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Bartram & Dawes [2016] FCCA 2591 (7 October 2016)

Last Updated: 7 November 2016

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARTRAM & DAWES


Catchwords:
FAMILY LAW − Whether mother may relocate children’s residence − whether the child’s residence should be relocated at the commencement of year 12 − whether the father or mother better able to provide the children’s needs.


Legislation:

Cases cited:
Heath & Hemming (No2) [2011) FamCA 749
Taylor & Baker [2007] FamCA 1246 at [53]
U v U [2002] HCA 36, (2002) 211 CLR 238
KB & TC [2005] FamCA 458, 920050 FLC 93-224
Sigley & Evor [2011] FamCAFC 22
Mazorski v Albright [2007] FamCA 520
McCall v Clark [2009] FamCA 520


Applicant:
MR BARTRAM

Respondent:
MS DAWES

File Number:
DGC 1643 of 2016

Judgment of:
Judge Phipps

Hearing dates:
13, 14 & 15 September 2016

Date of Last Submission:
15 September 2016

Delivered at:
Dandenong

Delivered on:
7 October 2016

REPRESENTATION

Counsel for the Applicant:
Ms Tulloch

Solicitors for the Applicant:
Kevin Davine & Sons

Counsel for the Respondent:
Mr Devries

Solicitors for the Respondent:
David Stagg Tonkin & Co

ORDERS

(1) That other than as required for the purpose of paragraph 8 of this order all previous orders are discharged.
(2) That the mother and father have equal shared parental responsibility for the children X born (omitted) 2000 and Y born (omitted) 2005.
(3) That the children live with the mother.
(4) That the mother is permitted to relocate the children’s residence to (omitted).
(5) That the children be enrolled in and commence at (omitted) High School for the 2017 school year.
(6) That the child X remain enrolled at (omitted) School until the end of 2016 except for attendance at (omitted) High School for introduction to year 12.
(7) That the child Y remain enrolled at (omitted) Primary School until the end of 2016.
(8) That until the children’s residence is relocated to (omitted) the children spend time with the father in accordance with current orders.
(9) That upon relocating to (omitted) the children spend time with the father as agreed and if not agreed as follows:
(e) Otherwise as agreed.
(10) In default of prior written or electronic agreement the father shall collect the children from the McDonald's (omitted) at the commencement of time and the mother shall collect the children from the McDonald's (omitted) at the conclusion of time.
(11) The time the child X is to spend with the father is subject always to her wishes.

By Consent

Regardless of where the mother is living

(12) The children shall spend time with each parent on Christmas Day in each year at times to be agreed between the parties and in default of agreement:

And the provisions of this order shall take priority over the provisions of any other order.

(13) When Mother’s Day falls outside her usual time with the children they shall spend time with the mother from 6.00pm on the day prior until 6.00pm on Mother’s Day and this order shall take priority over any other order.
(14) When Father’s Day falls outside his usual time with the children they shall spend time with the father from 6.00pm on the day prior until 6.00pm on Father’s Day and this order shall take priority over any other order.
(15) In the event that the children are not otherwise with each parent on the parent’s birthdays, the children to spend time with the birthday parent on the Sunday nearest the said parent’s birthday, unless such day is in conflict with paragraphs 13 or 14 of these orders, in which case the children to spend time with the birthday parent on the following Sunday.
(16) When the children are with the father, the mother and the children may telephone each other at any reasonable time and the father shall facilitate such calls and ensure that the children have privacy while speaking to the mother.
(17) When the children are with the mother, the father and the children may telephone each other at any reasonable time and the mother shall facilitate such calls and ensure that the children shall have privacy while speaking to the father.
(18) Each party shall keep the other informed of:
(19) Each parent shall be entitled to:
(20) Neither parent shall denigrate and is hereby restrained from denigrating or permitting any other person from denigrating the other parent or the other parent’s partner or any member of the other party’s household in the presence or hearing of either of the children.
(21) That within 30 days of the making of these orders:

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1643 of 2016

MR BARTRAM

Applicant

And

MS DAWES

Respondent


REASONS FOR JUDGMENT

Introduction

  1. The parties have two children X born (omitted) 2000 and Y born (omitted) 2005. X is aged 16 years and nine months and is in year 11 at (omitted) College in (omitted). Y is aged 11 years and nine months and is in year six at (omitted) Primary School.
  2. The dispute between the parents is whether the children should remain living in the central (omitted) area or relocate with their mother to (omitted). At present they live with their mother in (omitted) and spend five nights a fortnight, alternate Thursdays after school to Tuesday before school, with their father near (omitted). Should the mother move to (omitted) weekend time and holiday time is all that is feasible with the non-resident parent.
  3. The significant issues are:
    1. The children’s relationship with each parent;
    2. Which living arrangement will meet the children’s best interests particularly their emotional and psychological development.
  4. The issue has to be decided applying the children’s provisions in Part VII of the Family Law Act 1975 (Cth). The objects and principles are contained in s.60B. Section 60CA provides that the best interests of the child is the paramount consideration in considering parenting orders. The best interest considerations that the court must consider are in s.60CC.
  5. The parties agree there should be an order that they have equal shared parental responsibility. When this order is made s.65DAA of the Family Law Act 1975 (Cth) requires the court to consider whether equal time with each parent will be in the best interests of the children and reasonably practicable, or if not equal time whether substantial and significant time will be in the best interests of the children and reasonably practicable.
  6. In Heath & Hemming (No2) [2011) FamCA 749 Kent J at [87], after reviewing the authorities, set out a logical and practical approach by a Court in meeting the statutory imperatives in a parenting case, including cases involving a proposed relocation. A proposed change of residence for a child is not to be treated as a separate or discrete issue. It is just one of the proposals for the child’s future living arrangements. Taylor & Baker [2007] FamCA 1246 at [53] citing U v U [2002] HCA 36, (2002) 211 CLR 238 and KB & TC [2005] FamCA 458, 920050 FLC 93-224.

Proposals

  1. Both parents propose they have equal shared parental responsibility for the children. They have agreement on orders for the various special occasions.
  2. The mother proposes that the children live with her, she be permitted to relocate the children’s residence to (omitted) and enrol the children in (omitted) Secondary College. She proposes the children spend time with the father two weekends out of three from Friday evening to Sunday evening, but that X’s time be subject to her wishes. She proposes that the children spend half school holidays with the father. She proposed that should the decision be that the time should be every second weekend then the time in term holidays extend to include an additional weekend.
  3. The father proposes that the children remain living in the (omitted) area. He proposes that if the mother moves to (omitted) the children live with him and spend alternate weekends Friday night to Sunday night and half school holidays with the mother. He proposes that if the mother remains living in the central (omitted) area the children live week about from Sunday night to Sunday night with each parent. He proposes an injunction restraining the mother from moving more than a certain distance from (omitted). He proposes that X remain enrolled at (omitted) School in 2017 and that Y attend the same school in year seven in 2017.

Background

  1. The mother was born on (omitted) 1974 and is aged 42. Currently she lives at (omitted), a 5 acre property close to (omitted), and is employed full time as a (occupation omitted) at (employer omitted) in (omitted). She has re-partnered with Mr S who is a full-time (occupation omitted) for (employer omitted). He lives at (omitted).
  2. The father was born on (omitted) 1971 and is aged 45 years. He lives at (omitted), a 20 acre rural property, and is employed full-time as a (occupation omitted) with (employer omitted). He commenced a relationship with Ms B in (omitted) 2013 and they married on (omitted) 2015. She is a (occupation omitted) who works part-time at (employer omitted). She has two daughters A aged nine or 10 and B aged seven. The father and Ms B have a daughter, C, aged 11 months.
  3. The parties commenced cohabitation in (omitted) 1999. They did not marry and separated on 11 September 2011. The two children are X born (omitted) 2000 and Y born (omitted) 2005. X is aged 16 years and nine months and is in year 11 at (omitted) College in (omitted). Y is aged 11 years and nine months and is in year six at (omitted) Primary School.
  4. During the relationship the parties lived in a number of residences. The father was bankrupt from 2003 until 2006. They built the property in (omitted) between 2009 and 2010. They separated in August or September 2011 and continued living under the one roof until April 2012. On 5 March 2012 the parties entered into a binding financial agreement and signed a parenting plan. In March 2012 the mother moved out of the property in (omitted) to the property she had purchased in (omitted).
  5. The children were then attending schools, X at (omitted) College in (omitted) and Y at (omitted) Primary School. The parenting plan provided for the children to live week about with each parent and that continued until July 2013. The mother was made redundant in her employment. She was able to rent her house in (omitted) to a friend and moved with the children to live with her then boyfriend, Mr E in (omitted), a suburb in the (omitted) of Melbourne. She moved the children’s schools.
  6. During the time at (omitted) the mother applied for a family violence intervention order naming herself and the two children as the affected persons. She alleges this was because of the abusive behaviour by the father. Shortly after this, in October 2013 the mother contacted the father wanting to return to live in the (omitted) house. The mother’s explanation is the behaviour of Mr E. She said that while generally he was a good man, he became abusive and dangerous when he had been drinking. That is why she returned to live in the (omitted) house.
  7. From October 2013 until February 2014 the mother and the children lived in the same house as the father in (omitted). Mr E visited on occasions. By this time the father had commenced his relationship with Ms B.
  8. In February 2014 the mother and the children left the (omitted) home and lived with family and friends until March 2014. The mother says she left the (omitted) home because of the father’s abusive behaviour. The father disputes the allegations about his behaviour. The father did not see the children during this time.
  9. In March 2014 the mother and the children returned to live with the mother at her (omitted) property and have lived there since except for time spent at Mr S’s house at (omitted). Mr S’s wife died in (omitted) 2015 after a long period of illness with breast cancer. The mother and Mr S met in the middle of 2015 and commenced a relationship. Since about that time the mother and the two children have spent mostly every second weekend at Mr S’s house and sometimes overnight during the week. The mother wishes to live permanently in (omitted) with Mr S.
  10. The house in (omitted) is on a half-acre. It has four bedrooms and Mr S has almost completed the addition of a fifth bedroom with an ensuite. The intention is that this bedroom will be used by X and Y and Mr S’s two children will have their own bedrooms.
  11. In September 2015 the mother and the children and Mr S and his two children holidayed on the (omitted) in Queensland with family friends of Mr S.
  12. The mother says that from March 2014, when the mother and the children returned to live at (omitted), until the first orders were made in this proceeding on 22 June 2016, that Y spent time with the father every second weekend and every Wednesday. She says that X spent time no more frequently than alternate weekends alternate Wednesdays and that towards the end of the time X had, on many occasions, refused to spend time with the father.
  13. During this period, March 2014 to June 2015 the mother was working full-time at (employer omitted) in (omitted). The father’s partner and then wife Ms B worked only part time and the father’s work gives him flexibility. Most of the time the children were collected from school by the father or his partner. Y would often elect to go home to the father’s place and stay overnight and be taken back to school. X would more often prefer to be dropped at home so she could ride her horses and study.
  14. The father and his partner kept records of the time between January 2016 and June 2016 and recorded that X spent 37% of nights with the father and Y 47%. The father says that prior to that from March 2015 the pattern of attendance was about the same.
  15. Interim orders made on 22 June 2016 provide that the parties have equal shared parental responsibility for the children and that they live with the mother. They provide that the children spend time with the father as follows:
    1. From the conclusion of school on Friday 24 June 2000 until 5.00pm 26 June 2016;
    2. The second half of the term two school holidays at such times as may be agreed between the parties but in default of agreement from 5.00pm on Saturday 2 July 2016 until 5.00pm on Sunday 10 July 2016;
    1. Commencing on Thursday 21 July 2016 from the conclusion of school or 3.30pm Thursday to the commencement of school or 9.00am on the following Tuesday and each alternate week;
    1. From the conclusion of school or 3.30pm on the Friday before Father’s Day to 5.00pm on Father’s Day in 2016 if the children are not already in the fathers care during that time;
    2. Further times as agreed.
  16. The mother says that the father was aggressive and controlling. She says he would shout at her. She acknowledges that she would shout back. X said to Ms F of the father “he’s quite accepting, he’s calm and he jokes around a lot... he doesn’t yell, but he used to at Mum about us”.
  17. Two incidents leading up to the hearing in September illustrate that the father can be intemperate. 10 September 2016 was the occasion of a State Schools Spectacular at (omitted) arena. Y participated in the mass choir. Y originally wanted to be an individual performer but was not. Each parent has a different account of how this happened. The father says that an audition was required and they were too late. The mother says the father would not pay the fee involved with being an individual performer.
  18. On 18 July 2016 an incident occurred between the mother and the father outside Y’s school. Y was present. The father was collecting Ms B’s two children from the school. He spoke to Y. He says Y told him the mother would not let her go to the Spectacular. He walked with Y to where the mother was in her car parked outside school. She was sitting in the driver’s seat. He says he opened the front passenger door and having greeted the mother asked why she would not let Y go to the Spectacular. He says the mother told him to get out of the car. Y had got into the back of the car and was crying. The mother drove away.
  19. The mother says that the father tried to get into her car, she told him to get out but he still proceeded to try getting in. She says he leaned into her face, angry about Y’s participation in the Spectacular. She says Y was in the back of the car and was crying. She says when the father refused to close the door she drove off.
  20. On 20 July 2016 the mother applied for and obtained an interim family violence intervention order against the father naming the mother and the two children as affected family members.
  21. The father denies that he was in any way aggressive. Most likely he said it in a way which the mother perceived as aggressive.
  22. The father’s response was an intemperate one. On his own version he immediately said to the mother “why won’t you let Y go to the Spectacular”. He did not approach her in such a way as to discuss with her Y’s attendance at the Spectacular. The inference from his opening statement was that the mother had wronged Y. The mother may have said something different to Y. The mother may have said to Y that she could not be an individual performer and Y at her age may have turned that into a statement that her mother not let her go.
  23. The consent order of 22 June 2016 contained a provision that all communication concerning changeover arrangements and care arrangements for the children is to occur directly between the parents by a text message or email. Given the tension and lack of communication between the parents this was a sensible provision. If the father had used a text message or email, even aggressive one, the whole episode, the intervention order and the upset to the children, particularly Y, would have been avoided.
  24. The Spectacular produced another example of an intemperate response by the father. The Spectacular was on (omitted) 2016 at (omitted) in central Melbourne. The father purchased tickets including one for X and a Myki travel ticket so that she could attend. On the morning of (omitted) he sent a text message to X “are you coming in today?”. 40 minutes later he received a response “nope”. He telephoned X. She did not answer. The father thought that the call went through but was not answered, and so his statement in the text message below that X had been rude.
  25. The father said that later Ms B received a phone call from a friend who said she had seen X at the Spectacular. He sent a text to X:
  26. There is no direct evidence that X did attend but the cross examination of the father about this text message proceeded as if she did attend. The inference is that the mother accepts that she was there.
  27. X’s response is not necessarily a lie. She may have meant by the response that she was not using the ticket the father had given her but did not want to tell him she was coming with her mother. She may, at the time she sent the text, not have been intending to come. Apart from this there was no need for the father to respond at all. Both children were with the mother that weekend under the order made 22 June 2016. The relationship and communication between the parents was poor, something the children, particularly X, must have been aware of. The father acknowledges X’s difficult position. There was no need for him to send a text message.
  28. The mother alleges that when she and the father were together the father’s behaviour was controlling. The father’s behaviour in relation to the Spectacular shows him wanting to be in control. The parties have equal shared parental responsibility for the children, but the children were living with the mother and were with the mother on the weekend of the Spectacular. This is particularly so in relation to X. She was spending the weekend with the mother. He bought a ticket which, if she used, she would be sitting with the father. There is no evidence that he consulted the mother on the purchase of the ticket for X.
  29. The father pays X’s telephone bills, and so he receives the accounts. His evidence includes an analysis of the location of the telephone towers from which X had sent SMS messages on various dates from July 2015 until August 2016. He says he did this to show that X was at (omitted) on occasions when she was either at school that day or was on the following day. As well he analysed school attendance records 2015 and 2016 for both children. They show a significant number of days school missed by the children in 2015 although much improved in 2016. While this evidence goes to the issue of one aspect of the mothers care of the children, going through X’s phone records shows the father keeping check on the mother, and so the mothers care of the children while the children are in the mothers care.
  30. The father’s behaviour lends support to the mother’s claim that she found him controlling during their relationship. The mother acknowledges that she made unwise decisions following the separation, particularly the move to (omitted), but there are concerns about the father’s behaviour.

Best Interests Considerations

  1. I will deal with the additional considerations first.

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

  1. The mother said she had talked with the children about relocation and while expressing enthusiasm, the children are concerned about losing their friends. The father said he was unsure of the children’s views about relocation. He says X “said that mum says that we’re moving”. He noted that Y was demonstrating anxiety and insomnia and this was particularly intense prior to the father learning of the mother’s relocation plans.
  2. In interview with Ms F, X was positive about her relationship with her father, Ms B and the other three children in the father’s household. X described her mother as having a positive outlook, quite funny and quite understanding. She described Mr S as very calm, more than lots of people, quite accepting and loving.... She described her relationship with Mr S’s children as not too bad. She said it would be harder not seeing her mother because they were closer. She spent more time with her and “we talk about a lot more”.
  3. X discussed the pros and cons of changing schools. Ms F concludes her summary of her discussion with X with the, “Nevertheless, although X said she would “probably” prefer to relocate, if she did not, she said “that would be fair enough to... I can see both sides”.
  4. Y said of the current living arrangements that she was still getting used to it and getting used to having a lot of stuff for school at her father’s. She described both her parents as caring. She was positive about both households and of spending time in Mr S’s household. She said that if she relocated to (omitted) she could still see her father and friends. She said she would miss her father but would get used to it. She said she’d prefer to be in Melbourne, that there are more opportunities and she could get more friends.
  5. Ms F says Y went on, “I have a psychologist who I talk to at school and she said I need my mum more when I’m a teenager, I know I’ve got Ms B, but it won’t be the same”.

The nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child)

  1. The statements by each child to Ms F illustrates their close and loving relationship with each parent and good relationship with each parent’s partner and the other children in each household, including C a sibling.
  2. Ms F says of the children with the mother and Mr S that it proceeded in a warm and focused atmosphere. She says that the mother demonstrated warm, appropriate and competent parenting of both children.
  3. Of the observation of the children with the father and Ms B, Ms F says that the father demonstrated competent and warm parenting. She said that Ms B presented as an appropriate adult who might be significantly involved with the children.
  4. If the evaluation section of her report Ms F has a number of topics each of which deals in part with the children’s relationship with each parent and other persons. Ms F’s evaluation is described under the best interest consideration of the ability of each parent to provide for the children’s needs.

The extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child; and to communicate with the child, the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

  1. There is a dispute between the parties about the father’s payment of child support. The mother waived a child support debt of about $10,000. The father disputes that the amount was correct and asserts that he provided the mother with a motor vehicle after separation. Currently, the assessed amount of child support the father is to pay the mother is a matter of dispute.
  2. The mother moved the children’s residence to (omitted) without consulting the father. She spoke to the children about the move to (omitted) and planned it that without speaking to the father. The mother’s explanation is that she wanted to negotiate the move with the father through mediation and she had already commenced the process with a Family Relationship Centre. She had an appointment for her initial intake session but the father commenced these proceedings. The father commenced these proceedings because he had learnt of the proposed move through the parent of another child asking about the move.
  3. I am satisfied that the mother was not intending to move unilaterally, that is without consultation with the father. I consider that she was approaching the mediation on the basis that it would negotiate the terms on which she moved with the children, rather than whether she would move. In her evidence she said if the result of the hearing was that the children stay in the (omitted) area she was not sure what she would do. She has placed her house in (omitted) on the market for sale, partly because of the difficulty she is having meeting the mortgage.

The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

  1. Either result, living with the mother in (omitted) or living with the father in (omitted) will have an adverse effect on the children because of the reduction in the time the child will be spending with one of the parents. Ms F described it as grieving.

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

  1. The driving time between Mr S’s home in (omitted) and the father’s home in (omitted) was variously estimated. The mother says an hour and a quarter although in one of her affidavit she says an hour and a half. The father gives a longer estimate. Whatever it is the difficulty and expense of the children spending time communicating with the other parent is commensurate with that driving time. It means that midweek time is impractical and presents difficulties, but not overwhelming difficulties, in one of the parents attending school and extracurricular events.

The capacity of each of the child's parents and 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

  1. This is a consideration of particular significance in this case. Ms F’s recommendation is that the children should live with the father should the mother move to (omitted).
  2. Ms F considered both parents under the heading of parenting effectiveness, psychological stability and ability to provide for the children’s welfare development and safety. She described the father as presenting as a confident and involved parent to the children. She said he presents as a thoughtful parent and she said he presents as having a mature appreciation of parenting and that he has a supportive extended family as resources to his parenting as well as the children’s positive development.
  3. Ms F says the father’s relationship with Ms B appears sound and supportive of the parenting capacities. Ms F said that the father demonstrates an appreciation of the strength of the children’s relationship with their mother.
  4. Ms F said that claims of the father’s volatility might require further testing. She said he acknowledges that communication with the mother has been “frustrating” particularly when he has perceived her to unilaterally change living arrangements.
  5. Ms F described the father as communicating with energy and enthusiasm and his approach could be perceived as aggressive if communication is about differences, which could be the case with the mother.
  6. Ms F describes the mother as presenting as a confident and appropriate parent to the children. Ms F said it is likely however, that her parenting capacity has been compromised when relationships with intimate partners have been conflictual or stressful. Ms F noted that the mother acknowledges that she has made “stupid decisions” concerning her relationships and that the children have been negatively impacted.
  7. Ms F, in her report, expressed concern that the mother had not undertaken counselling given the concerns. Ms F referred to the mother’s explanation for withholding information about relocation from the father and the circumstances of involving the children in the plan. The father did not know and said that this indicates the level of reactivity she still has towards him. Ms F said that it would be crucial that the mother address this issue in counselling.
  8. By the time of the hearing the mother had undertaken counselling, something Ms F acknowledged as a positive step.
  9. Ms F expressed concern that the mother appeared to minimise the impact of Mr S’s late wife’s death on that families relationships and appeared to not appreciate that living full-time with Mr S will be a stressor that might negatively impact on her children’s emotional well-being. Ms F said that Mr S acknowledged that he is still grieving. Ms F said Mr S’s emotional availability for his own children may be stressed if the mother’s two children join the house on a relatively full-time basis.
  10. Ms F says that while the mother has provided mostly facilitative parenting of the children, this has primary been in the context of the father’s availability in support. With relocation the mother’s full-time employment will compromise availability to provide transport to and from extracurricular activities, transport that currently the father and Ms B are able to provide.
  11. Ms F raised some questions about the mother’s capacity to promote the children’s relationship with the father. Ms F was concerned about the capacity particularly given the mother’s reactivity towards the father and her view that his behaviour is controlling.
  12. Ms F says that the father had demonstrated ongoing support to the children’s relationship with the mother since separation. The mother acknowledged that. The father explicitly acknowledges the mothers positive contribution to parenting of the children.
  13. Ms F considered the ages of the children, their development, individual resources and temperament, including physical cognitive and emotional capacity and their stated wishes. She referred to the developmental tasks the children were facing. She said a positive experience of school, particularly secondary school for X, was critical in ensuring her sense of self-worth and confidence.
  14. Ms F considered that the children had developed to standard in the separated family structure. The events in 2013 involving separation and then resumption of shared living generated uncertainty and anxiety about the emotional reliability of parents, particularly the mother. Ms F considered both children are secure in their attachment with both parents.
  15. In relation to X’s wishes Ms F noted that X indicated that overall she would accept either relocation to Melbourne with her mother or remaining in (omitted) in the father’s care. Ms F says X presented as appreciative of the extent of the loss of family, friends and social/emotional network should she live in Melbourne. She presented as realistic about the benefits of living in Melbourne, but equally realistic about the benefits of completing secondary schooling in (omitted).
  16. Ms F says that nearly 12-year-old Y presented as invested in the benefits of relocation but less appreciative of the emotional cost involved. Ms F considered that Y experiences a strong attachment relationship with the mother and possibly a sense of conflict loyalty in relation to the father and Ms B, with whom she also has a nurturing and facilitative relationship.
  17. Ms F discussed in detail the children’s likely adjustment to relocation. She noted that they had responded positively to the weekend visits to Melbourne with the mother. Relocating full time would be different. She says that relocating to a metropolitan area, adjusting to change in the environment, including new schools, with the primary emotional figure their mother likely preoccupied at first with the stress of work, accommodation relationship adjustment with Mr S would be significant stressors for the children.
  18. She considered that if the mother can maintain a focus on the children’s needs and the father can maintain ongoing contact the children are likely to settle after the initial adjustment period. Ms F said the children would gradually build friendships both at school and in the community and strengthen the relationships with the extended family and Mr S.
  19. Ms F, both in her report and in her oral evidence at the hearing considered the question of where the children should live as a risk assessment process. She considered that there was a risk if the children move to Melbourne the emotional relationships in Mr S’s household might be compromised by the full residence of the mother and children. She considered the most significant risk to a successful outcome of the children would be the potential loss of the psychological, emotional and social involvement of the father in their life as well as the involvement of Ms B and the children.
  20. Ms F says the children are positively involved in the social and school networks in (omitted) and as adolescents, friendships that are long-lasting and stable are crucial psychological supports for maturation. For X in particular establishing herself in a new school and with new school friends will be particularly challenging as she does year 12.
  21. The risk if the children remain with the father is the loss in the quality of the relationship with their mother.
  22. In making her recommendation Ms F says that the exercise is not primarily concerned with the deficits and particularly deficits that might be related to parenting capacity. Both parents are competent parents. Ms F considers that if the mother remained living in (omitted), a regime of equal shared care would be facilitative and meaningful for the children.
  23. In reaching her recommendation that the children remain in (omitted) Ms F says this in her report:
  24. Ms F’s assessment is that the children’s best interests would be served if both parents remain in (omitted). If that happens both parents have the ability to provide for the children’s needs including their emotional and intellectual needs. If the mother moves to Melbourne Ms F considers that the father, remaining in (omitted), is better able to provide for the children’s emotional and intellectual needs.

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

  1. The evidence relevant to this consideration is referred to above.
  2. Neither of the children are aboriginal or Torres Strait Islander so the next consideration is not relevant.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

  1. The evidence relevant to this consideration is dealt with above.
  2. The next two considerations concern family violence and family violence orders. The evidence about these has already been dealt with and so far as there is evidence relating to any other relevant matter has already been dealt with.
  3. The consideration 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 children does not arise in determining where the children should live.

Family violence and family violence orders

  1. The evidence relevant to family violence and family violence orders has really been referred to. Its relevance, as already discussed, it is as evidence of aggressive or controlling behaviour by the father.

The benefit to the child of having a meaningful relationship with both of the child's parents

  1. This is the first of the primary considerations. The evidence already referred to shows that the children have a meaningful relationship with both parents. Ms F’s report sets out the risks to the relationship with each parent should the mother move and the children live with her or the mother move and the children stay with the father.
  2. X is nearly 17 and I accept what Ms F says that she will maintain her relationship with her mother whatever the living arrangements are. I consider there is a risk to Y’s relationship with her mother if the mother moves to (omitted) and Y remains with her father.
  3. I have referred already to the two episodes concerning the State Schools Spectacular. The first, on 18 July 2016, was outside Y’s school. Y was in her mother’s care on that day. According to the father Y said that her mother would not let her attend the Spectacular. Even if this was true the father should not have said to Y let’s ask the mother and then gone to where the mother was waiting. He did not say to Y that he would talk to the mother and sort it out. He went straight to the mother and asked why she would not let Y go and did it in Y’s presence. The mother found his behaviour threatening. It was controlling behaviour by the father.
  4. In the next episode on the day of the Spectacular, (omitted) 2016 the father involved himself in X’s relationship with the mother. The father’s initial enquiry by text to X, “Are you coming in today?” is unexceptional. His next text was not. The children were in the mother’s care on that day. The father did not know what arrangements the mother had made and what discussions had taken place between the mother and the children. In his next text that her sister would have loved to have her there and then the subsequent text where he accuses her of lying and then says all you had to say was “I’m going along with mum today” shows a disregard for the fact that the children were in the mother’s care. It again shows controlling behaviour.
  5. The father’s analysis of X’s phone records to show when she was at (omitted) on days when she had been at school or was attending school the next day does have an evidentiary justification. On the other hand it does show the father keeping check on the mother when the children are in the mother’s care which is an indicator of controlling behaviour.
  6. The father and Ms B were concerned about Y when the dispute about the move to (omitted) commenced. They said she was having difficulty sleeping and was anxious. This is reflected in the family report where they told Ms F of this in the context of the stress on the children of keeping the secret about moving to (omitted). They arranged for Y to attend a general practitioner to obtain a referral to a psychologist. Ms B was the one who attended with Y and sat in the doctor’s room while he spoke to Y.
  7. In the family report Ms F records Y as saying “I have a psychologist who I talk to at school and she said I need my Mum more when I’m a teenager, I know I’ve got Ms B, but it won’t be the same”.
  8. The evidence does not make it clear whether the father consulted the mother about taking Y to a general practitioner for a mental health plan. It seems likely that he did not. Whether he did or not it was Ms B who went with Y not the father. It may have been Y’s wish to have Ms B rather than the father accompany her, Ms B was acting in good faith and in Y’s interest but in taking Y to a general practitioner she was taking on the role of a parent.
  9. This evidence shows there is a real risk that if Y is living with the father and Ms B, they would come to fill the role of parents rather than the father and the mother. The father and Ms B may not be conscious of it happening. While Y might initially consider that having Ms B is not the same as having her mother there is a real risk that will change. If the father and Ms B come to fulfil the role of the parents this would damage Y’s relationship with the mother. A meaningful relationship is one which is important, significant and valuable to the child, Sigley & Evor [2011] FamCAFC 22 citing Mazorski v Albright [2007] FamCA 520, McCall v Clark [2009] FamCA 520. Y’s relationship with the mother is one which at present is important, significant and valuable to the child. There is a real risk that this might change if she was to live with the father.
  10. The second of the primary best interest considerations is the need to protect the children from harm. No evidence is relevant to this consideration.

Conclusion

  1. On balance the evidence shows that the children’s views are that they wish to remain living with their mother. The statements that they can discuss things with the mother suggest, at least in this respect, a closer relationship with the mother than the father.
  2. Both children are doing well and this reflects strong parenting skills in both parents and the strong and loving relationship between the children and each parent.
  3. I consider that I must determine what is in the children’s best interests on the basis that the mother will move to (omitted) to live with Mr S even if the children remain living in (omitted). The evidence from both the mother and Mr S shows a strong relationship between them and a strong commitment. Mr S impressed as understanding the challenges which might arise if the mother and the children come to live in (omitted) in his house and with his two children.
  4. Ms F described Mr S as a pleasant and an appropriate adult with whom the children might be significantly involved. He impressed as having a very even temperament and able to cope with the difficulties that would inevitably arise. The mother is clearly committed to him. Mr S’s evidence shows that he understands his role as a step father that is he will not be acting as a parent.
  5. The mother gives her reasons for wanting to move to (omitted) is to live with Mr S. She has a job offer from her current employer which is better financially. She says she will have the opportunity to be happy. Her life with the father was difficult. He was for a time bankrupt and I am satisfied that he could at times be aggressive and controlling.
  6. The mother is selling her home in (omitted) and so she is to remain in (omitted) she will have to rent. Once she sells the house in (omitted) she will move to (omitted).
  7. If the children remain in (omitted) to live with the father they will have the benefit of continuity in the community in which they are living. X in particular would remain in her current school where she has strong connections. Y will change schools to commence secondary education but if she remains with the father she will still be living in the same area. This continuity is the basis for Ms F’s recommendation.
  8. X will maintain her relationship with her mother wherever she lives and the benefit of remaining in her current school for year 12 is obvious.
  9. The risk to Y’s relationship with her mother if she was to remain in (omitted) with the father’s is real. Y is nearly 12 and has her teenage years ahead of her. A deterioration in the relationship with her mother would not be in the best interests.
  10. The balance of the best interest considerations may favour X staying in (omitted) and so living with her mother and Y living with the mother and so in (omitted). One thing is clear and that is that the children should not be separated. Neither party suggested that as a possibility nor has it been raised with the children. The clear and obvious inference is that if they were asked they would emphatically reject such a proposal.
  11. At the end of 2017 X will be looking at tertiary study and life after school. Y will commence the six years of secondary school and at least that much time dependent upon and living with parents. I accept what Ms F says that X will adjust to a move to (omitted) and to a new school. On the other hand, Y’s relationship with her mother will remain if she moves to (omitted). I am satisfied that the children’s best interests are met by the children living with the mother and that necessarily involves a move to (omitted).
  12. Given there will be an order for equal shared parental responsibility, I must consider whether equal time or if not equal time substantial and significant time is reasonably practicable.
  13. Equal time is not practicable given the distance between the parties’ homes. The only practical substantial and significant time is that proposed by the mother.
  14. The mother proposes alternatives for the children’s time with the father, both subject to X’s wishes. They are two weekends out of three and half school holidays; or, alternate weekends and an extended week in term holidays so that it includes two weekends. Two weekends out of three would mean that in every three week period the children would spend four nights with the father. To compare that with the current situation in every six week period they would spend eight nights with the father whereas presently in every six week period they spend 15 nights and so a reduction of a little under a half. Every alternate weekend would mean six nights in a six-week period instead of 15. In addition to the contact with their father they currently have any contact in between would reduce substantially.
  15. The advantage of two weekends out of three is the additional time they would spend with their father and his family. The advantage of alternate weekends is that the children would have more weekend time in (omitted) to meet and connect with new friends. Another possible advantage is that X might be more likely to go every second weekend if that was Y’s routine. If X went on an irregular basis for some of the two weekends out of three Y was attending X might get out of the habit of going. I put it as a possible advantage because it depends on X’s circumstances once she has moved.
  16. On balance I consider that alternate weekends with extended time during school term holidays is the preferable choice. The balancing factor is that should either child wants to spend additional weekends with the father I consider that the mother will agree. Should Y wish to spend less time, or not go to her father for any particular weekend, then without the father’s agreement the mother is potentially contravening the order. This might lead to further proceedings, the avoidance of which is a best interest consideration.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date: 7 October 2016

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