CASEMENT and MacDONAGH

[2018] FCWA 29

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: BUNBURY

CITATION: CASEMENT and MacDONAGH [2018] FCWA 29

CORAM: DUNCANSON J

HEARD: 13, 14, 15 FEBRUARY 2018

DELIVERED : Ex tempore

FILE NO/S: PTW 3103 of 2017

BETWEEN: MR CASEMENT

Applicant

AND

MS MacDONAGH
Respondent

Catchwords:

CHILDREN - Where the mother unilaterally relocated with the child to [New South Wales] to take up a position with [a government department] - Where it is in the best interests of the child to live with the mother in New South Wales or such other Australian State or Territory as may be required by her employment with the government department - Where it is in the best interests of the child to spend time with the father

Legislation:

Family Court Act 1997 (WA) s 60B, s 60CA, s 60CC, s 61DA, s 65DAA

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 judgment(s):

Malcolm & Monroe and Anor (2011) FLC 93-460

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

1These proceedings concern the child [S] who is three years of age. S lives in [New South Wales] with the mother, [Ms MacDonagh]. The mother wants that arrangement to continue. The father, [Mr Casement] wants S to live with him in Western Australia.

2It is not in dispute that in August 2017 the mother unilaterally relocated to New South Wales with S after the father had commenced proceedings for parenting orders.

THE ORDERS SOUGHT

3The father seeks an order that S live with him in Western Australia. If the mother also returned to Western Australia, they would share care of S.

4If S remains in New South Wales, the father wants her to spend time with him on four occasions each year for up to seven days. He wants S to have electronic communication with him by video on two occasions each week. He will pay one half of the cost of travel.

5If the mother remains in New South Wales and S lives with him, the father proposes that S should spend the same time with the mother as he seeks if she remains in New South Wales.

6The mother seeks an order that S live with her in whichever Australian State or Territory the mother shall be living as required by her employment with the [government department]. Currently she is based in New South Wales.

7The mother's position was that she would not leave New South Wales even if it was ordered that S return to Western Australia. In that event she would want S to spend not less than four weeks a year with her, although she may require to have that in blocks of time by reason of her work commitments.

8In the event it is ordered that S should live with the mother in New South Wales, or such other Australian State or Territory as required by her employment, the mother proposes that S spend not less than four weeks a year with the father, two in Western Australia and the remainder in New South Wales. She said there were no limits on S's time with the father if he is prepared to travel to New South Wales and she would assist with the provision of accommodation.

BACKGROUND

9The father was born [in] 1981 and is 36 years of age. The mother was born [in] 1979 and is 38 years of age. The father has a son from a previous relationship [J] who is 10 years of age.

10The parties met in January 2013. In around July 2013 they became engaged and began living together.

11There were difficulties in the parties' relationship. The father asserted the mother was not happy with him maintaining a relationship with J, which the mother denied.

12S was born [in] 2014.

13The difficulties in the parties' relationship continued. The mother said the father spent limited time at home assisting with the care of S by reason of his working hours and social activities. She was concerned about his drinking while caring for S. The father said the mother was argumentative and aggressive towards him. He said she belittled him and accused him of being drunk.

14The parties separated in January 2015. The mother said the father left the house and did not pay child support. The father said he was locked out of the house and left the mother with expensive furniture. The father commenced a relationship with his now de facto partner [Ms M] in late February 2015, although the parties' sexual relationship continued from time to time.

15Since the parties separated S has lived with the mother. There have been significant difficulties between the parties concerning S's time with the father. The father's position is that the mother denied him time with S. The mother disputed this and said he did not avail himself of opportunities given to him.

16When the parties separated S was just about six months old. The mother said the father requested full weekends including overnight, which was too much for such a young child.

17From about May to October 2015 S spent time with the father for two four-hour visits a week.

18In about October 2016 the parties considered reconciling, but did not do so. The father moved into Ms M's home. S spent time with the father on 26 January 2016. The mother offered him visits with her on days in February, March and April 2016. The father declined these visits stating that the mother was manipulative and each of those days was a special day, such as Valentine's Day, his birthday or Ms M's birthday.

19S spent little time with the father in 2016.

20The mother said the father made sexual video calls to her which occurred frequently in 2016.

21The mother had previously been employed with the government department ("[the department]") in New South Wales and had returned to Western Australia in 2010. She remained in employment with the department as a standby employee. In November 2016 the mother received an offer from the department for a full-time position in [Adelaide]. She refused that offer as the father did not agree to S relocating and she wanted to negotiate further with him.

22The mother deposed that after separation she was depressed, anxious and unhappy. She had hoped for a reconciliation with the father. The mother struggled financially. She wanted to work to improve her financial circumstances, but was unable to find employment. The mother began seeing a psychologist in January 2017, to deal with her depression and anxiety stemming from what she described as her social isolation, unemployment, poor financial position and attempts to cope with the ongoing acrimonious relationship between the father and herself. She was given a mental health plan and in April 2017 began seeing a counsellor, [Mr N], to whom I refer further below.

23The parties attended Family Dispute Resolution in March 2017 and agreed a parenting plan containing four dates upon which S would spend time with the father. A visit took place on only one of those dates.

24On 20 June 2017 the mother was served with the father's initiating application. On 22 June 2017 she received an offer from the department of employment in New South Wales. She accepted the offer by the deadline of 7 July 2017. It was necessary for her to commence work as soon as possible and she left Western Australia with S on 6 August 2017.

25Before relocating the mother sought legal advice and her solicitor wrote to the father seeking agreement as to parenting arrangements regarding S, but no agreement was reached.

26Thereafter S had communication with the father by telephone. The mother refused to facilitate video calls because she said the father attempted to involve her in the calls in a sexual way.

27The mother brought S to Western Australia in late December 2017, when S spent time with the father, including on Christmas Day. Handovers were conducted by the maternal grandmother. On 28 December 2017 the father and Ms M arrived with S at the handover venue, McDonald's Restaurant. While there the father telephoned the mother and left a voice message on her phone in which he told S to ask her mother if she could stay the night with him. He then went into the restaurant with S to await the maternal grandmother's arrival. He clearly did not expect the impact this had on the mother.

28The mother explained that she received the voice message and S sounded upset. She believed S would not be returned to her and was very distressed because there were no orders in place. She panicked and called the police. She was aware she had to return to New South Wales and worried she would have to obtain a recovery order. The mother explained she reacted in this way against the background of the father suggesting to S during their phone calls, that she live with him. The mother described herself as emotional and distraught that S, aged three and a half, sounded like she had to choose between her parents. She did not know if S would be at the handover and when she and the maternal grandmother arrived there, they reacted angrily to the father and Ms M.

29It is most unfortunate the father made this call to the mother and the mother's concern was understandable in the circumstance.

30The mother returned to New South Wales. S spent time with the father [during] the trial, including overnight time. The father said she was comfortable and settled well overnight. The mother said there were no difficulties with S on her return from that overnight visit.

The father and his witnesses

31The father relied on his affidavits affirmed on 10 October 2017 and 13 January 2018. He also relied on a financial statement sworn 11 January 2018. The father was a self-represented litigant. He was courteous and helpful.

32I considered the father endeavoured to give truthful evidence and for the most part did so. His evidence in relation to his financial circumstances was at times slightly confusing. When asked a question by the mother on a topic he found difficult to answer, he said it was not relevant. For example, the mother asked him about him making sexually explicit comments during video calls and he was reluctant to answer her questions.

33The father is a loving parent to S. He is aggrieved at the way the mother removed S to New South Wales and strongly believes she should be returned to Western Australia.

34The father relied on the evidence of a number of witnesses all of whom were closely aligned with him and supportive of him.

35The father's friend, [Mr C] clearly had a poor opinion of the mother, but spoke of S's close relationship with the father.

36[Mrs C] also seemed to have a poor opinion of the mother. She described an incident when the mother had allegedly left S in the hot summer sun in an empty metal cage used to house chemicals in containers. Mrs C described having seen S covered in dirt and having been crying and out of sight of the mother. Annexed to the affidavit of the mother's witness [Ms W] were some photographs of S in what Ms W described as a metal frame which goes around a water cube. She and the mother put in it a doona and some toys and placed it in the shade. S was wearing a hat and in the photographs did not look unhappy. Ms W said S was within eyesight. Ms W's evidence was not challenged.

37Ms M is very supportive of the father. I am not convinced she fully understands what she might be taking on when she discussed the possibility of S living with her and the father. She and the mother have a poor relationship.

38The father relied on the affidavits of a number of other witnesses who were not required for cross-examination. I have taken their evidence into account.

The mother and her witnesses

39The mother relied on her affidavit affirmed 4 October 2017 and 25 January 2018. She also relied on her financial statement affirmed 25 January 2018.

40I consider the mother gave mostly honest evidence. At the outset it appeared that she was quite sarcastic and confrontational. In evidence she explained that she had not wanted to end the relationship and had hoped for a reconciliation. I consider that her unhappiness in this respect impacted upon her ability to cooperate with the father. She was not however solely at fault for the difficulties between them.

41The mother said and I accept she suffered emotionally. She became tearful when she described her fear that the father may not return S to her care at Christmas 2017. As set out below she persuaded me that she has genuinely sound reasons for seeking to remain in New South Wales.

42The mother's step-father [Mr B] and the maternal grandmother, [Mrs MacDonagh-Brown] were both cross-examined. They too were supportive of the mother and not particularly well disposed towards the father.

43The maternal grandmother explained she conducts handovers with the father, which have been very difficult, and she was very forthright in explaining those difficulties.

44Like the father, the mother was a self-represented litigant. Like the father she conducted herself properly throughout the trial. The mother also relied on the evidence of witnesses who were not required for cross-examination. I have taken their evidence into account.

45The mother's counsellor Mr N was cross-examined.

THE LAW

46The parties were not married. S is not present in Western Australia. These proceedings are determined under Part VII of the Family Law Act1975 (Cth) ("the Act").

47In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects.

48Section 60B sets out the objects and the principles underlying them.

49The 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.

50The 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).

51In deciding whether to make a particular parenting order, s 60CA directs me to regard the best interests of the child as the paramount consideration. Section 60CC 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.

52It is necessary for me to give careful consideration to the proposals of the parties and to determine the arrangements which are likely to promote S's best interests. I am mindful that the best interests of S 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 S's best interests.

53In Malcolm & Monroe and Anor (2011) FLC 93-460, the Full Court said at 85,515:

83.We emphasise that it is not the law that a parent wishing to relocate must establish compelling reasons for this to be permissible: see AMS v AIF (1999) 199 CLR 160, 179; and U v U (2002) 211 CLR 238, 259–260. Equally, there is no onus on a parent who may be "left behind" to demonstrate reasons as to why the other parent should not relocate. But it is properly part of a Court's inquiry to consider what each parent proposes and to determine the context of those plans and reasons for them in determining what is in the best interests of a child.

PARENTAL RESPONSIBILITY

54Pursuant to s 61DA 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. The presumption does not apply in circumstances where there is abuse or family violence.

55The presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility.

56Equal shared parental responsibility imposes an obligation upon the parties to consult as to major long-term issues regarding the children 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 the children of a long-term nature including issues about their education (both current and future), religious and cultural upbringing, health, their name and changes to their living arrangements that make it significantly more difficult for them to spend time with a parent.

57Pursuant to s 65DAA 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.

58If 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.

59Both parties seek an order for joint parental responsibility for S and I refer to that further below.

The father's position

60The father sought S's return to Western Australia. He deposed it was not his primary aim to remove S from the mother's care and had he had the opportunity to discuss the move to New South Wales amicably and to arrange visits and video calls to enable him to maintain his bond with S, he believed he would have agreed to her leaving.

61The father's position was that after separation he experienced difficulty seeing S regularly and this did not improve when, shortly after separation he met Ms M and they subsequently began living together.

62The father said he provided financial support to the mother. He said she severely restricted S's time with him and was abusive and aggressive towards him including in the presence of S.

63The father said the mother made a number of demands in response to his reasonable requests for time with S. Time was permitted when the mother understood he had separated from Ms M and then visits ceased when she discovered they had reconciled.

64The father said the mother falsely accused him of sexual misconduct towards her. He deposed to the maternal grandmother being obstructive at handovers. The father's son J misses S.

65The father commenced these proceedings when he filed an application on 10 May 2017 which was listed for hearing on 14 August 2017. Shortly before the hearing day, the mother relocated with S to New South Wales without notice. She denied him an opportunity of seeing S before she left. Since the mother's departure he has had regular phone calls with S, although not without difficulties. He wishes to have video calls.

66S spent time with the father at Christmas 2017 and he deposed to her being happy and content in his care. S was introduced Ms M and was able to spend time with her half-brother J.

67The father resides with Ms M. The home was purchased in mid-2016. The father has J every second weekend in his care. The father operates a small [supply] business. In evidence he said that the business was on hold while he conducted these proceedings and currently he derived about $500 per week from it. The father said he had thousands of dollars' worth of work waiting for him and once a year he could earn $10,000 in a week.

68The father wished the mother to return S to Western Australia and ideally they would share care of her. If as the mother states she will not return to Western Australia, S should live with him and Ms M. The father anticipated he is likely to work about two days a week and during that time S would be placed in day care. He could earn $1,500 to $2,000 per week. He said otherwise he would be a stay-at-home father.

69The father anticipated that Ms M would be a "fantastic" influence in S's life. He is active in the community and said he has important life skills and supportive friends. He said he has a loving family as well and his friends and family would assist in transitioning S to his home. The father deposed his relationship with Ms M is stable and the short periods of separation caused by the mother's behaviour which led to a brief sexual relationship between them is something he regrets. The father proposed to facilitate and ensure S's relationship with the mother and her extended family.

70It would not be possible for the father to move to New South Wales, the primary impediment being his relationship with his son J. His family lives in the [Suburb B] area and he owns a home there.

The mother's position

71The mother's position was that her relationship with the father after separation was conflictual. She said that he attempted to engage in a sexual relationship with her and at times they did. He behaved inappropriately in a sexual way during the course of video calls.

72The mother hoped for a reconciliation and the father entered a new relationship very soon after ending theirs. Consequently they had difficulties agreeing on parenting arrangements for S. The mother's position was that the father made unreasonable demands for S's time with him and the father responded by complaining she denied him the opportunity to have a relationship with S.

73After moving from New South Wales to Western Australia in 2010, the mother remained in employment with the department. After separation she suffered emotionally and financially. She was given the opportunity of improving her personal circumstances when she received an offer of employment from the department. She attempted to discuss this with the father, but without success. Mediation was also unsuccessful. She had legal advice and again attempted to resolve parenting arrangements but was unable to do so.

74She accepted the offer of employment and relocated with S to New South Wales. She did this to earn an income to provide for S.

75The mother says that since she returned to full-time work with the department in New South Wales, S has flourished and thrived. The mother is financially secure and able to provide what she said is a bright future for S.

76S enjoys day care [in] New South Wales and the mother believes that as a consequence of her attendance at day care she separated well from her to spend an overnight with the father. S is well socialised with children from families in the mother's unit and at regular social functions. The mother has been able to work at home at times and at the same time supervise and interact with S during the day. S has a [pet] living in New South Wales and is learning to care for the pet. The mother deposed she and S are learning languages together. They spend a great deal of time at the beach or local pool.

77The mother's position was that she would not be able to leave New South Wales for financial reasons, to do so would incur a large debt to the department for repayment of relocation and training costs which she could not afford. On the contrary by remaining with the department she has financial security and is able to provide well for S.

78The mother is in receipt of an annual salary of about $75,000 gross including benefits. The department also provides full medical health insurance for her and S. It is unlikely she will be [transferred to work elsewhere] She expects to remain in the [Northern] New South Wales area for a few years. The job has security and opportunity for advancement and the mother hopes to work towards buying her own home.

79The mother said that neither the father nor Ms M have experienced full‑time parenthood and have not thought through the consequences of S living with them. The mother pointed to the father providing minimal financial support for S which currently is $25 per week, with a declared earnings of $6,000 for the 2017 financial year.

80The mother's position was that she has been S's primary carer since her birth and it would not be in S's best interests to be separated from her.

THE BEST INTERESTS OF S

81It is in the best interests of S to have a meaningful relationship with both of her parents and neither party suggested otherwise.

82There is not a need to protect S from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence in the care of either party. S is too young to express any meaningful views.

83S has a close and loving relationship with the mother. S has a loving relationship with the father and he said her recent visit, including an overnight stay went very well. In evidence Mr C described S as connected to the father.

84S has a close relationship with others involved in her care. She met Ms M for the first time in December 2017, but got on well with her. S enjoys her relationship with J. She is happy at day care and well socialised in the mother's network of friends in New South Wales.

85The mother has made most of the decisions about long-term issues for S. She has been S's primary carer since birth. The father's complaint is that he has been denied the opportunity to participate in the decision making to spend time and communicate with S.

86S is financially supported mostly by the mother whose financial circumstances are stable. The father provides limited financial support for S.

87The likely effect of changes upon S's circumstances including the likely effect upon her of any separation from either of her parents, or other persons, is a significant consideration in the circumstances of this case. The mother seeks an order that S continue living with her in New South Wales. She has been S's primary carer since birth. In the event S is permitted to remain in New South Wales there would be no change in her circumstances.

88In the event that S is not permitted to remain in New South Wales, the mother has said she would not return to Western Australia. S would then be placed in the full‑time care of the father and Ms M. This would be a significant change in her circumstances and one which may have a detrimental effect upon her having regard to her close bond with the mother.

89Although S is very comfortable in the care of the father, she has not spent significant periods of time with him. She barely knows Ms M.

90I am not convinced that the father, or indeed Ms M have sufficiently thought through the consequences of having S in their full-time care.

91Although well meaning, I consider the father took a fairly simplistic view to this significant change that he proposed to S's circumstances. Although he described their relationship as "surprisingly strong" he conceded that removing S from the care of the mother would have some impact, but he did not think it would take her long to adjust and said if she became upset he would arrange a video link call to the mother.

92Ms M, although also well-meaning said that she and the father would do everything possible to ease the transition of S to their care.

93S's primary attachment is to the mother. A separation from the mother is likely to have a detrimental effect upon her and this is an outcome which would not be in her best interests.

94There is practical difficulty and expense with respect to S spending time and communicating with the father, which arises by reason of distance, travel and the cost of travel.

95The mother proposed to travel to Western Australia on two occasions each year and to be responsible for the cost of her own travel and that of S. She proposed that the father travel to New South Wales on two occasions each year, or more often if he is able to do so. She was prepared to facilitate time between S and the father on any occasion that he is able to travel to New South Wales and she will assist in the provision of accommodation, if he wishes.

96Both parties are in employment. Each party is in a positon to afford the cost of travel.

97Until now S has had telephone communication with the father. For good reason the mother has been reluctant to facilitate face-to-face calls, but I consider it to be a preferable way for such a young child to communicate with a parent. It will be necessary for the father to ensure that he does not say or do anything inappropriate towards the mother during those calls.

98Both parties are capable of providing for S's needs. The mother provides well for her on all levels. She has received assistance for her emotional difficulties. Her proposals are child focused.

99The father is also capable of providing for S's needs, although to date she has spent limited periods of time with him. The father's ability to care for S on a full-time, long-term basis is untested. Ms M does not have children of her own. S does not know her well, and yet on the father's proposal she will be closely involved in S's care.

100S is only three and a half years of age. It will be necessary to make orders regarding her time with her parents that she is developmentally able to cope with.

101Both parties are responsible parents. Both are somewhat pessimistic about the other promoting the relationship between S and the other parent. S has a good relationship with the father and settled well with him on a recent overnight visit. This would indicate that the mother has not undermined her relationship with the father. The mother spoke of playing video messages from the father to S to maintain their connection.

102The parties' relationship was highly conflictual and both parties refer to family violence between them in their affidavits. There is now no family violence involving S or her parents although there has been conflict at handover. There is no family violence order in effect.

103It would be desirable to make final orders as these proceedings have taken their toll on both parties and their ability to co-parent S. A refusal of the mother's application to relocate S to New South Wales may lead to further proceedings.

104In early 2017 the mother was referred to Mr N, Social Worker and Accredited Mental Health Professional. The mother had consultations with Mr N prior to her departure for New South Wales and consulted with him again in December 2017.

105Mr N deposed that the mother was anxious, stressed and teary and although he could not give a clinical diagnosis, in his assessment the mother had symptoms of Post-Traumatic Stress. Prior to the mother relocating to New South Wales, she had substantially recovered from her anxiety and stress and implemented appropriate strategies. In December 2017 she was very concerned that she would have to take action to recover S from the father's care.

106Mr N was impressed at the mother's recovery when he saw her in December 2017. He said there was a high risk of re-traumatising her and a high risk of depression and anxiety if she returns to Western Australia and is exposed to high conflict. The mother has benefited by the relocation in terms of her self-esteem and confidence and it has enhanced her recovery. This is to S's benefit.

CONCLUSION

107Having considered the evidence in the context of the primary and additional considerations I have come to the following conclusions.

Parental responsibility

108There has been family violence between the parties and the presumption that it is in S's best interests that her parents have equal shared parental responsibility for her does not apply.

109Both parties sought an order for equal shared parental responsibility however, both said they could not communicate with each other and neither indicated that they could comply with the requirements of such an order. For reasons set out below, I intend to order that S live with her mother and she be permitted to relocate her to New South Wales, or such other Australian State or Territory in which the mother may live as required by her employment with the department. I consider it would be in S's best interests for the mother to have sole parental responsibility for her. It will however be necessary for the mother to consult with the father in writing regarding any decision to be made about a long-term issue.

S's living arrangements

110It is to S's benefit to have a meaningful relationship with both of her parents. Even though S is very young, a close connection between her and the father has been maintained while she has been living in New South Wales. A meaningful relationship between them can be maintained. There was family violence between the parties, but S is not at risk of harm in the care of either party.

111The mother has been S's primary carer since birth and she is her primary attachment figure. S has a close relationship with the father, but her separation from the father is not likely to have as detrimental an impact upon her as a separation from the mother. She is accustomed to a long-distance relationship with the father with electronic communication.

112The mother made sound proposals for the future care of S and is able to provide well for her. S will benefit from the mother's ongoing stability and happiness. Although the father is a loving parent to S, his proposals for her care involve a separation from her primary carer and a significant change in her circumstances without a complete understanding as to what impact this will have on her.

113Having considered all of the factors carefully, I have concluded that S should live with the mother and she should have permission to relocate S to New South Wales or such other place of her employment with the department within Australia. I consider it would be in S's best interests that her mother remain her primary carer. The mother anticipates that she will work in New South Wales for the foreseeable future and it is unlikely she would be transferred to work elsewhere

Spend time arrangements

114I consider the proposals of both parties in this respect to be sensible. S will spend time with the father for not less than four weeks in each year, with two of those weeks taking place in the South West of Western Australia and will include Christmas in each year. The mother proposed to travel to Western Australia in October and December each year with S at her expense. It may be necessary for S to be reintroduced to the father on each occasion, but provided there are no difficulties, overnight time can be facilitated. The mother proposed that the father may travel to New South Wales on not less than two occasions each year, possibly in the April and July school holidays. She was prepared to facilitate any other time he may travel to New South Wales.

115The father does not like flying and indicated there may be some financial constraints about travel, but the opportunity is there for him to spend time with S in New South Wales.

116S should have electronic communication with the father by video or Skype on two occasions each week and such other times as she wishes. This is important to maintain a connection with her father given her young age.

Other matters

117Both parties are in employment. Each should be responsible for the cost of his or her own travel and in the case of the mother, that will include the cost of S's travel.

118The parties should obtain a passport for S. The mother seeks the opportunity of taking S overseas for the purpose of a holiday. The father does not propose overseas travel. The mother should retain S's passport. Once S is eight years of age and assuming she maintains her meaningful relationship with the father, he should have the opportunity of travelling overseas with her if he wishes. Both parties should give appropriate notice of the travel.

119During the parties' relationship the mother was concerned about the father's consumption of alcohol, although that was not raised as an issue during the trial. Having regard to the evidence of the mother in this respect I propose to make an order that the father be restrained from consuming alcohol to excess while S is in his care.

120Both parties should provide the other with information as to S's primary place of residence when she is living, or spending time with each of them. The mother makes proposals for the provision of information and non-denigration, both of which are appropriate and in the best interests of S.

THE ORDERS

121After hearing from the parties, the orders I make are as follows:

1All previous parenting orders be discharged.

Parental responsibility

2The Respondent, [Ms MacDonagh] have sole parental responsibility for the child, [S] born [in] 2014.

3Before the Respondent makes a decision as it relates to a long-term issue concerning the child she shall:

(a) notify the Applicant, [Mr Casement] by email of the decision she intends to make and the reasons for the decision;

(b) seek the Applicant's comments on the decision she intends to make;

(c) take into account any comments the Applicant makes about the decision she intends to make, provides such comment is received, by email, from the Applicant within five days of notice being given by her; and

(d) notify the Applicant by email of the decision she has made.

The child's living arrangements

4The child shall live with the Respondent.

5The Respondent is permitted to relocate the child to [New South Wales], or such other Australian State or Territory in which the Respondent may live as required by her employment with the [government department].

Spend time arrangements

6The child shall spend time with the Applicant in the South West Region of Western Australia as follows:

(a) for not less than one week during the Christmas school holidays to include:

(i)from 8.00 am to 12.00 noon on Christmas Day in 2018 and each alternate year thereafter; and

(ii)from 12.00 noon until 5.00 pm on Christmas Day in 2019 and each alternate year thereafter; and

(b) for one week during the October school holidays.

7The child shall spend time with the Applicant in [New South Wales] for not less than one week during each of the April and July school holidays.

8Until the child attains the age of six years, the time the child will spend with the Applicant pursuant to orders 6 and 7 above, will be from 9.00 am to 5.00 pm on seven consecutive days to include overnight on the second, fourth and six nights, excluding Christmas Day.

9In the event the child is not willing to spend overnight time with the Applicant he shall return her to the Respondent's care.

10The school holidays referred to above shall be the [New South Wales] school holidays.

11The Respondent shall give the Applicant not less than 30 days' notice of the time the child shall spend with the Applicant in Western Australia and the Applicant shall give the Respondent not less than 30 days' notice of the time the child shall spend with him in [New South Wales].

12The child shall spend such other time with the Applicant as may be agreed in writing between the parties.

Cost of travel

13Each party shall be responsible for the cost of his or her own travel and the Respondent shall pay the cost of child's travel to and from Western Australia.

Electronic communication

14The child shall have electronic communication with the Applicant by video link or Skype on not less than two occasions each week on Tuesdays and Thursdays between 6.30 pm and 7.00 pm ([NSW] standard time), with the Respondent to initiate the call.

Handovers

15Unless otherwise agreed in writing handover shall take place at:

(a) in Western Australia at [Suburb B]; and

(b) in [New South Wales] at [Suburb M].

Travel and passport

16The Respondent be at liberty to apply for a passport for the child and in the event that the Applicant refuses to consent to such application, his consent be dispensed with.

17The Respondent shall retain the child's passport in her possession.

18The Respondent be at liberty to remove the child from the Commonwealth of Australia for the purpose of a holiday with the Respondent for a period not exceeding 28 days, with the Respondent to advise the Applicant in writing of the following, 28 days prior to travel:

(a) an itinerary of travel plan including flights, addresses and contact telephone numbers during the travel;

(b) confirmation that the child shall have telephone communication with the Applicant not less than once each week; and

(c) details of the child's travel insurance.

19The Applicant be at liberty to remove the child from the Commonwealth of Australia for the purpose of a holiday once she has attained the age of eight years.

20The Applicant return the child's passport to the Respondent within 14 days of returning to the Commonwealth of Australia.

Provision of information

21Each party shall keep the other informed of their current mobile telephone numbers, email addresses and residential address and promptly inform the other of any change thereto.

Medical and education issues

22In the event that the child suffers from a major health issue then the party who has the care of the child at that time shall immediately communicate with the other parent in relation to the health issue.

23The Respondent shall do all acts and sign all documents necessary to authorise the school attended by the child to provide the Applicant with information concerning the child's schooling, including but not limited to copies of any school reports, school photos, access to any portfolio of work, school circulars or notices concerning functions, parent/teacher nights, school carnival and other school functions or events to which parents are invited, as soon as practicable after they are issued.

24The parties be at liberty to provide a copy of these orders to the school attended by the child.

Injunctions

25The Applicant be restrained and an injunction is hereby granted restraining him from consuming alcohol to excess while the child is in his care.

26The Applicant and the Respondent be restrained and an injunction is hereby granted restraining each of them from denigrating the other parent, or the other parent's family members within the hearing of the child, or permitting a third person to do so.

Procedural orders

27All extant applications be and are hereby dismissed.

I certify that the preceding [121] paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court

Associate