Wright and Watson

FEDERAL CIRCUIT COURT OF AUSTRALIA

WRIGHT & WATSON

[2016] FCCA 127

Catchwords:
FAMILY LAW – Parenting – where relocation sought by the mother with children – where one of three children has special needs – where any move is opposed by the father – where there is evidence of different needs and expectations of the children – where there is a real difference between each parent’s capacity to meet the needs of the children – where the father has not proposed his greater involvement with the children than currently occurs – where the mother seeks the support for the care of the children from family based in Brisbane – where the Family Report raises concerns as to the effects of any relocation as sought by the mother upon the oldest child – where a balance is necessary to meet the best interests of all three children – where the mother’s ongoing capacity to be the primary carer is significant and is detrimentally affected in the event of the mother remaining in the current locality.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 60B, 60DA, 61C, 61D, 65DAC, 65DAE

U & U (2002) HCA 96
Heath & Hemming (No 2) [2011] FamCA 749
Lansa & Clovelly [2010] FamCA 80
AIF v AMS (1999) 199 CLR 160
U v U (2002) 211 CLR 238
Collu & Rinaldo [2010] Fam CAFC 53 (25 March 2010)
Sigley & Evor (2011) 44 Fam LR 439
Marvel & Marvel (2010) 43 Fam LR 348
Goode & Goode (2006) FLC 93-286
Mazorski v Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
M & S (2007) FLC 93-313
Godfrey & Sanders [2007] FamCA 102
Champness & Hanson (2009) FLC 93-407
Hepburn v Noble (2010) FLC 93-438
MRR v GR (2010) 240 CLR 461

Applicant:

MS WRIGHT

Respondent:

MR WATSON

File Number:

TVC 222 of 2014

Judgment of:

Judge Coker

Hearing dates:

28 & 29 October 2015

Date of Last Submission:

29 October 2015

Delivered at:

Townsville

Delivered on:

11 March 2016

REPRESENTATION

Counsel for the Applicant:

Mr M Fellows

Solicitors for the Applicant:

SR Wallace & Wallace

Counsel for the Respondent:

Dr M Sayers

Solicitors for the Respondent:

J Hamilton & Associates

ORDERS

That the Mother and the Father have equal shared parental responsibility, in consultation with each other, for making decisions regarding the long term care, welfare and development of the children, X born (omitted) 2003, Y born (omitted) 2007 and Z born (omitted) 2008.
That without limiting the parental responsibility of either parent pursuant to paragraph 1 of these orders, each parent shall keep the other parent informed of and shall properly consult with the other with respect to any significant parenting issues affecting the children for the purpose of these orders, a parenting issue is:-
(a)any medical or health matter concerning the children;
(b)any medical or health matter affecting either parent which may affect the ability of that parent to care for the children;
(c)matters relating to the education of the children, including, but not limited to, the choice of school and curriculum and school other than with respect to routine or administrative matters;
(d)disciplinary matters other than of a trivial nature;
(e)matters concerning the social development and sporting activities of the children including the provision of whatever authority necessary to enable the parent to speak to any relevant persons;
(f)any intended change in the surname by which the children are commonly known from that which appears on the children’s birth certificate.-
Each parent will keep the other informed of:-
(a)their residential and postal address, mobile telephone number and landline numbers, (if available), and shall notify the other 48 hours prior to any change;
(b)the names and addresses of treating medical or other health practitioners who treat the children;
(c)as soon as reasonably practicable of any serious medical condition or significant health issue or significant injury suffered by the children.
That in relation to parental responsibility, if there are any decisions that they need to make, the parties will communicate with each other by email or text message and in the event that they are unable to resolve the dispute regarding parental responsibility they will communicate with a qualified Dispute Resolution Practitioner to try and assist them to resolve the dispute.
That each parent shall have the sole responsibility for the children’s day-to-day care, welfare and development during such times as the children are in the respective parent’s care.
That the parents authorise and direct by this Order:-
(a)medical or other health practitioners to provide both parents with information that they are lawfully able to provide about the children at the requesting parent’s expense;
(b)schools attended by the children to provide all information to both parents about the children’s education progress or other school related activities and either parent may seek school photographs, reports and Certificates at the requesting parent’s expense;
(c)that both parents may attend the children’s school, organised recreational and sporting events involving the children.
That the Mother and the Father shall:-
(a)not discuss these proceedings and ensure their best endeavours to not permit other persons to discuss these proceedings or the allegations made by either parent against the other to or in the presence of the children;
(b)not denigrate and use their best endeavours to not have other persons denigrate the other parent and the other person’s family to or in the presence of the children;
(c)respect the privacy of the other parent and not question the children about the personal life of the other parent;
(d)speak respectfully of the other parent and use their best endeavours to encourage others to speak respectfully of the other parent.
That each parent will ensure that the children are returned to the other parent with all of the clothing and other possessions brought with them at the commencement of each period of time the children spend with the other parent.
That the children, X born (omitted) 2003, Y born (omitted) 2007 and Z born (omitted) 2008, live with the mother and the mother be permitted to relocate the children to Brisbane prior to the commencement of the next school term.
That the children shall communicate and spend time with the Father, at all such times as is agreed between the parties and in particular at the following times and upon the following terms during the school term as follows:
(a)In the (omitted) area on the fifth weekend of the school term from the first available flight that leaves Brisbane airport after 5:00pm on Friday until the last available flight before 5:00pm that leaves (omitted) on Sunday;
(b)In Brisbane on up to three weekends per school term provided the father gives no less than 14 days’ notice to the mother of his intention to spend such time in Brisbane, from the conclusion of school on Friday until 6:30pm Sunday;
(c)that the children’s time with the father be extended where a public holiday or student free day is:-
(i)immediately before the weekend from the conclusion of school on the day prior to the public holiday or student free day; or
(ii)after the weekend, until the commencement of school on the day after the public holiday or student free day
(d)that the time that the children spend with the parents in Order 10 is suspended during school holiday periods;
(e)changeover shall occur where possible at school provided that if the Father is not able to collect the children from school the mother shall deliver the children to the Father and collect the children from the Father at any location within fifteen kilometres of Brisbane GPO.
That with respect to school holidays the children shall spend time with each of the parents as follows unless otherwise agreed:-
(a)With the Father:-
(i)In the Easter, June-July and September-October school holidays where:-
(A)The Father has an entire seven rostered days off with the children, for that entire period of time;
(B)The Father does not have an entire seven rostered days off but takes a week off then for up to 10 days, with the Father to notify the Mother of the start and end dates for the time to be spent with him no less than two weeks prior to the commencement of the school holidays;
(ii)In the Christmas school holidays for up to:-
(A)Three weeks with X during the first half of the holidays in even numbered years and the second half in odd years unless otherwise agreed in writing;
(B)10 days with Y and Z to coincide with the time that the Father is spending with X, with the Father to notify the Mother of the start and end dates for the time to be spent with him no less than two weeks prior to the commencement of the school holidays;
(b)With the Mother at all other times.
(c)The changeover shall be as follows:-
(i)Where the parties are travelling by car:-
(A)At the McDonalds (omitted) with each parent to bear their own costs associated with travelling to the changeover point;
(B)No earlier than midday on the Sunday after the children have finished school or otherwise at midday on the first of the Father’s rostered days off;
(C)No later than midday on the Saturday prior to the children recommencing school or otherwise at midday on the last day of the Father’s rostered days off;
(ii)Where either parent wants the children to fly and is willing to pay for all of the costs associated with travel at the commencement or conclusion of the holidays, changeover can occur at Brisbane airport on the first available flight that leaves Brisbane airport after 5:00pm on the day at the conclusion of school until the last available flight before midday that leaves (omitted) on the day prior to the children returning to school.
That with respect to special occasions, the children shall spend time with each of the parents in the event the Father is in Brisbane as follows unless otherwise agreed:
(a)The children’s birthday the parents spend time with the children on their birthdays in the event that the parent would not be otherwise due to spend time with the children:-
(i)on a school day from the conclusion of school until 7:00pm;
(ii)on a non-school day from 9:00am until 2:00pm;
(b)That for each of the parent’s birthday, on days when that parent would otherwise not be due to be spending time with the children:
(i)on a school day from the conclusion of school until 8:00pm; and
(ii)on a non-school day from 9:00am to 5:30pm.
(c)That for the Father on Father’s Day and the mother on Mother’s Day, that parent who is having the special day shall spend time with the children from 9:00am to 5:30pm;
(d)That for Christmas:-
(i)With the Father in the first year after these orders are made and then every alternate year for up to 10 days inclusive of Christmas Day with the Father to nominate when the time is to start and conclude:
(ii)With the Mother in the second year after these orders are made and then every alternate year for up to 10 days inclusive of Christmas Day with the Mother to nominate when the time is to start and conclude.
That in order to secure the Mother’s obligations to assist with the costs of the children spending time with the Father in (omitted) as provided for in these orders $1,000 will be deposited by the Father on the anniversary of the date of these Orders in each year into a joint account in the name of the parties to be utilised by the Mother along with her own monies as follows:
(a)To book a travel fare for one unaccompanied minor flight at the conclusion of X’s time with his Father once during each school term and once during the Christmas school holidays;
(b)To release up to $300.00 to the Mother during each school holiday period with the Father to assist the Mother in covering the costs of fuel, food and accommodation associated with transporting the children from Brisbane to (omitted).
That the parent who is not with the children shall be at liberty to telephone the children on the following basis between 6.30pm and 7.00pm:-
(a)on Sunday, Tuesday, and Thursday evenings;
(b)on all special occasions when the children would otherwise not be spending time with the parent;
(c)calls shall generally be made to the parent’s landline, but if the children are not available to take the call at any time during this time period the parent will advise the other parent by text message and either provide another phone number or have the children call the other parent.
Both parents will ensure that the children are available and able to speak with the other in accordance with Orders 14 and will respect the privacy of the children and ensure that the call is not monitored and is not placed on speaker phone.
The children can call the other parent at all reasonable times.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT TOWNSVILLE

TVC 222 of 2014

MS WRIGHT

Applicant

And

MR WATSON

Respondent

REASONS FOR JUDGMENT

INTRODUCTION:

These proceedings relate to orders sought with regard to the parenting of three young children. Those children are X, born (omitted) 2003, Y, born (omitted) 2007, and Z, born (omitted) 2008. The children are the children of Ms Wright, whom I shall refer to during these reasons as “the mother”. The father is Mr Watson and, again, for convenience I shall refer to him as “the father”.
The application is, indeed, a difficult one. It involves issues with regard to the proposed relocation by the mother from north Queensland, and particularly the (omitted) area of north Queensland, to Brisbane. The most significant reason put forward by the mother for the move, and it would, of course, involve a significant degree of geographic separation between the children and the father, is that the child, Z, has particular special needs. She appears, though the evidence is scant, to fall heavily within a diagnosis of suffering from autism and, certainly, the indicators, including the comments of the family report writer, Mr H, are to the effect that the child is severely disabled.
This causes obviously difficulties for the child and there are issues with regard to meeting her special needs, but when considered more widely it also gives rise to the very real difficulties that arise in relation to these proceedings. Quite simply, the mother says that she is primarily responsible for the care of all three children and that she is, to use the vernacular, “at the end of her tether”. She says that she needs assistance and that that can best be provided by members of her family residing in the Brisbane area and there is certainly evidence, which relates to those family members being able to provide assistance to the mother.
Additionally, and just as significantly, there are concerns with regard to the needs of the children X and Y being met, in circumstances where the special needs of Z give rise to them being less able to be indulged or at least having their particular wants and aspirations met, as a result of the time that is required to be devoted to Z. Thirdly, and, again, just as significantly, are the issues of concern that arise in a situation where if the mother is to have the support that she says is necessary in relation to this matter, the consideration that must be given to the effect upon the relationship that exists between the father and the children, noting particularly, as is relevant in relation to this matter, the very close bond that exists between the father and the child X. As well, there is the obvious assessment by the report writer, of the father’s capacity to meet the particular needs of Z and to balance the meeting of those needs against also ensuring that he is available for the other two children.

THE APPLICATIONS:

As I have suggested, this is a matter of some considerable complexity and difficulty. The proceedings were initiated by the mother. She filed her initiating application on 5 March 2014. There she sought orders in relation to property and parenting on both an interim and final basis. However, the parties were able to reach agreement in relation to the issues of property settlement and there has generally been in place an agreement as to what was to occur with regard to the parenting of the children, at least until such time as the matter was able to proceed to a final determination.
The orders that were sought by the mother were detailed in the Initiating Application and were in these terms:
1.That the mother MS WRIGHT and the father MR WATSON shall have equal shared parental responsibility, in consultation with each other, for making decisions regarding the long term care, welfare and development of the children, X (born (omitted) 03), Y (born (omitted) 07) and Z (born (omitted) 08.
2.That without limiting the parental responsibility of either parent pursuant to paragraph 1 of these orders, each parent shall keep the other parent informed of and shall properly consult with the other with respect to any significant parenting issues affecting the children for the purpose of these orders, a parenting issue is:-
(a)any medical or health matter concerning the children;
(b)any medical or health matter affecting either parent which may affect the ability of that parent to care for the children;
(c)matters relating to the education of the children, including, but not limited to, the choice of school and curriculum and school other than with respect to routine or administrative matters;
(d)disciplinary matters other than of a trivial nature;
(e)matters concerning the social development and sporting activities of the children including the provision of whatever authority necessary to enable the parent to speak to any relevant persons;
(f)any intended change in the surname by which the children are commonly known from that which appears on the children’s birth certificate.-
3.Each parent will keep the other informed of:-
(a)their residential and postal address, mobile telephone number and landline numbers, (if available), and shall notify the other 48 hours prior to any change;
(b)the names and addresses of treating medical or other health practitioners who treat the children;
(c)as soon as reasonably practicable of any serious medical condition or significant health issue or significant injury suffered by the children.
4.That in relation to parental responsibility, if there are any decisions that they need to make, the parties will communicate with each other by email or text message and in the event that they are unable to resolve the dispute regarding parental responsibility they will communicate with a qualified Dispute Resolution Practitioner to try and assist them to resolve the dispute.
5.That each parent shall have the sole responsibility for the children’s day-to-day care, welfare and development during such times as the children are in the respective parent’s care.
6.That the parents authorise and direct by this Order:-
(a)medical or other health practitioners to provide both parents with information that they are lawfully able to provide about the children at the requesting parent’s expense;
(b)schools attended by the children to provide all information to both parents about the children’s education progress or other school related activities and either parent may seek school photographs, reports and Certificates at the requesting parent’s expense;
(c)that both parents may attend the children’s school, organised recreational and sporting events involving the children.
7.That the mother and the father shall:-
(a)not discuss these proceedings and ensure their best endeavours to not permit other persons to discuss these proceedings or the allegations made by either parent against the other to or in the presence of the children;
(b)not denigrate and use their best endeavours to not have other persons denigrate the other parent and the other person’s family to or in the presence of the children;
(c)respect the privacy of the other parent and not question the children about the personal life of the other parent;
(d)speak respectfully of the other parent and use their best endeavours to encourage others to speak respectfully of the other parent.
8.That each parent will ensure that the children are returned to the other parent with all of the clothing and other possessions brought with them at the commencement of each period of time the children spend with the other parent.
9.That the children X, Y and Z live with the mother and the mother be permitted to relocate the children to Brisbane prior to the commencement of the next school term.
10.That the children shall communicate and spend time with the father, at all such times as is agreed between the parties and in particular at the following times and upon the following terms during the school term as follows:
(a)In the (omitted) area on the fifth weekend of the school term from the first available flight leaves Brisbane airport after 5:00pm on Friday until the last available flight before 5:00pm leaves (omitted) on Sunday;
(b)In Brisbane on up to three weekends per school term provided the father gives no less than 14 days notice to the mother of his intention to spend such time in Brisbane from the conclusion of school on Friday until 6:30pm Sunday;
(c)that the children’s time with the father be extended where a public holiday or student free day is:-
(i)immediately before the weekend from the conclusion of school on the day prior to the public holiday or student free day; or
(ii)after the weekend, until the commencement of school on the day after the public holiday or student free day
(d)that the time that the children spend with the parents in Order 10 is suspended during school holiday periods;
(e)changeover shall occur where possible at school provided that if the father is not able to collect the children from school the mother shall deliver the children to the father and collect the children from the father at any location within fifteen kilometres of Brisbane GPO.
11.That with respect to school holidays the children shall spend time with each of the parents as follows unless otherwise agreed:-
(a)With the father:-
(i)In the Easter, June-July and September-October school holidays where:-
(A)     The father has an entire seven rostered days off with the children, for that entire period of time;
(B)     The father does not have an entire seven rostered days off but takes a week off for up to 10 days at time with the father to notify the mother of the start and end dates for the holidays no less than two weeks prior to the commencement of the school holidays;
(ii)In the Christmas school holidays for up to:-
(A)     Three weeks for X;
(B)     10 days for Y and Z with the father to notify the mother of the start and end dates for the holidays no less than two weeks prior to the commencement of the school holidays;
(b)With the mother at all other times.
(c)The changeover shall be as follows:-
(i)Where the parties are travelling by car:-
(A) At the McDonalds (omitted) with each parent to bear their own costs associated with travelling to the changeover point;
(B) No earlier than midday on the Sunday after the children have finished school or otherwise at midday on the first of the father’s rostered days off;
(C) No later than midday on the Saturday prior to the children recommencing school or otherwise at midday on the last day of the father’s rostered days off;
(ii)Where either parent wants the children to fly and is willing to pay for all of the costs associated with travel at the commencement or conclusion of the holidays changeover can occur at Brisbane airport on the first available flight leaves Brisbane airport after 5:00pm on the day at the conclusion of school until the last available flight before midday leaves (omitted) on the day prior to the children returning to school.
12.That with respect to special occasions the children shall spend time with each of the parents in the event the father is in Brisbane as follows unless otherwise agreed as follows:
(a)The children’s birthday the parents spend time with the children on their birthdays in the event that the parent would not be otherwise due to spend time with the children:-
(i)on a school day from the conclusion of school until 7:00pm;
(ii)     on a non school day from 9:00am until 2:00pm;
(b)That for each of the parent’s birthday, on days when that parent would otherwise not be due to be spending time with the children:-
(i)on a school day from the conclusion of school until 8:00am; and
(ii)     on a non school day from 9:00am to 5:30pm.
(c) That for the father on Father’s Day and the mother on Mother’s Day, that parent who is having the special day shall spend time with the children from 9:00am to 5:30pm;
(d)That for Christmas:-
(i)With the father in the first year after these orders are made and then every alternate year for up to 10 days inclusive of Christmas Day with the father to nominate when the time is to start and conclude:
(ii)With the mother in the second year after these orders are made and then every alternate year for up to 10 days inclusive of Christmas Day with the mother to nominate when the time is to start and conclude.
13.That in order to secure the mother’s obligations to assist with the costs of the children spending time with the father in (omitted) as provided for in these orders $   will be deposited by the mother into a joint account in the name of the parties to be utilised by the mother as follows:-
(a)To book a travel fair for one unaccompanied minor flight at the conclusion of X’s time with his father once during each school term and once during the Christmas school holidays;
(b)To release $300.00 to the mother at the beginning and again at the conclusion of each school holiday period with the father to assist the mother in covering the costs of fuel, food and accommodation associated with transporting the children from Brisbane to (omitted).
14.That the parent who is not with the children shall be at liberty to telephone the children on the following basis between 6.30pm and 7.00pm:-
(a)on Sunday, Tuesday, and Thursday evenings;
(b)on all special occasions when the children would otherwise not be spending time with the parent;
(c)calls shall generally be made to the parent’s landline. IF the children are not available to take the call at any time during this time period the parent will advise the other parent by text message and either provide another phone number or have the children call the other parent.
15.Both parents will ensure that the children are available and able to speak with the other in accordance with Orders 14 and will respect the privacy of the children and ensure that the call is not monitored and is not placed on speaker phone.
16.The children can call the other parent at all reasonable times.
17.That pursuant to S65DA(2), 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.

As can be seen, the orders proposed by the mother were comprehensive and sought, as best it were foreseeable, to deal with all possible issues that arose, in relation to the parenting of the children, so as to ensure that the children’s opportunity for time with the father was made available, but also to facilitate the provision of the support that the mother says is desperately needed by her.
It should be noted, that the mother’s initiating application at order 13, specifically proposed the payment of an amount of money to assist with the mother meeting the obligations that arose pursuant to the proposed orders, in relation to the children spending time with the father. That particular aspect of the matter was not specifically addressed in relation to the proceedings, but in my assessment it will be necessary for there to be some consideration, if orders are made with regard to the mother having the opportunity to relocate, to specifically deal with issues in relation to the costs associated with the children spending time with their father.
The father responded to the application on 2 May 2014. In his response he initially detailed final orders which, to an extent, reflected proposals with regard to him having more significant time with the children, than was the case at the time of filing. Those proposals appear to have been pared down, to some extent, as circumstances have developed. Initially, the father’s proposals could be summarised as follows:
·That the children live with the mother;
·That the children spend time with the father at all reasonable times as may be agreed and, in particular, from the second day of the father’s rostered block days off until the last day of the father’s rostered block days off;
·The orders, however, provided specifically for X to spend additional time with his father during the school terms, such that he would be spending, basically, half of any week in his father’s care or, if his father were not available, then subject to direction and arrangements made by the father;
·That school holiday periods continue to operate in accordance with the father’s rostered days off;
·That communication be facilitated by each parent with the children, when the children are not in that parent’s care;
·That the parents have equal shared parental responsibility;
·That the orders operate as sufficient authorisation for medical and education providers to provide information to each of the parents; and
·That the mother not be permitted to relocate with the children from the (omitted) area to Brisbane, without the consent of the father.
The father then amended his response in October of 2015 to more precisely outline arrangements and proposals, in relation to the children living or spending time with each parent, both during the school terms and school holiday periods. The father also more precisely detailed arrangements proposed by him in relation to special days and with regard to communication and how that should occur, as well as with respect to changeovers and arrangements which might necessarily be required to be considered, with regard to the education of the children.
In particular, the father’s amended response proposed that the mother should have the opportunity to move from (omitted), which is a small community outside of (omitted), into (omitted), no doubt to facilitate the opportunity for X to commence attendance at school, it still being acknowledged that the children would primarily remain in the mother’s care. The father, in the amended response, also detailed what he proposed, in the event of the mother being granted leave to relocate to Brisbane.
There were thereafter some slight modifications to those proposed amended orders, as contained within the final orders sought and particularised in the respondent’s case outline filed on 27 October 2015. The final orders detailed by the father were extensive and spanned some nine pages of the case outline. The proposed orders were in these terms:
1.That the children, X born (omitted) 2003, Y born (omitted) 2007 and Z born (omitted) 2008 (the children) live with the Mother.
2.That the children spend substantial and significant time with the Father at all reasonable times as agreed and, in particular, as follows:-
School Term
(a)During the school term, in accordance with the Father’s roster, the first and the third week of a four week cycle:-
(i)With X, from the conclusion of school on Thursday until 5:00pm Sunday;
(ii)With Y and Z, from the conclusion of school on Thursday until 5:00pm Saturday;
(iii)The children’s time with the Father be extended where a public holiday or student-free day is:-
A. Immediately before the weekend from the conclusion of school on the day prior to the public holiday or student-free day; or
B. After the weekend until 5:00pm on the day prior to the recommencement of school;
(iv)That the time that the children spend with the Father during the school term is suspended during school holiday periods.
School Holidays
(b)During school holiday periods the children shall spend time with the parents at all such times as is agreed between the parents and, in particular, as follows:
(i)For the Easter, June/July and September school holiday periods:-
A. With the Father on all of his rostered days’ off; and
B. With the Father for an additional block period of one week during any of the Easter, June/July or September school holidays (provided that there is no school excursion planned); and
C. The Father shall advise the mother by the first day of the school term prior to the relevant holiday of his nominated dates for the additional one week block period.
(ii)In the Christmas school holidays:-
A. Subject to Order 2b(ii)B, with the Father on all of his rostered days’ off;
B. With the Mother for one block period of one week during the Christmas school holidays with the Mother to nominate when that week shall occur by the first day of the fourth school term (provided that such time will not include Christmas Day);
(iii)With the Mother on all other occasions.
(iv)The Father’s time with the children while he remains on his current work roster:-
A. Commence at 9:00am on Thursday morning of his rostered days’ off and conclude at 5:00pm on the day prior to the commencement of school.
Special Days
(c)Arrangements for the children in relation to special days, unless otherwise agreed between the parents in writing will be as follows:-
(i)The non-resident parent shall spend time with the children on the children’s birthdays as follows:-
A. From the conclusion of school until 7:00pm on a school day; and
B. From 9:00am until 2:00pm on a non-school day.
(ii)The children shall spend from 9:00am to 5:00pm on Fathers’ Day with the Father.
(iii)The children shall spend from 9:00am to 5:00pm on Mothers’ Day with the Mother.
(iv)In the immediate Christmas period as follows:-
A.   With the Mother from 9:00am on Christmas Eve until 11:30am on Christmas Day; and
B.   With the Father from 11:30am on Christmas Day until 5:00pm on Boxing Day.
3.The children shall communicate with the parents at all reasonable times as agreed and, in particular, as follows:-
(a)The Father may telephone the children at the following times on the following basis:-
(i)Between 4:30pm and 5:00pm when the Father is working on nightshift and between 6:30pm and 7:00pm at all other times;
(ii)On any evening between Sunday and Thursday;
(iii)ON all special occasions, including but not limited to the children’s birthdays, Fathers” Day, the Father’s birthday;
(iv)Calls shall generally be made to the parent’s mobile telephone. If the children are not available to take the call at any time the parent will advise the other parent by text message to either provide an alternative phone number or have the children return the missed call within a reasonable period of time.
4.Either parent may contact the children on the children’s mobile telephone at any reasonable time.
5.Both parents will ensure that the children are available and able to speak with the other in accordance with these Orders and they will respect the privacy of the children and ensure that the call is not monitored.
6.The children may call the other parent at any reasonable time.
7.The parents shall communicate in relation to the children by way of text message and each parent will:-
(a)Provide information to the other parent as is required or reasonable requested by the other parent;
(b)Ensure the communication is restricted to issues relating to the children;
(c)Acknowledged the other parent’s text message.
Changeover
8.Unless otherwise agreed by the parents in writing:-
(a)Changeover wherever possible shall occur at the children’s schools;
(b)Until the Mother relocates to (omitted), changeover shall occur at the (omitted) shop;
(c)After the Mother relocates to (omitted), changeover shall occur at (omitted) Service Station.
9.From the commencement of the 2016 school year, unless otherwise agreed by the parents in writing:-
(a)X shall be enrolled at (omitted) High School;
(b)Y shall be enrolled at (omitted) State School;
(c)Z shall continue to be enrolled at (omitted) Special School at (omitted).
Specific Issues
10.That until the conclusion of the school year in 2015 the Mother shall not be permitted to relocate more than thirty (30) kilometres from (omitted) without the written consent of the Father or an Order of the Court.
11.The Mother shall be permitted to move to the (omitted) area at the conclusion of the 2015 school year and thereafter shall not be permitted to relocate a distance greater than thirty (30) kilometres form the (omitted) CBD without the written consent of the Father or an Order of the Court.
12.The Mother shall not permit the children to spend time with the Mother’s niece, A, that is not supervised by a responsible adult.
Roster
13.In the event that the Father’s current work roster changes from a seven (7) day on seven (7) day off roster, the children shall, as far as practicable spend an equivalent period of time with the Father as provided for in these Orders.
Parental Responsibility
14.The parents have equal shared parental responsibility for the children X, Y and Z.
15.Each parent will keep the other informed of:
(a)Their residential and postal address, mobile telephone number and landline numbers, (if available), and shall notify the other forty-eight (48) hours prior to any change;
(b)The names and addresses of treating medical or other health practitioners who treat the children;
(c)As soon as reasonably practicable of any serious medical condition or significant health issue or significant injury suffered by the children.
16.That in relation to parental responsibility, if there are any decision that they need to make, the parents will communicate with each other by email or text message and in the event that they are unable to resolve the dispute regarding parental responsibility they will engage with a qualified Dispute Resolution Practitioner to assist them to resolve the dispute.
17.That the parents authorise and direct by this Order:-
(a)Medical or other health practitioners to provide both parents with information that they are lawfully able to provide about the children at the requesting parent’s expense;
(b)Schools attended by the children to provide all information to both parents about the children’s education progress or other school related activities and either parent may seek school photographs, report and Certificates at the requesting parent’s expense;
(c)That both parents may attend the children’s school, organised recreational and sporting events involving the children.
18.That the Mother and Father shall:-
(a)Not discuss these proceedings and use their best endeavours to prohibit other persons to discuss these proceedings or the allegations made by either parent against the other to or in the presence of the children;
(b)Not denigrate and use their best endeavours to not have other persons denigrate the other parent and the other person’s family to or in the presence of the children;
(c)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(d)Speak respectfully of the other parent and use their best endeavours to encourage other to speak respectfully of the other parent;
(e)Not consume illicit substances or be affected by illicit substances when the children are in their care;
(f)     Avoid any conflict in front of the children.
19.That each parent will ensure that the children are returned to the other parent with all of the clothing and other possessions brought with them at the commencement of each period of time the children spend with the other parent.
20.In the event that the Mother relocates to Brisbane with all three (3) of the children, that the Father’s time with the children in proposed Orders 2 herein be varied as follows:-
(a)That the children spend time with the Father during each school term as follows:-
(i)With the Father in Brisbane on one (1) weekend from the conclusion of school on Thursday until 5.00pm Sunday with the Father to be responsible for the costs and travel arrangements;
(ii)With X and Y in (omitted) on one (1) weekend (to coincide with the Father’s rostered days off) from Friday afternoon until Sunday afternoon (or Monday if the weekend coincides with a long weekend or Pupil Free Day) with the Mother to be responsible for the costs of the children’s airfares and travel arrangements with the Father to notify the Mother of the weekend that he selects 28 days in advance.
(b)During school holiday periods as follows:-
(i)With all three (3) of the children all of his rostered days off in Easter, June/July and September/October and at all other times with the Mother, with the Mother to transport the children to (omitted); and
(ii)In the Christmas school holidays with the Father on all of his block rostered days off provided that the Father will forego one (1) block period of his rostered days off with such week to be nominated by the Mother by the first day of School Term 4(provided such time will not include Christmas Day); and
(iii)With the Mother on all other occasions, with the Mother to transport the children to (omitted).
21.In the event that the Mother relocates to Brisbane and X remains living with the Father in (omitted) proposed Orders 2 be varied as follows:-
(a)During the School Term as follows:-
(i)X will travel with the Father to Brisbane on one (1) weekend from the conclusion school on Thursday until 5.00pm Sunday to spend time with Z and Y with the Father to be responsible for the costs and arrangements; and
(ii)X shall travel to Brisbane on one (1) weekend on Friday afternoon until Sunday afternoon (or Monday if the weekend coincides with a long weekend or Pupil Free Day) with the Father to be responsible for X’s airfares and travel arrangements; and
(iii)Y to travel to (omitted) on one (1) weekend (to coincide with the Father’s rostered days off) from Friday afternoon until Sunday afternoon (or Monday if the weekend coincides with a long weekend or Pupil Free Day) with the Mother to be responsible for the child’s cost of airfares and travel arrangements.
(b)During the school holidays, the arrangements shall be in accordance with Order 20(b) herein.
22.Such further or other Order as the Court considers necessary.

THE ISSUES:

The most significant issue in relation to this matter was, as I have identified, the mother’s proposed relocation to Brisbane. As included in the case outline filed on behalf of the mother, the suggestion was made that the primary aspect of the relocation of the children with the mother to Brisbane related to the child Z and her autism and the apparent availability of family support for the mother in Brisbane.
It was submitted on the part of the mother, that the best interests of the children, but, of course, particularly Z, were met by the relocation being granted. It was further submitted, that it was not reasonably practicable to continue with the current arrangements that were in place, with regard to the father’s opportunity to spend time with the children pursuant to the orders that have previously been made on an interim basis. In the alternative, it was suggested that the “price” of those arrangements continuing to operate was too high a price to pay, particularly when it was, to all intents and purposes, submitted that it was the mother and the children, who would pay that price.
Finally, and it only arose in the father’s trial affidavit as a possible suggestion, it was submitted that there was no proper basis for there to be a separation of the children, particularly where, in the father’s trial affidavit, there appeared to be some suggestion that if the mother were granted leave to relocate, then it should only be the two girls, Y and Z, who should travel with her and that the oldest child, X, should remain in the father’s care.
That particular suggestion seems, at least to some degree, to have stemmed from the concerns that were identified by the family report writer, Mr H, in relation to the child, X, and the effect upon him of any relocation. I shall obviously come to those particular aspects of the matter later in these reasons.

THE EVIDENCE:

It should be noted that both the mother and the father relied upon the evidence of various other witnesses. From the perspective of the mother, reliance was placed upon the evidence of the mother’s brother, Mr J, the mother’s niece, Ms B, the mother’s mother, the maternal grandmother, Ms J, to the evidence of the mother’s landlord, Mr S, and to the mother’s sister-in-law, the wife of Mr J, Ms M.
At the commencement of the hearing, however, it was indicated that the brother and landlord were not required for cross-examination and as the matter progressed, it was also subsequently indicated that the maternal grandmother was also not required.
From the perspective of the father, one additional witness was relied upon over and above the father and that was the paternal grandmother, Ms H. Indications were given initially that there was to be reliance upon the evidence of Mr C and, to the limited degree that it is of assistance to me, I will refer to the evidence of Mr C. He was not, however, required for cross-examination.

THE OTHER WITNESSES:

I turn then, firstly, to the evidence of the witnesses who were not required for cross-examination. The maternal uncle, Mr J, filed an affidavit on 28 September 2015. He noted particularly the fact that his sister was seeking the permission of the Court to relocate along with the children and noted that her major motivation was to seek the extra support of he, his wife, Ms M, as well as the support of his daughter and the maternal grandmother. He acknowledged the fact that he worked full time, but that he would hope to be able to provide some form of assistance to the mother, but recognised that the primary assistance would come from his wife and daughter.
He detailed in his affidavit the types of support that he would be able to provide, both emotional and physical, to the mother in his affidavit and noted that he was, as he put it, “reasonably handy” and would be able to provide general handyman and labouring assistance to the mother, if she were to be in Brisbane. I accept the evidence of Mr Wright in relation to this matter and note, of course, that it was unchallenged.

Insofar as the maternal grandmother is concerned, she details in her affidavit, also filed on 28 September 2015, the observations that she has made of the mother and, in particular, the observations of the mother’s interaction with the children, as well as to detail, at least to some degree, the assistance that she would be able to provide. She noted in that regard particularly that her assistance would not be as hands on or as frequent as that suggested as being available by the maternal aunt and niece, but certainly indicated that she would, as expected, be available to provide some assistance and, in circumstances of emergency, would be able to assist.
Of greater relevance, in relation to this matter, are the observations that the maternal grandmother makes about the challenges to the mother as a single mother, dealing with not only the normal issues that would arise with regard to the parenting of three young children, but also the special circumstances that arise, with regard to the care of Z. At paragraph 7 of her affidavit, for example, Ms Wright says the following:
Z is so challenging that you almost need one parent working full-time just with her. Life would be so much easier for Ms Wright if there were two adults, one for Z and one for Y, X and all the other jobs that need to be done. Z is so demanding and challenging that everything is centred around Z.
That appears to be a common theme flowing throughout the evidence in relation to this matter. And it is, with respect, a matter of some particular significance in relation to the application, because it is generally acknowledged that the rest of the family do take a “back seat”, in relation to their lives, so as to facilitate the meeting of the needs and special requirements that arise in relation to Z.
I note that Ms Wright details in her affidavit, matters relating to the family experience when Z has a “meltdown”, as well as noting the special difficulties that arise with regard to basic hygiene and other issues relating to the child and the mother’s capacity to meet the needs of the child. To the extent that I am properly able to do so, I acknowledge and accept the evidence of Ms Wright, in relation to those observations.
With regard to Ms B, the maternal cousin of the children, I note that she specifically indicates a desire to provide assistance to her aunt. I note that Ms B is a student, studying for a (qualifications omitted). I accept that, on the face of it, there would be difficulties in relation to Ms B providing assistance to the mother, but again, her unchallenged evidence is that she would go out of her way to assist, as she was able to, with regard to the needs of the children, and particularly Z. It is clear that she has turned her mind specifically to that issue as at paragraph 7 of her affidavit, for example, she says:
I have not offered to volunteer to Ms Wright lightly or without understanding what might be involved in volunteering to help out. As a result of spending time with Z in particular I have some understanding of how difficult and challenging Z can be as a result of spending time with her (and also hearing stories).
Ms B notes that she cannot be specific as to the times of day or the days that she would be able to assist the mother, in relation to the child, but goes on in paragraph 15 to indicate that if the mother were to live close by to she and her family, as is anticipated, she would be surprised if she did not:
…help out on at a least a weekly basis.
I accept that there would be some limitations on the availability of Ms B in relation to providing assistance, but am satisfied, again on the unchallenged evidence, that she would be willing to provide assistance to her aunt in that regard, and that she would be able to provide varied types of assistance, both with regard to the special needs of Z, and perhaps, alternatively, assisting with the needs of both Y and X, so as to facilitate the mother being available to more specifically direct her attention as required to the needs of Z. Again, to the extent that I am properly able to do so, I accept the unchallenged evidence of Ms B in relation to this matter.
Finally, on the part of the mother, and not required to give evidence in relation to the matter, was the witness Mr S. Mr S is a (occupation omitted) and deposes in his affidavit of 29 September 2015 to what he says is an accurate reflection of his observations of the care arrangements, in relation to the children.
In his affidavit he deposes to his observation of the children being in the care of the mother for about 90 per cent of the time that he was able to observe, up until February of 2014. He also notes in a letter of 16 February 2014, which is annexed to his affidavit, that his observations were to the effect that the children had been in the mother’s sole care for several weeks at a time, and that there is only limited time spent, as Mr S understands it, with the father. He does note as appears to be confirmed by the evidence as it has fallen in relation to this matter, that his observation is to the effect that:
X spends a little more time away from the house than his sisters.
I accept the unchallenged evidence of Mr S, in relation to this matter.
It was the case that the maternal aunt, Ms M was required for cross-examination, as well as there being reliance placed upon her affidavit, filed on 28 September 2015. I was generally impressed by Ms M and the evidence that she gave in relation to this matter. She was not cross-examined very long, but I gained the distinct impression that her determination to provide assistance to the mother was genuine, and would be assistance that would be ongoing.
To that extent I note particularly that Mrs Wright, like her mother-in-law and her daughter, went to some considerable lengths to describe her relationship with the children, her capacity to help, and her experiences, particularly with regard to observing and assisting with the care of Z.
I noted particularly, the indication of Mrs Wright hearing exchanges between the father and the children. She was not challenged in relation to the various comments that she made, and such evidence was of concern, particularly with regard to future expectations in relation to the encouragement of the relationship between the children and the mother and, more particularly, the real prospect of that relationship being undermined.
To some extent, at least, there was an indication of a concern already held that the father was acting in such a manner, particularly with regard to his interactions with X. For example, at paragraph 31 of her affidavit, Mrs Wright noted:
I have witnessed how X behaves towards Ms Wright after being with his Father. X talks back to her, the tone in his voice when he speaks to her, the things he says to her as a 10 year old (now he is 12) lead me to believe that Mr Watson said things to him that he could not say on his own. I have heard phone calls that Mr Watson has made to X and I think what he says to is highly inappropriate for a child of X’s age. I heard Mr Watson say in phone calls in 2014:-
a. put the phone on speaker and once X did that I heard Mr Watson say:-
i. “Tell your Mum I will see her in court and that she is going down”.
ii. I have also heard Mr Watson say on loud speaker to X that he is “Going for full custody of him and that mediation can go and get fucked”.
More particularly, when commenting upon her relationship with the children, I gained the impression that there was a real understanding and empathy with each of the children, but particularly Y. The impression was that Y was to some extent a forgotten child in both households. Mr H noted in his report, and also in his oral evidence, for example that Y appeared to bear the brunt of Z’s aggressive behaviours, and he noted particular concerns arising from that.
Similarly, Mrs Wright commented at paragraphs 36 and 37 her own observations of the effects upon Y, and in particular noted the wish expressed by Y to move to Brisbane. At paragraphs 36 and 37 Mrs Wright said:
I feel badly for Y because I think that so much of Ms Wright’s focus needs to go on Z and then because Ms Wright has had problems managing X’s behaviour Y gets the least attention of the three kids. Poor Y really cops it from Z in the car if Ms Wright does not do something that Z wants in that she will hit Y. Y has been hit daily since I arrived and Y has been in tears on a number of occasions as a result of Z. On one occasion Y was doing her own thing on the couch at Ms Wright’s and Z just marched over (seemingly unprovoked) and poked Y in the eye.
Y has indicated to me unprompted on a number of trips when I have stayed in (omitted) that she wants to move to Brisbane. Y seems to enjoy the extra attention that can come from other adults and enjoys prattling away and doing colouring in. Y loves spending time with A and doing girly things like playing with make up etc.
As I have indicated previously, I was impressed by the evidence of Mrs Wright, and in particular, accept absolutely that she would be a significant support for the mother, providing not only a sounding board and a person for the mother to confide in, but more particularly would be a person involved directly in the provision of physical assistance, with regard to providing for and meeting the needs of all three of the children, dependent upon which of the children’s needs were to the fore.
For the father, evidence was relied upon from Mr C. Mr C indicated that he has known the father most of his life, and indicated that his father and the father’s family appear to have been close for very many years. He noted in particular that the father’s extended family are close, recalling in paragraph 6 of his affidavit that even post-separation the mother and the father still celebrated family events including Christmas together, and with the father’s family.
In that respect, however, I should note of course that after the institution of these proceedings, invitations that may have previously been directed to the mother and the children, particularly with regard to the celebration of Christmas, were not forthcoming, and whilst the father says that he was not involved in any such arrangements, he acknowledged in his own evidence that he had not suggested the inviting of the mother, nor had the paternal grandmother, Ms H, invited the mother.
In that regard, additionally, Mr C indicated that the paternal grandmother was in his observation a very family oriented person and that if the mother asked for her assistance, then it was his belief that the paternal grandmother would provide such assistance. To the extent that I am able to do so, I acknowledge that that would be the case, though I also would accept that following the breakdown in the relationship, seeking assistance from members of the other party to the breakdown’s family, would be a matter of some difficulty.
Mr C also notes his observations of the father’s interactions with the children, and in particular notes the capacities exhibited by the father in relation to dealing with Z’s special needs. Again, to the extent that I am able to do so, I accept the evidence of the observations of Mr C in relation to this family unit.
The paternal grandmother, Ms H, was required for cross-examination. Ms H had filed an affidavit on 9 October 2015, and in that affidavit she described some of the elements of the family history, and noted that during the relationship between the mother and the father, she spent considerable time with the mother and the children, and as she indicated, was always happy to lend a hand. I accept that that was no doubt the case, and would accept that Ms H has on occasion sought to provide assistance not only to the father but also to the mother, with regard to the needs of the children.
Ms H was asked particularly about her discussions with X, or any statements made by X, in relation to his wishes, especially with regard to the proposed move to the south. Ms H indicated that generally X raised the issue with her, and that she did not seek to encourage such conversation.
Ms H also confirmed her assistance provided to the father, both with regard to collection and on occasion care of one or other of the children, as well as providing assistance by way of making her motor vehicle available to the father, on occasions when the father had all of the children in his care. Ms H also confirmed that she was aware that the father’s current position was to suggest that if X were not in Brisbane with his mother, even if the girls were there, that she would support the father’s position in that regard, and would take a pivotal role in respect of providing support for the child, particularly as the father would continue his work, seven days on and seven days off.
Ms H also was asked about the father’s involvement with the children in various activities. I was troubled by the lack of involvement that the father would seem to have, particularly with the girls. Whilst I have absolutely no doubt as to his love for the children and his ability to deal with the children, particularly in respect of Z’s special needs, it was troubling that the father would seem to go out of his way to do activities with X. I note also that when the girls return to their mother on a Saturday evening, Ms H would quite often, during the football season, involve herself in activities with X and the father would not be involved in those activities.
Ms H was specifically asked about an incident in early 2015, involving the provision of supplies by the father to friends in the (omitted) area, following a cyclone. I am aware that Ms H provided care for the girls when the father left with X to deliver such items. What was troubling, however, was that again it was an instance where the father involved X to the exclusion of the girls.
In that respect, I specifically inquired whether the father did any activities just with the girls or with one of them and left X behind, and the best that the paternal grandmother could indicate in that regard was that he may take them to get the shopping. When asked whether there were any longer activities indulged in by the father with the children, she advised that she was unable to recall any.
I accept the evidence of Ms H in relation to this matter, and, in particular, I am satisfied that she would provide support for the father in any physical or emotional way that might be required. I should indicate, however, that I do have some concern that the paternal grandmother would follow the father’s line, in relation to decisions to be made with regard to the children without raising, as in my assessment would be proper, concerns with regard to distinctions in respect of the care or involvement that the father had with each of the children, particularly again being mindful of the concerns that arise with regard to Y and her being perhaps the child excluded, from having any particular special needs met.

THE PARENTS:

I turn then to the evidence of the parents themselves. My impression, particularly of the mother, was that she was, as was clearly indicated in her material, at the end of her tether. It was clear that the mother had gone above and beyond what could have been properly expected of her, in relation to the care of the children. The parties separated in or about June of 2011, and for the next two and a half years or thereabouts, the mother has taken on the significantly greater role in relation to providing for and meeting the needs of the children.
The father had the opportunity, should he have desired to do so, to significantly involve himself in the lives of the children, but did not do so. Unfortunately, the impression that I distinctly gained, in relation to this matter, was that it was only when the mother made her application in early 2014 that the father increased his involvement with the children, particularly X, so as to strengthen his position, in relation to any such application that might be heard before the court.
However, I do not seek to be disparaging of the fact that the father has, to a more significant degree, now stood up and taken a more significant role in relation to the children. It is simply to emphasise that it has been the mother, particularly in circumstances where there is a child with special needs, who has taken on the vast bulk of the obligations and responsibilities, in relation to the needs of the children. And it is undoubtedly understandable that she would be borne down by the obligations and responsibilities that have fallen upon her, and that she would seek the assistance of those nearest and dearest.
That is not to say that she could not have sought, to some extent, the assistance of members of the paternal family, though it is clear that the father has not stepped up and provided greater assistance, nor does he even now, in circumstances such as currently exist, intend to seek more time with the children than he currently has. As was submitted on the part of the mother, it is clearly the position of the father that the mother is to pay the price for the breakdown in the relationship. The father seeks, it is submitted, to be left in the situation that he is in and does not wish to pay or bear any price in relation to the future care of the children, but rather seeks to continue as he has done so.
There is significant weight in the submission that is made, that taking a principled or legislative approach, in relation to the determination of this matter, though, of course, the legislative pathway must be followed, fails to properly recognise, as was submitted, the enormous human problem that arises, with regard to the mother taking on almost the totality of the responsibilities, in relation to these children.
The mother was worn out, though she had not done all that she possibly could to assist herself. It was clear, for example, that she had not sought as significantly as might have been available, the assistance of Autism Queensland or the respite services of (omitted). But just as clearly, the father had not, until a matter of days at most prior to the hearing, sought out information with regard to such services, so as to keep the mother informed or to assist her. The father had little, if any, appreciation of the enormous burden placed upon the mother, and the responsibilities that arose for her, without his input.
As I have indicated, I have no doubt that members of the father’s family would have been supportive of the mother, though it is noteworthy in that regard that whilst there was suggestions of assistance available from the maternal aunt, Ms C, no affidavit indicating that support was available. But notwithstanding that, there is the greater consideration which arises from the difficulties inherent in the breakdown of the relationship between the mother and the father.
As I have already indicated, it is understandable that the mother would be reluctant to be seen as calling upon members of the father’s family for assistance, and, in my assessment, should not be the subject of criticisms as a result of that.
The mother in cross-examination acknowledged that she was exhausted, that she was struggling and that she was not coping. She indicated that she was stretched too far and needed support. And when asked what that support would be, answered, I thought rather tellingly, that it would be support “for me to be a better parent”. The mother acknowledged that she was borne down by the obligations and responsibilities that arose, particularly with regard to balancing the needs of the three children, when one had special needs. Whilst there was legitimately criticism and concern, that arose from the fact that there was no independent corroborative evidence as to the mother’s psychological or physical circumstances, and the factors that were influencing that, I am satisfied, from the evidence that is available, that it was clear that the mother had been borne down over years with the responsibilities that she had taken on, in relation to the care of the children.

It was emphasised in submissions, in relation to this matter, that there is evidence in relation to the mother’s circumstances, and it is clear from her own evidence that such concerns do arise, in relation to the mother’s capacity to provide for and to meet the needs of the children.
The mother could have provided additional information with regard to the resources and opportunities available in Brisbane, particularly with regard to assisting in relation to Z, but it would be churlish in the extreme to suggest, that because she has not done so, consideration could not properly be given to there being such facilities, at least equal to those of the (omitted) locality.
There is also, of course, the overarching additional support, both emotional and physical the mother says will be available to her, through family and others in Brisbane. It is open to the court clearly to find that the support available to the mother would be considerably greater than that which would be available in (omitted). I say that particularly in the sense of suggestions made in cross-examination of the mother, that for Brisbane to be better than (omitted), there would need to be greater than two nights each fortnight available for Z to be out of the home.
That, of course, fails to appreciate that for 12 nights straight, therefore, the mother must take on the totality of the responsibilities arising in relation to the care of Z. Whilst with the family support, the mother indicates is available and which I accept, would be available through the mother’s brother, sister-in-law, niece and others, there would be respite available on a more regular basis than would be the case in (omitted), particularly as the mother is clearly reluctant to seek the assistance of other members of the father’s family and the father makes no offer or suggestion of greater support being provided by him.
As I indicated at the commencement of these reasons, this is an enormously troubling application. It is not simply one where the mother seeks to move for reasons of a malicious or hurtful nature. It is not necessary for her to provide compelling reasons, but it was suggested that she needed to provide, as Dr Sayer, counsel for the father has suggested, cogent reasons for a move which will affect the father and I shall come to his evidence shortly.
However, there is little other than cogency that arises from every piece of evidence that has been provided, in relation to these proceedings. And whilst the father seeks to maintain the existing status quo and a very comfortable arrangement from his perspective, it is necessary to be mindful of the overriding and overarching responsibilities of the mother and the fact that there are other means by which, as she suggests, she can be a better parent to these children.
I was enormously impressed by the mother. I gained the distinct impression that her decision in relation to this matter and her proposals with regard to a move were not decisions that were lightly taken. I gained the impression that she had attempted determinedly to make the arrangements work from separation in mid 2011 through until early 2014 and it was only when she had found herself without any other alternative means of dealing with the issues that arose, that the application was made.
Insofar as the father was concerned, I accept without hesitation that he wishes to maintain the comfortable and continuing relationship that he has with the children. But it is parenting upon his terms and it must be noted that the father’s terms were very much in favour of the father continuing to have a relationship with the children upon exactly the basis that suited him, so as to enable him to continue his employment and more particularly, I should note, to continue his outside activities, untroubled by the obligations that arise in relation to the parenting of children.
It was of concern to me, that a submission was made on the part of the father, arising from the decision of U & U (2002) HCA 96 at paragraph 92, where to paraphrase the submission, it was suggested that parents have obligations legal and moral, in relation to the parenting of children and that parents give way to their hopes and expectations. Such a submission was made in the context of the mother being required to do so, but with respect, there is absolutely no indication whatsoever that it would be the father who would in any way, step up to the plate.
He would not move. He didn’t like cities. He didn’t seek additional time with the children because he had obligations and responsibilities with regard to employment. He didn’t seek to change his lifestyle. He enjoyed the country life and the west and he enjoyed obviously encouraging X in those activities. He took little, if any, real responsibility, however, with regard to providing for the needs of these two girls and whilst it may clearly have been observed that the father had significant innate skills in dealing with Z and her special needs and balancing those needs against the needs of the other children, it was always upon the basis that it accorded with the father’s wishes and wants, in relation to the parenting of the children.
The father had excuses always for why he couldn’t or wouldn’t do things with the children or further involve himself with the children. The father experienced what was suggested by Mr H as perhaps anxiety attacks when dealing with issues in relation to parenting of the children, particularly with respect to an incident relating to his attendance at Z’s special school and being flustered by the circumstances there.
He had not sought out the assistance of Autism Queensland, notwithstanding, that suggestions of that had been raised by him with Mr H and it had been encouraged by Mr H. The father was unable to say why he had not done so and with respect, if it were he rather than someone else on his behalf who made the inquiry in the few days before hearing as to other support facilities that were available, it reflects poorly upon the father that it had not occurred to him that there might be other services and facilities available, which might make the mother’s life easier.
With respect, the impression that I gained was that as long as the father’s life remained exactly as the father chose it to be, there was little that he would see as being necessary, in relation to any changes to be made.
The father loves his children. The father wants to continue his relationship with his children on the basis that suits him and which currently exists. That is all well and good, but with the opportunity to consider all of the evidence that is currently before the court, in relation to this matter, it is a decision which is arising entirely from the father’s perspective of continuing what suits him and in no way, is a reflection of what would be appropriate or supportive of the children and, of course, the mother, who would have primary responsibility, in relation to the children.
The father would call upon the assistance of many others including particularly his mother with regard to supporting the children. The father does not have holidays that coincide with school holidays, such that any arrangements would involve these children being placed in the care of others, no doubt, ready and willing to provide assistance, but which would not, to a significant degree, involve the father in their care.
The father had, with respect, little appreciation of the consequences of his actions. One clear indictor of that, for example, was the situation that arose when he took supplies to (omitted) following the cyclone there. All three children did not go to school at that time but without explanation, the girls were left behind with their grandmother.
Similarly, there was an occasion where the girls were left in the care of their aunt. The father was less than forthcoming in respect of why the children were left in the care of their aunt, but finally acknowledged that he had arranged to go (hobby omitted) with a person at the time that the children were to be in his care. He had taken X and when asked why he left the girls behind, his response was simply to say words to the effect, “They got time to spend with their aunt.”
Quite simply, the father had little appreciation of his daughters’ needs and again, there is a concern that I continue to have with regard to Y being the forgotten child.
The mother is at least mindful of the difficulties that have arisen in that regard, and is seeking to deal with them through orders which reflect other alternatives, in respect of meeting the needs of all three children, including Y, by having Z cared for on occasion by others, so that the mother can spend time with Y. It has not, I would assess, even crossed the father’s mind that that might be appropriate.
The father is a loving and caring father. The father is a father who wants a relationship with his children, but he wants it clearly upon his terms, such that even when he was available to physically attend with the school, when X was experiencing difficulties, he did not attend.
The father does not seek out the opportunity for interaction with others, and whilst that is not uncommon, it is of concern that he puts his own wishes or expectations in that regard, ahead of the very fundamental obligations that would arise, for example, with regard to a parent dealing with issues with respect to the behaviour or educational needs of one or other of the children. It is again a reflection of the concern that I expressed with regard to the suggestion that parents give way to their hopes and expectations. There is, with respect, little if any indication that the father is ready, willing, or able to do so, in relation to the parenting of these children.

THE FAMILY REPORT:

I turn then to the evidence of the family report writer, Mr H. Mr H’s report, dated 30 June 2014, after detailing his interviews with the parties and the children, and his evaluation in relation to this matter, noted at paragraphs 62 through 66, the following:
62.Whatever the reason for Mr Watson’s lack of engagement and involvement in the children’s lives up until the start of 2014, it was a reality for Ms Wright and has been the cause of significant stress both emotionally and physically for her. In both perception and reality Ms Wright has borne the brunt of managing an extremely high needs child as well as the other two other children without the support of Mr Watson and a brief glimpse of what it would be like to receive significant support from her family in Brisbane was enough to make her realise that this was not only a viable option for her but also necessary for the long term needs of the children.
63.Mr Watson has however clearly indicated his desire to be more involved, on a regular basis, in the care of all three children and has expressed his feelings of frustration and inadequacy at the previous situation. There are clear signs that Mr Watson lacked self-confidence regarding his abilities as a parent and this was reflected in his reluctance to engage with the various professionals that are and will be, essential for the adequate care of Z into the future. There is clear signs that Mr Watson’s lack of confidence is beginning to be replaced by the knowledge that not only is he their father but he also has much to contribute with regards to Z’s ongoing care and strategies to manage her behaviour. It is essential that this continue, not only for the benefit of the children, but also that of Ms Wright.
64.For X, relocation would be highly detrimental given his current level of development and attachment to his father. He would, in my view, react in a highly negative way to being forced to move to Brisbane which would negatively impact both on his sisters and his mother. For this reason alone relocation would not be supported as being in the children’s best interests.
65.Y, being the middle child, could be easily overlooked however she appears to have a positive relationship with her father which would be adversely affected should she move to Brisbane.
66.Mr Watson commitment to Z and her ongoing care has been vocally stated and without his involvement in developing strategies to manage her behaviour, the relationship would be negatively impacted and school holiday time would become extremely difficult for him to manage and for Z to experience. It would therefore not be in either Y or Z’s interests to relocate and would negatively impact not only on their relationship with their father but also the future quality of their lives.
Unfortunately, many of the hopes and expectations that were referred to there have not come to fruition. As indicated in June 2014, at paragraph 63, the expectation was that the father would seek to be more involved on a regular basis in the care of the children. This has not occurred.
The suggestions that the father lacked self-confidence regarding his abilities with regard to the parenting of the children needed to be addressed, but have in no way been considered. Interestingly in paragraph 64, when speaking about the effects upon X of relocation, and the possibility of it being highly detrimental given his current level of development and attachment to his father, there is little appreciation of the negative impacts upon Y.
Paragraph 65 referring to Y being overlooked is, in my assessment, an astute and appropriate assessment of what has occurred, and continues to occur, in relation to this child. But to suggest that as there appeared to be a positive relationship with her father, it was of little other consequence is in my assessment unrealistic. The recommendations that Mr H makes with regard to the three children not relocating to Brisbane and remaining in an area that allows them to spend significant time on alternate weeks with their father, fails to appreciate the enormous impost upon the mother, and the fact that it is all centred upon the father and his wishes.
It is clear that the father has not been willing or able to step up, in relation to this matter. Mr H was cross-examined in relation to those various concerns, and in particular was challenged in respect of his suggestion that the father felt excluded from the children. When challenged, and it was put to him that if it was not true, and it was just his lack of activity and determination, then Mr H acknowledged that that would lead to a different conclusion, in relation to what might be in the best interests of the children.
Mr H was cross-examined at some length about his recommendations arising, as it was suggested, from concerns about the consequences for X, if the move occurred. He was asked whether it was proper to consider that both parties must encourage and support all of the children, and he indicated that that was absolutely the case and that it would be hoped that the father would do so.
The line of questioning continued, however, to the effect of whether Mr H had considered the consequences for the mother and the impact on her of staying in the (omitted) area. He indicated that he had obviously done so, and he acknowledged that her distress was quite genuine. In that respect, I would simply note that there is, at least to some extent therefore, some independent expert corroboration of the circumstances that the mother finds herself in and the way she is experiencing the difficulties that arise, with regard to her primary responsibilities for the children.
Mr H was then asked whether, in all those circumstances, the mother’s capacity to parent is as significant an issue as anything else in relation to the determination of this matter. He indicated that he had acknowledged that that was so. Later in cross-examination the report writer was asked about decisions that the mother and the father have made and, with respect to Mr H, I unfortunately gained the impression that his position was to suggest that it was the mother who must make the concessions, in relation to this matter.
He indicated, for example, that the mother had made decisions which made her life more difficult, such as the children attending at different schools, and choosing to live outside of the (omitted) city. When asked whether it was therefore the case that she must change, Mr H’s answer was, I thought, somewhat disparaging of the mother. He suggested that a lot of people balance all of the considerations that have to be looked at in relation to parenting against each other, and by living so far out of the city she had made it more difficult for herself, and that the cost that she now incurred as a result of that, no doubt emotionally, was of her own doing.
When asked whether it might then be appropriate also for the father to consider some changes he rather flippantly, I thought, suggested that if what had been told to him about the father’s reluctance to go to big cities, to holiday in other places, or otherwise, would indicate that the father was not able to do so.
With the greatest respect to Mr H, I was troubled by his lack of appreciation or recognition of the fact that the mother was, to a far more significant degree, if not entirely responsible for the care of the children. And when such a suggestion was put to him, to the effect that it would be improper to ignore the mother’s needs, he rather grudgingly acknowledged that with words to the effect, “What’s good for the mother is good for the children”, particularly noting that the father couldn’t cope with all three children.
Mr H was, I thought, fixated far more on the relationship between the father and X, than on the general needs of all three of these children. It is troubling that he repeatedly suggested that it was the mother who must make the concessions in relation to this matter, particularly when it is clear, that to a very significant degree, Y and Z would also be the ones who are collaterally required to make the concession so as to facilitate the relationship between X and the father.
With respect, the Court is dealing with a family unit and not simply the needs of one child, or prioritising the obligations of one parent to facilitate the relationship of the other.
To that end, I directed certain questions to Mr H at the conclusion of his evidence. I specifically inquired whether he had any final view as to which of the possibilities might be the best for the children. His answer was telling. He said that there was no obvious solution, and that there would be “losers” no matter what was to occur. He went on to note that X was of an age that his input is valuable, and that the parties needed to be mindful of that, in respect of any decision that needed to be made.
Of course, I accept that the Court must also be mindful of any wishes expressed by a child or children. Mr H, however, acknowledged that if a move was to occur, that led to a separation of the children, it would mean that X would suffer in his relationship with his mother, and the girls would miss out on their relationship with their father, but he noted rather tellingly with words to the effect, “The mother is the primary carer, and the father could not adequately parent all three. Accordingly, what’s best for the mother is best for the children.”
Mr H then went on to reemphasise what he had suggested previously, which was that his main concern was with X and his reaction, if he was to relocate. Mr H suggested that there was no best solution in relation to this matter, and of course I accept that that is absolutely the case, and it is one of the recurring themes that arise in relation to any court determining issues with regard to the parenting of children. But that does not mean that a decision cannot and must not be made in relation to this matter, so as to provide some settled and stable routine in relation to all of the children.
I was assisted by the report and the oral evidence of Mr H in relation to this matter, but whilst I am not necessarily of the view that there is an overriding need to concern myself with the reactions of the child X, I am by the same token assisted by the identification of such an issue, though troubled by the apparent minimisation or exclusion of other issues of a similarly serious nature, for example relating to the mother’s capacity to care and the particular needs of the child Y.

DISCUSSION

Accordingly, there are dependent upon each case, various matters which must be considered so as to meet what Kent J described as “the statutory imperatives”. The first of those is to identify the respective proposals of the parties and that has been clearly outlined within the section of these reasons, noting the respective applications of the parties. There are no alternative proposals suggested by the parties, nor were there any proposals put by the court, it being clear that there were only the alternatives put by the parties.
It is then necessary to undertake the consideration of the best interests of the children being informed by the objects and principles as set out in section 60B(1), (2) and (3). Section 60B, at least insofar as it is relevant, is in these terms:
60B(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
60B(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
60B(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
The considerations set out in section 60CC, which are reflective of the objects and principles, guide the court toward ensuring that, where relevant, “the statutory imperatives” are considered. Section 60CC(1), (2), (2A), (3), (5) and (6) are in these terms:
SECTION 60CC HOW A COURT DETERMINES WHAT IS IN A CHILD’S BEST INTERESTS
Determining child's best interests
60CC(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
60CC(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
60CC(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Consent orders
60CC(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander culture
60CC(6) For the purposes of paragraph (3)(h), an Aboriginal child's or a Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
Being informed of those considerations, the evidence must then be applied to the statutory considerations so as to lead to findings which relate to the best interests of the children. It is noteworthy that the considerations are broken down into primary considerations and additional considerations, but there is certainly no suggestion that the primary considerations take precedence over or outweigh the additional considerations. The primary considerations simply reflect the first two of the objects set out in section 60B(1) and the additional considerations encompass the balance of the objects and the principles.
Addressing those matters, obviously significant in reaching the findings, it is necessary to consider, weigh and assess the evidence that touches upon those relevant considerations. The first of the considerations is the benefit to the children of a meaningful relationship with both of their parents and all of the evidence available here clearly indicates that these children do benefit and will continue to benefit from a meaningful relationship with both their mother and father.
However, that is not to say that some distinctions cannot be drawn in respect of the relationship with each of the parents. It is clear, for example, that X, described by Mr H as a “country boy”, has an especially close relationship with his father, enjoying the outdoors and the lifestyle that is appreciated by his father, but that he also has a positive relationship with his mother. It may not be better or worse with either parent, but it is clearly different and needs to be considered in that light.
The relationship that Y has with both her parents is also meaningful but clearly different and on the evidence that is available, again whilst not suggesting that one relationship or the other was more meaningful, there are concerns, especially relating to whether Y’s needs are able to be met by either of her parents in the current circumstances.
Perhaps most significant here, however, are the circumstances of the relationship that exists between Z and each of her parents. The father was observed by Mr H to handle his interaction with Z in a very appropriate and child-focussed way. He also acknowledged that it was the mother who was primarily responsible for meeting Z’s needs and, in light of her severe autism, they were extensive. Further, he acknowledged that, in his assessment, “the father could not adequately parent all three children”.
I make reference to the distinctions that arise in relation to each of the children stemming not only from their age and gender, but also in respect of Z, from her particular needs. It reflects, obviously, the distinctions that can be drawn between what characterises a meaningful relationship and the benefits that would flow from that, balanced against the real need to consider the specific facts in every case.
These children have a meaningful relationship with both of their parents but they each in different ways, have other needs to must be addressed and where those needs, as is the case here, are different, they must be balanced, in order to ultimately lead to findings relating to the best interests of all the children. What that means is that, in a situation where a significant change is proposed by one parent or the other, there needs to not only be considered the benefit to the children of having a meaningful relationship, but also how that can be achieved when there are additional and competing considerations.
I have no doubt that whatever orders might ultimately be made, the parents, though to differing degrees, will recognise the importance to the children of fostering and developing the relationship that exists between the children and the other parent, and will take appropriate steps to seek to facilitate the development of that meaningful relationship.
Pleasingly in this matter, there is no need for there to be consideration given to or concern held in respect of protecting the children from physical harm. Neither parent makes any suggestion of concerns with regard to the other parent’s physical interaction with the children, or suggests inappropriate or excessive discipline. Unfortunately, there is the need to consider the protection of the children from psychological harm, arising simply from the fact that there will be consequences for the children and their current relationships with each parent and with significant others, dependent upon what orders might be made.
In that regard, similar to the considerations that arise with regard to a meaningful relationship, there are different considerations in respect of the consequences for each of these children. Mr H identified concerns regarding X and the importance of his relationship with his father. He noted that X would, in his view, “react in a highly negative way to being forced to move to Brisbane” and that that would “negatively impact both on his sisters and on his mother.” Mr H went on to note that for that reason alone, “relocation would not be supported as being in the children’s best interests”.
Mr H went on to note what appeared to be a positive relationship between Y and her father, as well as identifying concerns as to the relationship between the father and Z, should relocation occur.
Clearly, harm of a psychological nature is a factor which must be considered in relation to the orders ultimately to be made. However, as I noted earlier in these reasons, I was concerned at what appeared to be a far more significant fixation on the relationship between X and his father and the possible effects upon X if a relocation occurred, as opposed to the effects upon all of the children of a clearly distressed mother, who would still have primary responsibility for the care of the children.
Mr H acknowledged that what would be good for the mother, would be good for the children, and that the mother’s abilities would be significantly enhanced if she were able to relocate and therefore more fully attend to the care of the children, particularly noting that the father would not be able to cope with all three children.
Mr H further acknowledged that there was no obvious solution to the problems that arose for the parents and the children and as he indicated, there would be “losers” no matter what was to occur. What that shows quite starkly is that in the current circumstances of this family, there will be hurt, and it must be appreciated as flowing from whatever decision is made.
I emphasise this particular aspect of the matter in this discussion because it clearly shows that in some instances, and this is an obvious one, giving greater weight to the consideration of protecting the children, is impossible when there is no solution available which will not give rise to some degree of harm or hurt. It is unfortunately a factor which must be balanced against the various other considerations that arise.
The views expressed by the children, particularly as identified by Mr H, the parents and others, are informative. No one suggests that X’s relationship with each parent or, for that matter, the relationship of the girls with each parent, is other than positive. X has a close attachment with his father but that is not to suggest that it is also not close to the mother. The situation with each of the girls, as best it can be identified, is similar.
It is clear, however, that X, as the oldest of the three children, is perhaps most easily able to express and articulate his wishes and he wants the current arrangements between he and his father to continue. That, of course, needs to be considered in light of the current time that the children spend with the father and with the mother. There is, with respect, little real indication of what might be all of the children’s views, if there were significant changes, or alternatively no real change and the consequential deterioration in the mother’s capacity to cope with the primary care of all three children in a situation where she does not feel that she is supported.
I accept that the children, especially X, have views in relation to what arrangements should be made with regard to their future parenting, but in the circumstances have concerns as to the children’s or the father’s appreciation of what might be the ultimate outcome for the mother and, of course, then for the children. The father sees no need for change and certainly does not appear willing or able to address the need for support. Mr H, in his report of 30 June 2014, noted the father’s desire to be more involved in the care of the children and, if you like, to contribute more to their support, so as to lift the burden upon the mother.
A year and a half later, nothing has changed. The father has not engaged with the various professionals essential for the care of Z. Nor has he “stepped up” in relation to assisting with Z and with developing strategies to manage her behaviour. The father may be able, in the short term, to deal with the child, but it is an entirely different circumstance to that which was envisaged by Mr H as being essential for the benefit of the children, and also for the mother.
Any views detailed in this matter are of limited assistance in the ultimate determination.
The children have positive relationships with their parents and I have already commented upon the benefits that flow from that. There are also other persons with whom there are positive relationships, including various family members, and they also are significant though all, in my assessment, pale beside the importance of the relationship with the mother. The relationships that otherwise exist, including that with the father and his extended family, can and will be maintained should the mother’s application for relocation be successful, but there must be a real concern as to the effect upon the children’s relationship with the mother should her capacity to care and provide for the primary needs of the children be undermined through the pressures that clearly are brought to bear upon her.
In my assessment, that particular consideration is one of real significance in respect of the determination of this matter and flows directly into the considerations that arise pursuant to the provisions of section 60CC(3)(c). The father has been far less involved and has failed to take the opportunities that were available to him to participate in the decision-making process, particularly in respect of the special needs of Z. He was not able to explain why that might have been the case and the over-arching impression I gained was that he enjoyed his life as it currently was, was comfortable with the responsibilities that he currently had, and was not willing or able to further engage in the obligations and responsibilities that arose with regard to the parenting of the children.
The impression that the father gave was that he lacked confidence to step up and take on the responsibilities associated with all aspects of these three children’s care and, in fact, if anything, the father was absolutely resistant to any suggestion that he should change his lifestyle or future expectations.
The father expected the mother to cooperate with him so that the nature of the relationship that he had with each of the children was not required to change. Such considerations spoke volumes, both as to the mother’s willingness to compromise and facilitate the children’s relationship with the father, but more particularly the father’s absolute unwillingness and, in fact, inability to take on the responsibilities associated with the parenting of these children.
There are obvious effects that will stem from changes in the current circumstances and arrangements that exist. But just as clearly, there are clearly identifiable detrimental effects that will flow from there being no change whatsoever to arrangements relating to support and assistance for the mother in her primary role of facilitating the meeting of all of the needs of the children.
Should the mother move, there will be both difficulties and expenses in facilitating time to be spent by the father with each of the children. The mother has sought to address those issues in the orders that are proposed by her. The father, generally, rejects those proposals, “not liking Brisbane or big cities” and failing entirely to recognise that sometimes it is the parent who must put themselves out in order to meet the needs of the children. There will be difficulties, particularly to be considered in relation to Z, including how any travel arrangements should be made and how they will affect the child, but they are merely a couple of the considerable matters that will need to be addressed in relation to meeting Z’s particular needs.

As is perhaps obvious from much of what I have already said in these reasons, there is in my assessment an enormous difference between the capacities of each of the parents to provide for the needs of the children, including both their intellectual and emotional needs, as well as a vast gulf between the attitudes of each of the parents to all three of the children and to the responsibilities associated with the parenting of the children.
Unfortunately, that distinction can simply be stated as the mother making virtually all of the necessary decisions and concessions required to facilitate the relationship with the father, and the father’s unwillingness or inability to accept and act upon the responsibilities which arise in relation to parenting. The father’s lack of appreciation of the clear distinctions that he draws between how he deals with X and his daughters, as well as with issues as straight forward as prioritising school attendances ahead of other arrangements, particularly when they distinguish between X and his sisters.
The mother appreciates the children’s emotional needs and seeks in a holistic manner to meet those needs, including by ensuring that her circumstances are such that she is best able to do so. The father’s attitude is reflected in exactly what he proposes with regard to holidays, special days and communication in that it reflects the husband’s determination to continue with no change to his circumstances.
Finally, when considering those matters detailed in section 60CC, there is the need to consider whether the orders proposed by the mother or the father are less likely to lead to the institution of further proceedings. One could not imagine that orders in terms of those sought by the father would not continue to apply pressure to the mother, thus directly affecting her capacity to meet the needs of the children and giving rise to every real prospect that further proceedings would be required so as to address the pressures that would continue to mount upon the mother.
Section 60CC(3)(m) provides a catch-all to address any other fact or circumstance that might be considered relevant. In this instance, whilst I do not seek to be more critical of the father than already arises pursuant to these findings, it would be remiss of me not to note that some of the concerns expressed by the mother’s niece and her sister-in-law relating to inappropriate comments made by the father, particularly to or in the presence of X, undermine X’s relationship with his mother and I am satisfied that perhaps unknowingly such circumstances do arise which make the mother’s parenting of the children even more difficult than would otherwise be the case.
As is, I hope, obvious from the preceding paragraphs, I have come to the view that issues, particularly relating to the capacity of each parent to provide for the needs of the children, including their emotional and intellectual needs, and most specifically, the special needs of Z, as well as the distinct differences between the attitudes of each parent to the responsibilities of parenthood weigh heavily in favour of orders being made with regard to the parenting of the children in terms of those generally proposed by the mother.
As noted earlier in these reasons, parental responsibility is a significant consideration, but here both parents propose that there should be equal shared parental responsibility and, in my assessment, that presumption is not rebutted and more specifically will not be rebutted in circumstances where the mother has the opportunity to relocate with the children, and will therefore have greater support and confidence in herself. I am also of the view that equal shared parental responsibility, where properly engaged in by both parents, will be to the benefit of the children.
Arising from that is the need to consider the provisions of section 65DAA of the Family Law Act and specifically whether equal time would be in the children’s best interests and is reasonably practicable and if that is not the case, whether an order for substantial and significant time, as defined pursuant to the provisions of section 65DAA(3) would be in the child’s best interests and would be reasonably practicable.
In that respect, I note particularly the guidance provided in Heath & Hemming No 2 (supra), and the fact that the findings already made arising from section 60CC considerations, will provide answers to the questions relating to whether such arrangements would be in the children’s best interests. Additionally, when considering reasonable practicality, the provisions of section 65DAA(5) provide guidance as to whether any such arrangements could properly be made.
The first consideration is an understandable one and relates to geography. How far apart the parents live from each other will directly affect considerations of equal time or substantial and significant time and here it presents and insurmountable barrier to such arrangements being made. The mother seeks to move for valid reasons. The father says he cannot or will not follow for what he suggests are his personal reasons. It is impossible and certainly impractical to seek any form of equal or substantial and significant time.
The best that can be facilitated and, in my assessment, the best for the children are orders which are reflective of what the mother proposes generally in the orders that were outlined earlier in these reasons. Accordingly, the best interests of these children are reflected in the orders which are detailed at the commencement of these reasons.

I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of Judge Coker

Date: 11 March 2016

[2016] FCCA 127

11 March 2016

Key Legal Topics

Areas of Law

Family Law