitted) classes, the Father agreed that, at the time, he did not consider the impact of the statement on Y. The Father says that now he is aware that it may have affected Y; and
ff)the Father was questioned about the three Intervention Orders made against him. The Father agreed that the most recent Intervention Order expired in July 2017. The Father agreed that he was charged with breaches of an Intervention Order, but he said that he could not remember how he pleaded. When prompted, the Father agreed that he was fined without conviction. The Father says that he regrets the breaches, but said that they related to text messages that he sent the Mother, and nothing else.
When it was put to the Father that the Mother was no longer involved in (omitted), he said that he was not sure about this. The Father said that he was really more concerned about the “brainwashing” by that organisation of the Mother and the children.
The Father said that he would like to get the boys more involved in competitive sports. The Father agreed that X was more artistic, and therefore that (hobby omitted) lessons would be appropriate for him. The Father agreed that Y was scared about change, and that introducing him to competitive sports would therefore have to be done cautiously.
The Father was asked about Ms E’s attendance at changeover in accordance with Court Orders. The Father’s evidence was that she was always in substantial attendance, save for the last two changeovers.
Ms E’s evidence
Ms E’s evidence was that the children experience a positive and loving time with the Father. She was asked about the number of changeovers that she attended between November 2006 and January 2017. Ms E’s evidence was that she thought that she had attended around two or three changeovers.
The Mother’s evidence
The Mother alleges that, during their five-year relationship, she suffered family violence perpetrated by the Father in the form of emotional and verbal abuse and that she felt extremely controlled by the Father. The Mother says that the Father was often angry and depressed, and that he drank heavily. The Mother also alleges that the Father was financially controlling, and that he would often denigrate her in front of the children when they were very young.
The Mother says that as a result of the Father’s increased verbal and emotional abuse, and his aggressive behaviour after their final separation, she applied for and was granted the First Intervention Order. The First Intervention Order included the children as Affected Family Members. The Mother said that she reluctantly agreed to vary the First Intervention Order, and removed the children as protected persons from the final order, which expired on 18 August 2013. The Mother said that she stopped the children from spending time with the Father in early 2013 on the advice of local police, after reporting breaches of the First Intervention Order. The Mother said that the Father had sent her numerous emails and text messages which were degrading, threatening and abusive. The Mother also says that during changeover, the Father’s body language was intimidating, and that he would denigrate her in front of the children. The Mother said that she feared for the safety and well-being of the children when they were spending time with the Father, due to his unstable behaviour. The Mother says that she applied for and was granted the Second Intervention Order on 30 October 2013 because the Father failed to stop threatening her in the presence of the children during changeover. The children were not included as Affected Family Members in the Second Intervention Order.
The Mother says that in March 2016, the children returned from time spent with the Father and told her that the Father had said to them “I am going to kill [Mr G]”, and “I’ll kick down your door to come and get you” (the Mother’s Affidavit filed on 9 January 2017 at [35]). The Mother said the children became very frightened of the Father and his threatening behaviour during this time. The Mother said that on 1 April 2016, she received 85 text messages and numerous phone calls from the Father, which prompted her to apply for the Third Intervention Order.
The Mother’s reasons in support of her proposal that the children live with her in (omitted) are as follows:
a)Mr G’s employment and business venture, (business omitted), is located in (omitted). The Mother said that Mr G needs to be in (omitted) in order to ensure the success of the venture. The Mother says that Mr G has travelled regularly between (omitted) and Victoria. She says that it causes her enormous stress to remain on her own with baby A and the children for the time that he is away. The Mother says that if she is not permitted to relocate to (omitted) with the children (as Mr G will be located in (omitted) for his work), the stress and strain that she has experienced over the past year will continue;
b)the Mother says that over the last year her mental health has deteriorated. She says that she now experiences difficulty sleeping, and is afraid of a continuation of the commuting by Mr G and the fact that she would be alone with the care of the three children for extended periods of time. The Mother says that the stress and the uncertainty about the future of her family unit has almost brought her to breaking-point, and that this has had a severe impact on her relationship with Mr G. The Mother says that she and Mr G have been preoccupied contemplating a future where they only have a part-time family in which Mr G resides in (omitted) and commutes to Victoria;
c)the Mother says that she believes that relocating to (omitted) with the children will enable her family to have financial stability and security;
d)the Mother says that both she and Y suffer from medical conditions which would be ameliorated by living in a warmer climate. The Mother says that Y has been diagnosed with asthma, and that his asthma and allergies are triggered by cold weather. The Mother says that Y is medically treated with Ventolin and asthma preventers, and believes that the warm climate of (omitted) Queensland would decrease his reliance on medication. The Mother’s evidence is that Y has had to take two courses of the steroid prednisolone this year, which is slightly less than the medication he has been required to take during previous winters; and
e)the Mother says that she suffers from Hashimoto’s disease (a condition of the thyroid and an autoimmune disorder) and bronchial asthma. The Mother’s evidence is that the symptoms of these medical conditions are alleviated when she travels to Queensland during Victoria’s winter months.
In evidence-in-chief, the Mother said that she had investigated various airline sites such as Webjet, Qantas, Virgin and eDreams, and was able to say that if the Father were to come to (omitted) to visit the children, the return airfare would cost $700 in total. If the children were to travel to Melbourne to spend time with the Father, the cost of travel for both children would be in the vicinity of $1,000 to $1,030.
In response to cross-examination by Counsel for the Father, the Mother said the following:
a)(omitted) is a self-help/well-being philosophy, with religious views. The Mother said that she has attended workshops, but that she never takes the children with her. The Mother said that she benefits from the workshops because they help her to be more understanding, and she finds the support therapy techniques, such as massage, to be helpful. The Mother said that she was not opposed to sport because of any belief system of (omitted). The Mother said she just did not support the children being involved in contact sports. The Mother said that she did not oppose an order that restrained her from bringing the children into contact with (omitted) events or literature, but said that she saw nothing wrong with the treatments that she used, especially massage techniques;
b)the Mother has always wanted to live in Northern Australia because she feels the cold, and is often unwell in winter. The Mother said that she has “put up with” living in Melbourne with the Father, but that she always wanted a better quality of life in the Northern region of Australia. The Mother said she has had bronchitis all her life and uses Ventolin when she has bronchial asthma. The Mother said that hormone replacement therapy is the only medication available to treat her Hashimoto’s disease. The Mother said during winter she is cold all the time, she experiences aches, and feels tired and lethargic. The Mother agreed that she had suggested to the Father that they move, both during and after their separation, and said that even without Mr G, she wishes to relocate;
c)the Mother said that she agreed that the Father had taken positive steps to address his history of violence, and that this has assisted her to see and communicate with him;
d)in relation to the travel costs involved for the Father to spend time with the children, the Mother said that if she were permitted to relocate to (omitted), she would be prepared to pay 50% of those costs. The Mother said that if her family’s finances improve, she would be able to offer more;
e)with respect to the allegations about the Maternal Grandfather, the Mother said that her parents broke up when she was five years old, and that her mother had told her that the Maternal Grandfather had been physically violent. After her parents separated, her contact with the Maternal Grandfather was sporadic. The Mother said that her relationship with the Maternal Grandfather is very good now, and that she would not allow the children to come in contact with him unless she was confident that there was no risk to the safety of the children;
f)the Mother agreed that she had not taken Y to a specialist for his asthma, nor had her general practitioner referred Y to a specialist for his asthma. The Mother said that when Y is asthmatic, he is given steroid medicine. She agreed that Y’s asthma symptoms can be dealt with in Victoria, but said that the symptoms are significantly reduced when he is living in a warmer climate. The Mother said that when Y is prescribed prednisolone, he becomes hyperactive with poor attention, and is consequently tired.
Mr G’s evidence
Until (omitted) 2017, Mr G was employed by (employer omitted) as an (occupation omitted), earning around $100,000 per annum plus bonuses. Mr G said that he resigned because of the work stresses of being an (occupation omitted) whilst trying to become involved in (business omitted) with his brother, alongside trying to support the Mother who, after a very difficult pregnancy, had undergone a life-threatening birth of their child, A. Mr G gave evidence in cross-examination that the Mother was not coping at home with A and the two children. Mr G said that he felt that the Mother required his support, and the only option available was for him to cease working full-time.
Prior to leaving full-time employment with (employer omitted), Mr G had been invited by and agreed to become involved in (business omitted) with his older brother, Mr D, who is the Managing Director of (business omitted). Mr G now holds 100,000 shares in the company. Mr G said that their aim is to establish a viable and sustainable (omitted) industry in Australia and for the company to be involved in large-scale (omitted business duties) related products. (business omitted) (omitted) in (omitted) Queensland.
In his affidavit filed on 9 January 2017, Mr G said that his position with (business omitted) would be (occupation omitted) with a salary of around $150,000 per annum, and that he had anticipated commencing in (omitted) 2017.
Mr G describes his role in the business as follows (Affidavit of Mr G filed on 9 January 2017 at [50]):
50. My role as [(occupation omitted)] of the Company will entail the following:
· (omitted business duties) in [(omitted) Queensland];
· Establishment of (omitted business duties) in the region; Security of site and equipment;
· Development and expansion of the (business omitted duties);
· On the ground management of the (business omitted duties);
· Operations of the head office/commercial factory, storage (business omitted duties) in [(omitted) Queensland];
· Recruitment, selection performance and management of staff;
· Strategic meetings with the advisory board and Managing Director as required;
· Cash flow analysis and budgeting, forecasting for growth and investment, managing the Company’s finances and growth;
· Seeking potential new business and developing relationships. The Company is also developing overseas markets and projects, demanding the commencement of my employment with the Company in early 2017;
· Ensuring safe workplace structures and roll out due to (business omitted duties) operations;
· Stakeholding management, consultation and communication; Start-up of new industries in [(omitted) Queensland].
…
In his second affidavit filed on 25 September 2017, Mr G said that he had become severely depressed as a consequence of the Court proceedings, having no income, and the ongoing uncertainty and financial burden of attempting to support his family. Mr G said he had applied for jobs in both Melbourne and (omitted) without success to date, however, he stated that he had recently been interviewed for an (occupation omitted) position in (omitted) and was waiting to hear if he had been successful. At the hearing, Mr G gave evidence that subject to successfully completing a medical test (which was scheduled subsequent to the last day of the hearing) he had been offered the position, located in (omitted), as (occupation omitted) with (employer omitted), a company operating (omitted) in the (omitted) region. Mr G said that the salary was around $85,000 per annum, plus superannuation and bonuses.
Mr G said that his position at (employer omitted) was a lower-level position compared to his former position at (employer omitted). Mr G said that his hours would be from 9am to 5pm, although it was a 24/7 business. Mr G said that he was confident that he could manage his responsibilities and duties in his position at (employer omitted), as well as being involved in the (omitted) business.
Mr G describes his current role with (business omitted) as a (omitted) role, involving the creation of a (duties omitted). Mr G said that the provision of (product omitted), which he agreed occurred under a supply agreement and not a contract, had so far delivered an income of around $60,000. Mr G said that (business omitted), however, comprises only 18% of the (omitted) market. Mr G said that now that (business omitted) had proven that it could deliver the product, the business was in a position to expand deliveries to other (omitted) organisations. Mr G said that he and his brother ultimately intend to run a business which (business omitted duties). Mr G said that this sort of development work required face-to-face contact with the various landowners and the purchasers of the product.
Mr G gave evidence that sales of (omitted) products had increased from $19,000 in 2015 to $54,000 in 2016, and that the company had paid $32,000 to contractors. Mr G deposed that (business omitted) had entered into a supply agreement with (omitted) (Annexure G-4 to the Affidavit of Mr G filed on 25 September 2017) and had commenced advertising (business omitted)’s products in (omitted) magazines (Annexure G-7 to the Affidavit of Mr G filed on 25 September 2017).
It is not disputed that (business omitted) is trading, however Mr G has not yet derived an income from the operations of (business omitted).
Mr G gave the following evidence arising out of cross-examination by Counsel for the Father:
a)Mr G’s family had been suffering financial stress following his resignation from (employer omitted) in (omitted) 2017;
b)Mr G left his managerial position at (employer omitted) because of ongoing stress of the job. He said, however, that there were other reasons for his resignation. The first of these was that he took eight weeks to look after the Mother who had a very difficult pregnancy, and had experienced life-threatening complications in delivering A. Secondly, Mr G said that he wanted to fulfil his role with (business omitted);
c)Mr G said that he had made full disclosures to (employer omitted) about his involvement in (business omitted);
d)Mr G said that the arrangement he had reached with his brother was that he would get paid when (business omitted) was viable. Mr G said that a viable business requires a $1million turnover per annum, and was confident that (business omitted) could reach this within eight months; and
e)in the event that (business omitted) was unsuccessful, Mr G said that he would still have a job with (employer omitted).
Dr I’s evidence
Dr I (“Dr I”), an education and counselling psychologist, prepared a report dated 22 September 2017 which is annexed to his affidavit filed on 26 September 2017. Dr I says he commenced seeing the Mother in February 2016 in relation to her and the children’s emotional states after the separation of the Mother and the Father. Dr I says that since that time, he has had a number of sessions with the Mother, and also separate sessions with the children. Dr I said that the sessions with the Mother focused on managing the boys as a single mother, and on her emotional state relating to the family violence that she had experienced in the past with the Father.
Dr I notes the Mother’s relationship with and marriage to Mr G and the birth of A, and says (Affidavit of Dr I filed on 26 September 2017 at 4-5):
…[the Mother] felt secure and happy in her new family of [Mr G] and the three boys. As time has progressed through 2016 and into 2017 there have been increasing pressures on this family unit creating considerable stress and anxiety. These stresses related to Court matters, relationship with [the Mother’s] ex-husband and the family wishing to relocate to Queensland where [Mr G] had employment. The effect has been that [the Mother] has developed severe anxiety and depression. She has moved from nurturing a new relationship and family to being fearful of the future.
…
[The Mother] has found it very difficult to deal with this stress. She has moved from being a happy person in a nurturing relationship with her new husband and three boys to being fearful, anxious and depressed. If [the Mother] cannot be with her husband she will be alone in Victoria and he will be separated from [the Mother] and the boys. This would place their relationship under threat. [the Mother] is depressed and anxious about holding the relationship together despite their efforts do so.
In my opinion [the Mother] is in a very fragile state of mind given her level of anxiety and depression, and her ability to cope. She needs to be with her husband and three boys. She needs her family. [Mr G] needs to be employed.
In his report, Dr I stated that he had seen Mr G several times in 2016/2017, and stated that “…[Mr G] has been experiencing depression in relation to the stress and has found it difficult to get out of bed since March 2017…” (Affidavit of Dr I filed on 26 September 2017 at 4). Dr I noted that Mr G can apparently return to his job in Queensland, but that at present he has elected to stay in Victoria without employment, rather than leave the Mother alone in Victoria with the three children.
In cross-examination, Dr I said that X has coped better than Y since the parties’ separation, but that progress has been made in relation to the children. Dr I said that he had seen Mr G a few times from March 2017 to present, and that Mr G’s issues related to his job loss, maintaining family relationships and the new business in (business omitted). Dr I opined that Mr G was a very capable person and that once he found employment he would be able to hold down a job. Dr I also said that, in his opinion, Mr G was good father.
Dr D's Evidence
Dr D (“Dr D”) has been the family’s general practitioner for around five years. In her report dated 25 September 2017 and annexed to her affidavit filed on 27 September 2017, Dr D confirmed that the Mother has a diagnosis of asthma, and that the symptoms of her asthma were observed to be seasonal, with those symptoms being worse in the cold autumn to spring months. Dr D also stated that the Mother suffers from Hashimoto’s Thyroiditis. Dr D says there is some suggestion that the Mother’s medication needs may increase in the winter months, however, stated that even with optimal control through medication, the symptoms of hypothyroidism may not be optimally controlled.
In cross-examination, Dr D confirmed that Y suffers from asthma, and that his symptoms are controlled by medication. Dr D said that, in her opinion, Y’s condition was not particularly serious, and confirmed that if his condition had been serious, she would have referred him to a specialist.
Family reports
Ms L prepared two family reports for the purposes of these proceedings. The First Family Report dated 18 September 2016 was prepared prior to the Father spending regular time with the children in accordance with the Interim Orders. The Second Family Report is dated 31 August 2017.
In the First Family Report, Ms L provided the following evaluation (Exhibit C1 at 18-22):
[The Father’s] presentation was seen to minimise any of the allegations raised by [the Mother] in her material. He presented rationalisations as to his past behaviours which ranged from a lack of finances, increased drinking because he was ostracised, various intervention orders preventing him to spend time with his children, his former partner’s sporadic change of arrangements and his misplaced comments which were interpreted as threats towards [the Mother] and Mr G. He denies the need for supervision and that the children are at risk in his care. He is completing an anger management course as agreed and believes that this has raised some awareness of his actions.
[The Father’s] issues with the (omitted) group are still evident and he is not accepting of any restrictions from them in regard to feeding his children. The impact of his dismissive approach is that this raises anxieties for the boys and may mean they are placed in a position of keeping a secret from their mother that there ate ice-cream etc. This can be undermining and hence some clear conversation is important for the parents to engage in about a level of consistency in regard to health of the children.
[The Mother] was more passionate about the issues she has seen in the children. She is concerned how the children are being scared by the statements made by their father and wishes to minimise this impact. She sees [the Father] as irresponsible when he makes such comments and sees him as self-focussed and lacking insight. She is annoyed at his lack of care for the children’ health by ignoring her request about the diet and she sees his opposition to this as aggressive. [the Mother] would benefit by recognition that teaching cannot be imposed upon those who do not have the same belief system, and hence if children are in the middle some leeway, may need to be granted to the children in separated families. The writer is not confident that [the Mother] is able to change her view on her teachings.
X and Y, at their development age are concrete thinkers and the material presented about the children’s reactions to the alleged statements made by each parent would stress them. Both parents would benefit by some child development input as these children take any statements made by their parents as fact. Hence the parents are invited to engage in obtaining information about how children think and how they process the messages that each parent gives as they will take the threats literally. [The Father’s] use of language that involves as threats which he may have used as emphasis, are experienced by the children as alarming.
…
[The Father] on the surface has shown an appreciation of the need to provide the children with a positive experience however the writer is not confident that he can withhold his personal views of the mother from the children when he is feels under stress.
…
The relocation of the children would mean a significant loss not only of this father but also the paternal family. Their current two hours a week is insufficient to feel a strong connection with their father which could sustain them for such distances, especially interstate. It is respectfully suggested that the possible relocation may be suspended until the arrangements for the children with their father normalises. Because of [the Mother’s] concerns about the children’s anxieties about their father’s alleged vengeful statements to them about their mother, a stepped approach is still the best optimum process.
The writer was concerned about the contradiction in [the Mother’s] request to relocate. She is offering school holiday time for the children to be with their father in Victoria, whilst she is concerned about his negativity and threats of harm towards her through to the children, which would raise anxiety for them. It is of concern that she would be a considering [sic] such block time for the children with their father, that is the school holidays, and possibly exposing the children to more opportunities for their fathers alleged anger to manifest itself an impact upon the children, if she has a strong belief in the current risk.
If [the Mother] wishes to progress a relocation application, it will reduce the amount of time the children have with their father as his capacity to be available for school holidays is unrealistic given his work commitments. Relocation brings many issues of loss for the children, not only have the children lost their original family system they will be losing the ongoing regular time with their father, increasing the amount of loss. The children will also be changing schools, friends and community. [The Mother] is placing her priority on her new partner’s financial issues at this time and may need to consider how she will manage the impact on the children when they become aware of the changes.
Ms L recommended that the children’s time with the Father be increased if they remained in Victoria, so that from term one in 2017, the children spent alternate weekends with the Father and school holidays, in line with the Father’s availability.
In the Second Family Report, Ms L noted from her interview with the children that X (Exhibit C2 at 17):
…presented as a calm and considered child who was easy to engage and prepared to speak about his family…He described his world with his father as one which involved activities, that is, (hobby omitted), travel to different places like the Museum…
Ms L noted that X was aware that his parents had different belief systems, and that he avoided any discussion about the parental dynamics, other than saying that the arrangements between his parents had “settled down” (Exhibit C2 at 17). Ms L noted that X “…was content with the current spending time with arrangements and [was] enjoying his father collecting him and Y from school on Fridays…” (Exhibit C2 at 17).
Ms L stated that Y “…revealed a happy interactive boy who at times paused to decide how to talk about his parents…” (Exhibit C2 at 17). Y also described the activities he had recently engaged in during the time with the Father and X on the weekend. Ms L noted in her report that Y was more detailed about the parental conflict than X, saying that “…the parents were still angry with each other and that both parents tell the children that they are angry…” (Exhibit C2 at 17).
In her evaluation in the Second Family Report, Ms L said the following (Exhibit C2 at 18):
The observations of the boys with their father revealed a developing closeness and calmness. The interaction between the siblings at times was vivacious and [the Father] tried to maintain boundaries and guidance with them. From the sibling relationship’s assessment, the boys see each other as being strong friends and they see their failings as acceptable and seek support from each other when they need it.
Ms L considered in detail the issue of relocation as follows (Exhibit C2 at 20-22):
The relocation presents a number of losses for the family with the need to try to predict the future life of the children. [The Mother] and Mr G if they were allowed to relocate to (omitted) will be creating a loss for the family.
· The first loss for the children would be their recent regularity of time and now spent with the father given its successful development.
· The next loss of the children is the loss of extended paternal family, for example the paternal grandmother, with whom the children report having a positive relationship.
· The next loss of the children is the separation from the school community and friendship groups and sporting clubs. Victoria has been the mainstay in this regard and it is at the request of their mother and Mr G that the family relocate.
· The stresses on the family to date have been as a result of the past abusive relationship between the parents both of whom recognise the maladaptive behaviours and the negative dynamics of the time. The cumulative stress of the drama in managing [the] emergency Caesarean birth of A and the possible loss of [the Mother].
· The deteriorating risk of respiratory health of [the Mother] and the vulnerability of Y’s health regarding asthma.
· The financial stress of Mr G being unemployed to date and the need to find re-employment.
· The pressure from building a business for Mr G from a remote location.
…
[The Father’s] underlying fear with the proposed relocation is that given the past history with [the Mother] who he has experienced as unilaterally suspending his time with the children, which in his view was spurious or self-centred. Hence he is concerned that [the Mother] will replicate the suspending time for her convenience.
From [the Mother’s] perspective, she is torn with supporting the children’s relationship with their father and in maintaining her marriage to Mr G. She was visibly distressed during the discussion...
...
From the children’s perspective they are loved by both parents. X has seen a reduction in tension of both parents had advised that the court orders have court orders have provided a structure within which to work. [The Father] has stated in his interview that he “just needs the order” and he will comply.
The contradiction to this statement has been his history of previous breaches of intervention orders suggesting compliance with the orders is not his strength. [The Father] rationalises his past breaches as a result of ignorance of the definition of family violence and as a “desperate need to see my kids”.
Y was more open about his parents’ negativity to each other, however his resilient demeanour suggests his strategy is to ignore comments and distance himself. Both children were seen to please both parents. X does not want any change and Y wanted shared care according to [the Father]. The boys, from the assessment, have an enduring attachment and connection with their mother and their stepfather. They have bonded with A, who is more mobile and was more interesting now.
X’s minimalist description of his father was seen as protecting his father from any negative perception by others. Y’s description of his father was to equalises enjoyment with both. The observation of the children with their parents revealed a positive relationship. The boys were active with their father and were tactile and embracing with their mother. Ideally the boys need to have both experiences.
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In this matter the children have created and developed a secure relationship with their father. The year of contact despite, the two episodes of suspended time, have allowed the children to establish a relationship with their father. This relationship for the children’s perspective is secure and enjoying. They are of an age where by their father is a significant figure in their lives and their memories and relationship with him will endure. As these children may be seeing their father on holidays and long weekends etc., if they relocate, it would provide a sense of excitement, provide quality time and create memories that will hold into adult hood. The challenge from [the Father] is to suspend his negativity and fear about losing the relationship with his children if they relocate.
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In summary, the balance of issues for the family are:
· the fear by [the Father] of losing the children,
· the fear of [the Mother] losing her current family,
· the losses for the children compared to the gains of Queensland,
· the impact for the children if the refusal to locate on the relationship with the significant adults
The assessment revealed the potential for the children especially, Y, to have a medical free lifestyle in Queensland and for the family to resurrect financially allowing for better mental health, and physical health and for [the Mother] to having more energy having an intact family with Mr G and A.
The assessment also revealed the possible impact of the lack of relocation. [The Mother] will be continually stressed, potentially losing her intact family, as Mr G will be relocating to (omitted) and the possible resentment from [the Mother] towards [the Father] for feeling trapped in Victoria. From the assessment neither parent was considered to be a risk to impose upon the children guilt that they were the cause if not moving.
As discussed in the body of the report of the children remain in Victoria they will there will be no current change to spending time with arrangements if the children relocated a number of scenarios could be considered by the parents
Option One: The children spend time with the father on one long weekend a month possibly coinciding with the father’s rostered day off and the school would possibly not object to a day a month of absence.
Option two: The children spend two weeks at Christmas school holidays with the father as he has mandatory holidays and one week in either April or September school holidays.
Option three: The children spend time with the father of a combination of both options.
Option four: The children relocate once X finishes grade, 6 a change that is required anyway. The contraindication to this is that Y will be in grade 4 and hence his change is not in line with a natural change. Currently Y is in grade 2 in X in grade 4. The impact of this will be a continuous struggle of the issues of health and well-being for [the Mother] and Y living a separate lifestyle for Mr G, as he will have to commute subject to financial ability to maintain a level should relationship with his family.
Option five: All of these options can be supported by electronic means for example Skype Facebook Google had handouts etc. on face time.
It is understood from Mr G that the business and (omitted) is now viable with contracts of (omitted) and products distribution has occurred. The Court may wish to seek verification and clarification of this. Hence if this is accepted than an option for relocation could be considered.
The loss to [the Father] is mitigated by detailed Court Orders for the time to be send by the children when they travel to Victoria. The quality time the boys will then spend with their father will be considered special by then and personal between them. The lack of competition for the children’s affection, support etc. will diminish for the children, they will be relieved and not feel the need to please each parent and allow themselves to be children. The Skype, Hangouts etc. can supplement the lack of physical time, some parents play games with their young child over the internet and hence daily contact can be establish if needed, the orders many need to reflect the requirement of internet connections and the appropriate hardware.
Ms L recommended that the relocation be supported, that the children live with the Mother, that the Father spend time with the children on one long weekend a month, possibly coinciding with the Father’s RDO, that the children spend two weeks in the Christmas school holidays with the Father (as he has mandatory holidays), and one week in either the second or third school term holidays, and that the children spend Father’s Day weekend with the Father, if not already in his care at the time. Ms L recommended that all contact between the children and the Father be supported by electronic media means, for example Skype and/or FaceTime.
In his trial affidavit filed on 28 September 2017, the Father set out various criticisms of Ms L's Second Family Report (the Father’s Affidavit filed on 28 September 2017 at [103]-[105]). However, in cross-examination, only one of those criticisms was put to Ms L. This was Ms L’s statement that the Father did not pay child support. In cross-examination, Ms L readily admitted this was an error.
In cross-examination, Ms L agreed that since conducting the interviews with the parties and the children in August 2016 in preparation for the First Family Report, the children’s relationship with the Father has consolidated, that the Mother felt safer about the children spending time with the Father and about her own safety, and that the Mother accepted that the Father does love the children. Ms L agreed that, consequently, the Mother has supported the Father’s relationship with the children.
Ms L confirmed that she approached the question of relocation by examining the losses to the children and to the parents, both in circumstances where the Mother and the children remained living in Victoria, and with their relocation to (omitted). In relation to the losses resulting from relocation for the children and the Father, Ms L said the following were relevant considerations:
a)the change in the frequency that the Father would spend time with the children;
b)the loss of the children of their community, school and friendship groups; and
c)the Father’s feared loss of the children because of his past experience of inconsistent time with them.
Ms L said that the positives of the Mother residing in (omitted) with the children were:
a)the improved mental health of the parental environment;
b)that the Mother’s family would operate as a more tangible and connected family unit;
c)the arrangements for Mr G’s business were more certain and would likely provide better stability; and
d)time arrangements in block times would mean the parents and children would be less exposed to changeovers which would reduce their levels of anxiety.
Ms L said the loss to Mr G if there was no relocation would be that:
a)he would only see his very young son intermittently; and
b)the maternal family would yet again be a separated family.
Ms L opined that both X and Y are old enough to hold onto their positive experiences with the Father. Ms L agreed that they were concrete thinkers and that X, in particular, was close to the Mother, and worries about the Father being angry and numb.
When Ms L was asked about what the impact would be if the Mother and Mr G were financially better-off in Victoria, Ms L said that this nevertheless did not deal with the mental health of the Mother, her physical health and her lack of distance from the Father. Ms L said that her observation was that the Mother is fragile, and often revisits past experiences with the Father.
Ms L said her understanding was that Mr G resigned from his full-time work in Melbourne to support the Mother, A and the children, in circumstances where the Mother was very unsettled at home and needed his support.
Ms L was asked about the fact that the Mother’s proposed orders entailed the children missing a few days of school in each term. She opined that at the children’s ages, the primary school would unlikely be averse to the children missing school during the school term.
Ms L agreed that the Father should spend the optimal time possible with the children, either in Victoria or additional time in (omitted). The additional time, she said, should be preceded with reasonable notice to the Mother. Ms L said that she thought it would be advantageous to the children’s relationship with the Father if they participated in the Father’s lifestyle in Victoria, but that occasionally the Father participated in their lifestyle in (omitted).
Ms L opined that, were the Mother and the children to relocate and reside in (omitted), the children would continue to benefit from a meaningful relationship with the Father because:
a)there had been positive consolidation of the children’s relationship with the Father since the end of 2016;
b)at the children’s ages, they are still able to hold the positive memories and experiences of their time with the Father; and
c)a meaningful relationship arises not so much from the frequency of time which children spend with a parent, but the special things they do with that parent which may be different from the activities they undertake with the other parent. Ms L said that studies have shown that a significant factor for children, in terms of the development of their relationships with their parents, is the quality of time they spend with their parents.
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
The Father pays the Mother child support in accordance with the assessment made by the Child Support Agency (“CSA”). Under the most recent assessment, for the period 1 October 2017 to 31 December 2018, the Father pays $190.92 each week to the Mother in child support for the children (Exhibit M3).
There was some issue about the Father being in arrears in relation to child support and the CSA garnisheeing his wages. However, the Father presently and consistently pays his assessed child support amount.
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 either of his or her parents, or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Father’s proposed parenting orders do not involve any change which will affect the children, other than additional time where his RDO falls on an alternate weekend. The Father’s proposed parenting orders can be said to involve a seamless transition for the children. However, it must be acknowledged that, under the Father’s proposed parenting orders, the fractured family within the Mother’s family unit will continue to persist.
The Mother’s proposed orders involve significant changes that will affect the children. These changes should not be underestimated. If the Mother’s proposed parenting orders come into effect, the children will experience the following changes in their lives:
a)a change in the area and community in which they have lived all their lives, from an outer suburb of Melbourne to a very different city and, likely a very different lifestyle in (omitted) Queensland;
b)the children will undoubtedly lose friendships that they have established. There can be no doubt that, at their age, maintaining their friendships when they live so far away and keeping in regular contact with their friends will almost be impossible;
c)the children will move to a new school from the one that they have spent their school life in to-date. The evidence is that both Y and X have thrived at the present primary school. It cannot be disputed that changing schools is, in itself, a challenging adjustment for most children. The impact of a change in school on the children’s educational achievements, in the context of all the other changes, is unknown; and
d)the children will lose the regular face-to-face time they have had with the Father on alternate weekends during the school term.
On the other hand, under the Mother’s proposed parenting orders, the children will benefit from an intact family unit involving the Mother, A and Mr G.
The Father is particularly concerned about how X will manage the change, because he says that X is a shy boy, and when confronted with change in the past, such as starting childcare, kindergarten or school, X has required dedicated support.
The Father is right to be concerned about the effect of the changes on the children under the Mother’s proposed orders. However, X is older now and has excelled academically at his primary school. This is, of course, a tribute to the parents, but especially to the Mother because it is the Mother who attends to the children’s intellectual needs on a day-to-day basis. The Mother will remain the person who attends to the children’s intellectual and emotional needs. With any change in the children’s environment, school and friendship group, there is no reason to doubt, and I am satisfied that, the Mother will provide the support, including professional support, that is necessary for the children to adapt to the significant changes. In his oral evidence, the Father conceded that the Mother would take appropriate steps to ensure that the children are supported if they are required to adapt to the changes involved under the Mother’s proposed parenting orders.
Ms L observed in her evidence that the children have already adjusted to significant changes in their lives, for example the loss of the family associated with the separation of the parents, the commencement of the new parenting arrangements in June 2016, and the introduction of a new baby in the Mother’s family unit. Ms L opined that both parents are to be credited with having contributed to raising children who are resilient. I agree with this. The evidence is that the children have flourished intellectually in the aftermath of their parents’ separation and, following therapeutic treatment initiated by the Mother, are managing emotionally.
I am satisfied that whilst there will be significant changes for the children were they to relocate with the Mother to (omitted), they will be fully supported by the Mother to ensure that they are able to confront the challenges associated with the changes. I am satisfied that both X and Y are of an age and are sufficiently resilient to manage the changes, with support from the Mother.
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
Under the Father’s proposed orders, there will be no practical difficulty or expense of the children spending time and communicating with him.
Under the Mother’s proposed parenting orders, there will be practical difficulties, and additional, significant expenses associated with the children spending time with the Father. These difficulties and additional expenses will affect the children’s right to have direct contact with the Father on a regular basis.
The Father’s evidence is that, notwithstanding the good salary he earns from his work, he will face considerable difficulties maintaining direct contact with the children, and any additional time that he might spend with the children, because he carries a significant debt that he is required to discharge. The Father has not provided any probative evidence regarding the debt that he says is in the sum of $103,000, nor has he given evidence regarding the repayments that he is required to make, or the time period over which he hopes to discharge this debt. The Father has given evidence that the rent he currently pays is less than the market rate, as he rents from a friend.
The Father said that he believed that the cost of travel to (omitted), inclusive of airfares and accommodation, was $1,300. The Father conceded that he had not taken any steps yet to ascertain actual costs of airfares. The Mother gave evidence that she has searched the online sites of Webjet, Qantas, Virgin and eDreams. The Mother said that, were the Father to travel to (omitted) to spend time with the children, the return airfare would be around $700. The Mother said that when the children spend time with the Father in Melbourne, the return airfare for both children would be around $1,000. This evidence was not challenged by the Father.
The Mother said that she would be prepared to pay half of the cost of the travel for the children to spend time with the Father. The Mother further said that, where the financial circumstances of her family permit, she would be prepared to provide greater assistance in relation to the expenses of travel.
Given the Father’s evidence about his current salary and low rental costs, and taking into account the absence of cogent evidence regarding the impact of the debt that the Father says that he carries, I am not satisfied that the additional expenses from contributing to half of the travel expenses will be unduly burdensome for the Father.
Section 60CC(3)(f) – the capacity of each of the child’s parents, and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
The Mother has demonstrated a capacity to provide for the needs of the children, including their emotional and intellectual needs.
Despite the Father’s complaints about the children’s attendance at school, the evidence before the Court is that the children have achieved at, or higher than the expected scholastic standard at their school (Exhibit M1). X, who is in grade 4 has, in semester one in 2017, performed at the standard expected or at the top end of the range for his grade in the Victorian curriculum. Y, who is in grade 2 has, in semester one in 2017, performed at the standard expected, at the top end of the range and higher than the range for his grade in the Victorian curriculum.
The Mother has, as the primary caregiver, attended to the children’s emotional needs. She has engaged the children with a counsellor, Dr I, for the purpose of assisting them to deal with their parents’ separation. Dr I gave oral evidence that the children are making progress in adjusting to the changes in their lives, however that X was more so than Y.
I am satisfied that Mr G will reside in (omitted) in order to facilitate the business venture that he has engaged in with his brother and, in addition, to take up employment with (employer omitted) in (omitted). Both the Mother and Mr G have given evidence about the financial stress that they have experienced during the time Mr G has been unemployed, from April 2017 to present. I am satisfied that Mr G will remain in (omitted) as he sees this as his best opportunity to redress the financial difficulties that his family unit is experiencing. The Mother’s evidence is that, if the Court does not permit her to relocate in accordance with her proposed parenting orders, she will remain living in Melbourne with the children.
The Mother’s evidence is that she has found the time that Mr G has been travelling between (omitted) and Melbourne to be stressful and that she experiences fear about what the future impact on her may be if she is not permitted to relocate with the children to (omitted). The Mother’s evidence is that she has struggled with the burden of looking after a newborn baby and the children on her own during the period Mr G is away, and with the lack of continuity in support from him. I am satisfied that Mr G has provided the Mother with emotional support, and that she relies on him for this purpose.
In evidence, the Father made two somewhat contradictory arguments. Firstly, he raised doubts about whether the Mother and Mr G’s relationship will endure. The Father relied on the evidence of the Mother that the stress of coping with the children whilst Mr G is away in (omitted) has impacted on their relationship. Secondly, Counsel for the Father said on his behalf that the Mother is resilient, that she has survived the challenges of Mr G working in (omitted), and that there is no reason to doubt that she will not continue to meet this challenge under the Father’s proposed parenting orders.
I will not speculate on the durability of the Mother and Mr G’s relationship. I do not see any connection between the circumstances under which the Mother and Mr G met, and the durability of their relationship. I have no doubt that the Mother and Mr G genuinely love each other and are committed to their family unit. There is no probative evidence before the Court to the contrary. The Mother’s evidence about the impact of a fractured family unit on her relationship with Mr G is no more than evidence about the difficulties they have experienced. In my opinion, it forms no basis for the Court to draw an inference that the relationship between the Mother and Mr G is going to be short-lived, or lacks commitment.
Counsel for the Mother submitted that the separation of the family unit by reason of Mr G working in (omitted) has caused the Mother significant distress and that this, if it were to continue, would impact on her capacity to attend to the children’s intellectual and emotional needs. Having regard to the evidence before the Court, I concur with this submission.
I do not accept the Father’s submission that the Mother is sufficiently resilient, and that this will carry her through if the Court were to accept the Father’s proposed orders. This submission is contrary to the unchallenged, independent expert evidence available before the Court.
Dr I’s report is clear, and it is appropriate to set out again his expert opinion which was not challenged by either party (Affidavit of Dr I filed on 26 September 2017 at 4-5):
…[the Mother] felt secure and happy in her new family of [Mr G] and the three boys. As time has progressed through 2016 and into 2017 there have been increasing pressures on this family unit creating considerable stress and anxiety. These stresses related to Court matters, relationship with [the Mother’s] ex-husband and the family wishing to relocate to Queensland where [Mr G] had employment. The effect has been that [the Mother] has developed severe anxiety and depression. She has moved from nurturing a new relationship and family to being fearful of the future.
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[The Mother] has found it very difficult to deal with this stress. She has moved from being a happy person in a nurturing relationship with her new husband and three boys to being fearful, anxious and depressed. If [the Mother] cannot be with her husband she will be alone in Victoria and he will be separated from [the Mother] and the boys. This would place their relationship under threat. [the Mother] is depressed and anxious about holding the relationship together despite their efforts to do so.
In my opinion [the Mother] is in a very fragile state of mind given her level of anxiety and depression, and her ability to cope. She needs to be with her husband and three boys. She needs her family. [Mr G] needs to be employed.
Ms L confirmed that this was also her experience of the Mother. In her oral evidence, Ms L opined that the children need parents who are functioning well. In circumstances where the Mother is fragile, any move which results in an improvement in the Mother’s mental and physical health will benefit the children.
The Mother is the primary caregiver and provides the overwhelming majority of the care for the children. This will not change under either of the orders proposed by the parents. The expert evidence, which I accept, is that the Mother is presently fragile because of a range of reasons, one of which is the stress of living with a fractured family, and her fear of losing her family unit. I accept that the Mother’s genuine desire is to live with Mr G, who she loves, and establish a stable family unit in which she can attend to the children’s needs to the best of her ability.
I am satisfied, on the evidence before the Court, that were the Father’s proposed orders to come into effect, it is more than likely that the Mother’s fragility will increase as she struggles to cope with a fractured family unit. There seems to be no dispute between the parties that this may well impact on her capacity to parent the children.
I am satisfied that the Mother’s sense of emotional well-being, her happiness, her sense of security and her stability can only be enhanced if she is permitted to relocate with the children, and establish her family unit with Mr G in (omitted). Given the significant role that the Mother plays in the children’s lives, it follows that an improvement in her emotional well-being can only be in the best interests of the children.
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
I have dealt with the considerations identified in this sub-section earlier in the judgment and it is unnecessary to further consider this.
Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child, 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 the likely impact any proposed parenting order under this Part will have on that right
This consideration is not applicable in these proceedings.
Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
It is evident that the Mother’s attitude to the children and parenting responsibilities is beyond reproach. Under her primary care, the children have been able to flourish. The Mother has stepped in when necessary to provide them with therapeutic support to manage changes in their lives. She has carried the burden of the day-to-day responsibilities inherent in caring for the children from week-to-week, and for most of the holidays. The Mother does this not because she feels obliged to, but because she loves the children and is clearly child-focused.
The Father has not and will not under his proposed parenting orders, or indeed the Mother’s proposed parenting orders, be responsible for the day-to-day challenges in raising the children. I concur with the Mother’s submissions that the Father’s participation in and completion of the LifeWorks Behaviour Change Program has proved to be a turning point in the Father’s understanding of many things, including his parental responsibilities. The evidence is that the Father has now taken active steps to contact the children’s school and has involved himself in other aspects of their lives.
The Father is committed to ensuring that when the children spend time with him, he provides as many fun-filled activities as possible. This shows an insightful approach to the children’s needs, as they clearly love and benefit from this style of parenting by the Father. It is also an appropriate approach in circumstances where the Father’s time with the children is limited to weekends and school holidays.
Section 60CC(3)(j) – any family violence involving the child or a member of the child’s family; s.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: the nature of the order; the circumstances in which the order was made; any evidence admitted in proceedings for the order; any findings made by the court in, or in proceedings for, the order; any other relevant matter
I have earlier found that the Father engaged in family violence towards the Mother, largely in the form of denigration, harassment and a desire to exercise his control over her. I have found that the Father did not make a threat to kill the Mother, or Mr G.
The Mother applied for and was granted three Intervention Orders over the period of 2012 to 2016. The Mother was named as the Affected Family Member on the first two Intervention Orders. The Mother and the children were named as the Affected Family Members on the Third Intervention Order, which expired on 26 July 2017.
While the Mother still expresses fears in relation to the Father, I am satisfied that the family violence is historical, in the sense that there has been no repetition of any of the forms of family violence engaged in by the Father since his completion of the LifeWorks Men’s Behaviour Change Program, and since the introduction of Interim Orders which provide for him to spend regular time with the children.
The Mother still expresses anxiety about dealing with the Father at changeover. The Father’s proposal would reduce the face-to-face contact at changeover in circumstances where his RDO coincides with the alternate weekend time the children spend with him. Under the Mother’s proposal, the scope for face-to-face contact between the Mother and the Father at changeover will be significantly reduced.
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
Clearly, it would be in the benefit of the children for orders to be made that are least likely to lead to the institution of further proceedings between the parties.
The Father has expressed his concerns that the Mother’s desire to relocate is ill-conceived and that, consequently, if she is permitted to relocate, her living arrangements are likely to change significantly in the near future. I have rejected these concerns of the Father.
However, I have decided that where orders are made by the Court which permit the Mother to relocate with the children to (omitted), it is appropriate to also include orders to address the situation where the Mother lives in Melbourne. These orders would reflect the orders proposed by the Father.
Section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant
One of the concerns raised by the Father about the Mother’s parenting capacity is in relation to the children’s attendance at school. The Father says that under the Mother’s proposal, he will have no scope to monitor the children’s school attendance. Presumably, the Father is also saying that under his proposal, given his close proximity to the school, he will be able to monitor the children’s attendance at school and take steps to deal with it.
The Father’s evidence is that the children missed an excessive amount of school days in 2016. This concern was expressed by the Father in cross-examination when the Father agreed that, having regard to the children’s school reports for semester one in 2017 (Exhibit M1), the children were doing well at school. Counsel for the Mother asked the Father whether he gave the Mother credit for their performance. The Father’s response was that the children’s attendance at school in 2016 was poor. The Father also stated that X was struggling with his social skills, and still does not invite friends over to his house to play.
Exhibit M2 (a printout from the school’s Compass program for the 2016 school year) indicates that Y missed 27 days of school, and that X missed 27½ days of school. There is no evidence before the Court as to whether the school regards this attendance rate as unacceptable. The Father has not indicated what steps he would take to rectify this and, further, his evidence is that he has not contacted the children’s school about this issue.
The Father has raised concerns about the Mother’s proposed order that on one weekend during the school term, when the Monday coincides with the Father’s RDO, the Father spends time with the children from Friday to Monday. This concern arises out of the fact that the children would, on each occasion, miss one day of school.
The children are in primary school. I am not satisfied that missing those days of the school term under the Mother’s proposed orders would have an adverse impact on the children’s education. As the children get older, and there are greater demands on them to complete homework or projects, there is no reason why the Father cannot utilise parts of the extended weekend that he spends with the children to assist them, and ensure they complete their homework or projects. Obviously, as the children reach high school, the parents may need to re-evaluate whether the time arrangements are still in the best interests of the children. However, this is around a four years into the future for X, and is around a seven years in to the future for Y.
Otherwise, there are no other facts or circumstances that I consider to be relevant.
Sections 61DA and 65DAA of the Act
As noted earlier, both parents seek orders that include equal shared parental responsibility for the children. There is a history of family violence and certainly, in the aftermath of separation, the parties’ conflict has affected their ability to communicate appropriately in the best interests of the children. However, it is apparent that since the litigation proceedings have commenced and Interim Orders have been in place for the Father to spend regular time with the children, the parties’ communication has improved. There is no reason to expect that their communication will not continue to improve. I am therefore satisfied that the presumption of equal shared parental responsibility should apply in this case.
I am now required to consider firstly whether it is in the best interests of the children and then, separately, whether it is reasonably practicable for the children to spend equal time with both parents. If so, I will consider whether an order for equal time should be made under s.65DAA(1) of the Act.
The matters to be taken into account in determining what is “reasonably practicable”, and the interplay of best interests and reasonably practicable, was considered by the High Court of Australia in MRR v GR [2010] HCA 4 (“MRR v GR”) where the High Court said (at [9]):
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n 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 High Court of Australia went on to say (MRR v GR at [13]) that s.65DAA(1) of the Act is expressed in imperative terms, and obliges the Court to consider both the question of whether it is in the best interests of the child to spend equal time with each parent or substantial and significant time, and whether it is reasonably practicable for either order to be made. The High Court stated that it is only where both questions are answered in the affirmative that consideration may be given to the making of an order for equal time or substantial and significant time under s.65DAA(1)(c) of the Act.
In Taylor & Barker, the Full Court of the Family Court of Australia said (at [74] and [83]):
74. In our view, the common sense construction of s 65DAA(1)(c), and also of s 65DAA(2)(d), must be that it is only necessary for a Court to consider whether it would be “reasonably practicable” for the child to spend “equal time” with each parent, or “substantial and significant time” as the case may be, if the Court has already concluded that it would be in the child’s best interests to spend “equal time” with each parent, or “substantial and significant time” (as the case may be).
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83. However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.
There is no proposal before the Court for the children to spend equal time with the parents, and I am not satisfied that it would be in the best interests of the children to spend equal time with their parents. Whilst the parents’ communication has improved, in my view, it is not at a sufficient standard to support an equal time arrangement. I am satisfied, applying the reasoning in Taylor & Barker, that where a Court finds that it is not in the best interests of a child or children to spend equal time with each parent, that it is unnecessary for the Court to consider whether it would be reasonably practicable for the child or children to spend equal time with each parent.
Having found that an equal time arrangement should not be made in these circumstances, I am now required to consider whether it is in the best interests of the children and is reasonably practicable for the children to spend substantial and significant time with each parent and, if so, whether an order for substantial and significant time should be made under s.65DAA(2) of the Act. Substantial and significant time is defined in s.65DAA(3) of the Act as follows:
(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; and
(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.
(emphasis in original)
I am satisfied that it would be in the best interests of the children to spend substantial and significant time with the Father. They are at an appropriate age to spend time with the Father that would enable him to be engaged in the children’s daily routine, including their school life and events that are of particular significance to the children or the Father.
Section 65DAA(5) of the Act provides that:
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; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Under the Father’s proposed orders, the children will only spend time with him during the week in the school term where his RDO coincides with the time the children spend with him on the alternate weekend, and for a limited time during the Easter period. As I have already noted, these proposed orders are crafted around the Father’s work commitments. Therefore, the Father’s current and future capacity to implement an arrangement that involves substantial and significant time with the children is limited. In other words, whilst it may be in the best interests of the children to spend substantial and significant time with the Father, even if the children lived in Melbourne, the actual time spent would be constrained by matters the Court must have regard to in terms of the reasonable practicality of a substantial and significant time arrangement.
Under the Mother’s proposal, the scope for the children to spend substantial and significant time with the Father is, of course, severely constrained by the distance the parents would live from each other if the Mother were to relocate to (omitted). The Mother does propose that the Father be able to spend additional time with the children if he were to come to spend time with them in (omitted). This may well facilitate the Father’s ability to spend time with the children outside the weekends and holidays, and to be involved in their school and daily routines on those days. However, the Father’s ability to do this will be constrained firstly, by his work commitments and secondly, by his financial circumstances.
What parenting orders are in the best interests of the children
I have found that the presumption of equal shared parental responsibility should be expressed in any future parenting orders for these children. Further, having regard to the undisputed evidence before the Court, I am satisfied that the children should live with the Mother.
I have considered each of the factors specified under s.60CC of the Act and the legal pathway mandated by s.65DAA of the Act, having regard to all of the evidence before the Court. On balance, recognising the difficulties inherent in this case, I find that parenting orders which permit the Mother to relocate to (omitted) with the children are in the best interests of the children.
I have weighed the benefits to the children which flow from the Mother being permitted to establish an intact family unit with Mr G in (omitted), together with the financial stability from Mr G’s employment in (omitted), against the losses for the children, in particular, the less frequent and reduced time the children will spend with the Father, and the significant changes that they will undergo as a result of the relocation. I am satisfied that the benefit of a meaningful relationship between the children and the Father will endure, despite the children living in (omitted), and that the quality of their time with him will be protected.
I am satisfied that the impact on the Mother’s well-being and her capacity to parent the children if she is not permitted to relocate, where she is and will always be the primary caregiver of the children, is a relevant and significant consideration.
I find that the parenting orders which are in the children’s best interests are as follows:
a)the Mother and the Father have equal shared parental responsibility for the children X born (omitted) 2007 and Y born (omitted) 2009 (“the children”);
b)the children live with the Mother;
c)the Mother be permitted to change the residence of the children to (omitted), Queensland, commencing one week before the commencement of term one of the Queensland Government gazetted school terms in 2018;
Where the Mother resides with the children in (omitted), Queensland
d)if the Mother resides with the children in (omitted), Queensland, the Father spend time and communicate with the children as follows:
i)during the school term, once each calendar month to coincide with the Father’s RDO, from the conclusion of school on the Friday until the afternoon of the Monday, and in the event that the Monday is a non-school day then, if the Father so chooses, until the afternoon of the Tuesday;
ii)by telephone, Skype or FaceTime by agreement between the parents (having regard to the Father’s work commitments, the children’s daily routine and the time difference between Queensland and Victoria), and in the absence of agreement, between 7pm and 7:30pm (Queensland time) each Tuesday, Thursday and Sunday;
iii)during the Easter period, from the Thursday before Good Friday until the Sunday one week after Easter Sunday, or as agreed between the parties;
iv)for one week of the Queensland gazetted June/July school term holidays, at a time to be agreed between the parties or, in the absence of agreement, from the evening of the last day of the second school term to the second Sunday of the school term holidays or, if that second Sunday coincides with the Father’s RDO weekend, then until the Monday evening;
v)at the Father’s request, for one weekend of the third term school holidays to coincide with the Father’s RDO, from the conclusion of school on the Friday until the afternoon of the Monday;
vi)during the long summer school holidays as agreed or, in the absence of agreement:
1. commencing in 2018 and each alternate year thereafter, from 3pm on Christmas Eve until 10 January; and
2. commencing in 2019 and each alternate year thereafter, from 3pm on 28 December until 11 January;
vii)for Father’s Day, from 1pm on the preceding day until 5pm on the Sunday;
viii)at any reasonable time and by agreement, in the (omitted) region, at times when the Father can travel to Queensland; and
ix)any such further or other times as may be agreed between the parties in writing;
e)the Father’s time with the children be suspended for the Mother’s Day weekend;
f)the parents share equally the reasonable travel costs involved in the children spending time with the Father and, for this purpose, the parents will use their best endeavours to pre-plan and pre-book the children’s flights to take advantage of the cheapest airfare available on the relevant days;
g)both parents forthwith do all acts and things and sign all documents necessary to confirm the children’s enrolment at the (omitted) State School in (omitted), and ensure that their names and contact details are placed on school emergency contact lists;
Where the Mother resides with the children in Melbourne, Victoria
h)if the Mother resides with the children in Melbourne, Victoria, the Father spend time and communicate with the children as follows:
i)on each alternate weekend from 3:30pm or after school on Friday until 7pm on Sunday, and if the Monday coincides with the Father’s RDO, until 7pm on Monday;
ii)from 3:30pm after school on the Thursday before Good Friday until 7pm on the Sunday one week after Easter Sunday;
iii)from 5pm on the Saturday immediately preceding Father’s Day until 7pm on Father’s Day;
iv)in 2017 and each alternate year thereafter:
(i)from 10am on Christmas Eve until 3pm on Christmas Day; and
(ii)from 10am on 2 January until 5pm on 9 January the following year;
v)in 2018 and each alternate year thereafter, from 3pm on Christmas Day until 5pm on 2 January the following year;
vi)for one week of the June/July school term holidays in each year;
i)all changeovers other than at school occur at Hungry Jacks, (omitted), Victoria, or at such other place as the parties may agree in writing from time to time;
Wherever the Mother resides with the children
j)both parents to authorise the other parent to receive copies of all school reports and other information relevant to the children’s education;
k)both parents provide the necessary authorisation to enable the other party to obtain information concerning the children’s education, healthcare and extracurricular activities;
l)both parties to immediately inform the other of any serious illness or injury sustained by the children whilst in their care;
m)both parents make available to the other any medication prescribed for the children by any treating medical practitioner and administer said medication whilst the children are in their care;
n)each of the parents, their servants and agents be restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent and/or that parent’s partner(s), and discussing these proceedings with or in the presence or hearing of the children, or upon permitting any other person to do so;
o)the Mother be restrained by injunction from bringing the children into contact with (omitted), its leaders, practitioners and facilities; and
p)the parents may, by written agreement, alter the arrangements for the Father’s time with the children.
Conclusion
The parties will be directed to prepare draft orders reflecting my judgment, with such orders to be finalised at the mention hearing on
8 December 2017.
I certify that the preceding two hundred and thirty-eight (238) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 28 November 2017
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