Bell and Sharpe
[2011] FMCAfam 1249
•22 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BELL & SHARPE | [2011] FMCAfam 1249 |
| FAMILY LAW – Parenting orders – relocation – child lives with the mother and spends time with the father – mother wishing to relocate with child to Perth – best interests of the child – child’s diagnosis of Attention Deficit Hyperactivity Disorder – child’s relationship with father strong enough to be sustained despite relocation – benefits to mother and thereby child. |
| Family Law Act 1975 (Cth), ss.65D, 61DA, 60CA, 60CC, 65DAA |
| Godfrey & Sanders [2007] FamCA 102 MRR & GR (2010) 263 ALR 368 |
| Applicant: | MS BELL |
| Respondent: | MR SHARPE |
| File Number: | DGC 2309 of 2007 |
| Judgment of: | Hartnett FM |
| Hearing date: | 31 October 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 22 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Samson |
| Solicitors for the Applicant: | Peninsula Law |
| The Respondent: | Appeared in person |
THE COURT ORDERS THAT:
All previous parenting orders are discharged.
The mother and father have equal shared parental responsibility for the child, [X] born [in] 2004.
The child live with the mother.
The mother and the child be permitted to live in the State of Western Australia in the city of Perth, as and from 4 January 2012.
The child spend time and communicate with the father in Victoria or at the election of the father in Western Australia as follows:
(a)each school term holiday not including the Christmas holiday period, for a period of 10 days;
(b)each Christmas holiday for a period of not less than three weeks and in each alternate time, the time will include Christmas Day such that in odd numbered years, the child will spend the first three weeks with the father and in even numbered years the child will spend the second three weeks with the father; and
(c) otherwise as agreed.
For the purposes of travel and for a period of three years the mother will pay for the costs of the travel and arrange for [X] to be accompanied to and from the State of Victoria. Thereafter the parties will share the costs of the travel of [X] to and from Victoria. If the father should travel to Perth he shall do so at his own expense.
The mother to provide the following to the father as soon as possible:
(a)her exact departure date from Melbourne to take up residence in Perth;
(b) the child’s residential address in Perth; and
(c)the mother’s land line and mobile phone telephone numbers and she is required to have both.
Pending the mother’s relocation with the child to Perth, the father spend time with the child as may be agreed between the parties in writing and to include each weekend if desired by the father from 10am every Saturday to 5pm Sunday and from 9am on 24 December 2011 until 5pm on 2 January 2012.
The father communicate with the child at any reasonable time as follows:
(a) by telephone;
(b) by Skype calls;
(c)by letters, cards and gifts, the mother to ensure the child receives any items as sent by the father; and
(d)by email should the father avail himself of such technology.
The mother authorise the child’s school in Perth to provide the father with copies of all the child’s school reports, school notices, school photographs and any other information normally provided to parents, or any information the father may request about the child.
The mother be permitted to enrol the child in a primary school of her choosing in Perth and within seven days of such enrolment she is to notify the father of the name and address of the school.
Each party shall as soon as practicable notify the other parent of any medical emergency involving the child.
Each party shall keep the other informed of their current residential address, land line telephone number, mobile telephone number and email address, if any.
That for the purposes of the father spending time with the child in Victoria or Western Australia, pursuant to paragraph 5 herein;
(a) The mother shall provide to the father:
(i)a copy of the Perth school term dates at least seven days prior to the commencement of each school year;
(ii)a copy of the child’s flight itinerary at least seven days prior to the periods during which the father is to spend time with the child in Victoria;
(b)The mother shall be responsible for the costs and purchase of return air fares for the child travelling as an accompanied minor from Perth to Melbourne for three years up until the 4 January 2015, but not the Christmas holidays of 2014/2015.
Pursuant to ss.62B and 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in attachment A and these particulars are included in these orders.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules 2001 (Cth) the Court is satisfied it was reasonable for the mother to employ an advocate.
All extant applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Bell & Sharpe is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
DGC 2309 of 2007
| MS BELL |
Applicant
And
| MR SHARPE |
Respondent
REASONS FOR JUDGMENT
These proceedings commenced on 29 March 2011 with the mother filing an initiating application. That application was amended by her by amended initiating application filed 20 October 2011. The mother sought parenting orders with respect to the parties’ child, [X] born [in] 2004. [X] is now seven years and six months of age.
There have been earlier proceedings in relation to parenting orders for [X] between the parties in this Court. Those earlier proceedings resulted in final parenting orders made by consent as between the parties and an independent children’s lawyer on 4 September 2008. The orders provided that each of the father and mother retain equal shared parental responsibility for the child [X] and that [X] live with his mother and spend time with his father. The time spent with included special occasions and a regime of each alternate weekend from 5pm Friday until 5pm on Sunday, together with each Tuesday which became alternate overnight periods.
The orders of 4 September 2008 put an end to, as it were, the mother’s desire at that time to relocate to the State of Western Australia. The mother abandoned her application to relocate with [X] to Western Australia being in part influenced by a family report which recommended that [X] remain in close proximity to his father given his then young age. The mother agreed to remain in the State of Victoria and to the regime of regular time spent between [X] and his father in the ensuing period. Further in the course of those proceedings, the mother agreed to remain residing in the [F] area, although there was no order to that effect compelling her to do so. Nevertheless the orders taken in totality assumed that she would remain in the geographical area in which she was then residing. It is in close proximity to the father’s mother’s place of residence.
History
The mother was born [in] 1983 and she is now aged 28 years. The father was born [in] 1965 and he is now aged 46 years. The parties began a relationship in 2001 and after cohabitating, they married [in] 2003. The parties separated on 17 September 2005 and divorced on
1 August 2007. At the time of the parties’ separation, [X] was aged approximately one year and four months. [X] continued to live with his mother following separation and has always done so.
On 30 May 2006, orders were made by consent which provided for the father to spend time with [X] with any overnight time being spent at the home of the paternal grandmother. The father’s time spent with was conditional upon that order. On 9 May 2007, Dessau J ordered that all previous orders be discharged; that [X] continue to live with his mother; that the parties continue to have equal shared parental responsibility for him and that the father spend time and communicate with [X] as may be agreed between the parties from time to time.
On 9 January 2008, the father filed an application to restrain the mother from removing [X] from the south-east suburbs of Melbourne. The mother filed a response seeking to relocate with [X] to Western Australia and those proceedings ended with the orders by consent earlier referred to in these reasons.
Following the making of the orders in September 2008, the father moved his place of residence from the [F] area to [omitted] in Western Victoria – a drive of some three hours from the home of the mother and child. That move of residence by the father created difficulties between the parties and resulted in a general lack of support provided by the father to the mother in parenting the child, in particular, because [X] suffers from Attention Deficit Hyperactivity Disorder (“ADHD”).
On 29 March 2011, the mother filed her application seeking to live in Perth with [X]. That application is opposed by the father.
The mother relies upon the following documents in addition to her amended application:
a)affidavit of the mother sworn 10 March 2011;
b)affidavit of the mother sworn 14 October 2011; and
c)affidavit of Ms B, the mother’s mother sworn on 19 October 2011.
The father relies on an affidavit sworn by him on 23 May 2011 which includes in essence his response which is he is seeking that the mother’s application be dismissed and that she remain living generally in the same geographical area. Mr Sharpe is a litigant in person in the proceedings.
There was also introduced into evidence in the proceedings a family report dated 30 September 2011, prepared by Ms D, Regulation 7 Family Consultant. Ms D was cross‑examined by the parties and her evidence shall be canvassed later in these reasons. There is also before the Court and marked as exhibit “IB1” a medical certificate from Dr W completed on 24 October 2011 as to the mother’s medical condition. That report is evidence of the mother suffering from an obsessive compulsive disorder, a condition which she has suffered from since 1997 and which has been reasonably well controlled on medication.
The mother in her amended application continues to seek that she and [X] be permitted to live in the State of Western Australia in the city of Perth. The mother seeks no change to the parties having equal shared parental responsibility for [X], and to the continuation of [X] residing with her. The father does not seek in his opposition that there be any change to the equal shared parental responsibility order, and nor any change to [X] residing with his mother, save if his mother is to herself relocate to Perth, leaving [X] in Victoria. The mother indicated in the proceedings that she would not leave the State of Victoria without [X], and indeed Ms D made a correction to her report when cross‑examined in evidence. Referring to paragraph 52 of that report, Ms D indicated that she was incorrect when she said:
“In addition, she spoke about the possibility of leaving [X] behind with his father if she is unable to relocate with him. It raises concerns that her reasons for moving are focused on her needs rather than the child’s needs.”
Ms D admitted that this was incorrect and that the mother did not suggest to her at any time that she would leave [X] behind in the care of his father were she unable to relocate to Western Australia.
The mother sets out in the orders sought by her the time proposed by her for [X] to spend with his father and further proposes that she will meet the costs of travel for [X] and arrange for [X] to be accompanied to and from the State of Victoria indefinitely. The mother seeks (in the amended initiating application) orders in the alternative which provide for she and [X] to travel to Perth during periods as set out by her in that application.
Following the making of the orders in September 2008, [X] spent time with his father in accordance with those orders until early 2010 when the father relocated to country Victoria and placed considerable distance between the parties. This made it not possible for [X] to spend time with his father during the week.
Since the making of the orders in September 2008, the mother has re-partnered and resides with a Mr S. They have a daughter, [Y] born [in] 2010. [Y] is approaching two years of age and has a close relationship with her older brother [X]. I accept the mother’s evidence that Mr S and [X] have a good relationship and engage in various family activities together. I accept her evidence that:
They regularly ride bikes together, spend time at the park and have a mutual interest in computers. The regular outdoor activities assist [X] to manage his attention deficit hyperactive disorder by allowing him to release energy in a healthy manner. As a family, we attend [X]’s basketball training and competitions.
The mother seeks to relocate to Perth with [X], Mr S and their daughter [Y] because her extended family reside there. Both of her parents reside in Perth, her father having lived there for nearly 20 years. Her mother, Ms B, moved to Perth some two and a half years ago, anticipating that her daughter and grandson would be able to relocate with her in 2008. That did not eventuate, given the court proceedings and consequent orders made, and Ms B travelled on her own to Perth to take up residence there. Her other two children were living there. Her son, Mr B, and his partner of two years, [name omitted], live in Perth, and her daughter Ms E and her partner live in a suburb close to Perth. The mother in these proceedings remained the only member of her family continuing to reside in Victoria. The mother has continued to feel isolated from her family and she misses them immensely. [X], the child the subject of these proceedings, and her daughter [Y] have consequently had limited opportunity to spend time with their maternal grandparents, aunty and uncle. Residing in Victoria has however given [X] regular contact with his paternal extended family.
The mother really puts her case on the basis that it would be in the best interests of the child for her to be permitted to relocate with him and take up residence in the State of Western Australia because of the support her family could provide to her, and thereby to [X], both financially and emotionally, and being support which the father cannot provide and has not provided in the same degree. The mother says that she has a special need for such support because of her medical condition. From the age of 14 years she has suffered from obsessive compulsive disorder. She takes the antidepressant Zoloft, but her mental health, as attested to by her general practitioner Dr W, deteriorates in times of stress. Dr W’s opinion is that the mother would benefit from support from her immediate family from time to time and when she has a relapse to assist with regaining mental stability and controlling her condition. He concluded in his report that the mother would benefit from living geographically close to her family for that reason. Stressful situations have arisen for the mother in her dealings with the father including arrangements with the father about the child which do not proceed as planned and times for collection and delivery of [X] that are not adhered to.
The maternal grandmother was not cross‑examined by the father and her evidence is unchallenged. The contents of her affidavit were compelling. She provided support to her daughter and grandson throughout the proceedings in 2007 and 2008, and she has continued from afar to provide what support she can to her daughter, in particular to assist her in coping with her mental illness. That support, whilst her daughter has remained residing in Victoria, has included the provision of a home in which her daughter and grandson reside and pay rent, but at a subsidised rate.
Ms B’s evidence is that she is able to support her daughter, assisted by her ex-husband, son and other daughter when the mother in these proceedings is dealing with her mental illness because they as a family understand the condition and are able to help her keep her anxiety under control. They remind her that it is the obsessive compulsive disorder causing her anxiety and stress about how [X] is being cared for when in his father’s care, rather than necessarily a problem with the father’s care. Ms B’s evidence is that the geographical distance between the mother and her family is difficult for the mother and difficult for the family in their attempts to help her deal with her anxiety and stress. She said in paragraphs 2 and 3 of her affidavit:
“2. We as a family and especially me, Ms Bell’s mother understand Ms Bell’s coping strategies when dealing with her OCD. I was fully involved in Ms Bell’s younger years during her treatment for her mental illness and I also received full and comprehensive counselling from [omitted] with strategies to help Ms Bell cope and control her anxiety associated with her mental illness.
3. I am aware and feel strongly that Ms Bell is less stressed and suffers less anxiety when she is within her family unit. The distance between us adds to Ms Bell’s discomfort due to her OCD.”
Ms B deposes as to her preparedness to pay for and accompany [X] during his flights back to Victoria to visit his father and his subsequent return to Perth in Western Australia. She also deposes to her eldest daughter and son, the mother’s brother and sister, being also prepared to assist in this manner. Their preparedness is indicative of a genuine willingness to support the father-child relationship.
The father made clear to the Court that he would not relocate to Western Australia were his son permitted to do so. Further, he does not intend to return to the [F] environs to live saying that any time he spends with his son in that area can be spent at the home of the paternal grandmother being an environment the child likes and feels comfortable in.
The family report
The report writer noted that [X] had lived with his mother since the parties’ separation in 2006 and now lives with the mother, the mother’s partner and their daughter, [Y]. She further noted that although the orders made in September 2008 provided for the father to spend time with [X] each alternate Tuesday and on an overnight basis that that time spent with had not been occurring since early 2010 when the father moved to country Victoria to take up employment in the hotel in which he is no longer employed.
She noted further that the mother was and is a full-time mother and her partner employed on a casual basis at [omitted] and that [X] attends [omitted] Primary School.
The report writer set out accurately the father’s various reasons for opposing [X] being relocated to Western Australia and for his wish that the child remain living with his mother in the [F] area where his own mother resides.
The various reasons for opposing his son being relocated to Western Australia by the father include the following as set out in the family report paragraph 9:
· “He cannot obtain leave from his job to coincide with Ms Bell’s holiday proposals for him to spend time with [X]
· While Ms Bell’s proposals appear reasonable, he considers that she would not be able to afford the cost of return airfares and there is no guarantee that her family can continue to meet those expenses indefinitely
· His face to face relationship with [X] will only be limited to school holiday periods and the lack of a regular relationship would weaken the close bond he currently has with [X]
· That maintaining a regular relationship by telephone or computer with [X] is unsatisfactory to him
· That [X] enjoys a close relationship with members of his paternal extended family who live in Victoria and a relocation to Western Australia would impact on those relationships”
In relation to the concerns expressed by the father, the Court notes that the father currently does not have a job; has not had a job for some time and in any job he undertakes in the future he will be limited to four or five weeks’ annual leave which would limit the school holiday time he could spend with [X] in any event and regardless of what part of Australia [X] resides in. His evidence indicated a lack of preparedness to take holiday time with [X] which would provide the mother with some respite and strengthen the bond between the father and child. He desires weekend time only in the main where he is assisted by his mother. This is not progressing, by variation and longer periods of responsibility, his involvement in [X]’s life.
Further, the Court notes Ms B’s affidavit evidence as to her provision of funds for [X]’s transportation to and from Victoria which in the Court’s view should have some time limit on it. The father provides little in the way of financial support for his son. He should be in a position in three years’ time to make a contribution which may be partially offset in any event in relation to any child support assessed amount. The difficulty is he pays no amount or a minimal amount and that should change if he is to genuinely support his son. [X] has remained in Victoria for the last three years. This has impacted adversely upon the relationship between [X] and the maternal extended family. He has had time however to bond with the paternal family in sufficient degree for it to be lasting.
The mother reported to Ms D that she missed her family very much and wished to reside in Perth to be near them. She reported that [X] suffered from ADHD and claimed that although she had provided the father with information on [X]’s needs and given him [X]’s Ritalin tablets for the child to take, it was her belief that the father did not administer such medication to [X] on a regular basis.
The father concurred with the mother that communication between them was poor. The father stated to Ms D that he did not think [X] had ADHD and noted, “he is just a busy kid”, who needs to be occupied. He confirmed that he did not always give the medication prescribed to the child, but claimed that was because the mother did not supply him with it. I do not accept that evidence and prefer that of the mother in this regard. The father doubts the accuracy of the diagnosis and is not inclined to accept medical advice concerning [X]’s health needs. He undermines the mother’s attempts to administer appropriate and prescribed medication and in so doing does not act in [X]’s best interests and creates conflict with the mother. Further, despite his lack of acceptance of the diagnosis the father has not further consulted the professionals involved to gain greater insight into the condition. The parties are essentially not of the same view when dealing with the condition.
In her observation of the child Ms D noted that [X] interacted easily with Mr S and that at the time the mother’s attention was mainly directed to [Y] who impressed as a happy toddler. She observed [X] to relate easily with his father and to enjoy his father’s attention and involvement with him. Her observations did not give rise to concern for [X] in the care of either parent. When [X] was asked by the report writer to list the people he loves he included both parents and his sister, but not Mr S. However, he later stated that (Mr S) was his favourite person because he played with him. He stated that the kindest person in his family was his sister and he feels closest to her. He said, as to the move to Western Australia, that he would be quite happy about moving but did not appear to understand how a move would impact on his relationships with his father and paternal family. He is too young and lacking sufficient maturity to give the expression of his views any real weight and in a consideration of them as required pursuant to s.60CC of the Act, I do not do so.
The report writer did not support a relocation of [X] to Western Australia with her main concern being that [X] was seven years of age and did not have the maturity to offer views based upon his needs. She noted him to be a child with special needs who would have to make the huge adjustment of leaving his mother’s household and spending longer periods of time with his father during school holiday periods. Further, the report writer noted the move would impact upon the regular relationship [X] has with his father and members of his paternal family who live in Victoria and that additionally as the parental relationship had been poor for a long time, it was difficult to see how the mother would willingly foster and maintain a positive relationship between [X] and his father from a distance.
The totality of the evidence however addresses these issues in a manner supportive of the relocation and emphasises the mother’s need for support in her primary caregiver role and her diligence in fostering the relationship between father and son in the last few years and her proposals to continue doing so into the future. Contrary to the view of the family report writer, the Court (having also adopted the consideration hereafter) determines that it is in the child’s best interests to live in Perth. The mother suffers from obsessive compulsive disorder and [X] has special needs. The mother will be better supported for herself and in her ability to deal with [X] when close to members of her family. She often suffers panic attacks associated with the thought of having to live in Victoria for many years. Her good health will be assisted by residing in Perth and as a consequence she will be a better parent to both her children. She receives little support in respect of handling [X]’s ADHD from the father who does not believe the child suffers such a condition. Any practical support she received disappeared when the father reduced his time spent with [X], by virtue of his own relocation.
The law
S.65D of the Family Law Act 1975 (Cth) (“the Act”) provides that a court may make such order as it thinks proper subject to s.61DA which requires the Court to apply the presumption of equal shared parental responsibility when making parenting orders. In these proceedings that presumption is not rebutted and the parties both agree that a continuation of the equal shared parental responsibility order that has been in place since the first orders were made in this Court should continue.
The parties also agreed that it is not possible, despite that order, for [X] to spend equal time with each of his parents, that is, whether the mother and child relocate to Perth or whether the mother and child remaining living in Victoria in [F]. The father has moved to country Victoria and has no intention of relocating back to the area in which the mother and child currently reside. That relocation, some time ago now, made [X] spending equal time with each of his parents not reasonably practicable and both parties acknowledge this.
Indeed, both parties agree that it is in [X]’s best interests that he continue his primary residence with his mother and spend time with his father on a limited basis, being for the most part each second weekend. Whilst the father spent, historically, substantial and significant time with [X], and wishes to continue to do so in the form of alternate weekends as provided for and other special occasions and holiday time, such time is limited by the father’s employment prospects as he sees them and as referred to in the evidence given by him.
Certainly, if the mother and child are permitted to relocate to Western Australia, it will not be reasonably practicable for [X] to spend substantial and significant time with each of his parents, in that his time spent with his father will be limited to school holiday periods. His father’s evidence is that he himself will not have the financial capacity to travel to Western Australia and nor does he have the desire to do so.
In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (s.60CA of the Act). In determining what is in the best interests of the child the legislation directs the court to primary and additional considerations, as set out in s.60CC of the Act. ss.60CC(2) and 60CC(3) set out those considerations and are as follows:
“60CC How a court determines what is in a child’s best interests
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Addition considerations
(3) Additional considerations are:
(a) 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;
(b) 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);
(c) 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;
(d) 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;
(e) 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;
(f) 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;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) 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;
(m) any other fact or circumstance that the court thinks is relevant.”
In the decision of MRR & GR (2010) 263 ALR 368, the Full Court of the High Court determined a matter concerning equal time and relocation. At paragraph 13 the High Court said as follows:
“Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order.”
In determining whether there should be an order for equal time or substantial and a significant time and whether such an order is in the child’s best interests, the primary considerations are: the benefit to the child of having a meaningful relationship with both of his parents and the need to protect the child from physical or psychological harm. Both parties agree that [X] has a meaningful relationship with each of them and that he is loved by both of them and loves each of them. It is also the position of the mother and father that it is in [X]’s best interests for him to continue to have a meaningful relationship with each of them. There is also no child protection issue in respect of either party’s care of [X].
Kay J considered the words “a meaningful relationship” in Godfrey & Sanders [2007] FamCA 102 at 33 and 34 and said the following:
“33. The Act 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.
34. In this case all the evidence, especially that of Dr J, clearly indicates that the children have already established a meaningful relationship with their father and that the relationship will be likely to be maintained even if the mother moves with the children to Queensland provided that arrangements can be properly made to ensure regular visits of adequate duration.”
The mother when cross-examined by the father attempted to give a truthful account of the history between the parties and the factual matters that exist at the present time. I am satisfied that the mother’s reasons for wishing to relocate to Western Australia are genuine and that the support which she felt vital to her emotional and financial wellbeing, as provided by her extended family and, in particular, her mother, which she expressly needed in 2007 and 2008, continues to be needed by her and continues to be important to her mental health functioning.
When looking to the additional considerations the following is apparent:
a)the evidence before the Court leads the Court to conclude that the mother will encourage and facilitate the relationship between [X] and his father in the event that she is able to relocate with him to Perth. In the years between 2008 and 2011, she has promoted the bond between father and son, despite the difficulties presented by the father as she perceived them and [X] and his father have a very good relationship. [X] is now older and despite his ADHD condition is able to relate warmly with his father and displayed (before the report writer) a close bond with him. I accept the father’s evidence that he is able to entertain and care for his son over a longer period;
b)although it promotes [X]’s bests interests to regularly see his father it also does so to live in a household where his mother is emotionally and financially secure and where her mental health is best promoted. I accept her evidence that she will travel nowhere without [X] and that she puts [X]’s interests very much before her own. She did so in 2008;
c)the father was vague as to the financial support he has provided to the mother for [X]’s care in the years since separation and did not acknowledge the lack of emotional support he has provided. He showed somewhat a lack of insight into [X]’s medical condition and, likewise, into the best way to manage the mother’s own medical condition;
d)the mother’s anxiety and panic attacks will lessen and/or be better supported if she is permitted to relocate to Perth and have the assistance of her family, in particular her mother. I am not satisfied that it is reasonably practicable to require the mother to remain in Melbourne, or in [F] as the father proposed, with little financial and emotional support from the father who himself resides some distance away;
e)the mother will have the support of her mother, brother, sister and father in Perth in the provision of a home for her family in which they can reside and in the provision of emotional and other support, including support for her mental illness;
f)the father does not wish to relocate to Perth and, indeed, currently does not wish to relocate to [F]. He is without employment but hopeful of gaining employment in country Victoria. That employment however, he does not see as being able to readily fit with periods of time when [X] may be able to spend holiday time with him. His capacity to provide for the child’s needs are less than the mother’s and his attitude to the responsibilities of parenthood are also less. He makes no significant contribution but then claims his future work will preclude him from spending holiday time with [X]; and
g)allowing the mother to get on with her life and relocate with [X] to Perth will provide some finality as to this issue and be least likely to lead to further proceedings.
The arrangements proposed by the mother for [X] to spend time with his father do ensure regular visits of adequate duration as envisaged by Kay J in Godfrey & Sanders.
I am satisfied that the best interests of [X] will be served by permitting his relocation with his mother to the State of Western Australia. This arrangement best serves his interests and is concluded on the basis of the evidence before the Court. Included in a consideration of that evidence has been an exploration as to whether the father would consider a move himself to Western Australia.
I am satisfied in all the circumstances of this particular case that it is in the child’s best interest to make the orders which are sought by the mother and I am satisfied that they are the orders which set out what is reasonably practicable given the parties’ anticipated geographical location.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Date: 22 November 2011
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