CAMPBELL and HALL
[2019] FCWA 31
•19 FEBRUARY 2019
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: CAMPBELL and HALL [2019] FCWA 31
CORAM: DUNCANSON J
HEARD: 10 JANUARY 2019
DELIVERED : 19 FEBRUARY 2019
FILE NO/S: PTW 6575 of 2017
BETWEEN: MR CAMPBELL
Applicant
AND
MS HALL
Respondent
Catchwords:
CHILDREN - Where the mother relocated the child from [Suburb B] to
[Suburb A] - Where the father seeks the child's return and a week about living arrangement - Where it is in the best interests of the child to remain living with the mother in [Suburb A] and for her parents to have equal shared parental responsibility for her - Where it is not in the child's best interests that her name be changed
Legislation:
Family Court Act 1997 (WA) s 66, s 66C, s 70A, s 89AA
Category: Reportable
Representation:
Counsel:
| Applicant | : | Self-Represented Litigant |
| Respondent | : | Self-Represented Litigant |
Solicitors:
| Applicant | : | Self-Represented Litigant |
| Respondent | : | Self-Represented Litigant |
Case(s) referred to in decision(s):
Reynolds and Sherman [2015] FamCAFC 128
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1These proceedings concern [P] who is four years of age. P lives with the mother, [Ms Hall] in [Suburb A]. She spends time with the father, [Mr Campbell] who lives in [Suburb B].
2
After the parties separated the mother lived with P in Suburb B. In September 2017 the mother moved with P to
Suburb A where she wishes to remain. The father wants P to be returned to the Suburb B area.
THE ORDERS SOUGHT
3The father wants the mother to return with P to an area bordered by Suburb B in the North and [Suburb C] in the South ("the Suburb B area") by the commencement of the 2019 school year and to be restrained from relocating P from that area. In the event P returns to the Suburb B area the father proposes that she live with her parents on a week about basis.
4In the event that the mother remains living out of the Suburb B area, the father seeks an order that P live with him and spend time with the mother each alternate weekend.
5The mother proposes that P continue living with her in Suburb A and spend time with the father each alternate weekend. It was the mother's position that if the Court ordered that P should be returned to the Suburb B area, the mother would return there but with considerable difficulty.
6The parties agree they will have equal shared parental responsibility for P. There are however other significant issues to be determined including the school to be attended by P. Currently she attends [School A] near Suburb A and the mother seeks to continue her education there. The father is opposed to that and wants P to attend a non-religious school.
7The mother seeks a change to P’s surname from Campbell to Campbell-Hall. The father opposes the change of name.
8The parties disagree as to the handover venue. If the mother does not move to the Suburb B area, or prior to her doing so, the father proposes that handover take place at the [Suburb B Shopping Centre].
9If both parties live in the Suburb B area, the father proposes that handover take place at each other's home or a café in Suburb B.
10The mother proposes that handover take place at the [local service station in Suburb D] on the basis that she remains in the Suburb A area. If both parties live in the Suburb B area, the mother proposes that handover take place at the Suburb B Shopping Centre.
11The parties were able to agree a number of matters including time during school holidays and at Christmas, Easter, Mother's and Father's Day. They also agreed orders regarding school communication, extracurricular activities, alternative care options, time on special occasions, travel, P’s belongings, contact details, medical matters and discussion of Court related matters.
FAMILY BACKGROUND
12The father is 32 years of age. He is a supervisor. The mother is 31 years of age. She is a student and casual worker. The parties began living together in July 2010. P was born [in] 2014. The father said the parties separated in April 2015. The mother said separation occurred in February 2015. Nothing turns on the difference.
13The father is in a relationship with [Ms B]. They have two daughters, [A] born [in] 2017 and [B] born [in] 2018.
14P lives with the mother in [Suburb E], a suburb of Suburb A. She spends time with the father.
15The father and his family live in Suburb B.
SHORT HISTORY
16After the parties separated they leased a property in Suburb B where P lived with the mother. The father spent time there both at weekends and mid-week. The mother and P subsequently moved to a rental property in East Suburb B.
17The parties' relationship deteriorated. The mother said the father yelled and bullied her on a number of occasions causing distress to P. The father denied such behaviour. The mother deposed to being fearful of the father. The father denied he was aggressive and intimidating as suggested by the mother although text messages annexed to the mother's affidavit suggest otherwise.
18[In late] 2017 the police attended the mother's home as the mother reported there had been a verbal argument between the parties. The father had left the home prior to the police arrival.
19The mother said she verbally notified the father of her intended move to Suburb A [in] August 2017.
20The father said he was informed that the mother had moved to Suburb A by text message [in] September 2017.
21The father did not agree to the move. The mother said she felt more secure for the safety of herself and P in Suburb A.
22The father commenced these proceedings [in] October 2017, seeking orders that the mother move with P to the Suburb B area within 28 days and she be restrained by injunction from relocating P’s residence outside of that area. The father proposed that P live with the mother and spend time with him. The mother opposed the order sought that she return P to the Suburb B area.
23[In] November 2017, interim orders were made by consent that P live with the mother and spend time with the father in a four week rotating roster as follows:
(i)in Week 1 from 4.00 pm Thursday until 3.00 pm Sunday;
(ii)in Week 2 from 4.00 pm Thursday until 12.00 noon Monday;
(iii)in Week 3 from 4.00 pm Thursday until 3.00 pm Sunday; and
(iv)in Week 4 P was to remain with the mother.
It was ordered that handover take place at the Suburb B Shopping Centre.
24The mother enrolled P in [School A] without consulting the father. P attended kindergarten there in 2018.
25[In] March 2018, orders were made providing that the parties have equal shared parental responsibility for P. It was ordered that she live with the mother and spend time with the father during school term in the four week rotation as set out above, for a week in the school holidays at the end of Terms 1, 2 and 3 and for a period of 10 nights in the school summer holidays. Orders were made that handover take place at the local service station in Suburb D. Further orders were made regarding electronic communication, P’s belongings, special occasions, communication and the provision of information. It was ordered that the parties enrol in, attend and complete the Mums and Dads Forever program.
THE PARTIES AND THEIR EVIDENCE
26The father relied on his affidavits filed 8 July and 18 August 2018. The mother relied on her affidavits filed 25 January and 2 August 2018.
27Both parties conducted themselves in an exemplary way during the trial. They were courteous and respectful to each other and their cross-examination was relevant and thorough.
28The mother acknowledged that she acted unilaterally in enrolling P in School A. The father minimised the conflict between the parties after separation, although he acknowledged P had witnessed some conflict.
29I am satisfied that both parties are devoted and loving parents to P and both firmly believe the orders they seek are in her best interests.
THE LAW
30These proceedings are determined under Part 5 of the Family Court Act 1997 (WA) ("the Act").
31In reaching my decision I will be guided by the objects of Part 5 and the principles underlying those objects.
32Section 66 sets out the objects and the principles underlying them.
33The 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.
34In 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.
35It is necessary for me to give careful consideration to the proposals of the parties and to determine the arrangements which are likely to promote P’s best interests. I am mindful that the best interests of P 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 P’s best interests.
PARENTAL RESPONSIBILITY
36Pursuant to s 70A of the Act, when making a parenting order in relation to a child, the court must apply a presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child.
37Equal shared parental responsibility imposes an obligation upon them 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. Major long-term issues are issues about the care, welfare and development of a child of a long-term nature including issues about:
(a)the child’s education (both current and future); and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
38Pursuant to s 89AA of the Act, a consequence of making an order for equal shared parental responsibility is that the court is required to consider whether or not the child spending equal time with each parent would be in the child's best interests and reasonably practicable. If so, the court must consider making such an order.
39If the court does not make an order for equal time the court is required to consider whether or not the child spending substantial and significant time with each parent would be in the child's best interests and reasonably practicable. If so, the court must consider making such an order.
40Both parties seek an order that they have equal shared parental responsibility for P. I refer further to this below.
THE LEGAL PRINCIPLES IN RELATION CHANGE OF NAME
41The legal principles in relation to change of name were considered by the Full Court in Reynolds and Sherman [2015] FamCAFC 128. The Full Court referred to earlier cases and discussed the principles therein.
42The Full Court said an order in relation to a child's name is a parenting order and the court must regard the best interests of the child as the paramount consideration. Matters therefore to be taken into account are the relevant factors in s 66C of the Act and also the following:
· Short and long term effects of change in the child's name;
· Any embarrassment likely to be experienced by the child if name is different to that of parent with whom the child lives;
· Any confusion of identity which might arise for the child if the name is changed;
· The effect any change in surname may have on the relationship between child and other parent;
· The effect of frequent or random changes of name;
· The time the child is spending with the other parent;
· The degree of identification the child has with each of the child's parents.
The father's proposals
43The father said he commenced these proceedings because the mother chose to move P away from him that is, from Suburb B to Suburb A. His position is the issue of relocation is paramount to the parenting orders sought and he seeks a final order that the mother return P to the Suburb B area.
44The father said he cannot be involved in P’s schooling or extracurricular activities by reasons of distance. He said the travelling is detrimental to P’s health and it causes unnecessary emotional and financial distress to him and his family.
45The father wants P to be returned to a "practicable" location so that both parents can be involved in her life. Specifically he proposes the Suburb B area. He said this is where P grew up and had established a strong network until September 2017 when the mother moved her away. The father's position is that relocating P back to this area will "allow for a regular changeover day, less travel for P and a full week in each party’s care. This effort to create routine, stability and continuity in P’s life is in her best interests".
46The father considers that a week about living arrangement would be in P’s best interests and he said this can be implemented if she is returned to the Suburb B area.
47The father is opposed to a religious based education for P. If the mother returns to the Suburb B area with P, he proposes that P attend [School B]. If however the mother remains in Suburb A and P lives with him, P would attend [School C] which is the school he intends to send his younger daughters to.
48 The father is also opposed to a change to P’s surname. He considers that a change of name is unnecessary. He said it is a choice P will have the opportunity to make independently when she is 18 years of age.
The mother's proposals
49The mother said in August 2017 the father rejected her request to move with P to [Suburb F], which is where her parents reside. She decided to relocate to Suburb A where she described a "great support unit" in the area including grandparents, half-sister, sister and brother in-law. The mother said P is well connected in her local community through her activities and upon attending School A her social connections are strengthened.
50The mother said P has adapted to the travel well and a handover at the local service station in Suburb D provides for equal travel for both parties. The mother said she has a comfortable home in the Suburb A area where she feels secure. The mother's position is that she and P are settled in the Suburb A area where P’s occupational and speech therapy needs are met.
51As to the proposed change of name the mother said P has independently begun including the surname "Hall" within her name and that a change of name would respect both families.
THE PRIMARY CONSIDERATIONS
the benefit to the child of having a meaningful relationship with both of the child's parents
52P has a meaningful relationship with both of her parents and it is to her benefit that it continues.
the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
53There is not a need to protect P from physical or psychological harm from being subject to or exposed to abuse, neglect or family violence in the care of either party.
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
54The mother said P has independently begun including the mother's surname within her own name and when asked about this, P explained that she "comes from your tummy Mummy, so I'm a [Hall]". The mother said P has become distressed when she has attempted to correct her name and that P wishes to have both parties surname as a representation of both families that she belongs to. The father disagreed and appeared to be sceptical of the mother’s assertion that P initiated a name change at the age of three and half years. He said P has never become distressed when he has told her that her full name is [P Campbell].
55P is only four years of age. She is too young to express any meaningful view.
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)
56P has a close and loving relationship with both of her parents.
57P is close to the father's partner, Ms B and their daughters A and B.
58P has friends in Suburb B with whom she spends time. She has a close relationship with the father's long time neighbour and family friend, [Ms C] who is a grandmother figure to P. She sees members of the father's family regularly including her paternal grandparents, uncle, aunt and cousins with whom she has a close relationship.
59P has a close relationship with members of the maternal family including her maternal aunts who live in the Suburb A area and her cousins. The mother's parents and brother travel from Suburb F quite often and the mother said they interact as a family.
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
60Both parties have participated in making decisions about major long term issues in relation to P, although they have not always done this cooperatively. Although the mother said she gave notice to the father of her intention to move to Suburb A from Suburb B, I am satisfied that such a move was against the father's wishes and there was no consultation about it. The mother did not deny that she did not consult with the father about enrolling P in School A, although she said she was not aware that the father was opposed to religious based schools. The father said he sent the mother an email on 21 December 2017 informing her he was opposed to P’s attendance at School A and the mother took four months to reply. The mother did not disagree but said she found the father to be "hostile and unapproachable and unnegotiable".
61Both parents have spent time with P.
62The mother said the father has not taken up the opportunity to have telephone communication with P mid-week. The father said she is too young to independently conduct a phone call and he prefers not to interrupt her evening routine.
63Both parties have fulfilled their obligations to maintain P.
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
64In the event that P remains living with the mother in the Suburb A area she will continue to spend time with the father and her circumstances will remain unchanged. If the mother returns to the Suburb B area and P continues to live with her, there will be some changes in her circumstances but not a change as to her primary carer. If P was to live in a week about arrangement with her parents, there would be a change in her primary carer which is a significant change in her circumstances.
65It is likely Ms B would be involved in P’s care by reason of the father's work commitments. He works a nine day fortnight, approximately eight to 10 hours a day. He and Ms B have A who is 14 months old and B, who is just under two months old. They meet the needs of two very young children and the father proposes that P live with them each alternate week. The mother is available to care for P on a full-time basis. P enjoys spending time with the father and her half-siblings, however a change in her circumstance such that she lives with them on a week about basis involves a separation from the mother. This may have a detrimental effect upon her and her present stability.
66I am mindful that in the current arrangement although P is not living as close to the father and paternal family as before, she continues to spend time with them regularly and has adjusted to this arrangement.
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
67There is practical difficulty and expense of P spending time and communicating with her parents. The father said the travel time has a physical impact on P. He said "The physical and emotional impact has become apparent. P becomes withdrawn and appears upset."
68The mother said although the travel is extended P has blossomed. She has developed activities to do in the car and makes the most of her time. Although the father said it is not quality time, the mother said as parents they should make the best of it.
69The father considers the local service station in Suburb D to be an unsuitable changeover venue. He said it is on a busy highway and P has to go between traffic with her belongings. During winter she got wet as there was no protection from the elements and traffic had increased.
70The mother disagreed. She said there are toilets for P’s use. She is provided with a rain jacket, a water bottle and a change of clothes.
71The father said since the orders dated 2 March 2018 have been in place his travel time is approximately 672 minutes (112 minutes per return trip times six trips) and 924 kilometres (154 kilometres per return trip times six trips over a four week period). He said this travel takes him away from time with his family and reduces his quality time with P. It also increased his travel expenses.
72The distance between the father's home in Suburb B and the mother's home in Suburb A is 146 kilometres and 1 hour and 41 minutes of travel time. The father said with a handover at the local service station in Suburb D, he travels a longer distance than the mother. The mother said that with the current handover venue at the local service station in Suburb D, she travels 73.1 kilometres from Suburb A and the father travels 75.6 kilometres from Suburb B.
73The travel distance for the parties to the local service station in Suburb D is close to equal. The father proposes that if P remains in the Suburb A area, handover should take place at the Suburb B Shopping Centre. He acknowledged that the travel would then not be equal and he denied the mother’s assertion that he sought such an order to punish the mother for moving.
74In the event that the mother was to move to the Suburb B area as sought by the father, he proposes that each party collect from the home of the other or a local café at the commencement of their time with P so the practical difficulty and expense of P spending time with each of them would be minimised.
75The distance between the father's home in Suburb B and School A is 302 kilometres or 206 minutes. It is not practicable for P to attend School A from the father's home.
76The distance between P and the father has not impacted upon the quality of their relationship, or their ability to maintain the close bond that exists between them.
77Although there is practical difficulty and expense involved in the current arrangement, it is not such that it substantially affects P’s right to maintain personal relations and direct contact with both of her parents on a regular basis.
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
78The father is critical of the mother's capacity to provide for P’s emotional needs in that she unilaterally moved to Suburb A, thus impacting on the amount of time P is able to spend with him. He is critical of the mother's provision for P’s educational needs with respect to her attendance at School A in the light of his opposition to a religious based school. He said P is too young to understand religious concepts and it is not in her best interest to attend this school.
79The father did not agree that P is making good progress at School A and has not noted any overall improvement in her speech.
80The father deposed that when Ms B returns to work as an experienced [nurse], they will make suitable arrangements to ensure P’s needs continue to be met as they will for A and B.
81The mother's position is that P’s educational needs are well provided for at School A.
82From P’s Semester 1 2018 report it appears that the school has assisted in meeting P’s needs by the creation of an individual education plan to assist P to follow classroom routines, transitions and communications clearly with her peers and teachers. P was included in literary support sessions. The community nurse submitted an occupational therapy and physiotherapy referral.
83P attends both speech and occupational therapy. These services are located at the [Suburb A Child and Adolescent Centre], which is within walking distance from School A. If P has to continue these services in 2019, she can easily do so with minimal disruptions to her school day. The mother said if P attends School C, she would have to travel 45 minutes (one way) to attend the closest service of this kind, which would interfere in her school day. She said there is currently a three to six month waitlist for new appointments/patients for speech therapy services in the region and the mother is concerned this may disrupt P’s progress.
84P’s Semester 2 2018 report states:
[P] showed a positive attitude towards her learning and made outstanding progress during Literacy Support. She consistently demonstrated the ability to hear initial sounds in words. [P] substantially improved her knowledge of letter sounds and responded well to the action prompts that go with each sound in the multi-sensory alphabet programme. With prompting, through the use of appropriate actions, [P] was able to recall most letter sounds. She demonstrated outstanding ability to segment two and three syllable words. [P’s] clarity of speech improved over the semester and she demonstrated a consistent approach to completing tasks. [P] displayed enjoyment when taking toys out of the various sound bags and her confidence to describe objects improved tremendously. When asked to retell a picture book she did so with confidence and with adequate detail. [P] worked consistently well throughout the semester.
85The mother said she provides well for P’s educational needs. She said P enjoys school, has developed strong friendships there and her educational needs are being met at school and locally.
86The mother was critical of the father in that he behaved aggressively towards her in the presence of P on occasions after their separation and in that way did not provide for her emotional needs.
87The mother said if it was ordered that P be returned to the Suburb B area she would move there. She said such a move would be extremely difficult and she was concerned for her own mental wellbeing. The mother was also concerned for the financial consequences. She would have to break her lease and would be responsible for payment of two leases, at least for a period of time. She would lose her employment and she said parenting would be difficult. The mother is settled in Suburb A where she has support. I accept that the mother would be unhappy and unsettled if she had to move to the Suburb B area.
88P copes well with the transition between her parents and there are no separation issues. The mother said for the most part, at handover she skips over excitedly to see the father. This would indicate that both parties have provided well for her emotional needs.
89I am satisfied that both parties are capable of providing well for P’s needs on all levels, although a return to Suburb B may impact adversely upon the mother's ability to do so.
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
90P is four years of age. The father described P as happy, playful and mischievous. He further described her as loving and affectionate, chatty and with empathy.
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
91This consideration is not relevant.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
92Both parties have mostly demonstrated an appropriate attitude to P and to the responsibilities of parenthood. The father did not do so when he exposed her to conflict between him and the mother. The mother did not do so when she acted unilaterally and made important decisions concerning P without properly consulting the father.
93It is likely that both parties will promote P’s relationship with the other parent. The mother explained that P enjoys her time with the father and understands it to be special time.
94The mother said since the Court proceedings the parties have behaved in a business like manner and their communication in front of P has been respectful. The father pays child support for P.
95The father said the mother did not comply with orders relating to the summer holiday arrangements. P spent time with him during the holidays but not in accordance with the orders. I am unable to make a finding about the reason for this. I consider it likely that both parties will comply with orders in the future and it would be beneficial to have certainty in P’s living arrangements.
any family violence involving the child or a member of the child's family
96There was conflict between the parties at the time they separated. They argued in the presence of P and she was exposed to their conflict. The mother described the father as "dictated, dominant and assertive to his own interests instead of the Child's". Although the father denied he behaved in this way, I accept the mother's evidence that she felt unsafe for herself and P. There is currently no family violence involving P or either party.
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
97No family violence order is in effect.
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
98The mother is happy and settled in Suburb A. She has no intention of leaving the Suburb A area and no wish to move to Suburb F. If it is ordered that P be returned to the Suburb B area to live with the mother there, the mother is likely to be unhappy and may bring further proceedings in the future.
99It would be desirable to make comprehensive final orders so that P does not continue to be the subject of Court proceedings between her parents and there is certainty in her arrangements in the future.
any other fact or circumstance that the court thinks is relevant
100Both parties have completed the Mums and Dads Forever program. The mother says communication continues to be difficult and in view of P’s young age, it may be of assistance to the parties to use a communication book in which they exchange only important information in relation to P’s wellbeing and needs. I will hear from the parties in this respect.
CONCLUSIONS
Parental responsibility
101Both parties seek an order that they have equal shared parental responsibility for P. I am satisfied that such an order is in her best interests.
102I consider it would be to P’s benefit to have input from both of her parents in the decision making process and neither parent should be excluded therefrom. The parties disagree about P’s schooling, but that is a decision I am to make in these proceedings. Although communication has been difficult, the mother said the parties have now been able to communicate respectfully.
103I shall set out in the orders the approach the parties should take to the decision making process.
The child's living arrangements
104As I intend to make an order that the parties have equal shared parental responsibility for P, it is necessary for me to consider the specific outcomes as set out in s 89AA of the Act.
105The father has significant family and work commitments. The mother is able to devote her time and attention to P. A week about living arrangement is a significant change to P’s circumstances which are currently stable and predictable. The evidence does not persuade me that an arrangement whereby P spends equal time with her parents is in her best interests. Such an arrangement is not reasonably practicable by reason of the distance between the parties' homes and P’s school and the lengthy travel involved if P continues to live with the mother in Suburb A. In the event that the mother relocates P to Suburb B such an arrangement becomes reasonably practicable.
106It would be in P’s best interests to spend substantial and significant time with each of her parents. Substantial and significant time includes days that fall on weekends and holidays and days that do not and is time which allows a parent to be involved in the child's daily routines and events of particular significance to both parent and child. Such an arrangement is not reasonably practicable for the reasons referred above.
107In the event P remains living with the mother in the Suburb A area the reality is that she will live with the mother during the school week and spend time with the father at weekends and during school holidays.
108It is necessary to weigh and balance my findings as to the primary and additional considerations as set out above.
109Whatever her living arrangements, P will be able to maintain a meaningful relationship with both of her parents. She is not at risk of harm. P has a close and loving relationship with both of her parents. She is happy and settled in the care of each of them and is thriving in the current arrangements.
110I am not persuaded it would be in the best interests of P to order that she be returned to live in the Suburb B area, whether that be to live with the mother, in an equal week about arrangement, or with the father. A return to the Suburb B area is likely to impact adversely upon the mother's emotional wellbeing and her capacity to provide for P’s needs. Furthermore, the father's commitments are such that I consider P should live primarily with the mother who is able to devote her time and attention to her and at the same time facilitate and encourage P’s relationship with the father.
111I am not persuaded it would be in P’s best interests to change her current living arrangement, her familiar surroundings, friends and school when she is happy, settled and thriving.
The spend time arrangements
112It would be in P’s best interests to spend alternate weekends with the father during the school term time. Such an arrangement will also enable P to maintain the close and loving relationship she has with the father and her close relationship with her paternal family. Such an arrangement will enable P to continue her extracurricular activities in the Suburb A area, but also have an opportunity of spending time with her paternal family and undertaking activities with them.
113In the event that P’s weekend with the father falls on a long weekend her time with him should be extended to include the public holiday.
114An alternate weekend arrangement will also provide P with stability and predictability in her arrangements.
Handover
115I consider handover should take place at the local service station in Suburb D. It is a location with which P is familiar. She is now accustomed to handovers taking place there and transitions happily between her parents. In terms of distance the local service station in Suburb D is close to equidistant between the parties' homes and both will incur similar travel commitments and expense.
The child's school
116As I intend to order that P live with the mother in Suburb A, I do not intend to order that she change schools. She is settled at School A where the education program has been tailored to meet her needs. She is making good progress.
117It would be in the best interests of P if the father was willing to involve himself positively with the school. I intend to make orders that the parties authorise the school to communicate with the father and the parties will have permission to provide a copy of these orders to the school.
118There is a considerable distance between the father's home and School A. It is hoped that the father will be able to attend events at the school from time to time to enable him to see P in her school environment and meet her teachers, friends and other parents.
Change of name
119The mother seeks an order that P’s surname be changed such that the mother's surname "Hall" is included and that P’s surname is hyphenated to be Campbell-Hall.
120There are no negative short-term or long-term effects of a change of name. P’s is very young and at this stage there is unlikely to be any embarrassment to her by a change of name, although as she becomes older she may find that a hyphenated name requires an explanation to others. It is possible this could cause her some embarrassment.
121At P’s young age, I am not persuaded that she has any understanding of the significance of her surname or any changes to it. She understands her parents live separately and there is no confusion in relation to her identity.
122The father is opposed to the change of name, however he is a devoted and responsible parent and a change to P’s surname is unlikely to change the relationship between them. Similarly the mother is a devoted and responsible parent and in the event there is no change to P’s surname their relationship will remain unchanged.
123P’s name has not been changed before.
124It is not unusual for a child's name to be different to that of the parent with whom the child lives. P spends regular time with the father and there is clearly a connection with the surname Campbell.
125P identifies with both of her parents and has a close and loving relationship with both.
126P is still very young. I do not consider that a change in her surname is required to "respect" or "represent" both families. I think the proposed change is somewhat cumbersome and I am not persuaded that a change in her name as proposed by the mother is in the best interests of P. I therefore refuse the order sought in this respect.
The child's birthday
127The parties agreed that if P lives with the mother in Suburb A and her birthday falls on a school day she would remain in the mother's care and not spend time with the father. The parties agreed that if P’s birthday falls on a weekend when she is living with the mother, the father would collect her at 4.00 pm on the day of her birthday and return her at 11.00 am the following day. This arrangement is only practicable if the birthday falls on a Saturday. It would not be practicable if the birthday falls on a Sunday because of P’s school commitments the next day.
128The parties also agreed that if P’s birthday falls on a weekend when she is in the father's care, the mother would collect her at 4.00 pm on the day of the birthday and keep her until 11.00 am the next day. This would involve considerable travel for P. If the birthday falls on a Saturday the mother would collect P at 4.00 pm and return her at 11.00 am on the Sunday for just a few hours before she was then returned to the mother's care. As before this arrangement would not be practicable if the birthday falls on a Sunday.
129I have given careful consideration to the arrangements for P’s birthday should it fall on a weekend. In the event that P’s birthday falls on a Saturday when she is in the care of the mother, the father could collect P at 4.00 pm on that day and return her at the usual handover time, 5.00 pm on the Sunday.
130If P is in the care of the father on the Saturday of her birthday, the mother could collect her at 4.00 pm on the Saturday and she could remain with the mother for the remainder of the weekend.
131In the event that P’s birthday falls on a Sunday when she is in the care of the mother, then the father may have the option of spending four hours with P during the day.
132If P is in the care of the father on the Sunday of her birthday, the mother could collect her four hours earlier on the Sunday afternoon.
133The parties may wish to have an opportunity to consider the above options. An alternative arrangement is that if P’s birthday falls on a weekend, she spend the whole of each birthday weekend with her parents in alternate years.
Electronic communication
134The father's position is that P should have liberal telephone communication with her parents in accordance with her wishes. The mother seeks an order that P have weekly telephone communication with the parent with whom she is not living. I consider in view of P’s young age it would be to her benefit to have regular electronic communication with the parent with whom she is not living. It may be that she will not talk with that parent for very long, but she should have the opportunity of doing so. The father subsequently said if the Court intended to make an order that P have weekly electronic communication he wanted the order to include himself. He proposed that the call on Wednesday take place between 4.30 pm and 5.00 pm, instead of 5.30 pm and 6.00 pm as proposed by the mother. This was acceptable to the mother. I shall order that the parent with whom P is living shall initiate a phone call to the other parent each Wednesday between 4.30 pm and 5.00 pm. In this way P will have an opportunity to speak with the father mid-week during term times and with each of her parents on at least one occasion during each week in school holidays.
Communication between the parties
135The father proposed in relation to the parties' communication by text message or email, that when a party requests a response that response shall be made within seven days. The mother considered this to be too short and considered a period of 14 days to be appropriate.
136The parties are to have equal shared parental responsibility for P and this requires them to consult as to major long-term issues concerning her care. It may be that the parties will require time to consider such important decisions and I shall therefore order that a response in relation to matters concerning major long-term issues be made within 14 days. If however the text message or email communication concerns a routine matter, the parties should respond promptly and if the communication concerns an emergency they should communicate by telephone or face to face without delay.
THE PROPOSED ORDERS
137In drafting these orders I have endeavoured to comprehensively cover matters which may arise in the circumstances of these parties. In doing so, I am endeavouring to avoid any difficulties or uncertainty in P’s arrangements in the future.
138Subject to hearing from the parties, I propose to make the following orders.
1All previous parenting orders be discharged.
Parental responsibility
2The father, [MR CAMPBELL] and the mother, [MS HALL] have equal shared parental responsibility for the child, [P CAMPBELL] born [in] 2014.
3Unless contrary to the child’s immediate welfare, the father and the mother shall, before making any major long-term decision about the child:
(a)consult with each other in writing setting out any major long-term decision making proposal and the reasons for that proposal;
(b)give proper consideration to the proposal and respond in writing within 14 days, making a genuine effort to resolve any issues; and
(c)in the event any dispute is unable to be resolved, the parent making the proposal shall consult with a Family Dispute Resolution practitioner and invite the other parent to attend in an effort to resolve the dispute.
The child’s living arrangements
4The child live with the mother and she be permitted to remain in [Suburb A].
Spend time arrangements
5 The child spend time with the father as follows:
(a)during the school term, each alternate weekend, from 4.00 pm Friday to 5.00 pm Sunday, extending to 5.00 pm Monday in the event the Monday is a public holiday;
(b)in 2019 and each alternate year thereafter, during the Term 1, 2 and 3 school holidays, from 4.00 pm of the last day of school until 5.00 pm on the middle Saturday of the school holiday period;
(c) subject to the arrangements for Christmas as set out at 6(a) below, during the Summer school holiday period, the child shall live with the parties on a week about basis, commencing the first week with the father in 2019 and each alternate year thereafter, and commencing the first week with the mother in 2020 and each alternate year thereafter;
(d)unless otherwise agreed, for the purpose of the Summer school holidays:
(i)handover will take place at 4.00 pm on the last Friday of the school term and each Friday thereafter; and
(ii)in the event the child is living with the father at the conclusion of the school holidays, he shall return her to the mother by no later than 5.00 pm on the day before the commencement of the school term;
(e) following all school holiday periods the two week cycle as set out in order 5(a) shall resume and remain in full force and effect as if the holiday had not occurred.
6Notwithstanding the preceding orders, the child shall spend time with the parties as follows:
(a)during the Christmas period:
(i)in 2019 and each alternate year thereafter, with the father from 9.00 am on 23 December to 12.00 pm on 27 December; and
(ii)in 2020 and each alternate year thereafter, with the mother from 9.00 am on 23 December to 12.00 pm on 27 December;
(b)during the Easter period:
(i)in 2019 and each alternate year thereafter, with the father from 4.00 pm on Thursday prior to Good Friday, until 4.00 pm Easter Monday; and
(ii)in 2020 and each alternate year thereafter, with the mother from 4.00 pm on Thursday prior to Good Friday, until 4.00 pm Easter Monday;
(c)on the Mother’s Day weekend with the mother; and
(d)on the Father’s Day weekend, with the father from 4.00 pm Friday to 5.00 pm Sunday.
The child's birthday
7In the event that the child’s birthday falls on a Saturday she spend time with the parties as follows;
(a)if the child is in the care of the mother, with the father from 4.00 pm on the Saturday until 5.00 pm Sunday;
(b)if the child is in the care of the father, with the mother from 4.00 pm on the Saturday and for the remainder of the weekend.
8In the event that the child’s birthday falls on a Sunday she spend time with the parties as follows;
(a)if the child is in the care of the mother, with the father for four hours as may be agreed between the parties and failing agreement, between 1.00 pm and 5.00 pm;
(b)if the child is in the care of the father, with the mother from 1.00 pm on the Sunday for the remainder of the weekend.
Variations
9The mother and the father shall be at liberty to have the child live or spend time with each of them other than as set out in these orders and are at liberty to vary these orders, provided such variations are agreed in writing.
Handover
10Unless otherwise agreed, handover of the child shall take place at the [local service station in Suburb D].
Telephone communication
11The child shall have electronic communication with the parent with whom she is not living or spending time;
(a)on Wednesday of each week between 4.30 pm and 5.00 pm, with the other parent to initiate the call; and
(b)in accordance with her wishes, with the other parent to initiate the call.
School communications
12The parties have permission to provide a copy of these orders to the child's school and these orders are sufficient authority for any school attended by the child from time to time to release, to either party, information in relation to the child's school and educational progress and other related activities and to supply each party with copies of educational reports, photographs, certificates and awards as and when requested and at the expense of the party making the request.
13Each party be permitted to attend school assemblies, parent/teacher interviews or other school events to which parents are usually invited and each parent shall promptly inform the other of such events.
Extracurricular activities
14The parties shall make travel and accommodation arrangements for extracurricular activities in which they have enrolled the child in her time with each of them unless mutually agreed.
Alternative care options
15In the event that the child cannot be cared for by a party for a period of more than 24 hours during her time with that party, that party may seek alternative care arrangements without requiring the consent of the other party, but shall notify the other party of the arrangements to be made.
Special occasions
16In the event of special occasions such as weddings and milestone birthdays, a party seeking additional time with the child shall give at least 21 days' notice to the other party. The parties shall negotiate make up time with the child. All handovers shall occur in accordance with order 10 above.
Travel
17The parties shall provide to the other no less than 28 days' notice of an intention to travel for the purpose of a holiday with the child any distance more than 500 kilometres from home, including a basic travel itinerary and contact details whilst the child is on holiday.
18Neither party shall travel with the child interstate or overseas without the consent of the other party and such consent shall not be unreasonably withheld.
Passports
19The mother shall deposit the child's passport with the Registry of the Family Court of Western Australia for safekeeping to be released only upon the written consent of both parties or order of the Court.
Child's belongings
20The parties shall cooperate to ensure that any belongings or other items including toys and clothes that travel with the child to the other party's home shall return at the next handover. If the child requires any forgotten items on a daily basis or for school use, the items shall be returned to the child as soon as possible by the party in possession of the said items.
Contact details
21The parties shall keep the other informed as to their residential address, email address, landline and mobile telephone numbers and inform the other within 48 hours of any changes occurring.
Medical matters
22Each party shall advise the other immediately if the child experiences any medical emergency or significant health event while the child is in their respective care and shall provide particulars of any emergency treatment provided to the child and details of the relevant service provider/s.
23Each party shall advise the other within seven days of any other non-essential, medical/allied health treatment provided to the child and will provide the contact details of the relevant service provider/practitioner to the other party.
24The parties have permission to provide these orders to a treating medical or allied health professional and these orders are sufficient authority to enable either party to obtain any and all information required by that party from the child's treating medical or allied health practitioner as and when requested and at the expense of the requesting party.
Injunctions
25The parties be restrained and an injunction is hereby granted restraining them from:
(a)discussing these proceedings and other disputes between them, with or in the presence of the child; and
(b)denigrating each other, or any members of the other's parties extended family, or permit others to do so, to or in the presence of the child.
Communication
26The parties shall communicate as to arrangements for the child by text message or email. The parties shall ensure all of their communications are civil and business-like and that profane and emotive words are not used. When a party has requested a response from the other party, the responding party shall respond within 7 days. In an emergency only, including any hospitalisation of the child, the parties shall communicate via telephone and/or face to face.
27The parties are at liberty to use a communication book to exchange information concerning the child.
Procedural orders
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.
30In 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
Associate19 FEBRUARY 2019
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