ANAND and LAL

[2023] FCWA 6

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: ANAND and LAL [2023] FCWA 6

CORAM: O'BRIEN J

HEARD: 17 JANUARY 2023

DELIVERED : Ex tempore

FILE NO/S: 1636 of 2017

BETWEEN: MS ANAND

Applicant

AND

MR LAL

Respondent

Catchwords:

PARENTING - Where the wife seeks interim orders permitting her to relocate with the child to [State A] - Where the child has only recently commenced overnight time with the husband - Where there is no evidence as to the financial circumstances of the parties to enable a consideration of the feasability of the wife's proposals for the child to travel to spend time with the father - Triable issues - Turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr R Van Der Merwe
Respondent	:	Self Represented Litigant

Solicitors:

Applicant	:	Calverley Johnston Lawyers
Respondent	:	Self Represented Litigant

Case(s) referred to in decision(s):

Banks & Banks (2015) FLC 93-637

Bielen & Kozma [2022] FedCFamC1A 221

Dundas & Blake (2013) FLC 93-552

Eaby & Speelman (2015) FLC 93-654

Goode and Goode (2006) FLC 93-286

Paggett & Cable (2015) FLC 93-670

SS & AH [2010] FamCAFC 13

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Anand and Lal has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court’s Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2012 (WA).

1[Ms Anand] ("the wife") and [Mr Lal] ("the husband") are the parents of one daughter, [Child A] born [in] 2014. They were married in December 2010 and separated in September 2016.

2The parties were involved in proceedings in this court which commenced in March 2017. After those proceedings were resolved, further proceedings were commenced in October 2019. [In] December 2019, orders were made by consent for Child A to live with the wife and spend time with the husband each alternate weekend on Saturday and Sunday from 9.00 am to 5.00 pm, and at such other times as might be agreed. Those orders remain current.

3On 28 February 2022, the wife commenced the current proceedings. She seeks the discharge of the existing orders, sole parental responsibility, and that Child A move with her to live in [State A]. That application is opposed by the husband, who proposes in his amended response filed on 16 August 2022 that orders be made for equal shared parental responsibility, and for Child A to live equally with both parents.[1]

[1] For the purpose of these short form reasons, it is unnecessary to replicate the detailed final orders sought by each party

4The husband remarried in December 2018. He lives with his wife [Ms B].

5The wife remarried in February 2019. Her husband [Mr C] is originally from State A and has family there. He relocated to [City A] in June 2022, on his evidence to care for his 75-year-old mother who has chronic health issues, does not speak English and does not drive. On the wife's case, Mr C's sister was initially caring for his mother, but became unable to do so.

6The matter presently requiring determination is the wife's application for orders to be made on an interim basis facilitating her immediate relocation to City A with Child A. I propose to deliver reasons in short form as permitted by s 69ZL of the Family Law Act 1975 (Cth) ("the Act").

The relevant legal principles

7The Court must be guided by the objects of Part VII of the Act and the principles underlying them.

8Section 61DA requires the Court, when making a parenting order, to apply a presumption that it is in the best interests of the child for her parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or another relevant adult, has engaged in abuse of the child or family violence.

9Section 61DA (3) provides that the presumption applies when the court is making an interim order, unless the court considers it would not be appropriate in the circumstances. The section provides a discretion "not to be exercised in a broad exclusionary manner, but only in circumstances where the limited evidence may make the application of the presumption, or its rebuttal, difficult."[2]

[2] Goode and Goode (2006) FLC 93-286.

10If the presumption applies, it may still be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. The clear legislative intent is that the statutory presumption is of central importance. Explicit and cogent reasons are required to displace the presumption.[3]

[3] Dundas & Blake (2013) FLC 93-552; Paggett & Cable (2015) FLC 93-670[39].

11In the present case, neither party seeks an order as to parental responsibility on an interim basis. The considerations mandated by s 65 DAA accordingly do not apply.

12In determining what is in a child's best interests, the Court must consider the matters set out in s 60CC. While those matters are divided in the legislation into primary and additional considerations, the primary considerations do not necessarily outweigh any combination of the additional considerations. The issues that are joined between the parties will dictate which s 60CC factors are relevant.

13The requirement to consider each matter set out in s 60CC does not mean that each factor must be expressly discussed in a judgment, where the factor in question has no sufficient relevance to displace the determinative significance of factors specifically discussed.[4]

[4] Banks & Banks (2015) FLC 93-637, Bielen & Kozma [2022] FedCFamC1A 221.

14In a parenting case where the proposals of one party involve the relocation of the child, there is no presumption against an order being made which permits relocation, nor is there a presumption in favour of a parent with whom the child predominantly lives at the time of or prior to the application. The parent wishing to move does not need to demonstrate "compelling" reasons to justify the proposed move, and the child's best interests must be weighed and balanced with the proposed relocating parent's right to freedom of movement.

15The circumspection with which findings on an interim hearing must be couched is well-established and remains "no matter how firmly a judge's intuition may suggest that the finding will be borne out after a full testing of the evidence".[5] That said, in interim proceedings the court is frequently required to "weigh the probabilities of [the] competing claims and the likely impact on [the] children in the event that a controversial assertion [was] acted upon or rejected".[6] Evidence may not simply be "disregarded" merely because facts are in dispute, leaving the interim determination to be made "solely by reference to the agreed facts".[7]

The proposals of the parties

The wife

[5] SS & AH [2010] FamCAFC 13, [88].

[6] Ibid [100].

[7] Eaby & Speelman (2015) FLC 93-654; [18].

16The wife proposed orders as set out in a minute filed yesterday. Having identified her proposals by reference to that minute, it is not necessary for me to set them out in detail. The core elements of her proposals are:

1.That Child A should live with her, including upon her relocation to State A, and that she should be permitted to relocate with Child A no earlier than 28 February 2023 and no later than 15 April 2023 "to allow for [Child A] to get accustomed to spending overnight time with [the husband]", and to enable enrolment in school in [City A] at the commencement of term two this year;

2.That between now and her proposed departure, Child A should spend incrementally increasing time with the husband such that by the time school commences she will spend alternate weekends with him from 3.00 pm Friday to 5.00 pm Sunday for two occasions, and thereafter alternate weekends from after school on Friday until 8.00 am on Monday. I was advised from the bar table that things have moved on somewhat from that initial proposal which was set out in a minute circulated prior to Christmas;

3.That to facilitate that, the husband organise, pay and attend counselling sessions with Child A and her treating psychologist [Ms D] as recommended by Ms D;

4.The wife then sets out detailed proposals as to the time Child A should spend with the husband, and her communication with him, predicated on the relocation occurring in the timeframe she has proposed. In a significant shift from what was earlier proposed, she now proposes that Child A should spend time with the husband in Perth for one week during each of the short school holidays at the end of terms one, two and three, and for half of the summer school holidays. She proposes that the husband pay Child A's fares at first instance, but that she reimburse him for one half of those costs within two weeks of receiving the relevant invoice, and that for the first occasion only she be responsible for the expense of an accompanying person in both directions. Thereafter, she proposes that the husband be responsible for organising for Child A to be accompanied on all flights from City A to Perth, and that she be responsible for organising for Child A to be accompanied on all return flights.

The husband

17The husband proposed orders as set out in his minute filed yesterday. Again, having identified his proposals by reference to that minute, it is not necessary for me to set them out in detail. The core elements of his proposals are:

1.That relocation should not be permitted, but that Child A should live with the wife in Perth pending trial;

2.That Child A should spend time with him from 10.00 am on Saturday, 21 January 2023 until 5.00 pm on Monday, 23 January 2023, from 3.00 pm on Friday 3 February 2023 until 5.00 pm on Monday, 6 February 2023 and from after school Friday on 17 February 2023 until 6.00 pm on Sunday 19 February 2023;

3.That Child A's time with him should be "incrementally increased to work towards [her] being able to spend at least three to five consecutive nights every fortnight" with him, and to half of school holidays; and

4.That he and Child A should communicate by video call initiated by him each Tuesday and Thursday between 5.00 pm and 6.00 pm, and on Child A's birthday and Christmas day, with correlating orders for Child A to communicate with the wife if in his care on those days.

Matters not in dispute

18Both parties propose that existing orders dated December 2019 be discharged. They proposed identical handover arrangements while Child A is living in Perth. They sensibly agreed orders as to the provision of information about their own contact details, Child A's schooling, extracurricular activities, health and the like. They agreed that they should do all things necessary to enable a passport for Child A to issue, and that the wife should retain it.

19Both parties also propose orders for regular communication between Child A and the husband, in virtually identical terms, regardless of where she is living. The wife proposed orders requiring the husband to engage with Child A's psychologist as and when recommended by that psychologist; at the hearing this morning the husband confirmed his willingness to do so.

20It was also common ground that, since the filing of the affidavit material and since the wife's minute of proposed orders was initially circulated between the parties, Child A has commenced spending overnight time with the husband, and that is going well. Against that background, counsel for the wife indicated the wife's agreement to specific orders sought by the husband for the progression of overnight time over the next few weeks.

21Apart from the core elements of the competing proposals, there are a number of matters of detail in dispute between the parties which will be addressed as needed later in these reasons.

Evidence relied upon

22The wife relied upon:

1.Her case information affidavit filed with her application;

2Her affidavit filed on 25 July 2022; and

3.Affidavit of her husband Mr C filed 25 July 2022.

23The husband relied upon:

1.His case information affidavit filed with his initial response;

2.His affidavit filed 16 August 2022;

3.Affidavit of his mother [Ms E] filed 16 August 2022;

4.Affidavit of his brother [Mr F] filed 16 August 2022; and

5.Affidavit of his wife Ms B filed 16 August 2022.

24In addition to the materials filed by the parties, I received into evidence the case assessment conference report prepared by a family consultant following the conference [in] July 2022.

25The court also has the benefit of:

1.The affidavit of the Single Expert Witness ("SEW") [Ms G] annexing her report dated 11 November 2022; and

2.A further affidavit of the SEW filed 23 December 2022 clarifying certain matters.

The wife's evidence and submissions

Family violence

26The wife alleges that the husband perpetrated physical, emotional and financial abuse during the relationship, ultimately resulting in the separation. She alleges emotional abuse including threats of suicide. She alleges that in or about July 2017, the husband attended at her home with a group of five young males and made various threats, and admitted that he was tracking her movements. On her evidence, she contacted the police after that incident. She asserts that she has accordingly limited her interactions with the husband since separation to matters regarding Child A.

27I note that the court's request for any relevant information from the Western Australia Police did not disclose any recording of family violence incidents or criminal history for either party.

The care of Child A, relevant relationships and other matters

28The wife says, and it appears to be common ground, that since Child A's birth she has been her primary carer. She alleges that the husband was not a particularly involved father prior to separation, notes the existing orders which were made by consent, and says that there have been numerous occasions where the husband has cancelled his scheduled time with Child A.

29She says that Child A is closely bonded to her, has an excellent relationship with Mr C who is described as her "primary father figure" and is not close with the husband. She noted that Child A has not at the time she swore her application had not spent overnight time with the husband.

30She says that the husband's conduct has no regard for Child A's age and state of development and has an emotional impact on her. She says that he is insistent on his "rights" as Child A's biological father, discusses adult issues with her, and seeks to insist that she not refer to Mr C as "daddy". She says that the husband makes his dislike for, and resentment of, Mr C clear including in Child A's presence.

31The wife says that Child A has suffered anxiety, for which she has facilitated counselling. On her case, Child A has expressed views supportive of the relocation, and is missing Mr C.

32She says further that she and her husband primarily provide for Child A's support, and that the husband is assessed to pay minimal child support only of some $37 per month.

33She says that she has no family in Australia and is reliant on Mr C for family support. Mr C has family in City A. She says further that appropriate arrangements for Child A can readily be made in City A, and that she has already identified a suitable school. She says that because Mr C has already moved, she has had to reduce her work hours in Perth so as to undertake care of Child A, school drop-offs and the like, with which he previously assisted.

34It may fairly be observed that, while the wife's evidence is as just summarised, her proposals updated only yesterday are less consistent with that evidence than the proposals advanced at the time it was given. It does appear that the wife has had regard to the evidence of the SEW in formulating her current proposals, notwithstanding her earlier evidence.

The evidence of the wife's witness

35It is unnecessary for the purpose of these short form reasons to summarise the evidence of Mr C other than to note that it is supportive of, and consistent with, the evidence of the wife.

The husband's evidence and submissions

Family violence

36The husband denies the wife's allegations of family violence, including financial abuse. He denies any police involvement and says that the incident in July 2017 has been mischaracterised by the wife, and simply involved him attending the home with friends to explain to the wife's family that he had left the family home voluntarily. He denies any threats or attempts of suicide.

The care of Child A, relevant relationships and other matters

37The husband says that he has a close and loving relationship with Child A, is an involved father, and has a settled home environment with his new wife. He says that his brother and sister-in-law and their young children live nearby, and that Child A spends time with them and has the benefit of extended family contact.

38He says that he was more heavily involved in Child A's care prior to separation than the wife would assert, and that his parents were also heavily involved in her care during a period of nearly 12 months when they visited Australia and stayed with the family. He says further that for the following period of nearly 12 months the wife's mother stayed with the family and was primarily responsible for Child A's care while both parties worked.

39The husband's parents have been living with him again since August 2022, and plan to stay until approximately August this year.

40The husband questions the bona fides of the wife's proposals. He says that she threatened at a very early stage after separation to relocate so that he would not be able to see Child A and noted her previous application to this court in 2017 to relocate to City B. On his case, since separation she has not supported his relationship with Child A and to the contrary has sought to undermine it. He says that he has requested more time with Child A, including overnight time, but that the wife has been obstructive.

41He says further that there has been a noticeable change in Child A's behaviour towards him since he told the wife that he was not prepared to agree to the proposed relocation. He would submit that is because of influence on the part of the wife. He regards the wife's engagement of a counsellor for Child A as a "ploy" to support her application.

42The husband acknowledges that Child A has what he describes as a "pretty good" relationship with Mr C but argues that his own relationship with her is being inhibited by the wife's refusal to agree to his requests for additional time.

The evidence of the husband's witnesses

43It is unnecessary for the purpose of these short form reasons to summarise the evidence of the husband's wife, mother and brother other than to note that it is supportive of, and consistent with, the evidence of the husband.

The evidence of the single expert witness

44The SEW, appropriately, acknowledged that material and information provided to her by the parties was presently untested. It is unnecessary to summarise her recount of the information provided by the parties, given their own evidence.

45She noted from her examination of the notes made by Child A's psychologist that Child A expressed views consistent with those referred to in the wife's evidence. That said, Child A also told the psychologist that "the decision she was being asked to make concerning ‘who to stay with' is 'too much'. Any perception on the part of an eight-year-old that she is being asked to make such a decision is, of course, troubling in itself.

46The SEW observed Child A to be very attached to Mr C, and comfortable with the wife. When she observed Child A at the husband's home, Child A reiterated her wish to spend most of her time with the wife and to move to City A. She was observed to be "separating herself from her father and his side of the family". That said, when the SEW departed the husband's home and then doubled back driving past it she saw Child A hugging the husband around his neck and looking sad.

47The SEW said:

Most children will not obviously favour one [parental figure] over another for all things. It does look as though [Child A] has split her emotions and sees the father as all bad and [Mr C] as all good and the mother as mainly good. It may be that [Child A] is feeling that she is somehow responsible for the present situation, and that she is feeling that she has a great responsibility for the relocation decision. When children feel responsible for conflict, we will often see regression, acting out, problems with school, depression, and withdrawal. Both parties in this matter have stated that [Child A] has withdrawn and is not the same girl she was a year ago. It is likely that [Child A] is feeling overwhelmed and vulnerable. She may see the relocation to [City A] as some sort of magical solution that will put all these problems to rest.

48She described the present impact of the dispute on Child A as "obvious", saying that relocation is unlikely to solve all the problems outlined. She expressed concern at the potential long-term impact on Child A of rejecting a parent. She was concerned that the parties did not have an appropriate understanding of that, being too caught up in blaming each other.

49She expressed concern that if relocation is not permitted, Child A may feel responsible for that, blame the husband, and deepen her rejection of him. That said, she expressed concern that if relocation is permitted, Child A's observed emotional split from the husband could become permanent. She regarded the wife's proposals as to the time Child A would spend with the husband in those circumstances, as those proposals stood at the time of her report, as inadequate. She said that if relocation does not proceed Child A should begin to have overnight time with the husband, built up slowly. As already noted, the wife's proposals in that regard have been adjusted not inconsiderably after the publication of the SEW's reports.

Discussion and conclusion

50I record that I have considered each of the primary and additional considerations set out in the legislation.

51I do not consider it appropriate in the circumstances to apply the statutory presumption of equal shared parental responsibility. On the wife's case, the presumption does not apply and, if it did apply, would be rebutted by the evidence. On the husband's case, the presumption does apply. The disputes between the parties as to matters related to family violence are stark and cannot be resolved without the evidence being tested.

52As already noted, neither party sought any order for parental responsibility on an interim basis. I record that even if such an order had been sought, I would not have considered it appropriately made on an interim basis other than by consent.

53As is clear from what has already been set out, there are significant factual disputes between the parties. Those extend not only to issues around family violence, but also to the nature of Child A's relationship with the husband. The observations of the SEW raise legitimate concerns as to whether, and to what extent, both Child A's expressed views and her displayed behaviours towards the husband while conscious of being observed are being influenced by the wife, or at the very least by the child's awareness of the dispute and her mother's strongly held desire to relocate. Those observations do nothing to contradict the concerns expressed by the husband as to whether the wife is actively undermining his relationship with Child A. In her supplementary report, the SEW described the wife and Mr C as having "quite negative views" of the husband, with the "risk that they could become restrictive gatekeepers" and, once in City A, "seek to put barriers in place that could prevent Child A spending extended periods" with the husband in Perth. Those are matters properly to be explored at trial.

54I do not ignore the fact that the opinions of the SEW were expressed in the context of the wife's then current proposals, which have been significantly amended by her minute filed yesterday. The SEW called squarely into question the adequacy of those initial proposals for the maintenance of Child A's relationship with the husband if relocation is permitted, and the potential short and long-term damage to her that might arise.

55That said, the wife's new proposals are expressly designed to "incrementally increase" Child A's time with the husband so as to "work towards" her "being able to spend at least three to four consecutive nights with [him] every fortnight". Implicit in those proposals is an acceptance that a progression to being able to spend at least three to four consecutive nights with the husband is in Child A's best interests. Whether that is intended by the wife to genuinely reflect such an acceptance in the longer term, or an acknowledgement that if she is to move to City A her earlier proposals for Child A to spend time with the husband were unrealistic unless such a progression had been accommodated, is neither here nor there for present purposes.

56It is common ground that Child A has a meaningful relationship with the wife and that it is in her best interests for that to continue. It is implicit in the wife's amended proposals that she now accepts that it is in Child A's best interests, and to her benefit, to have a meaningful relationship with the husband. That much was acknowledged by her counsel in submissions this morning.

57The husband does not suggest that orders need to be crafted to protect Child A from physical or psychological harm in the care of the wife, other than to raise the potential of her suffering psychological harm if she maintains negative views about him or feels responsible for the conflict or otherwise torn in the manner foreshadowed by the SEW. Notwithstanding her case as to family violence, it is implicit in the wife's amended proposals that she does not suggest that orders need to be crafted to protect Child A from harm in the care of the husband. By way of simple example, she proposes that with immediate effect Child A spend half of each school holiday period (including the long summer holidays) in the husband's care, without the imposition of any relevant conditions. Again, in response to a question from me, her counsel acknowledged this morning that the allegations raised as to family violence are historical, that there is no suggestion of current family violence issues, and that the wife does not suggest that Child A is at any risk in the care of the husband.

58I accept for present purposes, notably having regard to the evidence of the SEW, that Child A has a very good relationship with Mr C, that the relationship is beneficial to her, and that she misses him.

59I do not regard the extent to which each of the parties has fulfilled or failed to fulfil their obligations to maintain Child A as relevant to the interim determination required. While it appears that the wife and her husband have born most of the financial cost of maintaining Child A, counsel for the wife appropriately acknowledged that the child support the husband presently pays is in accordance with his obligations under an assessment.

60That said, and as raised with counsel during the hearing, there is a significant gap in the wife's evidence. On her proposals, four times per year she would be responsible for meeting one half of Child A's return airfare between City A and Perth, plus an adult airfare City A to Perth and return for an accompanying adult. The husband would be responsible for the other half of Child A's airfares, and an adult airfare Perth to City A and return for an accompanying adult.

61There is simply no evidence as to the capacity of either party to meet those expenses. In circumstances where it is common ground that Child A's relationship with the husband must be maintained, that absence of evidence is in my view fatal to the proposition that orders should be made on an interim basis for Child A to move to City A. In drawing that conclusion I do not ignore the submissions made on behalf of the wife as to various costs she and her husband have already met – as acknowledged by counsel, that information even in its general form as presented could do no more than confirm a capacity to meet those expenses in the past, without any indication of the impact of having done so on the current and future capacity to meet the very significant airfare expenses anticipated in the orders proposed by the wife.

62Self-evidently, the wife's proposals would effect a significant change in Child A's circumstances. The matters already raised in the report of the SEW, and as to the practicality of proposed travel arrangements, need not be repeated. It is sufficient to note that on the wife's proposals there would be very significant practical difficulty and expense associated with Child A spending time with the husband even as the wife proposes, possibly rendering the proposals unworkable. That in turn would likely result in a substantial effect on Child A's right to maintain personal relations and direct contact with both parents on a regular basis.

63For those reasons, I am not prepared to make an interim order permitting the wife to change Child A's place of residence to City A at this time. There are significant factual issues to be tested at trial. The decision eventually to be made will be informed by the anticipated progression in Child A's time with the husband; it is in the best interests of both parties to endeavour to make that progression positive. If it is, the husband will no doubt argue that strengthens his case for a progression towards an equal time arrangement or something equating to substantial and significant time as that term is defined in the legislation. By the same token, the wife will no doubt argue that a more stable and established relationship between the husband and Child A will be sufficiently robust to be properly maintained long‑distance.

64While I am not prepared to make the orders sought by the wife on an interim basis, I acknowledge the difficulty her family faces by virtue of her present separation from Mr C, and the impact of those difficulties on Child A. As I explained to the husband, the fact that I am not prepared to make an order for interim relocation should not be interpreted by either party as representing even a preliminary view as to whether, once evidence is tested at trial and the court has the benefit both of updating evidence from the SEW as to the progress of overnight time, and the necessary evidence as to the financial circumstances of the parties, relocation might be permitted.

65Accordingly I enquired of the parties as to whether for the purposes of trial they would simply seek to rely on the affidavits already filed for the purposes of the interim hearing, subject to any updating, or whether they would seek the opportunity to file further affidavit material. Counsel for the wife indicated that his client would be content to rely on her existing affidavit material and any update, but for obvious reasons would seek to file a financial statement. On that basis, from the wife's perspective the matter can be progressed to trial as quickly as the court can accommodate that. The husband indicated that he would wish to take legal advice on the point before committing to simply relying on his interim affidavit material. That was an entirely reasonable position for him to take.

66The parties also both agreed that the evidence of the SEW should be updated for the purposes of trial. The husband agreed that he would meet one half of the cost of the updated report.

67I therefore propose to progress the matter to trial as quickly as the court can accommodate that, while bearing in mind the reasonable interests of other families awaiting trial dates.

68Against that background, I do not propose to make any interim orders facilitating overseas travel by either party at this stage. If a specific trip is contemplated by either, and agreement cannot be reached, the matter can be brought back for determination at short notice.

69There will be the following orders

1.The parenting orders dated [December 2019] be and are hereby discharged.

Until further order:

2.The child, CHILD A born [in 2014] live with the Applicant wife, MS ANAND.

3.The wife is restrained by injunction from removing Child A from the State of Western Australia without the written consent of the Respondent husband, MR LAL, or an order of the court permitting her to travel with Child A to [State A] for a short visit.

4.Child A is to spend time with the husband as follows:

(a)from 10.00 am on Saturday, 21 January 2023 until 5.00 pm on Monday, 23 January 2023;

(b)from after school on Friday 3 February 2023 until before school on Monday 6 February 2023; and

(c) thereafter, each alternate weekend from 5.00 pm on Friday (or immediately after the conclusion of school if a school day) to 8.00 am on Monday.

5.Child A is to spend time with the husband during school holidays as follows:

(a)during the holidays at the end of each of terms one, two and three from 9.00 am on the first Saturday of the relevant holidays until 5.00 pm on the following Saturday; and

(b)for one half of the summer school holidays.

6.For the purposes of Child A spending time with the husband, unless otherwise agreed between the parties and in particular to facilitate handover at school:

(a)the husband is to collect Child A from the wife's house at the commencement of Child A's time with him; and

(b)the wife is to collect Child A from the husband's house at the conclusion of Child A's time with him.

7.For the purposes of facilitating and monitoring Child A's response to the increase in time with him, the husband must organise, pay for and attend any counselling sessions with Child A and her treating psychologist Ms D as recommended by Ms D.

8.Save if time is otherwise being exercised by the father in accordance with the previous provisions of these orders, the father shall be at liberty to communicate with the child:

(a)by telephone, with the father to initiate the phone call:

(i)each Tuesday and Thursday between 5.00 pm and 6.00 pm;

(ii)on the child's birthday between 5.00 pm and 6.00 pm;

(iii)on Father's Day and on the father's birthday between 5.00 pm and 6.00 pm.

(b)via internet, email, Skype and any such other form of on-line communication as may reasonably be requested by the child at all such times as the child might reasonably request consistent with her daily routine and commitments.

9.During the time that the child is with the father, the mother shall be at liberty to communicate with the child:

(a)by telephone with the mother to initiate the phone call:

(i)Each Tuesday and Thursday between 5.00 pm and 6.00 pm;

(ii)On the child's birthday between 5.00 pm and 6.00 pm; and

(iii)On Mother's Day and on the mother's birthday between 5.00 pm and 6.00 pm

(b)via internet, email, Skype and any such other form of on-line communication as may reasonably be requested by the child at all such times as the child might reasonably request consistent with her daily routine and commitments.

Provision of information about the child

10.Each party shall do all such things and sign all such documents as may be necessary or required to:

(a)keep the other parent appraised of their current residential address, email address and telephone contact number and any changes thereto;

(b)notify the other parent should the child suffer any medical emergency, serious illness, or other significant issue affecting the child's health or welfare, whilst in their care.

11.The mother shall:

(a)keep the father informed of the child's significant school and extracurricular activities;

(b)keep the father informed of the names and addresses of any and all treating medical practitioners or allied health practitioners who may be treating the child and authorise those practitioners to provide the father with all such information relevant to the child;

(c) inform the father as soon as practicable of any medical condition, significant health issue or significant illness suffered by the child; and

(d)do all things and sign all such documents necessary to authorise the schools attended by the child to give the father information about the child's educational progress and related activities and to permit the schools to supply to the father (at his cost) copies of reports, photographs, certificates and awards of the child.

12.When the child is spending time with the father pursuant to paragraphs 5(a) and (b) the father shall keep the mother informed of the names and addresses of any and all treating medical practitioners or allied health practitioners who may be treating the child and authorise those practitioners to provide the mother with all such information relevant to the child.

13.The parties must each do all things necessary and sign all necessary documents to enable a passport to issue for the child.

14.The child's passport once issued may be retained by the wife.

Procedural and other orders

15.All applications and responses insofar as they sought interim parenting orders otherwise be dismissed.

16.The wife is at liberty to rely for the purposes of trial on:

(a)her Case Information Affidavit filed with her application;

(b)her affidavit filed on 25 July 2022; and

(c) affidavit of her husband Mr C filed 25 July 2022.

17.The husband is at liberty to rely for the purposes of trial on:

(a)his Case Information Affidavit filed with his initial response;

(b)his affidavit filed 16 August 2022;

(c) affidavit of his mother Ms E filed 16 August 2022;

(d)affidavit of his brother Mr F filed 16 August 2022; and

(e) affidavit of his wife Ms B filed 16 August 2022.

18.The parties and their solicitors if represented must attend a Readiness Hearing before the Honourable Justice O'Brien at 10.00 am on 3 April 2023.

19.At the Readiness Hearing each party must satisfy the Judge that the case is ready for trial and be prepared to provide the Judge with the following information:

(a)the issues for determination at trial;

(b)a reasoned assessment of the likely length of a trial;

(c)the expected length of opening and closing addresses; and

(d)a list of witnesses and the time needed for examination and cross examination of the witnesses.

20.By no later than 4.00 pm on 24 March 2023, the wife must file and serve:

(a)an affidavit updating her evidence in chief contained in her affidavit filed 25 July 2022; and

(b)a Form 13 Financial Statement.

21.By no later than 4.00 pm on 24 March 2023, the husband must file and serve:

(a)an affidavit updating his evidence in chief contained in his affidavit filed 16 August 2022;

(b)a Form 13 Financial Statement; and

(c) an affidavit of any further witness upon whom he intends to rely.

22.The parties must do all things necessary to instruct the Single Expert Witness to prepare an updated report for the purposes of trial, and must each meet one half of the associated costs.

23.The parties must make all necessary enquiries of the Single Expert Witness as to her availability and the timeframes within which she can prepare an updated report, so as to be able to advise the court of the result of those enquiries at the readiness hearing.

24.Subject to any order that may be made at the Readiness Hearing, the proceedings are included in the Callover on 14 April 2023 at 9.00 am for the allocation of a trial date with priority with an estimated hearing time of 2 to 3 days.

25.By no later than 7 days prior to Callover, each party provide the Court and each other party with a Callover certificate in the form prescribed by the Principal Registrar from time to time.

These reasons are the reasons for decision I delivered on 17 January 2023, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

RM

Associate

18 JANUARY 2023