Wiley & Wiley - [2007] FMCAfam 932

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WILEY & WILEY

[2007] FMCAfam 932

FAMILY LAW – Children – relocation.

Applicant:

MR WILEY

Respondent:

MS WILEY

File number:

CAM 1334 of 2006

Judgment of:

Brewster FM

Hearing dates:

26 & 27 July 2007

Delivered at:

Canberra

Delivered on:

9 November 2007

REPRESENTATION

Counsel for the Applicant:

Mr Miller

Solicitors for the Applicant:

Phelps Reid

Counsel for the Respondent:

Ms Tonkin

Solicitors for the Respondent:

Farrar Gesini & Dunn

ORDERS

That in these Orders the term “contact” means spending time with or communicating with depending on the context.
That as from the end of the 2007 school year all previous Orders in relation to the children [X], born in 1994, [Y], born in 1998 and [Z], born in 2001 be discharged.
That the children live with the mother.
That the parties have equal shared parental responsibility in relation to the children.
That the father have contact with the children as follows:
(a)For one half of each school holiday period with the exception of the second term holiday being the first half of holidays falling in or commencing in even numbered years and the second half of holidays falling in or commencing in odd numbered years.
(b)For the whole of the second term school holiday.
(c)In 2008 and 2011 for the long weekend in which Anzac Day falls.
(d)For the June long weekend.
(e)For the long weekend that includes Melbourne Cup Day.
(f)From Friday to Monday on two further weekends to be nominated by the father in the first and the third school terms.
(g)By telephone at reasonable times and at reasonable intervals.
That when holiday contact occurs in the first half of the holidays it will commence on the day after school breaks up. When it is in the second half it will conclude on the last day before the children return to school except in the case of the Christmas school holidays where it is to end on the second last day before the children return to school.
That for the purposes of holiday contact the mother is to deliver the children to the father in [T] and the father is to return them to the mother at the conclusion of contact in [S]. Holiday contact is to commence at 1.00pm and shall conclude at a time nominated by the father but not later than 6.00pm. The father is to notify the mother at least 24 hours in advance of the time that he proposes to return the children.
That for the purposes of weekend contact the mother is to take the children to the father’s home in [T] at the commencement of the contact and collect them at the conclusion of contact. Weekend contact shall conclude at 2.30pm.
That one half of the school holidays is to be computed by dividing the total number of days the children do not attend school. If this is an odd number of days the father is to have the extra day.
That the father is to advise the mother by the commencement of school in first and third terms of the weekends he wishes to exercise contact pursuant to Order 5(f).
That if the father wishes he may upon giving the mother at least

14 days notice exercise weekend contact during school terms on any other occasion nominated by him provided he picks the children up from and returns them to the mother’s residence in [S]. He may pick them up either on Friday or Saturday at a time nominated by him and return them at a time of his choosing on Sunday, provided it is not after 6.00pm, or take them to school on the Monday morning. The mother is to provide him with a motor vehicle if he travels to Melbourne by air.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAM 1334 of 2006

MR WILEY

Applicant

And

MS WILEY

Respondent

REASONS FOR JUDGMENT

Introduction

This matter originally concerned a dispute between the parties as to the arrangements with respect to their children and property settlement. The parties settled the property dispute during the course of the hearing and this judgment concerns only children's matters. Integral to the dispute is a proposal by the mother to relocate with the children from [T], NSW, where the parties are living, to [S] in Victoria.
In this judgment I will use the term “contact” instead of the term “spend time with” now used in the Family Law Act.

Background

The father is aged 51 and the mother 34. They commenced to live together in November 1996 and married in March 1998. They separated in December 2005 when the father moved from the matrimonial home. There are two children of the marriage, [Y] who was born in 1998 and is therefore aged nine and [Z] who was born in 2001 and who is therefore aged six. The mother has a child of a previous relationship, [X], who was born in 1994 and is therefore aged 13. [X] has no contact with his natural father and has always been treated as if he were a child of the parties’ relationship. The Family Law Act in dealing with children does not include step-children or step-parents. Nevertheless I believe that in the circumstances it is appropriate that I ignore this distinction in this judgment. By this I mean that I propose to treat [X] in the same way I treat the other children and to apply the provisions of the Act to all three children.

I did not understand either of the parties to contend otherwise.
On separation the children remained with the mother. Contact between them and the father was rather ad hoc until an agreement was reached about March 2006 whereby the father was to see the children each alternate weekend and Tuesday nights. This is turn changed when interim consent orders were made on 2 November 2006 in this Court. They provided that the father have contact with the children from 5.30pm Friday until 5pm Sunday each alternate weekend, for half the mid-year holidays and two weeks during the Christmas school holidays. The orders further provided that he have contact with [Y] and [Z] each Tuesday from 3.30pm until 8.45am the following morning and with [X] each Thursday from after school until the commencement of school the following day.

The parties’ applications

The father is seeking orders for a week about shared arrangement. As I have indicated the mother wishes to relocate with the children from [T] to [S]. She proposes that the father see the children for half of all school holiday periods. She further says that she would bring the children to [T] one weekend in four and would be prepared to facilitate the father having contact each alternate weekend if the father were prepared to travel to [S] on the other weekend.
I made it clear to the parties early in the hearing that I did not regard myself as bound by either of their proposals and it can be seen from the orders that I have made that I have not adopted the mother's proposal in full.

Discussion

In resolving this case I am required by section 60CA of the Family Law Act to regard the children’s best interests as the paramount consideration. Section 60CC of the Act sets out a number of matters to which I am to have regard in determining what is in their best interests. I will discuss those matters later in this judgment. The backdrop to this exercise is section 60B of the Act. This section sets out the objects of the Act in so far as it deals with children, and the principles underlying those objects. Particularly relevant to this case is paragraph (a) of subsection (1) which states that one of the objects of the legislation is “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.”
Given that this case involves a relocation proposal I must bear in mind the guidelines set out by the Full Court of the Family Court in A v A Relocation Approach (2000) FLC 93-035. I summarise those which apply to this case as follows:
a)The best interests of the child are the paramount consideration but are not the sole consideration. In particular, rights of freedom of movement are not to be ignored.
b)An applicant for orders permitting relocation need not show compelling reasons before such an order will be made. Indeed, neither party bears an onus; that is to say neither parent has the onus to establish that a change in current contact arrangements or a continuation of those arrangements will best promote the interests of a child.
c)The reasons for a parent wishing to relocate with a child is only one of the matters to be considered and it should not be dealt with as a separate issue.
d)I must identify the competing proposals and evaluate how each proposal will hold advantages and disadvantages insofar as the best interests of the child are concerned.
e)I am to indicate which matters are of greater weight and explain how matters balance out.
I do not propose to have regard to issues of freedom of movement which are referred to in paragraph (a) above. This is because I am able to resolve the case without reference to these matters.
Notwithstanding the caveat contained in A v A it is convenient if I deal first with the reasons the mother gives for wishing to relocate to [S]. This does not mean that I am dealing with it as a separate issue. Those reasons are:
(a)She was born in [S] and her parents and other members of her family live there. She completed a degree in forestry in Melbourne and she ended up in [T] in the course of her employment in the forestry industry. She says that following the separation she felt, and continues to feel, very isolated in [T] and wishes to relocate to [S] to be near her family and to enjoy the support that they can give her. She says she is unhappy and depressed having to live in [T] away from her family.
(b)She wants to undertake a course in graphic design. She would propose to do this at [omitted] University, probably at the [B] campus. She could do such a course at [W] but this is about an hour's drive from [T]. According to whereis.com [S] is 36 kilometres from [B] with a driving time of thirty minutes. She says that she wishes to become financially independent in due course but does not wish to return to the forestry industry. She says that the forestry industry is very male dominated and that she did not enjoy working in that industry.
(c)She claims that there are better educational and recreational facilities available in the [S] area than in [T] and greater opportunities for the children in that environment.
I indicate at the outset that I have no regard whatsoever to the third of these. There is no evidence beyond the mother’s bare assertion that the children’s education would be better served by their living in [S]. Doubtless there are more recreational and other facilities available in the [S] area than in [T] but I imagine that living in a small country town like [T] has other advantages which [S] does not have. I accept that the mother could more easily undertake a graphic design course if she were living in [S] than in [T]. However, the critical issue in this case is her contention that she is unhappy and depressed in [T] and needs family support. I am able to resolve the case on this basis alone, that is without regard to the [omitted University] issue. I will return to it later in this judgment.
I now turn to s.60CC.
This section divides the matters to be taken into account in assessing what is in a child's best interests into primary considerations and additional considerations. There are two primary considerations. These are first the benefit to the children having a meaningful relationship with both their parents and secondly the need to protect children from harm by being subjected to abuse, neglect or family violence.
The second of these matters is not applicable in this case. Insofar as the first of them is concerned I note that the section refers to children having a "meaningful” relationship with both parents and not an "optimal” relationship with those parents. In my opinion the orders which I have made in this case will permit the children to continue to have a meaningful relationship with the father. If the children were very young it might have been cogently argued that frequent contact was required to ensure that they maintained a meaningful relationship with their father. However given their ages I do not believe that this is required in this case.
Sub-section (3) sets out the additional considerations and I shall deal with each paragraph of this sub-section in turn.
Paragraph (a) refers to any views expressed by the children and any factors (such as their maturity or level of understanding) that I think relevant to the weight that should be given to their views.
The Court has had the benefit of two Family Reports by a Family Consultant Ms Luise Lang. Ms Lang first spoke to the children in December 2006 and again in May 2007.
Ms Lang reports as follows in relation to her interview with [X] in December 2006:
[X] is 13 years of age. (I note that this is an error, he was in fact 12 at the time. Nothing hangs on this). He presents as a friendly teenager with a reserved manner. He gives the impression of being observant and thoughtful. [X] is completing primary school this year and is looking forward to the challenges of high school. It is apparent that he is much involved in the community of [T] with his many sporting activities such as soccer, basketball and tennis. [X] is delighted that he has been selected to represent the regional soccer team and comments "I don't want to miss out on that". Typical of his age, [X]'s main focus is his peer network and community activities.
[X] is cognisant of the parental dispute concerning relocation. He remarks that his mother had arranged for him to attend an orientation day at a high school in [S]. He comments "It was a good school, but would be better if my friends were there." When asked for his view about the prospect of moving to [S], [X] shook his head and repeated "I don't know - I don't know". He considered the advantages and disadvantages of moving. In relation to disadvantages [X] said "I wouldn't have my friends - I wouldn't see dad" and added "He buys me heaps of stuff - it would be mean not to see him". In relation to the advantages he said "I have lots of family down there - there is stuff I could do down there that I wouldn't be able to do in [T]". [X] explained "I want to play baseball and play Aussie rules". He reflected "If I moved down I would be worried about my friends and what is going on". [X] remarked "I wouldn't be too disappointed if I stayed in [T]".
In regards to the current living arrangements, [X] comments that he appreciates the flexibility encouraged by his parents. He remarks "When I don't want to go over (with reference to his father's home) I just say "I don't want to sleep over tonight". [X] explains that the reason is frequently associated with wanting to spend time with his friends and that it is easier for them to be at his mother's house because that is where I have all my stuff". [X]'s thoughtfulness is apparent when he explained "I don't like telling dad that I don't want to come over" because he is concerned to hurt his father's feelings. With respect to a dual care living arrangement [X] reflects that the current flexible arrangement might be the best option for him.
Ms Lang reports the following in relation to her interview with [X] in May 2007:
[X] informs that he is enjoying his first year at high school and enjoyed his first season of soccer in the regional team. [X] plays tennis and is serious about training.
[X] was cognisant of the reason for the second family conference and explained "Mum wants to move to [S] and dad wants us to stay". He commented "I don't like it - I don't like them fighting".
With respect to the prospect of moving to [S], [X]'s initial reaction was "I don't know". He reflected "I have got all of my friends in [T]". He added "The school would be really big I would go to (in [S]) - I could live in [S] but I wouldn't want to go to school there - it's hard to change".
[X] remarked that the living arrangements were working well and that he continued to spend time with his father on a flexible basis.
It is apparent that [X] would prefer to stay in [T] rather than move to [S]. The reason for this seems to be some apprehension about leaving his friends and familiar environment and having to go to a larger school than he attends in [T]. [X] is 13 years of age and his wishes must be given significant weight.
[Y] was unaware of the relocation dispute when interviewed by

Ms Lang in December 2006 and May 2007. Ms Lang reports that [Y] appeared to enjoy her current school. Ms Lang reports that she said "I like being at mum's and I like being at dad's". She further said "It would be good to have a week with mum and a week with dad". When asked the reason she said "So I can have the same time with them". When asked if she had discussed this idea with her parents [Y] commented that she and her father had talked about it.
Given the input from the father it is difficult to evaluate [Y]'s views in relation to the week about arrangement. As she was unaware of the relocation proposal I do not know what views, if any, she would have on this topic.
When Ms Lang spoke to [Z] he reported that the current living arrangements were "fun". In the May interview, when there was general discussion about [S] and [T], Ms Lang reports that [Z] indicated that he liked [S] but that "I like [T] best - it is fun".
Notwithstanding that [Z] at the time he was interviewed was not yet six years of age I do not ignore his wishes although the weight I give to them is necessarily limited.
Paragraph (b) requires me to consider the nature of the relationship of the children with each of their parents and with other persons including grandparents.
It is apparent from Ms Lang's report that the children have a close relationship with each of their parents and a good relationship with their extended family. In the first interview [Z] specifically mentioned his maternal grandmother and expressed a wish that she could live "at our house".
Paragraph (c) refers to the willingness and ability of each of the children's parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent. I am satisfied that both parents have this willingness and this ability.
Paragraph (d) refers to the likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from either of their parents.
This is a significant matter in two respects. First the mother's proposal would involve a significant degree of separation of the children from their father with whom they have a close relationship. This is an important matter. Secondly the father's proposal for week about care would involve a significant change in the present arrangements. This is a factor which indicates that I should not impose a week about regimen unless there is sufficient reason to justify my doing so.
Paragraph (e) refers to the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect their right to maintain relations and direct contact with both parents on a regular basis.
There will be difficulty and expense involved in the children seeing their father if they live in [S]. According to whereis.com it is some 530 kilometres from [S] to [T] with a driving time (without stops) of some five and a half hours. This precludes midweek contact and makes frequent weekend contact impractical. The relocation will substantially affect the children's right to maintain personal relationships and direct contact with the father.

Paragraph (f) refers to the capacity of each of the children's parents to provide for the needs of the children, including emotional and intellectual needs. I believe both parents are capable of providing for these needs.
Paragraph (g) refers to the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and either of their parents and any other characteristics of the children that I think relevant.
There is nothing in relation to [X] or [Z] that I need to consider under this paragraph. [Y] has been diagnosed with a social anxiety condition that makes it difficult for her, at least initially, to adapt to change. Under these circumstances, given that she appears content and settled in her present situation, this is a factor favouring the mother’s remaining in [T].
Paragraph (h) refers to Aboriginal and Torres Strait Islander children. It is not relevant.
Paragraph (i) refers to the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the parents. The mother was criticised for making educational decisions in relation to the children without consultation with the father. I think there is substance in this criticism. However it does not impact on the decision that I make in this case.
Paragraphs (j) and (o) refer to family violence and family violence orders and are not applicable.
Paragraph (l) requires me to consider whether it would be preferable to make the orders that would be least likely to lead to the institution of further proceedings in relation to the children. I do not consider that making orders as sought by the father would be either more likely or less likely to lead to the institution of further proceedings than if I made orders as sought by the mother and vice versa.
Paragraph (m) requires me to consider any other fact or circumstance that I think relevant. Such facts or circumstances will emerge in the balance of this judgment.
Sub-section (4) of s.60CC requires me to consider the extent to which each of the children's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent. It sets out a number of criteria to be addressed in this respect. I am satisfied that each of the parties has fulfilled his or her responsibilities as a parent.
I now turn to the issue of parental responsibility.
Section 61DA of the Act states that when making a parenting order in relation to children I am to apply a presumption that it is in the best interests of those children for their parents to have equal shared parental responsibility for them. Neither party in this case suggests that I should not make an order that each of the parties have equal shared responsibility for the children and I propose to do so. I point out to the parties that this requires each to consult with the other in relation to long-term decisions concerning the children and to make a genuine effort to reach agreement in relation to these matters. I direct this comment particularly at the mother and particularly in relation to the children's schooling.
Making an order for equal shared parental responsibility brings into play s.65DAA of the Act. This section states as follows:
(1)If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
(2)If:
(a)a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(a)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
As required by section 65DAA I will consider whether making an order for shared care is in the children’s best interests. If I do not believe that such an order is in the children’s best interests I will consider whether an order that the children spend significant and substantial time with the father is in their best interests. In this respect I propose to have regard to what I perceive to be the spirit of the legislation rather than its literal terms. It can be seen that the orders I have made technically fit within the definition of “significant and substantial time”. This is because I have included two days of contact that are not on weekends or during holidays. I do not however regard my orders as fitting within the spirit of “substantial and significant time.” The existing arrangements however do genuinely provide for the father to spend substantial and significant time with the children. Of course I will not be considering those two alternatives in isolation. I will also be considering making Orders of the type sought by the mother.
I add for completeness that I have not factored into my consideration the option of the father himself re-locating to the [S] area. I am satisfied that this is impractical. As it was not contended to the contrary by the mother’s counsel I need not dilate on this.
In this matter I am faced with three options. These are:
a)To make an order for a week about arrangement as sought by the father. It was submitted by the father’s lawyer that this would not require the mother to live full time in [T] in that she could live in [S] in the weeks when she would not have the children. I do not consider this to be workable. I consider that such an order would require the mother to live in [T].
b)To maintain the existing arrangement or something close to that arrangement. This would, of course, require the mother to remain in [T].
c)To make orders which would permit the mother to relocate to [S]. Such orders would perforce provide for reduced contact between the children and the father.
I will deal initially with the first these options. I do not believe that a week about arrangement as sought by the father is in the best interests of the children for the following reasons:
a)Whilst [Y] expressed a wish to live week about, as I have indicated, it is difficult to evaluate this wish. It is to be contrasted with [X]'s position which is not consistent with a week about arrangement.
b)It would involve a significant change in the existing arrangements which have been in place now for some time. It would involve a significant change for the children.
c)I am not satisfied that the relationship between the parties is such as to make a shared care arrangement work to an optimal extent. The mother says she finds it difficult to negotiate with the father. She says she finds him overbearing. It was pointed out during the hearing that in some respects the history since separation does not bear this out. For example, when the consent orders were negotiated in November 2006 they provided for the father to return [Y] and [Z] to the mother on Wednesday morning rather than take them to school. This was put in at the insistence of the mother. Whilst there is force in this submission I recognise that there is a difference between negotiating face-to-face with a party and negotiating through lawyers. The consent orders were negotiated with the assistance of lawyers. I accept the evidence of the mother.
I turn now to the comparison of the remaining alternatives, that is a continuation of the existing arrangements or making orders which would permit the mother to relocate to [S].
The reasons for refusing to make orders which would permit the mother to relocate are obvious and cogent. These are:
a)The proposed relocation does not accord with the wishes of any of the children. It is inconsistent with [Y]’s wish for a week about arrangement and contrary to the views expressed by [Z] and [X]. As I have indicated [X]’ views must be accorded significant weight.
b)It would involve a very significant change in longstanding arrangements. All the children appear settled and happy living in [T]. They have lived there all their lives. This is where they go to school and this is where their friends are. It is also where their extended family on the father’s side are but of course those on the mother’s side live in the [S] area.
c)[Y] has a problem with socialising and she, in particular, may have difficulties adapting to such a change.
d)Most importantly it would involve a considerable diminution in the time the father spends with the children. At present he has substantial and significant time with them. To diminish this will have an impact on the nature of the relationship between the children and the father. Further I must bear in mind paragraph (a) of sub-section 60B(1) of the Act which I have quoted in paragraph 7.
The advantages of making orders which would permit the mother to relocate to [S] essentially revolve around her unhappiness in [T] and all that goes with it.
Objectively it is difficult to see why the mother feels so isolated and unhappy in [T]. Her affidavit reveals that she has significant involvement in the [T] community. For example in her affidavit she mentions that she declined to attend a rodeo which the father was attending with the children so that he could "enjoy the day with the children by himself". The significance of that paragraph is that she said that "many groups of friends asked me to go (to the rodeo)".
It was also pointed out that during the parties' relationship the mother spoke favourably about living in [T] as compared to [S], comparing the rural environment in [T] to the more cosmopolitan environment of [S]. However it is one thing to enjoy being in [T] and separated from one’s family whilst in a relationship and another thing to enjoy being there after that relationship has ended.
Whilst, as I have indicated, objectively the mother's unhappiness and depression does not appear to be well-founded, having seen her in the witness box and having heard from her treating general practitioner I am satisfied that she is very unhappy being forced to live in [T] and, whether or not she could be diagnosed as having clinical depression, she is depressed. I am satisfied that she is genuine and not feigning or exaggerating her unhappiness and depression to strengthen her case for relocating.
It was submitted on behalf of the father that the mother appeared to be coping satisfactorily and there was no evidence that her unhappiness was having an impact on the children. My comments on this are as follows:
a)It may be that the mother is coping but it is to be noted that she is on medication. It is hardly satisfactory that she should be required to remain in [T] because medication can be used to ameliorate her condition and enable her to cope.
b)
One would not necessarily expect there to be objective and overt signs of an impact on the children from the mother's condition.

I believe I am entitled to draw an inference that her parenting ability is likely to be compromised by her unhappiness and to draw an inference that this is likely to have some impact on the children.
I now balance the competing factors to which I have adverted.

On balance I am of the opinion that the impact on the children (albeit that my findings as to that impact are based on inference and not objective evidence) were the mother forced to remain in [T] dictates that their best interests would be served were they to live with their mother in [S].
I acknowledge that the conclusion I have outlined in the previous paragraph is laconic in the extreme. I state a conclusion but do not explain how that conclusion was arrived at. But I do not believe I can do better than I have. I have to balance the advantages, insofar as the best interests of the children is concerned, of the mother (and of course the children) remaining in [T] with the advantages of the mother (and the children) living in [S]. But how do you compare them? It is akin to comparing apples and pears. It is impossible to qualitatively compare the two. The decision as to where the balance lies falls to me to assess. I have found that it lies in favour of the mother being permitted to relocate. Essentially that is a value judgment which is incapable of analytical explanation. It is, to quote Kirby J in AIF v AMS (1999) FLC 92-852 at p 86,043 a situation where there is a great deal of “judgment, discretion and intuition” involved.
I turn now to the orders I should make as to contact.
First I propose to enlarge on the mother's proposal that the father have contact for half the school holidays. In the circumstances I consider it appropriate to give him the opportunity to have the children for the whole of one of the mid-year holidays and I will order accordingly.
Furthermore, I do not consider that contact in [T] extending from Friday night to Sunday afternoon to be satisfactory. Given the distance between [S] and [T], the children would be arriving very late on the Friday night and would either have to leave early on Sunday afternoon or get back to [S] late on Sunday night. For that reason I propose to make [T] contact weekends long weekends. This will involve the children missing a couple of days of school. Whilst I am always reluctant to make orders which involve children missing school, it is essentially a balancing exercise in which I am to compare the detriments of the children missing school with the benefits of seeing their father. As can be seen from the orders I have made I propose to utilise existing long weekends for contact in [T] where possible. The Queens Birthday long weekend falls in second term and in 2008 and 2011 Anzac Day, which is also in second term, will be on a Friday or a Monday. I will provide for contact on those weekends. I am informed that the Monday before the Melbourne Cup holiday, which is in fourth term, is also a holiday for school children in Victoria and I have provided for contact on that weekend. I have also made provision for long weekend contact in the first and third terms which will involve the children missing a total of two days school. I do not believe that missing school for this length of time will seriously compromise their education.
I would also hope that the father could travel to [S] from time to time. I was told that if he were to fly to Melbourne the mother would provide a car for him. I have ordered accordingly. I have not placed any restrictions on the number of such occasions as I assume the father would be able to go to [S] only occasionally at best. I acknowledge that contact in a motel in [S] or thereabouts is not ideal by any means but nevertheless it will enable the children to see and interact with their father.
I do not know what the arrangements between the parties were in relation to Christmas Day in 2006. I note that under the existing Orders the father was to have the children in the last two weeks of the Christmas holidays which would mean that they would be with the mother on Christmas Day. The Orders do not make provision for the father to spend any time with them at Christmas. I had proposed to give the father the first half of the 2007/2008 holidays which would have meant that the children would be with him over Christmas and which would have been logical given the existing Orders. However on reconsideration I realised that this would mean that the children would not see the father from early January until a weekend in first term. Given that they have never been separated from him for this length of time I thought that it might be best to defer this until the following year.
If the father wishes to have the children on Christmas Day and the parties cannot agree as to how this is to be arranged then I will permit them to re-list the matter for determination. I indicate the following for their guidance:
a)If the father did not see the children last Christmas then I would be disposed to either split his time over the holidays, that is to give him part of his time in the first part of the holidays and the balance at the end or, if he prefers, reverse the pattern set out in Order 5(a).
b)If the mother was in [T] last Christmas and the parties shared the children on Christmas Day I would be inclined to let the Orders remain as they are. This would mean that the father would not see them at all this year but would have the whole of Christmas Day in 2008.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Brewster FM

Associate:

Date: 9 November 2007