White and White - [2008] FMCAfam 62

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WHITE & WHITE

[2008] FMCAfam 62

FAMILY LAW – Parenting – relocation – mother unilaterally moved to the Central Coast – whether a meaningful relationship with the father and children can be maintained over distance and time.

Family Law Act 1975 (Cth), ss.60CC(2), (3) and (4)

Applicant:

MR WHITE

Respondent:

MS WHITE

File number:

SYC 2609 of 2007

Judgment of:

Henderson FM

Hearing dates:

8 November; 11 December 2007 &
8 January 2008

Delivered at:

Parramatta

Delivered on:

31 January 2008

REPRESENTATION

Counsel for the Applicant:

Mr Givney

Solicitors for the Applicant:

McGrath Dicembre & Company, Fairfield

Counsel for the Respondent:

Ms Messner

Solicitors for the Respondent:

Vizzone Ruggero & Associates, Sydney

ORDERS

That the mother be injuncted and is restrained from removing the children’s permanent place of residence outside a boundary known as Sxxx.
The mother forthwith notify the father of which school she intends the child O to be enrolled and do all acts and things necessary such that the father receives copies of this school’s newsletters, parent-teacher interviews, school reports, photographs, Gala Days and the like.
The orders entered into by consent on 27 April 2005 be amended as follows:
(a)The children spend time with their father each alternate weekend from 5.00pm Friday to the commencement of school or pre-school the following Monday morning and each alternate Thursday night from the cessation of school to 9.00am the commencement of school or pre-school the following Friday morning.
(b)Upon the commencement of the formal school term in the year 2009 the children’s time with the father each alternate weekend to commence after school Thursday to the cessation of school Monday morning and continue from after school Thursday to the commencement of school Friday morning in the other week.
(c)The parents to have one half of school holiday period with the children otherwise the orders in relation to Christmas, birthdays and other school holidays to be as set out in the orders entered into by consent on 27 April 2005.
Otherwise the orders of 27 April 2005 are to continue.
That pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

SYC 2609 of 2007

MR WHITE

Applicant

And

MS WHITE

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerned parenting orders for the parties’ three children, O born in 1999, and M and L born in 2002.
The father who was the applicant was represented by Mr Givney of Counsel and the mother who was the respondent was represented by Ms Messner of Counsel.
The Court was assisted by a family report prepared by Dr Mandy-Jo Fisher. That document was marked Court Exhibit 1. Dr Fisher gave evidence at the hearing.
The hearing commenced in the Sydney Registry and was listed for two days on the 8^th and 9^th November 2007. I was unable to continue the hearing on 9^th November 2007 due to the ill health of another Federal Magistrate. The hearing resumed at Parramatta on 11^th December 2007 and was listed again on 8^th January 2008 for final submissions.
The evidence of the parties was as follows:
For the father:
a)His application filed 13 March 2007 at the Local Court Sxxx; and
b)The affidavit of himself and his wife Ms K sworn 24 October 2007.
For the mother:
a)Her response filed 28 May 2007;
b)Her affidavit filed 8 November 2007;
c)The affidavit of the maternal grandmother filed 28 May 2007;
d)The affidavit of a friend Ms S filed 28 May 2007; and
e)The affidavit of her cousin Ms B filed 15 October 2007.
Neither Ms B nor Ms S was called to give evidence. The father, the mother, the father’s wife Ms K, and the maternal grandmother were examined and cross examined. The father’s wife Ms K is pregnant and due to give birth in February 2008.
The transcript of the proceedings on the 8^th November was provided to the Court and the parties.
The mother seeks the following orders:
a)That the parents be jointly responsible for the long term care, welfare and development of the children,
b)That she be permitted to reside with the children at Gxxx on the Central Coast, and
c)That the father spends three weekends out of four weekends with the children, half school holidays and the like.
The father’s proposed minute of order is that:
a)The mother not be permitted to remove the children to the Central Coast, Gxxx and she be restrained from removing the children outside Sxxx unless for a holiday, and
b)That he spend substantial and significant time with the children immediately and after the commencement of the school term in 2009 and there be a form of equal time with the children and their parents.

Short History

In 2005 the parties entered into consent orders as to property and parenting.
Since that time by and large the children have spent time with their father in accordance with those orders. There have been many occasions that either O or L has not spent time with their Dad mid week, however weekend time has been less problematic. The problems the parents have had with L and O are not evident with M.
The orders provided that the children primarily live with their mother, spend alternate weekends from 5.00pm Friday to 4.00pm Sunday with their father and every Wednesday from 5.30pm to 9.00am the following day, and half school holidays.
Although there has been in the past difficulties with the children spending time with their father as at the date of hearing it was very clear that the children had a good relationship with their father and his wife and had been spending time on the weekend, during the week and during school holidays in their father’s care.
The children have lived all their lives in Sxxx.
The parents lived in Sxxx during their marriage. The maternal grandmother lives in Sxxx and Ms K’s family lives in Sxxx. There is a substantial connection for this family to Sxxx.
The father and his wife rent a home in Ixxx. The children and mother live with the grandmother in cramped accommodation at Axxx. The mother now seeks that she changes the children’s residence, not further south, but across Sydney and further north to the Central Coast. This is a one way trip of no less than two and a half hours each way in normal Sydney traffic. I accept the trip maybe less on some occasions and longer on others.
It is clear that if I accede to the mother’s request there will be a significant change to the arrangements that have been in place for the children since their parents’ separation. The children will be moving schools and pre-schools and the mid week time they are spending with their father can no longer continue. Time with their paternal and maternal family will also change.
I accept the maternal grandmother’s evidence that if her daughter is permitted to move to the Central Coast she will also move. The grandmother will follow her daughter.
The father also seeks change to the children’s care regime in that he seeks a form of equal time commencing in full in 2009.
The recommendations of the Family Consultant were that the mother not be permitted to remove the children’s residence to the Central Coast and that the children spend equal time in each parent’s care.
The commencement of equal time was refined after cross-examination to start when the twins were older. The father agrees equal time would not be appropriate at present and neither would the children living primarily with him.

Issues

The issues for me are:
a)Whether the children should be permitted to live with their mother on the Central Coast, a trip of no less than two and half hours one way from the Sxxx where they and their father and his wife are now living.
b)If so, what time should the children spend in their father’s care, both on weekends, during the week and on school holidays?
c)If I do not permit the mother to remove the children from the Sxxx, then:
i)Where should the mother live with the children?
ii)What orders ought to be put in place for the children’s care?
iii)Should there be a change to the present orders in relation to the children’s care?

Chronology

The parties were married in September 1996 and separated in December 2003. They were divorced in June 2005.
O is eight having been born in 1999 and L & M are five having been born in 2002. L & M were barely 12 months of age when the parents separated. O was 4 years of age.
The parents are 36 years of age. Since their birth the mother has been the children’s primary carer.
When they were married the father earned income for the family and the mother cared for the family. Both the mother in these proceedings and Ms K agree that the father is a particularly hard working man who provides well financially for his family.
I was impressed by the father’s financial commitment to his children and his assurance that even if he had equal time with his children he would continue to provide his current level of financial support to the mother. It is clear the father has a strong sense of financial responsibility to his children and that is most refreshing.
The father currently pays $546 a week child support and rents a home at $620 a week and will soon have four children to provide for. He will need to work hard to earn sufficient income to pay these expenses.
At the time of final separation the father was seeing the children regularly although for a limited period having regard to their young ages.
Separation was a difficult time for the mother. The father had a relationship with his present wife and the mother was left with the care of three children young children alone, as she saw it.
I can understand that the mother may have been resentful of the father leaving the marriage and their three young babies and re-marrying. That the mother still harbours this resentment is clear from her difficult and non-child focussed attitude to the father’s reasonable request for the children to spend time with him and his new wife before and after their wedding.
The mother did not agree for the children to spend overnight time with the father and his wife on the night of their wedding in March 2007. The mother had no reasonable explanation for this attitude.
Thus on the eve of his wedding the father was at a Local Court to obtain an order to enable he and his wife Ms K and the children to enjoy this happy occasion.
The mother’s conduct on this occasion was immature. The wedding was some four years after separation. What is even of greater concern is that this was the very same time that the mother purchased her new home on the Central Coast without even informing the father of her intention to do so at any time prior to her decision to sign the contract for purchase. These events occurred only nine months ago in circumstances where the parties have been separated for four years.
I accept O began to experience difficulty in having overnight time with her father in October 2005. L has had similar difficulties at times spending Wednesday night and overnight time with the father.
The father was critical of the mother for this. There may well have been some unconscious behaviour of the mother that contributed to the children’s difficulties to which the report writer refers. Both L and O described their mother being sad and neither wanting to leave her because she would be lonely.
However, I formed the view that the mother has used many tactics and techniques to encourage the children to spend overnight time with their father. The children spending overnight time with their father was not something she was opposed to and she recognised it was of benefit to her as it gave her some time to herself and to engage in her part-time employment.
The mother employed various techniques such as telling the children she would not be home and that they have to stay with their dad, driving off in the car as if leaving and the like. The mother had taken O to a psychologist and school counsellor to help her to deal with issues surrounding spending mid week time with her father.
The mother maintained the children’s important relationship with the paternal family during a very unhappy period of time after separation when the father and his parents did not speak for almost two years. That has now resolved for the father. However from about 2004 until 2006 the mother ensured these children saw their paternal family as their father was unable to affect this. That is not the conduct of a parent who does not wish their children to have a proper and strong relationship with the other parent.
What I find has happened is that the mother is not aware of the impact of her resentment of the father’s new life and her sadness at times has upon the children. This lack of awareness of the impact of her decisions on the children was also evident in her views in the report that the children would be fine with a new school, that they loved the new house and would not suffer from any loss of time or connection with their father. The mother’s views were not supported by the children.
In the report O said she was scared about a new school and all the children said they would like to spend more time with daddy. O was excited about Ms K’s pregnancy. L said it was a long way to the new house and it was dark.
There is clearly a combination of factors at work here. The mother’s unconscious demeanour that the children pick up on, it may just be the nature of these children, the fact that they were so young when their parents separated and the strength and attachment of the father’s relationship with his new wife.
The difficulties have largely resolved now and I do not accept the criticism by the father that the mother was at fault for all these difficulties. He agreed when he tried to force O into the car in 2006 it was the worst thing he could have done.
The mother received the former matrimonial home by way of property settlement subject to a mortgage in the vicinity of $300,000.
The mother determined in September 2006 she could not afford the mortgage and she sold that home in October 2006 for $690,000 and realised $330,000.
The mother went to live with her mother at Axxx. Unbeknown to the father she then, with the assistance of her mother and her cousin Ms B, set about looking for a home to purchase on the Central Coast.
The mother’s cousin, Ms B, lives on the Central Coast and works at the school the mother wishes to enrol the children in, being Cxxx School. The mother’s evidence, confirmed by the maternal grandmother, was that after separation she and the children spent considerable time on the Central Coast with Ms B who lives in the Gxxx area.
The mother’s position was that she could afford a home at the Central coast of the quality she believed was appropriate for her children being a home similar to the former matrimonial home. The mother had a cousin living in the area and Cxxx School was an appropriate school. The mother determined that it was in her and her children’s best interests to purchase a home on the Central Coast in which to live.
From the photographs tendered by the mother the home purchased by her is a high quality home, consisting of four bedrooms, lounge room, dining, kitchen, landscaped gardens, and double garage. The home is in very good condition and is well maintained.
The mother’s case is that the homes she could afford in the Sxxx area would not be of the same quality as the home on the Central Coast. I accept the mother’s evidence on this issue from the documents attached to her affidavit of homes for sale and rent in the Sxxx.
The mother purchased her home for $455,000. She borrowed $200,000. $50,000 of that money was borrowed to put in a pool and to do other extensions. Much of that has been expended on legal fees. The mother said she can maintain this mortgage from her income and resources.
However, the question of the quality of the home is but one aspect in my considerations of the issues before me.
The mother has chosen as a priority for herself and her children the quality of a home rather than, as the father sees it, ensuring the children live in appropriate accommodation and in sufficient proximity to him to maintain their meaningful relationship with him.
The father’s priority is the children being geographically located to maintain and continue their close relationship with him, to benefit from substantial and significant time with him on weekends, during the week and for holidays.
The mother says weekends and holiday time is sufficient as it provides the same quantity of time. However, this is not significant and substantial time and weekend time and mid week time is of a very different nature.
The mother cannot contend for anything other than that the children will not be able to enjoy the same type of time they have had with their father to date if they move. Their father will not be able to continue to spend significant and substantial time with the children if they live on the Central Coast as the children cannot maintain mid week time with their father.
This is the gravamen of the dispute that I must determine.

The law and findings

Both parents say that there should be equal shared parental responsibility. As such the Act requires I determine whether an order should be made for the children to spend equal time with their parents, substantial and significant time, or if neither order is an order in their best interests then an order I determine is in the best interests of the children.
The children can only spend equal time or substantial and significant time as defined under the Act with their father if they remain living in closer proximity to him than they currently are on the Central Coast or if the father moves to the Central Coast.
If they are moved to the Central Coast that opportunity is no longer available to them as it is simply not practicable. I have no doubt that the children can maintain the relationship with their father and continue to grow and develop in that relationship whether the mother lives on the Central Coast or remains in the Sxxx. It is the quality of that relationship and the actual physical time the children spend with their father that will be seriously diminished if the mother’s application is successful.
I accept the father’s evidence that he is unable to relocate to the Central Coast. His business is in Rxxx, his home in Ixxx. The father has recently signed a five year lease on his business premises. His business is still young and is growing. His wife’s family and his family are in the Sxxx area. It is just not practicable for him to follow the mother.
In order to make an order in these children’s best interests, in the absence of their parents’ capacity to agree, I must consider the factors that are relevant under ss.60CC(2), (3) and (4) of the Family Law Act 1975 (Cth).
The most significant factors in relation to these parties and these children are:
a)The benefit to the children of a meaningful relationship with each of their parents;
b)The affect on the children of a separation from their father and the necessary change in their living circumstances if they live on the Central Coast;
c)The attitude of each parent to the responsibilities of parenthood; and
d)The capacity of each parent to promote in the children a positive attitude to the other parent.

There are no risk, violence or health issues. These children are fortunate in that they have competent, capable and caring parents and extended family and are much loved and cherished.
The mother exchanged contracts for the purchase of the home on the 26^th March 2007 shortly after the father’s re-marriage. It is the mother’s conduct in the purchase of the home and not informing the father until the deal was set in concrete that has caused me concern.
The first the father heard about the mother’s move to the Central Coast was a letter received by his solicitors on 2 April 2007. The letter is attached to his affidavit. It reads:
…[O]ur client has purchased a home and will be residing at the Central Coast in approximately six weeks.
Our client has had no alternative because she could not afford to purchase in the immediate Sydney area.
Our client understands and appreciates, that this may be difficult for your client to accept however, our client has had no alternative.
The letter went on to say that the children would spend time with the father each alternate weekend with the father returning the children to school on the Central Coast on Monday morning.
Understandably the father was dismayed. The father brought the matter to Court and the mother was restrained from permanently removing the children’s residence.
The mother did not see that her actions in making this significant and important decision on a unilateral basis was at odds with the position she took when the father sought to vary the consent orders on one important occasion to him namely his wedding.
The mother’s intransient attitude to the children spending overnight time after their father’s wedding is something I have difficulty in comprehending. A letter from the mother to the father of 18 December 2007 states:
As you are aware our children are due at 4.00 pm as per the consent orders. Due to this being the day you are getting remarried I am offering to extend the time.
The father went to court and the overnight time was given. However, the children had to be returned by 10.00am the next day for reasons the mother could not explain in cross-examination. The father’s request was perfectly reasonable and he only sought that the children participate in this happy and meaningful event.
The mother’s response was quite extraordinary. Her complaint that the father should have had his wedding on another day was immature and disappointing. She said:
If you really did want the children to attend your wedding why didn’t you arrange a date to ensure their attendance?
I relented and offered you graciously extended time with the children to attend the wedding and reception. But no you had to intimidate your mother. The “consent orders” will be strictly adhered to.
The mother further said:
It’s all about you, calling the shots, giving the orders and dictating to me what will happen.
It is the mother and not the father calling the shots. The mother said in correspondence that the consent orders must be strictly adhered to. Apparently only by the father not by her. The mother had no intention of abiding by the consent orders when she determined to live permanently on the Central Coast with the children.
There was no mention of sticking strictly to the consent orders in the mother’s solicitor’s letter of 2 April 2007. The mother’s decision cannot be compared to the father’s reasonable request for an additional night with the children on his wedding which the mother turned into an all out brawl. The mother admitted in cross-examination her conduct was not child focussed at that time.
I have some difficulty in reconciling the mother’s unilateral fait a` compli in announcing to the father by a solicitor’s letter that they will be permanently living on the Central Coast yet is so outraged and concerned when the father seeks an additional one night with the children to attend his wedding.
The mother conceded in hindsight her attitude toward the father spending additional time with the children at his wedding was just a complete mess. A mess I find the mother created. The mother admitted she knew the father was capable of making the appropriate arrangements for his children. Both parents are capable and competent and parent their children to a high level.
There was no such admission in the mother’s affidavit and her affidavit was an attempt to justify her behaviour.
It was put to the mother:
Q: You were of the view that the orders were not just guidelines?
A: That’s correct.
Q: Can you remember the first time you told Mr White you were thinking of living on the Central Coast?
She answered that is was by letter from her solicitor dated 2 April 2007.
The mother said she had legal advice which was that she was able to move. That is not as I understand the law.
However even if this version of the law be correct I am at a loss to understand how the mother, who puts herself forward as the parent who makes decisions which are best for the children, did not think to discuss with the father these important issues and consequences for him and the children.
The father is seeking flexibility in orders. I do not see an attitude of flexibility from the mother. Husband’s Exhibit 1 is an email from the mother to the father dated 24 November 2006 and says:
These orders are not just ‘GUIDE LINES’ as you so frequently state. These orders that we both agreed to and signed off on are there to provide our children with stability and routine to enable them to feel secure in when and where they will be on any given day.
There is no doubt courts expect parties to adhere to consent orders to provide and return children and the like. However, with young children and busy lives, parents need flexibility and the ability to communicate and change orders for the benefit of the children. This is a key matter for any successful parenting whether parties are separated or not.
This is all the more important when one parent, the primary carer of young children, wishes to live a considerable distance from the other parent. The reason being the younger the child and the greater the distance between the parents the less frequent is the time and thus the primary carer must work even harder to maintain the children’s close relationship with the other parent.
The mother unilaterally changed the twin’s pre-school and informed the father via email on 24 November 2006.
Next year M and L will no longer be attending Txxx Kindy. I have been unhappy with Txxx Kindy….
The mother may be justified in changing the children’s pre-school. I have no criticism of the change. It is the manner by which she failed to communicate with the father. Yet the mother has a view the father dictates to her. The evidence points to the contrary.
In cross examination the mother maintained that the father had some input into changing the children’s pre-school. That is not correct. It was as always a unilateral decision made her.
I accept when the parties were married and after separation caring for the children fell on the mother’s shoulders. The father worked long hours and left the care of these children to her. He rarely collected the children from pre-school and she had a heavy burden, a three-year-old and two babies. However, matters have moved in four years since separation.
This attitude and lack of understanding of the practical realities of both parents being involved in the children’s lives and decision making is of real concern when the mother tells me now she will ensure the children maintain a close relationship with their father from a distance of five hours a round trip. The mother’s conduct in moving to the Central Coast unilaterally, her attitude to the father’s request for additional time at his wedding, and changing the twins’ pre-school gives me no confidence that the mother will carry out what she says she will.
These parents do not communicate well or easily. The father agreed that he has a very direct style which may offend the mother. He said he has attempted talking to the mother at changeover concerning changing arrangements and realised this was not the best way to go about it. He said he would like to be able to sit down with his former wife over a cup of coffee and chat about these matters.
The father agreed he had some fault in this poor communication. The mother agreed the communication was poor. When asked how her unilateral decision to move to the Central Coast would have helped in overcoming this difficulty she said “I hoped we could have come to an agreement”. How the mother believed she and the father would come to an agreement about her move to the Central Coast when she did not tell him until after she had purchased the home is beyond my understanding.
Much was made by Ms Messner, Counsel for the mother, that the father’s present wife is young and inexperienced with caring for children and neither she nor the father has thought out how she would manage joint care of four children if I order equal time or more time than at present. I do not agree. At one point in our life all of us are inexperienced.
The father’s wife impressed me as an open, honest, thoughtful person who loves the children and has their best interests at heart. She is more than capable of assisting in their care when the father works.
Much was made by Ms Messner of the father working 80 hours a week. That is not the evidence before me. There are occasions when he does work 80 hours a week, but that is not his usual working hours. Much of his working hours are spent working at night when the children would be in bed. I find that the father, commensurate with his commitments, must work hard to support his family yet has attended some of the children’s school functions and has generally been at home when the children have been with him.

The impact of the move on the children

I am most concerned with what I see is the mother’s lack of insight into the impact on her children of living on the Central Coast and maintaining a relationship with the father and the paternal family.
The mother proposes they spend three weekends out of four with their father in Sydney. If that arrangement comes to fruition the children will be unable to participate in local sporting activities on the Central Coast, birthday parties with their school friends, and other similar occasions on the weekends. They will be living on the Central Coast yet not be able to engage in social activities with their peers in the place they live.
Further the mother’s orders impose upon the children a heavy burden of travel of no less than five hours for three weekends out of every four. Such travel may cause significant difficulties for them particularly as they grow older. The mother simply would not admit to any of those difficulties.
The Family Report is the best evidence in relation to the children.
The parents currently live 20 minutes apart and it is very easy for the parents to be involved each week in their children’s care and activities. This extends to their extended family as well.
The counsellor set out the issues as this:
a)The impact on O, M and L and their relationship with their father and other significant people in their life if their mother is permitted to relocate to the Central Coast;
b)How the children would spend time with and communicate with their father and other significant people if they were to move to the Central Coast;
c)What sort of arrangements should be in place for the children in spending time and communicating with the father if they do not relocate?;
d)The nature of the relationship between the children and each of their parents and other significant people; and
e)The practicality of the parents’ proposals on the children.
The counsellor said that during the assessment she determined another issue which was whether the mother has the ability to recognise the importance of the children’s relationship with their father and paternal family and to continue to facilitate that relationship if she moved to the Central Coast.
The report writer asked the mother if she thought the children would miss their father if they went to the Central Coast. She said “No they would see him every second weekend”.
The mother said she had spoken to the school principal and O could start an hour late every Monday so that her Dad could take her to school. The mother thought that the children not being able to engage in out of school activities every second weekend would not have a huge impact on them.
The mother said she did not believe O would have any problem changing to a new school and she was going to have to change schools in any event. If the mother is not permitted to live on the Central Coast with the children she will not go back to live with her mother and would rent somewhere in Sxxx.
The court counsellor opined that the break up of the marriage is still causing the mother some issues. The mother agreed the father is a father whom the children love.
The maternal grandmother said she will endeavour to live where her daughter lives but was not really focussed on the issues before the Court. The counsellor said her focus was their poor marriage not the current issues. I agree with that assessment. The mother and the grandmother feel the father abandoned them and left for another relationship and are resentful of that situation.
When asked about time with her father O said:
I’d like to see Dad and his wife more, especially now that I will now have another brother or sister, but the new house is really nice.
When she was asked about time she had not spent with the father she said:
I wanted to go to Dad’s but I was too worried that Mummy was sad and she’d be alone so I thought I should stay with her.
O said she would like to see her mother Monday, Tuesday and her father Wednesday, Thursday and spend alternate weekends with each. She wished her parents were friends and she is quite scared about changing school and she would “miss lots of people if we are far away.”
The twins said that they know “the house is very far in the car and it gets dark”. The twins said they would like to spend time more time with their father and the new baby.
O and L say the same thing. They detect sadness in their mother and this impacts upon them. M does not have such difficulties. There is a close, emotional attachment between the children and their mother. Any stress, anxiety or hurt the mother is experiencing is felt most closely by O and L and less so with M.
If the mother is not permitted to live in her home and get on with her life I accept she will be very disappointed and sad. Further, the consequence of not letting the mother get on with her life could have an adverse affect on the children because they are so closely emotionally attuned to her.
There is no doubt the home the mother has purchased is a comfortable and high quality home. The mother is able to transfer within her present employment to the Central Coast. Her cousin lives close by and the mother intends to live on the Central Coast as well. There is a suitable school for the children to attend. Thus the mother’s arrangements from her perspective are in train and well organised.
The court counsellor opined that the constants for children are generally their parental and close family attachments as opposed to friends and other people. Strong and constant relationships with parents and other family members allow the children to develop a sense of themselves as lovable and worthy, to develop feelings of trust and to become trustworthy. Children need stability in their important attachments. The court counsellor said that the children have a strong attachment to their father; the relocation may not possibly erode that attachment, provided they have broad and meaningful interaction with him.
O could maintain a relationship with her Dad provided it was supported by her mother. O would miss him and feel sad. M and L require a great deal of support in maintaining their relationship with the father from a distance.
The father said he has wanted shared parenting for a long time but has had difficulty in communicating with the mother. I agree with his evidence. The mother’s responses to him in emails are curt and directive. For example, the mother’s unilateral decision to permanently move to the Central Coast, her attitude to the father’s wedding and request for additional time. Poor communication is evident and not permitting the mother to move will not assist in the parties communicating in the short term.
The father is most concerned at the amount of travel the children will be exposed to if they live on the Central Coast. The father did not suggest as an alternative that the the children live with him full time. He is capable but accepts the children would not be able to live apart from their mother.
The mother says that she had sold her home for financial reasons. I accept her evidence that she could not maintain the mortgage on the former home. However this is not a case where the mother cannot afford reasonable accommodation. On her own evidence she can. The mother cannot afford what she regards as an appropriate standard of accommodation in Sxxx, namely a similar home to the former matrimonial home.
From her own affidavit there were at least six properties under $500,000 in the Sxxx area. Her evidence disclosed she could rent a four bedroom home for $450.
It is not correct for the mother to say she could not afford to live in the area. She cannot afford to live in accommodation she believes is appropriate for herself and her children.
The counsellor says she is concerned about the way the mother excluded the father from her decision to relocate. The court counsellor’s opinion that the children would find the travelling a burden is shared by me. The mother makes light of something which is a significant issue in this matter namely the children and father wishing to maintain and continue their close relationship.
The court counsellor said that there are indications the mother may rely upon the children for her own emotional support. The evidence is that at times she does.
I do not however accept Mr Givney’s submission that there is a pattern of the mother being unable to support the children spending time with their father. This may have been the case early on when the children were young, but the mother has gone to some lengths to support the children having a relationship with their father.
What I find is that the mother will only support a relationship with the children and their father that she agrees with. The mother would not be supportive of equal time or a more involved arrangement than at present.
The mother was of the view that three weekends out of four was appropriate. She would support that involvement even if it was a burden for her children and not an order that I, the father or the family consultant regarded as in their best interests. There is a degree of the mother acting unilaterally in everything concerning the children and that her best interests are the same as the children’s best interests.
The court counsellor’s opinion was that the mother not relocate to the Central Coast with the children, and that the children spend equal time with their parents in the future due to her concerns of the mother’s lack of capacity to support the children’s relationship with their father over distance and time.
It comes to me to consider all these matters.

Equal time

I formed a view that it is not an order in these children’s best interests that they spend equal time with their parents at any time. The father works hard and at times for long hours. A week away from their mother for the twins is at this stage too long. Both parents have experienced difficulties with the children in separating from their mother.
The issue of significant or substantial time looms large. These children will benefit from their father being involved in their life each week, on the weekends and in the holidays.

The travel proposed by the mother is a burden for the children. As the children grow older that burden will increase and may involve some resentment.
The father can have no involvement with the children during the week if they are living on the Central Coast. A round trip for him is five hours. It is a nonsense for the mother to even make that suggestion.
The mother has made this decision because it suits her and provides a level of accommodation for her and the children she deems appropriate. I agree that the home she has purchased is accommodation of a high standard.
However, that is the only basis upon which I can see that the mother has made this decision. I accept that she could not afford to live in the matrimonial home and that it needed to be sold. I accept she cannot afford a similar home in Sydney. However, I do not accept she cannot afford a reasonable home in Sxxx. The father does not own a home. He rents to provide a home to accommodate the children and him. The mother is at least in the position to own a home to accommodate her and the children.
The mother’s conduct in looking to purchase a home so far away from the father for many months, doing so in secret, buying the home in secret and presenting him with a fait a compli bespeaks volumes of her attitude towards the father’s involvement in his children’s lives.
This, coupled with the mother’s conduct at the time of the father’s wedding, gives me little confidence in her ability to put the considerable effort required into ensuring the children maintain a close relationship with their father over such a distance.
The children have a right to the benefit of a meaningful relationship with their mother and their father. That right with their father will be seriously impinged if they live on the Central Coast.
That the mother suggest they spend three weekends out of four in Sydney when they live on the Central Coast shows her lack of insight into the children’s need to spend time with their school friends on the weekend and engage in birthday parties, ballet, soccer and the like. The children will be denied these important socialising activities if they spend three weekends out of four in Sydney.
O has expressed some concerns about going to a new school. I accept O will attend a new school in any event. If I order the mother to remain in Sxxx the mother will chose the school the children attend and the father may have to do some travelling.
The children have expressed a concern about missing their father and wanting to spend more time with him, particularly as they are to have a new sibling.
The impact upon these children of such a significant move to an environment, with which they have some familiarity although have never lived, and being separated from their father and paternal family may have serious consequences for their emotional health.
This is particularly so when the mother has a history of making unilateral decisions not necessarily in the children’s best interests but what is in her best interests. The mother chose a quality home for her children over their important relationship with their father as I see the evidence. The mother has difficulty in separating her best interests from the children’s best interests.
There is a degree of overlap with her needs and the children’s needs and a lack of understanding of the children’s need for their own separate lives and relationship. The mother seriously minimised to the court counsellor the negative impact of the children moving to the Central Coast. What she said to the court counsellor is not what the children said. They said it was a long way to go and it was dark. O is scared about moving to a new school and will miss her Dad.
The mother does not understand that her attitude to the father has spilled over, particularly to L and O in that they think their mother is “sad and they don’t want to leave her and go to Daddy”. The mother has not been able to protect the children from the difficulties she has had due to the separation and the children have been unwittingly embroiled in the dispute.
The mother has failed at times to carry out her parental responsibility to ensure that the children have as much involvement with the father as possible and the father has struggled at times to ensure that he is involved with his children’s lives. I have little confidence that:
a)The mother would be able to maintain a regime of three weekends out of four for the children living in the Central Coast and seeing their father in Sydney;
b)The children themselves will be able to maintain such a robust regime; and
c)The mother will be able to assist the children to overcome the significant difficulties in being exposed to such an onerous travel regime.
The mother can live wherever she wishes and does not need to justify to me her reasons for moving. Had the mother determined to move to an area south of Sydney these difficulties may have not arisen.
There is likely to be some negative impact on the children due to the mother’s understandable sadness and distress if she is not able to move. However, on balance, that is of less concern to me than the consequences for the children of the travelling, lack of social connection with peers due to the travelling and, most importantly, the inability of the father to be involved with the children on a weekly basis and during the school week.
The mother’s reason for the move was to enable her to purchase a high quality home within her budget. I accept that is a genuine reason. I have found that the consequence for the children in allowing the mother to move will have a significant negative impact on the benefit to them of a continued meaningful relationship with their father.
On balance I find the mother’s decision to move to the Central Coast was not made in the children’s best interest and her application fails.
I make orders in accordance with those as set out at the commencement of this judgment.

I certify that the preceding one hundred and forty-nine (149) paragraphs are a true copy of the reasons for judgment of Henderson FM

Associate: Maryrose Portelli

Date: 31 January 2008