B and B

[2006] FCWA 42

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: B and B [2006] FCWA 42

CORAM: THACKRAY J

HEARD: 1 & 2 MAY 2006

DELIVERED: 3 MAY 2006

FILE NO/S: PT 10 of 1997

BETWEEN: [KB] Applicant/Mother AND

[RB] Respondent/Father

Catchwords:

Residence- relocation [Eastern States]

Legislation:

Family Law Act 1975, s 68F(2)

Category: Not Reportable

Representation:

Counsel:

Applicant : Mr N Cogin

Respondent : Mr M Rynne

Solicitors:

Applicant : Bowen Buchbinder & Vilensky

Respondent : Anthony Clarke & Associates

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

A v A Relocation Approach (2000) FLC 93-035

Bolitho & Cohen (2005) FLC 93-224

U v U (2002) 211 CLR 238

1These proceedings concern [HB], who will turn 12 years of age later this year. [HB] has been living with his mother, [KG], since she separated from [HB]’s father, [RB], in 1996. [KG] obtained an order for residence of [HB] following a defended trial in 1998. [RB] now wishes to stop [KG] taking [HB] to live in [the Eastern States], where her present husband has recently taken up a new job. If [KG] insists on going to [the Eastern States], [RB] proposes that [HB] live with him.

The parties and their families

2[KG] is 41 years of age and is a Customer Service Representative with a bank. She is married to [Mr G], who is 38 years of age and holds a managerial position with the Commonwealth Bank. They commenced living together in about March 1999 and were married in July the same year. They have two daughters, [M], who is six and [G] who is five years of age.

3[RB] will turn 47 years of age this week and is a Public Servant. He lives in a de facto marriage relationship with [CS], who is 46 years of age and is also a Public Servant. They commenced their relationship in 1997 and began living together in March 2000. [CS] has two children, [RS], who is 20 and [JS] who is 16 years of age.

4 [KG] and [RB] have only one child, [HB] , who was born in

November 1994.

Background to these proceedings

5[KG] and [RB] were married in 1989. [HB] was only two years of age when they separated in December 1996. Both parties sought residence of [HB]. Anderson J decided on “slim balance” in March 1998 that [HB] should live mainly with [KG]. Since then, [RB] has been exercising very regular contact with [HB]:-

• On alternate weekends;

• For two short afternoon visits each week;

• For one week in each of the midyear holidays;

• For two weeks in the Christmas school holidays; and

• On some special days.

6In the meantime, both [KG] and [RB] have re-partnered and [KG]has had two more children. [KG]’s husband, [Mr G], received an offer in January 2006 to take up a more senior position with his Bank in [the Eastern States]. After consultation with [KG], he decided to accept the offer. Having made the decision, [KG] sought [RB]’s agreement to [HB] moving to [the Eastern States]. [RB] indicated that under no circumstances would he agree.

The competing proposals

7 [KG]’s proposals are contained in her Papers for the Judge.

She seeks:

• Permission to take [HB] to [the Eastern States];

• Suspension of the current contact orders until [HB] returns to

Perth;

• Orders allowing [RB] to have the following contact with

[HB]:-

• Alternate weekends when [RB] is in [the Eastern States];

•All but the last weekend of the first and third term school holidays;

•Slightly more than half of the holidays at the end of the second school term;

•Half of the Christmas holidays (including Christmas Day each alternate year); and

• Internet and telephone contact.

8 [KG] is agreeable to meeting all costs associated with [HB]

flying back to Perth during each of the four school holidays.

9[KG] is adamant that if [HB] is not permitted to relocate, she will remain in Perth with him and the girls. In the event she stays in Perth, [KG] proposes some variation of the current contact orders.

10 The orders sought by [RB] are set out in his Form 1A Response. He seeks an injunction restraining [KG] from removing [HB] from Perth and he also proposes some variation of the existing contact orders. In the alternative, [RB] seeks an order that [HB] reside with him and he proposes a regime of contact formulated on the assumption that [KG] will be living in [the

Eastern States]. As [KG] has no intention of moving without [HB], it is unnecessary to set out the detail of his contact proposal.

11 In the event [HB] is permitted to relocate, [RB] seeks the following contact:-

• Each weekend he is in [the Eastern States];

• Two overnight visits each week he is in [the Eastern States];

•All but the last weekend of the first, second and third term school holidays;

• Half of the Christmas school holidays;

• The weekend of Father’s Day;

• The weekend immediately fo llowing [HB]’s birthday; and

• Internet and telephone contact.

12 [RB] also seeks a large variety of other orders and injunctions, including that [KG] be restrained from changing [HB]’s surname.

The law

13 In A v A: Relocation Approach (2000) FLC 93-035, the Full Court of the Family Court of Australia (Nicholson CJ, Ellis and Coleman JJ) summarised the approach to be taken in determining proceedings involving a proposal for relocation of a child. The Full Court said:

“It is convenient to bring together in a summary form the most significant points we have made above. Courts of first instance faced with cases involving a proposal to relocate the residence of a child should adopt the following guidance and should be able to expect that cases are presented in a way which addresses the following matters to the extent that they arise:

In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:

• 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.

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• 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.

• It is necessary for a court to evaluate each of the proposals advanced by the parties.

• A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of 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 evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.

• It is necessary to follow the legislative directions espoused in s 60B and s 68F of the Family Law Act 1975 (Cth). The wording of s

68F(2) makes clear that the Court must consider the various matters set out in (a)-(l) of that subsection.

• The object and principles of s 60B provide guidance to a court's obligation to consider the matters in s 68F(2) that arise in the context of the particular case.

• It is to be expected that reasons for decision will display three stages of analysis and:

1. A court will identify the relevant competing proposals;

2. For each relevant s 68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that

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factor and make findings on each factor as the Court thinks fit having regard to s

60B;

•As one, but only one, of the matters considered under s 68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.

•The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.

•Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.

3. On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child's best interests are the paramount but not sole consideration.

•The process of evaluating the proposals must have regard to the following issues:

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a) None of the parties bears an onus:

•In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.

b) The importance of a party's right to freedom of movement:

•In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s 92 of the Constitution, where applicable.

•In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child

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to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child's rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.

c) Matters of weight should be explained:

•In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss 60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.

•In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.”

14 The advice given by the Full Court in A v A concerning the approach to be adopted when determining a “relocation case” was the subject of further consideration by the Full Court in Bolitho & Cohen (2005) FLC 93-224. The Full Court (Bryant CJ, May and Boland JJ) began its consideration of the issue by quoting the following passage from the judgment of Gummow and Callinan JJ

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in the High Court of Australia in U v U (2002) 211 CLR 238 at

260:

“We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. Whether the Court is obliged, or will be able in every case to treat each of the three steps as discrete and in the suggested order may be another question. But the Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s 68F and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child's best interests.”

15 The Full Court in Bolitho & Cohen went on to say:

“In U v U the High Court reaffirmed that the “overarching issue” is to ensure any parenting order is in the best interests of the particular child. We accept that whilst in some cases each s 68F(2) factor may be relevant in determining what is in the best interests of a child, in other cases a more limited examination of s 68F(2) factors may be appropriate as being the only relevant (our emphasis) factors to the particular issue to be determined.

We discern that the decision in U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s 68F(2) factors, and consideration of other relevant factors, including the right of

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freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.”

16 I consider the remarks in Bolitho & Cohen to be particularly apposite in this case, where there has already been a determination of the residence issue and where a number of the matters set out in s 68F(2) of the Family Law Act are of little or no significance in determining the outcome. I do not propose to refer specifically to each of the s 68F(2) factors in giving my reasons, but I have those matters firmly in mind in coming to my decision.

Discussion

17 The evidence strongly suggested that [HB] is a delightful young boy. His teacher last year described him as:-

“a friendly and well-liked class member with a great sense of humour. He has developed a great rapport with his peers and is able to work confidently and enthusiastically in group activities”.

18 Children like this do not come about by accident. [KG] and [RB] are loving and committed parents. Both of them should feel justifiably proud of [HB] and the role they have played in his life to date.

19 [HB] has a close and loving relationship with both his parents and with their partners. He also has a very close relationship with his half-sisters, [M] and [G], who have lived with him their whole lives, and with his step-siblings, [Rc and [JS], who he has seen very regularly for some years.

20 Given that [HB] is approaching 12 years of age, it is important I consider his wishes in coming to my decision. In one respect it is unfortunate that a report about [HB]’s wishes was not obtained, as would usually be the case with a child of this age. [RB] thought it would be better for the decision to be made either by [HB]’s parents or by the Court, without further involving [HB]. I can understand why he took this position, since I am satisfied [HB] loves both his parents very much and would hate to say anything that appeared to favour one over the other. In particular, I am

confident [HB] knows how devastated his father would be if he were to indicate his desire to remain living with his mother, even if she went to [the Eastern States] to live.

21 In the absence of an independent report concerning [HB]’s wishes, I can only draw my conclusion from my assessment of the evidence of his parents and their witnesses. That evidence satisfies me that [HB] has been in a state of some turmoil since his mother told him she wanted to move to [the Eastern States]. I conclude that [HB] has felt very sad about the prospect of leaving his father and other relatives behind in Perth. He wishes that [Mr G] could get the job he wants in Perth, rather than having to uproot the whole family and move to [the Eastern States]. By this means, not only would [HB] be able to continue to see his father and other relatives in Perth regularly, but he also could stay at his current school with his friends. Most children of this age, when presented with such a scenario, would be likely to adopt a similar view.

However, ultimately, I consider that [HB]’s desire is to continue to live with his mother, [Mr G] and his half-sisters, even if that means he will move to [the Eastern States]. This is not altogether surprising, since he has no memory of ever having lived on a full- time basis with his father and has lived with [Mr G] since he was four years of age.

22 In coming to my conclusion, I accepted [KG]’s evidence that [HB] has asked her to tell [RB] he does want to go to [the Eastern States]. I generally found her to be a credible witness and I had no reason to suspect she fabricated this claim, even though it is self- serving evidence. I also found it significant that [HB] has not suggested he could live with his father if his mother maintains her desire to go to [the Eastern States], since I am sure [HB] knows his father would be very happy for him to do so.

23 The evidence suggest that [HB] is a fairly adaptable boy, who will make new friends in his new environment if he moves to [the Eastern States] to live. I consider there is merit in [RB]’s concerns about [HB] moving during the middle of the school year and also about the likelihood there will be further movement of school in the middle of his secondary education. Whilst such movement is not ideal, it is not at all uncommon. There are also compensations, since children have the opportunity to make friends in different places and see different parts of the world. I also consider there is strength in the proposition put by [KG] in cross-examination that a move at this stage of Year 7 will give [HB] a chance to settle down

and make friends before he starts Year 8 next year. I accept there is no guarantee of a place being available in the school tentatively picked out for [HB] in [the Eastern States], but the evidence suggests there is a good chance a place will be available. Whatever happens, I am satisfied [KG] will make appropriate arrangements for [HB]’s education.

24 [RB] is very sceptical about the reasons advanced by [KG] and [Mr G] for the move to [the Eastern States]. He considers it is simply part of a plan she has long held to remove [HB] from Western Australia and away from him. Whilst I can understand why he holds that view, I am quite satisfied it is mistaken. I find that [Mr G]’s job offer was unsolicited. He and [KG] had only just moved into the home they have built when the job offer came along. [Mr G]’s parents have moved from Victoria to live in Perth so as to be closer to [Mr G] and his new family. Whatever [KG]’s intentions were some years ago, all of the evidence is consistent with a desire on the part of both her and [Mr G] to make Perth their long-term home.

25 I find that [Mr G]’s move to [the Eastern States] was motivated by an entirely reasonable desire to obtain advancement in his work and a better standard of living for his family. There is no equivalent position available with his employer in Western Australia. The move involves an immediate increase in base salary of $20,000 per annum and possibly a larger bonus. More importantly, I accept the move is a stepping stone to further advancement. [Mr G] hopes that ultimately he will advance to the position of State Manager in his division of the Bank. He impressed me as being the sort of person who might reasonably aspire to such a position. [Mr G] is the primary financial provider in the family of which [HB] is an integral part. Improvement in his financial position is likely to have a short and long-term beneficial impact for the entire family. [KG] is dependent upon [Mr G] for financial support for herself and [HB], since she earns only about

$13,000 per annum and [RB] pays only $113 per week child support.

26 [KG] and [Mr G] did not discuss the planned move with [RB] before making the decision to accept the job in [the Eastern States]. Apart from the fact they have a history of being unable to communicate, [KG] knew there was no chance [RB] would ever agree with the planned move. She has, however, demonstrated what I regard as a bona fide approach in handling the proposed relocation. First, she volunteered an increase in the amount of

holiday contact [RB] can enjoy with [HB], since it would not be feasible for him to enjoy the other forms of contact he has been exercising. Secondly, she has agreed to meet all of the airfares associated with contact. Whilst [RB] may think this would be expected, such proposals are not always forthcoming when similar applications are made to the Court, and the Court does not always order the relocating parent to pay all of the additional travel costs.

27 [KG] and [Mr G] anticipate that the move to [the Eastern States] will involve an absence from Perth of about two to three years. I accept that is their genuine desir e and intention. Although there is no guarantee they will return to Perth at the end of that time, the most likely scenario is that they will. In coming to this finding, I rely not only on their evidence but the evidence of Mr [ K], who is [Mr G]’s immed iate superior in the Bank.

28 Whilst I feel desperately sorry for [RB], who is totally devoted to his only child, I do not consider [HB] needs the same level of contact he currently has with his father to maintain their strong relationship. [HB] is now nearly 12 years of age. He has a well-established bond with his father, which I am satisfied will pass the test of time. He is old enough to understand why part of his family has to move to [the Eastern States]. He can remain in very regular contact with his father by telephone/internet. He can spend somewhat more of his school holidays living with his father than he has to date. It is not at all uncommon, as was put to [KG] in cross-examination, for children to go away to boarding school at around [HB]’s age. I am not persuaded that such children, who are separated from both parents, experience any reduction in the quality of their relationship with their parents. This is not to say there will not be some sadness on the part of both [HB] and his father about not being able to see as much of each other – since I am sure there will be. On the other hand, it will make the time they do spend together that much more special.

29 [RB] is understandably concerned about [HB] being denied the input he currently provides in his life, especially during the years when he begins the transition from boy to man. I found [KG] to have a down-to-earth and sensible approach to parenting. Whilst she has yet to experience the tests of attending to the needs of a teenager, I have no reason to believe she will have any more than the usual difficulties associated with that task. I consider, that if anything, she is likely to be able to rise to the challenge more easily in [the Eastern States] than in Perth, since I accept that she finds it

difficult dealing with what she regards as [RB]’s pedantic personality.

30 Although [RB] also has understandable worries about [Mr G] usurping his role as [HB]’s father, I am satisfied that [HB] has a very good relationship with [Mr G]. He will provide a good role model for [HB] during those times when he is denied the company of his father. His involvement in [HB]’s sporting and educational activities satisfies me that [Mr G] takes a good deal of interest in [HB]’s daily life. Although the manner in which [Mr G] and [KG] described [Mr G]’s relationship with [HB] in their affidavits may have been interpreted as provocative, I am satisfied [Mr G] has an appropriate understanding of the fact he is not [HB]’s father. The time may have come, however, for [Mr G] to consider suggesting to [HB] that he should begin calling him by his first name, rather than “Dad”, since he knows how upsetting it is for [RB]. I recognise, however, that it is a difficult situation in a household whic h includes [Mr G]’s own children.

31 It is important, to keep in mind that, whatever the outcome of these proceedings, [HB] will continue to live with his mother. I am not required to decide whether it would be better for [HB] to live in [the Eastern States] with his mother or in Perth with his father. The only choices presented to the court are either that [HB], his mother and his half-sisters move to [the Eastern States] to join [Mr G], or they remain in Perth. The latter scenario would involve [HB]’s mother being separated from her husband for some years or, alternatively, [Mr G] having to resign from his job and come back to Perth. I doubt very much whether [Mr G] would remain in [the Eastern States] if [HB] is not permitted to move. I am satisfied he would come home in the relatively near future, even if it meant resigning from the Bank. Even if another position was found for him in the Bank in Perth, it would be reasonable to assume there would be an adverse impact on [Mr G]’s career and hence on the financial position of the family. It is conceivable that, in time, this will place some strains on [KG]’s relationship with [Mr G]. It also has the potential to lead to animosity between [RB] and [Mr G], who thus far appear to have managed to remain on reasonably civil terms. Either way, however, there is likely to be a serious deterioration in their relationship, since [RB]’s bitterness towards [Mr G] arising out of his plans to take [HB] to [the Eastern States] was palpable.

32 Whilst [KG] and [RB] continue to be critical of each other for the problems that exist between them, I consider each has to accept

some responsibility. There is little doubt that [RB] is pedantic and has enormous difficulty concealing the bitterness and hurt he feels from past events. He has not been able to fulfil the role he wanted to play in his son’s life and this causes him great sadness because he is a very committed parent. If [KG] still carries a similar level of bitterness and hurt, she was much more successful in concealing it from me than she apparently was in the proceedings before Anderson J. However, she has, on occasions, aggravated the situation. One example of this has been her insistence on her entitlement to suspend contact when she is taking a holiday within the State. There was no reasonable basis for her to consider she was entitled to do this under the terms of the existing order. Another example was her failure to inform [RB] earlier that [HB] had been enrolled at [a private school]. I acknowledge that the Court order required her only to give [RB] three months’ notice before he commenced at the school, but I cannot see why she would not have told him as soon as his place was secured.

Conclusion

33 As was acknowledged in the closing addresses, we are living in an increasingly mobile society. The days of families growing up and living in the same community from one generation to the next are fast becoming a thing of the distant past. Regrettably, this change in our way of life has occurred at the same time as the rate of family breakdown has skyrocketed. The impact of these changes is felt particularly severely for people living in Perth, the most isolated major city on the planet.

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Regrettably, a move even to the capital of our neighbouring State involves a plane journey of many hours.

34 Relocation cases are notoriously difficult to decide. They often involve families just like this one, where both parents have been playing an active role in the life of the child and both have something to offer. However, in my view the outcome of this case is almost inevitable. [HB] has been living with his mother and [Mr G] for the majority of his life. He is an integral part of their family. He wants to continue living with them. It is in the interests of the family as a whole for [Mr G] to obtain better income and the advancement likely to flow from the move to [the Eastern States]. This will allow [Mr G] to provide a better standard of living for [HB] and to assist him financially whilst he completes his education.

35 [HB] has now reached a level of maturity where absence from his father will not have a long-term impact on the strong relationship they have forged. Although there will be a significant reduction in the frequency and extent of contact, there will still be regular contact during school holidays and there are ways and means by which they can maintain their association between holidays. In all probability the move will only be for a few years.

36 There will also be some advantages to [HB] associated with the proposed move, including a chance to live in another city. He will also escape some of the tension associated with the ongoing conflict between his parents, who will not have as much contact with each other as they presently do. Fortunately, [HB] has thus far not openly sided with one or other of them, which often happens in such families. This is not to say he might not do so as he gets older and more assertive. It is conceivable that [HB] will find it easier negotiating his early teenage years if he is not frequently moving back and forward between the homes of his estranged parents, but rather spending larger, block times with each of them.

37 [HB]’s move to [the Eastern States] will be a major test for both parents. [KG] will have to bend over backwards to appreciate the importance of ensuring [HB] keeps in touch with his father. She will also have to be sympathetic to how badly [RB] will feel about the enforced separation. For his part, [RB] will need to

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conceal his hurt from [HB], who will be feeling bad enough as it is about his father being left behind. It will be tempting for [RB] to express his recriminations to [HB] and demonstrate his grief. Clearly that would not be in [HB]’s best interests. It will be best for [HB] if [RB] lets him know he would have liked him to remain in Perth but then stress the positive things:

• chance to see a new city;

• make new friends;

• longer holidays with Dad;

• lots of flying;

• more money for the family;

• Dad may be able to get over to [the Eastern States]

occasionally;

• coming home in a couple of years.

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Orders

38 There was not a great deal of difference in the proposals made by both parents in relation to the contact [HB] will have with his father after he moves to [the Eastern States]. My rulings in relation to the areas of difference are as follows:

(a) If [RB] is able to go to [the Eastern States], I do not consider his contact should be restricted to each alternate weekend as [KG] proposed. I consider he should have contact on each weekend he is in [the Eastern States] and that the contact should conclude at 7.00 pm on Sunday;

(b) I consider it reasonable if [RB] is in [the Eastern States] that he also sees [HB] on two occasions midweek but not overnight as he proposes, as in my view that would be unnecessarily disruptive. Such contact should conclude at

7.00 pm;

(c) It is agreed that the contact at the end of the first and third school terms should be for the whole of the holidays, except the last weekend. The area of disagreement relates to the holidays at the end of the second term. [RB] seeks the same arrangement as for the other midyear holidays, whereas [KG] proposes that the contact conclude on the second Monday of the holid ays. Although there have been no submissions on this issue as yet, I presume [KG]’s proposal is made on the basis that it would be reasonable for [HB] to have an opportunity to have a short midyear holiday with [KG], [Mr G] and the girls, as otherwise the only opportunity he has for a holiday with them is for one half of the Christmas holidays. Given their somewhat closer proximity to the eastern seaboard and the possibility of also taking the opportunity to look around South Australia, I consider [KG]’s proposal to be preferable;

(d) [RB] also seeks contact on the weekend of Father’s Day and the weekend immediately following [HB]’s birthday. I accept that both of these are important occasions and ideally [HB] will be able to fly home for a visit on each of those weekends. However, as [KG] is meeting all of the costs associated with the travel for the other holiday periods, I consider it would be appropriate, if he wishes to have contact on these weekends, that [RB] bear the cost.

39 Whilst I do not consider that all of the other orders sought by [RB] are strictly necessary to be made, I would be prepared to make orders in terms of the paragraphs numbered (II), (III), (IV), (V) and (VI) of the Form 1A Response.

40 I am not convinced that an order in terms of paragraph (VII) is necessary provided that appropriate arrangements are put in place for [HB] to have telephone contact with his father during any extended absence from [the Eastern States]. Nor am I convinced that orders in terms of paragraph (VIII) are appropriate and I am concerned that an order made in those terms would be likely to lead to disputation. I anticipate that there will be times when [KG] and [Mr G] will come back to Perth, for example to visit their own relatives here. Whether it is appropriate for that time to be interrupted by additional contact with [RB] would depend on how recently he had spent time with [HB]. I consider it would be preferable, where practicable, for [KG] to give 28 days’ notice of her intention to visit Western Australia and for [RB] then to have liberty to apply to the Court in the event he considers any proposal made by [KG] for contact at that time to be unreasonable.

41 I am not prepared to make an order in terms of paragraph (IX) of the Form 1A Response. Although I have accepted that [KG] and [Mr G] are genuine in anticipating that they will be away from Western Australia for only two to three years, it is not possible for them to guarantee that they will return within that period of time.

42 Nor am I prepared to make an order in terms of paragraph (X) of the Form 1A Response. Although I consider it highly likely that contact would not be refused save for exceedingly good reason, I would be prepared to grant liberty to [RB] to apply on very short notice for a recovery order in the event of non-compliance. In the event of such an application being made, I would see it as being appropriate for the matter to be dealt with either by myself or by a

Magistrate on short notice, with [KG] required to take part in the proceedings by way of telephone link.

43 As counsel have not yet had the opportunity to make submissions in relation to the details of the contact orders, I will refrain from setting out the proposed form of orders in these reasons. I will ask counsel to provide me with a Minute of the orders they see as being appropriate to give effect to my reasons. If they desire to make any submissions in relation to the finetuning of the orders, I will give them an opportunity to do so at a Special Appointment in the very near future. Otherwise, if the terms of the Minute can be agreed, I will make the appropriate orders in chambers.

I certify that the preceding [43] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate