Waite & Waite

[2007] FamCA 1715

FAMILY COURT OF AUSTRALIA

WAITE & WAITE [2007] FamCA 1715

FAMILY LAW – CHILDREN – Consideration of equal shared time – Significant and substantial time – Wife’s application to move with children to a location four hours by car from husband’s home

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286
B & B [2006] FamCA 1207
AMS v AIF (1999) 199 CLR 160
Godfrey & Sanders [2007] FamCA 102

APPLICANT: Mr Waite

RESPONDENT: Ms Waite

FILE NUMBER: MLF 1363 of 2006

DATE DELIVERED: 31 August 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Watt J

HEARING DATES: 3, 11 April, 19 July, 30, 31 July, 1, 2, 3 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R. Hoult

SOLICITOR FOR THE APPLICANT: Armstrong Collins & DeLacy

COUNSEL FOR THE RESPONDENT: Mr D. Mort

SOLICITOR FOR THE RESPONDENT: Fiona R McGregor

Orders

1. All previous parenting orders be and are hereby discharged.

2. The husband and wife have equal shared parental responsibility for making major decisions affecting the care, welfare and development of the children of the marriage B born … December 1999 and G born … May 2001 (“the children”).

3. Save as provided in paragraph 4 hereof, the children live with the wife.

4. The children live with the husband as follows:

   4.1For two weekends out of three commencing on Friday 19 October 2007 and Friday 26 October 2007 from school lunchtime (or noon, whichever first occurs) on Friday until 4.00pm on Sunday (to be extended to 4.00pm on Monday) in the event of a non-school day) with the intent that the husband be able to spend Friday afternoon at the children’s school but if the husband does not intend to attend at the children’s school on any particular Friday, he is to notify the wife by no later than 8.00pm on the preceding Wednesday and on any Friday in respect of which notice is given, the husband’s time shall commence at 5.00pm with the wife delivering the children to the L Tourist Information Centre;

   4.2for school term holidays as follows:

   4.2.1for first term for the first half with changeover to occur on the second Saturday, unless otherwise agreed;

   4.2.2for the whole of the second term unless otherwise agreed between the parties;

   4.2.3for the third term for 10 nights with changeover to occur at 4.00pm on the eleventh day unless otherwise agreed.

   4.3for the first half of the long summer vacation;

   4.4for Christmas from 9.30am on Boxing Day until 4.30pm on 28 December in each year (with the wife to spend time with the children from 4.30pm on Christmas Eve until 9.30am on Boxing Day in each year);

   4.5on Father’s Day for the whole of the weekend as referred to in paragraph 4.1 hereof (with the husband’s time to be suspended for the entire weekend for Mother’s Day);

   4.6as otherwise agreed between the parties from time to time.

5. For the purposes of changeovers pursuant to paragraph 4 hereof:

   5.1    save where changeovers occur at the children’s school, such changeovers otherwise occur at the L Tourist Information Centre, unless otherwise agreed;

   5.2    weekend time shall be suspended during school holiday periods and resume on the second Friday following the resumption of school term.

6. The husband shall be at liberty to communicate with the children or either of them by telephone, webcam, email, letters, cards or gifts on a reasonable basis.

7. The wife be permitted to relocate the children to N in the East Gippsland area from the conclusion of the holiday time to be spent with the husband in accordance with paragraph 4.2.3 of this order.

8. The husband and the wife forthwith do all acts and things necessary and sign all necessary documents to enrol the children at N Primary School for attendance at that school from 8 October 2007.

9. The husband be authorised to request from the Principal of the N Primary School to obtain copies of school reports, newsletters, event notices and application forms for school photographs at his expense, if any.

10.The husband and the wife be at liberty to attend school events, assemblies, presentations, concerts, parent/teacher interviews and sporting and extra-curricular events and competitions ordinarily attended by parents.

11.The husband and the wife each inform the other party of any substantial injury and emergency medical and dental treatment concerning the children or either one of them, whilst they are in their respective care, as soon as practicable.

12.The husband and the wife each keep the other advised of their respective telephone contact numbers and advise the other of any change of landline, email address and/or mobile telephone contact numbers 24 hours prior to any such change.

13.Otherwise all extant applications be otherwise dismissed and removed from the list of cases awaiting final hearing.

14.Pursuant to s.65DA(2) and s.62B, 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.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1363 of 2006

MR WAITE  

Applicant

And

MS WAITE  

Respondent

REASONS FOR JUDGMENT

Introduction

1.By way of introduction, this case concerns parenting issues in relation to B, aged seven and a half at trial, and J aged six at trial.  Their parents are in dispute over how much time the children should spend with each of them and whether the time that they could spend with their father if their mother moves with them to live in the East Gippsland area, where her husband to be resides and farms, would be sufficient to maintain a meaningful relationship with their father and his extended family which they have at present.

2.The children presently spend five nights per fortnight, plus a share of school holidays in the husband's household and the balance with the wife.  The husband lives in the former matrimonial home in Melbourne and the children attend school nearby.  The wife shares her time and the times that the children spend with her between the homes of her mother and the home of her husband-to-be at N in the East Gippsland area.  The distance between the husband's home and the farm at N is about four hours by car, allowing for one long or two shorter rests on the way.  The L Tourist Information Centre is an approximate midpoint in that journey.

3.Before the parties separated in 2005 the wife was engaged full-time in the role of homemaker and parent and the husband worked full-time, as he does now, in engineering.  He was not much involved in the care of the children outside working hours before the parties separated.  In this sense the parties filled what are sometimes referred to as traditional roles. 

4.The wife's case is that she wants to and is able to continue in that role of not working outside the home and devoting her time primarily to the care of the children.  The husband plans to continue in full-time employment and the children will spend their time that is given to him either with him or with his parents which is the way their time with him is spent at present, or more recently with his partner, Ms C. 

The present arrangements for the children's care

5.Following their separation the parents reached agreement that the children would spend time with their parents in accordance with a pattern that meant that they spent nine nights per fortnight with their mother and five with their father.  That remained the position at trial.  I should interpose that for a short period of perhaps four or five weeks the parties by agreement had the children spending every weekend with the husband and the intervening periods with the wife.  However, that was quickly changed and it is to the credit of both parties that the time sought by the husband was appropriate to the children's needs and stages of development as they then were.  It is to the credit of the wife that she agreed to periods of time which in effect created the opportunity for the husband to have much greater involvement in the children's lives than had previously been the case.  Indeed that is what has eventuated.  He is now very involved in their lives and they in his. 

The parties’ proposals

6.In broad outline - and I will return to the detail a little later - the parties' proposals are on the part of the husband that the children attend their present school in the Melbourne area and in descending order of preference have equal time with each parent or the status quo plus Sunday evening or the status quo.  That is the husband's ranking of priorities of his proposals.  The wife's proposals are that the children should attend school in N and spend each second weekend and a greater than one half share of school holidays with the husband.  Her second proposal is that the husband have a greater share of weekends, including some three-day weekends, and she ultimately was prepared to contemplate that if it was necessary to preserve the children's relationship with their father and his family all weekends, including some three-day weekends. 

Background

7.The undisputed facts that I will refer to now by way of background can be summarised as follows:  the husband's full name is Mr … Waite.  He was born in October 1968 and was at trial 38 years of age.  He is an engineer by occupation.  The wife is Ms … Waite.  She was born in July 1968.  She was occupied primarily by home duties at the time of trial and is 39 years of age at the date of trial.  Both parties were born in Australia.  The parties commenced cohabitation in August/September 1995 and were married in September 1997.  They separated either on 15 June 2005 (the husband's view) or on 1 July 2005 (the wife's position).  No time was spent, however, in attempting to identify which of those was the accurate date and it was not a material factor in the scheme of things.  Their divorce became absolute on 7 January 2007.  Their total period of cohabitation therefore was approximately 10 years.  There were two children of the marriage, B born in December 1999, aged seven and a half at trial, and G, born in May 2001, six. 

8.The short history of events from separation is that on 1 July 2005 the wife moved out of the former matrimonial home in Melbourne into the home of her mother with the children.  Soon after that, perhaps a month or so, the husband began to spend the five-night cycle each fortnight with the children that currently continues.  In September 2005 the wife commenced a relationship with Mr R.  She had known him for some time through mutual friends but their relationship became what is referred to as a romantic relationship or a close personal relationship in about September 2005.  In November 2005 the husband commenced a short-lived de facto relationship with Ms M and that relationship ended in January 2006.  Two other relationships followed the relationship with Ms M and the last of those ended at about the time in October or November 2006 that the husband commenced a relationship with his present partner, Ms C.  Ms C was someone that the husband had known through their workplace for quite some time and their relationship became a close personal one in about October or early November 2006. Both the wife's partner, Mr R, and Ms C gave evidence on behalf of their respective partners. 

History of proceedings

9.I will outline the history of the proceedings in very broad terms.  The proceedings were commenced in April 2006 when on 26 April the husband filed an initiating application seeking orders for property settlement and children's orders.  On 6 June 2006 the wife filed a response seeking orders for property settlement and children's orders and seeking that she be permitted to reside in N with the children.  She had been in a relationship with Mr R since the preceding September and by June of last year she was seeking permission to take the children to live with her and him in N. 

10.On 13 June 2006 the matter proceeded to a case assessment conference and final property orders were made by consent.  The effects of the orders that were made is set out in the husband's affidavit of evidence‑in‑chief.  I will not repeat it, except to say that the relevant terms included a payment of a sum of $53,000 to the wife and there was a superannuation split of $16,000, the husband retained the family home and the balance of his superannuation.  The effect of the order was a division of the non-superannuation pool 55 per cent to the wife and an equal division of superannuation.  That appears in paragraph 3.3 of the husband's affidavit sworn 29 March 2007 and was not the subject of disagreement.  Equally, it was not the subject of any disagreement that almost all the wife’s money, that is, the lump sum she received, has been expended on legal costs or will be expended on legal costs in connection with these proceedings. 

11.Orders were also made on 13 June 2006 putting into the form of court orders the arrangements that had been in place already since the parties separated in the preceding year for the children to spend the periods of time that I have already mentioned with each of the parents. 

12.The property settlement case having resolved, the children's issues were referred by consent into the children's cases program and were subsequently allocated to me as the trial judge.  In accordance with the usual practices of the children's cases program to which the parties gave consent a preliminary report was prepared by the family consultant, Ms T, on 26 July 2006.  On 31 July 2006 she conducted a feedback session with both parents and on 18 August 2006 the first children's case program hearing took place, that is, the trial commenced on 18 August 2006.  Various orders were made by consent dealing with concerns that the parties raised at that stage that I do not need to go into any detail about. 

13.I will mention that first amongst the orders made on 18 August 2006 in the context of directions to the parties paragraph 4 provided that each party is to:

(a) make full and frank disclosure of any fact relevant to a consideration of the best interests of the child.

14.That order was made in the presence of both parties.  On 1 February 2007 there was what was in effect a directions hearing of these proceedings at which directions were made for the conclusion hearing, which ultimately commenced on 30 July 2007 and the hearing concluded on Friday, 3 August, at which time I reserved my decision.  My reasons were delivered orally, and final orders made 31 August 2007.

15.I will turn now to the documents that were relied on by each of the parties.  The husband was the applicant and the documents relied on by him were his affidavit filed 30 March 2007, an affidavit of his father, the paternal grandfather Mr Waite Snr filed 30 March 2007, an affidavit of Mr E filed 30 March 2007, an affidavit of Ms C filed 5 April 2007 and an affidavit of his sister, the paternal aunt, filed 26 April 2006.  The wife relied on her affidavit of evidence‑in‑chief filed 30 March 2007, the affidavit of Mr R filed 30 March 2007, an affidavit of her mother, the maternal grandmother, filed 3 April 2007 and an affidavit of Mr J filed 30 July 2007.  Neither the maternal grandmother, nor Mr J were required for cross‑examination. Both the wife and Mr R were cross‑examined, as were the husband, his father and Ms C. 

16.The affidavit of Mr E filed on 30 March 2007 dealt with the availability of employment within the husband’s field of expertise, particularly in the area to which the wife was seeking to relocate the children's place of residence.

Husband’s employment

17.In about May 2007 the husband changed his employment to a new firm called A Company.  Exhibit H1 in the proceedings was a letter dated 24 April 2007 addressed to the husband that set out his terms of employment.  This was tendered by agreement. Evidence was not given in fact as to the husband's terms of employment by the author of that letter but by another gentleman who was the chief executive officer of the husband's present employer and whose name was Mr Z.  He attended and gave oral evidence on behalf of the husband as to his present employment. The husband did not therefore rely on an affidavit that had been filed by a Mr K who was his previous employer.

18.It has to be said that the evidence of Mr Z established very clearly that the husband had gone into that employment with the view that he wanted as much flexibility as possible in his working arrangements and Mr Z in his oral evidence made it clear that the company was prepared to give the husband great flexibility.  He is required to work 38 hours per week. Paragraph 4 of the letter to which I have made reference as exhibit H1 states that the working hours are 38 per week on a flexible basis which should normally be performed between the hours of 7am to 7pm Monday to Friday.  Mr Z made it clear, however, that in the husband's work, which is in a very advanced area where he works or can work virtually unsupervised and without anyone else's help on a normal day-to-day basis, the husband is able to work his working hours out within that basic framework to suit himself and the measure that the company looks for in assessing performance is output.  They do not in fact even keep time cards or time sheets or records of when employees are there.  They are entirely performance-based in their assessment of whether people are achieving their targets or performing their contracts.  It follows that the husband has very considerable flexibility in his workplace within those basic parameters.

The law to be applied

19.The law to be applied in cases such as this is set out in Part VII of the Family Law Act 1975 which underwent significant amendment with effect from 1 July 2006.  The framework and how it should be applied was explained by the Full Court in a decision of Goode & Goode (2006) FLC 93-286 and although that judgment arose in the context of interim orders that were made by the judge from whom the appeal lay, the outline of the legislation and its application in paragraphs 5 to 10 of the judgment in Goode & Goode is very helpful in any parenting case, as is the framework for determining parenting orders in paragraph 11 and following.  I was also referred by counsel to other authorities.  There have been few reported or unreported decisions relating to what are sometimes termed "relocation cases" since 1 July 2006.  Counsel for the wife referred me in particular to the decision of Kay J in Godfrey & Sanders [2007] FamCA 102 and to the decision of Warnick J in B & B [2006] FamCA 1207. I mention that whilst those do contain some helpful summaries of the law and references of the law as it was before the amendment of the Act, and continues to be in many respects, they are both decisions which went to a single judge on appeal from a decision of a federal magistrate and they were both factually quite different from the present case. However, the discussion of the law - and I will refer to particular paragraphs of those cases - is helpful, particularly in Godfrey & Sanders where Kay J in paragraph 28 recites a very famous passage from the judgment of Kirby J in AMS v AIF (1999) 199 CLR 160 and later in paragraphs 36 to 38 there are some relevant statements to this case that, as I said earlier, I will not read out now. Thirty-nine I will read out because I think it has a particular bearing on this case. This is Kay J at paragraph 39:

The Full Court in A v A (Relocation Approach) (2000) FLC 93-035 at page 87553 said 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 proposed 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 the parent no longer living permanent 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 of its parents. 

20.In paragraph 41 there is a further extract from the judgment of Kirby J of the High Court in AMS v AIF and relevant passages continue to paragraph 44:

41.      As Kirby J said in AMS v AIF at para 193:

[For relocation within Australia] the attention of the decision maker should ordinarily be to the possibility of formulating different arrangements for access and contact which would meet that child’s welfare.

42.       Then, at para 196:

Any such alteration [of place of residence], with its practical consequences for the access to, and contact with, the father … required consideration in that context, of the acceptability of the alternative proposals which [the mother] advanced for different, but longer, periods of contact between the child and the father. If this was not judged satisfactory, it possibly necessitated consideration of whether a different regime, devised by the Family Court, would adequately fulfil the child’s rights to regular contact with his father although no longer living permanently in close physical proximity.

43.The approach of Kirby J in AMS and AIF was emphasised by the Full Court in D & SV [(2003) FLC 93-137] at para 63 where they said:

In a case like the present one, where there is no or no credible alternative proposal with respect to residence advanced by the non-residential parent the correct approach to adopt is the one identified by Kirby J in AMS v AIF that the focus of

... the attention of the decision maker should ordinarily be at a possibility of formulating different arrangements for access and contact which would meet the child’s welfare.

21.The decision in B & B was relied on by Mr Mort on a number of bases, but in particular on paragraph 67 of the original judgment which Warnick J found not to contain any error of approach where it was said (by the Federal Magistrate):

I consider it is likely the wife would be happier if she were allowed to reside in south east Queensland.  I also consider that it is likely that she would be a more effective parent if she were happier.  She would receive support and assistance from Mr R in assisting her to manage the care of the children.  She would also be facilitating what she believes is the most appropriate educational environment for the children. 

22.Those two cases in particular were relied on. I propose now to go to the outline of those parts of Part VII to which I must pay particular attention.

23.This is a case where the parents are in agreement that they should share equally parental responsibility for the children. What flows from that is that s 65DAA provides that if a parenting order provides or is to provide that a child's parents are to have equal shared parental responsibility for the child the court must (a) consider whether the child spending equal time with each of the parents would be in the best interests of the child and (b) consider whether the child spending equal time with each of the parents is reasonably practicable and, if it is, consider making an order to provide for the child to spend equal time with each of the parents.  A further subsection provides that if a parenting orders provides or is to provide that a child's parents are to have equal shared parental responsibility for the child - this is subsection (2) - and the court does not make an order or include a provision in the order for the child to spend equal time with each of the parents, the court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and consider whether the child spending substantial and significant time with each of the parents is reasonably practicable and, if it is, consider making an order to provide or including a provision in the order for the child to spend substantial and significant time with each of the parents.

24.Those provisions clearly apply to the exercise that I must undertake here and require me to consider both the equal time provision and the significant and substantial time.  It has to be said that the parties' applications themselves to which I will turn in a little more detail shortly both require those matters to be considered in any event.  Clearly that is something that has to take place.

25.In Goode & Goode the court examined in paragraphs 57 to 64 the effect of the use of the word "consider" in the context of this particular legislation insofar as it applies to equal time and significant and substantial time.  What the court concluded in paragraph 64 was that:

Although the earlier observations of the Federal Court are of some assistance, we do not think that the meaning of "consider" when applied to consideration of an administrative law as in the cases referred to is entirely apposite to the meaning of the word in section 65DAA.  This is so because the juxtaposition of section 65DAA(1)(a), section 65DAA(1)(b) and 65DAA(1)(c) suggests a consideration tending to a result for the need to consider positively the making of an order if the condition in section 65DAA(1)(a), being the best interests of the child, and section 65DAA(1)(b), reasonable practicability, are met.  The same considerations apply to section 65DAA(2).

26.It is quite clear that the consideration that has to be given is not merely an awareness of the submissions and facts that are relevant to the consideration, but the court has to actively consider those orders in the context of the children's best interests.

27.As to the legislative framework overall, I have mentioned only parts of it at this stage.  In paragraph 7 of the judgment in Goode & Goode s 60B is reproduced, which sets out the objects and principles from which the provisions of Part VII are to be applied.  Subparagraph (1) provides:

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.

28.That is a particularly relevant object and principle for the purpose of this case, as is subparagraph (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 care, welfare and development such as grandparents and other relatives. 

29.In determining what is in the child's best interests s 60CC provides that the court must consider the following matters.  There are primary considerations and some additional considerations. The primary consideration that is relevant here is the benefit to the child of having a meaningful relationship with both of the child's parents.  The second primary consideration is not relevant here.  The additional considerations were addressed specifically by counsel in the course of their submissions and I will refer to the substance of those that were relevant in this case in the course of the findings of fact that I will make.

30.Having identified at least the principal areas of the law by which the case is governed, I turn back to the parties' proposals in some greater detail.  The wife tendered an aide-memoire which was marked number 1 and it sets out helpfully the current fortnightly cycle where the husband spends five nights with the children and the husband's proposed fortnightly cycle.  The husband did not propose a week about fortnightly cycle but one which divided the children's time into particular blocks.  I find it simple to set those out in the following fashion.  What the husband’s proposal means is that taking Thursday in one week as a starting point he has the Thursday, Friday, Saturday and Sunday nights with the children and the children are delivered by him to school on the Monday morning.  Then the wife following that would have the children with her for the Monday night and the Tuesday night and the husband would then have the children again from Wednesday after school to 5 pm on Friday.  The children would then spend Friday night from 5 pm to Sunday at 5 pm with the wife and would then return to the husband from Sunday at 5 pm to the start of school on Monday.  To complete the fortnightly cycle the children would then have Monday, Tuesday and Wednesday nights with the wife and the husband's cycle would recommence after school the following day on the Thursday.  That amounts to seven nights per fortnight for each parent.  As I say, there is a diagrammatical representation of that proposal in the wife's aide-memoire number 1 and I have just summarised the effect of that.

31.This is clearly premised on the husband's basic premise which is that the children continue to attend their present school and that the wife will be available in Melbourne to care for the children during those periods when they are to be with her.  The wife made it clear that she had no intention of moving to N without the children and so it is not necessary to consider those aspects of the husband's orders sought which dealt with that situation.

32.The alternative proposal put forward by the husband, to cater for the event that the children were attending school in N was that he sought that they should live with him during school term from 5pm Friday to 5pm Sunday three out of four weekends, extending to or commencing from a public holiday, curriculum day or pupil-free day that precedes or follows a weekend when the children live with the husband , and from 5pm on the day preceding basically for curriculum days or pupil-free days or midterm break to 5pm on that day and for the whole of any ‘stand-alone Easter’ as I will refer to an Easter holiday that does not fall within school holidays, and otherwise as agreed between the parties.  There were also proposals that were common to both sets of orders sought for a sharing of the school holidays.  When I say they were common to both proposals, they were not identical in those proposals.

33.The detail of the husband’s proposals was that if the children are attending school in Melbourne he should have one half of each  school term vacation and one half of the long school vacation and, for the Christmas period, for a specified period from 10 o'clock on 26 December to 5pm on 27 December.  If the children go to school in N during school holidays the husband sought that the children be with him for 10 nights of each school term vacation at times to be agreed, and in the absence of agreement, from 5pm on the last day of term to 5pm 11 days later, and from 11am on 26 December each year to 5 pm on 16 January the following year.

34.Both parties sought orders that essentially enabled telephone and other forms of contact between the husband and the children while with the wife and the wife and the children while with the husband, not in identical terms, but in broadly similar terms.

35.The wife's proposals were, as I foreshadowed already, that if in fact the children were attending school in N, that the husband should have the children each alternate weekend from 7pm Friday until 4pm on Sunday to be extended to 4pm on Monday in the event of a non-school day, for school term holiday periods for the first half, for the whole of the second term and for third term for 10 nights with changeover to occur on the 11th day, for one half of the long summer vacation and for specified periods at Christmas, which again were not significantly different from the periods specified by the husband.

36.It was common ground that if indeed the children were living in N, save where changeovers occur at the children's school, changeovers should otherwise occur at the L post office unless otherwise agreed.  Both parties had communication facilitation provisions.  The wife's was that the husband shall be at liberty to communicate with the children or either of them by telephone, webcam, emails, letters, cards or gifts on a reasonable basis.  The wife's position was that if she was not permitted to move to N that the status quo orders, which have the children nine nights a fortnight with her and five nights per fortnight with the husband, should remain in place. I have already outlined how the husband's Melbourne proposals differed from that.

Family consultant

37.The family consultant in this matter, Ms T, prepared a preliminary report, then a family report and she also conducted interviews with the parties and the children at the parties' request, on 30 May 2007.  Exhibit H and W 1 was a document of 13 paragraphs that Ms T had written shortly after those 30 May 2007 interviews and she dated it 1 June 2007.  That had not been seen by either of the parties until Ms T entered the witness box and I think it fair to say took both counsel and myself a little by surprise in that it appeared to be an addendum to the family report.  However, the fact that it had not been distributed to the parties or placed on the court file prior to the hearing was explained by Ms T in terms of the fact that it was really a document created to refresh her memory as to what had taken place and to enable her to give evidence if a hearing had been brought about at short notice following 30 May, as could have occurred in the context of a CCP case.

38.Ms T’s preliminary report was dated 26 July 2006.  The report clearly identifies the issues as the impact of relocation on the children's existing relationships with their father and his family and their connections within the geographical area where they have been living and the timing of the move, if it was to occur, and she reports in that report that the children were delightful, confident and lively individuals secure in their sense that they are the focal point of both their parents' lives.  She reported that B and G clearly see their mother as their primary parenting figure and anchor.  They trusted her decision-making and consequently accept her advice that they will be happy and maintain their relationship with their father if they move to N. B is aware that his mother is going to court to get permission to go to N and his father is not happy about this.  The children clearly have a great deal of fun when they are at N and appear to have a very positive relationship with Mr R.  The report goes on to mention the travelling time involved and the fact that the children are conscious of that time, that is, when they move between Melbourne and N.  The family consultant in that preliminary report expressed the view that the children's lack of maturity in regard to expressing their opinions about where it might be best for them to live is epitomised in B's request that the family consultant "tell the judge that I really want to go to [N] so I can have a bunk bed, king size on top and queen on the bottom, and a quad bike".  B and G are still very young and unsophisticated in their communication skills.  Whilst they talk on the phone to their father and could use a webcam, they would benefit most from direct rather than electronic forms of interaction with those who love them.  

39.The interim report raises a number of options.  In her summary the family consultant reported that B and G are progressing extremely well at present and appear to be thriving as a consequence of having substantial time with each parent.  She goes on to note that the husband and the wife's capacity to talk with each other is limited but not entirely impaired.  With effort and focus on the children alone they could develop a good working relationship given their shared primary goal, which is meeting the needs of the children in the best way possible. 

40.The options that the family consultant considered in her preliminary report included that the children remain in Melbourne and have half a week with each parent.  This would involve the wife maintaining a home with her mother where she currently lives and spending the part of the week the children are not with her with her partner, that is, in N at Mr R's farm.  Another option that the family consultant identified was delaying the move to N until the end of 2007 with the purpose being to ensure that the relationship with Mr R was a long-term one given the huge amount of change and the impact on the opportunity to foster the relationship between the husband and his children that such a move will make.  A final one was the wife moving to N and the children remaining in the substantial care of the husband.  This was not one that the wife would consider and I have already mentioned that was not an option that was viable at any stage of the case.

41.The husband was reported by the family consultant as having offered that if the wife remains with the children in Melbourne he would be prepared to accept the status quo rather than press for more time with the children.  But no position adopted by either party was identified as acceptable to the other party and the recommendations that the family consultant made in that first report were that “given the relatively recent separation and the change in the nature of the relationship between the children and their father, this family consultant is concerned that such a major step of relocation from everything and everyone that is familiar to these children should occur in the short term.  The family consultant considers that serious consideration should be given to one of the options above rather than running the risk of jeopardising the ongoing development of a very rewarding relationship that [B] and [G] have now established with their father.” 

42.As I have mentioned, that was July 2006. A family report was later ordered and it is dated 20 March 2007.  That is a document of some 10 pages.  In that report the family consultant reviewed the circumstances as they then were and found that little had changed in terms of the children's relationships with both parents.  She identified stressors in the relationship between the parents at a more acute level than had previously existed.  This was indeed confirmed by her interviews on 30 May this year.  The issues in dispute continue to be in relation to the relocation of the children and are as listed in the preliminary report and she repeats there the matters that were listed in the first report.  She notes that the risks in committing to a change in the children's lives on the basis of a new relationship when the wife and the husband have only been separated for a year, is less of an issue given the time that has passed.  In talking about the relocation she says if such a move were to occur, the timing of that move would be important, which was again, as I said one of the issues she identified in the earlier report.  However, the primary focus of her report was the impact on B and G of living such a distance from their father and the practicalities of ensuring the relationship that exists at present between the children and their father is fostered in such a situation.

43.The family consultant set out further issues identified during this assessment - at page 3 of her family report - the toll that the ongoing litigation is having on B and G because they feel responsible for this occurring, the impact of the ongoing conflict and tension at handover time on B and G, the strength of the bond between the children and their father and their need to see him more frequently than once every two weeks for two days, the possibility that rather than the children having to be moved as a consequence of the wife's desire to be with Mr R, that Mr R rather than the children could be expected to relocate, ongoing problems regarding phone contact, disputes regarding discipline and safety.  That was how the family consultant identified the issues and described them in March 2007. 

44.There are further paragraphs of significance.  Her recommendations were that the parties should give consideration to resolving this matter prior to court with the wife determining to remain in Melbourne and seriously considering the possibility with her partner, Mr R, that he relocates closer to Melbourne.

45.As will appear from my discussion of the evidence, that proposal was seriously considered.

46.Should the above resolution occur (which of course it did not) then the core time arrangements for the children should remain the same except for the Sunday 4.30pm time to be changed to return to school on Monday morning to enable the children to have a full weekend with each parent and so that Sundays are no longer cut short. And consideration be given by the court to an equal share arrangement for the children so that they can remain at school and based in Melbourne and that during the alternative weeks when the children are not with her the wife resides in N.  So those were the recommendations in the full family report. 

47.The report that is dated 1 June 2007 was not intended by the family consultant as a report, however, it was produced at trial and was made available to the parties.  I stood the case down briefly while counsel and myself read it and considered it.  It become part of the evidence. 

48.The May consultation arose in circumstances where there were communications between the husband and the wife arising out of statements that B was making about his mother's discipline of him.  Discipline was an issue that had been raised in the past.  The short background to that issue is that while the parties were together the wife would discipline the children by either smacking them or on occasion hitting them with a wooden spoon, and this was not the cause of any complaint by the husband while the parties were together.  In the context of the preparation of the family report, however, he expressed an objection to this and the family consultant expressed the view to the wife that physical discipline of this kind was not appropriate.  In the family report the family consultant said that notwithstanding having been told this, the wife in effect refused to acknowledge that it was an incorrect approach and stated that she would continue with this practice. 

49.A considerable amount of time was spent when Ms T was in the witness box in giving her the opportunity to find any note in her notes that supported that proposition.  It was important because the wife had denied ever saying such a thing to Ms T, that is, that she would proceed with the method of discipline that she had used notwithstanding Ms T’s expression that it was inappropriate.  It was not, however, anyone's case that there had been further physical discipline of this kind of the children since Ms T made the statement.  I am quite satisfied that in fact there had been no repetition of it. 

50.I found the wife's evidence that she had not made such a statement to Ms T very persuasive and I consider that perhaps Ms T had misinterpreted the wife's attitude in the discussion that she had at the time.  The absence of any note in her notes that specifically records what would be a very significant statement confirms that view in my mind; that is, it would be a very significant matter from the family consultant's point of view when conducting these interviews if in fact the wife had said, "Well, I hear your advice, but I'm not going to follow it."  I would have expected something to appear in her notes if that had been the case. 

51.The issues that arose on 30 May 2007 arose from the fact that B had made statements to his father.  It was part of the family consultant's evidence that one of the benefits that B derived from the existing arrangements for the children's time to be shared was that he, B, and the husband were able to have long conversations.  B said he derived a considerable benefit from these.  I have to say that as the evidence fell I had an increasing sense of concern, particularly arising from the cross‑examination of the husband by Mr Mort, that these conversations frequently involved issues related to the case.  Indeed B told the family consultant as much himself.  It was quite clear from the evidence that B was being informed that it was his mother who was creating the difficulty at the moment because she persisted with her wish to move to N and that she was in a sense to blame for the problems that the family was confronting. 

52.The child B in the interviews that took place on 30 May, whilst he was certainly interviewed about the allegations of physical abuse that the husband had reported, in fact was unable to provide the counsellor with anything specific.  When I say unable, in a carefully conducted interview no allegations since the writing of the first report of physical discipline of the kind that the family consultant had said was not appropriate emerged.  She did not consider that there had been any in fact.  And I do not consider that there had been any.  I certainly consider that the wife had taken careful heed of Ms T's advice and had refrained from the sort of discipline she had previously applied and which, as she explained to the family consultant, was a form of discipline to which she had been subjected as a child herself.  So there was a very understandable origin for this behaviour.  I am quite satisfied that the wife had in fact changed her behaviour following the interviews for the family report with the family consultant. 

53.What really emerged, however, was that B had, and G had to some extent, described to the husband other forms of discipline in the lead-up to the 30 May interviews or other forms of behaviour that might be seen as unacceptable, including pinching, ear pulling and washing mouths out with soap.  Without wanting to elevate these issues above their importance, the wife gave evidence that on one occasion about 12 months before the trial B had been using, as she described it, the ‘F word’ and had refused to obey her oral instructions not to use that language and when he persisted she told him to stick out his tongue and she touched the tongue for a few seconds with a bar of soap and the behaviour did not reoccur certainly on that occasion.  The wife's evidence was that was the only occasion that she had done anything approaching washing the children's mouths out with soap or anything of that nature.  Indeed, whilst both children referred to it, neither were able to put a time frame on it or to give any detail about it. 

54.The ear pulling appears to have occurred on some occasions but not to an extent that troubled the family consultant to any extent.  The pinching appeared highly ambiguous in that it seemed to be something that could have been part of a game.  When the family consultant said to B, "Well, wouldn't you know the difference between when it's a game and when it's not?" he simply did not answer. 

55.So out of an interview that took place to discuss allegations that had apparently recently been made by B, and to a lesser extent G, about conduct that might have been of an inappropriate physical nature, there was really nothing of substance that the family consultant reported on.  It appeared to me, I have to say, that consistent with answers he gave to questions in cross‑examination the husband had been discussing issues in the case with the children with a view to finding allegations or having them repeat allegations that might have assisted him and these were allegations of physical ill-treatment.  Certainly it appeared to me that all or nearly all the matters that were raised in the 30 May 2007 interview by B, except perhaps for the ear pulling, had taken place, to the extent that they had taken place at all, before the March interviews and they certainly had not been raised then, although certainly the smacking and wooden spoon hitting had been raised. 

56.The report of 30 May 2007 goes on to say  in paragraph 5:

[B] indicated that he had issues with both parents.  The issue with his father was the last night he had told him and his sister that whenever they came to the father's house they were "in a shit mood".  He then stated at his mother's place "she is meaner to me than to [G]". 

57.Then there was some discussion of these disciplinary or physical contact issues with B that I have mentioned. 

58.B then went on in paragraph 6 that he was worried about the court case and about his father shouting at him last night.  However, he then added that, "We had a talk like we are having now," and that he felt much better after this.  He noted that he and his father had a lot of these talks and they always helped him.  He said he did not have those sorts of talks with his mother and felt he could not. 

59.It did seem, I have to say, from the presentation of the evidence by the family consultant in her oral evidence that she was very slow to make any observation critical of behaviour on the husband's part that might be seen as enmeshing the child in the proceedings or involving the child inappropriately in these proceedings. She did concede in cross‑examination by Mr Mort that such things would be inappropriate, however, there was, in my view, an evident tendency on the part of the family consultant to find excuses for matters that were put as behaviour on the part of the husband that the wife considered inappropriate.  In the interview on 30 March in fact Ms T reports in paragraph 10:

When seen together [B] appeared relaxed and affectionate and there was an intimacy conveyed which was less apparent than when he was with his mother.  Unfortunately, however, [the husband] was unable to hide his anger at [B]'s mother for putting the family in the position it was in so that she could meet her own rather than their needs.  It was highly evident that this combination of anger and sadness about [the wife] that [the husband] held was familiar to [B] and impacted profoundly on him.

60.I pause there to observe that what exactly was meant by "impacted profoundly" on him was not expanded on to any real extent.  However, it is very clear from that paragraph of that report that the husband has been unable to hide his anger at B's mother, he has been critical of her in the child's presence and this is a familiar event to B and has a profound impact on him.  Yet in her oral evidence I found the family consultant quite unwilling to attribute any real responsibility for inappropriate conduct to the husband arising from her own description of those events. 

61.It seems to me that there was serious ground for criticism of the husband in his inability to conceal his anger and frustration at the wife from the child.  He also, as the evidence established, had made it quite clear to the wife on a number of occasions that his attitude to her is not one of respect as the children's mother.  In saying that I refer in particular to a conversation that took place some months before the final hearing where the husband telephoned the wife - and I am satisfied that this is broadly what took place - to try and arrange for some extra time for the children to spend with him while one of his sisters - he has two who live in Perth - was visiting from Perth.  The manner in which the wife described the request being placed was - and I accept this evidence - that it was placed on the basis that the husband put to the wife that she probably would not agree but he was going to ask anyway.  When asked by the wife why he was taking that negative approach to her in relation to this issue, the answer that the husband did not deny giving was, "You shit me."

62.Now before leaving that incident, I find that it gave a clear indication of an attitude that the husband has towards the wife which is not an appropriate attitude when considering issues such as equally shared time where particularly, on the timetable that the husband is proposing, there would have to be a high level of capacity to communicate and cooperate between the two parents.  It was, in my view, significant that the husband in his communications with the wife and with the children following their visits to their mother where he told them they were in a ‘shit mood’ and with the angry outburst that was obviously a very familiar sight to B, these are all, in my view, strong contrary indications of the appropriateness or of the existence, should I say, of a relationship between the parents where one could confidently say that these parents will be able to cooperate and communicate in the context of an equal shared parenting arrangement involving multiple changes of household within a fortnight of a kind that does, in my view, require, as a general rule, a high level of cooperation and the capacity to communicate respectfully. 

63.Another issue that I will mention because it arises in the context of Ms T's report of 1 June is that on that occasion the wife raised the issue of outside counselling for B.  She had previously raised the issue of counselling with her general practitioner.  He had given the wife the card of a psychologist who was used and obviously trusted by the general practitioner that the wife takes the children to and she had kept that card with a view to considering counselling for B.  In paragraph 12 of the report of 1 June 2007 the wife raised the possibility of outside counselling for B.  This is reading from paragraph 12:

[B] seized on this as a possibility when he realised he could not have an ongoing therapeutic relationship with me.  I would support that strongly, particularly now while he is waiting in so anxious a state about the outcome of the litigation.

64.In paragraph 13 Ms T goes on to report:

[The wife] has the name of a psychologist who her general practitioner referred to.  [The husband] was not happy about having a person referred to from one side.  So I suggested Relationships Australia who, if they could not help, could refer them on.  [The husband] was not happy about this either because of previous experiences with the agency and then became reluctant to consider further counselling for [B].  I reiterated the importance of having counselling as soon as possible and suggested going through the school, something to which they both agreed.

65.The wife's evidence was that the issue of counselling was raised through the school but because of demands on the resources that are available and waiting lists was not going to be available for something like four months.  So that was not pursued.  In fact B in the meantime was introduced to karate as a sporting activity in which he expressed or showed some interest and the wife took him along. The wife reported that since commencing that activity in particular his anxiety appeared to have abated considerably. 

66.The matter that arises out of paragraph 13 of Ms T's report of 1 June 2007 that particularly concerns me, however, is that the husband was not even prepared to consider Relationships Australia as a referral agency.  If he had an unfortunate experience with them in the past one could understand him not wanting to go to them, but in fact Ms T specifically referred to them as an agency who could refer the parents on.  But the husband, as reported by Ms T, then became reluctant to consider further counselling for B.  I consider that this is a particularly telling aspect of the respective parenting capacities and attitudes to the responsibilities of parenting as between the two parents here. 

67.The wife had already seen in B matters that arose from the pending litigation and the stress it was imposing on him that might make counselling appropriate.  She had raised it with her general practitioner.  She had been given a name.  When B's stressors and concerns again brought them into the presence of Ms T she suggested that possibility and B seized on it.  Yet it was not something that given a number of alternative suggestions the husband was prepared to go along with, even in principle, other than perhaps something that could be arranged through the school.  That shows, in my view, that in terms of attitudes to the responsibility of parenthood and attitudes generally to the children the wife is, as her role has been in the past, the one better attuned to detecting the children's needs for assistance and how to meet them. 

68.The oral evidence of Ms T contained extensive cross‑examination particularly by Mr Mort on some of the topics that were raised in that 30 May report.  I will not repeat the substance of that cross‑examination, however, she did make some concessions there about inappropriate conduct.  I did, however, as previously stated, form the view that Ms T was perhaps excessively protective of the husband and loathe to criticise what appeared to me to be quite inappropriate responses and attitudes on his part in some circumstances. 

69.The husband’s proposals for the children's future will necessarily include his partner, Ms C.  Ms C gave evidence and was cross‑examined and I believe it was a common view at the bar table and a view that I now express that she was an impressive witness.  She is a committed parent to her three children and has obviously made a significant commitment to the husband in this case.  Their relationship commenced, as I have mentioned already, either late October or early November last year.  As the evidence unfolded it became clear that, while in her affidavit Ms C says that no decisions about blending families or moving into the one premises have been made, and that is just a possibility, these two, that is, the husband and Ms C, have made a significant commitment to each other and whatever may be said about the  husband's earlier relationships - and I imply no criticisms of them at all - this is a relationship that appears to have a future for both of them and for their children. 

70.It is a relationship that was referred to by the family consultant in the family report.  At paragraph 26 she said:

[The wife] was also critical of [the husband] exposing the children to a series of relationships and sometimes leaving them in the care of people who do not know them well.  [The husband] is adamant that he has not been inappropriate in either of these fears and advises that at present the children are very much enjoying their contact with his new partner and the children.

71.That clearly means her children.  I think that may be the only reference in the family report to the husband's new relationship which is obviously the relationship with Ms C. 

72.I referred at an earlier time in this judgment to a paragraph of the orders made on the first CCP hearing day in this case for the parties essentially to make full and frank disclosure of all issues relating to the children's welfare.  I state at this stage that in the context of the conduct of the husband's case thereafter I do not consider that he made full and frank disclosure in terms of his relationship with Ms C.  This matter was set down for trial in early April, and although that trial did not proceed, all the documentation relevant to it was filed and served in advance.  Although the family report, as I say, makes a passing reference to a new partner and her children, there was nothing in the husband's affidavit of evidence‑in‑chief filed in the proceedings about that relationship whatsoever. 

73.An affidavit was filed by Ms C herself which is in very brief terms and simply states in its three paragraphs that she has known the husband for about 18 months through their workplace, she is 42 years of age and in good health:

I have three children aged six, nine and 12.  My children spend time with their father from after school Friday to the commencement of school Monday each alternate weekend, from after school to 7.30 pm each Wednesday and half of all school holidays.

74.She goes on to say:

[The husband] and I have been dating since October/November 2006.  We have found that we are compatible.

75.And she mentions that the children have stayed at her home overnight about four times in the last five months and she and her children have stayed on two occasions at the husband's house while B and G have been there.  The children all appear to get on well together.

[The husband] and I have enjoyed our relationship but we have expressly agreed it is very early days.  We hope our relationship lasts, but it is too early to make long-term decisions.  Even if we decided to commit to a long-term relationship we would not necessarily live together.  We have no illusions about the difficulty of a blended family.  [The husband] and I agree that our respective first commitment is to our own children.

76.That then was the only evidence before the court about that relationship, apart from the passing mention in the family report, had the matter proceeded to trial in April.  No further affidavit was filed subsequently on that subject.  However, in oral evidence it became clear that Ms C and the husband are beyond what might be described as the first stages of the relationship.  What emerged was - and it emerged partly through the evidence of the family consultant - that by March there had certainly been discussions about modifying the husband's residence to accommodate Ms C and her children and there were later discussions on the same subject, certainly sufficiently serious for them to be within the hearing of the children and for B to report to the family consultant that there were going to be renovations in his mother's household at N if he went there - and that excited him - and also there would be renovations in the husband's home.

77.The description of the conversations that came out in evidence and the fact they were being seriously considered in the presence of at least B certainly persuades me that the probability is that what will occur in this case is that there will be a blending of these two families, that is, the husband and his children and Ms C and hers. The timing is not something I can predict, but clearly it has been the subject of at least one, probably two, feasibility studies from a home improvement point of view and it is something, in my view, that is likely to happen, although, as I say, there is no time frame that can be put upon that. 

78.That obviously raises the issue of the impact of that blending of the two families on the children who are the subject of the decision before me.  Of course at this stage all impressions are favourable.  The children appear to enjoy the time they spend with Ms C and her children and there is no suggestion whatsoever that that would be problematic if the children became members of the one household.  There is, however, one issue that I will mention that will make it more testing than usual when these two households do eventually blend.  That is the fact that the eldest child of Ms C, W, in fact suffers from some serious difficulties.  They were not referred to in her affidavit.  The family consultant was sure she had been told about them.  Her first thought was that it was in the May interview, but then she was not confident about that.  So she went looking in her notes and could not find a reference to it there at all.  However, she was clear in her recollection that she had been told but she had not taken the subject any further because she had been told that the relationship was in its very early days. 

79.I have to say that I consider that by the time of the interviews for the family report there had been serious discussions about renovating the husband's home to accommodate Ms C and her children.  But there had not either in Ms C's affidavit, the husband's affidavit or the discussions with Ms T been any detailed discussion of W's difficulties and the potential for those to have an impact on the blending of the two families.  Whether they live together or not, there has to be some scope for difficulties to arise. 

80.What appeared from the oral evidence is that W in fact suffers from epilepsy, has an intellectual disability related to, and suffers from, cerebral palsy.  Ms C's evidence was that he is 12 now and has a mental age of five to seven.  He is just entering puberty.  He receives medication and ongoing therapy in relation to his various conditions.  He last suffered a grand mal seizure some 18 months ago at home in terms of his epilepsy and only seeks specialist help if his petite mal occurrences become frequent.  The fact that W’s difficulties are very well managed by Ms C and that she and W's father have the appropriate care regime for that child, does not take away from the fact that adapting to a blended household or family constellation, as I consider these two will do at some stage, is going to impose difficulties for the children who are the subject of the case before me of a kind that cannot be accurately foretold.

81.They might, however, have been able to be the subject of much clearer evidence and understanding on the part of the family consultant and myself if the family consultant had been told in much more detail than she was about what was involved.  I consider there was an insufficiency of disclosure on the part of the husband here even at April and that in fact there was on the part of the husband an unwillingness to confront that there was a problem that he faced having regard to the likely future of his relationship with Ms C and that it could be a problem that impacted on his children in their own home having regard to their likely integration with Ms C's children.  It is simply an unknown quantity at this stage, namely, what impact the blending of those two families might have on the two children who are the subject of the dispute before me in circumstances where obviously they would be being cared for by their father.  This is on his first proposal for equal shared time, on a very regular basis by their father, and no doubt by Ms C.

82.The fact that the husband has assistance from Ms C in caring for the children gives rise to another relevant consideration in this case.  It is relevant from a number of points of view.  I turn now to the children's relationship with their paternal grandparents.  The paternal grandfather gave evidence in the case, both by affidavit and orally.  The children spend every second Wednesday - and this was confirmed by evidence from the husband's sister who lives in Melbourne - with their grandparents while the husband is at work.  After school they go back usually to the husband's house, sometimes to the grandparents' home, and the evening meal is usually taken together once the husband comes home at about 6 o'clock. 

83.There is no suggestion that there is anything inappropriate about that.  That was not put as part of the wife's case.  It was put as relevant in a context, however, where the husband's working commitments and his personal attitude towards meeting those commitments lead to him leaving the children with his parents on occasions when perhaps he could be present and does not do so. There was a lot of cross‑examination about this and seven days I think when this occurred during holiday periods were clearly identified.  A further four or five days were in doubt.  At its high point of 11 or 12 days it is not an excessive amount of time for the children to spend with grandparents to whom they are obviously close and indeed it is a benefit for them to spend time with grandparents with whom they are close. 

84.On the wife's case - and the family consultant agreed that this was a possibility - it reproduced a pattern that existed during the parties' cohabitation in which the husband put work first ahead of family commitments and was prepared to leave it to the wife to look after the children.  In the current environment it appears that there are occasions when he could take leave and spend time with the children but chooses to let them spend time with their grandparents instead.  It is not in any sense a serious concern that the children - it is not a concern at any level - spend time with their grandparents.  But the fact that they could be with their father, particularly as the family consultant agreed in cross‑examination by Mr Mort if they are aware that he is choosing work rather than spending time with them, could be a matter of disappointment and distress to them.  However, it is not, as I say, in any sense a criticism of the grandparents that the children are left with them and that they have regular time with them and it is highly desirable that the grandparents and the grandchildren should have an ongoing relationship. 

85.There was one issue raised in the context of the grandparents' time with the children in the affidavit material and pursued to some extent in the oral evidence and in cross‑examination.  This is the issue of guns.  The wife would like her children to have nothing to do with guns.  The husband has himself been a competitive pistol shooter.  His father has been a competitive shooter, hunter and is at this time a very highly regarded official in the competitive pistol shooting community.  ….  There is no-one who could, I think it can fairly be said, be better placed to impart to children a sense of safety around guns.  Indeed he does this.

86.The criticism that arises from the wife's point of view is not that there is any defect in the grandfather (or the husband’s for that matter) safety around guns and the wife's case was never intended to be critical of that issue.  All that it can be said to demonstrate - that is, the guns issue - is that the husband and his father see no harm whatsoever in discussing gun-related issues, such as how guns work, with B.  At its high point, B once sat with his grandfather and watched him reloading a bullet cartridge.  This was a subject he took home to his mother with great excitement and great curiosity about what it might be like to be hit by a bullet. 

87.There is no harm in any of this, except for the fact that the husband and grandfather both know of the wife's preferred position, which is that these children simply should have nothing to do with guns.  Both the husband and the grandfather point out that the wife's proposed location for the children to live is on a farm with a farmer who keeps guns.  His evidence is that he has them in a locked cupboard in accordance with regulations and only takes them out for humane disposal of livestock or on occasion for the disposal of noxious animals such as snakes that might come into the vicinity of the farm home. 

88.The fact that they are present in a home does not, in my view, mean that children have to be educated at this early stage in what is right and what is wrong in handling weapons, if in fact one of their parents would rather they never learned how to handle firearms, which is clearly the wife's position.  It is not a matter that points to anything except this; the known views of the wife are not respected for themselves in the husband's household.  He and his father know much better than she does about how to handle guns and they are happy for the children to know that.  The fact that this is diametrically opposed to her wishes for the involvement or knowledge of her children is not a matter of concern to them.

89.The relevance that I see of this factor, as with a number of others that arose in the course of the evidence, is that it points to the unworkability of an equal shared parenting regime of the kind proposed by the husband.  Unworkability, impracticability, however else it might be described, where the wife's views about approaches to significant issues are not going to be respected.  I say there are one or two other matters that I will mention in this context shortly.  It is most unlikely that cooperative parenting will be possible for these children at a level that promotes their welfare for their future.

90.There were other areas where such differences were identified and clearly exist between the two households.  The wife is of the view that the children should bathe daily.  The husband is of the view that every second day is fine.  It is not for me to make any decision about that.  Indeed the family consultant very quickly when confronted with that apparent issue said that the husband’s position may be more justifiable on water conservation grounds, and I think that is arguably true.  But what it again demonstrates is a difference between the parents about something fundamental to the children's daily lives that is not going to go away as a difference and it is not going to create an atmosphere in which the children can move comfortably from one household to the other on a frequent basis such as proposed by the husband without having to make adaptations according to which standards apply in which home.

91.There were other issues raised about foods that the wife had in the past requested the husband not to give to the children.  Again her requests were not based on any scientific evidence, just on her observations of what she thought was a response in her daughter to being given vegemite.  That is, summarising the wife's evidence, it appeared to make the child hyperactive.  It was not agreed by the husband that that observation was accurate.  Indeed he identified other products as perhaps causing a similar response in the child. It is not a matter on which I can make any finding whatsoever, other than to say that it just identifies another area where there are differences of approach.  The different approach taken by the wife on that particular approach - which  she has always taken - is not followed in the husband's household.  He certainly has the assistance of a sister who seems to know something about dietary matters and may well be better informed about the issue, but it simply remains as an area where the parties are in disagreement about dietary matters for the children.  Again a pointer, in my view, to the lack of practicability or sustainability of an equal shared care arrangement involving the children moving between households on a frequent basis.

92.Now, one of the areas that I have identified as being raised by Ms T in her report was that the wife and her partner should consider whether or not they could live and work in the Melbourne area, thereby preserving the existing relationship between the children and their father.  The evidence satisfied me that they certainly had given that consideration.  It is also present in the affidavit material.  Mr R's affidavit deposes to the fact that he is a farmer and he farms about 1360 acres.  This land has been in his family for four generations.  He is the only one of his siblings who continues or wants to continue as a farmer.  He says in paragraph 11:

I am aware that it has been raised about the prospect of me moving to Melbourne to be with [the wife].  Obviously that would be an easy solution.  However, my skills and abilities and work history is as a farmer and in particular a […] farmer.  While I have good mechanical aptitude and a number of skills, I have earned my living as a […] farmer all of my life.  I am aware that there are farms close to Melbourne, and in particular on the outskirts of [the greater Melbourne] area. 

93.He goes on to depose to the fact - and I accept this evidence - that the value of properties that would put the wife, the children and Mr R in much closer proximity to where the children attend school in Melbourne means that the cost is simply out of his league.  He did not dismiss other possibilities however.  In his oral evidence he readily conceded that he has skills which would enable him to earn as a truck driver.  He has skills that would enable him to obtain work in the building industry.  He had been prepared to contemplate these.  Indeed if the wife was not allowed to relocate to N one of the possibilities that he was quite prepared to canvass was that he could put a manager into the property that he farms at N, he could live and work in Melbourne principally and only return to N from time to time, he could obtain work in the Melbourne area and he and the wife could obtain rental premises somewhere in the general vicinity of the outskirts of Melbourne where the children attend school.

94.These were all matters that he and the wife had been prepared to contemplate.  The wife's present arrangements, unlike the husband's, are of course very temporary of their nature.  She moved out when they separated two years ago now into her mother's home.  The children share a bedroom when they are there.  It is not a long-term arrangement that the wife would want to continue with.  If indeed she was not permitted to move to N and Mr R put in a manager and moved to Melbourne she would with him look for rental premises and to help sustain the situation financially would probably return to the primary form of work she used to conduct outside the home - which was that of a sales assistant, or retailing, as she described it, during the children's school days. 

95.It has to be said of that proposed rearrangement of the wife's and Mr R's lives that it is in a sense perpetuating a temporary arrangement.  The wife's life is on hold in so far as she is presently, living with her mother not knowing what the future holds.  She and Mr R would be moving into another temporary situation in so far as they would be moving into rented premises.  Mr R would have to maintain regular visits to the farm and the wife would then be giving up her first preferred position, which is to be devoted primarily to the care of the children, to take up employment during their school time.

96.It is not in issue that Mr R is able to and is willing to provide financially for the wife and the children if they do move to his residence in N and of course in that context I should mention that the husband has at all relevant times provided child support at quite a significant level and he would be making an ongoing contribution under whatever regime I was to order.

97.Now, the proposals then as I have outlined them start, from the applicant husband's point of view, with an equal share of time on a framework which, as I outlined it, clearly divides each fortnight up in a way that is similar to the present arrangements but the periods of time that the children would spend with their father would be increased from five to seven nights a fortnight.  The husband, from his point of view, would be, quite unlike the wife and Mr R who were prepared to contemplate a total reorganisation of their lives to accommodate the children's needs if the court found that they did require the children to remain at their present school, was much more limited in his capacity to vary his working arrangements to live near the children if they moved to N. 

98.The evidence of the witnesses called on his behalf really made it quite clear that there is a very limited demand for his professional skills in the East Gippsland area.  When I say a limited demand, there appears on the evidence before me to be virtually no positions available to him in that area.  It was conceded by Mr E that he, the husband, could perhaps open up his own business, but there was absolutely no evidence to show that that would be a viable operation if he did so. 

99.It has to be said that, unlike Mr R, the husband had not contemplated work other than in his chosen field.  One is left with the impression from the evidence that the husband was really only doing what had to be done to satisfy the requirement to have considered a change of employment on his part to accommodate a move to N for the purposes of the case.  He did not give evidence about considering any other form of work that might be available to him having regard to his skills and life experience.  The reality, however, is, as I discussed in final addresses to Mr Hoult who appeared on behalf of the husband, that it is the relationship with Ms C which would make the husband's position untenable in terms of any proposed moves by him to the N area to accommodate the children's need for regular time with him.  That is to say that my view of the strength of the relationship between Ms C and the husband is that it is such that it is likely to be an enduring relationship.  I have already said that I consider it will involve their households blending at some time in the future. The facts that Ms C is herself in the workforce for a substantial part of each week, and has a shared care arrangement with her children's father, imposes limitations on her capacity to relocate even if she had the desire to, which she does not.  It is really that relationship that, in my view, makes it quite impracticable for the husband to consider moving to N, although, as I have already found, there was no evidence of any work opportunities for him there in the absence of his relationship with Ms C.

100.The reality then is that in applying the various proposals to the tests imposed by the legislation I do not consider it a viable option to consider that the husband might move to N to be closer to the children and able to enjoy the sort of time with the children that he currently has or even on his second preference the increase to the Monday morning over the status quo arrangements. 

101.Ms T was strong in her evidence that the wife's primary position, that is, of spending each alternate weekend with the husband, would not provide the children with a sufficient ongoing relationship for it to be able to be carried out without significant loss to the children.  It has to be said that I share that view, that that is not one of the options that would produce a workable situation for these children in terms of their relationship with their father; that is, simply seeing their father every second weekend.

102.I will turn now, as I am required to by the legislation and the authorities to which I have made reference, to a consideration of each of the proposals.  As I have said, the husband’s first position is that there should be equal shared time on the formula that I have outlined.  My view is that that is not a workable proposal or one that would advance the children's best interests.  The factors that persuade me that such an arrangement is not the one that should be put in place for these children include, within the considerations listed in section 60CC, that whilst the children might be seen to have expressed some interest in spending equal time with both their parents within the meaning of the first subparagraph of the additional considerations, subparagraph 3(a), neither the family consultant nor either of the parents really urged me to attach any great weight to the expressions of wish of the children which included from time to time wanting to live at N, wanting to spend time with both parents and obviously benefiting greatly from the interaction that they presently have with both parents.  There is no doubt that the children have expressed various views, but because of their age and maturity it is impossible to attach any decisive weight to those.

103.What I do regard as an important expression of view in the context of considering equal shared time as a proposal is the evidence of Ms T arising from her 30 May interviews of the extreme impact on the child B of hearing the husband’s negative views of the wife.  That, in my view, as I have already expressed, is not a good indicator for an ongoing relationship where the children can be exposed to both households on an equal basis with the confidence that the other parent who is not present during any particular period will not be undermined by the parent with whom they are if they are, in the case of the husband, with him. 

104.I have already referred to the other areas that show that communication between the parties and the capacity for cooperative parenting in terms of their attitudes towards certain issues is limited.  I consider that those matters reflect on the nature of the relationship of the child with the parents, the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent, and also indicate some of the attitudes to the child and to the responsibilities of parenthood that are in particular in the case of the husband contraindications to the imposition of an equal shared time regime.

105.I therefore do not consider that is a regime which will operate in the children's best interests.

106.The law then requires me to consider significant and substantial time.  There are of course statutory definitions of what that means that I will not repeat, but they clearly go beyond two days every fortnight.  The question that then arises for me is whether within the range of options then available to me the most attractive for the advancement of the children's welfare is the substantial and significant regime represented either by the status quo – (and I am quite satisfied that it does represent substantial and significant time) - or the status quo plus Sunday night, which again is a proposal for more time from the husband’s point of view, or whether substantial and significant time can still be managed in the context of the children relocating to N.

107.The consideration of what is in their best interests of course still falls to be determined when considering these proposals against each other under the same criteria that I considered in the context of the equal shared parenting proposal. 

108.The significant and substantial time proposal involving either the status quo or the status quo plus one night has, in my view, the inherent and less readily definable defect that it effectively requires the wife and Mr R to make very significant compromises in what is obviously their preferred environment in which to spend their time with the children, that is, on Mr R's farm at N. It necessarily perpetuates the wife's temporary arrangements even though they might change form.  She is certainly in no position to acquire a home of her own and the home that is being offered to her on an ongoing permanent basis is so far from where the children presently reside. 

109.Significant and substantial time, of course, must be considered in the context not only of the proposals as preferred by the parties but also with other alternatives in mind, as was made clear in the passage from A v A to which I have referred already; that is, the court may have to look beyond the parties’ preferred positions and consider other options. 

110.The husband's options (once equal shared time is removed from the equation), as I have indicated, range from status quo plus Sunday night to status quo.  The wife's alternatives to equal shared parenting, that is, for significant and substantial time are unacceptable as to her first position, that is, every second weekend.  She then put as a second option a greater number of weekends than every second weekend up to, as I mentioned earlier, the situation where the husband would have every weekend.  That still would not, in my view, satisfy the significant and substantial time requirement because they would not create opportunities for the husband to be in some way involved in the children's schooling.  He would still be picking them up on Friday afternoon, returning them on Sunday afternoon and effectively spending a weekend or part of a weekend with them in Melbourne with no opportunity for involvement in the children's education and no opportunity to meet their friends at school, no opportunity to participate in the classroom in the way that parents are encouraged to do these days and which the wife certainly has done in the past and the husband to a much lesser extent because of his work commitments.  But he is, having regard to the evidence given about his working arrangements, in a position to be extremely flexible.  That is something that I have to attach considerable weight to in the context of considering the options here. 

111.The wife's proposal for more than just every second weekend, her alternative proposals, still, as I say, fall short of significant and substantial time.  The question then arises, can this be achieved in the context of the wife moving to N.  The case that I referred to, the decision of Warnick J, contained a passage that suggested that the mother's happiness in that particular case was a significant feature of the decision-making process.  Here the husband's case is put on the basis, "Well, look, whatever you do, if it involves the children remaining at their present school the wife and Mr [R] will get by.  They have said as much."  However, it is, in my view, a necessary inference to be drawn from the circumstances in which they would then be living that their life would not be in a fulfilling satisfying environment in which the children would see them functioning as a happy couple, leading their lives in the ways that they have, in Mr R's case for the whole of his life as a farmer, and in the case of the wife a full‑time parent.  Although it is difficult to adduce or produce evidence of the extent to which there would be an impact on the children's happiness that would flow from this situation, I am satisfied that it is a necessary inference to be drawn from the non-fulfilment of the wife's very legitimate wishes to live with and be a partner to Mr R that there would be unhappiness and that this would unavoidably carry down into the children's perceptions of their mother and of themselves  because she has at all times been, as Ms T described her, their anchor.

112.It is, therefore, in the context of this case a very serious consideration.  As Kay J sets out in the judgment to which I have made reference in Godfrey & Sanders in paragraph 36:

It seems to me that the final conclusion reached by the federal magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the federal magistrate.  Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.

113.There is no doubt that the optimal relationship between the children and their father, the very best available, would be if in fact the wife was required to remain residing in Melbourne.  However, that would be at the expense, in my view, of her capacity to lead her life in a manner that is consistent with the rights and freedoms acknowledged by Kirby J in AMS v AIF at paragraphs 207 and 208 set out in paragraph 28 of Kay J's judgment.

A statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court making the decision to ignore the legitimate interest and desires of the parents.  If there is a conflict between these considerations priority must be accorded to the child's welfare and right.  However, the latter cannot be viewed in the abstract separate from the circumstances of the parent with whom the child resides.  If it were otherwise, a universal rule would be established whereby the custodial or residence parent, usually the mother, would virtually always be obliged to reside in close proximity to the other parent, usually the father, so as to facilitate contact between the latter and the child.  There is no such universal rule.

114.The language of that paragraph is perhaps dated in that it refers to the custodial or residence parent.  Here it is more comfortable to refer to the wife as perhaps the primary carer as she has always been.  I consider that is an important consideration in the context of this case, that to give effect to what might be the optimal relationship between the children and the husband would be at the cost of her legitimate interests and desires and that would, in my view,  inevitably produce a level of understanding in the children that they were not living with a parent in happy circumstances and that that parent was in effect being deprived of the opportunity to pursue her legitimate aspirations to be the partner and supporter on the farm of Mr R. 

115.The question I then have to address is how to achieve a meaningful relationship providing significant and substantial time for the husband, if indeed I consider it is in the children's best interests to allow their mother to relocate with them.  I should mention at this stage that if the children do relocate to N they will be attending a small country school with composite grades and a small number of students.  Although the husband in his affidavit reproduced a number of sources of material from apparently respectable sources pointing to perhaps disadvantages in a rural environment or in country Victoria specifically as opposed to outer suburban Victoria as his place of residence might be described, his case was not put on the basis that there were such clearly identifiable benefits to the children's education in their present school as opposed to in a country school such as N that that should be a decisive factor in the case. 

116.The fact is, as acknowledged by the family consultant, attending a country school, living in a country environment has benefits and offers the children an understanding of a totally different way of life, one that they have now already sampled for significant periods when with their mother at N and they speak of very enthusiastically.  Their relationship with Mr R is one of an appropriate adult behaving appropriately as a second male role model in the children's lives being of the same generation but not the same significance as their father. 

117.The issue of the times that the children might spend with their father with a view to preserving their relationship with him does, as was said in A v A, cause me to look at alternatives other than those put forward by the parties.  The evidence of the husband's CEO as to his flexibility at work was impressive indeed. Certainly he has to perform his work within certain hours and on certain days of the week, but he does have the capacity to adjust his hours.  Of course he expresses the intention to do that in the context of giving effect to the proposals that he has put before the court.  But that flexibility has the capacity to operate for the children's benefit if they relocate with their mother in that the lack of opportunity on the wife's proposal of every second weekend or even a greater number of weekends than that, the lack of opportunity for the husband to spend time at the children's school or meeting their school friends would be capable, in my view, of being remedied and a provision could be made that would provide him with significant and substantial time that included a part of the children's school days would be possible if, for example, the husband had - and I think certainly more than every second weekend is necessary in this context - if the husband had two weekends out of three it certainly, as the family consultant pointed out, limits the children's capacity to develop social structures in that environment. 

118.But I am quite confident that if he had two weekends out of three the wife would ensure that their social structures were still maintained at other times and in other ways.  But even two weekends out of three per se from Friday afternoon at 5.00 to Sunday afternoon at 5.00 does not cure the defect of providing the husband with some additional time.  In my view, his flexibility of working hours enables him to accumulate sufficient time to be able to take a Friday off and travel to N during the morning, for example, to spend the afternoon with the children at the commencement of two weekends out of three.  That time spent with the children would of course be at school, but the evidence of the wife was that it is a school that includes parents in day-to-day activities and that should not be a problem and I am sure the husband would go to great lengths to ensure that the school was accommodating of his reasonable need to be with the children. 

119.If he were to do this, that is, to take one or two Fridays off on his two weekends out of three, that would provide him with significant opportunities to spend time at the children's school, to meet their friends, to be with them when of course they conclude school on those days and then it would be a matter for him when he travelled back to Melbourne or whether he perhaps engaged in some activity with the children and some of their school friends before bringing them back to Melbourne, bearing in mind that he would need to leave by 5 o'clock to be back in Melbourne by 9 o'clock.  However, looking at the parties' proposals I do not consider that even the extreme of every weekend or the wife's other various frequencies of weekends that she proposed would provide the husband with that necessary link with the children's school. 

120.I do consider however it is in his power to organise his working life so that he has that link.  Whether he does that for two weekends out of three or only one weekend out of three will depend very much on his ability to reorganise his life and no doubt will include considerations of what impact that would have on his time with Ms C and her children.  However, I do consider that there is a proposal other than that put forward necessarily by the parties that does achieve the objective of providing the husband with a meaningful relationship with the children, significant and substantial time and time that includes in that context more than just weekend and holiday time and enables him to become involved with the children in their school context on Fridays. Or it is conceivable of course that the husband might on further consideration want to propose that the children go to him on the Friday and that he take them back to school on Monday.

121.That would mean a very early departure from Melbourne.  He might be able to make some arrangement with the children's school for them to arrive a little bit late.  They are at an age when that might not be so significant.  I certainly would not expect any difficulty if that proved to be the preferable arrangement from the husband’s point of view and the children's point of view.  But it does seem to me that there is the capacity with the husband's flexibility of working hours to add some time to the weekend which does create an opportunity for him to spend more than just weekend time and a relatively limited amount of it with the children every second weekend.  I consider that would be achieved in giving the husband the opportunity to spend time with the children on two out of three weekends in a cycle that restarts after each school holiday period and continues throughout the school term in that way.

122.There is no doubt that the children's relationships with their extended family in Melbourne, their school friends and their other contacts in their present environment will be altered by this regime if it is put in place, but I do not consider that it is such an alteration that it can be said that the children will no longer be able to have meaningful relationships with their father and his family.  Given that the wife's proposal and the husband’s proposal both see him having far more holiday time that he has got the capacity through his employment to take, it necessarily follows that the children will be spending significant parts of their holiday time with their grandparents, perhaps with their aunt in Melbourne, or in the care of Ms C in Melbourne while the husband goes to work, not having available to him the sort of holiday time that even on the wife’s case, he will have. 

123.So whilst the regularity would be changed in the children's relationship with their grandparents, the evidence was that it had not always been as regular as it is now and was still maintained as a very good family relationship and that should be achievable in the future.  There will not, in my view, be any adverse effect on the children if in fact their frequency of seeing extended family members is reduced, as it would be if the children relocate to N, as long as the times that they spend with the grandparents and other family members and friends in Melbourne is able to be significant. I am satisfied that it will be if indeed they relocate to N because of the very generous holiday proposals proposed by the wife.  The wife’s proposals, I consider, strike a balance between giving her some holiday time, but giving the husband the lion's share.

124.Having regard then to the various matters to which I have made reference in this judgment, the statutory provisions, the cases to which I have been referred in so far as I have referred to them, the fact that I do not consider this is a case where equal shared time would advance the children's best interests for the reasons I have stated, I consider that it is necessary to consider significant and substantial time for the husband to spend with the children.  I consider that that significant and substantial time can be achieved in the context of the wife's preferred option of relocating to N.  And that having regard to the impact on her freedom and right to determine her life in the context of her role as the children's anchor, I consider that their best interests will be served if in fact she is able to relocate to N and take up residence with Mr R, subject to a regime of time spent with the husband that goes much further than just alternate weekends and takes place on two weekends out of three with the extension that I consider is available to the husband if he works at it - I believe he will, he is a very committed parent - of a Friday afternoon to be spent with the children at school or possibly a Monday morning. 

125.My preferred position would be the Friday afternoon.  It is the end of the week, the husband can travel down in the morning, meet the children at school at lunchtime, spend the time with the children at school either in the classroom or in some related activity.  He would obviously have to liaise with the school but he has already been there and has met the principal.  He would then have the opportunity to meet the children's school friends, to engage in some activities at school with them.  That is, in my view, an essential feature of the arrangements that should be put in place for these children's welfare. 

126.The orders that I will therefore make will give effect to those findings.  Now, I might say that although there were substantial similarities between the proposals for holiday time put forward by the parties, there were some areas of difference.  I consider that on balance the division of holidays proposed by the wife creates the opportunity for her to have some reasonable holiday time with the children while giving the husband the greater share, not quite as great a share as he has sought, but very little difference. 

127.I should say that the wife's case was put on the basis that she would like to relocate to N as soon as practicable.  In considering that issue I am mindful of the fact that the last school term of the year commences on 8 October.  There will be time that the children spend with their father during the preceding holiday period.  That is only a few weeks from now.  I consider that the wife’s relocation should be permitted to take place following the husband's period of time with the children in the forthcoming holiday period so that the children can commence their final term of this year on 8 October 2007 at N school.  That will be the effect of an order that I make.  However, for the moment I am going to provide for the children to live with the husband for two weekends out of three commencing on Friday, 19 October 2007 and Friday, 26 October 2007.  

I certify that the preceding one hundred and twenty seven (127) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watt

Associate

Date:  17 November 2008