CARTER-PATTON and BAKER

[2016] FCWA 7

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: CARTER-PATTON and BAKER [2016] FCWA 7

CORAM: DUNCANSON J

HEARD: 27, 28 AND 29 JANUARY 2016

DELIVERED : 29 JANUARY 2016

FILE NO/S: PTW 1706 of 2015

BETWEEN: MS CARTER-PATTON

Applicant

AND

MR BAKER
Respondent

Catchwords:

CHILDREN: where the child lives with the father and child spends time with the mother - where the father wishes to relocate the child to [South Australia] - relocation permitted

Legislation:

Family Court Act 1997(WA), s 7A, s 66, s 66A, s 66C s 70A and s 89AA
Family Court Amendment (Family Violence and Other Measures) Act 2013 (WA)

Category: Reportable

Representation:

Counsel:

Applicant: Self-Represented Litigant

Respondent: Mr S Jones

Solicitors:

Applicant: Self-Represented Litigant

Respondent: Nash Clavey

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

Mazorski v Albright (2007) 37 Fam LR 518

MRR v GR (2010) 240 CLR 461

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

INTRODUCTION

1These proceedings concern [Child A], the five year old son of [Mr Baker] (“the father”) and [Ms Carter-Patton] (“the mother”). Child A lives with the father in [Suburb A] and spends time with the mother.

2The father wants Child A to continue living with him and he wishes to relocate Child A to [South Australia], where he proposes to live with his partner (who is from South Australia) and their young child.

3The mother opposes Child A’s relocation to South Australia. She wants Child A to live with both of his parents in an equal shared arrangement in Western Australia.

FAMILY BACKGROUND

4The father was born [in] 1984 and is 31 years of age. He is a [mechanic].

5The mother was born [in] 1989 and is 26 years of age. She is a [nurse].

6The parties have one child, Child A, born [in] 2011. The parties separated at the beginning of 2013.

7Child A lives with the father and has done since June 2013. He spends time with the mother.

8The father is in a relationship with [Ms Bailey]. Ms Bailey is a [teacher]. The father and Ms Bailey have one child, Child B, born [in] 2015. The father and Ms Bailey are expecting their second child in March.

9The father, Ms Bailey and the children live in Suburb A. Ms Bailey has been diagnosed with [an autoimmune] disease. The father seeks to relocate Child A to South Australia, where he and Ms Bailey wish to live and where they will receive support from Ms Bailey’s family.

10The mother lives in Suburb B with friends. She is not in a relationship.

THE ORDERS SOUGHT

11Both parties seek an order that they have equal shared parental responsibility for Child A.

12As to Child A’s living arrangements, the orders sought by the mother are contained within two Minutes of Proposed Orders handed up in Court and filed on 27 January 2016.

13In summary, the mother proposes that Child A live with her at Suburb B in Western Australia. In that event and if the father lives in South Australia, the mother proposes that Child A spends time with the father for a period of seven days each calendar month with the father travelling to Perth for those visits. Additionally, Child A would spend time with the father for a period of ten days in each of the school holidays at the end of terms one, two and three and a period of 21 days during the Christmas school holidays. The holiday periods may be spent anywhere in Australia. Child A would have electronic communication with the father.

14In the event that Child A lives with the father in [Suburb C, South Australia], the mother proposes that he communicate and spend time with her as set out above. In other words, the orders she seeks enabling Child A to spend time with her, if living with the father in South Australia, are the same as those she proposes for Child A to spend time with the father if Child A is living with her in Perth.

15The mother proposes that, in the event both parents live in the same state, Child A should spend equal time with each of his parents.

16The mother makes proposals for special occasions and the provision of information. The mother also proposes that Child A may spend such other time with the father as may be mutually agreed.

17The orders sought by the father are contained within a Minute of Proposed Orders handed up in Court and filed on 27 January 2016.

18The father proposes that Child A live with him and spend time with the mother. In the event Child A lives with him in South Australia and the mother lives in Western Australia, Child A should spend time with the mother for one week during the holidays at the end of terms one, two and three and three weeks during the Christmas school holidays. He proposes Child A spend further time with the mother for two occasions during the school term in South Australia.

19The father proposes that, in the event that both parties live in the same state, and provided the mother lives close enough to Child A’s school, Child A shall spend time with her from after school Thursday to before school Monday each alternate week in addition to the holiday periods as set out above.

20The father further proposes that in the event the parties live in the same state and the mother does not live close enough to Child A’s school, he shall spend time with her from after school Friday to Sunday in each alternate week, together with the holiday time referred to above.

21The father makes proposals for the costs of travel, electronic communication and the provision of information.

THE PARTIES AND THEIR EVIDENCE

22The mother was a self-represented litigant. She is intelligent and articulate and her conduct of the trial was exemplary.

23The father was represented by counsel. He was thoughtful and measured in his responses to the mother.

24In cross-examination both parties were courteous and cooperative. Both parties made concessions against their own interests, showing considerable insight into the needs of Child A.

25In her sworn evidence the mother alleged difficulties in the parties’ relationship, partly by reason of the father’s excess alcohol consumption. That issue was not the subject of any cross-examination, nor was it raised as an issue at trial.

26In their sworn evidence both parties were critical of the other, but that was not the approach either took at trial. Their respect for each other as Child A’s parent was apparent.

27I consider both parties gave truthful evidence. Where the parties disagreed as to any factual matter, I consider that to be more likely due to their different perception or recollection of what occurred.

28Child A is fortunate to have two devoted parents, both of whom want the best for him. As is often the case where a party seeks to relocate with a child, there can be no middle ground.

29Ms Bailey and her mother gave truthful evidence. Ms Bailey showed good insight into the needs of Child A and was respectful of the mother’s role in his life.

SHORT HISTORY

30The parties met in [Sydney] in 2008. The father says they commenced living together there in June that year. The mother says their relationship commenced on 1 September 2008. Nothing turns on the difference.

31In late 2010 and early 2011, members of the mother’s family and friends moved to Perth.

32On 25 February 2011 the mother, the father and Child A moved to Suburb A.

33Both parties worked and both cared for Child A.

34On 9 September 2012 the mother commenced employment with the [Department of Health]. The father cared for Child A.

35On 24 December 2012 the parties relocated to Town A to enable the mother to commence as a nurse at [Hospital A]. The father continued to care for Child A while she worked. There were difficulties in the parties’ relationship. The father said they were separated under one roof from January 2013. The mother said they separated in early February 2013.

36Shortly after the parties separated, the father met Ms Bailey in Town A. They began living together in June 2013.

37The mother met [Mr McMahon] when she commenced work at Hospital A. They became friends. She began a relationship with him in September 2013, although the father asserted their relationship began earlier. The relationship ended when she moved to Perth.

38In or around March or April 2013, an incident occurred in which the mother assaulted the father. I refer to that further below.

39On 28 June 2013, by agreement of the mother, the father moved to Suburb A with Child A. The mother remained in Town A and continued working at Hospital A.

40On 14 June 2013 the mother wrote a letter to the father regarding the best interests of Child A. She acknowledged the father would move to Suburb A with Ms Bailey and Child A. In her letter, the mother stated she believed it was in the best interests of Child A to live in Suburb A with the father as he would be able to see family members and friends and participate in activities there. She stated it would be a better quality of life for Child A. Her employment was such that she could be flexible with shifts and would be able to spend time with him. Both parties signed that letter on 14 June 2013.

41The mother said she had previously considered moving with Child A to Sydney. The father told her that was not acceptable. The mother said at the time of writing the letter she was emotional and the father was overbearing and pressured her into doing so. The mother was closely questioned about this and in cross-examination acknowledged that she believed it was better for Child A to move to Suburb A with the father and the content of the letter reflected her views on Child A’s best interest.

42I find the mother was not pressured by the father into signing this letter. I further find she put Child A’s interests before her own and sincerely believed it was in his best interests to move to Suburb A. Undoubtedly, it was a hard decision for her to make and she was in a difficult position. She was at a disadvantage because of her commitments to her employment and in that sense it is likely she felt she had little choice.

43On 28 June 2013 the father wrote to the mother confirming he would move with Child A to Suburb A where he would have the support of family and friends. In the letter it was acknowledged that the parties considered it to be in the best interest of Child A to live with the father and that it was not in his best interests to move to Sydney. Both parties signed this letter.

44The mother spent time with Child A in accordance with her shift work.

45The mother was offered a transfer to [Hospital B] and commenced work there on 19 January 2015. She continued to spend time with Child A.

46The father told the mother he and Ms Bailey were contemplating moving with Child A to [Adelaide]. On 31 March 2015 the mother commenced these proceedings and sought an injunction restraining the father from removing Child A from Western Australia and from changing his principal place of residence from the Perth metropolitan area. On that date an order in those terms was made.

47The mother asserted the parties’ communication was difficult, that the father controlled and restricted her time with Child A and that he did not facilitate or encourage their relationship. The mother was extensively cross-examined about this and many of the text messages of the parties were put to her in cross-examination. She said the father behaved in this way prior to the commencement of Court proceedings, although she was unable to produce any evidence to substantiate this assertion. She acknowledged there was an improvement in their communication after the commencement of Court proceedings and the text messages, which were exhibited in evidence, appeared to show a courteous and cooperative relationship between the parties with respect to Child A.

48In mid-2015 the father took Child A to South Australia. During that time the father’s aunt passed away. The father requested an extension of time to enable him to go to Sydney and attend the funeral. The mother did not agree but the father kept Child A interstate anyway, beyond the agreed date. The mother considered it was important to adhere to the Court orders.

49Currently Child A spends time with the mother each alternate weekend, generally from Friday to Sunday. On 31 March 2015 Ms Bailey was diagnosed with an autoimmune disease. After the birth of Child B on 10 April 2015, Ms Bailey and Child B moved to live in South Australia but the father said they found it too difficult living apart. Ms Bailey spent two periods of time in South Australia and in June 2015, returned to Western Australia.

50On 30 April 2015, during the course of her employment, the mother was threatened by a [patient]. She suffered anxiety and took stress leave.

THE LAW

51These proceedings are determined under Part 5 of the Family Court Act1997 (WA) (“the Act”). (Both parties erroneously referred to provisions of the Family Law Act 1975 (Cth) and also to those provisions of the Family Law Act 1975 (Cth) which existed prior to the amendments to that legislation.)

52The proceedings commenced after the introduction of the Family Court Amendment (Family Violence and Other Measures) Act 2013 (WA) and, accordingly, the amendments to the Act apply in this case.

53In reaching my decision I will be guided by the objects of Part 5 and the principles underlying those objects.

54Section 66 sets out the objects and the principles underlying them.

55The 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.

56The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d)parents should agree about the future parenting of their children; and

(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

57In deciding whether to make a particular parenting order, s 66A directs me to 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 sub-sections (2) and (3), being the primary considerations and the additional considerations respectively.

PARENTAL RESPONSIBILITY

58Pursuant 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.

59Pursuant 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 an order providing for the child to spend equal time with each parent.

60If 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 an order for the child to spend substantial and significant time with each parent.

61In MRR v GR (2010) 240 CLR 461 the High Court said at [13], when considering the equivalent provision of the Family Law Act 1975 (Cth), as follows:

Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss(2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s(1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.

62Both parties seek an order that they have equal shared parental responsibility for Child A. I refer to that further below.

THE PRIMARY CONSIDERATIONS

the benefit to the child of having a meaningful relationship with both of the child’s parents

63A meaningful relationship has been interpreted as one which is important, significant and valuable to the child (Mazorski v Albright (2007) 37 Fam LR 518).

64Child A has a meaningful relationship with both of his parents and it is to his benefit that it continues in the future.

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

65There is not a need to protect Child A from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence in the care of either of the parties. He is well cared for by both parents.

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

66Child A is five years of age. He is too young to express any meaningful views.

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)

67Child A has a close and loving relationship with both of his parents.

68Child A also has a close and loving relationship with Ms Bailey, who has been involved in his care since mid-2013. He is very fond of his half-brother, Child B, and the mother acknowledged the importance of that relationship. Ms Bailey’s mother, [Ms Kent], says Child A has become close to her family.

69The mother says Child A has been accepted as family by [Ms Hale] and [Ms Hamilton], with whom she lives, and that Child A has also become attached to their family.

70Child A has spent time in Sydney with the extended family of both parties.

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 fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.

71The mother deposed she wanted to take a more active role in Child A’s life, but her contact has been limited by the father and he says only he will make long-term decisions.

72The father deposed the mother had not taken every opportunity to participate in decisions about Child A’s major long-term issues and that she had “handed over the reins of his care” to him and was satisfied with spending short periods of time with Child A.

73The parties’ sworn evidence was not supported by the oral evidence, and certainly not since the mother moved from Town A to Perth.

74Both parties have participated in making decisions about major long-term issues for Child A, spent time and communicated with him to the extent they have been able. Both parties have fulfilled their obligations to maintain Child A.

the likely effects of any change in the child’s circumstances including separation from

(i)either of his 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

75This consideration is of significance. Child A is accustomed to living with the father, who has been his primary carer for more than two and a half years. The father has been assisted in his care of Child A by Ms Bailey. Child A is accustomed to spending time with the mother and other persons close to him.

76It is likely the separation of Child A from the mother would have an effect upon him. On either parties’ proposal, Child A’s time with the mother would be less frequent if he lived in South Australia and the mother remained in Western Australia. On the father’s case, that time would be spent largely during school holidays. On the mother’s case, that would be school holidays but also one week each month.

77At Child A’s age, a separation from the mother is a significant change in his circumstances. It is clear, however, that Child A and the mother enjoy a close and loving relationship. Having regard to the strength of their relationship and the parties’ cooperation in the past, it is likely that relationship can be developed and maintained, albeit from a distance. Having regard to Child A’s young age, it would be desirable that he spend time frequently with the parent with whom he is not living. The mother’s proposal involves frequent time.

78Electronic communication will also assist. That is occurring at present and would continue.

79A move to South Australia with the father and Ms Bailey would be a significant change of environment for Child A which he would have to adjust to. It does not, however, involve a change of his primary carer and the company of his half sibling. This continuity of care for Child A, albeit, in a different location, is important.

80When asked, the mother said in evidence that if it was ordered that Child A should live with the father and he was permitted to relocate to South Australia, she too would relocate to South Australia if there was no other option.

81The mother showed considerable insight when she acknowledged that Child A would be affected if his primary carer changed. She said if there was to be a transition, she and the father would have to discuss whether any psychological assistance would be required. She acknowledged it would be traumatic for Child A to spend lengthy periods away from the father. To her credit, she agreed with the proposition that Child A’s connection with Ms Bailey was important and that he had a strong relationship with her.

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

82There is practical difficulty and expense associated with Child A spending time with, or communicating with, the mother if he lives in South Australia with the father. The difficulty arises by reason of distance and the cost of flights. For a few more years, Child A would have to be accompanied by an adult on flights.

83There is no practical difficulty and expense if the parties live reasonably close to each other.

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

84The mother is in full time employment as a nurse working eight hour shifts. She proposes Child A will attend before and after school care during her working hours. She has stable accommodation and supportive friends. She is able to provide for the needs of Child A on all levels. The mother is pessimistic and fears her relationship with Child A will diminish if he is permitted to relocate. In her oral evidence she had little, if any, criticism of the father’s care of Child A or that of Ms Bailey.

85When Child A moved to Suburb A from Town A, his behaviour was difficult. That is not surprising, given that he was only two years of age and it was highly likely he missed the mother. The father and Ms Bailey attended a parenting course to assist them develop strategies to manage Child A’s behaviour. At that time, Ms Bailey had no children of her own. In this way, they provided well for the emotional needs of Child A. Appropriately, the father said he has not discussed the move to South Australia with Child A, although they have talked about moving house.

86The father recognises it is in Child A’s best interests to maintain his close relationship with his mother and in his oral evidence, said he would promote Child A’s time with the mother.

87The father said Child A thrives on routine. Since the mother moved to Perth, Child A’s transition between his parents’ homes has improved.

88In the event the father is not permitted to relocate Child A to South Australia, he and Ms Bailey and their children will remain in the Suburb A area. The father has an offer of full-time employment there.

89In the event Child A is permitted to relocate to South Australia, the father and Ms Bailey will have the support of Ms Bailey’s family which is important to them in view of Ms Bailey’s health difficulties and the expected birth of their second child. They have temporary accommodation with Ms Bailey’s family until they obtain their own accommodation. The father has full-time employment as a mechanic working Monday to Friday and primarily school hours.

90I find that both parties and Ms Bailey have the capacity to provide for Child A’s needs, including his emotional and intellectual needs. Both parties are child-focused and have placed Child A’s needs before their own.

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

91Child A is just five years of age.

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

92This consideration is not relevant.

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

93Both parties have demonstrated a responsible attitude to Child A and to the responsibilities of parenthood.

94I do not accept the suggestion that the mother has prioritised her work over her care of Child A. She has a demanding job, she spends time with him whenever she can and has supported him with her income.

95It is to the credit of both parties that Child A is said to be thriving.

any family violence involving the child or a member of the child’s family

96The mother refers to “numerous violent physical encounters” perpetrated by the father against her. In cross-examination and in their oral evidence the parties referred to only one incident which occurred when they were living in Town A. The mother said the father pinned her against the wall with his hands around her throat. She punched him twice and said she acted in self-defence.

97Neither party suggested family violence is currently an issue and I am satisfied it is not.

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

98This consideration is not relevant.

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

99It would be preferable to make an order least likely to lead to institution of further proceedings relating to Child A. If Child A is not permitted to relocate to South Australia, it is possible that a further application will be made at a later date for the relocation as the father and Ms Bailey strongly desire to live there.

any other fact or circumstance that the court thinks is relevant

100Neither the father nor the mother has family members living in Western Australia. The mother’s family returned to Sydney. The father’s extended family also live in Sydney. Ms Bailey’s mother, Ms Kent said many of her family members live in South Australia, including her elderly mother. She said, and I accept, it would not be possible for her to move to Western Australia.

101The mother has a successful career as a nurse in Western Australia. Her qualifications are not transferable to South Australia and training would be involved to enable her to continue her career there.

102The mother said she would relocate to South Australia if Child A was permitted to relocate there. The father said, and I accept, that would be his preferred outcome.

103If the father is permitted to relocate Child A to South Australia, it is appropriate that he not seek to relocate to any further destination without the consent of the mother or order of the Court.

CONCLUSIONS

104Having considered the evidence in the context of the primary and additional consideration, I have come to the following conclusions.

Parental responsibility

105I intend to make an order that the parties have equal shared responsibility for Child A. Both parties seek such an order and I am satisfied the order is in Child A’s best interests. Both parties are good parents and Child A has much to gain from each of them. The cooperation between them, which was apparent at trial, suggests they would consult and jointly make decisions about major long term issues concerning Child A.

Child A’s living arrangements

106As I intend to make an order for equal shared parental responsibility, I must consider the specific outcomes provided for in s 89AA of the Act. The mother seeks an order for equal time if both parties remain in Western Australia and live within a reasonable distance of Child A’s school.

107The father proposed that, in the event the parties live within the same state and within a reasonable distance of Child A’s school, Child A should live with him and spend time with the mother from Thursday to Monday each alternate week. When asked about Child A spending equal time with his parents, the father indicated he could contemplate this in the future and said over a period of time he would have no issue with equal time.

108At this point in time, I am not persuaded it is in Child A’s best interests to spend equal time with his parents. That is because he is only five years of age and he is accustomed to living in the primary care of the father. He is said to thrive on routine and is currently thriving in the primary care of the father.

109Having regard to the close and loving relationship Child A has with both of his parents, depending on the circumstances at the time, it may well be in his best interests to spend equal time with each of them in the future.

110Equal time would be reasonably practicable if both parties lived within a reasonable distance of each other either in Western Australia or in South Australia. Equal time would not be reasonably practicable if the mother remains in Western Australia and Child A lives in South Australia.

111It would also be in Child A’s best interests to spend substantial and significant time with each of his parents. As with equal time, this would be reasonably practicable if both parents and Child A live within a reasonable distance of each other, but not reasonably practicable if Child A lives in South Australia and the mother remains in Western Australia.

112In the event that Child A lives with the father in South Australia, the time that he may spend with the mother is more than just school holidays. The mother proposes, and the father agrees, that in addition to school holidays, Child A may spend time with the mother one week each month, provided she travels to South Australia and obtains suitable accommodation close to Child A’s school. Overall his time with the mother would amount to substantial and significant time, as it would include days that would fall on weekends and holidays, and days that do not, and would enable the mother to be involved in Child A’s daily routine, occasions and events that are of significance to him.

113It is necessary for me to give consideration to the proposals of the parties and to determine the arrangements which are likely to promote Child A’s best interests. The father does not have to demonstrate compelling reasons for seeking to relocate to South Australia. It is necessary for me to consider all proposals or to formulate others that I consider to be in Child A’s best interests.

114There are many matters to weigh and balance for permitting Child A to relocate to South Australia permanently. These arise out of my consideration of the evidence in the context of the s 66C considerations to which I have referred above.

115The father has been Child A’s primary care giver since at least mid-2013. He has a close and loving relationship with him. Child A is settled in his care and is happy and thriving. It would be in Child A’s best interests for that living arrangement to continue and it would not be in Child A’s best interests to be separated from the father.

116The mother has a significant and meaningful involvement in Child A’s life. Their relationship is also a close and loving one and Child A has adapted to the current arrangement of living with the father and spending time with the mother. His relationship with the mother is well-developed and can continue to develop and be maintained, from a distance, by continuing to spend time with her and by electronic communication.

117If Child A is not permitted to relocate, the father, Ms Bailey and their children will remain in Western Australia.

118Having regard to Ms Bailey’s health difficulties and the support the father and Ms Bailey expect to receive from Ms Bailey’s family, there will be difficulties for them in Western Australia. There are advantages to the father’s family unit to relocate to South Australia, and it is likely that the benefit thereof will flow to Child A.

119The mother says she will relocate to South Australia. If she does not, Child A will still spend substantial and significant time with her and she will continue to be an important part of his life.

120In terms of extended family, both parties’ extended family live in Sydney and the mother indicated a close relationship with hers.

121The mother may forego her career in Western Australia if she moves to South Australia. When I balance that against the benefits to flow to Child A from remaining in the primary care of the father, with other family members to whom he is close, I have concluded it is in the best interests of Child A that he continue to live with the father who should be permitted to relocate him to South Australia.

THE PROPOSED ORDERS

122Subject to hearing from the mother and counsel for the father, the orders I propose to make are as follows.

1.The father, [MR BAKER], and the mother, [MS CARTER-PATTON], (“the parties”) have equal shared parental responsibility for [CHILD A] (“the child”), born 12 January 2011.

2.The child shall live with the father.

3.The father have liberty to permanently relocate the child to [South Australia].

4.The child shall spend time with the mother as follows:

(a) in the event the mother lives in Western Australia;

(i)for nine days (including travel days) in the holidays at the end of terms one, two and three;

(ii)for three weeks during the Christmas school holidays, to include Christmas Day, New Year’s Day in 2016/2017 and each alternate year thereafter; and to include the child’s birthday in 2018 and each alternate year thereafter; and

(iii)for seven days in a calendar month on two occasions during each school term, such time to be spent in [South Australia] provided the mother has accommodation in close proximity to the school attended by the child.

(b)in the event the mother lives in [South Australia] within close proximity to the child’s school;

(i)from after school on Thursday to before school on Monday each alternate week; and

(ii)during the school holidays as set out at subparagraphs 4(a)(i) and (ii) above.

(c)in the event the mother lives in [South Australia] but not within close proximity to the school attended by the child;

(i)from after school Friday to Sunday evening each alternate week; and

(ii)during school holidays as set out at subparagraphs 4(a)(i) and (ii) above and for two periods of seven days as set out in subparagraph 4(a)(iii).

(d) such other times as may be agreed between the parties.

5.The mother is permitted to travel interstate with the child during the school holidays.

6.The parties shall share equally the cost of the child’s air travel when he spends time with the mother pursuant to subparagraphs 4(a)(i) and (ii) above, provided that the distance to be travelled by the child is not greater than the distance between Perth and [Adelaide] airports.

7.For the purpose of the mother spending time with the child pursuant to subparagraphs 4(a)(i) and (ii) above, she should provide to the father 42 days’ notice of the dates during which she intends to spend time with the child and 21 days’ notice for the purpose of the time in 4(a)(iii).

8.The parties shall be at liberty to communicate with the child by telephone or Skype at all reasonable times while he is in the care of the other parent.

9.Without admission as to need, the parties shall be restrained by injunction from:

(a)discussing the current court proceedings with the child;

(b)denigrating the other party or their families in front of the child; or

(c)communicating with the other party or the other party’s family in an abusive manner.

10.The parties shall inform each other, as soon as practicable, of any emergency hospitalisation, significant injury or health problems suffered by the child, as well as any treatment received by him while he is in either party’s care.

11.The parties shall authorise and instruct the medical institutions attended by the child to release to each of them such information regarding the child as may be reasonably requested from time to time.

12.Each party shall be at liberty to consult the child’s medical practitioners, dentists, psychologists or other health professionals, as appropriate.

13.The father shall authorise and instruct educational institutions attended by the child to release to the mother such information regarding the child’s school curriculum, events, calendars, report cards and absentee records as may be reasonably requested by the mother from time to time.

14.The parties shall keep each other advised of their residential address and telephone numbers.

15.The father be restrained and an injunction be granted restraining him from changing the child’s principal place of residence from [Suburb C, South Australia], or within a 30 kilometre radius thereof, except with the consent of the mother or order of the court.

16.The subpoenaed documents be returned to source after 30 days.

17.The proceedings be otherwise dismissed.

I certify that the preceding [122] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate