B and B

[2008] FCWA 10

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: B and B [2008] FCWA 10

CORAM: CRISFORD J

HEARD: 10-11 & 14 JANUARY 2008

DELIVERED : 29 JANUARY 2008

FILE NO/S: PT 2225 of 1997

BETWEEN: B

Applicant/Father

AND

B
Respondent/Mother

Catchwords:

Children's issues - international relocation - best interests of the child

Legislation:

Family Law Act1975, s 60B, s 68F
Family Law Amendment (Shared Parental Responsibility) Act 2006, DIV 12A, Part VII, s 60B(1), s 60CC, s 65DAA

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr S Walker

Respondent: Mr R Bannerman

Solicitors:

Applicant: Calverley Johnston

Respondent: Bannerman Solicitors

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

AMS v AIF; AIF v AMS (1999) FLC 92-852

B and B Family Law Reform Act 1995 (1997) FLC 92-755

Godfrey and Saunders [2007] FamCA 102

1The Court is asked to determine where [Thomas] aged 12, is to live. His mother, [Mrs B] wants him to live [overseas]. His father, [Mr B] wants him to remain in Western Australia, where he was born and has lived all his life. The parties separated when [Thomas] was one year old.

2On 11 September 1997 the parties entered into consent orders which have regulated the care arrangements for [Thomas] in the past 10 years. [Thomas] lives with his father each alternate weekend from 10.00 am Saturday until he goes to school on Monday morning. In the intervening week, [Thomas] spends Monday evening with his father who then drops him at school on Tuesday morning. While there are no set holiday arrangements, from time to time, [Thomas] has spent extra time with [Mr B] and his paternal grandparents.

3Both parties have re-partnered, yet neither lives with that partner. [Mrs B] wants to return to [overseas] where she was born. It is intended her partner [Mr C], would go with her and they would start living together.

4[Mrs B] has, at least since 1999, wanted to return to her family [overseas] where she lived until 1984. She has remained living in Perth due to [Mr B]’s opposition to [Thomas] leaving the State.

Orders sought at Trial

5[Mrs B] seeks to move [overseas] with [Thomas]. If this is not found to be in [Thomas]’s best interests, then she will remain in Western Australia.

6On the basis that [Thomas] can go [overseas], [Mrs B] proposes he returns to Western Australia for two of the school term holiday periods and for five weeks over the Christmas period. She proposes that [Thomas] and his father communicate by web-cam and telephone twice a week and at any other time [Thomas] wishes to communicate with his father.

7She says she will pay half the cost of all the airfares associated with [Thomas] returning to Western Australia.

8If she is not able to take [Thomas] [overseas], she will remain in Perth and seeks to change the existing arrangement so that [Mr B] sees [Thomas] each alternate weekend from after school Friday until 3:00 pm on Monday. He would spend a further week with [Mr B] during each school holiday period including the Christmas break. She wants a provision that allows her to spend 10 weeks away with [Thomas] [overseas] every two years.

9On the other hand, if [Thomas] remains in Perth with Angela, [Mr B] would like a change so that he sees [Thomas] each alternate week from 7.30 pm Friday until 9:00 am on the following Monday. He would like to see him from after school on the intervening Monday until 9.00 am on the Tuesday. He would also like one-half of all school holiday periods.

10If [Mrs B] and [Thomas] are to go to [overseas], then his proposals are the same as [Mrs B]’s proposals.

11[Mr B] says he will pay the cost of one trip for [Thomas] and [Mrs B]should be responsible for the costs of the remaining 2 trips.

Applicable law

12The case before me is commonly called a relocation case. “Relocation cases are notoriously difficult. Both parties have valid claims of right.” (Godfrey and Saunders [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.

13These 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.

14The new legislation is strongly in favour of both parents having substantial involvement in their children’s lives.

15S 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.

16In 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).

17The 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.

•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.

18I 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

19It 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.”

20The 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.

21A year or so after the parties separated, [Mrs B] arranged for [Thomas] to be granted [foreign] citizenship. She failed to consult [Mr B] about this. He discovered it only in 2007. [Mrs B] said she did it to make travel easier and in case government policy changed at a later stage. Although he has dual citizenship he does not currently have a [foreign] passport.

22Despite this failure to consult about an important issue, generally I found that [Mrs B] had acted appropriately. She had discussed with [Mr B] which secondary school she considered it appropriate for [Thomas] to attend, given he has certain talents. Although it is clear [Mr B] would not now have chosen the same school, the parties were able to agree on that issue.

23Lack of real communication and consultation does not fit in with the order that both parties now seek. It is essential that each is mindful of the need to discuss matters with the other parent.

24This 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.

25I 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 [Thomas] 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.

26The fundamental question I need to address is what form of orders is most likely to promote the best interests of [Thomas].

Applying the facts to the law

27The competing proposals of the parties are now discussed in the context of s 60CC of the Act in order to arrive at what is best for [Thomas].

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

28The parties separated when [Thomas] was very young. [Mr B] has seen him regularly since separation. He has seen him each week. I accept that up until recently, there has been flexibility in the orders to allow for extra time. The extra time has not been extensive, but has allowed for some holiday periods. It has also been possible for [Mr B] to have [Thomas] for a few hours extra when he has requested it.

29I also accept there have been occasions when he has had [Thomas] for extended periods of time. [Mrs B] and [Mr C] travelled [to Europe] for a month in 2006. [Mrs B] also spent time [overseas] in early 2007 and a further period of time in February and March 2007 without [Thomas]. [Thomas] was cared for by his father and grandparents during those periods.

30I am satisfied that there currently exists a strong and meaningful relationship between [Thomas] and his parents. In his opening, Counsel for [Mr B] said [Thomas] had formed and cemented relationships with the paternal family. Given he has seen his father very regularly since separation the quality of that relationship is currently of great benefit to [Thomas].

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

31Although I do not find this to be a matter of great relevance in this case, there is one aspect that here deserves comment. [Mr B] has had some difficulties with depression and the excessive consumption of alcohol. There was little evidence before the Court in this regard although I accept at least the over consumption of alcohol is a longstanding issue for [Mr B]. [Mrs B] deposes to difficulties in that regard at and before the time of separation. No doubt this exacerbates any predisposition for depression. In 2007 for, it appears, a number of reasons these difficulties loomed large for [Mr B]. He was taken to the [local] hospital by his father and as a result, in August, engaged in a residential detoxification program. He continues with counselling.

32He deposes, and I accept, that he has not allowed these difficulties to be evident when he spends time with [Thomas]. However, I also find that this is still an ongoing issue for him. The difficulties are not fully resolved. The Court did have some concerns over an incident which involved [Mr B] pruning some trees in his garden with a chainsaw whilst under the influence of alcohol. He fell and injured himself and required medical treatment. He sought to minimise this incident by suggesting he was simply “merry”. It is trite to say that the operation of dangerous machinery and the consumption of alcohol is a lethal combination. There is potential for, and in this case there actually was, injury.

33I also accept that at least on one occasion [Mr B] has drunk prior to driving.

34No matter where [Thomas] lives, it is in his best interests to have a father who is sober and happy. It is necessary that [Mr B] continues to address these issues rigorously and, at this stage, refrains from consuming alcohol when he has [Thomas].

35I now turn to the additional considerations which are to be read in conjunction with the matters 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;

36[Thomas] will turn 13 on 10 June 2008. A family report was prepared and provided to the Court on 9 October 2007. [Thomas] and his parents were interviewed.

37[Thomas] spent the night prior to his interview at his father’s home. Unusually, he got into bed with his father. He was in need of reassurance and comfort. His mother and [Mr C] took him to the Family Court Counselling and Consultancy Service. The paternal grandmother attended, independently, to see if she could assist.

38The Family Consultant found [Thomas] to be an even natured and quiet child. He described positive relationships with both parents and their partners. She reports that [Thomas] presented initially as being confident to express his positive view of his proposed relocation [overseas]. However, when he was asked a second time, he was hesitant, bit his lip and after several moments, indicated he would like to move there for two years and then return to Perth to stay at his father’s for two years. He also stated that if he does not relocate that it would upset his mother, he would be upset and he wanted to go [overseas]. He also said he had not seen lots of his family there and he wanted to see the snow. In relation to the last two comments it appears the Consultant was under the impression that [Thomas] had only ever been [overseas] for two weeks in February 2007 to visit his terminally ill maternal grandmother. Indeed [Thomas] has spent two months every two years [overseas] since he was 9 months old.

39During the current Christmas school holiday period [Thomas] has spent several weeks with his father. [Mrs B] gave evidence that when she had spoken to him during that time he had indicated his desire to return to be with her. [Mrs B] did not seek to suggest he was not having a good time with his father, but simply that [Thomas] had also missed her and wanted to be with her. I accept [Thomas] has a strong bond with her.

40Her evidence is that [Thomas] is looking forward to going [overseas]. He has previously enjoyed his time there and now wishes to live there. He is very aware of his mother’s desire to relocate and knows she will be unhappy if she cannot go there.

41[Mr B] and his parents have each tried to involve [Thomas] in discussions about his wishes in relation to [going overseas]. Each has made it clear they do not want him to go. [His paternal grandmother] said she asked him if he really wanted to go to [overseas] and [Thomas] replied not really. I find this questioning has caused [Thomas] considerable discomfort. He is acutely aware of the paternal family’s desire for him to remain in Western Australia. He is a kind boy who does not wish to hurt others and he has been put under a degree of pressure in this regard.

42[Thomas] is of an age where his wishes need to be considered. However, they need to be considered in the context of the pressure he is under from both parents.

43The paternal family do not want him to go and have made that fact known to him. His mother will be upset if she cannot go and [Thomas] is aware of this. He loves both parents and wants to please everyone. I find it is likely he would be happy to remain in Western Australia, but equally happy to go to live [overseas].

44On balance I find his wishes somewhat equivocal and it is necessary to address the other considerations to ascertain what will be best for [Thomas] in the future.

•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);

45It is accepted by all that [Thomas] has a very good relationship with both his parents. He also has a close and loving relationship with his paternal grandparents.

46He has spent extended holiday periods every two years [overseas] and knows and has a close relationship with the maternal side of the family.

47There is nothing to suggest that [Thomas] has other than good relationships with the partners of each of the parties.

•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;

48After separation and until the death of [Mrs B]’s mother in early 2007, there is no doubt that the parties were both willing and able to make arrangements for [Thomas] without any problems. Extra time and a give-and-take attitude, when it was needed, was very evident.

49Unfortunately, as a result of [Mrs B]’s desire to relocate [overseas] with [Thomas], the parties’ previous good relationship has broken down to a certain extent. Each blames the other. There is no doubt there has been a change in their attitudes and behaviours.

50Overall, historically, [Mrs B] has always facilitated and encouraged a relationship between [Mr B] and [Thomas]. It has only been in the context of these proceedings that her attitude has hardened. There is nothing to suggest she has not complied with Court orders although she has been far less accommodating in terms of flexibility.

51[Mr B]’s attitude appears, up until the time of [Mrs B]’s unequivocal desire to move, to have been fairly passive and undemanding. He had little input into [Thomas]’s life and simply spent time with him much in accordance with the Court orders. He was content for his parents to see [Thomas] in holiday time and did not agitate for much more time himself. Once [Mrs B] articulated a real desire to return [overseas], his interest in being involved in [Thomas]’s life has increased. He has wanted to speak with him over the telephone more frequently and to be more involved. In the past he has been far less proactive.

52The change in the parties’ dynamics has created a fracture in an otherwise easy coexistence.

53Despite the recent difficulties, I am satisfied that once proceedings have finished the previous cooperation will return. [Mrs B] accepts that it is good for [Thomas] to spend more time with his father.

•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;

54If [Thomas] is to go [overseas], then he will be in a completely different environment. However it is not an environment he has never known or lived in. [Mrs B] is desirous of acquiring her late mother’s unit in [the city]. [Thomas] and [Mrs B] have stayed there previously and are familiar with the area. There are a number of close family members nearby.

55[Thomas] will commence a new school. It is a school that appears appropriate in all the circumstances. It has been well researched by [Mrs B]. The choice of school was never challenged by [Mr B].

56Apart from the practical effect of settling into a new home, school and general living environment, [Thomas] would also have to grapple with [Mr C] living full-time within the household. I accept he has a good relationship with [Mr C] who has already spent a considerable amount of time within the household. [Mr C] stays there a couple of nights each week and is there approximately six days out of seven.

57[Mrs B] and [Mr C] have been in a relationship for over four years. They have chosen not to live together yet the time they do spend in each other’s company has increased over time. Her desire to return [overseas] is not predicated on the success of her relationship with [Mr C]. If she is able to go then she and [Thomas] will leave. If [Mr C] is going to go he will finalise matters here and then move in with her and [Thomas]. Although the detail and the success of their live-in relationship is unknown, I do not accept it can be seen as a matter causing concern.

58The greatest change to [Thomas]’s life will be not seeing his father on a weekly basis. He will also not have the same opportunity of seeing his paternal grandparents.

59If the Court does not allow a relocation of [Thomas], [Mrs B] will remain in Western Australia. Her home here has been sold but I have no doubt she will be in a position to acquire further property and resume her life. [Mr C] retains a home here. Whether she would live with [Mr C] in those circumstances was not canvassed.

•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;

60If [Mrs B] remains in Western Australia there will be little practical difficulty. There is nothing to suggest any difficulties have been encountered in the past.

61It goes without saying that the very fact of the proposed relocation would create practical difficulties and substantial expense. [Thomas] would be flying long distances on 3 occasions each year. There is the cost of the airfares to consider. There are non-stop flights between [the two cities] and [Thomas] is old enough to fly unaccompanied.

62[Mr B]’s partner, [Ms S], is from [overseas]. She hails from [the same country]. She has previously returned [overseas] to visit her family although this has not been in the recent past due to her own financial constraints. There may be further opportunity if [Mrs B] was to live in [overseas] with [Thomas] for [Mr B] to visit on any occasion his partner returned to see her family.

63[Mr B] has considerable flexibility in his employment. He is [self employed] and although it appears he does not earn a considerable income, he is in a position to tailor his work hours to spend time with [Thomas].

64Both parties are willing to ensure [Thomas] has appropriate computer facilities to ensure communication by email, webcam and any other appropriate medium. Each foresees regular telephone communication as well.

•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;

65There is no criticism of either party in relation to an ability to practically care for [Thomas] on a day to day basis. There is no suggestion that if [Mrs B] does go [overseas] with [Thomas], that she will not care for him appropriately. [Thomas] is currently enrolled in a gifted children’s program at school. [Mrs B] has identified an appropriate school to address his intellectual capacity and his desire to do art.

66[Mrs B] has always been primarily financially responsible for [Thomas]. Due to his circumstances, [Mr B] has paid very little towards [Thomas]’s support. [Mrs B] has always been primarily responsible for [Thomas]’s school fees and basic needs.

67Although [Mr B] is interested in every aspect of [Thomas]’s development, it has been [Mrs B] who has been far more proactive and constant in relation to his schooling and extracurricular activities. [Mr B] has had the opportunity of collecting and delivering [Thomas] to school but has not really involved himself in [Thomas]’s education. He has attended some of his sporting commitments. However, [Mrs B] has been the one most responsible for taking [Thomas] to his commitments and ensuring his involvement. She is understanding of and aware of [Thomas]’s abilities.

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

68Both parents have a very positive attitude towards [Thomas] who is loved dearly by all. Both parents lacked some insight into how their desires and behaviours impacted on [Thomas].

69[Mrs B] was reluctant to accept that her relocation [overseas] would be a major change for [Thomas] in that he would not be seeing his father, weekly, something he has done consistently since he was one year of age. A move [overseas] will create a significant dislocation from the paternal family. The likely impact of this on [Thomas] did not appear to have resonance with [Mrs B]. Her own needs would be satisfied by a return [overseas] but she seemed to lack awareness that [Thomas]’s needs may not be entirely the same as hers.

70On the other hand, the Court was concerned about [Mr B]’s attitude to his difficulties with alcohol and the depression he suffered throughout 2007. His difficulties which, according to [Ms S], were being experienced in late 2006 created substantial ruction in his life. He separated from [Ms S]. She struck the Court as a down to earth and honest partner to [Mr B]. As a step parent she was appropriate and very aware of her place. It is understandable that [Thomas] would have a good relationship with her.

71As [Mr B]’s depression and consumption of alcohol increased in 2007, his family closed ranks. Despite the fact that he attended a residential detoxification program in August which made him unavailable to spend time with [Thomas] on Father’s Day these matters were not disclosed to [Thomas]’s mother or to her solicitors or to the Court. In fact, these issues were actively concealed by the paternal grandparents. [Mr B] said he felt that his health was a private matter and that “I thought this was about [Thomas]”. This fails to appreciate the impact on [Thomas] that [Mr B]’s health and wellbeing potentially has. Although it appears he has been able to quarantine [Thomas] from his difficulties, [Thomas] is a sensitive and intelligent boy who is likely to have more awareness than [Mr B] gives him credit for.

72To his credit, [Mr B] is addressing his problems and although they have not resolved, he has indicated a commitment to continue to resolve them.

73Whilst there were certain aspects of each party the Court was concerned about overall these are two very responsible parents with positive attitudes to their child.

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

74It is accepted that in early 2007, communication between [Mr B] and [Thomas] became difficult. The evidence suggests that from about May 2007 [Mr B] and his family were more regular and even persistent in their telephone communication with [Thomas]. Previously there had been little such communication but there was an increase around the month of May. I found generally that [Mrs B] exaggerated this communication and it is likely that [Mr B] sought to minimise the attempts he made to speak to [Thomas]. Be that as it may, [Mrs B] enlisted [Mr C] to “filter” the telephone calls. [Mr C] said he agreed to do this because some of the calls were upsetting [Thomas] and that as [Mr B] was seeing [Thomas] weekly and had other opportunities to attend training games and matches, the telephone calls were unnecessary. Although undertaken with a good motive, [Mr C]’s involvement has created problems. In an effort to act protectively he has simply driven a wedge between the parties and, in my view, has involved himself in matters that are for [Mrs B] and [Mr B] to properly resolve. [Mr C] is not [Thomas]’s father and any suggestion that he is to take on that role needs to be rethought. It is essential that [Mrs B] ensure that wherever [Thomas] lives he has an unfettered ability to communicate with [Mr B]. [Thomas] is of an age where he can now initiate calls and have some say in such matters.

75[Mrs B] has sold her real estate in Western Australia. She presently has no employment [overseas]. I consider it prudent to ensure she has money set aside to pay what I intend to order is her share of the travel costs.

Section 60CC(4) and (5)

76These 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.

77[Mr B] has paid child support as assessed. It has always been a modest amount. I accept he has made little other contribution and that [Mrs B] has been responsible for [Thomas] in that sense. Curiously when [Mr B] cared for [Thomas], during [Mrs B]’s time [overseas] after her mother’s death sorting out her affairs for a period of some three weeks, [Mr B] made an application for child support against her. Although [Mr B] could offer no explanation for why he did this, it appeared to the Court to be somewhat mean spirited given [Mrs B]’s past role in that regard and the circumstances of her being [overseas].

Conclusions

78It is important to remember that neither party in this matter bears an onus to prove that their 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.

79The Honourable Justice Kay recently dealt with the issue of relocation, albeit interstate, in the context of the amended legislation (Godfrey and 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 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.”

80[Mr B] does not suggest that [Mrs B] not remain the primary care giver for [Thomas] if she remains in the same place with [Thomas]. He is not seeking an equal share arrangement. He is seeking to have substantial and significant time with [Thomas]. A relocation [overseas] would not make that arrangement viable or practical.

81In the circumstances of this case it is necessary for me to consider an equal shared arrangement. I do not consider it to be in the best interests of [Thomas] even if [Mrs B] does reside in Perth. As stated it is not something that [Mr B] is seeking. He is generally employed and presently although unemployed is addressing some significant health issues. It is not a viable arrangement.

82It is necessary to identify the possible outcomes:

•[Thomas] moves with [Mrs B] [overseas].

83This would see a significant change in his living and school environment. His primary family unit would remain the same. He would be away from the paternal family. A change would be that [Mr C] will live full-time within the household. [Mrs B] is confident in obtaining work [overseas]. She has strong ties [overseas] and her immediate and extended family is well-known to [Thomas]. Although she has no plans to return regularly to Western Australia, she has made a commitment to allow [Thomas] to maintain contact with his friends here. She has also indicated that if life was completely untenable for [Thomas] in [overseas], she would return to Western Australia with him. Indeed, given [Thomas]’s age, it is likely that his desires will be made known, either way, in a more assertive manner as time goes on. [Mrs B]’s proposals envisage regular time spent with [Mr B]. The time would be for extended periods though on a less regular basis.

•[Thomas] remains in Perth.

84Both parties are seeking a change in the time [Mr B] spends with [Thomas]. However, I formed the view during the course of [Mrs B]’s cross-examination that although her initial position was not to extend the time but simply reorganise when exactly that time was spent, she later appeared open to some extension. If she remains in Perth, then there will be a change of school in any event. [Thomas] will leave his primary school and go to [a local college]. Only one of his classmates is going to that particular high school. It is also likely that living arrangements will be different given that [Mrs B] has sold her property here.

85The fact that [Mrs B] would not go [overseas] if [Thomas] could not go,should not be a forensic disadvantage. She has genuine reasons for wishing to go [overseas]. It is a long held desire of hers. The catalyst to actually making the move was the death of her mother and her desire to be closer to her own family.

86It is clear that [Thomas] has established a very meaningful relationship with [Mr B]. There is nothing to suggest that the relationship will not be maintained if [Mrs B] moves [overseas] as long as there is regular contact. In order to ensure that it is maintained, arrangements need to be made to ensure regular visits of adequate duration. It is not about replicating the existing contact but rearranging it to ensure the best possible outcome for [Thomas].

87[Mr B] has flexibility in his work. He is generally available to care for [Thomas] when he visits. If he is not able to do so, then his parents step in and provide assistance.

88As 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 and Saunders supra).

89On balance I have determined that [Thomas] should remain living with [Mrs B] and she should be able to relocate with him to [overseas]. I have arrived at this conclusion for the following reasons:

•[Mrs B] has consistently been primarily responsible for [Thomas]. She provides a high standard of care. She has been proactive in every aspect of parenting.

•[Thomas] and [Mr B]’s relationship is secure. [Thomas] is of an age where he can access more adult forms of communication without parental assistance. He can telephone, email and utilise web cam, once installed, at will.

•[Mrs B]’s proposals allow [Mr B] significant time with [Thomas]. Additionally, he can attend [overseas] if he so desires.

90I 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.”

91I do accept that if [Mrs B] remains living in Western Australia, she will feel very unhappy. She has remained in Perth against her will for a considerable period of time. She has not allowed her disenchantment with living here to impact on her willingness or ability to allow [Mr B] to develop and maintain a relationship with [Thomas].

Orders

92The orders I intend to make, subject to any submissions by Counsel are:

1.All previous Orders in relation to [Thomas] born [in] June 1995 be discharged.

2.The parties have equal shared parental responsibility for the child.

3.Subject to Order 12 hereof, the child live with his mother [overseas].

4.Upon the child’s relocation [overseas], the father spend time with him as follows:

(a)in 2008 and each alternate year thereafter in the long summer school holidays from the second day after the end of school for a period of 5 weeks;

(b)in the year 2009 and each alternate year thereafter in the long summer school holidays from the 29 December for a period of 5 weeks or such shorter time to ensure the child’s return [overseas] by three days prior to the commencement of school term;

(c)for two term school holidays each year for a period of no more than 14 days on each occasion and to coincide with the [overseas] school holidays with the father to advise the mother by email at least 42 days prior to the commencement of the start of the holidays of his intention to exercise such contact;

(d)the mother be at liberty to nominate to the father each year which term holiday she wishes to keep free from contact provided always that she notifies such intention to the father before he has provided email notification in terms of Order 4 (c) hereof;

(e)for such other time in Australia or [overseas] as can be agreed between the parties upon giving 21 days’ notice of his intention to do so;

(f)by uninterrupted webcam communication every Sunday and Thursday nights at 8.00 pm [overseas] local time with the child to initiate the contact;

(g)by regular uninterrupted email communication in accordance with the child’s wish and with the ability to have such telephone and further webcam communication as the child wishes;

(h)the mother have contact with the child when the child is with the father in terms of the provisions of Order 4 (f) and (g) hereof.

5.The mother make the child available to spend reasonable time with the child’s [paternal grandparents] [overseas] provided she receives the request from the paternal grandparents at least 21 days prior to their arrival.

6.The mother ensure the child is forthwith provided with a current and functional personal computer, reliable internet access and an internet webcam.

7.Upon the child’s relocation [overseas] the mother keep the father advised at all times as to the child’s residential address and the landline telephone number, email address, name and contact details of the school and name of any health care professionals involved with the child.

8.Upon the child’s relocation [overseas] the mother do provide to the father copies of all reports and achievements received by the child and shall do all things necessary to authorise any school or health care professional that the child attends to release information to the Applicant upon his request and at his expense.

9.Upon the child’s relocation [overseas] each party do notify the other about any matters of importance relating to the child’s health, education and general welfare to include any hospitalisations and do immediately notify of any emergencies relating to the child, whilst the child is in their care.

10.For the purposes of facilitating the child spending time with the father, the mother be responsible for paying the first and third period of time each year and the father be responsible for paying the second period of time each year.

11.Until further order, the father be restrained by injunction from consuming alcohol whilst the child is in his care.

12.The mother pay the sum of $7,500 into an account with a recognised financial institution and in respect of such funds:

(a)disburse such funds strictly for air travel for the child incurred as a result of compliance with these orders;

(b)each quarter from the date of these orders, provide to the Applicant father copies of account statements and receipts evidencing the disbursement of the funds from time to time.

13.The mother and the father shall do all such things and sign all such documents as may be reasonably necessary for the periodic renewal of the child’s Australian passport.

14.Upon either party making request, both parties shall use their best endeavours to either register these orders [overseas] or obtain mirror orders [overseas].

15.The applications otherwise be dismissed.

I certify that the preceding [92] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate