CHESTERFIELD and DONATI
[2017] FCWA 116
•28 SEPTEMBER 2017
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: CHESTERFIELD and DONATI [2017] FCWA 116
CORAM: DUNCANSON J
HEARD: 24, 25, 26 MAY 2017
and MINUTES OF ORDERS RECEIVED 20 JUNE 2017 and 19 SEPTEMBER 2017
DELIVERED : 28 SEPTEMBER 2017
FILE NO/S: PTW 3388 of 2015
BETWEEN: MR CHESTERFIELD
Applicant
AND
MS DONATI
Respondent
Catchwords:
CHILDREN - Relocation - Where children live in WA with the mother – Where mother seeks to relocate children to Victoria - Where children are young and where it is in their best interests to spend regular and gradually increasing periods of time with the father - Relocation refused
Legislation:
Family Law Act 1975 (Cth) s 65DAA
Category: Reportable
Representation:
Counsel:
Applicant: Ms G Anderson
Respondent: Ms N Hossen
Solicitors:
Applicant: Peel Legal
Respondent: Saxon Legal
Case(s) referred to in judgment(s):
Zahawi & Rayne [2016] FamCAFC 90
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
INTRODUCTION
1[Mr Chesterfield], the father and [Ms Donati], the mother are unable to agree the living arrangements for their daughters, [Child A] and [Child B].
2Child A and Child B are aged five and two years respectively.
3Currently the children live with the mother and spend time with the father. At the time of the trial Child A spent up to three nights a fortnight with the father and also time during the day. Child B spent day time with the father, but not overnight. The children's overnight time with the father has since increased to four nights a fortnight for Child A and two nights a fortnight for Child B pursuant to the interim consent orders referred to below.
4The father works fly-in/fly-out and the children spend time with him according to his roster.
5In 2015 the mother commenced a relationship with [Mr S] who lives in Melbourne. She gave birth to their child [Child C] [in] 2016. The mother wishes to relocate Child A and Child B to Melbourne where she wishes to live with Mr S and the three children.
6The father opposes the relocation of Child A and Child B to Melbourne. He seeks to have them spend regular time with him according to his roster and to do that, he requires the mother to live with the children within a 30 kilometre radius of his home in [Suburb F].
7Although not put forward as an alternative proposal, the mother's position is that if she is not permitted to relocate the children to Melbourne she could not afford to live independently and would move to [Country Town K] to live with her parents, where she would have their support in bringing up three children.
8The father is not prepared to move to Melbourne. The mother said she did not think Mr S could move to Perth. Mr S deposed he is unable to live in Western Australia at present.
9Both parties have good reasons for taking the positions they have. The decision is not made any easier by the fact that both parties are good parents and the children are still very young.
10The background and history of the proceedings is conveniently set out by O'Brien J in his reasons [2016] FCWA 100 at paragraphs 3 to 22.
11At a hearing on 4 October 2016, his Honour refused the mother's application to relocate the children to Melbourne on an interim basis and he refused the second alternative proposed by her of a relocation for a fixed term of three months. He also pointed out that his interim decision should not be regarded by either party as an indication of the likely long-term outcome of the case.
12Following the hearing on 31 October 2016, his Honour made an order until further order, that the parties have equal shared parental responsibility for the children. He also ordered until further order, that the children live with the mother and she be restrained from changing their principal place of residence to any place outside the State of Western Australia.
13His Honour ordered that Child A spend time with the father during each of his regular rostered weeks off as follows:
(a)from 9.00 am until 6.00 pm on Wednesday and Thursday; and
(b)from 9.00 am on Friday until 6.00 pm on the following Monday.
14His Honour ordered that until further order, Child B spend time with the father during each of his regular rostered weeks off as follows:
(a)for the next three cycles of the father's roster, from 9.00 am until 12.00 pm on Wednesday, Thursday and Friday;
(b)for the following two cycles of his roster, from 9.00 am until 3.00 pm on Wednesday, Thursday and Friday; and
(c)thereafter, from 9.00 am until 5.00 pm on Wednesday, Thursday and Friday.
15The above spend time arrangements were those in place at the time of trial.
AGREED MATTERS
16At the commencement of the trial on 24 May 2017 various orders were made by consent. Those orders provided that the parties have equal shared parental responsibility for the children. It was also ordered that the children have reasonable electronic communication with the father and that the parties each notify the other of any change to their address or contact details within 24 hours of such change.
17It was ordered that each party promptly advise the other of any significant illness, accident or injury suffered by the children, any significant medical or dental treatment provided to the children and any medication the children have to take while in the other party's care, including the dosage.
18Following the trial, on 26 June 2017 interim orders were made by consent providing that Child A spend time with the father while he is rostered off from his employment as follows:
(a)for four nights from the conclusion of school on Friday until the commencement of school the following Tuesday.
19The spend time arrangements for Child B are as follows:
(a)from 9.00 am to 5.00 pm on each of the days that Child A spends with the Applicant with an overnight stay on each Saturday until Sunday at 5.00 pm commencing 1 July 2017; and
(b)commencing 26 August 2017 as from 9.00 am to 5.00 pm on each of the days that Child A spends with the Applicant with two overnights from the conclusion of school Friday until Sunday at 5.00 pm.
THE PARTIES AND THEIR EVIDENCE
The father
20I consider the father gave mostly truthful evidence. He gave carefully considered answers in cross-examination.
21An aspect of his evidence in which I consider he was not entirely truthful was when he was asked about an occasion in July 2014 when Child A was left in his care while the mother visited her sister. He sent a text to the mother saying "Not doing this again, she doesn't sleep thinks it's a game, I end up shouting, wasting hours on hours for nothing". He was asked if he shouted at Child A. He was somewhat evasive in answering this question. He denied he shouted at the children when they woke him, but subsequently said he had done so.
22The father made some concessions where appropriate. For example his correspondence with the mother had at times been inappropriate and he agreed he should change the tone of that correspondence.
23For the most part, the father impressed me as a loving and caring father to the children. He wants to share their parenting equally with the mother.
The mother
24I consider the mother gave truthful evidence. The father asserted that she was a controlling person, but she did not appear as such when giving evidence. She said she found the father difficult to deal with and he was abusive towards her.
25At times the mother's evidence was vague, uncertain and confused, including with respect to important aspects of her case. For example, when asked in cross‑examination whether Mr S would move to Perth if the children were not permitted to relocate, her first answer was that she was not sure.
26Various parts of earlier affidavits were put to her. She read them very carefully and appeared to have difficulty understanding them, and when questioned about them was, at times, uncertain and unclear.
27The children have not been immunised. The mother said this was by agreement. The father denied this. I cannot be entirely certain but I think it more than likely that the mother decided not to immunise the children and the father went along with it.
28Both parties asserted the other was controlling. I did not form that impression of either party but that is not to say they do not each perceive the other as such.
29The mother impressed me as a loving and devoted parent to the children. I accept her motive for seeking to relocate the children is bona fide.
Mr S
30Mr S is the mother's partner. He is the father of their son who was five months old at the time of trial. He is a pleasant man who gave honest evidence in a forthright manner.
31Mr S thought the mother and children would be simply able to move to Melbourne. He believes Melbourne to be the best place for them because everything is there for them. He candidly said he did not realise a year later he would be in court. I think that reflects the position of both the mother and Mr S namely, that early in their relationship they did not anticipate that there would be difficulties ahead in seeking to relocate the children to Melbourne.
32Mr S had sent some Facebook messages to the father in very inappropriate terms. He readily conceded that they were inappropriate, he was embarrassed and he apologised.
33Mr S denied that he is involved in drug use, although one of his text messages would suggest otherwise. I accept his denial.
Other family members
34Family members including the father's uncle, sister and the maternal grandmother gave oral evidence, which was mostly reliable.
THE LAW
35O'Brien J set out the law in his said reasons at paragraphs 29 to 37 which I adopt and it is not necessary to repeat it here.
THE PRIMARY CONSIDERATIONS
the benefit to the child of having a meaningful relationship with both of the child's parents
36Child A and Child B have a meaningful relationship with both of their parents and it is to their 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
37There is not a need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The children are well cared for by both parents.
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
38The children are aged five and two years. They are 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)
39Child A and Child B have a close and loving relationship with the mother. She has been their primary carer since their births.
40The children also have a close and loving relationship with the father. Child A has developed a strong bond with the father. She has spent increasing periods of time with him since the parties separated and as at trial was spending three overnights and daytime with him in each of his rostered weeks off work. That time has since increased to four overnights as discussed above. Child A is happy and comfortable in his care.
41Child B was only about two months old when the parties separated. By reason of the father's roster he spent only limited time with her prior to separation. After separation, the father spent some time with Child B when collecting Child A. It was difficult for Child B's relationship with the father to develop until she began to spend more time with the father as she got older. The father said their relationship is now developing well. I accept the mother wants this to happen and that when Child B is ready she wants both children to spend the same time together with the father.
42As at trial Child B had not spent an overnight in the father's care, but she was becoming increasingly comfortable with him. Pursuant to the orders dated 26 June 2016 she would by now be spending two overnights with the father.
43The children have a close relationship with the maternal family members with whom they live.
44The children have a close relationship with their half-brother Child C, who is now about nine months of age.
45The mother says Mr S is caring towards Child A and Child B. Mr S deposes that he has a good relationship with the children and that he treats them as if they were his own. In her earlier evidence the mother said both children had developed a close relationship with Mr S and they saw him as more of a father figure than the father, although that did not seem to be her position at trial. When questioned about this the mother said, what she meant was that Mr S came home from work every night as opposed to the father, who worked away as part of his roster.
46On 31 October 2016 an order was made without admission as to need restraining the mother from allowing the children to be left unsupervised in the care of Mr S other than in the case of a medical emergency. The father did not seek a final order in these terms and upon the evidence I find such an order is not necessary.
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
47Both parents have participated in making decisions about major long-term issues in relation to the children. However, they have not always agreed about this for example in relation to the children's health.
48Since separation the children have lived with the mother and spent time and communicated with the father. The mother asserted that the father was reluctant to spend time with Child B after separation. The father pointed out that Child B was a very young baby at the time and consequently his time with her was very limited. The mother said he was only interested in Child A. I do not accept that. I expect it would have been difficult for the father to bond with Child B when she was so young and his time with her was short. Clearly he was more able to spend meaningful time with Child A who by then had a close relationship with him.
the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
49Both parties have fulfilled their obligations to maintain the children. The father pays child support. The current assessment is $1,880 per month.
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
50It is not in dispute that the children will continue to live with the mother. There was no suggestion that the mother would go to Melbourne if the children were not permitted to relocate. There is therefore no question of the children being separated from the mother.
51At the time of trial the father spent three nights and two days with Child A in each fortnight and three days with Child B, although this time has since increased as described at paragraphs 18 and 19 above. If the children are permitted to relocate to Melbourne they would be separated from the father. This is likely to have an impact on their relationship with him, which in the case of Child B, in particular, is still developing. The children are very young and they maintain their connection with the father by seeing him regularly. In the event the children live in Melbourne, the time they would spend with the father is likely to be school holidays or other times when he is able to travel to Melbourne around his roster. The difficulty with infrequent time for young children is that after an absence it can be necessary for them to become reacquainted and comfortable with the parent they have not seen for some considerable time. Maintaining their close relationship with the father, and in the case of Child B the developing relationship, would be difficult.
52If the children remain in Perth, they would continue to spend regular time, including overnight time, with the father. They would maintain their close relationship with the mother's large extended family, including their maternal grandparents, uncles, aunts and also their relationship with the father's family. The children's circumstances in terms of their relationships would remain unchanged. The separation from the father and their extended family network would be a significant change.
53In the event that the children were to move to Melbourne, it would be necessary for Child A to attend a new school and the children would learn to get to know Mr S's family members.
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
54There is practical difficulty and expense which arises by reason of distance, travel and cost of travel. The parties agree that if the children are permitted to relocate to Melbourne they would spend time with the father during school holidays and at times they would travel to Perth. They would also spend time with him in Melbourne. The father's concern is that he would have difficulty in travelling to Melbourne in his time off in his roster. It is necessary for him to fly to his place of work from Perth airport and he cannot do so directly from Melbourne. On a practical level spending time with the children would be difficult. The father would have to rent accommodation, possibly an Airbnb or a hotel. This by its very nature would be temporary accommodation, which he would have to make comfortable for the children. On occasions it could be unfamiliar to the children and it would be necessary for them to adjust and settle into strange surroundings at those times.
55If the children live in Country Town K there is also practical difficulty and expense. The distance between the father's home in Suburb F and Country Town K is 280 kilometres and the children would only be able to spend time with him at his home at weekends during the school term.
56If I make the order sought by the father that the children live with the mother within a 30 kilometre radius of Suburb F there is little, if any, practical difficulty or expense.
57The parties agree as to the cost of travel with the father to pay the slightly greater share of the cost of travel during school holidays.
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
58The mother is capable of providing for the needs of the children on all levels. She has been their primary carer since birth. Although her views as to medical treatment are questioned by the father, the children are in good health and are well cared for.
59Currently the mother and the children live at the home of the mother's parents in [Suburb S]. The mother's parents are planning to move to Country Town K.
60The mother is dependent upon Centrelink benefits and child support, to support herself and the children. If she cannot relocate the children to Melbourne she will live near her parents in Country Town K to have their help with the children.
61The father has the capacity to provide for the needs of the children, including their emotional and intellectual needs. At times his insight into the needs of these young children has been lacking for example, his complaint about Child A not wanting to speak on the tablet at a time when she was sleeping. At trial he sought extended overnight periods of time with the children, perhaps not appreciating the need for young children to have an opportunity to adapt to increasing periods of separation from their primary carer. By the conclusion of his evidence however, the father seemed to have moderated his position as to the progression of his time with the children.
62Of concern was the father's evidence that he had been writing a "letter" for the girls over the last two or three years. He described this as a personal letter to them, because one day they would ask questions. He said when they are mature enough, perhaps 18 years of age, he would give it to them if they want to read it. The letter contains his notes about how he has had to fight for time with the children and about court and lawyers.
63I consider he lacked some insight in relation to this, although there was no suggestion that he intended to share this information with the children at this time. It is possible that in the future he may consider it appropriate that he does not 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
64Child A and Child B are just five and two 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
65This consideration is not relevant.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
66Both parties have demonstrated a responsible attitude to the children. Both parties complained that the other was controlling. I consider it likely that when the parties were still together, the mother made decisions regarding their health and their arrangements. The father probably went along with this, mostly, as part of the time he was working away.
67When Child A was very young she suffered what the mother described were episodes of "funny breathing". Subsequently while on holiday in Melbourne, Child A was taken to hospital with an asthma attack. She was treated for asthma and prescribed Ventolin. The father explained he was ashamed of himself for not having done something about Child A's breathing difficulties and seeking treatment earlier. He said the mother maintained that they were just breathing difficulties and whenever they had discussions about the matter, it blew up into an argument. He went on to describe this as the most shameful thing of his life.
68The children have not been immunised. The parties disagree about this. The mother said they discussed it and the father agreed they should not be immunised. That was not the father's position.
69Having regard to the difficulties that the parties have had in making decisions about major long-term issues, I intend to set out the process for consultation on long‑term issues very clearly in the orders.
70There was considerable conflict between the parties in the later stages of their marriage. After separation the father was less inclined to cooperate and the mother found his attitude to be abusive.
71The parties disagreed about the father spending time with Child A when she had to have her prick test. The father said he could take her for the test as it was Child A's time with him. The mother disagreed saying she wanted to be there to comfort her in what was a very traumatic event. The father did not seem to understand this. I consider the mother's position to be an understandable one.
72The father felt the mother limited his time with the children unnecessarily. The mother found him difficult to deal with.
73The father said he had attempted to communicate with Child A by electronic means, but frequently the mother would not answer the phone or receive his calls. He described difficulties in communicating with Child A, whereas the mother said she facilitated his calls.
74On one occasion the father complained that Child A had not taken part in a call. The messages demonstrate that the mother endeavoured to explain that she was very young, that she was tired and that a child of such young age was not always compliant with electronic communication. This occurred when the father was away on his roster and is likely to have been missing Child A. The messages indicate he did not accept the mother's explanation, whereas I think the mother's explanation is plausible.
75The father was of the view that he did not require any counselling. It may be of assistance to both parties to attend the Mums and Dads Forever program.
76The parties do not communicate well, although they do communicate regarding the children.
any family violence involving the child or a member of the child's family
77There was family violence between the parties. The parties had frequent arguments and the mother deposed the father yelled at her. She felt he was aggressive and abusive. At the time of separation the father yelled at the mother in the presence of Child A. The mother was concerned about the impact of the father's behaviour upon the children. I accept the mother's evidence in this respect. I found the father's denials about this to be unconvincing.
78There is no family violence involving the children or the parties at this time.
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
79There is no family violence order in place.
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
80It would be preferable to conclude these proceedings with orders which provide certainty in Child A and Child B's living arrangements.
any other fact or circumstance that the court thinks is relevant
81The mother has been in a relationship with Mr S for about two years.
82Mr S's circumstances are important as the mother's case does not contemplate Mr S moving to Perth. Mr S is a [tradesman] and works for a company for whom he has worked for the last three years. He is in receipt of gross annual earnings of about $130,000. Mr S rents a three bedroom home in Melbourne. He explained this is set up for the children and the mother and he thought it was best for the mother and the children to come and live with him there where he can provide for them. He said he had no idea it would be this difficult and involve court proceedings for this to occur. Mr S has spent considerable periods of time in Western Australia since 2000. At one time he worked in Perth having taken up the offer of a promoted position.
83Mr S returned to Victoria when his father became ill. His father is in his 60's and suffers [health problems]. He is currently waiting to have an operation. Mr S wishes to live within a reasonable proximity of his parents and to be there for his father.
84Mr S's parents live about an hour's drive from Mr S's home. He visits them at least once a month, or alternatively they visit him. Mr S's sister lives near their parents and she has two young children. If Child A and Child B are not permitted to relocate to Melbourne, for Mr S to live with the mother and their young son, he would have to move to Perth and find employment. Upon the mother’s proposal Mr S would remain close to his family. Upon the father’s proposal Child A and Child B would remain close to him and their family.
85Another matter to be considered is the mother's happiness. This was not the subject of much evidence at trial. There was no expert evidence about the impact on the mother if the children were not permitted to relocate to Melbourne. She said she could not be happy if the person she loves were not with her. She wishes to live with Mr S and their child, together with Child A and Child B. There was no evidence as to the impact on her parenting of the children if she were not permitted to move.
86An important factor is the mother's support network. She is close to her extended family, they are all in Perth. In evidence the mother said she had a friend in Melbourne. She said that she has no family support in Victoria and she said if she were with Mr S, he would be the support person. Counsel for the father submitted that there is a "very obvious difference" between the level of family support available to the mother in Perth and in Melbourne. Counsel submitted the situation in Melbourne would be one of the mother spending a lot of time on her own during the day with three small children, Mr S working and having his holidays in the post‑Christmas period. I accept there is a greater degree of support available to the mother in Perth and that she depends upon that support. This is relevant to the mother's intention to live in Country Town K with or near her family if she is not permitted to relocate the children to Melbourne.
87The only other option involves the father relocating to Melbourne to live. In evidence he stated he would not do so. Although the parties have not finalised their property settlement, the father has purchased a home, being the former matrimonial home in which he currently lives and where the children spend time with him. He has a mortgage over the home. His family are in Perth. His work is facilitated by flying in and out from Perth.
PARENTAL RESPONSIBILITY
88An order has been made by consent that the parties have equal shared parental responsibility for the children.
89It is clear they have disagreed in the past regarding medical treatment and Child A's schooling.
90Equal 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.
DISCUSSION
91As I have made an order for equal shared parental responsibility, I must consider the specific outcomes provided in s 65DAA of the Family Law Act 1975 (Cth).
92Neither party seeks an order for equal time and in any event I do not consider it would be in the children's best interests to spend equal time with each of their parents. At trial Child A spent three nights with the father and the remainder of her time with the mother. Child B did not spend any overnight time with the father, but this was to change with overnight time to be gradually introduced. The current spend time arrangements are as set out at paragraphs 18 and 19. The children are still very young. Their mother has been their primary carer since their births. The evidence did not support a change from this arrangement to one of equal time as being in the best interests of the children.
93An order for equal time would not be reasonably practicable by reason of the father's roster. He works seven days on and seven days off in the first fortnight. Part of that work includes overtime. In the second fortnight he works eight days on and six days off and therefore equal time in that second fortnight would not be possible. Taking into account the father's travelling time and rest time, equal time would not be reasonably practicable having regard to the father's work commitments.
94The father seeks orders providing that the children's time with him increase gradually, such that they spend days and six nights with him during his seven day period off work and days and five nights with him during his six day period off work. The mother proposes that the children's time with the father increase gradually to four nights per week.
95The mother does not work. She is also the primary carer for Child C. She is available to care for the children when they are not with the father.
96If the children live in Melbourne or Country Town K, an order for equal time would not be reasonably practicable by reason of distance and travel.
97I consider it would be in the children's best interests to spend substantial and significant time with each of their parents. Substantial and significant time includes days that fall on weekends and holidays and days that do not. It enables each parent to be involved in the children's daily routine and occasions and events which are significant to the children and the parent.
98In considering whether an order for substantial and significant time is reasonably practicable, the same considerations apply as with equal time. If the parties live reasonably close to each other, for example within 30 kilometres of each other, they would be able to implement such an arrangement. If the children live with the mother in Melbourne or in Country Town K and the father remains in Suburb F, an order for substantial and significant time would not be reasonably practicable for the same reasons equal time would not be.
99If the children live in Melbourne the reality is they would spend time with the father during school holidays, possibly long weekends and other times that he was able to travel to Melbourne when not working. He could not be involved in their daily routine.
100Similarly if the children live with the mother in Country Town K, the reality is that the time the children would spend with the father would be mostly weekend time and school holidays.
101If the parties live reasonably close to each other, an arrangement of substantial and significant time could be implemented.
102It is necessary for me to give careful consideration to the proposals of the parties and to determine the arrangements which are likely to promote Child A and Child B's best interests. I am mindful that the best interests of the children 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 the children's best interests.
In Zahawi & Rayne [2016] FamCAFC 90 the Full Court said (footnotes omitted):
47All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children's best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents' proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children's best interests. Concomitantly, Gummow and Callinan JJ said in U v U:
…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
48"Relocation cases" are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children's best interests. However, the issues in a "relocation case" are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
CONCLUSIONS
103Having considered the evidence in the context of the primary and additional considerations and assessed and weighed the proposals I have come to the conclusions set out below.
104The mother has been the children's primary carer since their births and they are primarily attached to her. The children are still very young. Child A has a close relationship with the father, but Child B's relationship with him is still developing.
105It would be in the best interests of the children to continue to live with the mother and spend gradually increasing time with the father, such that they are developmentally able to cope with to consolidate their relationship with him.
106It is to the benefit of the children that the father continues to have a significant involvement in the children's lives and to spend increasing periods of time with him.
107The mother has been in a relationship with Mr S for some two years. They have not lived together continuously. They have a young child, Child C. It is impossible to predict the viability of their relationship, although there is nothing to suggest it is not a committed and long term one.
108The mother and Mr S initially took a somewhat simplistic view to the children's living arrangements, and both appeared perhaps naively to be under the impression that it would be a relatively simple matter for the children to move to Melbourne and to spend time with the father there.
109The impact of distance on the close involvement of the father in the children's lives would be a significant disadvantage to them in relocating to Melbourne. His work roster is such that he is currently able to maintain that involvement, although the mother questions his motives for changing his roster.
110Of significance is the mother's extended family who are supportive of her and who live locally. In the past the mother has needed that support and says without support from Mr S she will continue to do so. She could not enjoy the support of her family in Melbourne.
111If the children are not permitted to relocate to Melbourne, the mother would be disappointed and unhappy for at least a period of time. There was no evidence to suggest that this would impact on her parenting, or her ability to provide for the children's needs.
112If the children remain in Perth, Child A would continue at her existing school and the children would be close to extended family members on both sides.
113Mr S does not own a home in Melbourne. He has a connection with Perth, having lived and worked here in the past. He has well-paid secure employment at present and may be able to obtain employment in Perth. Understandably his tie to Melbourne is his family and in particular his father, who suffers ill health. Just as it was suggested that the father could travel to Melbourne readily to see the children, Mr S would be able to travel readily from Perth to Melbourne to see his father. A significant tie to Perth is Mr S's son Child C, who would live in Perth with the mother if Child A and Child B are not permitted to relocate.
114In considering the best interests of Child A and Child B, being the subject of these proceedings, I am not persuaded that it is in their best interests to be relocated to Melbourne. I consider it would be in the best interests of the children to continue to live with the mother within a reasonable proximity to the father and spend progressively increasing periods of time with him to consolidate their relationship.
115Such an outcome achieves the first object of the legislation which is in the court to consider an order which can meet Child A and Child B's best interests by ensuring that they have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests.
116I have carefully considered the order sought by the father in which he requires the children to live with the mother within a 30 kilometre distance of his residence. I am not persuaded that is an order which is in the best interests of the children. While such an order would facilitate the children spending regular periods of time with the father without extended travel, it could place a significant burden upon the mother which in turn could impact on her parenting of the children. The mother said and I accept that with three young children she currently has and needs the support of her family. At present she lives with her parents and they provide assistance to her. The mother's parents plan to move to Country Town K and the mother would move there as well to enable her to continue to enjoy that assistance. I therefore propose to order that the mother be permitted to relocate the children to Country Town K if she chooses to do so.
117The mother said there was "no way" Mr S would live in Country Town K. If Mr S decided to move to Perth it may be that he and the mother and the children would live elsewhere.
118In view of the children's ages, and particularly Child B's young age, it is necessary for there to be a build-up of their time with the father ideally to the point that both are spending the same amount of time with him. Child B will be three in 2018 and by reason of her young age that build-up should be gradual to minimise any difficulties for her arising from separation from the mother. As it is difficult to predict the future outcome of orders on young children, I propose to take a cautious approach into the foreseeable future, being mindful that the children's time with the father may not increase as quickly as he would like. I consider such an approach to be in the best interests of the children.
119Both parties undertook to file a minute of proposed final orders after the conclusion of their closing submissions. Both have done so and I have considered both minutes carefully.
THE PROPOSED ORDERS
120Subject to hearing from counsel, I propose to make the orders set out below. Counsel requested that all orders be contained in one document to avoid confusion arising from orders having been made by consent at various stages in the proceedings. I shall therefore discharge previous orders.
1All previous parenting orders be discharged.
Parental responsibility
2The Applicant, [Mr Chesterfield] and the Respondent, [Ms Donati] have equal shared parental responsibility for the children, [Child A] born [in] 2011 and [Child B] born [in] 2015 (collectively "the children").
3Unless contrary to the children's immediate welfare, the Applicant and the Respondent shall, before making any major long-term decision about the children:
(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 in a timely manner, 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.
4The children live with the Respondent.
The children's arrangements during school term
5The children spend time with the Applicant while he is rostered off from his employment as follows:
(a) while the Respondent is living at [Suburb S] or within a reasonable distance of the Applicant's home
(i) with [Child A]:
(a)from the conclusion of school on Friday until the commencement of school on the following Tuesday each alternate week;
(ii) with [Child B]:
(a)from the conclusion of school on Friday to Sunday 5.00 pm each alternate week;
(b)each intervening Monday between 9.00 am and 2.00 pm;
(c)following [Child B]’s fourth birthday from the conclusion of school on Friday to the conclusion of school on Monday each alternate week; and
(d)immediately following six months after [Child B]’s fourth birthday, from after the conclusion of school on Friday to the conclusion of school on the following Tuesday each alternate week;
(b) if the children live in [Country Town K]
at times to be agreed between the parties and in the absence of agreement, from the conclusion of school on Friday until 6.00 pm on Sunday (or Monday if it is a public holiday) each alternate weekend.
The children’s arrangements during school holidays
6The children spend time with the Applicant during each school holiday period, provided the Applicant is on leave or rostered off, with such time to commence as agreed by the parties and in the absence of agreement from the day following the last day of the school term:
(a) with [Child A]:
(i) for one half of all first, second and third term school holidays; and
(ii) for one half of Christmas school holidays limited to periods of seven nights alternating weekly;
(b) with [Child B]:
(i) from [Child B]’s fourth birthday, a number of nights outlined in order 5 above plus two nights; and
(ii) from [Child B]’s seventh birthday, for one half of all first, second and third term school holidays and one half of Christmas school holidays limited to periods of seven nights alternating weekly.
Handover
7That handover occur as follows:
(a) while the Respondent is living at [Suburb S] or within a reasonable distance of the Applicant's home
the Applicant collect the children at the commencement of his time with the children and the Respondent collect them at the conclusion of such time; and
(b) if the children live in [Country Town K]
the Respondent shall deliver the children to the midpoint between the Applicant's home and [Country Town K] ("the midpoint") at the commencement of the Applicant's time with the children and the Applicant shall deliver the children to the midpoint for collection by the Respondent at the conclusion of such time.
Special occasions
8Each parent’s time with the child be suspended when such time is in conflict with the times below:
(a)Easter
(i) the Applicant spend time with the children from 4.00 pm on Easter Thursday to 4.00 pm on Easter Monday commencing 2018 and each alternate year thereafter; and
(ii) the Respondent spend time with the children from 4.00 pm on Easter Thursday to 4.00 pm on Easter Monday commencing 2019 and each alternate year thereafter;
(b)Christmas
(i) the Applicant spend time with the children from 4.00 pm on Christmas Eve to 2.00 pm on Christmas Day commencing 2017 and each alternate year thereafter;
(ii) the Respondent spend time with the children from 4.00 pm on Christmas Eve to 2.00 pm on Christmas Day commencing 2018 and each alternate year thereafter;
(iii) the Applicant spend time with the children from 2.00 pm on Christmas Day to 2.00 pm on Boxing Day commencing 2018 and each alternate year thereafter; and
(iv) the Respondent spend time with the children from 2.00 pm on Christmas Day to 2.00 pm on Boxing Day commencing 2017 and each alternate year thereafter;
(c)children’s birthdays
the parent who is not scheduled to spend time with the children pursuant to the orders above, spend time with the children from the conclusion of school (or 4.00 pm) to 7.00 pm;
(d)father’s birthday
in the event the children are not in the Applicant’s care pursuant to the orders above, the Applicant spend time with the children from the conclusion of school (or 4.00 pm) to 7.00 pm;
(e)mother’s birthday
in the event the children are not in the Respondent’s care pursuant to the orders above, the Respondent spend time with the children from the conclusion of school (or 4.00 pm) to 7.00 pm;
(f)Father’s Day
in the event the children are not in the Applicant’s care pursuant to the orders above, the Applicant spend time with the children from 4.00 pm on Saturday to 5.00 pm on Sunday; and
(g)Mother’s Day
in the event the children are not in the Respondent’s care pursuant to the orders above, the Respondent spend time with the children from 4.00 pm on Saturday to 5.00 pm on Sunday.
9The Applicant spend such further or other times with the children as agreed between the parties in writing.
Electronic communication
10The parties have liberty to contact the children by telephone and Skype at all reasonable times while the children are in the care of the other party.
Travel
11In the event either parent seeks to travel with the children outside the Commonwealth of Australia, the travelling parent shall provide to the non-travelling parent, no less than 60 days prior to the date of the intended departure, written notice to include the following:
(a)an itinerary showing out-bound and return flights; and
(b)details of a reliable method of contact for the other parent to contact the children so as to allow reasonable access to them whilst they are away.
12Having complied with the requirements set out in the preceding paragraph, the travelling parent must obtain from the non-travelling parent written consent and such consent shall not be unreasonably withheld.
13Both parties have liberty to apply on short notice in relation to any intention to travel.
Provision of information
14Each party is to immediately notify the other if any of the children are seriously ill or are admitted to hospital at such time as the children are in the care of that party and to advise the other of the names and addresses of the treating doctors and dentists, and if requested by the other party, shall authorise any treating practitioner to discuss the child's medical issues with them.
15Each party be at liberty to discuss the children's progress at school with the principals or teachers of such school as the children may attend from time to time and that each party arrange for such authorities as may be required to enable such schools to independently furnish to the other party at their expense any school reports, photographs and notices.
16The parties do all such acts and sign all such documents as may be required to authorise any school which the children may attend to notify the other party of, and facilitate the other party attending any school events or extracurricular activities including but not limited to parent/teacher interviews, sporting events and concerts.
17The parties shall keep the other advised of their mobile telephone numbers and email addresses and shall notify the other of any changes thereto within 24 hours of such changes occurring.
18The parties shall keep the other advised of the full and correct detail of their residential address and advise the other in writing not less than 14 days in advance of any proposed change of residential address.
19Each party promptly advise the other of:
(a)any significant illness, accident or injury suffered by the children;
(b)any significant medical or dental treatment provided to the children; and
(c) any medication the children have to take while in the other party's care including dosage.
20As soon as practicable, the Applicant and the Respondent enrol in, attend and complete the Mums and Dads Forever program, if considered suitable by the provider of the program ("the provider"), and provide written confirmation of such enrolment, attendance and completion of the said program to the solicitor for the other party.
Injunctions
21The parties be restrained by injunction and an injunction is hereby granted restraining them from denigrating the other party or their spouse or de facto partner to the children, or in the presence of the children nor allow any other person to denigrate the other party.
Procedural
22The proceedings otherwise be dismissed.
23All 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.
24In 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.
25In the event of an appeal being lodged prior to the expiration period of 42 days, orders 23 and 24 above do not apply.
I certify that the preceding [120] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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