B and B

[2008] FCWA 42

[2008] FCWA 42

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	B and B [2008] FCWA 42
CORAM	:	CRISFORD J
HEARD	:	1-3 APRIL 2008
DELIVERED	:	24 APRIL 2008
FILE NO/S	:	PTW 337 of 2007

BETWEEN : B

Applicant/ Father

AND

B

Respondent/Mother

Catchwords:

Children's issues - international relocation - principles to apply

Legislation:

Family Law Act 1975, s 60B, s 60CC, s 65DAA

Migration Act 1958, s 116

Category: Not Reportable

[2008] FCWA 42

Representation:

Counsel:

Applicant	:	Mr H Moser
Respondent	:	Ms E Brownlie

Solicitors:

Applicant	:	W A Legal Pty Ltd
Respondent	:	Reader Lawyers & Mediators

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

A v A Relocation Approach (2000) FLC 93-035
AMS v AIF; AIF v AMS (1999) FLC 92-852
B and B Family Law Reform Act 1995 (1997) FLC 92-755
Godfrey & Saunders [2007] FamCA 102

[2008] FCWA 42

1 On 22 July 2005 when [Mr B] and [Mrs B] arrived in Australia with their son

[Simon], then aged 16 months, they hoped the move from [overseas] would provide a
better future for them all.

2 This was not to be. On 19 July 2006 the parties separated although they

continued to reside in the same house until December 2006. Despite her initial desire and intention to remain in Australia, [the mother] now asks the Court allow [Simon] to return to [their home country] to live with her there.

3 On 14 February 2007 the parties entered into consent orders in relation to

[Simon]. The orders have regulated [Simon]’s living arrangements since. He lives with his father between 5.30 pm each Tuesday and Thursday until 6.30 the following morning. He also lives with him between midday each Saturday until 6.30 am each Monday. He lives with his mother at all other times.

4 There is provision for [Simon] to spend further time with either party by

agreement. [Simon] has not spent extra time with [the father] save and except for
some holiday time in January 2008.

5 The arrangements were put in place to allow [the mother] to work [at night]

in [a shop] and for [the father] to continue his work commitments in accordance with
his visa requirements as a [gardener].

Orders sought at trial

6 The primary position of each party is very clear – [the father] wants [Simon] to

live in Australia and, given [the mother] will remain where [Simon] is, have an equal shared living arrangement with her. [The mother], on the other hand, wishes to return [overseas] with [Simon] and for [the father] to spend time and communicate with [Simon] from afar.

7 At the Court’s request both parties filed minutes of proposed orders in the event

their primary position was unsuccessful. Both parties, to their credit, were able to formulate realistic arrangements for [Simon] in the event he lived in close proximity to each of them.

8 Although not articulated as such it is clear that both parties anticipate [Simon]

spending substantial and significant time with the other parent should they live in close proximity to each other. The ability of both parents to acknowledge the importance of the other in [Simon]’s life has made the detail of any orders to be pronounced an easier task for this Court.

9 It was made clear after the evidence that both parties sought an order for equal shared parental responsibility.

Applicable law

10 The case before me is commonly called a relocation case. “Relocation cases are

notoriously difficult. Both parties have valid claims of right.” (Godfrey & Saunders

[2008] FCWA 42

[2007] FamCA 102). The Family Law Act 1975 requires the Court to regard the best interests of the child as the paramount consideration. Not everyone agrees just what the best interests of children are in any given set of circumstances.

11 These child-related proceedings were conducted pursuant to Division 12A,

Part VII of the Family Law Act 1975 as amended by the Family Law Amendment
(Shared Parental Responsibility) Act 2006.

12 The new legislation is strongly in favour of both parents having substantial involvement in their children’s lives.

13 S 60B(1)(a) of the Act provides that the objects of the legislation are to ensure that the best interests of children are met by children benefiting by both of their parents having a meaningful involvement in their lives.

14 In A v A: Relocation Approach (2000) FLC 93-035, the Full Court of the Family Court undertook an analysis of the considerations that might properly affect the outcome of a case where relocation is proposed. Guidelines for decision making were set down. The Court followed binding principles of law that were established by a majority of the High Court in AMS v AIF; AIF v AMS (1999) FLC 92-852.

• In determining a parenting case that involves a proposal to relocate the residence of a child, the welfare or best interests of the child as the case may be under the relevant legislation, remains the paramount consideration but it is not the sole consideration.

• In determining a parenting case that involves a proposal to relocate the residence of a child, a court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence “contrary to the proposition that the welfare of the child would be better promoted by” maintenance of the existing circumstances: (per Gleeson CJ, McHugh and Gummow JJ at paragraph 47; Gaudron J at paragraph 92; Kirby J at paragraph 195; Hayne J at paragraph 209).

15 The Full Court went on to outline matters to be taken into account:

• The Court must identify and evaluate the competing proposals advanced by each party.

• The Court is not to dissect the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be “permitted”.

• The issue of relocation is not to be separated from that of residence and the best interests of the child.

• In determining which proposal best promotes the best interest of the child, it is necessary to follow the legislative directions espoused in s 60B and s 68F of the Family Law Act 1975.

[2008] FCWA 42

• The Court must consider the various matters that are set out in s 68F(2).

• None of the parties bears an onus.

• It is important to consider the party’s right to freedom of movement.

16 I am of the view that despite the recent amendments to the Family Law Act 1975 there is nothing to suggest that these binding principles no longer apply to relocation cases. These principles are still applied in the context of the objects and principles of the overall Act.

Parental responsibility

17 It is appropriate that the parties are aware that an order for shared parental

responsibility imposes on them an obligation to consult on major long-term issues.
These long-term issues are specifically defined in the Family Law Act 1975:

“Major long-term issues, in relation to a child, means issues about the

care, welfare and development of the child of a long-term nature and

includes (but is not limited to) issues of that nature about:

(a)	the child’s education (both current and future); and
(b)	the child’s religious and cultural upbringing; and
(c)	the child’s health; and
(d)	the child’s name; and
(e)	changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.”

18 The parties are to consult about these issues and make a genuine effort to come to a joint decision about them. Neither party can ignore this obligation.

19 This obligation to consult arises from an order for equal shared parental

responsibility irrespective of the amount of time that either party spends with the child
and irrespective of where each lives.

20 I intend to make an order for equal shared parental responsibility. I am satisfied

that the parties will comply with it. The provisions of s 65DAA of the Act therefore come into play. I am obliged to consider whether or not [Simon] spending equal time with each parent would be in his best interests and also be reasonable and practicable. If I decide not to make an order for him to spend equal time with each parent, I must consider whether or not it would be in his best interests to spend substantial and significant time with each of them, and if so, whether such an order would be reasonable and practicable.

[2008] FCWA 42

21 The fundamental question I need to address is what form of orders is most likely to promote the best interests of [Simon].

Visa requirements

22 The parties entered Australia on a student visa granted to [the father] with

[the mother] and [Simon] being endorsed as the secondary applicants. As a result of this visa [the father] commenced a [special gardening] course at TAFE on 25 July 2005.

23 He completed his course of study in [gardening] in June 2006 and applied for a

457 skilled visa (temporary stay) which allows the family to remain in Australia for four years. This visa was granted on 29 November 2006 and is valid until 29 November 2010. At this stage, subject to compliance with the specific requirements, [the father] will be in a position to apply for a further 457 visa or alternatively apply for permanent residence.

24 While on his student visa [the father] was able to work for up to 20 hours each

week. While completing his studies he commenced employment with [ a company] on 15 June 2006. He undertook casual truck driving duties with them. He completed his studies and was then engaged in full-time work with [the company] from 2 January 2007. He continues to work with them as a [gardener].

25 Although the 457 visa places work restrictions on the primary visa holder no

such restrictions are applicable to secondary holders. [The mother] was able to obtain work [at night] at the [local store] for as many hours as she chose without fear of breaching any visa requirements.

26 Her experience [overseas] had been in retail positions in various clothing stores. She has not obtained the same form of work in Australia.

27 On 31 January 2007 [the mother] received notification by the Department of

Immigration and Citizenship of their consideration of the possible cancellation of her visa. As a secondary visa holder she may be liable for its cancellation under s 116(1)(a) of the Migration Act 1958 on the grounds that “the circumstances which permitted the grant of the visa no longer exist”. This provision sets out a “no fault” cancellation power. One circumstance is the breakdown of a marriage.

28 The evidence of the Department is that it does not intend to make a decision in

relation to [the mother]’s current 457 dependent visa status until such time as the
Family Court has made a determination in relation to child welfare issues.

29 [The mother]’s status in this country is presently uncertain. Although the

evidence is that she can apply for another visa I find this will pose some difficulty for her. The Department representative,[Mr S], was unable to say whether she would be successful or not.

30 Neither a retail position nor a supermarket position would enable her to apply for

a 457 visa in her own right. She has no relevant experience or qualifications for
positions that are likely to fall within that class of visa.

[2008] FCWA 42

31 The possibility of a student visa was canvassed. Although there was no direct

evidence in this regard, as an “overseas” student, it was accepted that some cost would be associated with any course of study required to be undertaken. [The father]’s evidence is that in order to secure a place in his [gardening] course, he paid fees of $12,000 for the first six months of the course whilst he was [overseas] and a further $5,000 for his second semester whilst in Australia.

32 Neither party has been or is likely to be eligible for any Government assistance or benefits while in the country and on a visa.

33 A visa may also be cancelled under s 116(1)(b) of the Act. This is applicable where there is evidence that the visa holder has deliberately breached his visa conditions.

34 [The father] admitted having previously breached the visa conditions as a result

of working as a truck driver rather than a [gardener] with his present employer. He was given a “stern talking to” and has not, on his evidence, committed any further breach of conditions.

35 The manner in which [the father] was cross-examined suggests that [the mother]

is sceptical of the status of his present employment with [the company] and is of the view a future breach of conditions is possible. I did not find any evidence to support this contention.

36 [The mother] is able to apply for a visa to remain in Australia in her own right.

However, the Court is satisfied that the whole process, given her circumstances, is likely to be stressful and uncertain. It is likely to impose a financial burden of some sort upon her. However, it is not an impossibility.

Applying the facts to the law

37 The competing proposals of the parties will now be discussed in the context of s 60CC of the Act in order to arrive at what is best for [Simon].

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

38 The parties separated when [Simon] was about 2 ½ years of age. They

continued to reside in the same house for a number of months afterwards. Although [Simon] has lived predominantly with [the mother] he has seen [the father] regularly. He has seen him each week on a number of occasions overnight.

39 Despite there being provision in the orders for him to do so, [the father] has not

sought to increase the weekly time he spends with [Simon]. He has work commitments. A considerable amount of the time [the father] spends with [Simon] is overnight when [Simon] is sleeping. However, it has been regular, consistent and involves other time as well.

[2008] FCWA 42

40 Apart from the set times, in January 2008 there was some additional holiday

time. There has also been a degree of flexibility in relation to the changing of times if
required.

41 Neither party suggests that the other parent is anything other than a loving and

caring parent. Both parties accepted that the other had a good relationship with
[Simon].

42 I am satisfied that there currently exists as strong and as meaningful relationship

between [Simon] and both his parents as is possible given his young age. He turned
4 years old on 31 March 2008, the day before the trial commenced.

43 The Court is concerned about [Simon]’s young age and the fact any relocation

would mean this young boy does not continue to see his father several times each
week. It would only be several times each year.

• the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

44 Neither party suggests that this is an issue in this case.

45 I now turn to the additional considerations which are to be read in conjunction with the matter set out above.

• any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

46 Neither party sought to involve the child in these proceedings. In any event he is of tender years and his views would count for little.

•

the nature of the relationship of the child with:

(i)	each of the child's parents; and
(ii)	other persons (including any grandparent or other relative of the child);

47 It is accepted that [Simon] has a very good relationship with both his parents.

They have different approaches to parenting and a different view of what [Simon]’s needs are. However, the relationship of both with the child is close.

48 The parties have no family in Western Australia. The majority of the extended

families are [overseas]. [The father] has some family in the Eastern States. Although there have been brief visits, there is nothing to suggest at this stage the child has developed any deep or meaningful relationship with any extended family member.

49 Neither party has re-partnered.

[2008] FCWA 42

50 [The mother] sees her return [overseas] as presenting an opportunity for [Simon]

to mix very closely with her brothers and sister and their respective families and also
to spend some time and communicate with [the father]’s extended family.

• the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

51 These parties had a difficult separation. It was attended by some pettiness and

a certain mean spirited attitude, especially on the part of [the father]. This created
some difficulties for them both.

52 Despite this I am of the view that both have the willingness and ability to ensure their son has a close and continuing relationship with the other parent.

53 [The mother] made it clear that if she and [Simon] were to live [overseas] and

[the father] came to visit it would not be a matter of him simply having daily contact. It would be treated as an extended holiday for [Simon] depending on school commitments.

54 [The mother] has strong reservations about [Simon] having any contact with

[the father]’s stepfather, [Mr M]. This stems from allegations, which she says are proved, that [Mr M] has previously been convicted of child sex abuse. [The father] accepts the restrictions [the mother] wants imposed. Apart from this restriction, based on what appears to be appropriate protectiveness, [the mother] does not present as wanting to prevent father and son or the paternal family maintaining a good relationship.

55 After the separation [the mother]’s initial reaction and desire was to remain in

Australia.

56 In correspondence between the parties in December 2006 [the mother] indicates

her desire to live in Australia. There can be no suggestion that a change in heart is
based on a desire to weaken the relationship between [the father] and [Simon].

57 It is common ground that neither party told the Department they had separated or

that their marriage had broken down until [the mother] moved out of their home. Both
had intended to proceed to obtain permanent residency in Australia.

58 [The mother] retained a migration agent. There was correspondence by the

agent on 31 January 2007 to the Department setting out grounds of hardship should her dependent 457 visa be cancelled. The correspondence says that [the mother] is reluctant to return [home] and she wants to continue living in Australia and work towards permanent residency.

59 The orders currently in place are reflective of the ability of both parties to accept

the other has work commitments and to arrange time with their son around those
different and sometimes difficult hours.

[2008] FCWA 42

•

the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)	either of his or her parents; or
(ii)	any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

60 If [Simon] is to go [back overseas] he will be in a completely different

environment. It is an environment that [the mother] was unhappy with and an environment she wished to move from. It is an environment that [Simon] has never known or lived in. However [the mother]’s family is there and from her affidavit, the affidavit of her brother [G] and the willingness of two members of her family to come to Australia for the trial to offer support, suggests that any transition will be assisted by this very receptive maternal unit.

61 [Simon], if he was to leave Australia now would commence his schooling

[overseas]. If he was to go at some later stage it would mean a change in his school
environment completely.

62 The greatest change to [Simon]’s life would be not seeing his father on a regular

weekly basis. He has known that routine since he was under 3 years of age. I consider
this to be a significant consideration.

63 If the Court does not allow [Simon] to leave the country, [the mother] will

remain in Western Australia. This will place a financial strain upon her due to not being able to access any Government benefits, the likely scenario based on [the father]’s financial position that she will not receive spousal maintenance and her lack of qualifications to obtain work giving her a reasonable standard of living.

• the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

64 If [the mother] remains in Western Australia there will be little practical

difficulty in this respect. Although she presently has no motor vehicle this does not
impact on the child spending time with his father. [The father] has transport.

65 It goes without saying the very fact of a proposed relocation would create

practical difficulties and substantial expense. [Simon] would be flying long distances if he returned to Western Australia. Given his age there is a need for an accompanying person. The costs of travel between the countries is considerable and the length of the flight trying for one so young, not to mention any accompanying person.

66 At present neither party is in a position to have funds available for frequent and

regular air travel. Even electronic means of communication will impose a financial burden on them. Be that as it may each recognises the need for appropriate facilities

[2008] FCWA 42

to be put in place to ensure communication by email, webcam and any other appropriate available medium. However, [Simon] is just 4 years of age and the viability of some of that communication is questionable at this stage.

•

the capacity of:

(i)	each of the child's parents; and
(ii)	any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and
intellectual needs;

67 [The father] had three witnesses - a neighbour, a friend and a work colleague.

All said he was an able parent and well able to cater for [Simon]’s physical and emotional needs. They were not challenged.

68 There is some criticism by each party of the ability of the other to care for

[Simon] on a day to day basis both practically and emotionally. [The mother] raised some relatively minor issues about supervision, the use of a chainsaw and the failure to recognise [Simon]’s need for his dummy and a particular toy that soothes him.

69 After a careful consideration of the oral and affidavit evidence it simply seems to

me that the parties have different parenting styles. [The mother] is more protective and perhaps oversolicitous of [Simon], whereas [the father] adopts a more robust approach.

70 Despite these complaints I find both parties are capable of providing for [Simon]’s physical, emotional and intellectual needs.

71 This case does raise issues of the ability of both parents to provide for [Simon]

in a financial sense. The financial statements of both indicate they are supplementing their daily living by using accumulated savings. They are both struggling to meet ordinary day to day commitments. Neither has access to any form of Government benefits. [The mother] would be better off financially in [her home country].

72 [The mother] only receives income of about $220 each week when she is not

working. She currently pays $400 a week for rental accommodation. [The mother] has been forced to move several times since the parties separated. She accepts the amount she is currently paying is relatively high, especially compared to the $280 [the father] is paying. However she was keen to remain in a suburb close to [the father] to ensure that father and son were close. She gave evidence that obtaining suitable rental accommodation was difficult. She had specifically wanted accommodation with a garden or yard facilities. Given she has no motor vehicle to get out and about much she wished to have some space outside for [Simon].

73 There was criticism of her in this regard. However, in [the father]’s trial

affidavit he deposes that after [Simon] was born the parties decided they needed to move from the apartment in which they were living to accommodation that provided a garden for [Simon].

[2008] FCWA 42

74 Even if [the mother] was to secure full-time employment with [the local store]

and obtain lower rental accommodation her income is likely to still be such that it would not change her present predicament to any great extent. There will still be a shortfall of income over expenditure.

75 [The father] is not in a position, on the evidence he presented at trial, to continue

to make any contribution towards [the mother]’s maintenance. Even without that commitment he too will still have a shortfall of income over expenditure. However, his financial position in Australia is far superior to that of [the mother].

76 In [her home country] [the mother] will have free accommodation initially, employment and, if needs be, access to Government benefits.

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

77 Although both parties acted in an emotional fashion close to the breakdown of

their relationship there are aspects of [the father]’s behaviour that do require mention.
They do not always reflect well on him.

78 On the 1 February 2007 [the mother] secured accommodation for herself and

[Simon] at a [holiday place]. [The mother] obtained a reduced rate for this accommodation. On the 18 February 2007 the proprietor asked [the mother] to move from the accommodation as it was anticipated a group of people would be arriving for an extended stay.

79 As it transpired [the father] had compiled a bogus communication to the

proprietor of the [holiday accommodation] indicating that he wished, with some others, to have accommodation for some four weeks. As a result of this [the mother] was asked to move. Not only did the group, ostensibly organised by [the father], not arrive at the [holiday accommodation], but there appears to have been no notification of that fact to the proprietor.

80 Although I accept [the father] was considerably upset by the breakdown of the

relationship his disenchantment has spilled over and affected innocent and unrelated
third parties.

81 [The father] has also been less than accommodating towards [the mother], who

has had the primary care of [Simon], in terms of transport and the provision of [Simon]’s toys, clothes and household goods. He removed a vehicle that [the mother] was using while she worked at night and without notice to her. Although he denied his actions were motivated by spite, his stated reason that she was having an affair and her friend had a vehicle gave lie to that.

82 Although [the father] had provided [the mother] with some of [Simon]’s

necessities including nappies and pyjamas he accepted in cross-examination that he had refused to provide her with his toys and clothes. This prompted [the mother] returning to the house on two occasions and removing items for herself and [Simon].

[2008] FCWA 42

• whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

83 I did not form the view that these parents enjoyed the Court process or gained

very much from it. It is hoped that any order that is made will see the end of any
Court involvement. However it is impossible to predict this.

• any other fact or circumstance that the Court thinks is relevant.

84 Interwoven with the child matter are the parties’ applications for property

settlement. The parties were able to agree a schedule of assets and liabilities. They
have modest assets.

85 The specific asset of the parties which requires consideration is a sum of

approximately $16,000. That sum is held in various bank accounts. In Australia there is an amount of $10,000 which is now retained by [the father]’s employer, pending determination of the matter.

86 [The father] has minimal savings but [the mother] does have a total of approximately $6,000 held variously in Australia and [overseas].

87 I indicated to the parties that rather than divide the funds equally it appeared to

be appropriate that if [the mother] is to remain within Australia the money be utilised towards her ongoing support and the purchase of a motor vehicle. If she is to relocate [overseas] with [Simon] then those funds are most appropriately used for the purpose of father and son spending time with each other.

Section 60CC(4) and (5)

88 These provisions of the Act are lengthy. In essence, they require the Court to consider the extent to which each parent has fulfilled or failed to fulfil the responsibilities of a parent. Some of these matters have already been dealt with. [the father] has paid child support as assessed.

Conclusions

89 The existing law makes it clear that neither party bears any onus to prove his or

her case is the better option. It is also important to consider that both parties have a right to live their lives where they choose, bearing in mind the paramount consideration is the best interests of their child.

90 The Honourable Justice Kay recently dealt with the issue of relocation, albeit

interstate, in the context of the amended legislation (Godfrey & Saunders supra). His
Honour there said:

“The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any

[2008] FCWA 42

particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.”

91 In the circumstances of this case it is necessary for me to consider an equal

shared living arrangement. Having looked at the practical reality of matters I do not consider it to be in the best interests of [Simon] even if [the mother] does remain in Perth.

92 [The mother] has always been the primary caregiver for [Simon]. She deposed

that until separation she had made a decision not to continue with her paid employment but to spend time caring for the child. The orders in place since 14 February 2006 mirror the parties intention and although [the father] has substantial time with [Simon] he has not sought any extended time. Indeed [the mother]’s proposals should she remain in Western Australia are for [Simon] to spend a greater amount of time with his father than the present consent orders provide. [The father] did not wish to increase his time pending judgment.

93 Although in his orders sought [the father] proposes an equal sharing on a three

day about basis, his detailed plans were lacking. It is the Court’s view he had not really addressed his mind to an equal sharing of time although I have no doubt that he would attempt to make the necessary accommodations if it was the Court’s decision.

94 [The father] is employed and needs to work certain hours to fulfil visa requirements. He has always been a very hard worker.

95 He deposes:

“75. In my form 1B filed 20 December 2007 I have applied for [Simon] to live with me because I understand that if [the mother] is successful in having [Simon] live with her she will relocate [overseas].”

96 Although there is no criticism at all of [the father] in his desire to have equal

time with [Simon] it does not appear that it is something he has considered until relatively recently. His plans were imprecise and more based on hope than practical considerations.

97 I do not see an equal sharing of time to be a viable arrangement in Perth. As

[the father] said he would not return [overseas] if [Simon] is able to go, an equal
shared living arrangement in that country does not arise.

98 In all these circumstances I consider it best that [Simon] live mainly with

[the mother].

99 It is necessary to identify the possible outcomes:

• [Simon] remains in Perth

• [Simon] moves with [the mother] [overseas] immediately

[2008] FCWA 42

• [Simon] moves with [the mother] [overseas] on or about 29 November 2010

100 Both parties are seeking a change in the time [the father] spends with [Simon] if

he remains in Perth. Both seek an extension of the existing arrangement. It is my view that [the mother]’s proposals are the most appropriate proposals if the Court decided it was in [Simon]’s best interests to remain in Perth. On that basis, [the father] would have substantial and significant time with [Simon].

101 The fact that [the mother] would not return [overseas] by herself if [Simon]

could not go should not disadvantage her forensically. She has genuine reasons for
wishing to return [overseas]. They are practical reasons which impact on [Simon].

102 In this case I am aware that [the mother]’s first position after separation was to

attempt to remain in Australia. She secured a migration agent and approached the Department for this purpose – citing hardship to [Simon] and [the father] if she was required to leave. I also accept that she may well have been the motivator in coming to Australia in the first place.

103 Her ability to survive in Australia has been severely compromised because of the

visa position and her desire and need to care for young [Simon]. Whilst the reasons for her wishing to return [overseas] are overall not a determining factor I find her position is borne of what she considers to be financial survival rather than any desire to diminish the bond between father and son.

104 As Kay J commented:

“Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship” (Godfrey & Saunders supra).

105 I have determined that [Simon] should remain living with [the mother] and she

should be able to relocate with him shortly [overseas]. I have arrived at this
conclusion for the following reasons:

•  [The mother]’s visa status is uncertain. She is unable to access any form of Government assistance and any income she is able to earn is not of a magnitude to meet her and [Simon]’s outgoings. I accept it is almost financially impossible for her to remain within the country even putting aside the stress of having to address the visa situation itself.

•  She is relatively isolated in Australia without a motor vehicle and has few friends.

•  In [he home country] she is able to access employment, adequate accommodation and will have friends and family around her. She will not be paying any rent to begin with and will have social security if needs be.

•  [The mother] has always been [Simon]’s primary caregiver. She did not work after his birth until separation. The parties came to Australia as a family on the basis that she would care for [Simon] and [the father] would be the bread winner. This has continued.

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• Historically [the father] has always worked very long hours. He now has a requirement to work certain hours and needs to work over those hours simply to “make ends meet”.

• If [the mother]’s departure is delayed until November 2010 she is still likely to face an unpredictable outcome in securing a different visa to remain in the country.

• The proposals of [the mother] for [Simon] to return [overseas] with her are appropriate in all the circumstances.

• I am satisfied that she would take positive steps to have [Simon] maintain a relationship not only with [the father] but with his family in [overseas].

106 I am also mindful of what the Full Court of the Family Court held in B and B: Family Law Reform Act 1995 (1997) FLC 92-755:

“A very important aspect of a child’s best interests is to live in a happy family environment … Ordinary common experience indicates that long-term unhappiness by a residence parent is likely to impinge in a negative way upon the happiness and therefore the best interests of children who are part of that household.”

107 [The mother] is a person with social skills and the ability to obtain employment.

She has not suggested her desire to return [overseas] stems from long held and deeply rooted unhappiness about life in Western Australia. It involves the lack of money to enable her to provide a reasonable standard of living for herself and [Simon] even with the assistance of [the father]. This lack of money also hampers any opportunities she has to get out and create support networks.

108 Although I accept, in recent times, she may not have been as proactive as she

could have been in obtaining employment this is understandable. She has had some ill
health, no motor vehicle, uncertain accommodation and residential status in Australia.

109 It is not a desirable state of affairs for [Simon]’s primary caregiver. It is not

appropriate that she be made to delay her return until 2010 and I intend to allow
[Simon] to go with her within the next few months.

110 The most concerning aspect of this relocation is the prospect of [the father] and

[Simon] not seeing each other as much as either party would like. Neither party will have money to spare. It is appropriate that the funds currently with [Simon]’s employer be utilised towards airfares so that at least for a number of years the orders I intend to make can be complied with. Neither party gave much evidence or made submissions of substance in relation to the property matters. With [the mother] returning [overseas], [the father] will be relieved of his obligation to pay spousal maintenance. Although [the mother] will have family support she will need some funds to assist her. On this basis I intend to have her retain the funds in bank accounts held in her name both in Australia and [overseas].

111 Utilising the $10,000 towards the child matters goes some way to ensure a meaningful relationship is maintained between father and son.

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112 On this basis it is appropriate that the $10,000 be utilised towards the costs of

[Simon] spending time with [the father]. I will hear further from the parties in that
regard.

Application for dissolution of marriage

113 [The father] filed an application for dissolution of marriage on the 19 July 2007. At that stage there was some confusion about the date of separation. Having heard the evidence it is apparent the parties agree the date of their separation to be the 19 July 2006. [The mother] left their home in December 2006. The parties were married on the 20 March 1999 and are domiciled in Australia. I find that the marriage has irretrievably broken down.

114 I grant a divorce order that will take effect one month from today.

115 I find there is one child of the marriage under the age of 18 years and that the arrangements for him are found to be proper in all the circumstances.

Orders
116	Subject to any submissions by counsel in relation to the timing of the mother’s departure and as to how the $10,000 is to be utilised, the orders I intend to make are:

1. The Applicant, [the father] and the Respondent [the mother] have equal shared parental responsibility for making decisions about long-term issues in relation to the child of the marriage, [Simon] born [in] March 2004.

2. The child live with the Respondent.

3. The Respondent be permitted to relocate [overseas] on or after 13 June 2008 unless otherwise agreed.

4. The child spend time with the Applicant as follows:

(a)	in 2008 for a period of two weeks [overseas] during the Christmas school holiday period;
(b)	commencing in 2009 and each alternate year thereafter for a period of up to four weeks in [overseas] or in Australia during the June/July school holidays of the school the child attends;
(c)	commencing in 2010 and each alternate year thereafter for a period of:

(i) two weeks at the option of the Applicant either [overseas] or in Australia, during the June/July school holidays of the school the child attends;

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(ii) two weeks in Australia during the Christmas/New Year school holidays of the school the child attends;

(d) at such other times as the parties may agree from time to time.

5. For the purposes of order 4 above and subject to paragraph 15 hereof:

(a)	the Applicant give the Respondent no less than 90 days’ notice of the itinerary him, the child or both of them;
(b)	the Applicant pay for his own travel;
(c)	the parties share the costs of the child’s travel equally;
(d)	until the child turns 12 years of age, the Applicant arrange for the child to be accompanied by a reasonable adult on any travel undertaken by him in accordance with these orders.

6. The Respondent be forthwith provided with the child’s passport.

7. The parties ensure that in order to facilitate telephone, VOIP, email or webcam communication with the child, they will:

(a)	maintain a working computer, webcam and VOIP modem with working VOIP, email and webcam software;
(b)	maintain an operational internet service.

8. Whilst the child is in the care of one parent, the other parent communicate with the child:

(a)	by telephone, VOIP and webcam as per the child’s wishes and in any event a minimum of two times per week at times as agreed between the parties;
(b)	by email as per the wishes of each parent and the child.

9. The parties keep each other informed of their residential and email addresses and current telephone numbers.

10. The parties notify each other as soon as practicable of any medical emergency or serious health issue that may befall the child whilst he is in their respective care and include in that notice the name and contact details of any health professional treating the child.

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11. The parties authorise each other to obtain from any health professional treating the child any information they are seeking in relation to the health and treatment of the child.

12. The parties keep each other informed of the name and contact details of any school attended by the child.

13. The parties authorise any school attended by the child to provide to the other party any information sought by that party in relation to the education of the child including, but not limited to, copies of school reports, information pertaining to special events involving the child, and being able to speak with the child’s teachers.

14. The parties be restrained and an injunction be granted restraining them from allowing the child to be in the presence of [Mr M] without one of the parties being present at all times.

15. The parties pay the sum of $10,000 into an account with a recognised financial institution and in respect of such funds disburse them strictly for air travel as set out in order 5(c) on each occasion the child travels.

16. Any interest the Applicant may have in any asset or resource not otherwise referred to in these orders, being in the possession, control or custody of the Respondent and any bank account or other investment, any life assurance or superannuation policy in the name of the Respondent or held for or on behalf of the Respondent, vest in the Respondent absolutely and the Respondent indemnify the Applicant in relation to any liability relating to or arising from any asset, account, investment, policy or resource retained by the Respondent pursuant to these orders or any other liability in her name.

17. Any interest the Respondent may have in any asset or resource not otherwise referred to in these orders, being in the possession, control or custody of the Applicant and any bank account or other investment, any life assurance or superannuation policy in the name of the Applicant or held for or on behalf of the Applicant vest in the Applicant absolutely and the Applicant indemnify the Respondent in relation to any liability relating to or arising from any asset, account, investment, policy or resource retained by the Applicant pursuant to these orders or any other liability in his name.

18. The response to an application for divorce received by the Court on 23 August 2007 be dismissed.

19. A divorce order is granted and will take effect one month from today.

20. All previous orders and injunctions be discharged.

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21. All applications, responses and reply be otherwise dismissed.

I certify that the preceding [116] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate