Westbrook and Westbrook

FAMILY COURT OF AUSTRALIA

WESTBROOK & WESTBROOK

[2009] FamCA 707

FAMILY LAW – CHILDREN – Child related proceedings – mother seeks to relocate the children’s residence from Sydney to Brisbane

Family Law Act 1975 (Cth)

Mazorski and Albright (2007) 37 FamLR 518
McCall and Clark [2009] FamCAFC 92

APPLICANT:

Ms Westbrook

RESPONDENT:

Mr Westbrook

FILE NUMBER:

SYF

3953

2006

DATE DELIVERED:

5 August 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

15-17 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dura

COUNSEL FOR THE RESPONDENT:

Ms Cleary

Orders

Permission for B born … March 2001 and S born … November 2003 (“the children”) to relocate their ordinary place of residence to Queensland with the mother is refused.
The mother and the father are to have equal shared parental responsibility for the children.
Until the commencement of the School Term in 2010:
(a)       The children live with the mother.
(b)       The children shall spend time with the father as follows:
During school term
(i)From after school Friday to 6pm Sunday on each alternate weekend; and
(ii)In each other week from 12 noon Sunday to the commencement of school Wednesday.
(c)From September/October 2009 for one week of each of the mid-year school holiday periods as agreed and failing agreement for the first week;
(d)For each alternate week during the Christmas school holiday period of 2009/2010 as agreed and failing agreement for the first week commencing on the Saturday 9.00 am immediately following the conclusion of school and each alternate week thereafter;
(e)Notwithstanding any other order, from 6.00 pm on 24 December 2009 to 2.00 pm on 25 December 2009 and the children shall live with the mother from 2.00 pm on 25 December 2009 to 6.00 pm on 26 December 2009;
(f)       At such other or different times as are agreed in writing by the parties.
Following the June/July 2010 School Holidays the children spend one-half of each school holiday period with each parent, and as agreed between the parties and in the absence of agreement with the father during the first half in even numbered years and the with the father in the second half in odd numbered years.
Following the commencement of the School Term in 2010 the children live with the mother.
Following the commencement of the School Term in 2010 the children spend time with the father as follows:
(a)During school term, and subject to any other agreement, on each alternate week from after school on Friday to before school the following Friday.
Notwithstanding any other Order the children shall spend time with the mother and father as follows:
(a)On the weekend which includes Mother’s Day, the children shall spend time with the mother for a period of not less than two (2) hours, in the event the children are with the father;
(b)On the weekend which includes Father’s Day, the children shall spend time with the father for a period of not less than two (2) hours, in the event the children are with the mother;
(c)For a period of not less than two (2) hours with the father on the father’s birthday in the event that the children are with the mother; and
(d)For a period of not less than two (2) hours with the mother on the mother’s birthday in the event that the children are with the father.
Notwithstanding the orders made above, the father is permitted to remove the children from the Commonwealth of Australia for the purpose of travelling overseas to Scotland on holidays in the June/July 2010 school holidays for a period not exceeding two weeks. The time the children spend with the mother will be suspended during this period. The father shall provide to the mother in writing and not less than two weeks prior to departure the following:
(a) The date and point of departure from Australia;
(b) A copy of his itinerary, including any flight details and return dates; and
(c)The address(s) at which the children will be staying in Scotland and a landline telephone number for each such place of accommodation.
While the children are overseas the father is to facilitate any request by the children, or either of them, to contact the mother by telephone. The father is to facilitate telephone contact between the mother and the children at the mother’s expense, and not more frequently unless otherwise agreed than on one occasion in each three days.
In the event that either party is not available to care for the children for any overnight period, they will each provide the other with:
(a) As much notice as is reasonably practicable of the same; and
(b)First opportunity to care for the children for the duration of their unavailability.
The husband shall collect the children at the commencement of the time they spend with him and return the children at the conclusion of that time, to the mother or to the school as required by these Orders.
Both parties be able to communicate with the children by telephone whilst in the care of the other between 6.00 pm and 7.00 pm.
Each party be and hereby is restrained from causing or permitting the children to ordinarily reside outside the Sydney Metropolitan area.
That each party shall:
(a)Promptly notify the other if the children or either of them are treated in a hospital or by a medical practitioner or suffers any serious illness;
(b)Be and is hereby restrained from denigrating the other in the presence or hearing of the children and permitting others to do so.
Pursuant to Section 65DA(2) and Section 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 Westbrook and Westbrook is approved pursuant to s 121(9)(g) of the Family Law Act 1975 Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:

MS WESTBROOK

Applicant

And

MR WESTBROOK

Respondent

REASONS FOR JUDGMENT

Introduction

In the proceedings before the Court the parties seek orders in relation to the parenting of their children. The father, who resides in Sydney, seeks an order that the children live with him in alternate weeks and for half of the school holiday periods.
The mother, who also presently resides in Sydney, seeks an order that that the children live with her and that she be permitted to relocate the children’s residence from Sydney to take up residence with her and her new husband, in his home in Brisbane, Queensland. If the Court sees fit to agree with her proposal she then proposes that the children spend time with the father during defined portions of school holiday periods and at other times in Brisbane and by agreement.
The mother has made it clear to the Court that if the Court declines her application for relocation of the children’s residence then she proposes to continue to reside in Sydney. This is her stated position notwithstanding that her new husband will continue to reside in Brisbane where he is employed and in which state he has investments and in which the mother has recently established a fashion business.
The mother has indicated that in that latter event she will consent to some but not others of certain orders sought by the husband in a minute of proposed order and tendered to the Court by the husband’s Counsel at the commencement of the hearing.
Both parties seek orders that there be shared parental responsibility.

Background Facts

The father was born in 1957 and is now aged 51 years.
The mother was born in 1970 and is now aged 38 years.
The father’s daughter A, a child of the husband’s first wife, was born in 1981 and is now aged 28 years.
In 1983 the father separated from his first wife. There were flexible arrangements for sharing the care of A.
The mother’s daughter, E, was born in 1995 and is now aged 14 years.
The parties commenced cohabitation in February 1997, according to the mother and in February 1998, according to the father.
The parties married in July 1999.
In 2001 E commenced school at T.
In March 2001 the parties’ son, B, was born and is presently aged 8 years.
In 2002 E transferred to the FO Primary School.
In November 2003 the parties’ second child, S, was born and is presently aged five years.
In 2004 the parties moved to F and B attended pre-school for three days each week.
E transferred to a private school and the school fees were met by the mother and father.
In 2006 the child B commenced school at F.
The parties separated in July 2006 when the mother moved out of the former matrimonial home.
The parties agreed at separation and continued to implement the agreement that the children live with mother and spend time with the father from 9.00 am Saturday until 7.00 pm Sunday. B also spent time with his father from 6.00 pm Wednesday until Thursday morning. There was, in addition, regular telephone contact between the children and the father.
In September 2006 the mother commenced a relationship with Mr YG, her present husband. He resided in Brisbane, and continues to live there.
In that same month the mother commenced proceedings for alteration of property interests and parenting orders and spouse maintenance orders.
There were a number of incidents alleged by the mother to have occurred in relation to the father’s care of the children. I will not detail them here but will deal with them later to the extent appropriate.
The mother caused contact between the children and their father to cease for two weekends following the incident in which it was alleged that the children were left unattended at the father’s home, in April 2007 as discussed later in these reasons.
Interim proceedings commenced between the parties and they culminated in the interim parenting orders presently in force made by His Honour Justice Mushin on 2 July 2007 on a review of orders made by the Judicial Registrar. That order specified in part:
UNTIL FURTHER ORDER
1.That the parents have equal shared parental responsibility for the children [B] born […] March 2001 and [S] born […] November 2003.
2.        That the children live with the Wife.
3.        That the children shall spend time with the husband as follows:
(a)      During school term (and the June 2007 holiday period):
(i)From after school/daycare Friday to 6pm Sunday on each alternate weekend commencing 6 July 2007; and
(ii)In each other week from 12 noon Sunday to the commencement of school/daycare Wednesday commencing 15 July 2007.
(b)On the weekend on which Father’s Day falls from 10am Saturday or the conclusion of [B’s] soccer match on Saturday (whichever is the later) until 6pm Sunday;
(c)From September/October 2007 for one week of each of the mid-year school holiday periods as agreed and failing agreement for the first in 2008 and the second in 2007;
(d)For each alternate week during the Christmas school holiday period of 2007/2008 as agreed and failing agreement for the first week commencing on the Saturday 9am immediately following the conclusion of school and each alternate week thereafter;
(e)Notwithstanding any other order, from 6pm on 24 December 2007 to 2pm on 25 December 2007 and the children shall live with the wife from 2pm on 25 December 2007 to 6pm on 26 December 2007;
(f)From 3pm to 6pm on the husband’s birthday;
(g)In the event that the children would not otherwise be with him on their birthdays, from 3pm to 6pm on the children’s birthdays;
(h)At such other times as are agreed in writing;
PROVIDED THAT the children shall live with the wife:
(i)From 3pm to 6pm on the wife’s birthday;
(j)In the event that the children would not otherwise be with her on their birthdays, from 3pm to 6pm on the children’s birthdays.
(k)On the weekend on which Mother’s Day falls from 10am Saturday or the conclusion of [B’s] soccer match on Saturday (whichever is the later) until 6pm Sunday.
4.That in the event that either party is not available to care for the children for any overnight period, they will each provide the other with:
(a)As much notice as is reasonably practicable of the same; and
(b)First opportunity to care for the children for the duration of their unavailability.
5.That the husband shall collect the children at the commencement of his time and return the children at the conclusion of his time, to the wife or school or daycare as required by these Orders.
6.        That:
(a)The parties shall personally supervise (or ensure a responsible adult shall supervise) the children at all times; they are to spend time with them in accordance with these Orders;
(b)The parties shall each have immediate access to EPI-PEN, Ventolin and Spacer for [B] at all times when the children spend time with them and shall ensure [B] take all medication and other medical treatment as is prescribed for him from time to time;
(c)The husband shall not allow the children in the pool area at the former matrimonial home without supervising them or ensuring another responsible adult supervise them;
7.That the parties shall not travel with the children in a motor vehicle unless:
(a)Until the children are 8 years of age or older and are both seated in the back seat of the vehicle; or
(b)The children are both secured by an approved child restraint mechanism appropriate to their age.
8.That both parties be able to communicate with the children by telephone whilst in the care of the other between 6.00pm and 7.00pm.
9.That without admission each party be and hereby is restrained from causing or permitting the children to reside outside the Sydney Metropolitan area.
10.      That without admission each party shall:
(a)Promptly notify the other if the children or either of them are treated in a hospital or by a medical practitioner or suffers any serious illness;
(b)Be and hereby is restrained from denigrating the other in the presence or hearing of the children.
…”
On 15 November 2007 the parties’ marriage was dissolved.
On 3 March 2008 the parties entered into Consent orders and a Financial Agreement disposing of the spousal financial claims between them.
On 28 March 2008 the mother married YG.
In April 2008 a report from a Family Consultant was ordered.
That report was completed in 2008, and given to the parties. The matter was listed subsequently for hearing in February 2009.
On 22 August 2008 the father breached the consent orders by failing to pay an amount of $469,580 to the mother.
On 8 October 2008 Mr Z was appointed as the Trustee of the father’s estate pursuant to a debtor’s petition.
The mother received however certain monies including an amount of $30,000 post separation to purchase a motor vehicle which she did for an amount in excess of $70,000, financing the balance on lease. She also received an amount of $80,000 in February 2009 on the sale of certain property owned by the father’s business partner in addition to $130,419.92 as a result of the consent orders of 3 March 2008 and also three spouse maintenance payments totalling $2,430 in May and June 2007. These amounts total $242,849.92.
In November 2008 the mother amended her application and, inter alia, sought an order that she be permitted to relocate the children’s residence to Queensland. That application is opposed by the father.
As a consequence, the dates fixed for hearing were vacated and a further Family Report addressing the issues raised in the Amended Application was ordered and in March 2009 that report was made available to the parties and the matter was listed for further hearing in May 2009. That hearing was vacated by reason of the father’s ill health. The matter was fixed for hearing for three days commencing 15 July 2009.

The Issues

With whom the children should live and for what periods, and during what periods of time should the children spend with the other parent. In addition, it is at issue whether if there are cost consequences of that order, as to who should bear them.
If they are to live with the mother, may the mother change the children’s place of residence to Queensland.

Credit

The mother

The mother gave evidence orally and by affidavit. In her oral evidence she admitted that she had withheld information from the Family Consultant and the father. The information included that she had remarried and that she was negotiating a lease of business premises for a business she proposed to commence in Queensland.
She conceded that the withholding of relevant and important information might well have had consequences for the conclusions of the Family Report and for the receipt of financial entitlements. Although she disclaimed it, I came to the conclusion having regard to the totality of her evidence that she had not disclosed and would not disclose if she thought to do so was to her disadvantage or the disadvantage of her case. She also conceded that she had failed to disclose her remarriage to Centrelink and was now repaying benefits to which she was not entitled. I came to the conclusion that her evidence was unreliable and could only be accepted if it was given in cross examination and was a statement against her interest.

The mother’s husband

The mother’s husband gave evidence and it was generally credible. He however agreed he was complicit in the decision to withhold evidence from the Court and the Family Consultant. I do not accept his assertion that it was in any way a desire to restrain the development of angst in the father but rather a deliberate attempt to withhold information which might be detrimental to his wife’s receipt of financial entitlements.

The mother’s witness, Mrs HN

This witness had a clear recollection of what had happened in 2007 but could not explain why she had signed two affidavits, one sworn 16 May 2007 and the other sworn 15 May 2007, rather than just one in relation to the same incident and she could not remember to whom she gave instructions for the affidavit.
The nub of her assertions were that the children had been left alone in the home when the father had gone to a shop to make purchases. S had become distressed and had soiled herself and was outside seeking entrance to the home. Mrs HN attended to the child and went into the home where she had a conversation with B and changed the child’s clothes and cleaned the child and herself up. I accept that she went to the home.
Whilst dealing with this incident, it is the father’s assertion that there was present in the home a friend of his, a Mrs MA, who was caring for the children whilst he went to do some shopping and she was obliged by reason of an indisposition - a product of her Irritable Bowel Syndrome - to use the toilet and because she had not switched off a record player did not hear the distress being expressed by the child nor the noise said to have been created by the neighbour. I accept this version of events.

The father’s witness, Mrs SH

Mrs SH gave evidence by affidavit filed in the proceedings in the first instance and subsequently orally. Her affidavit detailed various matters which refuted statements made by the mother in her affidavit.
Mrs SH further gave evidence of a later conversation with the mother in which the mother called upon her and sought to have her change that affidavit. In the conversation Mrs SH alleged in general terms that the mother had remonstrated with her that the effect of her affidavit would be to ruin her chances of taking the children to Queensland where she had set up a store.

Not once but on several occasions Mrs SH said that she had been asked to change her evidence and was threatened with being subpoenaed if she did not.
Mrs SH, who had worked as a personal assistant for a Judge, said that she could not and would not change her evidence.
The mother’s account was significantly different from that of Mrs SH although she conceded that the conversation took place on the day asserted. An attempt was made to attack Mrs SH’s impartiality on the basis that she was commencing a business venture and had spoken about it to the father. She denied receiving any help from the father in relation to that venture but frankly conceded that she had informed him of what she was doing.
Mrs SH had made a contemporaneous note of the conversation in her diary but the diary was not called for.
Mrs SH was not shaken in cross examination in any major way. Given the view I have formed of the mother’s capacity to do or omit to do things if she thinks it will assist her, irrespective of the facts and the obligations imposed upon her to be full and frank in her disclosures, where the evidence of

Mrs SH conflicted with that of the mother I prefer the evidence of

Mrs SH. I find that the conduct of the mother in relation to the matters adumbrated in Mrs SH’s evidence was but another example of the mother’s determination to succeed in her application at all costs.

The father’s witness, Mrs MA

The father’s witness, Mrs MA, gave evidence by way of affidavit and her evidence was not shaken by cross examination. It seemed on her evidence that the account given by the father and Mrs HN could co-exist to some degree -the differences being only as to time.
I accept the evidence of this witness.
Whilst the mother has attempted to portray the father as negligent and lacking in parenting skills, on a consideration of the whole of the evidence I find that this is not the case. I accept the submission made on the father’s behalf that the parents have different parenting styles with the mother more protective and the father less risk averse, but this is not in a way in my view which causes any unacceptable risk for the children in his care.

The Family Consultant

Ms WE, the Family Consultant, prepared two reports and was cross examined by both counsel. She made no recommendation on the relocation and said that it was too difficult for her to balance the benefits and disadvantages of such a move. It was a matter that she took into account that the move would be a means of reducing conflict that she saw between the parents, conflict which the father said that, despite their differences on the relocation, had subsided since the separation.
Ms WE also took into account in her reports evidence of a lack of financial support from the father. Evidence received on the hearing showed that the father had by then fully fulfilled his obligations.
I accept the father’s evidence that the difficulties he had for a time were a result of his bankruptcy and the consequences for him of that and that as soon as he could rectify his default fully he did.
I also accept his evidence that he kept in touch with the school concerning his position in relation to fees and there was no concern for the continued attendance at that school for his son.
I also note his assertion which is not gainsaid that the mother received significant monies by way of property settlement in the time he was unable to pay and that the father had by reason of his bankruptcy received nothing. He was reasonably comforted by the not unreasonably held belief that the mother could for a time support the children through his period of difficulty with the money which she received and indeed she did in part.

The Father

The father gave evidence by affidavit and orally. He presented in the witness box with an open and calm demeanour.
He was frank in his answers and responsive to questions asked.
He expressed the view that whilst there had been great tensions in the communications between the parents in the first year of their separation communication and other matters had improved over the last two years.
He was prepared to give a balanced and generally laudatory view of the mother’s parenting in many respects, save that he did not agree with her that the move of the children to Queensland was best in the interests of the children. After the vigorous cross examination by Mr Dura he maintained consistency in his evidence. He impressed as a witness of truth.

The Mother’s Case

The mother put to the Court that the father had a good relationship with his children and they with him.
She said her proposed relocation to Queensland would not impair that relationship even with the time she proposed the father spend with the children constituting significant reduction in the time hitherto spent with their father in Sydney (assessed by the father at something in the order of one third of that time).
That time which was spent in Queensland would of course be spent with the father other than in his home environment. It would if he could afford it have to take place for example in a hotel room. The artificial nature of this engagement seemed to be regarded by the mother either as of little consequence or a satisfactory price for the children to pay for the relocation.
She maintained that the relocation would provide for the children an extended family household with the two children of her husband staying each fortnight. She proposed that she would, notwithstanding her business, undertake responsibility for delivering the children to and from school. She agreed that such a change would provide new challenges for the children since the household would consist of seven persons on the days upon which her husband had his children living with him.
The mother asserted that the children have a good relationship with her husband and his children and that she had told them of the proposed move before the Court decided the issues and they were excited about it.
In her affidavit material the mother has set out her concerns about the father’s supervision of the children. For example, in her affidavit filed 27 May 2008 the mother says she is concerned that the father regularly leaves the children unsupervised, and an affidavit of a neighbour, Ms HN was filed on

17 May 2007 detailing a specific incident in relation to this which is alleged to have occurred and as discussed in this judgment. It is further alleged by the mother that the children are left unattended by the father including in the vicinity of the swimming pool and that they are left unattended in the father’s motor vehicle and that proper precautions are not taken to ensure the safety of the children whilst they travel in the father’s car. The mother further alleges that the children, particularly S, became badly sunburned after spending a weekend with the father in October 2008, and that the father has a lack of regard for the child B’s health and the precautions to be taken in relation to the management of his medical conditions.
The mother asserted that in making a decision on the proposals before the Court I should take into account the risk to the children of being in their father’s care, having regard to various matters raised in her evidence and that of her witnesses. In relation to the other incidents referred to above, whilst they are unfortunate, as indicated earlier I do not accept that the father is a risk to his children in his care nor that he is negligent in that care. There is, in my view, no reason why he should not have the children living with him and even the mother’s case is that this should be so for up to a week at a time.

The Father’s Case

The father said that his relationship with both of his children was close and loving. He had participated in their lives since their births (which he attended). He said that he had formed the view on the statements made by B to him that he would be devastated if he were removed from his care and that S he felt would also suffer significantly were he not available to her as much as he has presently been.
He sought orders which would have provided a week about care arrangement and he said that he could so order his affairs that he would be able to provide appropriate care for the children. He noted through his counsel that the mother had only ever brought applications to the Court that his time with the children be reduced and he felt that the present arrangement did not afford the children adequate time with him. It was implicit that the present arrangement did not allow the children to gain the full benefit of his parenting.
In addition to seeking those orders the father said that a number of the orders which the mother sought were unnecessary, such as not permitting the children to play unsupervised in a pool. Were I of the view that that had happened, which I am not, I would make such an order, but I do not consider it necessary.
Finally, the husband wanted the opportunity to take the children to his home of origin in Scotland and allow them the opportunity of meeting his mother on her home ground and experiencing the culture. He said that he would like the opportunity of going with them for two weeks during the July school holidays so that he could take advantage of the northern hemisphere summer.
In relation to this application it was the evidence of Ms WE, the Family Consultant, that such a trip could occur in July of next year when S was a little older. In her report she suggested a period of ten days but said in her oral evidence if the trip was to take place next year when S was a little older then she would not see any difficulty in that holiday being for two weeks.

The other Evidence

Ms WE, the Family Consultant

Ms WE produced two Family Reports; one dated 23 June 2008 and an updated Family Report dated 16 March 2009. The Report produced in June 2008 was when there were before the Court applications by the mother seeking to reduce contact between the father and the children and one by the father seeking to increase it. It was not until after this report that the mother filed an Amended Application seeking orders which permitted the relocation of the children to Queensland.
The first report was done about a year before the hearing and observations made by Ms WE as to the effect of separation of S from her mother were in the context of S’s then age.
In short, the recommendations were that joint parental responsibility be maintained and that the children spend substantial time with each parent. The Family Consultant said in that report that there be no change in the then prevailing arrangements until S at least finished her first year of school.
Significantly in this report there was no mention made by the mother that she had remarried. The reason that the mother gave for this supressio veri was that she did not want to aggravate matters whilst she had not received her property settlement monies. This was a course in which her new husband was complicit.
Some five months later the mother filed her application to relocate to Queensland. It was filed in November 2008 at the time that she says she acquired a lease for her proposed business in Queensland.
The mother asserted that at the time of the original report she was not intending to move, but I am not at all certain that that is correct.
The mother had by then remarried and knew presumably that her husband had said he would not leave Queensland because he was too important to his children who needed him and she commenced arrangements for her Queensland enterprise, the November date simply being the start date for the start of her lease of her retail store.
At the time the mother’s husband travelled to Sydney on an average of two weekends per month and resided with her and the children. The mother says that she kept the fact of her remarriage not only from the Court and the Family Consultant but also from her husband’s children and her children.
As a consequence of her Amended Application I ordered a further report from the Family Consultant in relation, inter alia, to the effect on the children of the proposed relocation.
That report in short made no recommendations on the proposed relocation “because of the difficulty of weighing up the costs and benefits, and long term and short term effects, for the children.”
The report did however maintain the recommendation for shared parental responsibility and the continuation of the present parenting arrangement without significant change if the children were to remain in Sydney. The Family Consultant said that this would mean that the children would have security in a continuation of the known arrangements.
In giving oral evidence concerning changes in the present arrangements the Family Consultant said that she thought that changes, if they were made, should take place at a time when there were going to be other changes in life for the children, such as the start of the new school term. The mother proposed that any relocation would not take place until after the end of the current school year. Ms WE said that where change takes place at a time of change such as the commencement of school years it more readily falls into an acceptable cycle for the children and has less impact.
Ms WE recommended, as I have said, that the father be able to take the children to Scotland for ten days and in her evidence said that she would not find difficulty in fourteen days if the trip were postponed until next year.
Ms WE said that if the children did relocate to Brisbane:
“… they would be likely to experience less frequent awareness of conflict between their parents and they would be required to less frequently consider and shift their loyalties. It is difficult, however, to predict how a lessening of the children’s involvement in parental conflict as a consequence of relocation would balance out against a loss of the children’s intimacy with their father, the effects of which may become more pronounced as they get older and their lives become more embedded in Brisbane. A relocation would also increase the difficulties for the children if [the mother] and [Mr YG] were to experience problems in their relationship.”
When asked by me whether the concept of “less intimacy” involved a change in the nature of the relationship with the father to more like a relationship with a grandparent living far away she said that that would be so. I concluded that in other words the relationship would change from one which is strong and important and close and beneficial to one which was remote and, albeit pleasant from time to time, not one in which parental “intimacy” between the child and the parent continued.
Ms WE formed the opinion that S at her present young age would struggle with extended periods of time away from her father. The evidence was that her experience has been of regular contact with her father. The times she has spent with her father has been active and involving her in outdoor activities and socialisation with the children of the father’s friends and their extended families.
The reservations that Ms WE had about conflict were to some extent ameliorated in their effect because of the father’s evidence that, notwithstanding the mother’s different parenting style, apart from a period immediately post their separation and continuing for about a year when communication was difficult, it was no longer so.

The Issues

1.Are the best interests of the children to be met by living with the mother or, a combination of the mother and the father and if the latter during what periods?
2.Should an order be made which is variable so that the ability of the children to cope with change is not overly challenged and the security of the known pattern not undermined?
3.If permission is given for the mother to relocate the children’s residence to Queensland then what time should they spend with their father and how and how frequently should there be communication between the children and their father?
4.If the children are to live with their mother and relocation is refused what time should they spend with their father.
5.What other orders are required in order to promote the children’s best interests.

Relevant Law

Legal principles

The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child’s best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount (see section 60CG). There is no such order in this matter, nor any such risk.
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it. All of those principals are important and provide a guide for consideration of the issues in this case.
Of particular relevance (given the application of the mother seeking permission to relocate the children to Queensland) is the statement that the best interests of the child are met by 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.
What is the nature of a meaningful relationship in this context? It is a relationship which has meaning for the child qua the parent as father or mother. It is not a relationship with a father in capacity of friend or teacher, it is in the role of father. What is that role from a child’s perspective?
Some guidance is given since the section states that children have the right to know and be cared for by both their parents regardless of whether their parents are married, separated, have never married or never lived together.
This involves a right in the child to gain the benefit of the fulfilment of the obligations of parenthood from each of their parents and making those contributions as will support the child physically, emotionally, socially and psychologically and which will assist the child to achieve his or her maximum potential.
Children have a right to spend time on a regular basis with and to communicate on a regular basis with both parents and other people significant to their care, welfare and development.
I respectfully agree with the view expressed by her Honour Justice Brown in Mazorski v Albright (2007) 37 FamLR 518 at 526 et seq where she refers to the Dictionary definition of “meaningful” and goes on to conclude:
“… “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not strictly a quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests substantial and significant.”
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
“… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”

Subsection (4) provides as follows:
“… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
In this case each of the parties seeks an order that parental responsibility be equally shared and nothing on the evidence convinces me that it should be otherwise.
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent where the court is proposing to make an order that the child’s parents are to have equal shared parental responsibility.
There appears to be no issue between the parents that in the circumstances of their present and proposed places of living it is not reasonably practicable in the event that I were to permit the proposed relocation, for the parents to spend equal time with the children.
Such a determination as to equal time or substantial and significant time as those terms are defined could only practically be made in this case if the permission to relocate is refused.

Section 60CC Considerations

Primary considerations

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

The presumption is that children should have a meaningful relationship with both parents unless the welfare of the child otherwise dictates.
I am directed by McCall and Clarke [2009] FamCAFC 92 to consider and weigh the evidence at the date of the hearing and determine how, if it is in the child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (the prospective approach).
There is, in my view, no basis in this case where it could be said that the children do not have a meaningful relationship with both their father and their mother at present.
There is presently a shared care arrangement in place where the children spend nine days per fortnight with their mother and five days per fortnight with their father. Their father is involved in all aspects of their life, as is their mother.
There is no evidence which would lead me to conclude that the present relationship is not meaningful for the children nor in my view any acceptable basis for saying that the discontinuance of those relationships as they presently exist is indicated upon a consideration of the children’s best interests.
The evidence is however that the nature of that relationship with the father will, if the children are moved to Brisbane particularly for S, change. The evidence of the father is that B will be devastated and I think given the relationship with the father there certainly will be at least a sense of loss in the children’s minds. The evidence is that the relationships will lose that intimacy that is the significant part of the parent and child relationship. The children will be deprived of the father on a regular and physical basis making his contribution to their nurture, welfare and development. They will have their rights to that support and that intimate knowledge of their father to be given real meaning and substance negated.
The evidence of the mother’s new husband is that there would be routines in his house and that he wanted the father only to have contact with his children on the basis that they did not upset any of his household routines. It was he who was complicit in the deception of the Family Consultant and his lack of candour and openness is demonstrated by that incident.
The like lack of candour in the mother gives me real cause for concern that any assurances which might be given to promote and foster the father and child relationship would be honoured to the extent necessary to maintain a meaningful relationship with the father if the relocation was permitted.
In that new situation, were it to occur, the mother’s husband who appears to be a strong personality and who says with vehemence that he will not move from Queensland because his children need him, will be the father figure in the household.
The mother’s husband has put his career advancement ahead of creating a situation of greater comfort for the mother by retaining a capacity to visit Sydney on a more regular basis. In a new role which he will undertake shortly he says he will not be able to visit Sydney as regularly as he has hitherto.
He does not, it seems to me, given that he will be the “father figure” in a household remote from the children’s father, be likely to have much truck with anything which interferes with his household’s running.
He would, perhaps naturally, seek to create a blended family in which he was the father figure and by dint of circumstances the children in this case would in a practical sense see the retreat in their image of their father as a nurturer and in the words of the Family Consultant, lose intimacy with him. The mother in her oral evidence conceded that the children would suffer detriment in being removed from their father.
There is no order which would remove the mother from the children’s lives in any substantial sense were I either to grant or refuse the application for relocation. The children have and will continue to have the benefit of their mother’s care and nurture.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There is no suggestion that on any view of the evidence and of the proposed orders the children will be exposed to physical harm or be exposed to abuse, neglect or family violence.
There is however the psychological harm of unknown dimension referred to in the Family Consultant’s report arising from the sense of loss that the children will feel in the removal of them from regular contact with the father if the relocation is permitted. The Family Consultant believed however that the youngest child could now accept being away from her mother for ten days which she extended to fourteen in the event that that was the holiday time available to the father to take the children to Scotland next year.
It is possible that this sense of loss could, according to the Family Consultant, have ramifications for the children’s future. There are also the questions which arise as to the unknown effect of the children having to share their mother with two new children. It may be that the blended family gets on well but I am unable to say that with any certainty. There has been no in depth study of the dynamics of the relationships between the subject children and their step father’s children.

Additional considerations

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

The child S was assessed by the Family Consultant as a child who was happy in the company of either parent and was observed to move without difficulty between them. She has been made aware of the nature of the present controversy by the mother concerning the proposed move to Queensland. Given her age any view she might otherwise express at the present time is not one to which I would attach any significant weight in the present circumstances.
The child B who is aged 8 years said to the Family Consultant that he did not want to be asked about what he wants to do as his mother wants him to move and his father does not. The Family Consultant reports that he has no faith or expectation that his parents will come to any agreement and that he says things to both his parents because “I don’t want to talk about it”. This was assessed as him saying things he thought would please the parent he was with.
B expressed disappointment that he may miss a school camp if he moves to Brisbane. He described his favourite activities as snowboarding, surfing, soccer, skateboarding, playing putt putt golf with his father and bike riding. He said he likes his father’s new home near the beach. The child said that he liked his step father. He expressed the view that “Mum, live in Queensland till you find a house in Sydney and Dad, just stay where you are.” It seems to me that this child wants the problem to go away and in a way which enables him to have the benefit of both his father’s and his mother’s company. I note the view and give it some weight.
(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
Each of the children has relationships with their mother and their father and the father’s daughter, A, a child by his former marriage and with E, who is the mother’s daughter by a prior marriage.
E is aged 14 years and is in Year 8 at a Christian School and A is aged 28 years and is described as a person with whom the children have a relationship which appears on the evidence to be warm.
E told the Family Consultant that any move would be difficult for the children and their father because they see each other regularly. Not surprisingly E repeated her mother’s views and attitudes to the present situation.
E did say interestingly that she would miss A. A said to the Family Consultant that she sees the children on an average of once per fortnight to three weeks. E is a much older child than the children the subject of this application and is developing her teenage interests and contacts and it seems to me that whilst a continuing relationship between the subject children and E would be no bad thing it is likely that E in any event will be pursuing her own muse.
The children are bonded to their father and their mother and the father has, as has the mother, played significant parts in their lives since their birth and there is a loving relationship between each of them and the children. Separation from either of them for any significant period of time is likely to create in them a sense of loss.
The children have a positive relationship with Mr YG, the mother’s new husband. However, the Family Consultant says B and S have not lived in his household with his children and so it is, she says, difficult to predict how integration in this household would affect them, but she says there are no present signs of serious difficulties.
(c)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
There is nothing in the evidence which suggests that the father would not continue to facilitate and encourage a close and continuing relationship between the children and their mother.
The same cannot be said of the mother and Mr YG. The factor which supports that view is the limited vision that Mr YG has of the extent to which the fostering of such a relationship with the father would have to be subordinated to his plans and his routine. He was complicit in keeping the fact of his marriage from the Court and the father and this does not betoken that openness of communication which would be necessary to encourage the relationship with the father.
The mother has been unable to reconcile herself to the self-evident fact that she and the father have different parenting styles. Her inability or unwillingness to trust the father with the children leads, it seems to me, to a reasonable inference that she would regard his absence as a benefit. Indeed she suggested that an advantage of relocation would be that there would be less occasion for conflict, that is that she would be less exposed to the difference in parenting styles with which she could not it seems deal other than by making applications for reduction in time spent with the father.
She has been unconcerned it appears that the children might gain a negative impression of the father as a consequence of her speaking to E and giving her information such as “[the father] didn’t pay the rent” and “[the father] wouldn’t pay the fees.”
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The proposed relocation of the mother would involve the children in a separation from their father and they would experience on the evidence a sense of loss and a significant change in the nature of the relationship with the father, which would be a change which would lose for them the intimacy associated with it at present. It would deprive the children of their rights as adumbrated in the Act to have a meaningful relationship with the father. It would diminish their capacity to look to the father for the nurture and support which a child has a right to expect from his or her parents. The children it seems may have also a sense of loss in relation to the child A who has been it seems a constant factor in their lives in Sydney.
It is not presently predictable how the change to a household in which they are not so much the centre of attention and where they will be competing with step-children for attention will affect them. It is a matter of concern.
The children would miss their father and the activities that they enjoy with him. S, the Family Consultant also reports, because of her age and gender is likely to feel more emotionally distant and less comfortably familiar than B with her father after long separations. There are, she says, likely to be feelings of guilt about leaving and also B in particular would nurse a worry about her father’s feelings. They would it is suggested be better able to manage these feelings if their father could also manage his own significant sense of loss. Whilst I am sure that the father would use every endeavour to do so I am not sanguine that he could succeed given his closeness to and affection for his children and the grief that I am certain would be attendant upon him by reason of their departure.
The Family Consultant reports that if the children live in Brisbane with their mother it is unlikely that the father will be able to have a significant influence on important decisions such as which schools they attend and their health care which could lead to him becoming more disengaged from their lives and increasing the possibility of a sense of emotional distance between him and the children. She advises that research with young adults indicates that those who have experienced long periods of involvement with their biological fathers generally report having more emotional and financial support from them as they grow up and enter adulthood.
If the children are not separated from their father and remain with their mother in Sydney (which they would do on her evidence) they may have a chronically dissatisfied mother. The Family Consultant’s report suggests that children whose mothers are chronically dissatisfied generally experience poorer levels of emotional and social adjustment. She goes on to say however that it is difficult to quantify the level of risk to these children in this case. She does say that if the children do not separate from their father they will be able to continue enjoying their lives in Sydney.
The children presently attend a school which has a philosophy which was attractive to both parents. The children were enrolled there by consent of the parties. It is a school where the pupil teacher ratio is unusual. There are classes of a size of about 20 and some even smaller. Children are apparently taught by two teachers who overlap in a particular way. The children express their love for the school. The teachers speak highly of them. The loss of what was perceived by the parents as the valuable educational opportunities supplied by this school with its particular philosophy will it seem not be available to the children in the school in which they are proposed to be enrolled in Queensland, should the relocation be permitted.
The Family Consultant proffered the opinion that S is likely to struggle with extended periods away from her father. It is not her present experience.
Although the mother in her proposals to the Court says that the father may have additional times with the children by agreement with her, I am inclined to the view that the mother’s continued inability to recognise the capability of the father as a parent and to have some confidence in his parenting bodes not well at all for such agreements coming into existence. This is consistent with the evidence of the father as to his conduct in being flexible about arrangements at the mother’s request not being met by the same sort of flexibility at his request. A request even by the father that prior to the hearing he might have the children at an earlier hour so that he might take them to friends at west of the Mountains where they were to stay during the hearing might occur in daylight hours was declined.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Clearly, if the children are permitted to relocate with their mother to Queensland there will be a difficulty and expense for the father to maintain a personal relationship and direct contact on a regular basis with the children. The proposals of the mother which I consider do not serve the interests of these children would be manageable financially with contributions from each of the mother and the father. However, the father is presently bankrupt and his earnings are nowhere near as great as those of the mother’s new husband. He would however be relieved of the responsibility for the payment of school fees for the children and he would be able to cover a reasonable proportion of the costs of travel and accommodation. It will however impose a significant burden upon him. In my view there will be an adverse effect on the children’s right to maintain personal relations and direct contact with their father.
The mother asserted she will be financially unable to continue to reside in the area in which she presently resides. I do not accept that. The mother has commenced her own business and she has a financial resource in her husband who regularly pays her rent and who is earning in excess of $450,000 per year. She has recently received a premium on taking up a lease for her new business premises of $100,000. She has had the benefit of the available capital in the bankruptcy. That has amounted to about $200,000. The mother has a clear earning capacity in any event. She has had no difficulty in contracting and meeting a debt incurred by her of some $50,000 to assist her in purchasing a car. I do not accept the assertion.
(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
Each of the mother and the father are capable of providing for the emotional and intellectual needs of the children save that the mother seems to have difficulty in recognising the need of the children to that intimate relationship with the father that proximity and contact only will maintain. Her new husband has no doubt of the importance of such proximity when it comes to his own children but apparently not in relation to the subject children and their father.
The father is better able to support his son in his sporting activities perhaps than the mother but even that would not be beyond her ability to do satisfactorily. I have no difficulty in saying that the parenting capacity generally of each of the parents (although different in style and performance), would present any concerns.

It was sought to be asserted by the mother that the father was negligent in his care of his children and that they were at some risk in his care. On a consideration of the evidence in this matter I do not find that the father has behaved in relation to the children in any way negligently or uncaringly.
The difference in styles is described by the Family Consultant in the following terms:
“The differences in their parenting do appear to be within the typical range of differences between mothering and fathering …
… Research shows that fathers’ interactions with children are generally characterised by a tolerance of more autonomy in children than the interactions they have with their mothers but that this has an important developmental function in children’s lives. Research also shows that fathers tend to become more intensely involved with children as they approach school age and that fathers generally have a particularly significant influence on children’s educational achievement. When parents live together the important nurturance role generally provided more intensively by mothers (particularly when children are young) can enable a balance between autonomy with, and nurturance of, children which is more difficult to achieve when parents separate.”
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The child S is quite young and this, as the Family Consultant has said, is important to take into account, particularly in assessing the changes that would occur in her relationship with the father should the mother relocate her residence. I note that there appears more optimism in her opinion of B’s response because of his age but notes also a corresponding greater capacity in him to feel concern about his father’s disappointment about any proposed change. Such views as he has expressed to the Family Consultant seem to support a desire for the status quo to be maintained.
The father is a Scot by birth and his mother resides in Scotland. He has other relatives as part of his extended family in that country. He has asked for permission to take the children to meet their relatives and experience some of the culture of his origin. I think that such a trip will be in the interests of the children who will become acquainted with their extended family and its traditions. It is the father’s proposal that the children will travel with him in June and July of next year to Scotland for a period of two weeks. At that time the child S will be older and the evidence of the Family Consultant is that at that time (notwithstanding her early caution about periods longer than ten days apart from the mother) she will be able to accommodate her mother’s absence for that time, particularly since it will be a holiday period.
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
Neither child is an Aboriginal child or a Torres Strait Islander child.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
It was asserted by the mother that the father had failed in the fulfilment of his responsibilities for the payment of child support and school fees. The father denied this and pointed to the problems of his bankruptcy as set out above. In any event the full extent of his obligation has been met and I do not accept that the father’s non payment was a deliberate flexing of intimidatory muscle and that his payment of his obligations when he could was simply for a forensic purpose. The father readily conceded the default and provided an explanation of the circumstances. He does indicate in his evidence that he was in constant contact with the school.
As I have said I do not find in the physical care of the children any lack of demonstrated responsibility by either parent. I do accept that the mother’s conduct in relation to the father’s care of the children and informing the children of her decision before the Court made a decision and her negativity in relation to the father and her insouciance as to the effect of relocation on the children, demonstrate a lack of concern for their psychological and emotional health.
(j)any family violence involving the child or a member of the child’s family
There is no evidence of any such violence.
(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There is no evidence of a family violence order.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
I cannot but express the hope that proceedings between the parties will be ended. It seems to me however that no order that I can fashion in the interests of these children will ensure a situation in which there is not the possibility of further litigation between these parties in relation to their children.

Section 60CC(4) & (4A)

I have considered the extent to which each parent has fulfilled or failed to fulfil his or her obligation as a parent. I note that the parents have agreed on matters of education of their children and indeed on other matters. The principal issue currently seems limited to the issues arising out of the mother’s proposed relocation and the amount of time that the children spend with their father. I have considered the uptake on opportunities that each of the parties has had to spend time with the children and it appears that apart from times when the father was overseas he has taken every reasonable opportunity to be with his children. He has played an active part in their lives, education, recreation and achievements. Nothing in the father’s conduct could be said to have had the result of impairing the time the children spend with the mother. He has not prevented her from taking part in decisions concerning the children or from reasonably communicating with the children. The mother has, in pursuit of her unjustified view of the failures of the father as a parent, kept relevant information from him and taken steps to limit his time with the children.
I have in making my decision considered events which have occurred between the parties to these proceedings since separation, in particular the events of the initial difficulty in communication between the parties and the subsequent improvement in that communication of which the father gave evidence. I have considered the mother’s failure to accept the father as a suitable carer for the children and my decision in relation to that evidence is as set out above. I have considered the mother’s remarriage and the proposed relocation in Brisbane. I have considered the father’s bankruptcy and his inability to honour immediately his obligations under arrangements made for the payment of school fees and child support and his now compliance with those obligations. I have considered his continuing involvement and that of the mother in the children’s lives since separation and the relationship between the children and other relevant adults during that time.

Balancing of all considerations under Section 60CC and the defined issues

Section 61DA

The parties agree that they should have equal shared parental responsibility for these children.

Section 65DAA / Section 65DAA(5)

A consideration of the children spending equal time with each parent is, in the joint view of the parties, if I were to agree to the relocation of the children, not reasonably practicable. The father has no contacts in Brisbane and no support group or employment there. He is presently employed in New South Wales. It is impractical for him to relocate to Brisbane.
That said, the present arrangement which has been in place now for some time and does facilitate the father spending significant time with the children.
I have taken the view however on the evidence that given the passage of a little time that arrangement should be extended when S starts school next year. There is not in my view any evidence which would contra indicate the children spending in this case equal time with each parent.
The father says he can so order his affairs that he will be able to offer the children appropriate parenting during longer periods. Given that I intend to refuse the order permitting the relocation of the children, I find that there is no practical reason why such a change should not take place.
The evidence of the father is that the parties of recent times have been able to effectively communicate. I think that having regard to the experience of this litigation it is likely that in the event that they disagree they will see the benefit of undertaking mediation to produce a resolution of such disagreement. I have no doubt as to their ability to do so and I think they may now have the motivation to do so.
I find that the children remaining in Sydney is in their interests and will enable them to gain more input into their lives from a broader experience of their father. The father will be enabled to make an equal but different contribution to their development and experience. The children will have available to them more time to experience their broader family. The mother has up until the hearing and on her evidence for the rest of the year, the opportunity to spend each alternate week with her husband in Sydney. If and when her husband takes up his incipient promotion he will be able to make arrangements from time to time to be in Sydney, although his time in that regard he claimed will be more limited than it has been this year because of the obligations of his new job. These children and the children of the mother’s husband will have the opportunity to spend time with each other during the school holidays.
Ms WE says already that S can experience without adverse effect periods of time up to ten days away from her mother and that that capacity will increase with time. Her recommendation was that if there were to be changes in the arrangements then it should take place at a time of other change such as the commencement of school, and I propose that it will at the commencement of the 2010 school year.
Balancing the different proposals I note that the children will, if relocation is not permitted, have the benefit of the continuing care of each of their parents and a meaningful relationship with each of them. Most importantly, the relationship between the children and the father will not change as a relocation would it seems inevitably cause to happen. The father and the children will be able to maintain an intimate and meaningful relationship as is their right and be able to secure the support of both their parents. They will have the benefit of those parents applauding their successes and supporting them in their failures. They will have I am sure parents who will applaud what is good for them and counsel, advise and guide them so that they are protected from what is bad. Their rights and their interests and their welfare will be served by remaining in Sydney and having the benefit of the availability of each of their parents.
The children will be afforded an opportunity to have a continuing relationship with the mother’s daughter, E and the father’s daughter, A. The children will have the disadvantage of less time with their step-father and their step-father’s children.
The children will be able to continue their relationship with the father’s friends and their extended family.
If the mother’s family moves to Brisbane, as she anticipates, it will make perhaps less practical the trips by the children to visit that family. However, the experience has been in the past that the mother’s family does from time to time visit Sydney.
The children may be living with a mother who is chronically resentful of her position and that may have an impact on her capacity to care for the children. On the evidence I was struck by the strength of the determination of the mother to continue to reside in Sydney. She seems to me to be self-possessed and able to accept that a display of any such resentment would not be in the interests of the children and that she is well able to cloak any resentment so that it will not cause any detriment to her children.
The refusal of the relocation order may put stress on the relationship between the mother and her husband. That is undoubtedly a possibility but the mother’s husband equally struck one as determined. Certainly if he can see the importance of a relationship between a father and children in his own life to the extent that he has, he will recognise that for these children the relationship with their father is also important. He is clearly an intelligent man. He is also resourceful and determined as I have said and I think he is well capable of sustaining his marriage to the mother even in these difficult circumstances. He is by reason of his recent promotion in good standing with his employers.
The children, who like the mother’s new husband, will have less contact with him but the present position is that they have only had contact with him each alternate week in any event. I am sure that a relationship similar, if not the same, will be able to be maintained with the mother’s new husband.
For these reasons I make the orders set forth above which I determine to be in the best interests of these children.

I certify that the preceding one hundred and seventy-seven (177) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 5 August 2009

[2009] FamCA 707

5 August 2009

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies

Procedural Fairness