Whitehill & Talaska (No 3)
[2024] FedCFamC2F 1890
•24 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Whitehill & Talaska (No 3) [2024] FedCFamC2F 1890
File number(s): MLC 3002 of 2024 Judgment of: JUDGE O'SHANNESSY Date of judgment: 24 December 2024 Catchwords: FAMILY LAW – Parenting – application to vary final orders – where mother seeks to move to a not-too-distant suburb for work and to be closer to family – where mother says current orders significantly hamper career and earning capacity – where father opposes change to final orders – application to vary final orders successful – orders made to accommodate mother’s new residence – recusal application reserved – costs reserved – all extant applications are otherwise dismissed. Legislation: Australian Constitution s 92
Family Law Act 1975 (Cth) ss 60CA, 60CC, 65DAAA
Cases cited: AMS v AIF (1999) 199 CLR 160; (1999) FLC 92-852; (1999) 24 Fam LR 756
D & SV [2003] FamCA 280
Gerner v Victoria [2020] HCA 48; (2020) 270 CLR 412
Rice & Asplund (1978) 6 FamLR 570, (1979) FLC 90-725
Sciacchitano & Zhukov [2024] FedCFamC1A 224
SPS & PLS (2008) FLC 93-363
U v U (2002) FLC 93-112; (2002) 29 Fam LR 74
Whitehill & Talaska [2024] FedCFamC2F 768
Division: Division 2 Family Law Number of paragraphs: 109 Date of hearing: 20 December 2024 and 23 – 24 December 2024 Place: Melbourne Counsel for the Applicant: Ms Swann Solicitor for the Applicant: Saunders Family & Estate Lawyers Counsel for the Respondent: Mr Willee Solicitor for the Respondent: M C Lawyers & Associates ORDERS
MLC 3002 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WHITEHILL
Applicant
AND: MR TALASKA
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
24 DECEMBER 2024
THE COURT ORDERS THAT:
1.The Orders that require the child X born in 2021 to spend time with her father, Mr Talaska (‘the Father’), on each alternate Friday from 12.00pm until 5.00pm, being Orders 7 (c), 8(c), 9(c), 10(c), and Order 15 (that specifies the place of changeover) of the Orders dated 11 April 2023 (‘the 2023 Orders’) be and are discharged.
2.The 2023 Orders be varied as follows:
(a)That the part of the 2023 Orders in operation as at this day, paragraph 7, that provides for the time that X is to spend with the Father, be varied so that X is to spend time with the Father as follows:
(i)Each Wednesday from 8:00am to 5:30pm;
(ii)Each alternate weekend from 6:00pm Friday until 12:00pm Sunday.
(b)That the part of the 2023 Orders that was to come into operation on 23 July 2025, paragraph 8, that provides for the time that X is to spend with the Father, be varied so that X is to spend time with the Father as follows:
(i)From 23 July 2025 to the start of the academic year in 2027, X spend time with the Father as follows:
(A)Each Wednesday from 8:00am to 5:30pm;
(B)Each alternate weekend from 8:00am Friday until 3:30pm Sunday.
(c)That the part of the 2023 Orders to come into operation on 23 July 2026, paragraph 9, that provides for the time that X is to spend with the Father, be varied so that X is to spend time with the Father as follows:
(i)From the start of the 2027 academic school year until the start of Term 3 of the 2027 academic school year, X spend time with the Father as follows;
(A)Each Wednesday from 3:30pm to 6:30pm;
(B)Each alternate weekend from 3:30pm Friday to 5:00pm Sunday.
(d)That the part of the 2023 Orders to come into operation from the commencement of Term Two 2027, paragraph 10, that provides for the time that X is to spend with the Father, be varied so that X is to spend time with the Father as follows:
(i)From the commencement of Term 3, of the 2027 academic school year, and thereafter, X spend time with the father as follows:
(A)Each Wednesday from 3:30pm to 6:30pm;
(B)Each alternate weekend from 3:30pm or the conclusion of school on Friday until 9:00am or the commencement of school on Monday, and if the Monday is a non-school day, the following Tuesday PROVIDED that X spend Sunday night (or Monday night as the case maybe) at her paternal grandmother's home in Suburb D, or place of similar travel for X, so that she is not subjected to long travel times in being delivered to school AND if such accommodation is not available then the Father provide no less than 72 hours notice to the Mother and return X to the Mother at 5.00pm Sunday.
3.Unless otherwise agreed between the parties in writing, all changeovers occur at school (when X is attending school) and otherwise at the M Service Station at Suburb N (on O Street) OR when the Father provides the Mother with at least 24 hours notice in writing via the parenting application, then at the McDonald restaurant in Suburb D.
4.Reasons for the Father’s applications for disqualification of the Judge be and are reserved.
5.The decision and reasons in regard to the Father’s application for costs be and are reserved.
6.All extant applications are otherwise dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Judge O’Shannessy:
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
Background
The matter of Whitehill & Talaska comes before me for the third time in 2024 on a final hearing that involved the issues of whether the Court could, and should, change the orders relating to the time the child, X, spends with her father, Mr Talaska (‘the Father’), in the context of the applicant mother, Ms Whitehill (‘the Mother’), wanting to move and change her residence from Suburb P to Suburb Q.
The parties had consented to final orders on 11 April 2023 following the release of a family report of family consultant, Ms R. For the reasons that follow, I am satisfied that it is in the best interests of X, now three, to make the orders as sought by the Mother. I am also satisfied, for the reasons that follow, that the Court is not only permitted, but commanded to reconsider the 11 April 2023 final orders by the provisions of section 65DAAA of the Family Law Act1975 (Cth) (‘the Act’).
Further, and whether or not the provisions of section 65DAAA are met, the associated rules formerly known as the rules in Rice & Asplund (1978) 6 FamLR 570, (1979) FLC 90-725 (‘Rice & Asplund’) – that include paragraph 83 of the decision of SPS & PLS (2008) FLC 93‑363 (‘SPS & PLS’), a decision of Warnick J, and oft-cited and referred to – remain part of the body of the law following the significant amendments coming into effect on 6 May 2024.
For reasons that I will go to shortly, the orders that I make are largely in the form as proposed by the Mother, but with some minor variations. The minor variations are a matter of form only to give effect so that this order could be read alone, and it would not be necessary to juxtapose on a mobile telephone at a service station, or wherever else, to give sense to the orders.
In this case, I rely upon the reasons delivered in July of this year in Whitehill & Talaska [2024] FedCFamC2F 768, where I made an interim decision in this case. I rely upon those observations as the background to the matter.
Following an incident between the Mother’s father and the Father in this case at a changeover in early 2024, there was a serious interruption to the Father’s time with X. That interruption became an entire suspension of time in the circumstances where the Mother insisted that all changeovers thereafter be agreed to be at a local police station, and the Father did not so agree, and time did not occur.
Then, after the Mother had issued proceedings on or about 15 March 2024, the Father agreed to have changeovers – pending Court order – at the police station. Then, the Mother asserted that time would not occur because of her concerns in regard to the Father’s mental health. That unsatisfactory state of affairs continued until I made orders on 27 May 2024 that provided for the time provided in the 2023 final orders. I also appointed a single expert to undertake a psychiatric examination of the Father.
At that time, the allegations of family violence were a significant part of the Mother’s affidavit material. On the hearing on 27 May, that history of family violence was not pressed as being a primary reason to suspend the time, but rather the indications and risk of the Father having had an episode, or a relapse, of poor mental health. In due course, the father attended and paid for a consultant psychiatrist, Dr K, to assess his mental health. Dr K produced a report, and the report was provided to the Mother.
Upon receiving the report, the Mother significantly changed her position and no longer pressed any change of the orders in regard to a deficiency in the Father’s mental health. However, she did press, at that time, for what she described as a minor change to the existing orders that related to the child’s time on Wednesday and Friday.
It was the Mother’s position then, and it has been for some time, that the nature of the orders, whilst she says she broadly supported them, she says significantly interfered with her ability to undertake her chosen profession of a Wednesday and Friday. She says that the end result was that she worked part-time rather than full-time and that this had a material and significant effect upon the resources that she had available as a single parent to support X.
When the matter returned to court on 21 August 2024 and those matters were agitated before Senior Judicial Registrar Flintoff, the Senior Judicial Registrar – perhaps unsurprisingly given the detail in the decision of Whitehill & Talaska of 5 July 2024 (when reasons for the previously delivered decision were made available) – determined that the matter should be listed before me.
In addition to the Mother pressing for what she described as the minor changes, the Father pressed for an order for costs in regard to the proceedings up until that time, his position being that with the report of Dr K, he had been vindicated and the Mother had been entirely unsuccessful in the proceedings.
Proceedings before me in November
The matter then came on before me on 22 November 2024. However, the litigation had moved on. The Mother asserts, and I accept, that she had, in recent times, made connection with family in the City L area. It was not asserted that these were particularly close at that time, but nonetheless they were family, and the Mother asserted that she could obtain support from them.
The Mother asserts, and I accept, that the family living in the City L area identified and saw a position described as an ‘educator’ in the City L area. This was a full-time position. The Mother applied for that position – that is, a week after the hearing before Senior Judicial Registrar Flintoff. On 1 October 2024, the Mother brought to the attention of the Father’s solicitors her proposal to relocate so that she could take up that position. I am satisfied that the Father was on notice of the Mother’s intention to take up a new job in the City L area from October 2024.
The Mother sought to file and rely upon an amended initiating application, filed and served on or about 31 October 2024. The changes that the Mother pressed – she said at that time to facilitate her taking up the new employment as a better career position and at a significantly higher salary (largely because it is full-time) – were to the effect that the existing orders needed to be varied. The existing orders applicable at that time provided for the Father to spend time with X each Wednesday from 9.00 am until 5.00 pm and each alternate weekend from 9.00 am Saturday until 12 noon on Sunday (that is, one night overnight), and each alternate Friday, being in the alternate week to the Saturday above, from 12.00 pm until 5.00 pm.
The variations that the Mother sought in that document, described as an amended initiating application, were that the Wednesday time would be increased from 8.00 am until 5.30 pm, and the weekend time then in place would be increased (from 9.00 am Saturday to 12.00 pm Sunday) by commencing at 6.00 pm on Friday to 12.00 pm Sunday (that is, the one night overnight alternate weekend became a two night overnight weekend with half of Sunday), but the alternate Friday, being from 12.00 pm to 5.00 pm, was to be deleted, or not to occur.
The Father’s position in regard to the Mother seeking to amend her application was that the Mother was not permitted to file an amended application and needed the leave of the Court. I am satisfied that on a strict reading of the orders of 21 August 2024, that was correct. The Senior Judicial Registrar had noted on those orders:
A. The remaining outstanding issues for determination are:
(a)The applicant mother intends to agitate a minor variation to the existing orders, which is opposed; and
(b) the respondent father will make an oral application for costs.
Hence, the matter came before me on that date in November, whereby the Mother pressed for a hearing of the amended application, which had been sealed by the Court, but which had not yet been properly filed, and which the Father objected to any reliance thereon.
The Father’s position was that the Mother should not be permitted to amend her application. His further alternative position was, in the event that amendment was permitted, that the further hearing of the matter should be adjourned for a substantial period of time to permit him to file responding material and to work and save up sufficient funds to pay for lawyers to represent him. The period of time sought was in the order of months, and as best as I could tell, many months, although no precise time was nominated, and I accept that in the difficult circumstances presenting to the Father, he could not nominate a time.
For the reasons given on that day, I accepted the Father’s application to permit him time to file material in response to the matters contained in the Mother’s amended initiating application dated 31 October 2024, but I noted that the Father had, by that time, been on notice of the application and the intended changes since 1 October.
The Mother’s position was that she sought to relocate and start her new employment. She had given notice on her residential premises and had obtained new accommodation in the area of Suburb Q, where she wished to move. Suburb Q is a suburb on the other side of the city of City L to the part of Melbourne where the Father lives. However, it is accessible from Melbourne in a way which, depending on the traffic, can be a less time-consuming, or troubled, journey than travelling through the middle of City L, even if it is past a busy area through to the areas of Region U and Region V.
The Mother’s position was that she wished to take up the employment in January, and with the long summer vacation soon to be upon us and my list being heavily listed throughout January, February and March, I was troubled that one of several things would occur.
The first troubling possibility was that the Mother would take up the position in City L and the accommodation in Suburb Q and attempt to comply with the existing orders that required changeovers to be at Suburb E (that is, a suburb near the edge of the Greater Melbourne area, but still some distance from where the Father lives in the Melbourne area), or, at the Father’s option, near Suburb D where the Father’s parents had a property. I was concerned that if the Mother chose this option, the stress of a working day for the Mother in getting to her work and the resultant stress and travel time being imposed on X was not in her best interests, and likely to be troubling for X and for both of her parents.
The other alternative was that the Mother did not take up the employment and just hoped that she would get another position, and then attempt to get out of the lease of the new premises. None of these was a good outcome.
In those circumstances, I determined that I would hear the matter before Christmas when I had some judgment writing time available, being Friday, 20 December. It had been my intention to contain the matter to within one day. It was in those circumstances that the parties appeared by counsel on Friday, 20 December, after filing outlines of case and affidavits in support of their case.
Proceedings before me in December
As luck would have it, I contracted the virus known as COVID on or about the weekend preceding the Friday, 20 December. I was eventually able to work out, with the assistance of appropriate tests, that I was positive to COVID and that I was likely, or at least possibly, contagious and that it was not appropriate to have the parties and myself in the same courtroom. In those circumstances, I determined that the hearing should be by way of video link. I did so without consulting the parties and I did so on the basis that video link hearings and video link final hearings have, during and since the COVID pandemic, become ubiquitous in this Court.
A mere few days before that listed hearing, I was hearing a complex enough parenting and property matter for parties who lived in Sydney, where counsel, solicitors, parties and expert witnesses were all heard in a Sydney matter in Melbourne, but by video link. It was in those circumstances that I determined the choice between adjourning the matter or proceeding by electronic hearing was overwhelmingly in favour of an electronic hearing. Hence, the matter proceeded, but by video link.
I heard the matter. I was unable to start the matter promptly at 10 o’clock due to two other matters that were listed that took up some time. However, the matter commenced in the morning, and I sat continuously till about 2.30 in the afternoon, and then, after a short break for a luncheon adjournment, sat until shortly before 5.00 pm. I was constrained to sit any later because the Mother had, not unreasonably, arranged to collect X from child care at 5.30 that evening in a suburb some distance from counsel’s chambers from where she was giving evidence electronically.
In those circumstances, and against the submissions of counsel for the Father, I adjourned the matter to the following Monday, that is, yesterday, which was a day of my leave. I was able to do so because of the generosity of another associate of this Court, and that is an associate to Judge J. Young, who was able to come into Court to assist me, as my own associates were unavailable for good reason, like leave and/or illness.
The matter then proceeded for most of Monday, concluding a little after 5.00 pm, but that hearing was in person in the courtroom. A consequence of those arrangements was that the Mother was cross-examined by counsel for the Father via video link, but the Father was cross‑examined by counsel for the Mother in person in the courtroom. Having conducted dozens of video link final hearings, and in the circumstances of both counsel having considerable experience in final hearings in this Court, including on video link, I am satisfied that there was no disadvantage or advantage to either party in regard to the circumstance that part of the hearing was on Friday electronically and part of the hearing on the following Monday was in person.
The parties relied on the material set out in their outline of case. The Father relied on the family report that had been obtained shortly before the 2023 final orders. That report was untested and there were observations in it that were controversial, as well as observations in it that were uncontroversial. The Father relied upon that report, and I accepted that it was appropriate to do so, as part of the context and surrounding circumstances to the 2023 final orders. I will return to that report later.
The Mother’s case
I now turn to the Mother’s case. In her outline of case, the Mother identified the following as the issues in dispute:
1. Consideration of Section 65DAAA of the Family Law Act 1974 (as amended): whether the applicant mother’s change of residence to the [City L] region due to new employment is a significant change of circumstances and, in all the circumstances, whether it is in the child’s best interests for the Orders dated 11 April 2023 (“the Final Orders”) to be reconsidered.
2. The mother seeks variations to the Final Orders regarding the time the child spends with the father on Wednesdays and alternate Fridays. The variations sought will not (or will not significantly) reduce the time that child spends with the father overall.
3. The mother’s move to the [City L] area will necessitate a variation to the venue for changeovers.
4. The father seeks an order that the mother pay his legal costs.
In opening, the Mother, by way of her counsel, made it clear to me that it was alleged that there had been a sufficiently significant change of circumstances such as to warrant the reconsideration of the 2023 orders pursuant to section 65DAAA, which provides as follows:
65DAAA Reconsideration of final parenting orders
(1)If a final parenting order is in force in relation to a child, a court must not reconsider the final parenting order unless:
(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
(2)For the purposes of determining whether the court is satisfied as mentioned in paragraph (1)(b), and without limiting section 60CC, the court may have regard to any matters that the court considers relevant, including the following:
(a)the reasons for the final parenting order and the material on which it was based;
(b)whether there is any material available that was not available to the court that made the final parenting order;
(c)the likelihood that, if the final parenting order is reconsidered, the court will make a new parenting order that affects the operation of the final parenting order in a significant way (whether by varying, discharging or suspending the final parenting order, in whole or in part, or in some other way);
(d)any potential benefit, or detriment, to the child that might result from reconsidering the final parenting order.
(3)Despite subsection (1), the court may reconsider a final parenting order with the agreement or consent of all the parties to that order.
(4)The failure of a court to comply with subsection (1) does not affect the validity of any order made by the court.
It was put alternatively that, whether or not that was so, the alteration sought required only a short and narrow inquiry and the rule in Rice & Asplund and/or section 65DAAA did not prevent such a hearing and inquiry.
It is important to turn to what the changes pressed by the Mother were. The changes pressed by the Mother’s amended application dealt with what was the cascading chain of different existing final orders that varied according to the age of the child in what the parties had previously found, and I am satisfied was, an age-appropriate manner and was consistent with the recommendations of the retained family expert.
But significantly, in terms of the orders operating at this time until mid-2025, the Mother pressed that the time each Wednesday be increased from 9.00 am to 5.00 pm to commence earlier and finish later, and to be from 8.00 am to 5.30 pm, and the alternate weekend that was currently, and by the orders in place, providing for time from 9.00 am on Saturday until 12.00 pm on the following Sunday to increase immediately to commence at 6.00 pm on the Friday to continue until 12 noon on the Sunday, but the alternate Friday, being the five hours from 12 noon to 5.00 pm, was not to occur.
The next regime of orders to change according to the 2023 final orders was to occur from X’s fourth birthday, and that was that the time was to be the same on Wednesday under the existing orders, that was 9.00 am to 5.00 pm, and the Mother pressed that that too change to 8.00 am to 5.30 pm, and the alternate weekend that was to come into operation in mid-2025 was to be from 3.30 pm Friday until 3.30 pm Sunday. That is, the alternate weekend was, according to the existing final orders, to change to a two-night weekend in mid-2025.
The Mother pressed that those times change so that the Wednesday continue, on her case, to commence at 8.00 am and to continue to 5.30 pm, and the alternate weekend was to commence at 8.00 am on the Friday to continue until 3.30 pm on the Sunday. That is, the alternate weekend was to continue as a two-night weekend, but now to be over three days of the weekend including the whole of the Friday, that is, Friday, Saturday and Sunday, but, of course, in this case, as in the previous case, the alternate Friday of five hours from 12 noon to 5.00 pm was not to occur.
The Mother then pressed that the regime that would otherwise have started from mid-2026 and that was to continue until term 2 of 2027 was also to change. The existing orders provided that that was to be each Wednesday from 9.00 am until 5.00 pm, and each alternate weekend from 3.30 Friday until 5.00 pm on Sunday. The Mother pressed for orders that re-jigged that time. It now being clear that X would start school in 2027, the Mother pressed that the previous regime continue through the whole of the 2026 year up until the start of the 2027 school year, and that the Wednesday time then be necessarily limited to commence at 3.30 pm, or the conclusion of school, but continue until 6.30 pm, not 5.00 pm as the orders had provided, and that the orders would otherwise continue from alternate weekends 3.30 Friday to 5.00 pm Sunday.
The Mother then pressed, in her amended application, commencing from term 2 of 2027, the same regime as previously. By her amended orders sought in annexure A to her outline of case, which became exhibit M1, at this point, when X would be at school, the Mother pressed for orders that were significantly different. That is, that from the commencement of term 3 of the 2027 academic school year, X spend time with the Father as follows: each Wednesday from 3.30 pm to 6.30 pm, and each alternate weekend from 3.30 pm or the conclusion of school on Friday until 9.00 am or the commencement of school on the Monday, provided that X was spending the Sunday night at the paternal grandmother’s home in Suburb D[1] so that she was not subjected to a long travel time.
[1] Suburb D being an area roughly halfway between the Father’s home in Melbourne and the suburb where the Mother wishes to live.
Otherwise, the Mother pressed in her amended application and in her proposed minute of orders that the changeover place be at X’s day care facility, kindergarten or school, whichever she was attending, but otherwise at the McDonald’s restaurant in Suburb D.
The Father pressed for there to be no change to the orders and things simply to remain as they were. The Father had not at any stage pressed and, I say sensibly, did not press for an injunction seeking to restrain the Mother from moving. But the Father’s case was that the additional travel time for the Mother was to be a matter for her and that there was no harm to X getting up a bit earlier so that she could be at the changeover place at Suburb E, or Suburb D if he so elected, as already in the final orders.
The changeover dispute
To give sense to this dispute, it is necessary to recite the terms of paragraph 15 of the 2023 orders:
15.Unless otherwise agreed by the parties in writing, all changeovers occur at school where appropriate and otherwise at McDonald’s in [Suburb C][2] or, where the Father will be spending time at his parents’ [property] in [Suburb D], at the McDonald’s in [Suburb E] provided that Father provides the Mother with at least twenty-four (24) hours’ notice in writing via the [parenting] Application.
(emphasis added)
[2] An inner city suburb.
The other aspect is that the Mother alleges that, by and large, on most alternate weekends the Father exercises the option to have a changeover at Suburb E – that is, changeover at the place that accommodates him staying at the Suburb D property, or at least spending time there on most occasions. She gave the following evidence on affidavit:
39.On the alternate weekends, the Respondent Father often elects to have changeover at [Suburb E] because he spends the weekend at his mother's home in [Suburb D]. Of the past 16 weekends, 12 changeovers have taken place at [Suburb E]. A summary of the changeover locations is as follows:
(a). 24 December at [Suburb E];
(b). 6 January at [Suburb E];
(c). 20 January at [Suburb E];
(d). 1 June at [Suburb E];
(e). 15 June at [Suburb C];
(f). 29 June at [Suburb E];
(g). 13 July at [Suburb E];
(h). 27 July at [Suburb E];
(i). 10 August at [Suburb E];
(j). 24 August at [Suburb E];
(k). 7 September at [Suburb C];
(l). 21 September at [Suburb E];
(m). 5 October at [Suburb C];
(n). 19 October at [Suburb C];
(o). 2 November at [Suburb E];
(p). 16 November at [Suburb E];
That evidence was unchallenged and ultimately not disputed when put to the Father in cross‑examination. Hence, the Mother had good and sound reason for it to appear to her that on most weekends when the Father had X, he spent it at his mother’s property at Suburb D. It was the Mother’s case that X very much enjoyed the time at the property and that it was a good and proper place for the Father to exercise time with X.
The Father’s case was that, notwithstanding order 15, that order, when there was a Suburb E changeover, did not require him to be at Suburb D, and he was only at the Suburb D property on maybe every second weekend, notwithstanding those changeovers there, and that a changeover at Suburb E was convenient to him to visit other family in the Greater Melbourne area.
Lest I have not made the point clearly, the Mother lived in a suburb of Melbourne, some considerable distance from the Father’s residence in Suburb W. The orders provided for a Suburb C changeover, being a place almost the opposite direction of the Father’s residence at Suburb W, but on the Father’s side of the city given that to get to the Mother’s home, as it then was in Suburb P, travel was required from the outer suburbs through, or around, one way or another, the inner city area of Melbourne to the outer suburbs where the Mother lived.
The Father’s case
The Father had an alternative proposition, and I am grateful to him for having the common sense to have that position. In his affidavit filed 13 December 2024, the Father made the following proposals:
71. Although I make it abundantly clear that I do not wish for the Court orders to be varied in any way shape or form, I would like the below proposals considered and adopted should the Application for Relocation[3] be accepted: -
[3] The Mother’s case was not permission to relocate but to vary the spend time orders but nothing turns on this slight mischaracterisation.
72. From the moment the orders are varied until 31 December 2026, I propose to spend time with [X] as follows : -
73. Every week Tuesday morning from 8am (or earlier if needed) until 5PM Wednesday night (or later if needed) or alternatively every Wednesday morning from 8AM (or earlier if needed) to Thursday night 5 PM (or later if needed) ; and
74. Every alternative weekend commencing Friday 8AM until Sunday 5PM .
75. All above changes to occur at [Suburb E] McDonald's unless agreed upon by both parties. These proposed changes will reduce the excessive travel time [X] spends in a car on one given day and provide [X] and I with quality meaningful time together, which will allow us to continue to build and strengthen our relationship. By continuing to have changeovers at a mid-way point, this will assist [X] with breaking up the excessive/increased car travel time, this relocation will undoubtedly cause. By picking up [X] every Tuesday morning, this will allow [X] to continue her regular [sports] lessons every Wednesday morning.
76. From when [X] commences school in January 2027, I propose to spend time with [X] as follows:
77. Every week Wednesday from 3:30 PM to 6:30 PM provided I collect [X] from school and return her to school; and
78. Each alternative weekend from 5PM Friday to 5PM Sunday and all handovers will be at [Suburb E] McDonald's unless otherwise agreed by the parties.
79. Face Time's with [X] will be three times on the week that I don't have her on weekends and two times for the week that I do.
80. All other orders remain unchanged.
The long and the short of the Father’s position was that no changes should occur, but that if changes should occur, he should have X on an alternate weekend from 8.00 am Friday until 5.00 pm Sunday, as well as over two days during the week from each Tuesday morning through to each Thursday evening.
The Father’s outline of case, and the case conducted by his counsel, was that the Mother had manipulated his time previously, as demonstrated by the hiatus or non-compliance with the existing orders between early 2024 and the hearing on 27 May 2024, and for an inadequate reason – that being the deterioration in his mental health – and that she had been entirely unsuccessful.
The Father’s case, as conducted by his counsel in cross-examination, was to attempt to demonstrate that the Mother’s prior allegations of family violence, at the time they were being made, were without foundation or were specious and were part of a motivated campaign of the Mother to distance the Father from the child. It was alleged that the Mother did not support the relationship with the Father and this was demonstrated by the Mother’s conduct over the February 2024 to May 2024 period.
Further, the report of Ms R was relied upon as conclusionary evidence of the matters that it asserted. Ms R’s report, prepared as what could be described as a ‘short form family report’, was a significantly detailed and carefully prepared document. The parties had been interviewed in December of 2022 at a time when X was approximately 18 months old. Significant observations of Ms R in that report included the following:
50. Consistent with [Mr Talaska]’s claims, [Ms Whitehill] readily admitted to the parents initially separating under one roof and coparenting amicably. She claimed that it was not until days prior to her leaving the family home, that issues became apparent, with her reporting that [Mr Talaska] had advised her that [X] was to remain living with him if she left, rather than their agreed arrangement of [X] sleeping each night at her home and spending regular day time with [Mr Talaska] on several days per week. She claimed that she was subject to “screaming, shouting and threats.”
…
52. Given the above concerns, rather than seeking independent accommodation nearby as previously planned, [Ms Whitehill] decided to move to [another] suburb with a friend as this is where she had always wished to live and sought an Intervention Order against [Mr Talaska].
…
99. This assessment has highlighted that [X] is fortunate to have two committed and engaged parents who have demonstrated a higher-than-average emotional attunement and attentiveness towards their daughter. [X] would benefit from the opportunity to spend time with and strengthen her relationship with both her parents and members of her extended families and experience the richness of their unique parenting styles and cultures.
The observations at paragraph 99 were not controversial in the hearing before me. However, Ms R had also made the further observations as follows, which I am satisfied are critical of Ms Whitehill:
95. It appears that the primary issues of contention between the parents are concerns for [Mr Talaska]’s parenting capacity, his mental health, and the cultural differences between [Country G] and [Country H] in raising children, notably regarding forms of discipline. Unfortunately, this prevailing negative attitude towards [Mr Talaska] and his extended family and culture does not bode well regarding [Ms Whitehill]’s future capacity to promote [X]’s relationship with her father. [Ms Whitehill] may benefit from engaging in some personal counselling to assist her in managing this issue for the benefit of [X]. [Mr Talaska] has reported that [Ms Whitehill] has historically exhibited controlling behaviours towards him and inhibited his ability to be fully involved in [X]’s care. It is hopeful that [Ms Whitehill] engaging in personal counselling may address some of her anxiety regarding [X] being cared for in a manner which is contrary to her views, wishes or parenting style while [X] is not in her care.
96. This assessment raised significant concerns regarding [Ms Whitehill]’s statements regarding [Mr Talaska]’s race and culture. She spoke extremely negatively about the [Country G] culture, describing [Mr Talaska]’s extended family as “part of the problem.” She made statements attuned to ensuring that she would not raise her daughter to be a [Country G] housewife to be sold into marriage to be abused. If [Ms Whitehill] impressed as an uneducated ignorant woman, such racist and discriminatory comments may be viewed as immature naivete; however, given [Ms Whitehill]’s higher level of education and intelligence, such wholly inappropriate comments concerning her own daughter’s cultural heritage is alarming.
…
RECOMMENDATIONS
…
111. [Ms Whitehill] engages in personal counselling to assist her
a. In addressing her racist views of [X]’s family and culture.
b. Providing her emotional support to accept that [X] may be raised in her other home in a manner not consistent with her views and parenting style
The observations of Ms Whitehill being racist and discriminatory were controversial in the proceedings, but heavily relied upon by the Father’s counsel as providing support for the contention that the Mother does not support the Father’s relationship with the child. I note that the Mother migrated to Australia from a European country in 2017 by herself. The Father’s case was that the Mother’s contention that she wanted the best for X was not correct, and that she was not who she held herself out to be.
It was contended that it was not a short period that the Mother had interrupted the orders, and been in breach of them, and interrupted the Father’s time with X. It was the Father’s case that inferences should be drawn from the circumstance that the Mother had stopped the Father’s time, insisted on it being at a police station, and then ultimately been unsuccessful, but had never apologised or offered make-up time. From that, it was said, I should infer that she does not support the Father’s relationship with the child.
It was also said that the circumstances of the Mother’s application to vary the final orders could be construed as “holding a gun to the Court’s head” in the sense that she had planned and put the wheels in motion to change her place of residence before orders had been made. I do not regard Ms Whitehill as “holding a gun to the Court’s head”. I am satisfied that had the matter not been heard, she would have complied one way or another, despite the personal cost to herself of compliance with the existing orders.
In all of those circumstances, it was asserted in final submission that any extra travel consequent upon the Mother’s relocation to Suburb Q was a matter for her and that it was neither fair nor appropriate, nor in X’s interests to otherwise change the orders or to change the place of changeover.
In evidence before me is the document ‘F2’ which, by reference to Google Maps, uncontroversially plots the path from the various places in contention, that is:
(a)from the Mother’s new, or proposed, residence to the existing optional changeover at Suburb E, showing a distance of approximately 80 kilometres;
(b)from Suburb E, the optional place of changeover, to the Mother’s place of work in City L, with a distance of approximately 55 kilometres;
(c)from Suburb E to the Mother’s place of work showing a distance of approximately 55km;
(d)from the Mother’s intended place of residence to the optional place of changeover at Suburb E showing a distance of approximately 80km;
(e)from the Mother’s intended place of residence to the changeover place that she pressed, being the previously optional for the Father place of Suburb D showing a distance of approximately 40km;
(f)from the optional Suburb D place to the Mother’s place of work showing a distance of approximately 10km;
(g)from the Father’s home to the previous optional place of changeover at Suburb E showing approximately 40km;
(h)from the Father’s home to the optional changeover place at Suburb D showing approximately 80km;
(i)from the Father’s home to a place known as M Service Station, O Street showing approximately 55km;
(j)from Suburb Q to M Service Station, O Street showing approximately 60km;
(k)from the Father’s residence to Y School showing approximately 50km; and
(l)from Y School to the Father’s home showing approximately 50km.
The relevance of the Y School is that that is the primary school the Mother asserts is closest to the home where she had been living, in Suburb P, and that this would be the school that she proposed that X would attend. When cross-examined about that proposition, the Father had little to say about it, and did not challenge it, but it was clear had not really turned his mind to it. There was nothing before me to suggest that Y School was not close to the Mother’s home and the Father had no disagreement, sensibly, with the prospect that X should attend a school close or nearby to where her Mother was living.
I want to refer to some other parts of the Mother’s affidavit which she asserts explains her motivation. Those parts are as follows:
16.My career has suffered significantly as a result of not being able to work full time, because I am required to undertake half of the travel to facilitate the Respondent Father's time with [X]. I am currently working in a lesser role, on a lower salary than I was receiving before I met the Respondent Father in 2019 and gave birth to [X].
17.At the date of cohabitation in 2019, I was employed as [an educator] earning $114,000 per annum. I resigned from that position in [mid] 2019 to live with the Respondent Father who lived in [Suburb W]. On moving to [Suburb W], I obtained full-time employment as [an educator], earning $116,000 per annum. On the birth of [X], I took maternity leave [until late] 2022. Following separation and me vacating the [Suburb W] property, I obtained employment as [an educator] at [Z Centre].
18. My position of [educator] at [Z Centre] is a lesser role then my previous position and is reflected in the lesser salary of $112,000 per annum (if I work fulltime). I continue to be employed in this position, working the equivalent of three and a half to four days a week to enable me to transport [X] for changeover at either [Suburb C] or [Suburb E] pursuant to the provisions of paragraph 15 of the Final Orders. I currently earn a taxable income of $83,166 per annum working four days a week…
I accept that evidence.
Impact of orders on the Mother’s career
The Father’s case is that these are matters of the Mother’s own choosing and that she could have stayed living where she was and found another position nearby, and that the fact that she was unable to work in a full-time job with the state of the existing orders was a matter that was not inappropriate for her to rely on because that is what had been agreed to in the 2023 final orders.
I am satisfied that, as time went on, the impact of the 2023 final orders, though sensible for the purpose of establishing the Father’s relationship with X and promoting that, did restrict the Mother’s earning ability and career, and chafed upon her more and more. The other side of the coin was that the Father’s circumstances of being a disability support pensioner and only having limited part-time work (and that for the support of his mental health, rather than the income) meant that the Father had been assessed to pay a little more or a little less than $40 per month in child support over all material times. I refer to the Mother’s affidavit evidence in that regard:
25. If I am able to work full time in my new position in [City L], I will receive an increase of salary of approximately $33,000 to $39,000 per annum which would greatly enhance my ability to provide [X] with a better standard of living. This is particularly important given that I am required to pay childcare fees to enable me to work and my level of income will become significant when I apply for a housing loan in the future.
…
27.I have family support in the [City L] area that I do not have where I currently live. I migrated to Australia from [Country H] in [late] 2017 and took up Australian citizenship. Since then, I have spent time with my immediate family on seven occasions, including four times when I travelled to [Country H] and three times when my parents have travelled to Australia. My only family in Australia are my cousins from my mother’s side of the family. All of these relatives live in the [City L] area. The Respondent Father and I visited my cousins during our relationship and I have developed a closer bond with them since our separation. I visit my cousins on a regular basis, and my cousin, [Ms AA] visits me in Melbourne. I am included in all family celebrations and I have spent the last two Christmas' and Easter with my extended family in [City L].
…
33.My preliminary research indicates that a three-to-four-bedroom property in [Suburb Q] would cost approximately $650,000 to $700,000 as compared to a two-bedroom property in [Suburb P] costing approximately $850,000. I have sold my investment property in [Suburb BB], Victoria and will apply the proceeds of sale to pay off $80,000 which my parents loaned me to fund the legal proceedings and the balance towards a deposit to purchase a property in [Suburb Q] in the future. I will need to finance the purchase with a mortgage loan. The increased salary which I would derive from my new employment position will greatly assist with any loan application I make in the future. It is a priority for me to provide [X] with secure housing and a comfortable home.
It was not disputed that since the Mother had sworn that affidavit of evidence-in-chief on 29 November 2024, she had in fact obtained a property in Suburb Q as she had previously hoped. I accepted the Mother’s evidence of these matters and the matters at [33] were not in dispute.
The Mother’s allegedly racist comments
The Mother gave evidence to the effect that she was embarrassed about the statements she had made about Country G culture to the family report writer, but that from her perspective those comments were taken out of context.
I am satisfied that the Mother was troubled at the time of those comments. She had consulted a family violence support service, and I am satisfied that that family violence support service had, on the information available to them, indicated to the Mother, with the authority of such service, that the Father was unlikely to have more than a few hours on a weekend time with X. The Mother was then confronted realistically, and appropriately, by the family consultant with the prospect that the Father’s role in X’s life was unlikely to be so limited in the circumstances of the observations of the report writer, and was likely to be much more significant, regular and of a longer period.
The dramatic change, and the impact of that change, from what the Mother had understood to be the likely position from the family violence support that she had received, to the sharper, more focused and considering both sides of the story, position of the family report writer, need only to be recited to be readily understood.
The Mother’s position was that she is not racist or discriminatory, and she was forced to put the position that she had come to Australia, married a Country G man, had a child with a Country G man and interacted with his Country G family, and rather than being racist and discriminatory against Country G people, had in fact embraced Country G culture and embraced this particular Country G man. I am satisfied on the evidence, having been able to observe the Mother being robustly cross-examined by the Father’s counsel, that she is not racist and not discriminatory. That does not mean I am critical of the observations of Ms R in the report, but it is an example of the advantage of a final hearing where a party’s position can be more thoroughly articulated and tested in the crucible of cross-examination.
DECISION TO VARY THE FINAL ORDERS
I am not satisfied that the Mother’s intended move is other than as she asserts. In fact, I am satisfied that the Mother wishes to relocate to the area or suburb nearby City L, or what some people would describe as an outer suburb of City L, and to work in that city. I am also satisfied that the Mother’s understanding that the Father very frequently exercised his weekend time at the property of his mother, or his parents, was a reasonable one. It is in those circumstances that I now turn to the material provisions of law.
Relevant law
Since the decision of Whitehill & Talaska, my observations as to the difference between section 65DAAA and the previous test in Rice & Asplund have been commented upon. On the one hand, those observations have been embraced by Altobelli J of Division 1 of this Court, but seriously qualified by observations of O’Brien J, also of Division 1. My observations and those of Altobelli J have been disapproved by obiter observations of Aldridge J in Sciacchitano & Zhukov [2024] FedCFamC1A 224:
7Counsel for the respondent sought to counter this, submitting that as a result of the enactment of s 65DAAA of the Act, a change in circumstances was no longer required before final parenting orders can be reconsidered. She relied on Rasheem & Rasheem [2024] FedCFamC1F 595 at [64]–[68]. See also, to similar effect, Melounis & Melounis (No 4) [2024] FedCFamC1F 778 at [75]–[77] and Whitehill & Talaska [2024] FedCFamC2F 768 at [12].
8As the first decision expressly notes (at [59]), the clear express legislative intent for s 65DAAA was to codify the law as stated in Rice and Asplund (1979) FLC 90-725 which requires that there be such a change in circumstances as to warrant reconsideration of parenting orders.
9This intention is clearly given effect by reading “consider” in s 65DAAA(1)(a) in its meaning of “to regard as or deem to be”, the second definition in the list of definitions of the word in the Macquarie Dictionary. Thus, the court must find a change in circumstances.
10Such an approach, namely to look to the context of the words in the section itself, the Act as a whole and the evident purpose of the section rather than focus on the literal meaning of a word is the modern method of statutory construction (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355).
11Further, if s 65DAAA did not require a finding that there had been a change of circumstances it would be otiose and the whole section pointless.
12Also, it is not to the point that in a different section of the Act, in an entirely different context, the word “consider” means something else.
13I therefore would have grave misgivings about following these decisions but do not need to come to a concluded view, and as I have not received submissions on the question, it does not need to be determined to resolve the appeal.
I do not make the law, Parliament does, and intermediate Full Courts and the High Court provide me with guidance as to what it means – my job is to apply the law as it is. Hence, whether or not Aldridge J is correct is not to the point in this case. Nonetheless, I have what was discussed in final addresses as ‘the Rubicon’, section 65DAAA, to cross, including consideration of the following sections along with section 65DAAA (recited above):
Section 60CA Child’s best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC How a court determines what is in a child’s best interest.
Determining a child’s best interests
(1) Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) if the child is an Aboriginal or Torres Strait Islander child--also consider the matters set out in subsection (3).
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including the safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child)
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child’s family.
…
I brought to the parties’ attention a case that dealt with a not dissimilar geographical arrangement. In the matter of D & SV [2003] FamCA 280 (‘D & SV’), what was proposed was a change of orders consequent upon the mother’s intention to relocate from Melbourne to the area known as Town CC, which is an area a little further around than the outer City L suburb of Suburb Q. Nonetheless, there are some observations by the Full Court in D & SV that are apposite to the facts of this case.
It must be remembered that counsel for the Mother’s case was that this was not in substance what are loosely described in family law terms as a “relocation case”, but only some necessary minor adjustments to give effect to a parent living where she wanted to live and working where she wanted to live. In D & SV, the primary judge had accepted the evidence of the family consultant in that case, which was to the effect that the move would disrupt virtually all aspects of the children’s lives and remove them from their supports and networks. The Mother appealed. In that appeal, and this being a 2003 case, the Court included the following:
37.While it was not a ground of appeal, we raised with Counsel for the respondent the issue of whether in the context of this relatively short move, the relocation principles in those cases should apply to this case. It was her submission that any move of residence that requires a significant change in existing parenting arrangements can bring the principles discussed in those cases into play. While we did not hear argument contesting that proposition, it seems to us to be an approach that may be open in some cases. However, the normal reason for applying the reasoning used in such cases, particularly where residence is not seriously in issue, is to seek to restrict the freedom of movement of the residence parent. Where the move is over a relatively short distance such as this one, we would caution against the making of orders that restrict the residence parent’s freedom of movement. The inquiry should be directed more at alternative contact or shared residence arrangements.
38.Clearly the less distance involved in the move, the more readily satisfactory alternative contact arrangements or logistical arrangements for shared residence are likely to be available. A move over a great distance may render shared residence or meaningful contact difficult if not impossible.
39.The amount of emphasis to be given to one or other of the competing matters in a relocation case will change depending on the degree of relocation involved and the degree of interference with the existing arrangements.
40.Where a move interstate or overseas requires a dramatic and drastic change in the nature of the manner in which the parents share in their children’s lives, much emphasis might be given to the deleterious effects of such a move on the relationship with the other parent. Where the move is within the same State or certainly within the same city resulting in room for significant contact, such a move might well face less resistance from the Court.
In that case, the Court allowed the appeal and essentially affirmed that the inquiry should have been directed at alternative contact or what was described as “shared residence arrangements”. I note the observations of D & SV, however I do not apply them as firmly binding law. It may turn out that they are. I note that D & SV was a case decided under the regime of the Act that applied at that time. Substantial amendments were made to that regime in the 2006 amendments, and then further substantial amendments were made that came into effect on 6 May this year. Hence, D & SV, despite its apparent common sense, was in the context of legislation that previously applied.
D & SV also relied heavily on the observations of the High Court in the decision known as U v U (2002) FLC 93-112; (2002) 29 Fam LR 74, and Kirby J had made significant observations in a case known as AMS v AIF (1999) 199 CLR 160; (1999) FLC 92-852; (1999) 24 Fam LR 756 that included observations relating to the importance of section 92 of the Constitution to the issue of a parent living where he or she wanted to live.
Ultimately, in AMS v AIF, Kirby J did not determine that case on the basis that section 92 of the Constitution did mean that there was a right, or an implied right, upon a parent to move interstate, but he did so because of the matter of degree of the impact of the State Court order upon the right in section 92.
To the extent that the freedom of movement resting upon section 92 has influenced the jurisprudence of the intermediate Appeal Court of the Full Court of the Family Court, that must be reconsidered in light of the decision of Gerner v Victoria [2020] HCA 48; (2020) 270 CLR 412. In Gerner, the High Court determined, in the context of a hotelier complaining about what are known as “pandemic lockdown regulations”, that section 92 did not provide for freedom of movement of individuals between states, but rather was restricted to relating to interstate trade, commerce and intercourse, with intercourse being read ejusdem generis with interstate trade and commerce.
In Gerner, their Honours referred to the observation of the writers of the Constitution at the 1897 Sydney Convention and the 1898 Melbourne Convention and, as pointed out by the High Court, when those observations are taken into account, it is clear that section 92 relates to trade, commerce and matters such as the imposition of duties or levies and the free flow of goods across state borders. Nonetheless, there is significant wisdom in the observations of D & SV.
Despite my observations about section 65DAAA eliciting disapproval as well as approval, I am not aware, nor was I referred to, the issue of the extent to which that large body of jurisprudence developed in the line of cases known as the Rice & Asplund authorities that relate to what I described as the “associated rules of Rice & Asplund”. I described, as one of those rules, paragraph 83 of the seminal authority of SPS and PLS:
83. Accordingly, the rule may not impede hearing an application for a small alteration, which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far-reaching changes.
In this case, I am satisfied that the combined circumstances of:
·the Mother chafing over a period of years under the restriction on her career and working life and ability to earn an income of the orders as they were; and
·her obtaining of a superior position and one that was on a pathway of career progression in a not-too-distant town; and
·the circumstance that the Mother perceived that she had greater family support as an otherwise single parent in the area where she wished to live; and
·the circumstance that the Mother had, from her perspective, been able to obtain accommodation that was far more affordable, or at least more affordable for her
combine together to satisfy me that there was a sufficient change in circumstances to consider, in the words of section 65DAAA, “revisiting the final parenting order”.
Hence I am satisfied, referring to section 65DAAA(1), that I have considered whether there is a significant change of circumstances since the parenting order was made, and I am satisfied, as the observations of Aldridge J would require, that there has been a significant change of circumstances since the final parenting order was made. I am satisfied in all of the circumstances that the best interests of X require for the existing parenting order to be reconsidered.
For the purpose of determining whether I am satisfied as described in section 65DAAA(1)(b), and taking into account section 60CC as required by 65DAAA(2), I have taken into account to the extent it is available, the final parenting order and the material upon which it was based. I am satisfied that there is further material available that was not available at the Court at the time that the final parenting order was consented to. That is, that the existing regime of the order places a significant limitation on the career prospects of the Mother as the sole parent and upon her income.
I am also satisfied that if that final parenting order is reconsidered, that the Court will make a new parenting order in a way that affects the operation in a significant way. I am also satisfied that I have considered the potential benefit or detriment to the child that might result from the reconsideration of that final parenting order.
This is a case where the child will not be exposed to intrusive family report interviews. That is neither necessary nor sought by anyone. I take into account that the Mother, living where she wishes to live and pursuing her career as she wishes to, is a matter of not just of happiness in the sense of eating a KitKat or having a glass of a fine wine, but of considerable impact upon her person and her psychological state.
Being able to pursue her career and live where she wants to, at the same time as being able to promote the child’s relationship with the Father, is a significant matter. To burden the Mother with the requirement to either not take up the job and not live where she wants to, or to impose upon the child very considerable travelling in order to get the child to the changeover point of the previous orders and then turn around and get back to work in time for work at 8.30, would be a considerable burden upon the Mother and inevitably a considerable burden upon the child, and particularly on those days when the child is to pass into the Father’s care.
In those circumstances, I am satisfied that that is a significant change of circumstances. In the event that I am wrong about that, and it may be that I am wrong about my observations about section 65DAAA[4], I am also satisfied of counsel for the Mother’s alternative case – that is, that the alterations that the Mother seeks, as outlined above, which provide for less frequent, but longer periods of time, do not require section 65DAAA to be crossed in any event, not because the circumstances have not changed, but rather because the change that the Mother presses for can be properly described in my view as “a small alteration”. Hence, for those reasons, I am satisfied that I can reconsider the existing final orders.
[4] At the time of the ex tempore reasons in the afternoon of 24 December 2024, I was not aware of the decision of Radecki & Radecki [2024] FedCFamC1A 246 (‘Radecki’) delivered on 19 December 2024 and available to Judges on the afternoon of 20 December 2024. Radecki at [59-60] & [70-79] makes clear that my earlier literal understanding on section 65DAAA as expressed in Whitehill & Talaska was wrong and a change of circumstances is always requiring for final orders to be reconsidered.
Variation of the orders
I now turn to reconsidering the order in the context of the factual observations above. I note that the further information that the Court has, not available to the Court when the 2023 final orders were made, is that both parents now unequivocally join in the position of asserting that the child has a strong and appropriate relationship with the Father, and that that relationship is of sufficient strength, notwithstanding the tender age of the child, that the child should be spending overnight time with the Father.
A further significant change of circumstance is that, rather than being circumspect about the nature of the Father’s ability to care for the child, the Mother now presses for a longer period of time and an ultimate move to what I will describe as the orthodox three night overnight/weekend, rather than the existing Court-ordered two night weekend.
I am satisfied that X has the benefit of two good parents who care deeply for her. I am also satisfied that, despite their irritation and pique with the other and the circumstances of the past, each fundamentally recognises the other as a good and caring parent for X.
In terms of section 60CC, I consider those matters within the parameters of the ambit of the dispute between the parents. It is common ground between them that changeovers should be at a public place, and alternatively, in the absence of one parent at the child’s school. Hence, I am satisfied that the orders that both parents seek, that is, the retention of the existing orders, or the Father’s alternative view, or the orders as pressed by the Mother, promote the safety of all concerned, including X. It is not appropriate that I take into account any views expressed by three year-old X.
I am satisfied that the orders the Mother proposes appropriately take into account the developmental, psychological, emotional and cultural needs of the child. I am satisfied that the cultural need of the child, to be familiar with and associated with the Country G culture of the Father, is appropriately had regard to and promoted by the orders the Mother seeks.
It must not be lost sight of that the Mother presses for orders that increase the blocks of time that the child spends with the Father at this time and in the long run. I am satisfied of the capacity of each of the parents to provide for the child’s developmental, psychological, emotional and cultural needs. I do not accept the contention of the Father’s counsel that the Mother is racist and/or discriminatory and/or does not truly care for X’s needs but rather her own.
I also do not accept the case of the Mother, as put to the Father in cross-examination, that the unfortunate hiatus between early 2024 and my decision of 27 May 2024 was due to his “stubbornness” in not agreeing to have changeover at the police station. He did agree, in March (albeit after the Mother had commenced proceedings), and yet for a further two months did not see the child. Hence, the Father’s feeling or perception that the Mother does not, and has not, supported the relationship with him, is an entirely reasonable and understandable one. Nonetheless, it is not the true state of affairs. The Mother proposes for a longer block period of time than the current orders enable. I am well satisfied that the child will benefit from having a relationship with each of the child’s parents.
In terms of 60CC(2)(f) – that is, any other relevant consideration – as can be told from my comments above, I place significant weight on the fact that the Mother moves to bring forward the two-night alternate weekend and moves to facilitate a potential three-night weekend, provided the travel for the child on the Monday morning is not as unduly onerous as it would be from Suburb W to a school in Suburb Q. I take into account that the Mother is the only one of the two parents, who at this time and for some time, has regular employment with the burden of the fixed start time of having to be in a particular place at a particular time, pursuant to that employment. To the extent that there needs to be some give and take in the orders, including at places of changeover, the circumstances of the Mother having to get the child somewhere for the Father to collect her and then get back for work, is a significant matter.
The Mother’s position in regard to a Suburb D changeover is, indeed, reasonable. It is unclear to me just how often the Father actually spends staying at the Suburb D premises. I also do not presume that they will always be available to him. It is common ground that the Suburb D premises are owned by the Father’s mother, not by the Father. As the Father rightly says, he is “a guest” at his mother’s property. However, I am satisfied that he remains, at this time, on good terms with his parents and his sister. His father and his sister sat throughout the court hearing, in the courtroom. I do take into account the unfortunate impact that learning of Ms R’s opinions about the Mother being racist and discriminatory, must have had on the Father’s family. It is my hope that in considering these reasons, they may come, with time, and with observing X happily coming and going on her time with the Father, that they may move on from sharing the view, if they do, as put by the Father’s counsel in this case.
If it is possible for the Father to stay with X somewhere nearby on the Sunday night on his alternate weekend, such as the Suburb D property if that is available to him, it would greatly benefit both him and X to be able to enjoy that three-night weekend, rather than only the two nights. The practical reality of the two-night weekend is that some preparations have to be made midway through the afternoon to pack up and get ready to move to the changeover for the 5.00 pm evening or late afternoon changeover.
To be able to take the child to school on the following Monday morning, if travel is not too onerous, is a wonderful benefit to both the parent doing so and the child. It facilitates the Father to be able to be involved in the child’s school life on another occasion. The Father’s involvement in that school life and being known to the teachers, being known to the other parents and the other children, and the Father being able to recognise who X’s friends at school are, is going to be a deeply important matter to her as she advances in life.
In terms of where the changeover should be, I refer to the uncontroversial distances mapped in F2. In terms of the Father living in Suburb W, a changeover at Suburb D when he is not staying there, would likely be, onerous to him. The changeover at Suburb D would be significantly advantageous to the Mother, in terms of the distance to travel. Basically, towards Melbourne, drop the child off and then do the return journey back to her place of employment.
The proposal as to an alternative of the M Service Station at Suburb N on O Street, or what I describe as the City L Road, is, from the Mother’s home, approximately 60 kilometres, and, from the Father’s home, 55km. However, the Father will be travelling by and large through the city of Melbourne, albeit on a main route or alternative routes when trouble happens on the main route (and it does). A Suburb N Service Station changeover means that, in distance, the Mother would travel a little more than the Father. But I am satisfied, as the Father asserts, that that would mean that he is likely to be travelling a longer period of time. The travel distance between Suburb D and the Suburb N, O Street Service Station is a matter of a few minutes when traffic is running smoothly on the City L road. For the Mother to have to travel that further distance, then drop the child off, turn around and get back to work, adds a further burden on her compared to Suburb D.
Nonetheless, balancing all matters, including the Father’s unhappiness at this change being thrust upon him by the Court on the Mother’s application, I am satisfied that in all of the circumstances, the default changeover should be at the M Service Station at O Street, Suburb N on the City L road. That changeover will enable the Mother – with some difficulty – on the times when she is to get the child there for the morning changeover, to get there and get back to work of a morning. And then, get there and get home of an evening. The Father is likely to do a little more, or maybe, depending on the traffic, a lot more travel time than the Mother. But balancing all matters, I am satisfied that that is in X’s best interests.
I want to turn to a slight change I have made in the orders to that proposed by the Mother. It is ubiquitous, or common, or garden, for children of school age, that where the Monday of the alternate weekend is a non-school day, rather than have a changeover at a non-school place when it otherwise would have been school on the Monday morning, usually most parents agree – and I am satisfied it is in X’s best interests – that the Father’s time would be extended to the following Tuesday morning. So, if the Monday was a public holiday, or a curriculum day, or some non-school day, the child would be returned to school on the Tuesday morning.
However, that Monday morning, as the Mother’s case outlines, can only work if the Father is living nearby. He may or may not always have the facility at Suburb D to enjoy, notwithstanding his current good relationship with his family. He is, after all, only a guest. In the event that he is able to have that accommodation available to him or other similar distance accommodation (he does not have to stay there, he might choose to stay somewhere else close by), he would then be able to travel or take X to school. In the event that he cannot do so, he is required to give the Mother no less than 72 hours’ notice and that is for the purpose of making sure that the Mother will be there when he returns the child on Sunday evening at 5.00 instead of to school on the following Monday morning (or Tuesday if Monday is a public holiday).
I have otherwise made minor variations to the form of the orders so that they could be read alone as well as being read in conjunction with the other orders. In terms of the Father’s application to change the communication time, I am not satisfied, given the current state the relationship between the parents, that that is appropriate. The orders currently provide for communication time between the child and the parent with whom she is not living, and I am satisfied that those arrangements are proper, and it is unnecessary for X’s welfare to change them.
I am not satisfied that the Father’s proposal to have a chunk of midweek time is in X’s best interests. I do not accept the proposition that this is too great a change for X. After all, the Mother is proposing that there be an immediate move to a two-night alternate weekend. I am satisfied that that is likely to cause trouble for X and trouble for the parents due to the parents’ poor relationship, and the difficulty in juggling child care and kindergarten time, whether three-year-old kindergarten time or four-year-old kindergarten time. Notwithstanding that it would be in X’s interests if the Father were able to travel to be involved at X’s kindergarten and/or X’s primary school.
I note for the purpose of these reasons that once X is at school, the time on the Wednesday can only work if the Father can attend to the area where X is going to school and return her at 6.30 pm to the agreed changeover place. The Father conceded as much in cross-examination.
As can be seen by the time these oral reasons have taken, there is a substantial amount of time in delivering reasons, and to write and deliver written reasons takes longer. The rough rule of thumb is that a day in Court takes at least a day writing, and a two-day case would take at least two days to write. I do not have two days. Hence, it is necessary to deliver less precise and shorter reasons in oral form than otherwise would be the case with a written judgment.
I am satisfied that it is in the Father’s interest to know what the lie of the land is at this point prior to Christmas rather than at some indefinite time in the future, and I am satisfied that it is in the Mother’s interest given the pressure of her job.
In all those circumstances, they are my reasons. And I add I am not able, in the time available, to deliver reasons in regard to the two disqualification applications made by the Father’s counsel and/or deal with the extant costs applications, but I will deliver those reasons and make the decision in regard to the cost application as soon as I can.
I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 17 January 2025
0
10
2