BYRNE and KRILLY
[2018] FCWA 158
•23 AUGUST 2018
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: BYRNE and KRILLY [2018] FCWA 158
CORAM: DUNCANSON J
HEARD: 9, 10, 11, 12, 13 APRIL 2018
DELIVERED : 23 AUGUST 2018
FILE NO/S: PTW 3663 of 2016
BETWEEN: MR BYRNE
Applicant
AND
MS KRILLY
Respondent
Catchwords:
CHILDREN - Where orders made for child to live with mother and she be permitted to relocate child to [Europe] - Where there has been family violence - Orders made for mother to have sole parental responsibility for child - Child to spend time with father
Legislation:
Family Court Act 1997 (WA) s 66, s 66C
Category: Reportable
Representation:
Counsel:
| Applicant | : | Ms D Taylor |
| Respondent | : | Mr R Bannerman |
| Independent Children's Lawyer | : | Ms H Athanasiou |
Solicitors:
| Applicant | : | Saxon Legal |
| Respondent | : | Bannerman Solicitors |
| Independent Children's Lawyer | : | Ferrier Athanasiou & Kakulas |
Case(s) referred to in decision(s):
Zahawi & Rayne [2016] FamCAFC 90
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1These proceedings concern [R] who is six years of age. R lives with the mother, [Ms Krilly] and spends time with the father, [Mr Byrne] on two days each week. The mother wants R to continue living with her and she seeks to relocate him to [Europe]. The father wants R to continue living in Perth and he wants R to spend more time with him.
2The Single Expert Witness, [Ms C] summarised the parties' positions as follows:
… The prospect of each parent changing their views is unforeseeable. The mother on the one hand wishing to relocate to raise the child with his family in [Europe] and also for her own support, career, relationship and financial prospects. The father on the other hand wanting the best for the child in Australia with a preferred climate, environment and opportunities for the child, together with job and financial security for himself and to progress the relationship with his partner.
FAMILY BACKGROUND
3The father was born [in] 1981 in Europe. He is 37 years of age. The father is self-employed as a [plumber].
4The mother was born [in] 1983 in Europe. She is 35 years of age. She is engaged in home duties.
5The parties began living together in 2002. R was born [in] 2012. The parties separated finally in July 2015.
6Both parties live in Perth. The father is engaged to [Ms T]. Ms T is employed in [retail] and is a part-time [hairdresser]. They began living together in July 2017.
7The mother is in a relationship with [Mr S]. They met in December 2015. Mr S lives in Europe. He is 29 years of age and is [an architect].
SHORT HISTORY
8Both parties grew up in [European Town A], where their families live.
9The parties lived together with the father's family in European Town A for several years prior to moving to Australia.
10The parties came to Australia in December 2008 on working visas. In late 2009 they settled in [Victorian Town A].
11The parties travelled to Europe on holiday and family members visited them in Victorian Town A.
12R was born in Victorian Town A. The parties became permanent residents of Australia in April 2012.
13After R's birth the mother was his primary carer. She returned to work when he was about one year of age.
14There was family violence between the parties. The father suffered a depressive anxiety disorder. He attended upon a psychologist. In November 2013 the parties separated. After separation R remained in the care of the mother, but spent time with the father.
15The parties went on holiday to [Asia] in 2014.
16In early 2015 the father worked in [Victorian Town B], and R continued to spend time with him. The parties had a good relationship with each other at this time.
17In June 2015 the parties reconciled and re-commenced living together in Victorian Town A.
18The father's behaviour subsequently deteriorated. The parties separated finally [in] July 2015, and the mother obtained alternative accommodation.
19R continued to spend time with the father supervised by the mother.
20The mother was concerned about the father's mental health and on 6 August 2015 applied for a justices examination order to have the father's mental health assessed. The father was taken to Victorian Town A Mental Health Unit for assessment. The mother applied for a domestic violence order on 7 August 2015, which she subsequently withdrew as the father was cooperating with the Mental Health Unit and his family visited Australia. On 17 August 2015 the father was discharged from hospital after being diagnosed with a suspected delusional disorder.
21The mother remained concerned about her safety. The Mental Health Unit made an involuntary treatment order on 1 September 2015. The father was again detained on 2 September 2015 and discharged on 7 September 2015.
22In October 2015 the parties and R went to [South East Asia] together. During their stay the father removed the mother's and R's passports, he threatened to harm her.
23There was further family violence by the father to the mother. The mother was frighted by the father's behaviour. The father said she denied him time with R. At this time there were a number of phone calls between the mother and the father's family. The father's family wanted them all to return to Europe.
24On 7 December 2015 the mother left Victorian Town A with R and travelled to Europe. She arrived on 9 December 2015.
25The father travelled to Europe and arrived on about 24 December 2015. R spent time with the father supervised by the mother, and subsequently by her sister.
26Prior to travelling to Europe, the father commenced proceedings in the [Family Court in Europe] to have R returned to Australia pursuant to the provisions of the Hague Convention.
27On 26 April 2016 the mother was ordered to return R to Australia before 26 May 2016. The parties entered into undertakings with respect to the return.
28The mother chose to return to Perth where she and R arrived on 27 May 2016. The father moved from Victorian Town A and settled in Perth.
29The father commenced these proceedings on 27 June 2016 to restrain R's removal from the jurisdiction pending the resolution of the dispute about his future.
30In July 2016 R commenced spending time with the father each week supervised by [a contact service]. On 3 February 2017 orders were made providing that R's time with the father be supervised by a friend of the father, or other person to be agreed between the parties.
31On 4 December 2017 orders were made by consent providing that R's time with the father be unsupervised. It was ordered that R spend time with him every Tuesday afternoon and during the day on either a Saturday or a Sunday each week.
32Handovers are conducted by either Ms T or another third party.
33On 22 December 2017 orders were made by consent providing that the mother have permission to take R to Europe for the purpose of a holiday between 29 December 2017 and 22 January 2018. The father also travelled to Europe and spent time with him there in January 2018.
34R continues to live with the mother and spend time with the father.
35At the conclusion of the trial it was agreed that R would commence spending time with the father one overnight each week from Friday through to Saturday and the daytime each Tuesday would continue. It was discussed that the time might progress to two nights. The parties suggested that the Independent Children’s Lawyer circulate a minute of consent orders in this respect. A minute has not been filed.
THE PARTIES AND THEIR WITNESSES
The father
36I consider the father endeavoured to give truthful evidence, but he did not always do so. He minimised his poor behaviour towards the mother.
37In cross-examination the father made concessions where appropriate. For example he conceded he had falsely accused the mother of being a prostitute. He accepted he was correctly diagnosed as having a delusional disorder. He had not however made these concessions known to Ms C.
38The father denied a number of allegations of poor behaviour towards the mother, although for the most part, I accept the mother's evidence in this respect. For example, the father denied stalking or tracking the mother, but I am satisfied that he did.
39The father was less than forthright in his discussions with Ms C prior the preparation of her second report. He did not tell Ms C about the relationship counselling he and Ms T had attended, or that they had separated for a short time a few weeks earlier. He did not tell Ms C about the unit he rents in [Perth Suburb A]. He acquired the rental property when he and Ms T separated, although they reconciled before he took occupancy. I accept that the father continues to live with Ms T at her home and R spends time with them there. He did not depose to these matters in his updating affidavit.
40The father sincerely believes that it is in the best interests of R to remain in Australia and the opportunities for his upbringing here are superior to those in Europe. When propositions were put to him regarding the proposed relocation, he referred back to R's best interests saying he simply wanted R to be happy.
41The father is in a committed relationship with Ms T. They are engaged. The father does not want to move to Europe. Upon his evidence I think it highly unlikely he would do so, certainly for as long as he and Ms T remain in their relationship.
Ms T
42Ms T gave honest evidence and was an impressive witness. She is a good person to be involved in R's life.
43Ms T and the father have had some difficulties in their relationship recently, but Ms T said they are dealing with them and receiving counselling. These proceedings have been stressful for both of them and placed some pressure on their relationship. Ms T is supportive of the father.
44Ms T was well disposed to Ms Krilly.
45Ms T does not want to relocate to Europe. I am satisfied she will not do so.
Ms M
46[Ms M] is the father's aunt. She is a [medical professional] in European Town A. She spoke of a rift between the two families in European Town A.
47Ms M said she would be friendly to the mother if the mother returned. She would like to spend time with R and would make sure he was happy and safe. I am satisfied Ms M had R's best interests at heart.
48Ms M was very supportive of the father although there were matters about which she was unaware. Ms M did not know the extent of the father's mental health difficulties prior to the mother removing R to Europe in 2015, or that the father's mother and sister had encouraged her to do so at the time.
49Ms M did not know that the father accepted both that he was correctly diagnosed with a delusional disorder and that the mother was not a prostitute.
Mr P
50[Mr P] is a psychologist. He provided several reports in respect of the father. In his report dated 12 September 2017, Mr P stated the father did not show signs of suffering from paranoia delusional disorder. The father's moderate levels of anxiety and depression were attributed to the arrangements for him to see R. The father presented as rational, logical thinking and calm at that time.
51The father continued to attend upon Mr P having sessions as part of a mental health care plan. On 9 February 2018 Mr P reported the father appeared to remain normal in day to day life, his relationship with his partner and maintained a healthy relationship with R. As at 23 February 2018 the father had progressed as planned in managing his life, workplace and relationship with R.
52In December 2017 the father commenced attending counselling sessions with the [Alcohol and Drug Counselling Service]. As at 2 February 2018 he had attended three sessions.
53The father acknowledged having consumed alcohol heavily in 2013, but he now drinks mainly beer and to a maximum of five standard drinks. The counsellor reported the father is open and honest about his past and present alcohol consumption and did not report alcohol use to habitually excessive levels or any negative fallout from his alcohol use.
54The counsellor reported it was unlikely that the father would be benefitted by ongoing drug and alcohol counselling at this stage.
Mr B
55[Mr B] is the father's brother. Mr B was critical of the mother's parenting of R. He visited Australia for the second time in August 2015 when the father was in hospital. He did not believe the mother's accusations against the father and was of the view that the mother's emotions were staged. He deposed he witnessed the father being annoyed and exhausted from not having proper access to R.
56Mr B was critical of the mother and deposed to having seen no effort on her part to co-parent.
57Mr B was not aware that the father suffered a delusional disorder in August 2015. Mr B was pessimistic about communicating with the mother regarding spending time with R if she returns to Europe with him.
Mrs B
58[Mrs B] is the father's mother. Mrs B travelled to Australia with the father's brother in August 2015. After hearing reports from the mother concerning the father's health she expected the worst, but found the father to be rational after his discharge from hospital. Mrs B was critical of the mother's conduct during the visit.
59Mrs B disagreed with statements which had been attributed to her by the doctors regarding the father and maintained the only thing wrong with him was that he was not spending time with R.
60Mrs B was not aware the father had been diagnosed as suffering from a delusional disorder.
61There is gossip in European Town A about the dispute between the parties which Mrs B finds difficult.
62Mrs B deposed the mother does not promote R's relationship equally with both sides of the family. Mrs B deposed the mother's family have intimidated her and her daughter causing them to be fearful and she described the environment in Europe as hostile.
63Mrs B would very much like to spend time with R should he relocate to Europe and she wants what is best for him.
64Mrs B said she still loves the mother who she described as part of her family. It is to be hoped that there is some possibility of the mother and Mrs B restoring the previously good relationship.
The mother
65The mother was an honest witness whose evidence was mostly reliable. In cross-examination she was cautious in response. She is an intelligent woman and was keen to make a good impression. I accept that she is unhappy in Australia. The father's behaviour towards her has had a detrimental impact upon her mental health and she strongly desires to live amongst her family in Europe and receive their support.
66An issue at trial was the extent to which the mother has promoted and encouraged R's relationship with the father since the parties separated. She stressed she had done so, however as discussed below I consider she has done what was necessary and complied with orders, but not much more. This has occurred partly because the mother is cautious in her dealings with the father by reason of his past behaviour, and partly by reason of her unhappiness at having to return to and remain in Australia.
67The mother did not tell Ms C of her plans to live with Mr S.
Ms K
68[Ms K] is the mother's sister. She deposed to the father's irrational behaviour towards the mother in 2013 and 2015. She was concerned for the safety of both R and the mother. Although she lived in Europe the father telephoned her on several occasions making allegations which caused her concern.
69The mother confided in Ms K. She facilitated handovers when R spent time with the father in Europe in 2016. She deposed to R and the mother settling well into the community there and to R having a close relationship with her children. She has had nothing to do with the Byrne family recently but would be polite and friendly if she met Mrs B.
70R's cousins attend [European Town B] school.
Ms F
71[Ms F] is from Europe. She is a close friend of the mother and R is friendly with her children. They see each other frequently.
72Ms F described a close relationship between the mother and R. She deposed to the mother's struggle living in Perth away from her family. She has witnessed the impact this has had on the mother describing the mother as on an "emotional rollercoaster".
73Ms F has seen the mother encourage R's visits to the father.
74Ms F and her family were to be returning to Europe in June 2018 where she deposed to their economic prospects being good.
Ms H
75[Ms H] is a counsellor and recovery group facilitator of [a Women's Counselling Service]. She provided a report in respect of the mother dated 13 June 2017.
76The mother sought counselling after returning to Australia in 2016. She reported a history of family violence and a number of trauma symptoms as a result. Ms H reported:
Despite experiencing an initial reduction in her trauma symptoms, ongoing stressors in relation to court process delays, housing costs, financial stress and a lack of supportive relationships and networks in Australia have made it difficult for her to maintain these gains.
[Ms Krilly] is currently experiencing active symptoms of complex trauma including: severe anxiety, panic attacks, nightmares and intrusive memories which have affected her ability to sleep and cope with daily tasks. She also reports a pervasive sense of dread, fearfulness and a loss of a sense of safety and trust in the world. It is widely recognized that chronic uncertainty and prolonged stress can undermine a person's mental health (particularly after traumatic experiences) and hamper a persons ability to re-establish a sense of safety and stability in their lives.
77Ms H opined it would facilitate the mothers improving mental health to have access to support and certainty regarding her future.
Ms C
78Ms C is a clinical, counselling and forensic psychologist. She provided two reports dated 10 June 2017 and 9 April 2018. In her first report Ms C referred to the parties' polarised views as to what was best for R. Ms C reported it was evident that the mother would benefit greatly from returning to Europe to be with family supporting her. She reported in the event the father remained in Australia it would be difficult for R to develop a close relationship with him and the spend time opportunities would include R spending time with the father in Australia.
79In her second report Ms C referred to both parties having re‑partnered and both having strongly held views over where they wish to reside.
80The Family Court proceedings have taken their toll on both parents, and Ms C was of the view that they had neglected R's needs in terms of his speech delay and learning difficulties.
81Ms C reported that R could commence spending overnight with the father at this time, with the overnights increasing prior to a relocation. If R were to remain in Australia a progression to a shared care arrangement could be considered. Ultimately, Ms C reported that consideration could be given to permitting the relocation, with R spending lengthy periods of time with the father during school holidays both in Australia and Europe.
THE LAW
82These proceedings are determined under Part 5 of the Family Court Act 1997 (WA) ("the Act").
83In reaching my decision I will be guided by the objects of Part 5 and the principles underlying those objects.
84Section 66 sets out the objects and the principles underlying them.
85The objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
86In deciding whether to make a particular parenting order, I must regard the best interests of the child as the paramount consideration. Section 66C sets out how I determine what is in a child's best interests. I must consider the matters set out in subsections (2) and (3), being the primary considerations and the additional considerations respectively.
87It is necessary for me to give careful consideration to the proposals of the parties and to determine the arrangements which are likely to promote R's best interests. I am mindful that the best interests of R is the paramount consideration, but it is not the only consideration. It is necessary for me to consider all proposals or, subject to procedural fairness, to formulate others which I consider to be in R's best interests.
88In Zahawi & Rayne [2016] FamCAFC 90 the Full Court said (footnotes omitted):
47.All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children's best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents' proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children's best interests. Concomitantly, Gummow and Callinan JJ said in U v U:
…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
48."Relocation cases" are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children's best interests. However, the issues in a "relocation case" are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
PARENTAL RESPONSIBILITY
89Each party seeks an order for sole parental responsibility for R. The ICL proposes that the parties have equal shared parental responsibility for him.
90Equal shared parental responsibility imposes an obligation on the parties to consult as to major long-term issues regarding the child and to make a genuine effort to come to a joint decision about such an issue.
91The presumption does not apply in circumstances where there is abuse or family violence. The presumption may be rebutted by evidence which satisfies the Court that it would not be the best interests of the child for the child's parents to have equal shared parental responsibility. I refer to this further below.
THE ORDERS SOUGHT
The orders sought by the Independent Children's Lawyer
92At the conclusion of the evidence Ms Athanasiou, the ICL provided a Minute of Proposed Orders which became Exhibit 10. The ICL proposes the parties have equal shared parental responsibility for R and in the event of a dispute they have mediation by Skype. She proposes the mother be permitted to relocate R to Europe in the week beginning 20 August 2018.
93She proposes that pending relocation R spend increasing periods of time with the father. After relocation the ICL proposes R spend time with the father in Australia for five weeks in the European school holidays each year during which time he would see the mother or her nominee once a week for five hours. In 2018 and alternate years thereafter R should also spend up to three weeks in Australia during the Christmas school holidays with the father having the option to spend that time with him in Europe.
94The ICL proposes R spend time with the paternal grandmother for one weekend in three, and the paternal family be permitted to attend school events.
95The ICL proposes a number of other orders including those regarding R's travel and the cost thereof. She adopts many of the orders proposed by the mother regarding the provision of information.
The orders sought by the father
96The orders sought by the father are contained in a Minute filed 21 September 2017. The father proposes that he have sole parental responsibility for R and R should live with him. He proposes that he and the mother have shared input in the decision making, and he proposes further orders regarding the provision of information and permission to travel.
97If the mother relocates to Europe the father proposes that R spend time with her up to four weeks during the Australian summer school holidays, alternating every second Christmas, and on another occasion for up to two weeks when the mother visits Australia. He proposes R spend such other time with the mother as may be agreed in writing. He also proposes video communication.
98If the mother remains in Australia and in the event that the Court makes an order for shared parental responsibility the father proposes that R spend equal time with both parents on a three/four day rotating roster. He also makes proposals for R to spend time with both parents on special occasions.
99If R relocates to Europe and the father remains in Australia, he proposes that R spend time with him on at least two occasions each year for up to four weeks during the European summer school holidays, every alternate Christmas holidays for three weeks in either Australia or Europe and for up to two weeks if the father visits Europe.
100The father proposes further times as may be agreed and video communication on special occasions. He also seeks orders to the effect that his family members in Europe spend time with R and be permitted to attend his special events.
The orders sought by the mother
101The orders sought by the mother are contained within a Minute of Proposed Orders which became Exhibit 11. She proposes that she have sole parental responsibility for R although she will consult with the father as to decisions to be made. She proposes that R live with her and she be permitted to relocate him to Europe no earlier than 1 August 2018.
102The mother proposes that in 2019 and 2020, R spend time with the father for 14 days in Australia and 14 days in Europe with R to return to her care overnight on various occasions during those times. The mother proposes that in 2021 and thereafter R spend 21 days with the father in Australia with some overnights in her care or that of her nominee. She also proposes such other periods as may be agreed if the father travels to Europe.
103The mother proposes R have Skype communication with the father once each week and on special occasions. She will facilitate his time with the paternal family.
104In the event R is not permitted to relocate or pending relocation, the mother proposes he spend increasing periods of time with the father. It is proposed that ultimately he spend time with the father each Tuesday afternoon, each Friday overnight to Saturday, and increasing periods during the holidays such that by 2020 he spends a week with him in the holidays.
105The mother proposes various orders regarding the provision of information (both educational and medical), overseas travel, electronic communication, handover and non-denigration.
The mother's position
106The mother's position is that she wants to give R the best upbringing she can and she will be best able to do that in Europe with the support of her family.
107The mother considers Europe to be her home. She strongly wishes to return to Europe to live among her family. The mother describes her future in Australia as "bleak" if R is not permitted to relocate to Europe. There is no question of her relocating without him. An important aspect of the mother's case is the support she receives both in Perth and in Europe. Some of her European friends in Perth are returning to Europe and the level of support she receives in Perth is diminishing. On the other hand she has a supportive family in Europe and she wishes to access that support.
108The mother wants R to grow up amongst family including the paternal family.
109The mother currently lives in a rental property with friends. She is unemployed and supporting herself with a parenting payment and child support she receives from the father. She believes her prospects of employment in Europe could not be achieved in Australia. The mother intends to obtain rental accommodation in Europe at a cost less than she is currently paying.
110The mother deposes she is often upset and distressed on a daily basis when she thinks about not being in a position to be home in Europe around her family and longstanding friendships. She deposes to her current living arrangement being intolerable, upsetting and without certainty.
111The mother's partner lives in Europe and she wishes to enjoy their future together and possibly have children. The mother's motives also include her future career and job prospects. She proposes to train as a [project manager], something she says she cannot afford to do in Perth.
112The mother's preference would be for R to have both of his parents in Europe, but if the father is not prepared to relocate to Europe, she will do everything possible to facilitate contact between them. The mother acknowledged R would miss the father, but believes he would benefit from having all of his family about him.
113The mother is critical of the father's failure to inform the Court of the difficulties in his relationship with Ms T which she describes as "fragile".
114The mother's position is that she should have sole parental responsibility for R and that the presumption that it is in his best interests that his parents have equal shared parental responsibility for him does not apply as there has been family violence between the parties. However, she points out that there is no dispute between the parties as to R's religion or schooling, and that there are no fundamental differences in their intentions for R. The mother says her request for sole parental responsibility for R is a practical one to enable prompt decisions to be made and should not be seen as an indication that she does not want the father involved.
115The mother points to R's family not being in Western Australia, and the parties having only lived in Western Australia for two years since the Hague Convention return.
116The mother rejects the father's contention that there is, in her words, "a toxic environment" in European Town A between the respective family members, and says this suggestion is a strategic one from the father. She says she genuinely intends to ensure that R's relationship with the paternal family will be maintained, although she says defined orders to that effect are not necessary.
117The mother proposes to bring R to Australia to spend time with the father, but says proposals for eight weeks' holiday in a year are impractical when the father cannot take that time off work. She proposes R spend time with the father in Europe should he visit there.
118The mother is supportive of R's time with the father increasing pending her relocation, but says the time needs to be built up so that R can become accustomed to spending lengthy periods of time with the father, something which has not happened to date. She is concerned that the father's proposals involve R spending more time with the father than he is developmentally able to cope with at this time.
119The mother wishes to relocate no earlier than 1 August 2018 to enable R to begin school at the start of the European academic year.
The father's position
120The father's position is that R's needs in the short, medium and long‑term are going to be best met by him being raised in Western Australia with both of his parents playing a full and active part in his life. He submits that R's current circumstances whereby he has both of his parents in his life on a regular basis is optimal. He further submits R should be raised with a meaningful relationship and involvement of both of his parents in his life, and not as a child with a primary parent and a long‑distance absent parent who is unable to play a meaningful role in his life.
121The father's case is that in the past the mother has lacked a willingness or readiness to promote R's relationship with the father. He says there has been a shift in the parents' attitudes in the recent past, and their holiday in Europe is a demonstration of how R benefits from the cooperation between them. The father says R has a good relationship with both of his parents and he is thriving.
122The father believes it is in the best interests of R to live and be brought up in Australia. The father would not relocate to Europe if R is permitted to relocate. The father is in a relationship with Ms T to whom he is engaged. He says this is a committed relationship. They have however had some difficulties in their relationship, and the stress of these proceedings has had an impact upon it, but they are dealing with those difficulties.
123The father says he intends to remain in Australia. The father mentioned the possibility of children with Ms T.
124The father is a self-employed plumber and has been employed almost continuously since his move to Perth. He is pessimistic about his opportunities for employment in European Town A and said it was likely that he would have to travel to [the capital city] for employment.
125The father believes the opportunities available to R and to himself in Australia are superior to those in Europe.
126The father is sceptical about the mother's stated intention to ensure that R has a good relationship with his family.
127The father is concerned about R's developmental progress and the impact schooling in Europe will have on that progress. He is of the view that opportunities exist here to address R's developmental difficulties and that he should see a paediatrician in Perth as recommended by Ms C.
128The father is critical of the mother's proposals in relation to her financial prospects and employment, and he questions the evidence upon which she relies in that respect, particularly as she has not been in touch with her prospective employer since her return to Australia. He says this highly relevant information has not been provided to the Court and there is a lack of candour about her plans.
129The father questions how the mother will support herself without a job and points to the absence of evidence from family members to say they will support her financially.
130The father questions the mother's proposals for accommodation. He also questions what part the mother's partner will play in R's life, and says there is an absence of evidence about that.
131The father says the mother should remain in Western Australia. He points to his proposal that she may visit Europe with R twice a year and that she is likely to receive visits from extended family in the future.
THE PRIMARY CONSIDERATIONS
the benefit to the child of having a meaningful relationship with both of the child's parents
132R has a meaningful relationship with both of his parents. It is to his benefit that it continues.
133R's relationship with the father has developed well over the past few months as his time with the father has increased. In these circumstances it is likely this meaningful relationship can be maintained whether R lives in Perth or Europe.
the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
134R was exposed to family violence between the parties during their relationship and when they were separated. Since the mother's return with R to Australia in May 2016, R has not been exposed to family violence. The parties have little contact with each other.
135There is not a need to protect R from harm in the care of the mother.
136The father previously suffered from mental health difficulties to which I have referred. He also consumed alcohol to excess. At this time his behaviour was harmful to R.
137I am satisfied that the father has addressed his difficulties. He sought appropriate assistance for those difficulties. His lifestyle is now settled, stable and he provides well for R when R is in his care. The mother described the father as "a really good father" to R.
138There is not a need to protect R from harm in the care of the father.
THE ADDITIONAL CONSIDERATIONS
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
139R is six years of age. He is happy in the care of both parties and enjoys his time with each of them.
140Ms C reported both parents have tried to influence R in respect of his views concerning Australia and Europe, which is likely to have confused him. He has adopted the view of the mother and indicated to Ms C that he would be sad in Australia and happy in Europe.
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)
141R has a close and loving relationship with both of his parents and extended family members. R has a good relationship with Ms T, who is an important person in the father's life and consequently in R's life. The mother said R gets on well with Mr S.
142The father described his relationship with R as "fantastic". He said there has been a big improvement since 2016, and R has developed his own opinion in the last six months. He is now more comfortable to say things, whereas before he was quite withdrawn. The father attributes this to R spending more time with him and I accept that is likely to be the case. The father described their time together as good fun, banter, football and swimming. He said R wants to race, run and compete. The father said the time he has with R is not enough for R or for him.
143It is likely R's relationship with the father will continue to develop the more he sees him.
144Ms C described R's relationship with both of his parents as a close and affectionate one. She reported he retains a relationship with family members in Europe and his cousins are important to him.
145If R remains in Perth his relationship with both parents will continue to be a close one. If he relocates to Europe, the opportunity for regular and frequent direct contact with the father will no longer exist, but their relationship is likely to remain a close one. R will have an opportunity to enjoy a relationship with members of both the maternal and paternal family living in European Town A.
the extent to which each of the child's parents has taken, or failed to take, the opportunity -
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
146The mother has made most of the decisions about long-term issues for R. The father has participated to the extent he has been able. Both parties have spent time and communicated with R. Both parties have maintained him.
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
147If R remains in Perth he will continue to live with the mother and he will spend regular and frequent time with the father. He will spend time with the maternal and paternal relatives in Europe when he travels there or when they visit Australia. R is currently settled in this arrangement. The father's position is that it should not change and R would not then be separated from either of his parents.
148The mother is R's primary carer. She is far from settled. She strongly desires to return to Europe, which she says was always the intention of her and the father, although he disputes that. The mother wants to access the support of her family in Europe. A move to Europe will involve a change for R, but what will remain unchanged is his primary carer, namely his mother. R's close relationship and attachment to the mother is likely to assist him to adjust to any changes in his circumstances.
149As to the effect upon R of a separation from the father, much will depend on the amount of time he is able to spend with the father. I accept the father's evidence that he will not relocate to Europe. In reality, R is likely to spend time with the father at most on two, possibly three occasions in a year in either Australia or Europe.
150R would be able to have electronic communication with the father between visits.
151Ms C reported as to the mother describing a "bleak" future in terms of continuing to reside in Australia. The mother spoke of isolation and the need for support. I consider that a move to Europe would be beneficial to R as he is likely to gain from his mother's security and happiness.
152The father proposes R live with him. Having regard to R's close attachment to the mother, a separation from her is a change in his circumstances which is likely to have a detrimental effect upon him.
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
153There is practical difficulty and expense which arises by reason of distance and travel. Both parties anticipate being in employment and they will incur the cost of travel.
154A further practical difficulty is the amount of leave that each party will be able to take from their employment. The father said he could not take five weeks off work in July and August each year, although it is likely he could be off work for about two weeks at Christmas time when the [business] is quiet. The mother proposes to accompany R in the event that he spends time with the father in Australia, but anticipates she is likely to have about four weeks' leave from her employment each year. The time she would be able to spend in Australia would be constrained by her work commitments, marriage, and children she may have in the future.
155The father has similar difficulties constraining his ability to travel to Europe.
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
156Ms C reported both parties have a good capacity to meet R's overall needs. She also said while the parties have engaged in their conflict, R's developmental issues may have been overlooked.
157The mother is capable of providing for R on all levels. She says if she is required to remain in Perth she would endeavour to obtain employment, although she is not as optimistic of the opportunities open to her as she is in Europe. The mother is confident of her prospects of employment in Europe.
158Her cost of accommodation will be less than the cost in Australia. The mother anticipates living in European Town B, a village near European Town A, in a three bedroom home in which R will have his own room. She proposes that Mr S will live with them there. In cross‑examination, the mother acknowledged Mr S was not in R's life on a daily basis, but stated they get on very well and had an enjoyable time together in Europe.
159The mother will have the support of her parents, her siblings and extended family, all of whom live within a 10 mile radius of the home she intends to obtain.
160I am satisfied that the mother will receive support from her family, both practical and emotional. They have assisted her financially to date. They travelled to Perth for the trial.
161The mother intends R to attend [School A] which is a few minutes' walk from where she intends to live. If she requires child minding she can rely on family members, something which is not available to her in Perth.
162The mother hopes to study as a project manager and work part‑time while studying. The cost of undertaking that study in Australia is prohibitive. The mother relied on an offer of employment made to her by [Company A]. The date of that letter was 15 June 2016. The mother has not made more recent inquiries with that company as to whether the position is still open. In view of the uncertainty as to her position it may not be possible to obtain anything more definite.
163The mother was extensively cross-examined about her proposals for providing for R's needs. I am satisfied with the support she will receive from family, she will be well placed to provide for his needs on all levels.
164Of importance is the mother's emotional health. She is unhappy and insecure in Australia. The mother's emotional wellbeing is important to enable her to provide for R's needs.
165The father provided well for R's emotional needs when he agreed to the mother bringing him back to Perth in 2016 and he then moved from Victorian Town A to Perth to be here.
166The father showed good sensitivity to R's emotional needs when he described how sometimes R does not want to go home, but he tells him that it is time to see mum and gives him big hugs.
167The father struggles when not seeing R. He said in evidence "I'm doing great provided I'm seeing [R], I'm extremely happy".
168The father is concerned about R's developmental progress. Ms C reported R as speech delayed with learning difficulties and recommended that he attend upon a paediatrician. The father was concerned about R attending school in Europe because of his developmental delay, although he would be in a class of children the same age.
169The father said he did not have the opportunity to become actively involved with R's education. The father was questioned about what he had done to interact with R's school and he said he had made some inquiries. The father said he did not want to put pressure on R and preferred to leave it to the teachers. I accept his complaint that the mother should have kept him informed of R's progress, but it was also open to him to liaise with R's teachers about any concerns and become more involved in that aspect of R's upbringing.
170The mother said that R has progressed immensely in Year 1. He is involved in a reading program at school whereby he received extra assistance at school and extra homework. His Year 1 teacher is extremely happy with his progress and the mother remains in contact with the school.
171R will be assessed at the end of the semester and his progress monitored.
172R saw a paediatrician in Europe in March 2016 and a speech therapist upon his return to Australia in 2016. Further speech therapy was not considered necessary and the school has not indicated any concerns about R's speech. Nevertheless, I consider an assessment by a paediatrician to be appropriate as recommended by Ms C.
173Both parties are capable of providing for R's educational needs although they have not done so cooperatively to date.
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
174R is six years of age. Ms C reports that he has some developmental difficulties including speech delay.
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
175Not relevant.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
176The mother assures the Court that she has actively encouraged and promoted R's relationship with the father. The father complains that his time with R has been restricted unnecessarily by the mother.
177The mother explained, previously her concern was the father's mental health, but R now appears to be safe and happy in the father's care.
178I am not convinced the mother has consistently, actively promoted R spending time with the father. She has not offered any more time than that ordered. For example, she did not offer the father an opportunity to spend time with R on Father's Day in 2017, although the father had been unable to participate in R's Father's Day breakfast at school because R was unwell. She acknowledged she should have allowed R to spend time with the father on R's birthday in 2017.
179On the other hand, R enjoys an excellent relationship with the father. This would suggest that the mother has not undermined it and I am satisfied that she has not done so. She acknowledges that R enjoys his time with the father and has a good relationship with him. The mother has complied with orders to date and I think it is likely she will do so in the future.
180The father expressed serious concerns about R's development. On the other hand, he was content to leave the educational issues to the teachers. It is important to the father that R enjoys himself and has fun in his care. That said, I accept the father is sincere in his belief that Australia provides a better way of life for R growing up than Europe.
181The mother was critical of the level of child support being paid by the father. He is currently assessed to pay child support based on a child support income amount which is less than his current income, and he acknowledged he should pay more than he does.
any family violence involving the child or a member of the child's family
182There was family violence between the parties during their relationship and following separation.
183In 2010 during the course of an argument the father pushed the mother into a window which broke.
184The father drank to excess. When drunk, he was argumentative and aggressive towards the mother.
185After the parties separated in November 2013, the father continued to drink to excess. He accused the mother of cheating on him and damaged property.
186After the parties resumed their relationship, the father continued to accuse the mother of cheating on him and having an affair. The father took steroids. The mother experienced panic attacks as a consequence of the father's questioning of her. The father recorded the mother electronically having installed a camera in their ensuite. The father stalked the mother.
187After the parties separated again at the end of July 2015, the father continued to stalk the mother and he sent her text messages indicating he knew of her whereabouts. The mother was frightened by the father's behaviour and concerned for her own safety and that of R.
188The father accused the mother of sleeping with other persons and of being a prostitute. R was exposed to the father's behaviour and in evidence the mother said he listened to a lot of "bad things" being said by the father to her.
189In October 2015 the parties went to South East Asia together, which the mother said she felt pressured to do. The father accused the mother of various things and she became very upset. She lifted R, but the father prevented her from leaving the hotel room. The father threatened to strangle the mother. The mother deposed she was "really scared".
190In November 2015 the father's behaviour continued to be erratic. The mother was afraid to leave R with him. She deposed she lost weight and could not sleep. She found it hard to cope. She cried and when she did so it upset R.
191On 24 November 2015 the father went to the mother's apartment. She deposed he started "ranting" and asking R questions. He appeared to remove something from her fridge which he said was his "evidence". The police were called and applied for a protection order on her behalf.
192The mother described herself as isolated, trapped and afraid.
193The father denied much of the mother's evidence regarding family violence, however in this respect I prefer the mother's evidence to that of the father. The father excused his behaviour by saying he was denied time with R. I accept the mother's evidence that R did spend time with the father when the parties were separated, but latterly only when the mother considered it was safe to do so.
194I also accept the mother's evidence that in late 2015 she was concerned about the father's mental health, and felt she had no option but to remove R and go home to their families in Europe.
195In cross-examination, the father admitted he had falsely accused the mother of being a prostitute and he accepted the diagnosis of delusional disorder.
196On occasions when matters were put to the father, he replied "he could not recall". He did however acknowledge that 2015 was a bad time in his life and there were things he regretted.
197Many of the mother's allegations are consistent with the medical evidence in respect of the father.
if a family violence order applies, or has applied, to the child or a member of the child's family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
198The mother applied for a family violence order against the father in August 2015, but withdrew it after the father was involuntarily admitted to the Mental Health Unit. In October 2015 the father obtained a family violence order against the mother, but discontinued it some weeks later. In November 2015 the police obtained a family violence order against the father protecting the mother. At the time the final hearing was to take place, the mother was in Europe and the order was not pursued.
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
199Ms C reported that R's issues have perhaps been less of a priority than the Family Court proceedings possibly were for both parents. It is of concern that these proceedings may have impacted on their parenting and this reinforces the need to make orders least likely to lead to the institution of further proceedings.
200Ms C is of the view that there will be ongoing difficulties between the parties in their co-parenting relationship if both parties remain in Australia. Ms C suggests the option least likely to lead to the institution of further proceedings is if the mother and the father relocate to Europe.
201The father does not intend to relocate. If the mother is refused permission to relocate R to Europe, it is likely she will continue to be unhappy and she may make a further application to relocate in the future.
202An order permitting R to relocate to Europe is an order which is least likely to lead to the institution of further proceedings in relation to him.
any other fact or circumstance that the court thinks is relevant
203No other facts or circumstances are relevant.
CONCLUSIONS
204Having considered the evidence in the context of the primary and additional considerations, I have come to the following conclusions.
Parental responsibility
205There has been family violence between the parties. The presumption that it is in R's best interests that his parents have equal shared parental responsibility for him does not apply. For reasons set out below, I intend to order that R live with the mother. I consider it would be in R's best interests for the mother to have sole parental responsibility for him. The parties do not communicate directly. The mother is apprehensive about face to face contact with the father. There is minimal email communication between them. The mother continues to suffer the effects of the family violence between the parties. There is little prospect of the mother being able to consult with the father and endeavouring to come to a joint decision on major long-term issues.
206The mother should however keep the father informed of such decisions made.
R's living arrangements
207As I do not intend to make an order that the parties have equal shared parental responsibility, it is not necessary for me to consider whether it is in R's best interests to spend equal, or substantial and significant time with his parents. Instead, I must make orders which I consider to be in R's best interests.
208Counsel for the father correctly submitted that the test is not whether the mother's mental health and wellbeing is so at risk or jeopardised by having to remain in Australia that it will impact upon R, and therefore she must be permitted to relocate him to Europe.
209I must consider the competing proposals of the parties in accordance with the prescribed legislative pathway with a view to determining what orders, if any, are in the best interests of R.
210It is to the benefit of R to have a meaningful relationship with both of his parents. I am satisfied that relationship can be maintained in the future whether R remains in Australia, or whether he lives in Europe.
211R has been exposed to family violence in the past, primarily perpetrated by the father upon the mother. He is not exposed to family violence at this time and I am satisfied that he is not at risk of harm in the care of either party.
212R is attached to both parents. He is secure with the mother and becoming increasingly comfortable in the care of the father.
213R enjoys his time with the father and has a good relationship with Ms T. She is an important member of the father's family. R's paternal and maternal family reside in Europe and relocation would provide an opportunity for him to enjoy a relationship with all of them.
214There are practical difficulties in R spending time with the father in the event he is permitted to relocate to Europe. These difficulties arise by reason of distance and cost. The parties are also limited in the time they will be able to have in their leave from their employment.
215I consider that the mother will comply with the spend time orders, although any such orders must take into account the strength of R's relationship with the father and his capacity to be separated from the mother.
216It would not be in the best interests of R that his primary carer be changed and that he live with the father. I am mindful that if R relocates to Europe he will be denied regular and frequent direct contact with the father.
217The mother has acted protectively of R including through very difficult times. The father's mental health was unstable, the mother feared for her safety and that of R. She has been left traumatised. She feels isolated and strongly desires the support of family. Her desire to return to Europe to be with her family has not waned.
218Having weighed all the factors carefully, I conclude that the mother should have permission to relocate R to Europe. I consider this to be in R's best interests. I am mindful of the impact on R of a separation from the father. Their relationship is developing well and I am satisfied that their relationship can be maintained and continue to develop from a distance. Further, an order permitting the mother to return to Europe with R will be beneficial to her mental health and is likely to enhance her parenting of R. Her happiness is likely to impact positively upon him.
When should the relocation take place?
219I shall hear from the parties, but as I understand it, to date R will have commenced spending one overnight each week with the father, which may have increased to two consecutive nights. R's time with the father has progressed slowly. The father spoke of R becoming more relaxed and happy in his care over the past few months, and I accept that the more time R spends with him, the more comfortable he will be.
220I consider it very important that R's relationship with the father has an opportunity to develop and strengthen prior to him leaving Australia. R will travel back to Australia to spend periods of time with his father. It is important therefore that their relationship be given the best opportunity possible to develop prior to his departure, so that he can be comfortable in the father's care during visits to Australia.
221The mother seeks an order that she be permitted to relocate R to Europe in time for the start of the European school year at the end of August 2018. While I can see a benefit to R in commencing the academic year at the same time as those in his class, I consider the benefit to him of strengthening his relationship with the father to be greater. It is for that reason that I have decided that the mother should be permitted to relocate R to Europe on or after 27 December 2018. Subject to hearing from the parties as to how R's time with the father has progressed over the past few months, I consider his time with the father should be maximised to the extent that he is able to cope with, pending his departure.
222Before R's departure, there will be an opportunity to consult with R's teachers and obtain an assessment from a paediatrician. The assessment may be of assistance to his teachers in Europe.
223A relocation which takes place after Christmas will enable R to commence the new school term in Europe. Until then, he will share experiences with the father which will be important for him to retain into the future.
224I am satisfied this is an outcome which is in R's best interests.
Spend time arrangements
225I consider that R's time with the father should be maximised prior to relocation. I shall hear submissions about this and make orders which I consider to be in R's best interests providing for time, including overnight time, on a regular basis between now and the end of the year.
226I have given consideration to the ICL's proposals for R to spend time with the father if he relocates to Europe. These proposals are clearly carefully considered and mostly reflect the recommendations of Ms C.
227While it would be beneficial to R to spend as much time as possible with the father in both Australia and Europe, the practical difficulty of such orders must also be considered. Upon the evidence, the mother would not be able to take five weeks off from her employment to accompany R to Australia. Similarly, the father is unlikely to have five weeks' annual leave available to him for a mid‑year holiday. There are also issues of cost and family commitments. R has not spent extended periods of time with the father and would need an opportunity to adjust to doing so. I do not consider it appropriate for R to spend time with the father in Australia while the father continues to work and R is left in the care of others. I do not consider R should attend school in Australia during a visit with the father as this could be unsettling and confusing for him.
228I consider it to be in R's best interests to make orders for him to spend a reasonable period of time in Australia in the mid-year, being the European summer school holidays, and I consider that period of time should be three weeks each year.
229I consider it would be in R's best interests to spend time with the father in Europe. His school holidays and the father's ability to have leave from work would enable that to be at least two weeks at Christmas time.
230I further consider it to be in R's best interests to spend time with the father at any time should he travel to Europe, provided appropriate notice is given.
231To date, R has not spent lengthy periods of time with the father, and at most that has been one or possibly two overnights each week. It is likely therefore that he will require to adjust to lengthy periods. In these circumstances the proposals of the mother, providing for R to come back into her care or that of her nominee from time to time, are proposals which I consider to be in R's best interests.
Travel and the cost of travel
232I consider it would be in R's best interests that his air travel be accompanied until he is sufficiently mature to travel alone. The mother proposes to accompany him in travel to Australia, and I consider she can be relied on to make the decision as to when his travel should be unaccompanied.
233In relation to the cost of travel, I consider the mother should meet her own costs of accompanying R to Australia, and I consider the parties should share equally the cost of R's return fare. I bear in mind the mother will have to obtain accommodation when she comes to Perth, although it is possible that may be with friends. She may incur expense in this respect. The father should meet his own costs of travelling to and from Europe, and I take into account that it is likely he will not incur the cost of accommodation as he will be able to stay with family members.
Electronic communication
234Electronic communication including by Skype, video or FaceTime is important. R should have electronic communication with the father not less than two occasions each week, on special occasions and at any other time in accordance with his wishes. Although this is not a substitute for face to face contact, it is nevertheless an important means of maintaining their relationship.
The paternal family
235It is important to the father that R have the opportunity of spending time with his family and enjoying a relationship with them, and I consider that to be in R's best interests. The mother says she will facilitate that and she must do so. I accept there is a rift between the families, but it is to be hoped that with the conclusion of these proceedings that will diminish.
236I propose to order that the mother ensure that R spends time with members of the paternal family on at least one occasion every three weeks, but the amount of time to be spent be at the mother's discretion. I envisage this might be a few hours at a time to begin with, gradually progressing to overnight visits. I do not consider it to be in R's best interest to make an order that compels the mother to place R in the care of a paternal relative, including overnight, in circumstances where I cannot say what impact this will have upon him, as it includes being separated from the mother and familiar surroundings. It is to be hoped that the paternal family will understand that some sensitivity and patience is required. I am satisfied that the paternal grandmother and other paternal relatives are suitable persons for R to spend time with, and that it would assist in maintaining his connection with the father to do so.
Overseas travel
237Both parties should be able to travel overseas with R during their time with him and provide notice to the other party of intended travel. R should have a valid passport which should be retained by the mother. He should not travel to any country in respect of which there is a "Do not Travel" warning.
The Christmas period
238It is possible that the father may choose to travel to Europe in December and/or January when he has time off work, to spend time with R and the paternal family. In that event, R should spend time with both of his parents at Christmas and it is in his best interests to do so. I envisage that in 2018, R will spend time with the father from Christmas Day to the late afternoon on 26 December. In that event, R will be with the mother from Christmas Eve through to Christmas Day. That arrangement should alternate in following years, such that if the father visits Europe, R has the opportunity of spending time at Christmas with both of his parents, subject to any other agreement they may reach. The parties may wish to consider whether orders are required in this respect.
THE PROPOSED FINAL ORDERS
239Subject to hearing from counsel, I propose the following final orders.
1All previous parenting orders be discharged.
Parental responsibility
2The mother, [MS KRILLY] have sole parental responsibility for the child, [R] born [in] 2012.
3Prior to the mother exercising and making any decision under the exercise of parental responsibility she shall:
(a)communicate the decision to be made to the father, [MR BYRNE] in writing and provide any documents or information in relation to the decision;
(b)invite the father to provide any thoughts or comments in relation to the issue;
(c)take into account any comments provided by the father in writing within seven days;
(d)thereafter make such decision as she genuinely believes to be in the child's best interests; and
(e)after making such decision, advise the father in writing of the decision and the reasons for the decision.
The child's living arrangements
4The child live with the mother.
5The mother be permitted to relocate the child to [Europe] after 27 December 2018.
Spend time arrangements
6The child spend time with the father on at least two occasions each year as follows:
(a)for a period of 21 days in Australia during the [European] summer school holidays (July/August);
(b)for a period of at least 14 days in [Europe] on dates and at times to be agreed between the parties; and
(c)at such other time in [Europe] upon the father giving the mother not less than 28 days' notice of his intention that the child do so.
7In the event the child spends time with the father during the Christmas holidays, the time shall be suspended between 24 and 26 December when the child shall spend time with both of his parents with handover on Christmas Day.
8For the purpose of order 6 above, the child return to the mother or her nominee for one night:
(a)until the child turns eight years old, after four nights with the father;
(b)from the time the child turns eight years old and until he turns nine years old, after five nights with the father; and
(c)from the time the child turns nine years old until the child turns 10 years old, after eight nights with the father.
9For the purpose of order 6 above the father shall facilitate the child speaking to the mother by telephone in accordance with his wishes.
10The mother shall facilitate the child spending time with members of the father's family on not less than one occasion every three weeks.
11The mother shall do all things necessary to permit the father's family to attend any special sporting, school or extracurricular activities that the child shall attend.
The cost of travel
12The mother shall meet the cost of her return airfare between [Europe] and Australia.
13The father shall meet the cost of his return airfare between Australia and [Europe].
14The parties shall equally meet the cost of the child's return airfare between [Europe] and Australia.
Educational and medical issues
15The mother shall ensure that any school at which the child may attend in [Europe] is instructed and authorised to release to the father such information regarding the progress of the child in their education, including but not limited to school reports and newsletters as may be reasonably requested by him.
16In the event that any school at which the child attends in [Europe] declines to provide copies of school reports to the father, the mother shall ensure the father receives an electronic copy of the child's school reports within seven days of the receipt of the same.
17The mother shall keep the father informed of all sporting and extracurricular activities the child is involved in and keep the father informed in relation to the child's progress in such activities, and forward copies of any certificates and awards which may be received by the child from time to time.
18The parties each authorise and instruct any medical practitioner/institution/dentist attended upon by the child to release to the parties such information regarding the child's medical and dental health as may be reasonably requested from time to time.
19The parties shall keep each other informed in relation to all significant health issues concerning the child and notify the other party as soon as possible in the event of a medical emergency, including the name and contact details of any treating medical practitioner and/or hospital to which the child may have been admitted.
Provision of information
20Each party shall keep the other party informed at all times as to their current address, contact telephone number, and in the case of the father, the address at which the child will be living when spending time with him.
Travel
21Subject to order 22 below, the mother shall have possession of the child's passport and shall be responsible for maintaining its currency.
22Both parties be at liberty to travel overseas with the child during periods that the child is scheduled to be in their care pursuant to these Orders or during such other periods as may be agreed between the parties in writing subject to the following:
(a)the travelling parent providing the non-travelling parent no less than 28 days' written notice of their intention to travel overseas with the child including an itinerary as to where they will be staying and a contact number for the child;
(b)there is not a current "Do not Travel" warning issued by the Department of Foreign Affairs and Trade at the time of departure in relation to the proposed destination;
(c)the travelling parent facilitating telephone/video communication via Skype or FaceTime between the child and the non‑travelling parent at least twice per week; and
(d)in the case of the mother, she deliver up the child's passport to the father no later than 14 days prior to any proposed overseas travel to be undertaken by the father with the child pursuant to these Orders and the father shall return the passport to the mother upon the child's return to the mother.
Injunctions
23On a without admission as to needs basis both parties be restrained by injunction from discussing the proceedings or financial matters relating to the child or these orders either with or within earshot of the child or otherwise denigrating the other party or the other party's partner to or within earshot of the child or permitting any third party to do so.
Electronic communication
24The child have video communication via Skype or FaceTime with the father between 5.00 pm and 6.00 pm Australian Western Standard Time as follows:
(a)each Sunday;
(b)a weekday to be agreed between the parties;
(c)on the child's birthday, the father's birthday, Christmas Day, Easter Sunday and Father's Day, if the child is not spending time with the father; and
(d)at such other times in accordance with the child's wishes.
Remove AFP Watch List Alert
25The Australian Federal Police be requested to remove the child's name from the Family Law Watch List operating at all international ports in Australia with effect from 27 December 2018.
26The mother provide the Australian Federal Police with a sealed copy of this order.
Procedural orders
27The Independent Children's Lawyer be discharged.
28All extant applications be and are hereby dismissed.
29All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
30In relation to material tendered as an exhibit into evidence in these proceedings:
(a)all parties must collect the exhibits tendered by them ("their exhibits"), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today's date;
(b)all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits; and
(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the Court without notice to the parties.
31In the event of an appeal being lodged prior to the expiration period of 42 days, orders 29 and 30 above do not apply.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
ASSOCIATE23 AUGUST 2018
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