Verheiden and Balsam

FAMILY COURT OF AUSTRALIA

VERHEIDEN & BALSAM

[2009] FamCA 1140

FAMILY LAW – CHILDREN – Relocation - Mother wishes to relocate with the children from the south coast of New South Wales to the Sunshine Coast in Queensland - Father opposes relocation and seeks orders for equal time - If the children are permitted to relocate with the mother the cost of spending time with the father as well as the distance between the parties would prevent frequent face-to-face contact making it highly likely that as a consequence the strength of the children’s relationship with the father and the paternal relatives would diminish over time - It would not be in the children’s best interests to permit relocation - Orders for equal time are also not in the children’s best interests - Children ordered to live with the mother and spend substantial and significant time with the father

FAMILY LAW – CHILDREN – Parental responsibility – Mother seeks orders for sole parental responsibility which the father opposes - Equal shared parental responsibility ordered

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C(1), 61DA(2), 61DB, 64A, 65AA

A & A: Relocation Approach (2000) FLC 93-035
Bolitho and Cohen (2005) FLC 93-224
CSR v Della Maddalena (2006) 224 ALR 1
Goode and Goode (2006) FLC 93-286
H & W (1995) FLC 92-598
Johnson v Johnson (No 3) (2000) FLC 93-041
M and M (2006) FamCA 868
R v R: Children’s Wishes (2000) FLC 93-000
Taylor and Barker (2007) FLC 93-345
U & U (2002) FLC 93-112

APPLICANT:

Mr Verheiden

RESPONDENT:

Ms Balsam

FILE NUMBER:

SYC

1048

2007

DATE DELIVERED:

27 April 2009

PLACE DELIVERED:

Newcastle

JUDGMENT OF:

The Hon. Justice Ryan

HEARING DATE:

16 & 17 January, 30 July, 19 & 22 August, 1 & 28 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Hauseman

SOLICITOR FOR THE APPLICANT:

York Family Law

COUNSEL FOR THE RESPONDENT:

Mr Stewart

SOLICITOR FOR THE RESPONDENT:

Elizabeth Fleming & Associates

Orders

That all prior parenting and restraining orders made in these proceedings are discharged.
That the parties have equal shared parental responsibility for “the children” W born … March 2000 and K born … July 2001.
In the event the mother decides to move away from M and it is necessary for the children to change school, provided she has first consulted the father and the parties are unable to agree, she alone may decide which school the children attend.
That the children live with the mother.
That the children spend time with the father as follows:
(a)During school term each alternate weekend from after school Friday until 5.00 pm Sunday and in the following week of the two week cycle, from after school Tuesday until the commencement of school Thursday morning.
(b)One half of all school holidays by agreement and, failing agreement, the first half of the school holiday period except the September/October school holidays when the children will spend time with the father during the second half of the holidays.
(c)In the event that the children are with the mother on the weekend of Father’s Day, then the father shall spend time with the children from 9.00 am until 5.00 pm on Father’s Day and in the event the children are with the father on Mother’s Day, then the father’s time with the children shall be suspended from 9.00 am on Mother’s Day. If the children are with the mother on the day of the Father’s Day breakfast at the children’s school, then the mother will deliver the children at the school for the Father’s Day breakfast. If the children are with the father on the day of the Mother’s Day breakfast at the children’s school, then the father will deliver the children at the school for the Mother’s Day breakfast.
(d)In the event that the children are eligible to attend Regional or State titles of Little Athletics or any other sport in which they are involved and wish to do so, the parent in whose care the children will be will take or arrange for the children to be taken to and from the Regional or State event. If the parent is unable to do so, he or she will give the other parent at least three days notice and make the children available to the other parent to enable them to be taken to the event.
(e)Other than those occasions when the father is collecting the children from school, the mother or her nominee shall deliver the children to the father’s home.
(f)Other than those occasions when the father is returning the children to school, the father or his nominee shall deliver the children to the mother’s home.
That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All outstanding applications are otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: (P)SYC1048 of 2007

MR VERHEIDEN

Applicant

And

MS BALSAM

Respondent

REASONS FOR JUDGMENT

These are parenting proceedings concerning the parties’ two children W born in March 2000 and K born in July 2001. In late 2006 Mr Verheiden (“the father”) agreed that Ms Balsam (“the mother”) could relocate with the children from M, which is located on the south coast of New South Wales, to the Sunshine Coast in Queensland. About six weeks before the children were due to leave the father changed his mind and commenced proceedings to prevent the mother from relocating with the children. The father is concerned about the effect of the mother’s proposals upon his relationships with the children and wants the children to remain living in the M environs. Following a graduated increase in his time with the children the father proposed that the children’s time be divided equally between the parties. If the children move to the Sunshine Coast the father will remain in the M area.
The mother is keen to move with the children to the Sunshine Coast. If this occurs, she proposed that the children primarily spend time with the father during school holidays. If the mother is unable to take the children with her she will not move and will remain living in the general vicinity of M. If the parties are living in the same community, the mother proposed that the father spend time with the children each second weekend and overnight midweek. She pointed out that an earlier attempt at dividing the children’s time into 6 nights with the father and 8 nights with her was unsuccessful, and highlighted that the parties’ poor relationship and communication has already caused the children serious difficulties which she submitted will only escalate if orders are made in accordance with the father’s primary or alternate proposals.
The parties understood that the focus of this hearing would be upon the children’s best interests.

Background facts

In these reasons statements of fact are findings of fact. Findings are made on the balance of probabilities having regard to the evidence and my observations of the witnesses.
The applicant father was born in 1979. He is thus thirty years old.
The respondent mother was born in 1980. She is thus twenty eight years old.
The parties commenced their relationship and cohabitation in 1998. At that time the father was 21 years old and the mother 18 years old.
In 2000 the parties moved to M in order to be closer to the mother’s family.
The child W was born in March 2000.
The child K was born in July 2001.
The parties separated in May 2002. At separation W was 26 months and K was 10 months. The children remained in the mother’s fulltime care and regularly spent time with the father. The arrangements for the children to spend time with their father were flexible and to a considerable extent revolved around his availability. The father remained in the family home which is where he still lives.
After the parties separated the mother rented a house her father owned at V Street, M. This was a three bedroom house in which each of the children had their own bedrooms. By mid 2006, the mother paid her father $150 per week which, after she vacated in January 2007, he immediately let at $220 per week.
On 6 December 2002 the parties entered into consent property orders. The effect of the orders was that the father retained the family home at M Street upon payment of $35,000 to the mother. The mother received the lump sum payment and retained the family car which was subject to an $18,000 loan.
During 2003 the father commenced a relationship with his current partner, Ms E. Ms E and the father have lived together for about six years.
In mid 2006 the mother met her partner, Mr R. By about September 2006 the mother and Mr R agreed that provided the mother was able to relocate with the children, she and the children would move to his home on the Sunshine Coast in Queensland.
In a meeting facilitated by the mother’s father the parties discussed the mother’s desire to move to the Sunshine Coast. Having expressed his unhappiness with it the father said he would not stand in her way. It was then agreed that the mother and children would move to the Sunshine Coast at the end of Term 1 2007. During the interregnum, the children’s time with their father would increase and he would care for them during specified block periods after school resumed in January 2007, as well as when the mother needed time to attend to the logistical arrangements involved with her move. After the mother and children had moved, it was agreed that the children would spend time with the father for all school holidays and he would pay for their return flights in lieu of paying child support. Although the father hoped the mother would give up her proposed move, by December 2006 he accepted she was intent on leaving and that their agreement concerning the children’s future living arrangements would be put into effect.
In preparation for her move to Queensland the mother moved out of the property she rented from her father at the end of January 2007. As a short term arrangement, the mother rented a holiday house her brother owned at H. With her and the children’s possessions packed and ready to transport, the mother arranged that the father would care for the children in the week commencing 12 February 2007. During this week, she planned to drive to the Sunshine Coast so that she would be there when the removalists arrived. Within the week the mother planned to return to H pending her and the children’s permanent move in March 2007. The mother kept the father apprised of her relocation arrangements.
On 14 February 2007 the father visited the mother at her mother’s shop. He told the mother that he intended taking her to court so as to stop her moving the children to Queensland. Alarmed by this turn of events, without telling the father, the mother collected the children from school. The same day she left for Queensland as planned and, although her plans had not included taking the children with her, they accompanied her. The father learned the mother had taken the children when he arrived to collect them from school that afternoon. He was upset and attempted unsuccessfully to contact the mother on her mobile telephone. He then spoke with the mother’s father who was unaware of the day’s events.
Although the father correctly deduced that the mother and children were driving to the Sunshine Coast, on 15 February 2007 he applied in this court for ex parte parenting orders. Somewhat curiously, given the relative ease with which personal or substituted service could be achieved a Registrar listed the father’s ex parte application for hearing at 2.00 pm that afternoon. In this application the father applied for the following orders:
1.      That the father have sole parental responsibility for the children [W] born […] March 2000 and [K] born […] July 2001.
2.      That the said children live with the father.
3.      That the mother do all acts and things and return the children to the father at the arrival lounge at [the local] Airport no later than 10.00 am on 16 February 2007.
4.      That a recovery order be issued (and lie in the registry and be activated in the event that the mother fails, omits or neglects to comply with Order 3 hereof) authorising and directing the Marshall and all Officers of the Australian Federal Police and all Officers of the Police Forces of all States and Territories of the Commonwealth of Australia to take possession of the said children, [W] born […] March 2000 and [K] born […] July 2001 and to deliver the said children to the father forthwith he being the person entitled to residence of the said children pursuant to Order 2 hereof.
5.      That personal service on the mother be dispensed with.
6.      That these orders be granted on an ex parte basis.
7.      That the mother pay the father’s costs of and incidental to this application.
On 15 February 2007 a Judicial Registrar made the following orders:
1.      The proceedings are adjourned to the call-over of the Judicial Registrar’s List at 9.30 am on 19 February 2007.
2.      If there is no appearance by or on behalf of the mother on the adjourned date an order may be made authorising the police to recover the children and return the children to the father.
3.      Leave is granted to the mother to attend at Court by telephone should she so wish on the adjourned date provided that she notifies the Court of an appropriate telephone number prior to the adjourned date.
4.      The parties are to attend for family dispute resolution by arrangement with the Manager Child Dispute Services.
5.      Leave to the solicitor for the father to effect service of these orders, of the Application for Final Orders, of the Application for Interim Orders and his affidavit in the first instance by facsimile on the maternal grandmother and that the effect of the orders made today be also communicated to the mother’s partner [Mr R] by telephone as soon as practicable and to any other person that solicitor believes may be in contact with the mother.
The mother and children arrived at her partner’s home on the Sunshine Coast on 15 February 2007.
On 16 February 2007 the mother’s father informed her of the interim orders.
On 19 February 2007, in proceedings in which both parties were represented, a Judicial Registrar made the following orders:
1.      The proceedings are adjourned to the callover of the Judicial Registrar’s Duty List at 9.30 am on 21 March 2007.
2.      Any documents on which either party seeks to rely are to be filed and served not later than 14 March 2007.
3.      Until further order unless the parties agree to the contrary, the children [W] born […] March 2000 and [K] born […] July 2001 spend time with the father each alternate week from after school Thursday until 6.00 pm Sunday, and each intervening week from after school on Tuesday until before school on Friday.
4.      The first occasion of Tuesday to Friday time will commence on 27 February 2007 and each alternate week thereafter.
5.      The first occasion of time which will be on Thursday after school until 6.30 pm on Sunday will commence, for this weekend only, at 10.00 am Saturday and that arrangements for Thursday after school until 6.00 pm on Sunday will operate each alternate week thereafter.
So as to comply with these interim orders, the mother drove the children to M on 24 February 2007. It is a 17 hours journey. Pursuant to the orders made 19 February 2007, the children went immediately into the father’s care. He drove the children to Canberra, an approximately two hour journey, where they participated in a Little Athletics meet. This is the first time the children had seen or spoken with the father for ten days.
Upon their return to M, the mother and children moved temporarily into a cottage at her mother’s M property. From when they arrived in M until the interim orders were varied, the children lived with the mother and spent time with the father as provided by the 19 February 2007 orders.
In March 2007 the mother told the father that she planned on taking the children out of S Primary School. Basically she was unable to afford the costs of travel and thought it would be easier for her and the children if they went to a local state school. The father did not agree and on 2 April 2007, his solicitors wrote to the mother’s solicitors[1] outlining his opposition to any change to the children’s school. The letter was not brought to the mother’s attention until mid October 2007.
[1] Exhibit “F”
On 1 June 2007 the parties commenced a Division 12A hearing before Steele J. As well as ordering a Family Report, Steele J reduced the amount of time the children spent with their father. Relevantly his Honour ordered: “That order 3 of the orders made on 19 February 2007 be altered to provide that until further order the children spend time with the father every alternate weekend from after school Friday until 5.00 pm Sunday and in the following week of the two week cycle from after school Tuesday until the commencement of school on Thursday morning”. The children’s living arrangements were changed to reflect these orders.
In August 2007 the mother moved into a rented home at O for which she paid $190 per week. O is about 15 kilometres north of M.
In the week commencing 15 October 2007 the mother withdrew the children from S Primary School and enrolled them at O Primary School. The mother had been struggling with the extra petrol costs involved in driving the children to and from school. Because the O-M school bus trip involved a 1.5 hours return journey, the mother decided against using public transport. I agree that given the children’s ages this would have placed them under considerable strain. In a situation where every cent mattered to her, although she knew the father opposed the children changing schools, she ignored his views and withdrew them. The mother informed the father by telephone on 18 October 2007 of her actions and advised him that he should collect the children that afternoon from their new school.
On 19 October 2007 the father’s solicitors wrote to the mother’s solicitors in which he sought her undertaking that she immediately return the boys to S Primary School. When the mother failed to give the undertaking, the father instructed his solicitors to apply for orders requiring that the mother return the children to S Primary School.
On 22 October 2007 the father filed an Application in a Case concerning the school issue which application was made returnable the following day.
On 23 October 2007 the father’s application was adjourned for two days so as to give the mother time to respond to the interim application.
On 25 October 2007, by agreement, the Court made the following interim orders:
1. Pending further order, the mother be restrained from changing the children’s school from [S School].
2. The Court notes that the father is to pay the children’s school fees.
In November 2007 the father and Ms E’s child, L, was born.
Following the release of the Family Report, which recommended that the parties attend counselling, the father made arrangements for them to attend joint counselling with Ms D.
On 11 December 2007 the father’s solicitors wrote to the mother’s solicitors[2] and informed them of the father’s invitation that the mother and he attend counselling with Ms D. Unfortunately, the mother received this letter after the scheduled appointment and the father attended the appointment alone. Had the mother been interested in attending counselling, she could have initiated it, or havening received the father’s solicitor’s letter, taken up the suggestion albeit for a later date. The mother did neither of these things.
[2] Exhibit “G”

On 29 December 2007, Mr R moved to M.
This matter was heard on 16 and 17 January 2008. On 17 January 2008 I reserved my decision.
At the end of May 2008 Mr R started full time work as a tradesman at C Business. This is the first employment opportunity afforded to him from the time he actively started looking in 2006. Not long afterwards the children told the father that Mr R was working.
On 3 June 2008 the father’s solicitors wrote to the mother’s solicitors in which they sought information about her partner’s employment. No response was received to the letter.
On 12 June 2008 the father’s solicitors wrote a further letter to the mother’s solicitors in which they repeated their request for information about her partner’s employment. By letter dated 18 June 2008 the mother’s solicitors responded that they were yet to receive her instructions. When the mother’s solicitors provided no further information the father’s solicitors wrote to them on 24 June 2008 and again on 30 June 2008.
By letter dated 1 July 2008 the mother’s solicitors replied to the above correspondence in the following terms:
We refer to recent correspondence. We are instructed that there has been no changes in circumstances which is relevant.
If you choose to re-list the matter it will be at your risk in relation to the question of costs.
The father’s solicitors wrote to the mother’s solicitors again on 2 July 2008 in which they restated their request for information. No response was received to this letter.
On 18 July 2008 the father filed an Application in a Case and an affidavit sworn 17 July 2008. The father sought leave to reopen the proceedings so as to issue subpoena for the production of documents and directions that the mother provide information concerning her and Mr R’s employment.
The father’s Application in a Case came before me on 30 July 2008 on which occasion both parties lawyers appeared by telephone. That day I made the following orders and directions:
1.     That the Applicant Father has leave to issue subpoena for the production of documents to:
1.1[C Business] at [M];
1.2[Mr R] and the Mother, [Ms Balsam], for their bank records from 17 January 2008 to date.
2.     I direct that no later than 4.00 pm on 6 August 2008, the Respondent provide in writing to the Applicant’s solicitors particulars of the following:
2.1all current, full time or part time employment of [Mr R] and herself; and
2.2all employment, full time or part time of [Mr R] and herself from 17 January 2008 to date.
3.     That the subpoena referred to in order 1 above are to be made returnable before at 9.30 am on 19 August 2008.
4.That this matter is listed before me in Sydney at 10.00 am on 22 August 2008.
On 19 August 2008 the father’s solicitor appeared and there was no appearance by or on behalf of the mother. That day I made the following orders and directions:
1. I give leave to inspect documents produced under subpoena by the mother and [Mr R].
2. I adjourn the subpoena to [C Company] to 10.00 am Friday 22 August 2008.
The matter came before me on 22 August 2008. The father’s solicitor appeared and there was no appearance by or on the mother’s behalf. As mentioned above the mother’s solicitor was present when the matter was listed for further hearing on this day. That day I made the following orders and directions:
1.     I give Applicant Father leave to re-open his case for the purpose of tendering documents produced under subpoena by the Respondent Mother, being documents marked Exhibit “P”, Exhibit “Q” and Exhibit “R”.
2.     That further consideration of this matter is adjourned to 10.00 am on 1 September 2008.
3.     I give the Applicant Father leave to issue subpoena for production of documents to [F] Real Estate with service to be effected by facsimile transmission no later than 4.00 pm on 25 August 2008, to be made returnable before me at 10.00 am on 1 September 2008.
4.     The Court notes that on 1 September 2008 it will conclude the Applicant’s application to re-open including taking any final submissions.
5.     The Court notes that when there was no appearance by or on behalf of the Respondent Wife (sic) it contacted her solicitors who advised the solicitor with the conduct of the matter was in Sydney. The Court’s attempts to contact the solicitor on his mobile were unsuccessful.
On 1 September 2008 the proceedings came before me. The father’s solicitor appeared and the mother’s solicitor appeared by telephone. That day I made the following orders and directions:
1.     I give leave to the parties and their legal representatives to inspect documents produced under subpoena by [F] Real Estate.
2.     I grant the Mother’s application for an adjournment so as to make an application for leave to reopen.
3.     That by 4.00 pm by 15 September 2008 the Mother file and serve any application for leave to reopen and affidavit in support, including the evidence which she seeks to adduce.
4.     That the Mother’s application is listed for hearing before me at 10.00 am on 1 October 2008.
5.     In the event the Father seeks to file material in reply, such material is to be filed and served by 4.00 pm on 22 September 2008.
6.     That within 14 days Elizabeth Fleming and Associates pay the Father’s costs of today on an indemnity basis in the sum of $1,700.00.
On 24 September 2008 the mother filed an Application in a Case and an affidavit she swore on 18 September 2008. In her application, the mother seeks the following orders:
1. That the Respondent have leave to reopen her case and adduce evidence by way of affidavit.
Note that this Application is in response to the steps undertaken on behalf of the Applicant to reopen his case to adduce evidence.
2. That the Applicant pay the costs of the Respondent.
From the mother’s affidavit sworn on 18 September 2008 the father learned that the mother had commenced taking W to see Ms A who is a counsellor. Although the mother had informed the father earlier that month that W was upset and crying a lot, she withheld from him that W was often saying “I just want to die”, had been hitting himself in the head and scratching his arms in distress. W commenced counselling with Ms A in September 2008.
On 29 September 2008 the father filed an affidavit he swore on 26 September 2008.
The proceedings came before me on 1 October 2008. This was to be the hearing of the mother’s proposed application to re-open her case and, if leave was given, to finalise the hearing as well as to afford the mother a further opportunity to make submissions in relation to the evidence the father introduced on 22 August 2008. The father’s submissions on the evidence he introduced on reopening were taken on 1 September 2008. Upon completion of the father’s submissions the mother’s solicitors said they were unable to meet the submissions and applied for and were granted an adjournment, albeit subject to a costs order against the mother’s solicitor.
On 1 October 2008 the father’s solicitor and the mother’s counsel appeared. Although the matter was listed for hearing the parties were not present. On this occasion the mother made an oral application that the proceedings be remitted for rehearing before another judge, or more correctly that this hearing be aborted and that I disqualify myself from any rehearing.
The mother complained that she had been directed to provide the father’s solicitors with written advice of her and Mr R’s employment which, it was submitted, was tantamount to directing her to file an affidavit and impugned her credit. The directions are easily understood and do not support either proposition. Complaint was made that on 1 September 2008 the mother was directed to file an affidavit. As the orders demonstrate the Court granted the mother’s application that she have leave to file an application for leave to re-open and an affidavit in support. In circumstances where the mother was represented and the Court did no more than permit her to take a step which she wished to take, this cannot logically be categorised as being procedurally unfair to her.
The mother was concerned that on her application for leave to adduce further evidence she would be limited to evidence of the type the father previously gave. Order 3 made 1 September 2008 contained no such limitation and there appeared to be no sound basis for her complaint.
Aspects of the submissions addressed the consequence of the mother being refused leave to re-open. The father did not file a Response to the mother’s Application in a Case in which he opposed her being given leave to re-open. When called upon to indicate his position in relation to it, as one would have anticipated given the absence of a Response, he consented to orders being made in the terms she sought. As was anticipated by the orders of 1 September 2008, both parties filed further affidavits. The mother’s submission that she would be subjected to cross-examination but the father somehow avoid it were thus surprising. In these circumstances I did not accept the mother’s contention that she had been treated in a “grossly procedurally unfair” fashion by the manner in which I dealt with the parties’ applications for leave to re-open. While it would have been preferable, and quicker, had the mother made her application to re-open upon learning of the father’s similar application, both parties were afforded an equal opportunity to present and test relevant evidence and neither was unfairly treated.
Counsel for the mother submitted that the fresh evidence called by the father had the potential for a significant impact upon findings as to credit. It was the mother’s case that in these proceedings findings as to credit were important, not only for determining disputed issues of fact, but also for the determination of parental attitudes and motivation. A period of over eight months since judgment was initially reserved was submitted as likely to have a fundamental impact upon findings as to credit and findings of fact that are influenced by findings as to credit. In this regard reference was made to M and M (2006) FamCA 868, and also to CSR v Della Maddalena (2006) 224 ALR 1 which is a case where the High Court, having determined that an appeal would be allowed, remitted the matter for rehearing before a judge other than the trial judge. Part of their Honours’ rationale for taking this course on remitter related to concerns about the potential unreliability of the trial judge’s conclusions about facts in circumstances where it had been eight months between trial and judgment. As this case potentially also involved fresh findings of fact and credit, the mother submitted it was necessary that those findings be made in the context of a fresh hearing, that is, that the evidence of the last eight months needed to be considered by a judge who would not “be influenced by earlier proceedings and findings that whilst they were important eight months ago, are no longer of such importance because of subsequent events.”
Counsel expanded on the submissions, particularly in terms of the length of the further hearing and the mothers concern that somehow the fact that Mr R had obtained paid employment afforded the father an unfair opportunity to impugn Mr R’s and possibly also the mother’s credit. As to the later the father made no credit challenge based upon Mr R securing employment, the father’s point being this was merely a relevant change in the mother’s circumstance which required consideration. The mother submitted that the hearing could be protracted as the parties may require an updated Family Report. Both parties were given the opportunity to apply for an order that the Family Report be updated which offer they declined. As I said at the time, given the limited nature of the further evidence, it would have been surprising if more than one further day was required. In any event, one day was allocated and the hearing was concluded within the allocated time.
An obvious point of difference between the cases cited above and the circumstances of this case is that here, after judgment was reserved, both parties sought and were given leave to re-open. This case was continuing part-heard. If subsequent events put the earlier evidence in a different light both parties were afforded the opportunity to make further submissions concerning the impact of the changes, and if deemed appropriate, to abandon earlier contentions. It is commonplace that evidence adduced on reopening may lead a party to assert new or abandon previous contentions as to matters of fact or credit, in other words submissions as to facts and credit put into current context. The point being these matters could be taken into account and addressed in a procedurally fair manner.
During oral submissions the mother’s counsel referred to Johnson v Johnson (No 3) (2000) FLC 93-041 as authority for the principles to be applied in her disqualification application. Counsel referred to the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ where their Honours, at para 11, held:
It has been established by a series of decisions in this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) was whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
I respectfully agree that these are the applicable principles. However, with respect to the submissions, there is nothing to which I have been taken which would enable me to properly conclude that a “fair minded lay observer” might consider the matters referred to demonstrate an appearance of either actual or apprehended bias.
Accordingly, on 1 October 2008 I made the following orders and directions:
1.     I refuse the Mother’s application that I disqualify myself.
2.     By consent I grant the Mother’s application that she have leave to re-open her case.
3.     The matter shall be listed for further hearing before me at 10.00 am on 28 October 2008 at the Parramatta Registry of the Family Court.
4.     I grant leave to the Father’s solicitor to file in court an affidavit sworn by Ms [N].
5.     Leave is granted to the Father to issue subpoena for the production of documents to [F] Real Estate, such subpoena is limited to material occurring after 17 January 2008.
6.     The Mother is to file and serve any further affidavits upon which she relies by 4pm on Friday 10 October 2008.
7.     The Father is to file and serve any further affidavits upon which he relies by 4.00 pm on Friday 10 October 2008.
8.     No further affidavits shall be filed in these proceedings after 4.00 pm on Friday 10 October 2008 without my prior leave.
9.     The Court notes that the Mother proposes she will file a further affidavit from herself and Mr [R].
10.    The Court notes that the Father proposes he will file a further affidavit from Ms [A].
11.    The Court notes neither party seeks an update of the Family Report.
12.    Reasons for Order 1 herein will be given in my final judgment.
Having refused the disqualification application and granted the mother’s application to re-open the Court was in the position to finalise the matter that day. Neither party sought to and, on the mother’s application, the hearing was adjourned to 28 October 2008.
In early October 2008, without first raising the possibility with the mother, the father contacted W’s counsellor to make an appointment for W to see her when he was next in the father’s care. Ms A informed the father that the mother had advised her she would not be continuing W’s counselling. The father then made an appointment for W to see Ms A on 22 October 2008 of which he then informed the mother.
The children were due to spend time with the father for two nights commencing 21 October 2008. The mother withheld the children because W was ill. The effect of this was that the father was unable to take W to see Ms A. Although in one sense the timing was unfortunate, W was genuinely ill with vomiting and diarrhoea. The mother appropriately kept him home from school for four days. W attended a doctor who certified to his ill health[3] and provided advice to the mother concerning the child’s care.
[3] Exhibit “T”
On 28 October 2008 the hearing continued. Each of the parties were cross-examined. Mr R was available for cross-examination on his affidavit affirmed 9 October 2008 or matters arising subsequent to 17 January 2008. He was not cross-examined and I accept his evidence contained in his affidavit affirmed 9 October 2008.

The fathers circumstances and proposals

The father lives with his partner Ms E and their young daughter L at M Street. Until the parties separated, this was their family home. The home is a small three bedroom cottage with front and rear yard. The father carries a mortgage, the balance due being approximately $120,000 to $125,000 for which he pays repayments of $170 per week. The house is fully furnished. In addition to the household contents, the father has savings of approximately $500, owns a horse and an Isuzu truck worth about $5,000.
The father works as an apprentice tradesman, which apprenticeship he hopes to complete in approximately two years or sooner if his recent application to become a builder is successful. Presently he earns approximately $20,000 per annum gross and anticipates that by the time he qualifies as a tradesman his gross annual income will be in the vicinity of $50,000 to $55,000. Until recently, averaged out, the father paid $7 per week child support. In April 2008 the father’s child support was reassessed and increased to $2,204 per annum or $42.24 per week. The first payment of this higher rate of child support was made shortly before the October 2008 hearing. In addition, the father meets the children’s expenses for Little Athletics and such other after school activities in which he enrols them. Combined this averages an additional $30 per week.
The father works on various building sites in the M area. Usually he works a 35 hour week between Monday and Friday, finishing most days between 3.00 pm and 3.30 pm. His travel is somewhere between 10 and 30 minutes each way. On most days he is home by 4.00 pm or at the latest 4.30 pm. This suggests the father usually leaves home between 7.00 am and 7.30 am. The father rarely works on weekends and when he does he tries to ensure this occurs on weekends the children are in the mother’s care. Because of the father’s work schedule his partner usually collects, and I infer delivers, the children to school. The father usually collects the children from school on those Friday afternoons when they are in his care.
Ms E was born in 1979. Until shortly before L was born, she worked with livestock and as a shop assistant. Presently Ms E works between two and six hours per week at a shop, with her hours coinciding with L’s sleeping. Ms E’s main income is family tax benefits, for which she receives $226 per fortnight. She has $3,000 savings and owns a Nissan car for which she paid $32,000 three years ago. Ms E has a $24,000 personal loan borrowed for the purchase of the Nissan which she repays from her income.
Ms E has not married and L is her only child.
Ms E’s parents live in the M area and she sees them fortnightly. On occasions when she and the father have been unable to care for the children because of work commitments, Ms E’s parents have helped out by, for example, collecting the children from school and minding them until either Ms E or the father arrives home. Although it has not always been the case the children now have a comfortable relationship with Ms E’s parents. Ms E and the mother barely know each other.
The father’s parents live in Canberra, which is where he was raised. About each four or five weeks the father’s parents visit him and the children in M, or he takes the children to Canberra for Little Athletics meetings during which visits the children see their paternal grandparents. On special occasions such as Pony Club events, presentation days and important soccer games, the father’s parents attend. The children stayed with the father’s parents for one week during the Easter 2006 school holidays, for four days in the October 2006 holidays and at a large family Christmas gathering during the Christmas 2006 holidays at which the father was also present. The father’s parents pay the children’s private school fees. In 2006 they paid $480 per term and in 2007 $530 per term. Once the children reach high school, the paternal grandmother explained that she and her husband regard payment of the children’s school fees as the father’s responsibility.

The paternal grandmother was complimentary of the mother’s previously reasonably flexible relationship with the paternal grandparents prior to these proceedings and considered that until February 2007 she had promoted good relationships for the children with them. The paternal grandmother has never had any concerns about the mother’s care of the children. The paternal grandmother was clearly committed to the children and has endeavoured to ensure she had good relationships with them. She and the paternal grandfather have been successful in this regard.
Mainly because of the strength of the father’s and Ms E’s ties to M, even if the children move to Queensland he would not. On this no criticism could fairly be made of the father’s stance.

The mother’s circumstances and proposals

The mother lives with the children and her fiancé, Mr R at M. This is a cottage owned by the mother’s mother for which the mother pays $210 per week rent and is where the mother and children lived for a short time following her return from Queensland in February 2007. Usually the cottage is let for $280 per week. Because of the mother’s accommodation difficulties the mother’s mother has agreed she can live there for a shortish period at a reduced rental.
Before that the mother lived in a three bedroom rented flat at O for which she paid $190 per week. The mother and children lived at this address from 10 August 2007 until shortly before the resumed hearing. The mother vacated the O property because of its general disrepair. There was considerable water damage and the bathroom was unusable. Although in her affidavit the mother said the agent told her she had to move out, it was she who terminated her week to week tenancy.
Until January 2007, the mother’s father, the maternal grandfather, to whom she and the children are very close, lived at W. W is about one to one and a half hours drive from M. Each weekend the mother’s father came to M where, unless the children were with the father, he spent time with her and the children. When the maternal grandfather’s work in Victoria is finished he plans to move to be close to the mother, the children and his brother.
Whilst the parties cohabitated and subsequently, the maternal grandfather provided practical and/or financial support to both. Before and after the parties separated he assisted the father obtain employment. The maternal grandfather denied the father’s evidence that he had been responsible for cancellation of building referral work. Although I accept that the father’s referrals did reduce for a few weeks in early 2007 I was not persuaded that on this issue the maternal grandfather’s evidence should be rejected. Regrettably the father and maternal grandfather’s previously good relationship is one of the casualties of the parties dispute.
In addition to the house which the mother lived in after the parties separated, the maternal grandfather owns a second V Street property as well as a house in W. Presently, he lives and works in Victoria. The mother’s brother owns a house at M, which she rented for a short time after she moved out of her father’s property. The mother’s brother returned to M to live in early 2007. He resides in the home he allowed the mother to occupy and unless he vacated the home, which is not suggested as being likely, it is not available to her.
The mother’s mother, the maternal grandmother, lives with her husband on a 250 acre property out of M. There are two homes on the property, the main house which the mother’s mother and her husband occupy, and the cottage in which the mother presently resides. The mother’s mother and her husband have an 11 year old son, C. While the mother and the children lived at O she and the children usually saw her mother and C weekly and from time to time, C stayed overnight with them. Until the latter part of 2007, the mother worked part-time in her mother’s store for which she earned $112 per week. In late 2007 the mother’s mother sold the store which is the reason the mother stopped working there. Although the mother’s mother still owns the commercial premises from which the store traded, she is subject to a three year 50 kilometre restraint of trade condition. This means that the mother’s mother is unable to establish a like business within 50 kilometres of M until late 2010. For the foreseeable future, the mother’s mother is unlikely to re-establish a like business and the prospect of the mother finding employment with her mother is remote.
Presently the mother does not have paid employment and it is part of her case that her prospects of future paid employment in M or the adjacent area are limited, if they exist at all. The mother was unfairly criticised for not having recently pursued paid employment. The mother was aware of the lack of employment opportunities available in her local area. Merely because Ms E has a few hours work each week in a shop does not mean there are similar positions available to the mother. The mother is pregnant, has primary responsibility for the two children and is awaiting the outcome of these proceedings. In these circumstances no criticism should have been or is made of the mother’s decision not to pursue further employment opportunities.
If the mother moved to Queensland she believed she would be able to find casual work. Her father is willing to set her up in a small business in Queensland. He had arranged a contract for her to sell products in that area from which the mother believed she would earn about $250 per week. That contract was lost when the mother was required to return the children. While these are worthy ambitions it cannot be ignored that the mother has no formal qualifications. She has experience from working with her mother and the father spoke positively of her artistic ability. She also has shop front experience. While these factors reflect positively on the mother’s work ethic, the evidence on this issue does not enable me to conclude that the mother is likely to establish a financially viable business in Queensland, or find work of a different type to that which might become available to her around M.
When the mother was working part-time for her mother and until both children were at school, her total weekly income was $609.12. This was made up of approximately $490 per week from Centrelink, comprising part pension and family tax benefit, $7 child support and $112 wages. The mother did not actually receive the $112 wages from her mother, with those funds by agreement retained by the maternal grandmother as repayment of a loan advanced to the mother for the purchase of a car. Whilst renting from her father her total weekly expenses were $552. These expenses provided at best a rudimentary standard of living. Once the maternal grandmother closed her business, the mother lost her part-time income and her Centrelink benefits reduced slightly after K started school. Her total income fell to $490 per week, and excluding legal expenses, her outgoings increased to $637 per week. Her increased expenses related to higher rent and medical costs. On this basis the mother and children’s essential needs were often unmet and they were living in borderline poverty.
When Mr R moved to M he resigned from his Queensland employer. Until six months after he resigned he was ineligible for Centrelink benefits. During the period between Mr R’s resignation and when he started work in May 2008 he and the mother were reliant upon her Centrelink benefits, his savings and credit to meet their day to day expenses. At some stage Mr R’s mortgage was substantially off set by rental income. When Mr R started working the mother became ineligible for Centrelink benefits other than Family Tax Benefits. She now receives $190 per week Family Tax Benefit.
Mr R is a tradesman and worked as a machinist. In this capacity he earned approximately $45,000 per annum, perhaps also plus a car and had secure employment. Although he had resigned, he remained in contact with his former employer and his former position remains available to him. Since 2006 Mr R had been in regular contact with employment agencies and engineering companies in the M region. From these enquiries he understood that there were no appropriate programming or machining companies in the M area. Wesley Uniting Employment advised that there have been no vacancies in the programming and machining field within the 12 months preceding 9 May 2007.[4] The totality of the evidence on this point meant that since about May 2006 there was no work available in Mr R’s field of expertise in the M area. Future work in this field is highly unlikely in the M area.
[4] Exhibit “M”
Mr R does not have other trade qualifications. At all times since he moved to M he was willing to accept whatever work he was offered. The position he commenced in May 2008 was his first job offer. This is a contract position with a nominal expiry date of 31 December 2009. Presently Mr R is on a six months trial. He is paid a base salary of $40,000 with annual leave and allowances. This averaged out to $769.23 gross each week. From this he pays $122 taxation. Recently he had been working a 45 hour week and his take home pay increased to $668 per week. This is the amount which he and the mother anticipate he will continue to earn.
Mr R owns a home on the Sunshine coast worth between $250,000 and $280,000, subject to a $160,000 mortgage. Mr R owns shares worth approximately $15,500 and has about $10,000 in superannuation. In January 2008 he had a $4,000 credit card debt which had risen to $5,700. He sold his car when he moved to M. He had rented his house and converted the mortgage to an interest only loan. After payment of the rent onto the mortgage there remains a weekly shortfall of $86 which Mr R meets from his wages.
Excluding Mr R’s rental income and outgoings, he and the mother’s average weekly net income is approximately $900. This is made up of his wages ($668), the mother’s family tax benefit ($190) and $42.50 child support the mother receives from the father. From this their average weekly expenses comprise $210 rent, approximately $120 fuel, $120 to $150 food, $40 car registration and associated costs, $50 utilities and telephone and $20 medical expenses or between $560 and $590. Each week they have between $340 and $370 to meet other necessary expenses. Once they move out of the maternal grandmother’s cottage their housing costs will increase by at least $50 per week. The father challenged this contention and said that if the mother rented a two bedroom flat, of the type she rented at O, her rental would be less. While this is probably correct the father’s attitude towards the mother’s circumstances, reflected in this evidence did him no credit. Just as is it reasonable that the father and his family live in a small three bedroom cottage, it is reasonable that the mother, her partner and the three children have adequate accommodation. Whether living in her mother’s cottage or in the private rental market, unless Mr R sells his own home and uses the sale proceeds to buy another home in the M area, the mother and his financial situation is obviously difficult. It would still be difficult if Mr R sold his home but it would potentially be more stable and the pattern of frequent changes in accommodation which the mother has experienced could be significantly alleviated.
These findings do not support the mother’s claim that if she relocated her financial circumstances would be materially improved.
Mr R has never married and does not have children. He has family in Queensland and a well established social network. These connections would be particularly available to the mother and children if they moved there.
The mother’s primary proposal centres upon permission that she is able to reside with the children in Queensland. The orders she proposed[5] are set out below:
[5] Exhibit “O”
1.      That all existing parenting and restraining orders be, and the same are hereby discharged.
2.      That [W] born […] March 2000 and [K] born […] July 2001 (“the children’) live with the mother.
3.      That the mother have sole parental responsibility for the children.
4.      That the mother be permitted to relocate to Queensland with the children.
5.      That the children spend time with the father as follows:
(a)commencing the second day of the Christmas school holiday vacation and concluding 7 days prior to the commencement of the school year;
(b)commencing the second day of the school holidays at the end of the first, second and third school terms and concluding 3 days before the resumption of school;
(c)for such further alternate times as the parties may agree in writing.
6.      That the father collect the children from the mother or cause the children to be collected at the commencement of the periods referred to in order 5 above and deliver the children to the mother, or cause the children to be delivered to the mother, at the conclusion of the periods referred to in order 5 above.
7.      That the mother permit the children to communicate with the father by mail, telephone or other electronic means (if available) whilst the children are in her care.
8.      That the father permit the children to communicate with the mother by mail, telephone or other electronic means (if available) whilst the children are in his care.
9.      That each party have liberty to apply in relation to the implementation of these orders on 14 days notice.
In the event the mother was not permitted to relocate she essentially proposed that the existing parenting arrangements continue. This involves the children spending alternate weekends, from after school Friday until Sunday evening and from after school Tuesday until the commencement of school Thursday each second week with the father. In addition, the mother proposed that the children spend one half of each school holidays with the father. She opposed being restricted to living within 30 minutes of M and said she should be free to pursue adequate housing and employment in an area of her choosing, albeit sufficiently close to comply with order in accordance with her alternative proposal.
The mother said she was unable to communicate with the father and that for many years she had been afraid of him. She said the father had been physically abusive of her and verbally intimidating. While she had always done her best to in effect maintain peaceful relations with him for the children’s sake, she submitted that the father had been motivated by an apparent need to control her and had routinely demonstrated little insight into the children’s needs. The mother is devastated by the father’s change of heart concerning her desire to move to Queensland and whatever ability she previously had to communicate with him she has jettisoned.

The Family Report

Because of the issues raised in the proceedings Steele J ordered a Family Report. The parties, their partners, the maternal grandmother and the children were interviewed by Ms MC, a Family Consultant attached to the Family Court in Sydney on 2 August 2007. In her report dated 3 September 2007[6] Ms MC made the following recommendations:
46.    It is recommended that the parents share equal parental responsibility for their children.
47.    It is recommended that the children remaining living within 30 minutes car travel of [M].
48.    It is recommended that the children live with their mother and continue to spend time with the father in accordance with orders made 1 June 2007, except that the time that the children spend with their father on the alternate weekend be extended until the commencement of school on Monday morning.
49.    It is recommended that the children spend half the school holidays with each parent.
50.    It is recommended that changeovers take place at the close and commencement of school during school term.
51.    It is recommended that the parents seek joint and possibly individual counselling to assist them in resolving issues related to their past and to their parenting relationship and to assist them with their communication.
[6] Exhibit “A”
Neither party sought to cross examine Ms MC. Although the father and Ms E put a different gloss on the events which occurred during Ms MC’s observations of their interaction with the children there was no major challenge to the accuracy of the factual matters Ms MC reported upon. Where the parties differed with Ms MC centred upon aspects of her evaluation of the facts and the extent to which her opinion was supported by the matters to which she referred.
Central to Ms MC’s recommendation against the children being allowed to move to Queensland was Ms MC’s conclusion concerning the nature of the children’s relationships with the father and Ms E and the effect on the children if their circumstances were changed in the manner the mother proposed. Ms MC said that the children do not have a particularly warm physical relationship with either the father or Ms E and that their attachment to the mother was stronger than it was to the father. Whilst it was clear to her that the children value the father’s role in their lives, his relationship with them was focused on the children’s sporting and educational activities. If the children moved to Queensland, she was concerned that this key aspect of the children’s relationship with the father would be lost and their relationship with him diminished. Combined with the loss of opportunity of a frequent and intimate relationship with their half-sister L, Ms MC opined that moving so far away was contraindicated. Ms MC referred to the obvious consequences of changing homes, schools, friendships in particular as requiring that the children adapt to significant components of their lives.
Ms MC considered that the mother’s relationship with Mr R was largely untested, and she was understandably uncertain about its future. However subsequent events have demonstrated Mr R’s strong commitment to his relationship with the mother and vice versa. Having listened to the mother and Mr R discuss their relationship I am more confident than Ms MC was about its longevity.
Ms MC commented unfavourably on the level of conflict which had developed between the parties. This was one of the pivotal factors which underpinned her recommendation against the children spending equal time with their parents and that to the greatest extent possible, changeover occurred in a manner which limited the prospect of hostile interaction. She was clearly influenced by the strength of the children’s attachment to the mother and concerned that major changes should not be imposed upon the children unless the benefits of doing unambiguously outweighed the detriments she commented upon.

General Law in parenting proceedings

Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exists reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.

Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective points the way to an optimum outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.
1.     The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
3.     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent                 with the child’s age and developmental level and the                  child’s views; and
(ii)to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance.
Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG. Ultimately the weight attached to each factor is a matter for the Court’s discretion.
The sequence of determining parenting orders is important. If the court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA). In the context of s 65DAA 'consider' means a consideration tending to a result, or to consider positively the making of an order. Goode and Goode (2006) FLC 93-286. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:
(1)    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
(2)    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
(3)    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.
The child’s best interests remain the overriding consideration.
Where neither concept delivers an outcome which promotes the child’s best interests the Court then determines the parenting applications as outlined above. Similarly where the Court has decided against maintaining equal shared parental responsibility s 65DAA considerations do not apply.

Application of the general law in parenting cases to relocation cases

Prior to the amendments to Part VII of the Family Law Act 1975 introduced on 1 July 2006 by the Family Law (Shared Parental Responsibility) Act 2005 the approach to the determination of relocation cases was well settled. Having completed an historical overview of the cases the Full Court helpfully summarised the cases collected there in A & A: Relocation Approach (2000) FLC 93-035. Regarding the applicable law the Full Court held[7]:
[7] at paragraph 108 from 87,551 to 87,553
[108] It is convenient to bring together in a summary form the most significant points we have made above. Courts of first instance faced with cases involving a proposal to relocate the residence of a child should adopt the following guidance and should be able to expect that cases are presented in a way which addresses the following matters to the extent that they arise:
In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:
·The welfare or best interests of the child, as the case may be under the relevant legislation, remains the paramount consideration but it is not the sole consideration.
·A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances.
·It is necessary for a court to evaluate each of the proposals advanced by the parties.
·A court cannot proceed to determine the issues in a way, which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be “permitted”.
·The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.
·It is necessary to follow the legislative directions espoused in s 60B and s 68F of the Family Law Act 1975 (Cth). The wording of s 68F(2) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection.
·The object and principles of s 60B provide guidance to a court's obligation to consider the matters in s 68F(2) that arise in the context of the particular case.
·It is to be expected that reasons for decision will display three stages of analysis and:
(1)      A court will identify the relevant competing proposals;
(2)For each relevant s 68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the court thinks fit having regard to s 60B;
·As one, but only one, of the matters considered under s 68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 (supra) is no longer an accurate statement of the law.
·The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
·Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.
(3).On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.
·   The process of evaluating the proposals must have regard to the following issues:
(a)   None of the parties bears an onus:
·   In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.
(b)The importance of a party's right to freedom of movement:
· In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s 92 of the Constitution, where applicable.
·   In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.
(c)Matters of weight should be explained:
· In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss 60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.
·    In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.
Following A v A the High Court in U & U (2002) FLC 93-112 again considered a relocation case. Having referred to the requirement outlined in A v A that a trial judge must evaluate the parties proposals Gummow and Callinan JJ (with whom Gleeson CJ, McHugh and Hayne JJ agreed) held:
We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. Whether the court is obliged, or will be able in every case to treat each of the three steps as discrete and in the suggested order may be another question. But the court is not, on any view, bound by the proposals of the parties. The court has to look to the matters stated in s 68F and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child’s best interests.
The Full Court discussed the ramifications of U & U in Bolitho and Cohen (2005) FLC 93-224 in which case their Honours [at par 92] held that:
U & U has ameliorated the somewhat rigid and/or formulaic approach set out in A v A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of the competing proposals, having regard to relevant s 68(F)(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.
Between Bolitho and Cohen and the next significant Full Court decision concerning relocation cases Part VII was amended in the manner discussed earlier. Counsel referred to Taylor and Barker (2007) FLC 93-345 as the relevant authority for the determination of relocation cases subsequent to the 2006 Part VII amendments. In Taylor and Barker their Honours in the majority (Bryant CJ and Finn J) referred to the decision in Goode & Goode (supra) where the Full Court, when discussing the approach to the determination of parenting cases where the presumption of equal shared parental responsibility applies, held at par 65:
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
…
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child's best interests, then the issue is at large and to be determined in accordance with the child's best interests.
9. The child's best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the court is at large to consider what arrangements will best promote the child's best interests, including, if the court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child's best interests remain the overriding consideration.
In the context of discussion of the appellant’s assertion that trial judge had erred in dealing with the issue of relocation and the reasons for it as a separate and determinative issue instead of following the course referred to in Goode & Goode (supra) , the majority held there was no substance to this ground of appeal. They held at paragraph 60 of the judgment:
In our view, his Honour dealt with the relocation proposed in the context of his consideration of s 60CC and s 65DAA, at least in so far as it was possible to do so. It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, as far as possible, in the context of the making of the necessary findings in relation to the relevant s 60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s 65DAA.

Section 60CC(2) considerations

Section 60CC(2) comprises the primary considerations, which subject to subsection (5) the Court must consider when determining the child’s best interests. Section 60CC(2)(a) concerns the benefit to the children of having a meaningful relationship with both of their parents. These words do not define the amount of time a child would spend with parents and are qualitative rather than quantitative. The parties agree the children enjoy warm and loving relationships with the mother of which the children should continue to reap the benefits. The father’s proposal however would have the children’s time with the mother gradually but ultimately significantly reduced during school term. In his view the children would adjust to this reduction relatively easily. With respect to the father his focus was substantially upon the potential benefits of the children increasing the amount of time they spend with him and paid little attention to the effect of depriving the children of the relationship benefits, plus the benefits to the children overall, of living primarily with the person to whom they are most strongly attached. The point being that while increasing the children’s time with the father would have beneficial consequences for the children, for example educationally, in their extra curricular activities and create the opportunity for stronger relationships with he, Ms E and L in particular, there are detrimental effects the consequences of which cannot be ignored. These are matters to which I return.
The nature of the children’s relationship with the father is contentious and discussed in detail later in these reasons. It is the mother’s case that orders consistent with her primary proposal would ensure the children continue to have such benefits from their relationships with the father which he is capable of delivering. The mother’s oral evidence concerning the father’s relationship with the children was disturbing and revealed she has little appreciation of the benefits to the children of maintaining meaningful relationships with him. For example, during cross-examination she struggled to concede the simple and obvious proposition that the father loves the children. There was a troubling theme of her oral testimony which made it plain that her years of support and regard for these relationships have been abandoned. Her change of attitude coincides with the father’s commencement of these proceedings. In actuality this is no coincidence with there being a direct causal link between the two. Absent the mother’s positive ongoing support for the children’s relationship with the father during the long gaps involved in her primary proposal the children’s relationships with the father are highly likely to be seriously compromised. Their relationships would be deprived of the enrichment achieved through the father’s significant involvement in the school community, educationally, day to day lives and extra-curricular activities. In important respects the father’s role in many of these aspects of the children’s lives has been more significant than the mother’s. His understanding of the importance of the benefits of their education, school community and extra-curricular activities in the children’s lives was more impressive than hers.

Since the children were quite young, the routine of their lives involved weekly overnight stays with the father. Once the children started school, the father took a particular interest in the children’s education, including their homework. First hand he and the children have shared week in week out the rhythm of each other’s lives. Ms MC was concerned that disrupting the father’s regular involvement in these aspects of the children’s lives was likely to have a detrimental effect upon the children’s relationship with him. That is because the children identified strongly with the father’s involvement in these components of their lives. Not only would the children be likely to miss it, but they and the father would need to adjust to their relationships being conducted in a different context. She appeared unconvinced that this could be anticipated to have a successful outcome. These are findings which warrant reasonably significant weight.
The father discussed this issue in a heartfelt manner. He pointed out the reality of his financial circumstances meant that even if the children were with him for the majority of school holidays, he was unlikely to have more than four weeks annual leave. While he would do the best he could to enrich the children’s school holiday times with him, the circumstances would of necessity marginalise him from important aspects of the children’s lives. For example, he could not be involved in the children’s school community or their regular extra curricular activities. The children’s neighbourhood and school friends would be strangers to him and the children would generally be unable to spend time with these friends during school holidays. The benefits the children derive from the father’s involvement with their homework, including assisting with their reading, would be lost. In a similar vein he pointed out that he was more involved with the children’s school than the mother. This is correct and it is clear that the father had ensured he knew how the children were faring at school and implemented the teacher’s advice, for example, about helping the children with their reading and overseeing homework. The mother treated the children’s school as being more the father’s domain and was less aware of how the children were faring than the father has been. So that it is plain I do not accept the mother’s explanation that this occurred because of actions taken by the father.
The mother was confident that the children would adapt to their changed circumstances if living in Queensland. In essence, it was her view that provided the children were not subjected to frequent change and resided primarily with her and Mr R, the children would take the changes involved in her primary proposal in their stride. In some respects I agree. Most children are able to adjust to occasional changes of school, homes and friends. These children have formed friendships at school, sports and their local community. In his school report[8] K is described as being “a friendly and polite class member”. W’s school report[9] speaks of a focussed student who “shows care and concern for his classmates”. These are personal attributes which equip the children to being able to make new friends. There are a number of schools in the Sunshine Coast area, secular as well as Catholic. There are at least as many sports groups and other organised activity groups. The children would to be able to replicate their school friendships and join in activities if they moved to Queensland.
[8] Exhibit “D”
[9] Exhibit “B”
The important component of the children’s lives which would not be replicated if the children moved to Queensland, is the father’s and his family’s intimate involvement. I do not agree with the mother that reducing the father’s, Ms E’s, L’s and the paternal grandparents’ involvement in the children’s lives in the manner the mother proposed would be unlikely to adversely effect the children, or that any adverse effect would be adequately addressed through orders that the children spend the majority of school holidays with the father. As I said earlier I am satisfied the children’s relationship with the father would be seriously diminished. This would add to the children’s emotional burden and as time passes and the full extent of the reality of their changed situation became apparent cause them real sadness. These findings attract significant weight.
If the children move to Queensland their relationships with L would not achieve anything like their potential.
The paternal grandparents attend some of the children’s extra curricular and school events, which no doubt the children enjoy. This would be unlikely to occur if the children lived in Queensland.
The mother would agree that the children spend time with the father at weekends during school term if he was at the Sunshine Coast. The practical reality, however, is that the father does not have the money to avail himself of such an opportunity. If ever it occurred, it would be a poor substitute for the existing arrangements.
Until the maternal grandfather moved to Queensland the amount of time the children have with their maternal relatives would reduce both in frequency and duration. The maternal grandparents and C are important people in the children’s lives and the children would miss them.
The primary advantage of changing the children’s circumstances as the mother proposed is that she would be happier. This would be likely to deliver some positive outcomes for the children in the sense that the mother would not be distracted by the disappointment of living where she does not want to live. Or feel so aggrieved by the father. For the children there would be some relief from the apparent disharmony between the parties. However whether these advantages are sufficient to deliver the outcome which promotes the children’s best interests is another issue.
Subsection (e) concerns the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially effect the child’s right to maintain personal relations and direct contact with both parents on a regular basis. It is trite to say that if the children moved to Queensland the practical difficulty and expense of their spending time with the father would substantially effect their capacity to maintain personal relations and direct contact with him on a regular basis.
Unless the parties drive the 17 hours each way journey between the Sunshine Coast and M, which neither of them could reasonably do, the children would travel by aeroplane. The children have not travelled by aeroplane and for the foreseeable future it would be unreasonable to expect them to travel as unaccompanied minors. Although children younger than these children may do so, the children would benefit from making the journey accompanied on a reasonable number of occasions before they were expected to travel alone. Because they are inexperienced flyers they need the chance to fly a reasonable number of times accompanied by an adult before they could be expected to be comfortable travelling alone.
There is no direct air route between Maroochydore and M. The most direct route would either be Maroochydore to Sydney and, after a change of aeroplane onwards to Canberra or M. The parties agree the preferable course would be a direct flight between Brisbane and Canberra. This means the children would make a journey of approximately one and a half hours by car to and from Brisbane and of approximately two hours each way between M and Canberra. When flying and waiting time is added this is a full days trip.
The mother’s evidence was that by purchasing tickets well in advance airline tickets for travel between Brisbane and Canberra could be purchased for as little as $69 each way. This evidence did not distinguish between peak and non peak periods nor identify times of travel. On the mother’s proposals the children would be travelling during school holidays which it was agreed tend to be classified as peak periods. Early morning or very late evening flights are often the cheapest but given the journey required at each end would be unduly onerous on the children.
Through Counsel, the parties agreed that I could look at the major airline internet sites in order to gain further understanding about these issues. Having done so, it appears that return flights, including taxes, are in the vicinity of $280 to $300. These prices vary depending on advance purchase time frames, peak season variations and sales. Because of the distances to the airports I excluded early morning and late night departures, which were cheaper. Some of the budget airlines do not permit children under 12 years to travel unaccompanied and in some instances airlines charge an additional small fee.
It is the mother’s position that the father should pay for the costs of the children’s travel in lieu of child support. The mother asserted, but did not establish, that the father had undisclosed income. I have made findings concerning the father’s financial position which do not require restatement. Calculated on his current assessment if the father ceased paying child support, he would have $2,204.00 to contribute towards the costs of travel. On the mother’s figures, if the children travelled alone, the costs of tickets would be about $1,100.00 annually. If the father travelled with them the costs double. Using $280 return as a guide, if the children travelled alone the annual costs of tickets increased to about $2,240.00 and again doubled if the father travelled with them. For the foreseeable future, with the children not travelling alone, on the mother’s figures the costs of air travel by a small margin exceed the father’s child support liability.
It would be unsafe to infer that the father would routinely be able to purchase the lowest airfares or that airfares will remain as low as the mother’s figures indefinitely. It is more likely that prices will fluctuate with the outcome being that the costs will on occasion range above the mother’s prices. It is no answer that the father could offset these travel costs by deferring expenditure on school clothes and the children’s extra curricular activities. The point being that these are expenses which need to be met in order for the children to maintain an appropriate standard of living.
Standing back and considering the totality of the evidence concerning the parties financial circumstances, including those which would apply if the mother moved to Queensland, I am not persuaded that the parties can reasonably afford the ongoing costs of travel between M and the Sunshine Coast every school holidays. Or that they can afford the costs of travel without the children ultimately suffering an inappropriately reduced standard of living. While these findings weigh against the mother’s primary proposal they carry materially less weight than those regarding the effect on the children of term long gaps between face to face periods with the father.
While the father’s financial situation will improve if and when he qualifies it seems likely that even then the costs of travel are likely to remain troubling financially. These are findings which warrant modest weight.
Even if costs were not a factor, distance undoubtedly renders direct contact, other than during school holidays, between the children and the father if the children live in Queensland, very difficult. Unless the children missed a day of school on either side of a weekend, they would be unable to visit the father in M. He too would need to take a day off work on either side of the weekend in order to visit the children in Queensland. Because costs is such a restrictive factor there is little further utility in discussion concerning distance as distinct from costs. It is clear that if the children relocated to Queensland with the mother, the cost of spending time with the father, as well as the distances between the parties, would prevent frequent face-to-face contact. It is highly likely that as a consequence the strength of the children’s relationship with the father and the paternal relatives would diminish over time.
Section 60CC(3)(f) concerns the parties’ capacity to provide for the child’s needs. This is an important matter and is one of the pivotal components of the mother’s arguments against the father’s equal time application. I have already made observations about the nature of the parties’ relationships with the children and their parenting capacity which do not require repeating. One of the biggest issues facing these children is the parties’ refusal to communicate on matters concerning them and to protect them from the poor parental relationship. Until these matters are resolved significant aspects of the children’s needs are compromised. This is a situation for which the parties are equally responsible.
Although the father has been significantly involved in the children’s lives he has been unable to establish the same quality of relationship with the children which they have with the mother. The mother is and always has been the children’s primary carer. The children respond positively to the mother’s more emotionally attuned parenting. While the father may acquire a greater appreciation of the children’s emotional needs and thus capacity to fulfil them there is an element of speculation about whether or not the children would cope with less time with their primary carer. In this respect this is not an issue about the father’s parenting capacity but rather whether based on their history the children are equipped to adjust to having their emotional needs substantially addressed by someone other than their primary carer. Having particular regards to Ms MC’s evidence as well as W’s recent distress I have real reservations they would not.
The father was adamant that because the mother left school in Year 9 she lacks the capacity to assist the children educationally to an appropriate level. Even if this was correct, which I do not accept, any educational deficits would be ably offset by Mr R’s assistance. That said the mother needs to make a greater effort to ensure she is aware of the children’s progress at school and, where home support is needed, ensure the children receive it. As the children’s school reports demonstrate the children are doing reasonably well at school and the greater attention to their reading and homework has had positive outcomes.
Section 60CC(3)(g) concerns the maturity, gender, lifestyle and background of the child and parents. There are no other factors, beyond those discussed earlier in this judgment which the section requires to be considered.
Section 60CC(3)(h) does not apply.
Section 60CC(3)(i)-(k) issues have already been addressed and do not require further consideration. However, to put the issue beyond doubt I do not accept that since separation the father has been less than fully involved in the children’s lives. Subject to the two occasions discussed earlier the father has ensured he spent time with the children every week since separation. His commitment to his relationship with the children has been demonstrably substantial and he has genuinely endeavoured to fulfil his parental responsibilities, subject that is, to his unkept promise to provide the children with adequate child support.
Section 60CC(3)(l) requires that the Court considers an order that will be least likely to lead to further proceedings. The father submits that if the mother is able to relocate there is a significant risk she will fail to make the children available during school holidays and thus the potential for contravention proceedings. With respect to the submission on the evidence this inference is unavailable.
As an approach however I will attempt to ensure, to the extent consistent with the children’s best interests, as far as possible the orders minimise the prospects of further proceedings. It would undoubtedly be to the children’s advantage if the parties have orders which identify their obligations and limit the prospect of future litigation.
There is considerable overlap between s 60CC(3) and s 60CC(4) and (4A). To the extent these issues have not already been addressed further findings are set out below.
In the past, there have been instances where each party has taken decisions about the children without consulting the other. However concerning major long term decisions these have generally been discussed and subject to this relocation dispute, usually agreed. For example the parties discussed and agreed upon the style of education the children would receive and their school. They agreed the father would pay, or as it turned out have his parent’s pay, the children’s school fees and provide their school uniforms. The father kept his side of the agreement. The mother failed to adhere to the agreement or meet her obligations to consult with the father when she unilaterally withdrew the children from S School. Although her situation was difficult she was wrong to act in the manner she did.
The mother consulted the father about her desire to relocate with the children in a most appropriate way. Having secured the father’s consent she is entitled to feel aggrieved about the manner in which he exercised his parental authority on this major long term issue. While the father was faced with a terribly difficult decision he knew its significance and the likely effect on the children and the mother of giving his consent only to change his mind. The father was aware of the availability of legal advice, having previously obtained it prior to the parties’ property settlement orders. He could and should have sought legal advice prior to giving his consent and long before 13 February 2007. No criticism could fairly have been made had the father deferred making a decision on this and, having taken advice, withheld his consent. To allow the mother and children to believe for months they could move to Queensland and then obtain exparte orders to stop them warrants the most severe criticism. It is an understatement to describe his actions as irresponsible and immature. They have had catastrophic consequences for the mother financially and emotionally.
Just before W turned 4 he contracted the meningococcal virus. This was life threatening and W was airlifted to Sydney. The mother informed the father who then wanted to come with them in the helicopter. Told space did not permit this the father questioned the mother about who else was going. He also told her he had no money to drive to Sydney. The mother loaned him her car and gave him access to her bank account. The mother criticised the father for failing to remain at Westmead but failed to disclose that once it was apparent she would have to stay in hospital with W, by agreement he returned home to care for K. I agree with the mother that the father’s failure to repay her the $800 he withdrew from her bank account is reprehensible but do not accept that the father failed to appropriately involve himself in this major long term issue. The mother’s actions throughout this incident warrant the highest praise.
The father’s payment of child support was a significant issue. Essentially the mother said the father had demonstrated a willingness to support those of the children’s expenses in which he is interested and had otherwise ignored their financial plight. She wrongly asserted the father paid $3,000 towards the children’s school fees rather than provide them with necessities. The father has not had sufficient income to pay the children’s school fees and it is his parents who have done so. His decision to support the children’s extracurricular activities and provide school uniforms was not inappropriate. By and large, since April 2007, when the mother registered with the Child Support Agency for collection the father has paid child support as assessed. Initially he understated his income, asserting it to be $10,000 per annum but reassessed it at $20,000. Assessing self employed contactors income can be difficult. Here the mother’s evidence did not provide a sufficient evidential foundation to reject the father’s sworn evidence. The effect of this finding is that while I am satisfied the father has paid far less child support than the mother needed I am unable to conclude that the father’s has, by reference to his financial capacity, materially underpaid.

Nonetheless, it is important to acknowledge that the mother has overwhelmingly shouldered the financial burden of supporting the children. Mr R, who has no obligation to do so, now primarily meets the children’s financial needs.

Section 65DAA considerations

The mother sought sole parental responsibility. Simply put she said because the parties were unable to communicate it is essential that she has authority to promptly make major decisions. If she was burdened by the obligations imposed by s 65DAC the mother said the risks that necessary decisions would go unaddressed could seriously compromise the children’s well being, or alternatively result in further litigation. As to the latter, irrespective of whether the mother has sole parental responsibility or it is exercised jointly, the risk of further litigation is the same. This is because if he wished to, the father would be able to challenge the mother’s exercise of her parental authority in a court exercising jurisdiction under the Act. Nor do I accept her argument that a medical emergency may place the subject child in a life threatening situation. Such a situation is adequately addressed by s 65DAC(4).
However, it is beyond doubt that the parties do not communicate effectively and the mother remains most reluctant to do so. The father said he was willing to attend counselling but conceded that the parties’ relationship was worse than it ever has been. While resolution of these proceedings will take one important area of dispute away one party at least will be aggrieved by the result. While I strongly consider the parties would benefit from post separation parenting style education, the reality of the situation is that they are unlikely to directly communicate effectively for a long time. I contemplated ordering them to do so but decided against it. If and when the parties are motivated to improve the situation they can and should do so.
Fortunately there is a sound alternative which alleviates the need for direct communication. I was most impressed by the parties’ partners. Each appeared to be sensible and mature. They have not intruded into the parties disagreements and have behaved impeccably. Although they may not welcome it the partners have the capacity to contribute to this difficult issue and provide an obvious line for sensible communication. Not as decision makers but as conduits.

Conclusion

This was a most difficult case.
However, as must now be apparent, the case made against the mother’s relocation application was strong. Weighing up all the relevant factors, with particular emphasis placed upon the detrimental effect upon the children of only seeing their father and many close relatives during school holidays, I come to the conclusion that it would not be in the children’s best interests to relocate to Queensland.
However, I do not consider it reasonable to restrict the mother to living with the children within thirty minutes drive of M. Provided the mother lives within a distance which enables the children to spend at least substantial and significant time with the father she may live where she chooses. The children would benefit from the mother feeling she was under less scrutiny from the father than she feels living in the same area. Potentially this may mean the children may need to change school. As a guide if the mother moved to O permanently it would be reasonable for the children to change schools. Unless the parties can agree, with the mother having first provided the type of information to the father as she attached to her affidavit, albeit for a different location, on this occasion the mother will have sole responsibility for determining the issue.
Thereafter and notwithstanding the parties’ poor relationship they will have equal shared parental responsibility. Comparatively there will be few major decisions to be taken and it will be the parties’ obligation to find a way to meet their consequential statutory obligations. So that it is clear both parties have a great deal to contribute to these children’s lives, as hands on parents and making major decisions for them.
I am strongly satisfied that even with the parties living within the general vicinity of each other an order diving the children’s time equally between them is not in the children’s best interests. In reaching this conclusion I am particularly influenced by the importance of the children continuing to live with their primary attachment figure and the difference in the nature of the party’s relationships with the children. The changes involved in the father’s equal time application, for the reasons discussed earlier, involve too great a risk to the children’s emotional and psychological well being. It is also important to record that on a day to day basis the practical ramifications of the parties inability to communicate would be very difficult for the children to manage. Unlike major long term issue, practical issues would arise constantly. Readers may be lost or left behind. Homework only half done to name but two. On an equal allocation of the children’s time during school term the prospect would be that for the foreseeable future the children’s lives would be chaotic and the consequential emotional burden quite debilitating.
If the mother failed in her primary proposal she sought to continue the existing orders. These are consistent with ordering that the children have substantial and significant time with the father. This is the style of parenting the children are used to and ensures the father’s ongoing intimate involvement in all aspects of their lives.
Ms MC recommended that the children have an additional night beyond the mother’s alternate proposal. This was to avoid the children being exposed to hostile exchanges between the parties. This has been addressed by Ms E assuming a significant role for changeovers, which arrangement basically works well. In a finely balanced decision, ultimately I perceive the relationship issues to which I have referred tip the balance in favour of maintaining the present time arrangements rather than increase it as Ms MC recommended.
For these reasons I make the orders identified at the start of this judgment. I am satisfied they are in the children’s long term best interests.

I certify that the preceding two hundred and ten (210) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate:

Date: 27 April 2009

[2009] FamCA 1140

27 April 2009

Key Legal Topics

Areas of Law

Family Law