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Morgan & Morgan [2008] FMCAfam 39

Categories: Equal Parenting Time, Reasonable Practicality, Substantial and Significant Time
Tags: , , , , , , , , , , , ,

Judge Name: Brown FM
Hearing Date:
Decision Date:30/01/2008
Applicant: Ms Morgan
Respondent: Mr Morgan
Solicitor for the Applicant: Barr Lawyers
Counsel for the Applicant: Ms H Leeson
Solicitor for the Respondent: C M Tucker & Associates
Counsel for the Respondent: Mr D M Berman
File Number: ADC 2980 of 2007
Legislation Cited: Family Law Act 1975 - ss.60B; 60C; 60CA; 60CC; 61DA; 65DAA; 65DAC
Cases Cited: Morgan & Morgan (No.11) [2007] FMCAfam 902
H v W (1995) FLC 92-598
R & R: Children’s Wishes (1999) 25 Fam LR 712
Goode & Goode (2006) FLC 93-286
D v SV (2003) FLC93-197
Jurisdiction: Family Court of Australia
Parental Responsibility Outcome: Equal Shared Parental Responsibility
Residential Outcome: Not Relevant


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ORDERS

The husband and wife have equal shared parental responsibility for the children of the marriage N born in August 2001 and G born in September 2002 (hereinafter referred to as “the children”).

The children live with each of their parents during school terms on a week about basis moving between their parents’ respective homes on Monday of each school week or Tuesday in the event that Monday is a public holiday.

The children spend half of each school holiday period with each of their parents, the halves to be agreed between the parties and failing agreement to be the first half with the father in 2008 and each even ending year thereafter and the first half with the mother in 2009 and each even ending year thereafter.

The operation of these orders is suspended in respect of the Christmas period of each year so that the children spend equal time with each of their parents, at times to be agreed between the parties and failing agreement to be from 6:00pm on Christmas Eve until midday on Christmas Day with the mother in 2008 and each alternate year thereafter and with their father from 6:00pm on Christmas Eve until midday on Christmas Day with the father in 2009 and each alternate year thereafter.

The parent who does not have the care of the children on either of their respective birthdays is entitled to spend four hours with the children on each of their birthdays, the specific times to be agreed between the parties and failing agreement to be from 3:30pm until 7:30pm on each of the children’s birthdays.

In the event that Mother’s Day falls on a day when the children are in the care of the father the alternate week about arrangement will commence at midday on Mother’s Day in that week only.

In the event that Father’s Day falls on a day when the children are in the care of the mother the alternate week about arrangement will commence at midday on Father’s Day in that week only.

The mother is authorised, proof of which shall be by production of these orders, to enrol the children at the W Primary School from the date of these orders.

Each party have the right to attend at the said children’s school for all events that parents are normally invited to attend, such as but not limited to:

Reading, music and art assistance;

Sports days;

School concerts;

School plays;

Sporting events; and

Any similar event

and should the children’s attendance be required for such event, then the parent having the care of the said child or children at that time shall facilitate the child or children’s attendance at that event.

Each parent shall have the right to obtain copies of the said children’s school academic records, report cards, progress cards, school magazines and newsletters, school photographs (at their own cost), fees and enrolment information and all other such information pertaining to the said children’s schooling and school related sports activities;

The husband and wife shall do all reasonable things to ensure that the other is kept informed in a timely manner of any issues relating to the wellbeing, health, education and care of the said children while they said children are with that respective parent;

The husband and wife shall provide to the other party from time to time the following information within four (4) days of that party’s written request to the other party having such information:

The name of the general practitioner attending to the said children’s health requirements and the names(s) of any medical specialists, psychologists, psychiatrists and social workers so attending to the said children; and

The names of any hospitals, clinics and health institutions that the said children attend and the dates of such attendances;

Should a medical emergency arise in relation to the said children while the said children are in the care of a parent, then that parent shall notify the other parent as soon as practicable of the time and nature of such medical emergency, the name and address of any treating medical practitioner(s) and hospital and the location of the said children;

The husband and wife shall have the right to communicate with and obtain any information concerning the said children’s physical and mental health and welfare direct from any general medical practitioner, specialist medical practitioner, psychologist, psychiatrist, other health professional, counsellor and/or social worker;

The husband and the wife be restrained and an injunction be granted restraining each of them from removing the said children from the Commonwealth of Australia without the prior written consent of the other or an order of this Honourable Court;

The Australian Federal Police place the name of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain their names on the Watch List until further order of this Honourable Court.

The parties communicate all relevant information concerning the welfare and care of the children in writing by means of a communication book to be exchanged between them at the same time as the children are exchanged between them.

The appointment of the Independent Children’s Lawyer be discharged.

All applications herein be otherwise dismissed.

REASONS FOR JUDGMENT

Introduction

Ms Morgan and Mr Morgan are the parents of N born in August 2001 and G born in September 2002. These proceedings are concerned with final parenting arrangements for N and G.

Ms Morgan was born in Michigan in the United States. Mr Morgan was born in South Australia. He is a toolmaker. Career opportunities took Mr Morgan to Michigan in 1999, where he soon met Ms Morgan. They married in Michigan in September 2000. Both N and G were born in Michigan.

Mr Morgan has many family connections in South Australia. In November of 2005 he completed his contract of employment in the United States. He wanted to return to Australia. Ms Morgan was not so sure.

By this time the marriage between the two was in difficulties. In any event the family arrived in South Australia on 16 November 2005, settling in a suburb of Adelaide.

Ms Morgan was not happy in Australia. In June of 2006, she and the children returned to Michigan for a month’s holiday. In early August of 2006, the parties separated when Mr Morgan left the WS property. The children remained behind with their mother. Mr Morgan saw them regularly on weekends and on one evening during the week.

On 6 September 2006, Ms Morgan and the children again left Australia and returned to Michigan. The circumstances of this travel were more controversial. From Mr Morgan’s perspective, he was not told about the travel and did not give his permission for the children to leave Australia. It is clear from Ms Morgan’s perspective that she hoped to be able to live permanently in the United States with N and G and had no intention of returning them to Australia.

Soon after she had arrived in Michigan, Ms Morgan applied to the Michigan Circuit Court for an ex parte custody order in respect of N and G and for the payment of child support by Mr Morgan. Orders to this effect were made on 8 September 2006. Mr Morgan learnt the children were in Michigan on this date, when Ms Morgan telephoned him. Thereafter he was able to telephone the children regularly in the United States.

Mr Morgan instructed solicitors in Australia and proceedings were commenced on his behalf pursuant to the Hague Convention in the United States District Court in the appropriate district of Michigan seeking the return of the children to Australia.

Shortly after the parties separated, in August of 2006, Mr Morgan commenced a serious relationship with Ms C. Mr Morgan and Ms C plan to marry in the early part of 2008. In January of 2007, Ms C purchased a rural property on the northern outskirts of Adelaide. Mr Morgan lives there. He regards it as his home.

In early March of 2007 Mr Morgan travelled to Michigan for the hearing of his petition pursuant to the Hague Convention. He was able to spend regular periods of time with the children in Michigan with the consent of Ms Morgan.

On 21 March 2007, the Honourable Patrick J Duggan, a judge of the United States District Court determined that N and G were habitual residents of Australia prior to Ms Morgan’s removal of them from Australia. Accordingly he ordered that the two children be returned to this country.

Mr Morgan with N and G arrived back in South Australia on 24 March 2007. They took up residence at T. Shortly afterwards N commenced school at T Primary School.

Ms Morgan followed N and G back to Australia. She arrived in Adelaide on 27 April 2007. Relations were tense between Mr Morgan and Ms Morgan and they were unable to agree easily on arrangements for the care of the two children, particularly the circumstances in which they should spend time with their mother.

On 5 June 2007, Ms Morgan commenced proceedings in this court. She sought orders that would see the children living predominantly with her and spending time with their father on alternate weekends during school terms; another evening in the other week of each fortnight; and in half of each school holiday.

Mr Morgan responded to this application on 9 July 2007. It is his position that considerations relevant to the children’s sense of stability should dictate that they live predominantly with him and spend time with their mother on alternate weekends during school terms and for half of each school holiday.

In support of his case, he pointed to his secure accommodation at T and the fact that N had fairly recently started at primary school. Given the upheaval both children had suffered in their lives in the preceding twelve months or so, he was vehemently opposed to there being any further change for them. This essentially remains his case.

Initially, on her return to South Australia, Ms Morgan proposed settling in an inner suburb of Adelaide. She was not in a strong financial position and had to look for work to support herself. By occupation she is a hairdresser, work which is suited to being done on a part time basis. More recently she has moved to rented accommodation in W and works in a hairdressing salon in G. The accommodation she rents is owned by her employer.

It is Ms Morgan’s case that she was the children’s main provider of care both before and after the parties themselves separated. In support of her case she points to the fact that she was engaged in part time work during much of the parties’ marriage, whilst Mr Morgan was the family’s main breadwinner. In such circumstances she argued that the children’s emotional stability would be best preserved if they came to live predominantly with her. This essentially remains her case.

Accordingly, upon her return to Australia, in the face of Mr Morgan’s vigorous opposition, she has put into place the mechanisms designed to bring about such a situation. She asserts that Mr Morgan is intent on punishing her for what she did in September of 2006, when she removed the children from Australia without Mr Morgan’s assent, rather than focussing on the children’s best interests.

Ms Morgan characterises her behaviour in September 2006 as ill-considered and something for which she is now sincerely sorry, but not of itself an action designed to prevent the children having a proper relationship with their father.

In support of her contention, she points to the fact that she allowed Mr Morgan to spend time with the children in Michigan prior to the hearing of the Hague Convention matter and was willing to facilitate telephone communications between father and children, whilst Mr Morgan was in Australia.

In contrast, she asserts that Mr Morgan is not capable of separating his emotional need to punish her from the best interests of N and G. It is her position that Mr Morgan has made it as difficult as possible for her to remain a strong presence in the children’s lives, since she returned to Australia and is intent on excluding her, as much as possible, from N and G’s day to day existence.

She points to the fact that she has found it very difficult to get information about N’s progress at the T Primary School and to attend at the school itself, given how far it is from her work and home. It is also her case that Ms C has an implacable dislike for her, which she is incapable of hiding from N and G. She argues that if there was any doubt about her commitment to the welfare of the two children concerned, it has well and truly been put to rest by her decision to return permanently to live in South Australia so that she can be as close as possible to N and G.

Mr Morgan does not accept that Ms Morgan can be described as the children’s primary provider of care and nurture, certainly not since they returned to Australia with him. It is also his position that, in the last year of the parties’ marriage in Michigan, Ms Morgan was often an absent and neglectful parent, who was more intent on socialising and pursuing an extra marital affair, which he believes was Ms Morgan’s principle motivation for returning to Michigan when she did.

Overall, whilst not disputing that Ms Morgan loves N and G, Mr Morgan believes that Ms Morgan is self centred and lacking in the required discipline to parent adequately children of the ages of N and G. Mr Morgan is particular concerned about Ms Morgan’s prior use of alcohol. He believes that, given Ms Morgan’s character, if the children do live predominantly with her, it is only a matter of time before she passes the care of the children to others so that she can socialise.

Much of 2005 was undoubtedly deeply unhappy for the parties. It was during this period that the marriage between them fell into irretrievable difficulties. It was also the period in which Ms Morgan began a relationship with Mr W. The relationship continues. Mr W has visited the mother in South Australia on one occasion since her return to this country. It also seems likely that Mr W will seek to immigrate to Australia, although there is some uncertainty about his likely residence status in Australia. However Ms Morgan has deposed that she and Mr W intend to marry.

Mr Morgan is critical that Mr W has taken no active part in the current proceedings and has provided no affidavit for them. He is also critical of Ms Morgan for not being more forthcoming about her plans with Mr W, particularly the consequences of them for N and G. From Mr Morgan’s point of view, this is further evidence of the fact that he is the better placed parent to provide the stability and continuity of care which N and G require.

I was called upon to determine interim arrangements for the parenting of N and G in early August of 2007. At that stage I considered that the parties concerned should have equal shared parental responsibility for N and G [Family Law Act section 61DA]. But that reasons related to the children’s best interests and considerations of practicality ruled out there being a shared care or substantial and significant time regime between the parents [section 65DAA].

Accordingly I determined that the two children concerned should live predominantly with their father at T and N should continue at the T Primary School. In reaching this outcome I was strongly influenced by considerations of stability for the two children [section 60CC(3)(d)]; the distance between the parties’ respective homes; and the obviously poor and mistrustful parenting relationship between them [section 65DAA(5)].

The latter two practical difficulties remain and were significant features of the most recent round of proceedings. Emblematic of the difficulty is the father’s wish that the children should attend T Primary School and the mother’s wish that they should attend W Primary School, which is close to where she currently lives. In support of her position, Ms Morgan points to the fact that Mr Morgan works at AP and Ms C at the AA. Accordingly both have to travel fairly close to W on a twice daily basis.

As I pointed out at the earlier hearing, at the interim stage, I was not in a position to make a full appraisal of all the evidence which was likely to be available at the final hearing stage. In particular, at the interim stage, I did not have any expert and independent assessment of the children’s relationship with each of their parents nor any indication of what the children’s preferred outcome from the case was likely to be.

Such an assessment has now been prepared. It has been prepared by an experienced psychologist, Dr C. The contents of Dr C’s report and particularly his recommendations are a fresh source of controversy between the parties. It being Mr Morgan’s position that Dr C has misconceived his role in the proceedings and has failed to conduct proper inquiries, particularly of Ms Morgan. As such Mr Morgan asserts that Dr C’s report and recommendations should be essentially disregarded by the court.

Given the background in this case, there are obvious reasons why the relationship between the parties is characterised by suspicion and mistrust and why every communication between them is fraught with potential difficulties. Overlaying these problems are the logistical difficulties relating to where each of the parties has chosen to live within the Adelaide area.

Mr Morgan and Ms C favour a rural life. They live on some acreage at T, where they have horses and other animals. The rural life has no charms for Ms Morgan, who prefers a more urban lifestyle. By implication, she is critical of Mr Morgan for choosing to settle the children at T, knowing that this would not have been her preference and would make things difficult for her.

Notwithstanding the parties’ many and varied criticisms of one another, this is not a case where either says anything other than that N and G have a close and loving relationship with the other of their parents, which needs to be preserved by any order which the court makes. Accordingly this is a case where both parties submit that the presumption of equal shared parental responsibility needs to be applied by the court.

Accordingly, before the court makes any parenting order regarding N and G, it is required to consider whether the children should spend either equal time and failing that substantial and significant time with each of their parents [section 65DAA(1) & (2)].

Unfortunately Dr C’s report was not released to the parties until a late stage, shortly prior to the time scheduled for the final hearing. Prior to the release of the report, it was Ms Morgan’s position that N and G should live with each of their parents in what is commonly called a shared care arrangement, moving between their parents’ respective homes on a week about basis. It remained her position that the children should attend the W Primary School.

Despite what Ms Morgan thought Dr C would recommend, this arrangement was not in fact the one he promoted in his report. Rather he advocated that the children should live predominantly with their mother and spend alternate weekends from Thursday to Monday mornings and an intervening Wednesday or Thursday evening with their father. This would be five nights per fortnight during school terms.

The basis for Dr C’s recommendation was his view that G wanted to spend more time with his mother and was likely to be distressed if he could not do so. On the other hand it was Dr C’s view that N was more ambivalent about his relationship with his mother, largely because of the tumultuous changes he had been through in the last twelve months or so, and so needed to spend more time with her to rebuild his bond with her.

Dr C was somewhat critical of the father and Ms C for choosing a lifestyle at T, which had resulted in the children having an unnecessarily complex and arduous daily routine, based upon the need for the children to be cared for before and after school by others, whilst Mr Morgan and Ms C travelled to and from their work in the Adelaide metropolitan area. Dr C was also concerned that the arrangement made it difficult in practice for the mother to remain optimally involved in the children’s lives.

Accordingly, it was Dr C’s view that at the very least the children should be parented in a shared care arrangement but given logistical issues and his concern that it was likely to be emotionally unsettling for N and G to have their time with their father abruptly reduced, Dr C was more in favour of an arrangement whereby the children lived mostly with their mother and spent substantial and significant time with their father.

Geographical and logistical concerns loomed large in Dr C’s report and recommendations. These concerns centred on the distance between the father’s home in T and the mother’s home in W and the travel the children would have to do whatever was the outcome.

Overlaying these concerns were issues relating to the fact that Mr Morgan and Ms Morgan were reliant on before and after school care for N and G because they themselves had to travel to and from Adelaide on a daily basis for their work. The combination of these two factors, Dr C believed constituted an excessive and unwarranted burden for the children.

Accordingly, to reduce this burden and to make the regime he recommended workable, Dr C advocated the children attending a primary school near their mother’s home. This he believed would have a twofold benefit. Firstly the mother would be more able to be involved in N and G’s education and school life, which would be beneficial to them. Secondly the logistical burdens of travel and extra parental care would be reduced for the children.

Once Dr C’s report was released to the parties, Ms Morgan was content to adopt its recommendations, particularly as they resulted in the children spending more time with her than she had earlier sought. It is now her position that the court should make orders along the lines advocated by Dr C.

As indicated earlier, it is Mr Morgan’s position that Dr C’s report is flawed and misconceived. Particularly, he argues that Dr C has failed to give adequate consideration as to how N and G came to be living in T in the first place. It was as a result of the mother’s derelict action in taking them to the United States, without any proper consideration as to how they would maintain their paternal relationship with him.

Once the court in Michigan confirmed that the children had been illegally removed from Australia and ordered their return to this country, he had no alternative but to take them to his home at T, where he has provided them security and stability in the period since. In such circumstances, he argues that Dr C’s implied criticism of his choice of home for the children and his arrangements for their care is at best misconceived and at worst indicative of some level of bias against him.

Given this background, he is vehemently opposed to their being any further substantial change in arrangements for the care of N and G, particularly a change in their primary school. He argues that a proper consideration of the children’s best interests dictates that arrangements for their care should be stable and consistent. Accordingly he advocates that the children should continue to live predominantly with him and to attend the T Primary School, the situation which has prevailed for the last eight months or so.

Although Mr Morgan too advocates that he and Ms Morgan should have equal shared parental responsibility for N and G, he argues that practical considerations militate against there being either a shared care arrangement or a substantial and significant care arrangement for the children.

Mr Morgan argues that Dr C, in the recommendations to his report, has attempted to construct a solution to the practical difficulties arising from the distance between the parties’ respective homes but in so doing has failed to properly consider the children’s best interests and how these difficulties arose in the first place. It always having being open to Ms Morgan to live closer to where he and the children had returned to in South Australia, once she too had elected to return permanently to the Adelaide area.

Mr Morgan also refutes any suggestion that he has made it difficult for the mother to be involved in the children’s school life at T. It being his position that Ms Morgan lacks the necessary initiative to introduce herself to the staff at the school and so become involved.

Before turning to the evidence in this case in more detail, it is my overall finding that both parties are loving and caring parents, who each have much to offer N and G. Given the concession that both Mr Morgan and Ms Morgan make that they should have equal shared parental responsibility for the children, it must necessarily be the case that each of them must spend as much time as possible with N and G.

As Dr C remarked, many of the difficulties in this case are practical ones – which is the most convenient school for the children to attend; how can the time the children spend travelling between their parents’ homes be reduced; how can both parents be as fully involved as possible in the children’s education; how can the parties’ reliance on extraneous child care be reduced.

Part of Dr C’ recommendations was that the parties themselves should cooperate in designing a workable regime of care for N and G based upon their respective responsibilities and commitments. Perhaps Dr C was unduly optimistic in making this recommendation. In any event, it is highly regrettable that it falls to this court to design such a regime.

Whatever is the ultimate result, one or other of the parties will most likely feel hard done by what the court orders and this may perpetuate the conflict and acrimony between them. Obviously such an outcome is not the most suitable vehicle for the parties to embark upon a joint parenting venture together.

The Issues

Having provided this introduction, it is useful for me to set out the issues which I must determine, before turning to the evidence and applicable legal principles in more detail.

Who of the parties predominantly cared for the children during much of 2005, whilst the family was living in Michigan?

Can one of the parties be described as the children’s primary carer? If so, should this be significant in shaping the outcome at this stage [section 60CC(3)(b)]?

Do the children have any views about the preferable arrangements for their care? If so, what is shaping those views and are the children sufficiently mature to be able to understand the significance of them [section 60CC(3)(a)]?

Who of the parties is more capable of encouraging and supporting N and G to have a close and loving relationship with the other parent concerned [section 60CC(3)(c)]?

In this regard, what is the significance of the mother’s behaviour in September of 2006 and the father’s behaviour in the period since the children returned to Australia?

What is the significance of the mother’s relationship with Mr W, so far as the children’s best interests are concerned?

What is the significance of the father’s relationship with Ms C and the relationship between Ms C and the mother, so far as the children’s best interests are concerned?

Given the considerable changes with which the children have had to cope over the last twelve months or so, what is likely to be the most stable arrangement for their care in the next period of their lives [section 60CC(3)(d)]?

Has the current arrangement for the children’s care caused a rupture in the bond between N and his mother which now needs urgent repair, as Dr C believes?

What are the respective parenting capacities of each of the parties? Does the mother lack the discipline and resolve to be consistent and reliable in her parenting of the children, as the father alleges [section 60CC(3)(f)]? Are the allegations the father makes about the likely impact of the mother’s social life on the children likely to be true?

Given the parties have agreed that they should have equal shared parental responsibility for N and G, is it both likely to be in the children’s best interests and reasonably practicable for there to be an equal time arrangement for their care [section 65DAA(1)]?

If not, is a substantial and significant time arrangement likely to be both beneficial and feasible for the children given the parties’ poor relationship with one another and the distance between their respective homes [section 65DAA(2) & (3)]?

If the answer to either of the previous two questions is the affirmative, what is the most practicable and beneficial school for the children to attend in 2008 and thereafter?

What other arrangements need to be made to ensure that either a shared care or substantial and significant time arrangement is a feasible outcome?

Are the logistical difficulties so great in the present case that considerations of practicality dictate that the children should live predominantly with one or other of their parents?

How can the burdens of travel and extra-parental care be reduced for the children? Should this be the most determinative factor?

Finally and most importantly, what is the best outcome for N and G?

The legal principles applicable

Part VII is the part of the Family Law Act which deals with orders relating to children.

The service of N and G’s best interests is the most important consideration in this case [Family Law Act s.60CA].

The aims and principles Part VII [section 60B] emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm from being subjected to abuse, neglect or family violence.

These principles also speak of the entitlement of children to spend regular periods of time with those who are significant to them. Obviously these people include parents but also other relatives, particularly grandparents [section 60B(2)(b)].

Accordingly, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].

The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].

The presumption is also rebutted if evidence is provided which satisfies the Court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility [section 61DA(4)].

The presumption itself does not determine the extent of time the child concerned spends with each of his or her parents. This is determined by section 65DAA.

If the presumption applies, the court is required to consider firstly whether the child should live with his or her parents for equal periods of time and if this is not considered to be either to be likely to be in the child’s best interest or reasonably practical.

If the court rejects equal time it is then required to consider the child living with each of his or her parents for “substantial and significant” periods of time. Again this outcome is subject to considerations of the child’s best interests and practicality.

The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.

The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the children concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.

In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.

There are two primary considerations – firstly the need to ensure that the children have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.

The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.

Issues of practicality are dealt with by section 65DAA(5). The Court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the children concerned.

Finally, it should be noted that pursuant to section 65D the court is empowered to make whatever parenting order it thinks proper, subject to the presumption of equal shared parental responsibility created by section 61DA. However, clearly this discretion is not uncontrolled and must be exercised in the light of the entire legislative structure of Part VII of the Act, which is the part of the Act dealing with children.

The Evidence

The parties each gave evidence and each was extensively cross-examined by counsel for the other party. Ms C also gave evidence and was cross examined. The only other witness in the proceedings was Dr C.

Dr C is a psychologist by profession. He interviewed the parties and Ms C on 23 October 2007. He also observed each of them with N and G. I accept that Dr C was well aware of the salient issues in this case and addressed each of them in his report.

I do not think that it can be said that he was biased in favour of either the mother or the father. Rather, in my assessment, he approached the case from the point of view of what was likely to be the best outcome for the children. He cannot be criticised for this.

Dr C had a fundamental advantage over me in the case. He was able to see and interact with the children and so assess the nature of their relationships with each of their parents. In my assessment, this was likely to be conducive to Dr C being able to form an accurate assessment of N and G’s current state of emotional well being.

The father is critical of Dr C for attempting to construct a solution to the geographical and logistical constraints in this case, whilst ignoring the children’s best interests, particularly their need for ongoing stability. This is implicit in Dr C’ ultimate recommendation that the children should live predominantly with Ms Morgan and there be a change of their school.

The underlaying theme of this criticism is that Dr C has either ignored or misconceived the gravamen of the mother’s appalling and irresponsible parenting in taking N and G to the United States in September of 2006. True it is that was not a significant theme of Dr C’s report but I do not think that this weakens the value of the report.

As I say, I am satisfied that Dr C saw his role as to comment on the present circumstances of the children and report on what was likely to be the best outcome for them in the future. As such, he was not greatly concerned about the culpability of the mother’s behaviour in the past. Again, I do not think he can be criticised for this.

In addition, I do not think Dr C can be criticised for being either naïve or misguided for attempting to suggest solutions for the practical difficulties in this case. In my view, when all is said and done, what the case is fundamentally about is ensuring the best way for the children to have a meaningful relationship with both their parents, given all the difficulties which currently exist, not the least of which is the distance between T and W.

The father is critical that, if Dr C’s evidence of N’s currently fragile relationship with his mother is accepted, there is an element of recklessness in Dr C’s recommendation that the child should live more with his mother than his father at this stage.

Rather, Mr Morgan asserts that a cautious approach needs to be adopted for future arrangements for N’s care. From Mr Morgan’s perspective, this apparent disavowal of the need for stability for N makes Dr C’ report essentially valueless.

I do not agree. I do not think that Dr C either ignored or underestimated the children’s, particularly N’s, need for stability. He was well aware of the upheaval the children had suffered over the past year or so. Part of this upheaval was a sense of disconnection from their mother, which he believed was likely to be detrimental to them if it was allowed to become entrenched.

Overall I found Dr C’s report and evidence to be helpful and well considered. In such circumstances, I see no reason to doubt his observation or to discount the overall thrust of his recommendations.

Ordinarily, a court such as this one, should refrain from making adverse comments about a parent in the proceedings before it, unless it is specifically necessary to do so. It does not help children if the relationships between those who are influential to their care are inflamed by hurtful but gratuitous findings of fact.

It is becoming increasingly recognised that it is difficult for courts to make findings of fact about myriad issues, which have arisen over many years in a family, through the imperfect tool of assessing evidence provided in the artificial (and to many, intimidating) confines of the witness box and through the reading of formal and often professionally prepared affidavits.

Unfortunately, but for obvious reasons, the parties in adversarial proceedings, such as these, tend to emphasise, in the presentation of their respective cases, the failings of the other party concerned and minimise their own. In addition, the extreme emotion created by such proceedings, which involve the persons the parties to them hold most dear – their children – blur perceptions and recollections of past events.

For all these reasons, the court must be cautious about making findings of fact. However, imperfect though it may be, the process still requires an adjudication, which adjudication can only be made on the basis of the evidence presented before the court. Necessarily therefore, the court must form some impression of the parties and witnesses involved, including their likely level of truthfulness, so this adjudication can occur.

The father portrays the mother as a parent who loves her children but as one who has a number of significant character flaws. Essentially she is a person who prefers to party rather than care for the children. At the end of the day, whatever is the outcome of the case, he asserts the mother will return to her active social life, which includes a significant level of alcohol consumption and others will have to take up the slack, so far as caring for the children is concerned.

The mother refutes this suggestion and in order to support her claim that she is devoted to the children beyond all things, points to the fact that she returned to Australia as quickly as she could, against her own personal preference, so that she could be as close as possible to N and G. This divergence of view between the parties explains why so much time was spent in the case examining who of them predominantly care for the children in 2005, whilst the marriage between them was unravelling.

I suspect the father has probably overstated his level of care of the children and the mother’s level of dereliction during this period, whilst the mother, for her part, has minimised the level of her social life. The mother seemed to me to be a gregarious person, who makes friends easily. It also seems to be the case that the social life of both parties involves the consumption of alcohol from time to time.

The last year of so of the parties’ marriage was deeply unhappy. Ms Morgan had also commenced her involvement with Mr W. In such circumstances, I can well understand why she would not be at home as frequently as she was previously. However there is no conclusive evidence to support the assertion that she essentially abandoned the children in 2005.

In addition, there is no cogent evidence to support any finding that the mother has a significant level of difficulty in regards to the consumption of alcohol. Although I suspect she may have over-indulged in alcohol in the past, it is a long way from this to an acceptance that she has an on-going problem with alcohol, which is likely to be significant, so far as the care of the children is concerned.

During much of 2005, I am satisfied that both parties were significantly involved in caring for N and G. I am also satisfied that this was the situation prior to 2005. The parties parented the children together, whilst both were involved in the paid workforce to one degree or another. Necessarily this involved them having recourse to child care from time to time.

The decisions which the parties took to involve the children in child care, in both the United States and Australia, were mutual ones and neither can now criticise the other for those decisions. In the complex circumstances, which have prevailed in this case, it is simplistic and misleading to describe one parent as being the primary carer of N and G and so ipso facto as having made a superior parenting contribution to the other. I am satisfied that both parties are loving and committed parents, who accordingly have much to offer the children, albeit in different ways, given their different personalities and backgrounds.

In this day and age, when parents are frequently working for reasons of financial necessity, it is a common phenomenon that child care is a fact of life in many homes. In these circumstances, I think it likely that the father overstates the mother’s failings as a parent too a significant extent.

Once the family arrived in Australia in November 2005, he was initially content to leave the children in the mother’s care whilst he commenced work at D. She returned to part time work shortly afterwards and the children were enrolled at the ABC Learning Centre. I think it drawing a long bow to characterise the mother as a selfish and neglectful parent because of this.

For her part the mother portrays the father as a vindictive and embittered person, who is intent on punishing her for what she sees as one misconceived and now much repented action. The tension and animosity between the parties was palpable to me during the proceedings. Given what has occurred between them, this is hardly surprising. Neither party struck me as being likely to be able to have recourse to exceptional levels of magnanimity, so far as the other is concerned. The father is and will remain deeply suspicious of the mother.

I can understand why. The father does feel wronged. He is entitled to feel wronged. However the children are not to be penalised for the past failings of their mother in removing them from Australia. I can also understand why the father is somewhat dubious about the mother’s current expressions of remorse and regret for her past behaviour. I think the father is entitled to consider that these expressions are opportunistic rather than sincere.

However, be that as it may, I have no reason to doubt the sincerity of the mother’s expression that she accepts that the children’s future is in South Australia and if she is to play an active role in that future, she too must remain in South Australia indefinitely. I have no doubt that the mother learnt a powerful lesson from the Hague Convention proceedings in the United States and will not attempt a similar removal of the children from Australia again.

Time is likely to be the only means of restoring some level of trust between the two parties, after what has occurred between them in the past. The current proceedings were traumatic for all concerned. In this regard, I believe that both Mr Morgan and Ms Morgan have put their own emotional needs before those of the children to some extent or other in the pursuit of their preferred outcome in the case. Both want to penalise the other for past perceived failings.

However, in my assessment, they are both good parents in the sense that both fervently love N and G and both want the best outcome for them from these proceedings, as they each perceive it from very different perspectives. Sadly, at the present time, neither can see any good in the other parent and their ability to cooperate with one another is minimal. This is likely to remain the case for the indefinite future.

The mother is critical that the father chose to settle in T with Ms C. The implication being that he was intent on making it as difficult as possible for her to interact with the children, when inevitably she returned to this country. I do not think that there is any ulterior or malign motive behind Mr Morgan and Ms C’s choice of T for their home.

Ms C has a love of horses. Mr Morgan grew up in the country. Both enjoy a rural lifestyle and can see considerable benefits of it for the children concerned. It is also clear that Ms C purchased the property in January of 2006, which obviously was prior to the conclusion of the proceedings in Michigan.

For her part, Ms Morgan’s preference is to live in a more urban environment. As Mr Berman points out, it would have been possible for her to have found accommodation for herself in one of Adelaide’s outer northern suburbs, which would have been much closer to T. She chose not to. Neither party is to be criticised for their choice of accommodation, rather it is symptomatic of their inability to plan together, particularly in respect of the children. This is not surprising given what occurred in the aftermath of their separation.

No doubt the decision of the court in Michigan was unpalatable to the mother. Certainly there seems to have been no attempt on her part to compromise the proceedings. No doubt she hoped that she would be successful in her attempt to retain the children in the United States, where they had been born and where she had significant connections.

Regrettably, once the outcome of the proceedings was known, the parties were incapable of approaching the outcome in a consensual fashion. I accept the father’s evidence that he did not know what the mother planned to do once Judge Duggan’s order was made.

But, at the same time, he does not appear to have made much attempt to enquire of Ms Morgan what her intentions were. However, I suspect that, given Ms Morgan’s relationship with the children, it cannot have come as a great surprise to him that she would choose to return to Australia to be near to them.

Sadly, since the process of the Hague Convention proceedings was commenced, neither party has been able to move on from the adversarial process which those proceedings inaugurated. Both have sought to gain an advantage over the other, with the minimum level of compromise.

This is most clearly apparent in the mother’s change of tack at the commencement of the case before me. I do not think it unnecessarily cynical to consider that the change in the orders she sought was more inspired by a desire for advantage over the father, rather than focus on the children’s best interests.

The mother is not only critical of the father’s unilateral decision to enrol the children at T Primary School but also of her perception that he has actively worked to prevent her being involved with their education at the school. For his part, the father asserts that the mother is too indolent to make the effort to get out to the school and make the necessary arrangements to get on the school’s mailing list, so far as newsletters and other school information is concerned.

This is a difficult issue to resolve definitively in favour of one party or the other. I suspect that the mother is disinclined to go out to T, which she perceives is the father’s home turf. I also suspect that the father and Ms C are inclined to provide the mother with the minimum amount of information regarding the school. The children are caught in the middle. As I said at the outset, the school issue is emblematic of each party’s desire to gain what he or she perceives is an advantage over the other.

Like many couples with small children, Mr Morgan and Ms C struggle to balance work and family commitments and to live the lifestyle of their choice. This involves many hardships and struggles for them. Both Mr Morgan and Ms C lead very busy and demanding lives.

Ms C works fulltime as an A.S.O. at the AA. She leaves for her work early in the morning, as she works from 7.00am to 3.00pm most days. Sometimes she works on weekends, when she can be called upon to work from 5.00am to 1.00pm. She has a rotating roster, which gives her two days off every seven days and four days off every three weeks.

Mr Morgan works in an inner suburb north west of the city centre of Adelaide. It is a drive of three or four kilometres from W. Mr Morgan works from 8.00am to 4.30pm on Mondays to Thursdays and from 8.00am to 2.00pm on Fridays.

Both Mr Morgan and Ms C drive into the Adelaide metropolitan area on most, if not all weekdays. In driving to the AA, Ms C drives to the south west of the Adelaide city centre. It would not be unduly onerous for her to reroute her necessary travel via W. Nor would it be difficult for the father to drive there.

Due to their respective work commitments, it is necessary for Mr Morgan and Ms C to enlist another person to assist them with caring for the children, before and after school. This is Ms P, who lives close to their home in T. Mr Morgan delivers the children to Ms P’s home on his way to work in the mornings at around 7.00 am. Ms P takes the children to school at around 8.45 am.

In the afternoons, Ms C collects the children, from after school care, at around 3.45pm, apart from on Fridays when Mr Morgan is available to collect them at 3.15pm. N expressed to Dr C some level of dissatisfaction with the arrangements, so far as the involvement of Ms P was concerned. It is difficult to gauge the level of this dissatisfaction.

Ms Morgan works as a hairdresser in the G area. She has formed a close business and personal relationship with her employer, Ms D. Ms D owns the townhouse in W, which Ms Morgan currently rents. I accept Ms Morgan’s evidence that both her employment and accommodation are secure for the foreseeable future. Certainly Ms Morgan is very enthusiastic about W, which she says she “loves”.

Currently Ms Morgan is working four days per week, from Wednesday to Saturday. Saturday is a half day, with Ms Morgan working from 8.00am to 12 noon. On Wednesdays and Thursdays, she works from 12 noon to 8.00pm and on Fridays from 9.00am to 5.00pm. Ms Morgan deposes that Ms D is willing to alter her work commitment to fit in with any future arrangements, which may be required so far as the care of the children is concerned. I have no reason to disbelieve this assertion. I accept that hairdressing is the type of employment which provides flexible hours.

Mr Morgan’s accommodation at T and Ms Morgan’s accommodation at W are very different. At T, the children are able to interact with Ms C’s horses and to feed and play with a variety of animals including dogs, cats and chickens. At W they have a more suburban environment but are able to visit the Lake nearby and to play with friends in a secure backyard. One environment cannot be said to be necessarily superior to the other, they are just different.

Similarly, I have not been provided with any extensive evidence regarding the respective merits of the T Primary School and the W Primary School. They are both publicly funded primary schools and both are likely to offer a substantially similar level of education for the children.

From both parties’ point of view, the respective merit of their preferred choice lies in its proximity to their respective homes. Although I do accept that it will be significantly easier for Ms Morgan to become actively involved in the W Primary School as opposed to the one at T.

Ms C has allowed herself to become considerably enmeshed in the dispute between the parties. As is to be expected, she has uncritically taken Mr Morgan part in it and sees him as the wronged party. She has said and done a number of things which can only be regarded as provocative, so far as Ms Morgan is concerned. For her part, Ms Morgan makes little secret of the fact that she sees Ms C as an interloper, so far as N and G are concerned.

There is obviously no love lost between the two women concerned, with Ms Morgan visibly bristling when Ms C was giving her evidence. Given this state of affairs, I think it likely that there is much truth in the mother’s assertion that she finds it difficult to talk to the children regularly on the telephone, as required by the orders of 1 August 2007. Certainly every telephone interaction between the two women has the potential to end in unpleasantness, which has the potential to impact upon the children. Neither of the women can be regarded as blameless for the current poor state of their relationship.

However, notwithstanding these difficulties between Ms Morgan and Ms C – about which the children must have some level of awareness – I have no reason to think anything other than that Ms C is an appropriate person to interact regularly with the children. She will remain a significant person in their lives for the foreseeable future, as she and Mr Morgan plan to marry in February of this year.

N suffers a serious heart condition and underwent cardiac surgery in the United States in 2004. The mother complains that Mr Morgan arranged for him to have a review of his condition in August of 2007 but failed to inform her of the review’s outcome until 18 November 2007.

It seems likely the resulting report was not forwarded to Ms Morgan due to an administrative error in Mr Morgan’s solicitor’s office. For his part, the father complains that that Ms Morgan arranged for a review of N from a cardiac specialist in the United States, when she was there in 2005 and did not tell him about it.

In my estimation both parties are more than capable of ensuring that N receives any medical treatment he requires and the level of care available is not likely to be significantly different in the United States or Australia. What the two incidents demonstrates is the extreme degree of difficulty which exists between the parties in exchanging important information about the children and the possessive nature each has in regards to them.

Sadly there is little, if any, evidence that the parties are able to parent the children empathetically or with any ethos that the other should be involved in parenting decisions. The father quite bluntly said that, as N was in his care, it was his responsibility to take N to the necessary cardiac examination. He saw no need for the mother to attend the appointment with him and at best acknowledged she should know of the results of the examination afterwards.

Although the father denies it, I am concerned that at some level, either consciously or unconsciously, he is desirous of paying the mother back in the same coin as he perceives he was paid when she took the two children to the United States without prior consultation.

N has been involved in a number of fairly minor disciplinary incidents at school. It is difficult to know why these problems have arisen. The mother naturally is prone to think that they relate to N’s unhappiness and some how relate to the father’s care of him.

The father thinks the matters are attention seeking on N’s part and may relate to bullying to which he has been subject at school. He does not see them as being particularly serious. Needless to say, the mother has a different view.

Mr Morgan concedes that he has been contacted by the school authorities about these incidents and has had an interview with the school’s deputy principal about them. He also concedes that he did not see fit to tell Ms Morgan about them or ask the school to contact her. From Ms Morgan’s perspective, these matters are indicative of the father’s attitude towards her and reflect the difficulty she has in engaging with the children’s educational environment.

Mr Morgan is a keen amateur footballer, who is closely involved with a club in the T area. The children regularly come to watch him play football and he would like the children to play with the club’s underage teams. He would want Ms Morgan to ensure that the children play football on the weekends, when they are in her care.

Given that Ms Morgan is likely to remain working on Saturday mornings for the foreseeable future and given the distance from her home to T, this is likely to be a problematic issue from her point of view.

The issue is a comparatively trivial one but is emblematic of the difficulties between the parties; the differences in their priorities so far as the parenting of the children is concerned; and the problems they are likely to have in achieving a compromise in respect of day to day parenting issues.

Like the father, the mother’s employment responsibilities require her to enlist others to care for N and G from time to time. The father is critical of her for not providing details of these people other than through the current proceedings. Again, I do not think it likely that the mother would entrust the children to any inappropriate person but the controversy demonstrates the depth of the suspicion between the parties, which colours every facet of their relationship.

Mr Berman, on behalf of his client, is also deeply critical of Ms Morgan for not being forthcoming about the nature of her relationship with Mr W. There is some strength to this criticism. The mother has provided no evidence whatsoever in her affidavit material regarding Mr W.

In cross examination, she conceded that Mr W had visited her in Australia once and it was almost certain that the two would marry in the future. In these circumstances, it was Mr W’s desire to migrate to Australia and take up residence with Ms Morgan. However, at the present time, whether he would qualify for permanent residence in this country was uncertain.

Mr Berman asserts that this lack of candour on the mother’s part significantly weakens the bona fides of her case and casts considerable doubt that she is capable of providing the prerequisite level of stability and continuity of care, which N and G require. In his submission, there is no evidence before the court which will enable a proper assessment to be made of the nature of the relationship between the children and Mr W and what the impact will be on them of sharing a household with him.

In addition, Mr Berman asserts that, in such circumstances, it cannot be guaranteed that Ms Morgan will continue to live in Ms D’s town house in W. Rather, it is likely that she and Mr W will seek to move to larger accommodation, which may not necessarily be in the W area.

In such circumstances, he asserts that it would be foolhardy for the court to give effect to Dr C’s recommendations, in regards to a change of school for the children, as the mother currently seeks.

The mother is not to be penalised for wishing to embark upon a new relationship. Given her age, it is highly likely that, whatever is the outcome of these proceedings, she will form another significant and permanent relationship to which the children will have to adapt.

The mother asserts that the children cope well with and like Mr W and there is likely to be no difficulty, if he plays a larger role in their lives in the future. She reiterates her intention to remain living in the W area, regardless of what is the outcome of Mr W’s residence application.

I agree with Mr Berman that Mr W is likely to be a significant and influential person in the children’s lives in future. How could he be otherwise, if he comes to live with their mother, as seems to be both his and Ms Morgan’s intention?

However, I can also understand the mother’s reticence about him. He is resident in the United States, where until recently he has been employed in the automotive industry. It is only recently that he has received notice of his redundancy from General Motors and his plans to come to live in Australia have crystallised as a result. In such circumstances it is difficult, but not impossible, for him to give evidence.

Mr Morgan concedes that he has no specific complaints or concerns regarding Mr W, whom he has met twice in the United States. What is his complaint is that he knows nothing of the nature of the relationship between the children and Mr W. This is so but the mother knew nothing of the relationship between the children and Ms C before the father introduced her into their lives on a permanent basis.

Indeed Ms C came into N and G’s lives at an extremely delicate stage, when they were recently returned to Australia. One thing upon which the parties agree is that the children have coped relatively well with what has occurred to them in the past year or so. Mr Morgan describes N as a likeable kid, who is quite confident and who makes friends easily.

The mother’s behaviour and the consequent order of the court in Michigan presented Mr Morgan and Ms C with a dilemma. How were they to explain the outcome and their mother’s behaviour to N and G, who were likely to be highly curious about what had occurred and what was their mother’s involvement in it.

Ms Morgan is critical of the father for allowing the children to form the impression that she has been “bad” or “naughty” in her behaviour. In her contention, this characterisation of her is likely to be highly undermining of the children’s maternal relationship and so be detrimental to their emotional wellbeing.

I agree with Dr C’ assessment that there is not necessarily something sinister or to be criticised in how the father has dealt with the issue. Mr Morgan was presented with a very difficult set of circumstances to explain to the children, whose understanding and level of insight into them was likely at best to be rudimentary. Yet the children did require an explanation.

Dr C considered the children’s assertion that “Mum” had been naughty was more than likely to be the children’s construal of the situation rather than the father’s. It might also be part of the explanation for N’s current level of ambivalence and reserve for his mother.

Dr C’ evidence

Dr C saw significant differences in the personalities and parenting styles of the two parties concerned. This is only to be expected given their different backgrounds. He described Ms Morgan as being effusive and emotional. N reacted to this level of emotion by reporting to Dr C that “Mum hugs us too tight”. However, overall, Dr C considered that the mother was in tune with the children’s emotional needs.

Mr Morgan has a more phlegmatic personality. HoweverDr C observed no hint of reserve in the relationship between the children and their father, who were comfortable and confident in his presence. Indeed Dr C considered that N was likely to have inherited much of his personality from his father.

This observation confirms my own impression that both parties have much to offer the children in terms of their emotional development. Dr C put it this way. In his view the parties’ two different households were likely to offer the two male children complementary opportunities to be emotionally rounded as they developed.

In his interview with Dr C, N reported that he missed his mum and would like to spend more time with her. At one stage, he expressed a preference to spend equal time with each of his parents. G too expressed a desire to spend more time with his mother. Given the ages of each child concerned, Dr C did not place a high degree of reliance on these expressions, being more guided by what he saw of the children’s interactions with each of their parents.

Dr C considered that given the ages of both children, they currently had only a rudimentary comprehension of time frames and schedules. However, as previously indicated, Dr C did apparently give some credence to N’s apparent level of dissatisfaction with Ms P’s level of involvement in his care. Overall, Dr C considered it preferable that the children be cared for by a parent rather than a professional carer, no matter how competent.

The children were observed to be comfortable and relaxed with their father and Ms C. G was observed to reciprocate his mother’s effusive affection for him. N was more reserved and somewhat aloof in his response to his mother and showed her little affection.

Dr C characterised the children’s recent lives as being marked by tumult and wild change and coloured by significant conflict between their parents. Obviously I concur with this assessment. He acknowledged that it would have been very distressing for the children to have gone to the United States without their father. In all these circumstances, he agreed with Mr Berman that it would be prudent for the court to attempt to minimise the level of change for the children in the future.

However these concerns did not cause Dr C to change his fundamental recommendation in the case, which was that the children needed to spend more rather than less or the same amount of time with their mother in the future.

In reaching this recommendation, Dr C was influenced by his view that G was greatly missing his mother, under the current regime and longed to have more frequent and substantial care with her. N was found to be more ambivalent in his desires and needs, although expressing a preference for a “fair” arrangement.

Accordingly, Dr C opined that a perpetuation of the current arrangement would be distressing to G and would not allow N to rebuild his relationship with his mother, which had been detrimentally effected by the tumult and conflict of the period since August of 2006.

Dr C spent much of his report analysing the logistical circumstances which currently prevail in respect of the children. I think it is fair to say that he was somewhat critical of Mr Morgan for settling the children in T. He also expressed some degree of perplexity at the legal process concerning how the children came to return from the United States in their father’s care. He thought it would have been better to have delayed not only the decision about T but also living arrangements for the children until the mother had returned to Australia.

Dr C thought if the mother could be criticised for her unilateral actions, so too could the father, in “a milder way”, for putting into place his preferred living arrangements for the children. In reaching this conclusion, Dr C seems not to have been aware that Ms C had purchased the T property in January of 2007 and at this stage the outcome of the Hague Convention proceedings in Michigan was uncertain. It also seems to be the case that Dr C had an imprecise understanding of the nature of the Hague Convention proceedings.

However the fact remained that Dr C considered that the children’s current place of residence and the choice of lifestyle of the father and Ms C had “functioned to make the children’s lives unnecessarily complex and arduous with respect to their daily routine, while simultaneously making it practically difficult for the mother to become more involved in the children’s lives.”

Accordingly, at the very least, it was Dr C’s view that it would be in the children’s best interests for the parents to have at the least a shared care arrangement in respect of the children. However, it was Dr C’s view that such an outcome would only be workable if the children went to a school near their mother’s home.

Dr C did not share Mr Morgan’s level of concern regarding there being another significant change in the children’s lives in the form of a change of school. He thought any detrimental consequences which may flow from this were clearly outweighed by the benefits of the children spending more time with their mother. Indeed he considered that the children had demonstrated themselves to be emotionally resilient and adaptive by how well they had coped with the changes in their lives up until this stage.

Dr C indicated that his view was not affected by any consideration of who of the parties could be considered to have been the children’s primary carer in the past. Rather it was influenced by the presentation of the children and what he considered to be their current emotional requirements. In particular, he thought N would adapt to the change and needed to spend more time with his mother so that his relationship with her might be “normalised” and his current level of reserve about her dissipated.

His assessment of the children, confirmed to some extent by Mr Morgan, was that the children made friends easily and related well to their teachers. In addition, given the tender years of both N and G, Dr C was fairly confident that the children would take any change of school in their stride and would adapt well to it, particularly if the change resulted in more parental involvement in the children’s school.

This was one of the major factors which led Dr C to advocate that the children attend a school close to their mother’s home. He was concerned that the father and Ms C’s current onerous work commitments precluded them from extensive involvement in the T Primary School.

In contrast, if the children attended a school near to their mother’s home, her more flexible schedule would enable her to spend time at the school, something she had indicated to Dr C was her preference. In addition, such a school would not be greatly inconvenient, either for Mr Morgan or Ms C, who had to travel in that direction anyway to go to work.

Dr C did not share the father’s view that the mother had displayed a lack of commitment to the children. To the contrary, he considered that the mother, in resettling herself in Australia, in what could only be described as difficult circumstances, had shown a considerable level of commitment to the children. I agree with this assessment. The mother has no family in Australia and prior to 2006 had only a cursory knowledge of it.

Dr C was well aware of the thrust of the father’s criticism of the mother: that she was prone to party; erratic in her previous care of the children; and likely to be strongly reliant on others to provide care for them. However, it was his assessment that the mother had shown signs to him that she gave the children a high degree of priority in her life. In any event, he thought that the outcomes he recommended in the case would give Ms Morgan considerable scope to pursue her social life without any discernable impact upon the children. If a shared care arrangement is the ultimate outcome, this is undoubtedly so.

In his reaching his preferred outcome – a substantial and significant regime with the children living predominantly with the mother and spending alternate extended weekends (Thursday to Monday morning) and the intervening Wednesday and Thursday with the father – Dr C considered and rejected each of the other possible outcomes for the following reasons, settling on his preferred outcome as being the most workable, although far from ideal.

He thought shared care to be less workable than the substantial and significant care regime outlined above because of the logistical difficulties involved, particularly the level of travel involved in the children going to and from school, from one of their parent’s far distant homes, for one entire week of each fortnight.

He was particularly concerned about such a regime, if the children remained at T Primary School, as this would perpetuate his current concerns regarding the children’s before and after school care arrangements as well as the level of travel for them without any significant benefit to them.

He also thought it likely to be very difficult for the mother to get the children to this school, given her place of residence and work commitments. On the other hand, he did not think Mr Morgan and Ms C would have any where near the same degree of difficulty in getting the children to the W Primary School.

Dr C also rejected the prospect of the children living predominantly with the mother and spending alternate weekends with the father as this would constitute too abrupt a change in circumstance for the children, resulting in them spending a radically reduced amount of time with him, an outcome which could not be justified in terms of the children’s emotional wellbeing.

On the other hand, Dr C rejected the current regime as being emotionally unsuitable for the children and involving them being left too much in the care of others before and after school. He also thought it unconducive to allowing at least one parent to be involved in the children’s day to day education regime. Accordingly he recommended that Ms Morgan resume the primary care of the children, something she had clearly indicated she wished to do.

Balancing these competing considerations led Dr C to his preferred outcome which involved a combination of the children spending one extended weekend and an intervening weekly overnight stay with the father but otherwise living with their mother. The outcome was predicated on the basis that it was unlikely that either Mr Morgan or Ms C would or could modify their work regimes in the foreseeable future and the children’s best interest dictated that child care should be minimised for them. This he believed would be preferable to what he described as “a practically unworkable and emotionally demanding (for the children and the parents) week about regime.”

One criticism ofDr C’ report is that he gave no consideration to the mother moving to live closer to T. Presumably, as she is renting, this would not be an insuperable difficulty for her. In addition, if and when Mr W moves to Australia, she may in any event be confronted with a need to move to new and bigger accommodation.

Dr C conceded that he perhaps did not give enough thought to the possibility of the mother moving closer to T. Whilst on the other hand, he acknowledged he had given a great deal of thought to the fact that Mr Morgan and Ms C drove into the suburban area of Adelaide, fairly close to the mother’s current place of residence, on an almost daily basis.

Another criticism of Dr C’s recommendation is that he has not subjected the mother’s work commitments to the same close scrutiny as he has subjected Mr Morgan’s and Ms C’s. The mother is likely to be working after school concludes on at least some afternoons each week and is also likely to be reliant on some degree of after school care.

Somewhat optimistically, Dr C urged the parties to “cooperate in seeking to construct a workable regime based on the children attending a suitable school in the mother’s vicinity. As is apparent from these reasons for judgement, such wished for cooperation is not currently forthcoming and it falls to the court to impose a solution on the parties. Inevitably, whatever is the outcome, one or other, if not both of the parties will feel hard done by, with possible deleterious consequences for the children themselves.

Another criticism raised by the father of Dr C’s recommendations concerns his (Dr C’) failure to recognise the significance of Mr W in the mother’s future plans and the implications of him for the children’s well being. To be fair to the mother, she discussed Mr W with Dr C. She described Mr W as a person who had assisted her greatly, who was exploring the possibility of obtaining a working visa for Australia.

Dr C conceded that he should have asked of the children how they got on with Mr W and any other views they had of him. Accordingly, Dr C acknowledged that this was a shortcoming of his report. Quite probably this shortcoming was not of Dr C’s sole making and the mother’s reticence to raise the issue of Mr W contributed to it.

Dr C also conceded that the introduction of a new partner was likely to be very significant emotionally for the children. However he noted that the children had coped well with Ms C to whom they had readily adapted. Accordingly, Dr C’s guess was that although Mr W might initially be an emotional challenge to the children, they were likely to be able to cope with him, particularly if their relationship with their mother was stabilised.

Mr Berman extensively cross examined Dr C in regards to the major theme of his client’s case – namely the children’s need for stability and continuity of care, which should preclude there being any significant change in arrangements for their care at this stage, unless the children’s best interests specifically and unequivocally demonstrated it.

Dr C acknowledged the children were doing perfectly well at T and that this was a credit to the father’s parenting of them in far from optimal circumstances. Dr C recognised that Mr Morgan had done a good job in stabilising the children’s emotional status when he and they had returned from the United States.

Accordingly Dr C agreed with my assessment of the father that he is a competent and well motivated parent. Dr C also acknowledged that stability and continuity of care were of central importance to children of the ages of N and G.

However where Dr C disagreed with the father was in his (Dr C’) view that the children’s current circumstances are not well settled and stable as their emotional relationship with their mother had been significantly interrupted and disturbed by an enforced period of separation from her care.

From Dr C’s perspective, this was the most important consideration in the case and the one which most needed the court’s rectification. Dr C viewed it as being of no great significance to the children that this period of separation could be in large part be attributed to the mother’s own behaviour in taking N and G to the United States in the first place.

The unspoken theme of Dr C’s report being that he accepted that it was unlikely that the mother would attempt to undermine the children’s relationship with their father in such a significant way again in the future. Although Dr C conceded that the mother’s unilateral behaviour in taking the children to the United States could only be described as extremely poor parenting, by necessary implication he thought this action was not indicative of her attitude towards the responsibilities of parenting generally.

Determining N and G’s best interests – section 60CC

a)The primary considerations

The applicable legislation places two considerations in a position of preeminence – the need to protect the children concerned from harm as a result of exposure to abuse, neglect and family violence; and the benefits of them having a meaningful relationship with both parents.

In this case thankfully neither party raises any concerns relating to the neglect or abuse of either N or G. In addition there are no allegations of family violence. The starting point of both parties is that they should have equal shared parental responsibility for the children. Accordingly the best means whereby the children may have the most meaningful level of relationship with each of their parents assumes paramount importance.

The rationale of the amended provisions of Part VII of the Family Law Act is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flow from them being exposed to their parents in a variety of settings. This I take it is the legislature’s intent by its use of the word “meaningful” in section 60CC(2)(a).

These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting, as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations. In this way, the child is likely to have a more balanced and so richer relationship with each of his or her parents.

The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced.

The court is required to consider the legislature’s intent that the court should, commensurate with the need to protect a child from harm, ensure any orders that it makes result in both the parents of the child concerned being as involved as fully as possible in their child’s life and care [Goode & Goode (2006) FLC 93-286 at 80,901].

The practical underpinning in the legislation of how a relationship for a child with one or either of his or her parents is to be rendered “meaningful”, in the context of a parenting order, is provided by section 65DAA. The emphasis is on time, but not merely on the extent of that time, but rather on its quality and the manner of its utilisation with the child or children concerned.

The court is directed to consider equal time first and only upon its rejection turn to a substantial and significant regime and only after this is ruled out is it authorised to consider some other arrangement. The clear implication is that the legislation envisages an equal time arrangement as being the optimal one for the emotional development of children.

In this case neither party wishes to be cast in what he or she perceives is a subsidiary role to the other in the lives of the children – that is as “contact mum” or “weekend dad”. Both want to be involved as much as possible in every aspect of N and G’s lives.

In my view there is nothing in the evidence led before me to indicate that, practical considerations aside, it would not be in the best interest of these children to have the optimal or most meaningful relationship possible with each of their parents, which the applicable legislation envisages. This means an equal time arrangement or something not far from it.

Both Mr Morgan and Ms Morgan are capable and loving parents. Both have been substantially involved in the care of N and G up to this stage. On any view both children currently have the potential to have a highly meaningful relationship with each of their parents. This will build on much common family history and shared experience. The children love each of their parents and are loved unconditionally in return.

Circumstances, many of the mother’s making but not exclusively so, have arisen to render her relationship with the children less meaningful, on a day to day basis, since March of 2006. I agree with Dr C’s assessment that it is likely to be in the children’s best interests that the degree of meaning in their maternal relationship be reinstated but not at the cost of a reduction in the level of meaning in their paternal relationship.

Accordingly, it is my view that in order for N and G to have the most meaningful relationship possible with each of their parents, it would be in their best interests to spend as much time as possible with each of their parents. Such an arrangement will enable the children to have a sense that both their parents are engaged in all aspects of their lives, both their school lives and at weekends.

The additional considerations

The children’s views

The applicable legislation requires me to consider any views expressed by the children concerned and any factors which may affect the weight to be given to those views, such as the children’s maturity or level of understanding. The legislation speaks of views rather than wishes. The latter is a more concrete concept; the former is more addressed to perceptions and feelings.

Accordingly, a child is not required to make a decision about what is the appropriate outcome for him or her in the particular case. Nor is he or she required to express an explicit wish as to which parent or other significant person he or she wants to live with or spend time with.

However, it seems that the court is required to explore a child’s perception of what he or she feels is likely to be best for him or her. Very often these perceptions will be ambivalent and difficult to express or quantify. This is particularly so with younger children. This does not mean that a child’s view should be disregarded.

To the contrary, over time, there has been an increase in the judicial regard given to the rights of children in proceedings such as these. It is often said that children have a right to be heard. Certainly children’s views are important and requiring of being given “proper and realistic weight” rather than token regard.

It is also impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case. Matters of individual preference are idiosyncratic but no less important for that. It has been said that the process of weighing up a child’s professed view is “a process of intuitive synthesis”. What is done with those views is a matter of common sense in the overall assessment of what is likely to be in a child’s best interests.

The children in this case are of tender years. N is six and G is five. They are too young to readily understand the implications of the current proceedings, particularly time frames and how their care and schooling is to be fitted into the busy schedules of each of the adults concerned in this case.

However, I accept Dr C’s assessment that, at a deep emotional level, G misses his mother and wants to spend more time with her. N’s view is more ambivalent and it is possible that he has chosen to align himself with his father for a number of complex reasons. However, he is not averse to spending at least a bit more time with his mother. He would perceive such an outcome as being fair to all concerned.

In the expression of this wish, I do not think N is making his feelings subservient to the interests of others, particularly his mother. N’s relationship with his mother is complex because of the difficult circumstances which have prevailed since November of 2005 and which have involved a number of intercontinental relocations of the children.

The mother has a tendency to be emotionally demonstrative. A tendency no doubt exacerbated, so far as the children are concerned, by her physical separation from them for the past year or so. N is uncomfortable with the expression of this emotion.

On the other hand, to use Dr C’s expression G “sucks it up like a sponge”. Not withstanding these issues, I do not think it can necessarily be concluded that it is likely that N either wishes to perpetuate the current arrangements or does not want to spend at least some more time in his mother’s care.

Notwithstanding these matters, I acknowledge that I must be careful not to accord unwarranted weight to the views of the children given their respective ages and the conflicted circumstances of their parents.

(b)The nature of the children’s relationship with each of their parents and significant others

As I have already indicated, the children have a close and loving relationship with each of their parents. How could it be otherwise given that the children were cared for by both parents up until their separation and in the period since have spent substantial periods in the sole of care of one or other.

In this case, I think it simplistic to consider that one parent has been the children’s primary or habitual carer. In my estimation, both have been involved to a substantial degree. On any view the children have a highly significant relationship with each of their parents, which any consideration of their best interests dictates should be continued and supported.

Dr C observed the children to comfortable in the presence of their father and Ms C. I accept that the children have readily assimilated Ms C into their lives and enjoy many activities with her. This is to Ms C’s great credit. Hers cannot have been an easy role to have assumed, given the difficult circumstances surrounding the children’s return to Australia, particularly given her own relationship with the father was still in its formative stages.

G’s relationship with his mother is a warm and tender one and Ms Morgan is described by Dr C as being emotionally intuitive. N finds this level of emotional intensity uncomfortable. This does not cause me to consider that N’s relationship with his mother is any less important than G’s is.

To the contrary, I accept Dr C’s assessment that it is likely to be in N’s best interests for his relationship with his mother to be repaired and there are likely to be long term emotional consequences for N if his relationship with his mother falls into abeyance. This is a factor which militates against the continuation of the existing regime.

At the present juncture, N is more aligned with his father. The reasons for this are complex but may not necessarily be sinister. N has a child’s appreciation of the outcome of the Hague Convention proceedings. He knows his mother was at fault.

I do not necessarily accept that the father has consciously tried to influence N against his mother, but N must be aware that his father is not well disposed towards his mother. The current alignment between father and son may well be as a result of shared temperament. Certainly Dr C considered this was likely. Their common temperaments must be taken into account.

Mr W has the potential to be highly significant to the children, if and when he comes to live in Australia and is introduced to them as their mother’s new partner. One of the major weaknesses of the mother’s case is that her lack of candour regarding her relationship with Mr W makes it difficult to assess the type of relationship he is likely to have with the children.

As I have already observed, given Ms Morgan’s age, it is highly likely that, as with the father, she will re-partner, whilst the children remain young. The father’s relationship with Ms C has not proven to be problematic for N and G. I have no reason to consider that the mother’s relationship with Mr W is likely to be fraught with unforeseen difficulties. Certainly Mr Morgan has no specific concerns about him.

The children concerned have a significant relationship with their paternal grandparents, with whom they regularly spend periods of the school holidays. Their involvement in the children’s lives assuages for me concerns raised by the mother that the father has available to him only four weeks leave each year. It is appropriate the children spend as much time as possible, within reason, with their grandparents.

(c)The willingness and ability of the parties to encourage a close and continuing relationship between the children and the other parent

The poor relationship between the parties and the mistrust they have for one another make this a problematic case and so one which is unlikely to have anything other than an imperfect outcome. The parties currently have little capacity for compromise or to make the best of the difficult logistic circumstances which currently confront them in respect of the children’s parenting. Yet both wish to share equally the parental responsibility for N and G, which must mean that they will have to work in tandem in future, in respect of their care.

The father points to the mother’s action in unilaterally removing N and G to the United States as positive proof that the mother has profound deficits in respect of her ability to support an appropriate relationship between the children and him. Certainly it seems to me that Ms Morgan gave little thought as to how N and G would retain their relationship with their father in the extreme circumstances she engineered. This was poor parenting on her part. The legislation requires me to consider the extent to which Ms Morgan has failed to fulfil her responsibilities as a parent [Family Law Act section 60CC(4)].

Ms Morgan deposes that she has learnt a salutary lesson from the outcome of the proceedings in Michigan and what has happened subsequently. I accept that this is so. However, I am left with the uncomfortable feeling that, if Mr Morgan had been unable to bring the Hague Proceedings in the United States, Ms Morgan would have been largely untroubled by the fact that the children’s paternal relationship was so severely compromised.

As a result of what has happened, the father has a strong feeling of antipathy for the mother, whom he regards as untrustworthy and unreliable. In such circumstances, it is hardly surprising that he has difficulty in supporting N and G having a close relationship with their mother. Certainly he has been unwilling to depart much from the bare minimum which the interim orders envisaged.

Accordingly, I consider that both parties have some constraints in their ability to encourage and support N and G having a close and continuing relationship with the other parent. I do not think one of them can be regarded as a greatly superior to the other in regards to the matters which fall for consideration under this criterion.

(d)The likely effect on the children of any change in their circumstances

Dr C describes the lives of N and Mr Morgan, since November of 2005, as tumultuous. In this period they have moved from the United States to Australia with their parents; returned to the United States twice with their mother alone; and then been relocated back to Australia with only their father.

During this same period their parents have separated; their father has re-partnered; and they themselves have experienced being in the sole care of one or other of their parents for extended periods of time. Given their ages and level of intellectual development, they are each likely to have only a rudimentary understanding of what has occurred to them and why. In such circumstances the pros and cons of any significant change for the children must be closely considered by the court.

Mr Morgan urges the court to approach N and G’s situation with the upmost caution. They have been living with him at T since March of 2007. I accept that, by and large, the children have done well in his care and have demonstrated themselves to be adaptable and resilient children. In these circumstances, Mr Morgan asserts that any too precipitate change in the day to day lives of the children is fraught with danger, particularly a change in their school or the place where they predominantly live.

In such circumstances, it is the submission of his counsel that the court should not change the arrangements for the care of the children unless it can be established positively that such a change in arrangement will be beneficial to the children. Mr Berman contends that there is no such positive evidence available to the mother in this case.

The weight to be given to a status quo in respect of arrangements for the care of children is a matter of recent and significant judicial comment by the Full Court of the Family Court, particularly in respect of the legislative changes brought about by the Family Law Amendment (Shared Parental Responsibility) Act.

Status quo or the benefit of children continuing to live in a well settled environment remains an important consideration for the court in reaching the final outcome which is likely to be in the best interests of the child or children concerned.

But the court is directed to guard against the impulse to simply preserve such situations by rote without giving proper and required consideration to the overall structure and intent of the legislation, which favours the substantial involvement of both a child’s parents in that child’s life, most usually via the mechanism of a shared parenting regime or a significant time sharing arrangement.

In this case, there are no protective concerns regarding N and G’s best interests. Without wishing to downgrade the benefits which have come to N and G from the continuity of care provided by Mr Morgan since March of 2007, in my view, there are also likely to be significantly greater benefits to the children in extending the time they spend with their mother, within the parameters provided by the applicable legislation.

I accept Dr C’ evidence that G actively wants to spend more time with his mother. The father urges me to be troubled regarding the reserve N has displayed towards his mother and argues that I should regard it as an indicator of a relationship in trouble and one which should not be unduly forced along, as Dr C would have it.

The matters which fall for consideration under this criterion, like all the other criteria under the Act, must be carefully balanced against one another. They cannot be twisted and turned, like the surface of a rubik’s cube, to achieve a perfect result. Inevitably the exercise involves an element of compromise – an attempt to find the least bad result.

I accept that Mr Morgan and Ms C have done a good job in caring for the children, in challenging circumstances, since their return from the United States and by and large N and G have done well. However, that of itself is not sufficient justification for the maintenance of the existing status quo. The court must balance not only the detriments which will come from a change but also the benefits.

The benefits which will come to the children are likely to be that they will have a fuller and more natural relationship with their mother, who has been a significant parental figure in their lives since the date of their respective births. Such involvement in their lives may also serve to lessen the sense that their family is in someway fractured. I think these benefits are likely to outweigh any negatives for the children concerned.

It is in this sense that Dr C argues that N and G cannot be regarded as well settled presently. He argues that they are missing one of the previously consistent and central elements of their lives – the active presence of their mother. I find it difficult to resist the logic of this argument.

In the best of all possible worlds, it would be desirable that changes of school be avoided for children as much as possible. However change is an integral incident of life, for children as much as adults. I accept Dr C’s evidence that the children are at the stage of life when it likely for them to be able to change school with a minimum of emotional disruption. Their friendships are not fixed and as such they are likely to form new ones quickly, whatever is the outcome of these proceedings.

The father is critical of the mother for being unable to provide precision in regards to her future plans, particularly the implications for the children’s care of her marriage to Mr W. In particular, he argues that there is a good chance that the mother will be forced to move to larger accommodation and this will provide still more disruption for the children. Whilst on the other hand, his accommodation is secure and stable.

The possibility that the mother will move cannot be ruled out. Where she will move cannot be known at this juncture other than she asserts that she has a preference to remain living in the W area, which she enjoys. I think the possibility of the mother moving away from this general area of Adelaide falls into the realm of unhelpful speculation and, as such, is not useful in determining the ultimate outcome of this case.

(e)The practical difficulties and expense of the children spending time and communicating with each of their parents

There are no easy answers to the problems created by the distance between the parties’ respective homes; the onerous travel for the children involved; the parties’ mutual antipathy and the resulting communication difficulties. However these issues need to be put into context.

It is around fifty kilometres between the parties’ two homes – a drive of up to forty plus minutes depending on traffic. Both parties have access to motor vehicles. The father and Ms C are content to do at least a similar drive, on a daily basis, in their attempt to balance their financial commitments with the rural lifestyle which they wish to lead.

The internet site, www.whereis.com, gives the distance between the parties’ two homes, via its recommended route as being 48.58 kilometres and estimates the trip time as thirty eight minutes. I appreciate that the father believes that the trip takes 45 to 50 minutes. The information I obtained from the internet is annexed to these reasons for judgement. I believe I am entitled to take judicial notice of such information.

In my view, the distance involved in this case is one that many separated parents, in the larger urban centres of this country, regularly drive in order to maintain their relationships with their children. Movement of families in Australia is very common – from suburb to suburb; from state to state; and from city to town, within a state. Such moves occur for many reasons.

One of the major precipitating factors for such moves is relationship failure. When marriages break down, it is very often a corollary of that break down that one party moves away from the other. The tyranny of distance, in maintaining child/parent relationships, develops by degree. I do not regard fifty kilometres as an inordinate distance by any means. Certainly not one which is likely to operate to prevent the children maintaining regular relations with each of their parents.

Travel by motor vehicle, on a daily basis, is a commonplace feature of daily life. In addition, in this day and age, most citizens have access to comfortable motor cars, which are equipped with a variety of electronic diversions, for both driver and passenger. As such, travel by car is not as onerous as it once was, either for adults or children.

I will turn to issues of more immediate practicality, in terms of there being either a shared care or substantial and significant time arrangement in due course.

The capacity of the parties to provide for the children’s emotional and educational needs

I consider that both parties are capable of providing for the children’s emotional needs, although perhaps in different ways. The mother is effusive in her displays of affection. The father is more reserved. These differences are as a result of their different temperaments. For reasons already provided, I consider that both have much to offer the children and the love and care they are able to provide for N and G are likely to be complementary.

Neither party is likely to neglect the children’s education in future. I accept both are desirous of the children progressing as far as possible at school and afterwards and achieving their full educational potential. The father’s work schedule makes it difficult for him to be involved in the T Primary School on a day to day basis. I do not interpret this as disinterest.

Similarly the mother’s commitments make it difficult for her to get out to T. One of the benefits of the outcome proposed by Dr C is that at least one of the children’s parents is likely to become more involved in the their day to day education and to be a regular presence in the classroom, at least whilst N and G are in primary school.

(g)The children’s maturity, sex, lifestyle and background

I do not think there is anything specifically regarding the children’s ages, sex, lifestyle or background which is particularly relevant for consideration under this criterion.

Aboriginality

This is not a relevant consideration.

The attitude that each party has displayed to the responsibilities of being a parent

The father points to the matters which fall for consideration under this heading as having considerable significance in the case. It is his submission that the mother’s wanton disregard for her responsibilities as a parent, as exhibited by her clandestine relocation of the children to the United States must call into question Ms Morgan having any extensive involvement with N and G from now on. Certainly, such considerations, he argues, should militate against either a shared care arrangement or the children spending substantial and significant periods of time with her in future.

On the other hand, it is Mr Morgan’s position that he has shown an exemplary attitude to the responsibilities of being a parent. In difficult circumstances, he retrieved the children from the United States and single handedly settled them into a new environment at T. The evidence indicates that the children have adjusted well to this change.

He refutes any suggestion that he should be criticised for deciding to live with Ms C, at her recently purchased home at T, when he did, given that he did not know what the mother’s future plans were. In such a situation, he submits that it was reasonable for him and the children to live with his partner at T, particularly given his predilection for a rural life.

The mother behaved badly in September of 2006. She gave scant thought as to how the children could maintain their relationship with their father. She showed little regard for either the children’s feelings or Mr Morgan’s.

If Mr Morgan had not commenced proceedings in the United States, with the assistance of the Australian Government, I suspect that Ms Morgan would not have been particularly proactive in searching for ways to enable N and G to spend time with their father.

Certainly, it would seem the onus would have been on Mr Morgan to come to Michigan to see them. Clearly Ms Morgan herself had no intention of returning to Australia and it would have been difficult and expensive for the children to travel independently.

I am prepared to consider that Ms Morgan’s actions in September 2006 were hasty and ill-considered rather than evidence of a clear desire on her part to sever all future relationship between the children and their father.

It is true that, once Mr Morgan arrived in the United States, she was willing to allow the children to spend time with their father. It is also true that she told Mr Morgan where she and the children were in the United States and made little attempt to conceal herself. Her actions in going to the United States were selfish and centred on her own needs but they were not in the worst category of international child abduction.

In the unhappy circumstances, which surrounded the end of the parties’ marriage, Ms Morgan did what many spouses do – she returned to an environment with which she was familiar and where she could gain support from those she holds dear. I bear in mind that, at this stage, Ms Morgan had few connections in South Australia.

The question therefore is the significance to be given to one isolated but significant act of mal-parenting. The purpose of these proceedings is not to punish Ms Morgan for her previous actions. Rather it is to ensure that the children concerned have the optimal parenting arrangements within the legislative framework envisaged by the Family Law Act.

I accept Dr C’s assessment that, since April of 2007, the mother has shown significant commitment to the children. She has elected to return to Australia, in somewhat difficult circumstances. With little financial backing and personal support, she has found employment and accommodation for herself in Adelaide.

I accept her evidence that she no longer harbours any plans to return to the United States and accepts that the children’s lives are grounded in Australia.

In these actions, I accept that she has demonstrated that she gives N and G a high level of priority in her life. Accordingly, I do not accept that the mother’s attitude to the responsibilities of being a parent must be regarded as being irretrievably flawed.

Any family violence involving the children

Any family violence order

There are no family violence orders in these proceedings. Neither party has raised any issues to family violence. These considerations are not relevant.

Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings

Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.

The parties’ parenting relationship with one another is poor and likely to remain so. These are not good harbingers for the avoidance of further litigation. However, the parties both agree that they should have equal shared parental responsibility for N and G. Accordingly, whatever is the precise outcome in this case, they will be compelled to have a significant degree of involvement with one another for the foreseeable future.

An order which provides for shared parental responsibility requires that parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [Family Law Act section 65DAC].

Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.

Given that the parties will have equal shared parental responsibility for N and G, it is difficult to see that any one particular outcome is necessarily less likely to lead to the institution of further proceedings than another. For example, if the children live predominantly with the father, there are likely to be issues raised regarding the mother’s involvement with their school. On the other hand, if the children reside predominantly with the mother or a shared care arrangement is created, there will be issues between the parties regarding transport arrangements and the like.

In short, there is no perfect outcome available in this case and whatever orders the court makes are likely to cause problems and irritations between the parties. The solutions to these difficulties is likely to reside with the parties themselves, rather than the exact form of the orders. Regrettably, given the adversarial approach the parties have adopted to the proceedings, one of them and quite possibly both will feel hard done by at the result.

Conclusions on section 60CC factors

It is not necessary for me to consider the application of the presumption in section 61DA to the circumstances of this case. The parties concede the presumption applies. They each propose that they should have equal shared parental responsibility for N and G. I do not think that there are any considerations relevant to the children’s best interests to preclude the presumption.

Accordingly, the next part of the exercise is to consider what should follow from that presumption. The exercise of the presumption is mandated by section 65DAA. I am required to consider an equal time arrangement first. It is only when that arrangement is ruled out, on the basis of a proper consideration of the children’s best interest and/or reasons of practicality that the court is directed to turn to consider a substantial and significant time arrangement.

Accordingly, the court is directed to consider an equal time arrangement first. On the rejection of this option, it must then consider a substantial and significant time arrangement. It is only when these outcomes are specifically ruled out that the court is at liberty to consider other arrangements.

The precedents of the court’s considerations are strictly stated. This is in keeping with the overall legislative intent of the Family Law Amendment (Shared Parental Responsibility) Act 2006, which favours the substantial involvement of both parents in their children’s lives.

It is of significance that the applicable legislation requires the court first to consider making an order for equal time before turning to consider substantial and significant time. The Full Court in Goode has made it clear that this is an active task, rather than a tokenistic or mechanical one, which must be undertaken within the overall legislative framework of Part VII of the Act. In Goode, the Full Court found the meaning of “consider” in section 65DAA:

“… [suggested] a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s 65DAA (1)(a), being the best interests of the child, and s 65DAA (1)(b), reasonable practicability, are met. The same considerations apply to s 65DAA(2).”

Accordingly the intellectual process required by section 65DAA is more than an active thought process in the abstract sense. Rather it is one which is to be directed to the consideration of a specific objective, namely an order resulting in either equal time or substantial and significant time. This interpretation suggests that it is to be taken that it is the intention of the legislation that the exercise of the discretion, in the broad sense, will more often than not lead to such an outcome.

Having considered all the relevant section 60C factors, I consider that it would be in N and G’s best interests if they spent equal periods of time with both their parents. I reach this conclusion because of the significant and loving relationship both children have with each of their parents and my view that both Mr Morgan and Ms Morgan are equally well placed to provide for the children’s needs.

Accordingly, whether such a regime is implemented must depend on considerations of reasonable practicality and the application of section 65DAA(5), which sets out the matters to which the court must have regard in determining whether such an arrangement is reasonably practicable.

Considerations of practicality – section 65DAA(5)

The parties’ homes are fifty or so kilometres apart. It is not an insignificant distance. Accordingly, there is the possibility of the children commuting this distance, on a twice daily basis, in one week of each fortnight during school terms.

As such, they are likely to spend a significant proportion of each day in a motor vehicle. It is not an ideal arrangement by any means, but this case is not one which is likely to yield a perfect outcome.

Whatever is the outcome in this case, the court (and so the parties) will have to confront the distance involved and the implication it has for the appropriate school for the children to attend. The father argues for T Primary School and the children having to travel the distance only on one weekend of each fortnight, because they will be living predominantly with him.

This would be very far from either a shared care arrangement, which I consider the best outcome for the children, apart from considerations of practicality and also very far from the substantial and significant time arrangement, which Dr C recommends as the best and most workable outcome for both the children and the parties themselves.

Accordingly, I do not consider that it would be in the best interests of N and G to reject a shared care arrangement, on the basis of the practical implications of the distance between their parents’ respective homes alone.

I reach this conclusion because I do not think that either the distance and time likely to be involved in travel is unacceptable, when balanced against the other considerations arising pursuant to section 60CC.

In my estimation, the time involved in travel is not so great that a shared care arrangement must be automatically ruled out on practical grounds. I reach this conclusion, in part, because both the father and Ms C find a similar journey to be acceptable for themselves and they will be driving towards the mother’s home.

This consideration brings into focus the most significant practical difference evident in the personal circumstances of each of the parties. Mr Morgan (and Ms C) are committed to a daily commute in between Adelaide and T. Ms Morgan has no reason to go to T, apart from any commitment she has to N and G. The same cannot be said of Mr Morgan.

If either a shared care arrangement or a substantial and significant time arrangement is to be preferred, considerations of practicality would seem to dictate that the children should attend a school closer to the mother’s home than the fathers. The father and Ms C have a pre-existing commitment to such travel, the mother does not.

The parties’ present capacity to implement either a shared care arrangement or a substantial and significant time arrangement appears to me to be compromised. These proceedings were hard fought. Both parties struck me as being somewhat stubborn and unwilling to compromise easily. The mother’s embrace of Dr C’s recommendation appears opportunistic. She was willing to abandon her professed commitment to shared care, when she perceived the tide of events was moving in her favour.

In addition, it is also self apparent that the parties do not communicate well, a state of affairs which is unlikely to change significantly in the short to medium term. Any kind of arrangement, which involves the children having essentially two homes, which are widely separated, is likely to throw up all manner of difficulties.

As the children grow older, they will be involved in extra mural activities. They will have sporting matches and training to attend. Inevitably this will involve the children having to be taken to and collected from various locations at differing times.

In addition, the children will have homework. Books and sporting equipment will have to be transported to and from school. Inevitably items will be forgotten. Small domestic crisis, important from the children’s perspective, will have to be solved, often at short notice. It is patent to me that the parties do not have the kind of empathetic or compromising relationship that will make the solution of these kinds of issues easy.

Most fundamentally, I have to assess the impact of these kinds of issues upon the children concerned. In doing so, I must balance my assessment of how the children’s interest will overall be best served with the difficulties these practical issues are likely to throw up. It is not an easy task.

The parties do not have anywhere near the ideal circumstances, which would make the assumption of a shared care arrangement by the court largely automatic. To the contrary, there are many logistical factors which militate against such an arrangement.

On the other hand, the children’s best interests, particularly their need to have a meaningful relationship with both their parents, would seem to dictate such an arrangement, which is in keeping with the legislative intent applicable. Certainly this was Dr C’ view.

In my estimation, the father’s preferred outcome places too high a premium on issues of practicality (and his own personal convenience) and gives too little regard to the children’s best interests, particularly in terms of their need to spend more rather than less time with their mother.

In my view, the obvious practical difficulties in this case are not so great that the children spending either equal time or substantial and significant time, with both their parents, should be ruled out because of them.

As I am at pains to point out, I am required to consider an equal time arrangement first. In my estimation, such an outcome would be unworkable if the children continue to attend at the T Primary School.

In such a scenario, in the week that the children were living with their mother, Ms Morgan would have to make the twice daily commute from W to T and vice-versa. She would have no other cause to go to T and would have to return to G for her work. Potentially she would be driving 200km per day. It seems difficult to see how either Mr Morgan or Ms C could ease the burden.

In addition, if the children remained at T, there would be none of the benefits, which Dr C hoped would come from the mother being more involved in the children’s education. The children would still have to spend time in before school care and the difficulties of Ms Morgan being able to get to the school would remain.

Dr C has been criticised for attempting to find a solution to the logistical difficulties which arise in this case. This exercise led him to recommend a change in location of the children’s school. I do not share the criticisms of Dr C. My considerations in this case have led me to take the same path.

Having considered the best means of ensuring both parents are substantially involved in the lives of their children, with the least practical difficulty being occasioned to all concerned, it seems to me unavoidable that the children’s school should be changed to one closer to the mother’s home.

Such change can be made at or near the commencement of the school year. The children are of an age when they are likely to be able to accommodate such a change without an unacceptable level of stress or dislocation being occasioned to them. It seems likely that such a change will have the added benefit of Ms Morgan being able to be more involved in the children’s education and probably it will mean that the parties will have less recourse to both before and after school care.

Having reached this difficult, and I concede contentious conclusion, I must consider the implications of it, so far as a shared care arrangement is concerned. It will mean the children spending about an hour and a half in the car travelling each day for one week of each fortnight. It does not necessarily mean that the children will be unable to play football at T on weekends. I do not think that it is an outcome which necessarily should be ruled out, on practical considerations.

The major advantages of Dr C’s proposal, as adopted by Ms Morgan, are that the children would be travelling much less and there would be less scope for contention to arise between the parties. However, such an outcome could only come about at the price of reducing the children’s current level of relationship with their father. I am concerned that this would not be in the children’s best interests.

To summarise, a shared care arrangement would appear to be workable, only if the children’s school is changed to one closer to the mother’s residence. The father’s present employment arrangements render this a workable outcome, although it would entail much travel for the children. There would be some short term dislocation to the children because of the change of school. However, they are likely to adjust to this change comparatively easily.

In spite of my misgivings about the amount of travelling involved, I am not persuaded that a shared care arrangement should be ruled out on the grounds of practicality alone. Whatever outcome is considered, the parties will still have to work closely together and the children will have to move regularly between two households, which share a mutual antipathy.

For the reasons already provided, I am not persuaded that these difficulties are so extreme, in the present case, that they should dictate the children living predominantly more with one parent than the other, as this outcome would be contrary to the best interests of the children concerned.

The mother’s preferred outcome would reduce the children’s travelling time but would not necessarily reduce the other logistical issues involved. In addition, the father would be disappointed with such an outcome. It would only be achieved at the price of substantially reducing his time with the children. Given the circumstances of this case, I do not think that this is an outcome, which could be justified on a proper consideration of the children’s best interests.

There is the option, advocated by neither of the parties nor Dr C, of the children continuing to live with the father and spending substantial and significant time with the mother on a long alternate weekend and on one other overnight period in the other week of each fortnight. Such a scenario would encompass the children remaining at the T school, with all the benefits of continuity this would entail.

However, on the basis of my consideration of the section 60CC factors, it would not be the best outcome for the children. It would not increase the children’s level of relationship with their mother, which Dr C believes is necessary at the present time. In addition, from the mother’s perspective, such an outcome would involve considerable practical difficulties. In addition, there would not be the spin-off effect of the children’s level of after school care being reduced.

The conflict between the parties has encouraged them to take polarised positions. The various outcomes in this case cannot be twisted, like a rubik’s cube, to achieve a perfect outcome, which is satisfactory to all.

I have come to the conclusion that a shared care arrangement, based on the children spending alternate weeks with their parents during term time, as well as half of each school holiday period, is likely to be the best outcome for the children at this juncture. I am not persuaded that such an outcome should be ruled out on practical grounds, provided the children are enrolled in a school near to the mother’s home.

Accordingly, it is not strictly necessary for me to consider an outcome based on the children spending substantial and significant parent with one or other of the parties. As I have already indicated, the structure of the Act directs me to consider equal time first. In any event, I am not persuaded that such an arrangement would better serve the interests of the children or necessarily involve significantly less practical difficulties.

For the reasons provided previously, I do not think the outcome pressed by the father would serve the children’s best interests particularly as G wants to spend more time with his mother. In my view, it would create unwarranted restrictions on the children’s level of relationship with their mother. In addition, it would not be in keeping with the spirit of the parties’ agreement that they should have equal shared parental responsibility for N and G.

The outcome pressed by the mother and supported by Dr C would reduce the level of the children’s relationship with their father. For all manner of complex reasons, N is currently aligned with his father and at risk of becoming estranged from his mother. To my mind, in these circumstances, there are risks in this course.

This leaves the option of an equal time arrangement, originally pressed by the mother, when apparently she was not overly concerned by practical concerns, albeit that she also pressed for a change of school and was presumably aware that the burden of the travel it would involve would fall more on the father and Ms C’s shoulders then hers.

I think it the best outcome for N and G. I am concerned that it will satisfy neither Mr Morgan nor Ms Morgan. I do not think the travelling involved for the children should rule it out, particularly as the commitments of Mr Morgan and Ms C can accommodate it into both theirs and the children’s schedules.

It was Dr C’ view, which I share, that the children should at the very least spend equal periods of time with their mother and father. Issues of practicality tipped Dr C in favour of the children living more with their mother but he was, at the same time, concerned at the children’s relationship with their father being unduly reduced.

The arrangement I propose preserves the relationship the children have with each of their parents. I think it the best outcome for the children, after having considered all the relevant matters pursuant to section 60CC. There are practical difficulties implicit in such an arrangement but these arrangements would remain whatever the outcome.

The most likely solution to these problems is in the parties themselves working to improve their relationship. These may seem naïve or unduly idealistic sentiments but I think them likely to be true.

I acknowledge that I cannot foresee all the practical difficulties which will arise from a shared care arrangement. Both Mr Morgan and Ms Morgan (and indeed Ms C) have busy and stressful lives. It is the perennial complaint of the times that it is difficult and increasingly becoming more difficult to balance the demands of work and family life.

However, it does not seem to me to be unduly onerous for Mr Morgan to drop off the children, either at their mother’s home or at their school, on five mornings each fortnight, during term time and for Ms C to collect them, at the conclusion of their school days, either from their school or Ms Morgan’s home, whichever is the more convenient.

Each of them will be doing a drive of similar magnitude in any event. The drive will be a significant one for the children. But I do not accept it must necessarily be dead time for them. They can read books, play with electronic device, converse with their father, Ms C and each other, perhaps even watch DVD’s, a popular diversion for the young. As I remarked earlier, travel by car is not as onerous as it once was.

For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the precedingthree hundred and thirty-six (336) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: P Smith

Date: 30 January 2008


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