CLEMENT and BISSET
[2017] FCWA 32
•28 FEBRUARY 2017
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: CLEMENT and BISSET [2017] FCWA 32
CORAM: THACKRAY CJ
HEARD: 19 & 20 DECEMBER 2016
DELIVERED : 28 FEBRUARY 2017
FILE NO/S: PTW 6298 of 2011
BETWEEN: MS CLEMENT
Applicant
AND
MR BISSET
Respondent
Catchwords:
CHILDREN - With whom a child lives - The mother seeks to relocate with the children to [Country A] - The father opposes relocation and seeks an equal shared care regime - Mother has close family and support in [Country A] including the children’s maternal grandmother - Considered likely the father will also relocate to [Country A] - Presumption in favour of equal shared parental responsibility applied - Equal shared care not in the best interest of the children - If parents live in same city substantial and significant time is in the best interest of the children and reasonably practicable - If parents live in different cities substantial and significant time not practicable - Mother permitted to relocate with the children not before December 2017
Legislation:
Family Law Act 1975 (Cth), s 60CC
Category: Reportable
Representation:
Counsel:
Applicant: Mr Bannerman
Respondent: Self Represented Litigant
Solicitors:
Applicant: Bannerman Solicitors
Respondent: Self Represented Litigant
Case(s) referred to in judgment(s):
Morgan and Miles (2007) FLC 93‑343
Sawant & Karanth [2014] FamCAFC 235
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1I am required to resolve a dispute between the parents of [Child A], aged eight, and [Child B], aged six. The boys have primarily lived with their mother, who now wants to take them to live in [Country A], which is her country of origin. The father is opposed to the relocation and wants an equal shared care regime for the boys in Perth.
The parents and their relationship
2The mother and father commenced cohabiting in 1998. They married in 2004, and separated in May 2010. They have two children; Child A born in 2008, and Child B born in 2010. (Child A was born after the parents separated, and has never lived permanently in the same home as his father.)
3The mother and father resided in [Suburb A] (a northern suburb of Perth). Sometime after the separation, the father moved to their investment property in [Suburb B] (not far from Suburb A). The mother and children remained in the family home, until they moved to a new house, which the mother purchased in [Suburb C] (an inner southern suburb of Perth).
4The mother is a 44-year-old [architect]. She was born in [City A] where she grew up with her mother and brother. After completing her [Master of Architecture] degree, the mother went to [City B] for work, but then moved to Western Australia in 1998 after being made redundant. The mother worked for seven years in [different] locations, before taking up a Perth-based position, where she remained until May 2014, at which time she lost her job during the current slump in the [building] industry.
5In June 2014, the mother started casual employment from home for [a City C] based company, but the work has been sporadic since January 2015. I accept that the mother has been unable to secure regular employment as [an] architect , and that in the six months leading up to the trial she had almost no work. During 2016, the mother undertook a [Graduate Diploma of Business]. She is now qualified, and intends to seek work as a [business administrator].
6The father is 42 years of age and works as a [mechanic]. He comes from [interstate], where his family resides. The father came to Western Australia when he was 19. He has lived here ever since, apart from time spent [overseas]. At the time of the separation, the father had [his own] business, which he sold. He then worked as a subcontractor; however, his income was insufficient for his needs, and in August 2015 he took up his present employment. The father took the new job realising that it would remove the flexibility he once had with the children.
7In September 2015, the father commenced a relationship with [Ms P], who works as [an office assistant]. Ms P has a university student son aged 19, and a daughter aged seven years. The daughter has not seen her father since she was three years of age.
Impressions of the parents, the father’s partner and the maternal grandmother
8The mother presented well in court. She appeared to be calm, stable and thoughtful. She spoke in measured terms and was child-focused. She was better able than the father to disguise the bitterness she feels arising out of the breakdown of their relationship.
9The father did not present as well as the mother. His affidavit evidence demonstrated a capacity to see things in black and white terms, and he was inclined to arrive at conclusions that appeared not entirely warranted. However, he did demonstrate some insight, and acknowledged that he had sometimes not chosen his words well, and stressed that it had not been his intention to “degrade” the mother in his affidavits. He too appeared to be a stable person and child-focused.
10Both parents were critical of some aspects of the conduct of the other following the separation. In the overall scheme of things, these were comparatively minor complaints and there is not a great deal to be achieved by reciting them, or seeking to apportion blame. Some of the complaints, however, said more about the person complaining than the person complained about. For example, the father said in his affidavit:
[The mother] and I have been separated for six years and divorced for four years. Two years ago [the mother] changed her name to [Clement] but yet she still displays in the front of her house a sign that her mother gave us when we bought our new house that says, “[The Bissets]”. That’s all part of the mind games [the mother] plays.
11Given that the boys carry their father’s surname, it might have been thought the father would have had greater cause for complaint if the sign had been removed.
12Ms P seemed to be a delightful person. She had good ideas about how to improve relationships within the family, and appeared to be someone who would be a very good influence on the father and the children. Ms P has close family in Western Australia apart from her two children, and would only say that she would “think about it” when the father asked her in re-examination if she would move to City A if he moved there. I consider that if the father did move to City A, Ms P would feel exceedingly torn, but I thought it slightly more likely than not that she would remain in Perth.
13The mother’s 71 year old mother (the “maternal grandmother”) has been a significant figure in the lives of the children, having lived near them for many years, before returning to Country A in July 2014. She was an articulate, intelligent and animated witness, who is now beginning to face health challenges that are affecting her lifestyle and mobility. In January 2016, she broke her arm while playing with Child B, and is still struggling with that injury. She has recently been diagnosed with severe osteoarthritis, and as she said in her evidence, “it’s reasonable to expect that physical wear and tear will take its toll in time”.
14The father had no criticisms of the maternal grandmother, who is willing to make her home available to him if the relocation is permitted and he comes to City A to visit. Notwithstanding what the father said about the relationship between the mother and maternal grandmother, I find they have a close relationship, and that the grandmother would be an enormous support if the mother were to relocate to City A.
The orders sought by the mother
15In July 2016, the mother filed an Amended Minute in which she sought that:
•the children live with her in Country A and she have sole parental responsibility (subject to her consulting with the father prior to making decisions);
•the children spend time with the father up to four times a year, all of which would take place in Country A except for one visit to Australia, for which the mother would deliver and collect the children at either [City E] or [City F] airports; with the father being responsible for all other costs of travel; and
•the children to communicate with the father electronically not less than twice a week between 5 pm and 6 pm Country A time.
16In the event she was not permitted to relocate, the mother proposed that the father spend time with the children during school terms from Thursday afternoon to Saturday afternoon each week, and for seven days in the three end of term holidays and up to 14 days in the summer school holidays.
17The mother sought a variety of other orders, including that:
•the parties continue to make payments to the children’s scholarship fund; and
•the father to sign an application for the children to have dual citizenship.
18The mother also proposed in her evidence that she make her home and a motor vehicle available for use by the father during his visits to City A to see the boys.
The orders sought by the father
19In his response filed in March 2016, the father sought an order for equal shared parental responsibility, but proposed that he spend time with the children for only two nights a fortnight (increasing to three nights on a long weekend). The father explained that he had sought only that amount of time because he could “not see much other avenue with my work hours”. The father also proposed that he spend time with the children for half of the three end of term holidays and for three weeks during the Christmas school holidays.
20In May 2016, the father filed a Minute in which he continued to seek two nights with the children each alternate week, together with an overnight stay on the alternate Friday.
21In November 2016, the father filed another Minute in which he proposed that the children live with him each alternate week during school term and for half of the holidays. In the alternative, the father proposed that he spend time with the children for three nights each alternate week and for two nights in the intervening week. The father proposed a variety of other orders, including that the mother be at liberty to travel to Country A with the children, subject to him being given make-up time.
22The father’s Minute of November 2016 also set out orders if the court considered the best interests of the children required their relocation to Country A. In that event, the father proposed that the relocation not occur until 1 January 2018, on the basis that during 2017 the children would spend equal time with each parent.
23The Minute further proposed that there should be an equal shared care arrangement if the father elected to relocate to Country A. If the father elected not to relocate, he proposed that the children spend time with him in Country A for one of the three midyear school holidays and for half of the 2019/20 summer school holidays, to include Christmas Day and Boxing Day. In addition, the father proposed that the children spend time with him in Western Australia for one of the three midyear school holidays each year and for the whole of the 2018/19 summer holidays (and each alternate year thereafter, including Christmas Day and Boxing Day). The father also proposed that he have Skype, telephone or other electronic communication with the children in Country A at least three times each week.
24The father proposed that any child support he is obliged to pay be placed in an account to be utilised towards costs associated with him spending time with the children, on the basis that any shortfall in his (or the children’s) travel or accommodation expenses should be met by the mother.
Past arrangements for the care of the boys
25The mother has always been the primary carer of Child A and Child B, although the father provided assistance in caring for Child A prior to the separation, and has had responsibility for the care of both boys during their visits following the separation.
26The mother had to return to work three days a week in June 2009, following Child A’s birth in 2008. As there was a waiting list for childcare, the maternal grandmother took leave one day a week to care for Child A, and the father also rearranged his work to care for him one day a week. After a place was found at a childcare centre, Child A attended there and continued to do so two days each week after Child B was born in 2010.
27From February 2011, both children attended full-time day-care. When the mother moved to Suburb C, she was unable to obtain a place at a local childcare centre until August 2012. The maternal grandmother was heavily involved in transporting the children to childcare on three days each week until February 2013, when places were obtained for them in a centre in [Suburb D].
28The parents were able to come to arrangements about the time the boys spent with each of them after the separation. It is unnecessary to detail the schedules as they evolved over the years, or the difficulties experienced before the parents eventually came to agreements. As is not uncommon, the father was inclined to push for longer periods with Child B than the mother considered appropriate, given his young age. Nevertheless, by the time Child B was 18 months of age, the father was having overnight time with both children.
29In 2013, the parents signed a Parenting Plan. This provided for the boys to spend time with the father each week from Thursday afternoon to Saturday afternoon. During school holidays, the father was to have the boys on Fridays in the first week, and in the second week he was to have them from after day-care on Wednesday until Friday afternoon.
30In August 2015, when the father obtained full-time work, he asked the mother to vary the regime to accommodate his hours. In the course of this discussion, the mother raised the possibility of returning to Country A. The father was opposed to this, and the parties arranged mediation. While the arrangements were under discussion, the father’s time with the children was reduced to each Saturday, although at an earlier point the mother intimated he would not have any time until a new regime was agreed. Her position appeared to me unreasonable, as it did to the father, but she relented by allowing him the time on Saturdays.
31A new Parenting Plan was negotiated in December 2015. This loosely worded document provided for the father to have the children “every Friday till Saturday”. It also recorded that in February 2016 the father was to see the children from between 4:30 pm and 7 pm on Tuesdays and Thursdays, on the basis that “after February 2016 these arrangements will continue or will be reduced to Tuesdays only pending parental verbal agreement”.
32The father has continued (with some exceptions) to see the boys each Tuesday and Thursday, and spend time with them from Friday night to Saturday afternoon each week. There have been occasions when he has been unable to take up the time as a result of his work, and other occasions when the schedule has been changed to accommodate his work. The father has undertaken almost all of the travel required, given that the mother has been working or studying and otherwise responsible for the full care of the children.
33In March 2016, after seeing the father’s proposal in his Form 1A response for holidays to be shared equally, the mother enquired what time he would wish to have the children during the Easter period and the next holidays, but was informed that the father would not be spending any additional time with the children.
The mother’s proposals for the care of the boys
34The mother sold her Suburb C home because of her deteriorating financial circumstances. She has been able to rent back the property and, if she is required to live in Perth, would probably continue to live there or rent elsewhere near the children’s school. If she is permitted to relocate, she would initially probably live with her mother or her close friend, [Ms M], and then either rent a home or purchase one in or around City A. Although the mother intimated that accommodation in City A was somewhat more affordable than in Perth, the evidence did not suggest that there was a significant difference.
35If the mother is permitted to relocate, she will probably obtain full-time work as a business administrator. In doing so, she knows she will have the support of her mother and Ms M to look after the boys when needed. The mother intimated that employment as a business administrator might be more readily available in City A than in Perth, but again I was not persuaded this was so, as I anticipate that her services as a business administrator would be in demand as much in Perth as in City A. The difference is likely to be that she would be more likely to seek only relief [work] in Perth to provide flexibility in caring for the children if, for example, they were unwell. I accept the back-up support she has in Perth is not as reliable as what would be available to her in City A. This is no criticism of the father since he has regular employment and it is difficult for him to get away from work unexpectedly.
The father’s proposals for the care of the boys
36The father is in full-time employment. Ms P gave evidence that he “works a very long and arduous shift every Monday to Friday to pay for everything”. He leaves home at 5.40 am to start work at 6 am. As a result of his work, the father has only been able to have the children stay with him for relatively limited periods. Distance and traffic are such that he is not able to take the children back to his home when he has his midweek visits.
37If he remains in his present job, the father acknowledges that he would need to employ a nanny from early in the morning to supervise the boys and to get them to and from school. The father previously looked into the cost of a nanny, but found it was prohibitive. He says there is now a subsidised nanny scheme available but, with all due respect to the father, his proposals for the care of the children are not realistic (even if he moved closer to Suburb C, which he suggested belatedly in his evidence he might be prepared to do).
38The father’s fall-back position was that he would return to subcontracting or run his own business, but I note that he gave up such arrangements only fairly recently because they were not sustainable. In an email to the mother at the time he was moving to his current job in 2015, the father said to the mother, “me finding full time work and getting away from contracting has always been on the table and part of every discussion we have had in the past and what I am proposing is in no way unreasonable”.
39The father’s other proposal was that the mother should move to live closer to him now that she has sold her home. The father was unconcerned about any impact on the children associated with them having to move school if this were to occur. I infer that he considers they would also cope with moving to a new school in City A.
The extended families
40The father has no close relatives in Western Australia. Although he has spoken of taking the children interstate for a holiday since the separation, this has not occurred, although he himself has returned home on a few occasions. The mother and the father’s family do not enjoy a good relationship, for reasons that it would be pointless to even attempt to explore. It is sufficient to say that I am persuaded the mother has not prevented the father from taking the children to see his family. If the children remained in Western Australia, I anticipate that they would see their father’s relatives infrequently when they come to Perth, and they might also infrequently visit their father’s family interstate.
41The mother’s extended family, including uncles, aunts and cousins and their families live in and around City A. The maternal grandmother hopes to buy a property on acreage near City A. She has lived in City A all her life, apart from periods living in [Country B] and Perth (and time spent recently [near] where the mother’s brother lives in Country A).
42The mother and children were able to visit City A in 2012, 2014 and 2015. The mother also returned home for a funeral in 2015. I accept the mother’s evidence that:
On each occasion during our visits, on our return to Perth, and in the months and years after, I have felt, and continue to feel, a very strong yearning to return to my country of origin, and most particularly, to be with my family and friends – the people who love me and my children.
…
I feel trapped and extremely upset/despondent at the thought of having no choice in where the boys and I live, being forced to live in an environment where I have no support, that [the father] is preventing us from going to a place where we can receive meaningful support, all the while knowing that I am unable to rely on any meaningful support from [the father].
These feelings are particularly strong during and following an illness and/or hospitalisation.
It is a source of continual distress to me that any time I have raised [this with the father], I do not get any acknowledgement from him of the issue and he does not seem to want to prioritise having been in [sic] involved in the children’s lives to the extent that he could be.
…
Although I try and take a positive view of every situation in life, more and more recently I have been experiencing feelings of isolation and loneliness. Since I decided to make the attempt to relocate back home I have felt moments of positivity, however, I am concerned that if the current situation continues and I lose the chance to go back and live in [City A] that the despondent feelings that I have would increase.
…
I am worried about the impact on the children of how I am feeling and although I try and shield them as best I can from my sense of frustration at their father’s lack of involvement, I am acutely aware that they are likely to become more aware of this as they grow older.
…
I feel sad that the boys are coming to recognise that the people they can most to rely on, aside from myself, live in [Country A].
While there are clearly opportunities open to me for providing sufficiently for the boys in [Country A], my primary desire for returning to [Country A] is to be able to surround ourselves with the people who love us and can support us.
…
My friends and family are five time zones away and very often when I need their support most it is after midnight for them.
43I accept that the mother and the boys particularly miss the maternal grandmother, and that the period since July 2014 has been a difficult one, especially with the mother also having little work in this period. The grandmother has recognised the difficulties the mother has been facing and therefore returned to Perth many times. The regularity of these visits has increased, with her making nine visits in 2016 alone. The visit in May 2016 was made on very short notice during the mother’s practical placement as a business administrator when she was feeling overwhelmed, particularly as Child B was unhappy about the arrangements the mother was otherwise going to have to make for his care.
Applicable law
44These proceedings are brought under the Family Law Act 1975 (Cth) (“the Act”), which makes the boys’ best interests the paramount consideration.
45In deciding what orders to make, I must be guided by the objects of the Act and the principles underlying them, which indicate that children’s best interests 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;
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
(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.
46The Full Court has discussed the application of those principles in cases where one parent wishes to relocate, but the other does not intend to follow if the relocation is permitted. In Sawant & Karanth [2014] FamCAFC 235, the Full Court said (original emphasis):
8. Orders that contemplate one parent and the child living in a place geographically remote from the other parent immediately bring the Objects and Principles of Part VII of Family Law Act 1975 … into sharp focus. The Objects of the Part “are to ensure that the best interests of children are met by” them having, among other things, “the benefit of both of their parents having a meaningful involvement in their lives …”. (s 60B(1)). The Principles underlying those Objects include the child’s right to “… spend time on a regular basis with … both their parents …” (s 60B(2)).
9. Yet, neither that right vested in the child, nor those consequential roles of the child’s parents, is absolute; when parents are unable to agree upon co-parenting arrangements, that right and those roles is each qualified by the Court’s determination as to what orders best meet the particular child’s best interests. That is neither more nor less so when a proposed significant geographical separation renders acute those Objects and Principles and the Considerations which mandatorily dictate the manner in which the child’s best interests are determined. While “relocation case” is a convenient descriptor for cases of this type, no specific statutory principles govern cases which meet that description. (See, for example, M v S (2007) FLC 93-313 per Dessau J; Taylor v Barker (2007) 37 Fam LR 461).
10.The parties’ proposals are important because they mark each parent’s own assessment of the nature and extent of their role; that is, what each sees as their “meaningful involvement” in the life of their child consistent with the child’s best interests. For that reason alone those proposals must be carefully considered albeit that, because the court is charged independently with arriving at a decision as to the child’s best interests, it is not bound by those proposals (see U v U (2002) 211 CLR 238 at [70], [72] per Gummow, Callinan JJ; Gleeson CJ and McHugh J agreeing).
…
17.The father’s proposals all assumed that the mother would continue to live in Australia. Inferentially his orders proposed that she should do so in order to facilitate the time he proposed between him and his son. No proposal of the father, nor any of his evidence, suggested that he had himself contemplated the possibility of his living in India so as to facilitate a significant co-parenting arrangement in that country should the mother and child reside there (the reasons of Gaudron and Hayne JJ in U v U (2002) 211 CLR 238 at [35] and [173] – [175] respectively, are apposite).
…
21.It is important to appreciate that there was no proposal before his Honour that the child should live with the father. The contentions as to the child’s best interests as they emerged from the proposals of the parties required an assessment of whether it was in the child’s best interests to live with the mother in India with the ramifications for time between father and child consequent upon that outcome or to live with the mother in Australia with time between father and child consequent upon that outcome. (See, for example, AMS v AIF; AIF v AMS (1999) 163 ALR 501, per Gaudron J, especially at [95]; Hayne J at [218] – [219]; U v U (2002) 211 CLR 238 at [81] per Gummow and Callinan JJ).
47The facts here are different as the father has now proposed that the boys live half the time with him. Nevertheless, the remarks of the Full Court apply with full effect, as they emphasise that the best interests of the children are the paramount consideration. They are also consistent with the well accepted proposition that a parent wishing to relocate is not required to show compelling reasons. As Boland J said in Morgan and Miles (2007) FLC 93‑343 at [74]:
The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application [to] obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.
48In determining the orders most likely to be in a child’s best interests, the Act mandates an approach to be followed if there is an order for equal shared parental responsibility. In coming to my decision, I am required to apply a presumption that it is in the boys’ best interests for their parents to share parental responsibility equally. The presumption does not apply if there are reasonable grounds to believe that either parent, or a person who lives with them, has engaged in child abuse or family violence (as defined in the Act). Furthermore, this presumption may be rebutted by evidence that it would not be in the children’s best interests for the parents to have equal shared parental responsibility.
49The allocation of parental responsibility does not govern the time the boys will spend with each parent. However, if I make an order for equal shared parental responsibility, then the Act requires me to consider whether spending either equal time or, failing that, “substantial and significant time” with each parent would be in their best interests. If either alternative is in their best interests, then I must consider making such an order, provided I have also found the arrangement to be “reasonably practicable”. Whether these outcomes are “reasonably practicable” would depend first on whether it will be in the boys’ best interests for them to live in Country A and secondly on whether the father elects to follow if they move to Country A.
50In determining what is in the boys’ best interests, I must consider the matters in s 60CC of the Act, which are divided into “primary considerations” and “additional considerations”. The dichotomy between the “primary” and “additional” considerations has been considered in many judgments of the Full Court, which have also discussed the significance of Parliament having described just two of them as being “primary” considerations. Those judgments adopt the analysis of former Justice Richard Chisholm, who said in one of his many scholarly papers:
It is clear that the relationship between the “primary” and the “additional” factors cannot be that any primary considerations must necessarily outweigh any combination of “additional” considerations. First, the language of considerations involves matters of degree, not absolutes. Second, such an approach would be inconsistent with the fundamental principle that the child’s best interests must be the paramount consideration … Third, and most obviously, it is expressly stated in [paragraph 51 of the Explanatory Memorandum] that there may be some instances where secondary considerations may outweigh the primary considerations.
51This proposition must now also be read in light of the fact the legislation has been amended to make clear that one of the primary considerations (the need to protect children from harm) must be given greater weight than the other primary consideration (the benefit to children of having a meaningful relationship with both parents).
52It is within this legal framework that I must determine this case.
The primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents.
53There is no doubt it would be of great benefit to both boys to have a meaningful relationship with both of their parents. There is also no doubt it will be easier for them to maintain such a relationship if they have the opportunity to spend time with each parent on a regular basis. This can be achieved either by the mother being required to remain in Perth or alternatively by the father relocating to City A.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
54Neither parent would expose the children to abuse, neglect or family violence.
The additional considerations
55I turn now to the additional considerations I am required to take into account.
(a) 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;
56The boys are only eight and six years of age. Although I accept that they have sometimes expressed some reluctance about spending particular periods with their father, overall the evidence indicates that they are very anxious to maintain a good relationship with both parents and also with their extended family, but in particular their maternal grandmother.
57I accept that the boys have sometimes expressed concern about moving to Country A. These remarks need to be understood in light of the evidence which suggested it is likely the father has been saying to them (or giving them the impression) that if they go to Country A he will never see them again. When the father was asked whether he had told the children he would come to visit them if they moved to Country A his answer, after a pause, was “I think so”. When asked whether he did intend to visit the boys in Country A if they were living there, the father said that he would. In my view, the boys concerns about moving would dissipate if they thought they would continue to see their father regularly, especially if they knew it would increase the time spent with the maternal grandmother.
(b)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);
58The children have a very close relationship with both their mother and their father.
59They also have a particularly close relationship with their maternal grandmother. After living in Country B for about seven years, the grandmother moved to Perth in 2007 before the birth of Child A. Thereafter she lived close to the mother, providing her with much support in the care of the children, and going away with the family on holidays. The father’s own evidence was telling when he said that Child A had tried to explain to him how much he loved him by saying that he loved him even more than he loved his grandmother. Conversely, when asked to confirm that the boys were “very close” to their grandmother, the father responded by saying “no closer than they are to their father”.
60Although she seems to be a woman of substantial means, the maternal grandmother was unable to receive her pension while in Australia, and therefore returned to Country A in 2014, where she finds the climate suits her health. Thereafter, she has continued to provide financial assistance to the mother, amounting to more than $100,000 since April 2015 alone.
61The mother’s brother lives in [Town A], some two hours by car from City B. He has a shared care arrangement for his young daughter. The boys know their uncle from his trips to Perth and their trips to Country A, including the 2014 holiday when they lived in his home. I accept they have a good, but not yet a close, relationship with him. They would potentially have greater opportunity to spend time with him and their cousin if they were in City A.
62The children also know their father’s family from their visits. The relationships with these relatives would also appear to be good, but not yet close given they have not spent much time together.
(c) 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;
63Both parents have been keen to spend as much time with the children as practicable. The mother has been the primary carer, and has been more heavily involved than the father in making decisions about long-term issues involving the children. The mother has been far more involved in the boys’ education than the father who, because of his work, was able to attend their schools no more than two or three times last year.
64The father wants to be a strong influence in the boys’ life. His sister’s evidence indicates that this is especially important to him because their own father abandoned them when the father was a baby and thereafter played no part in his life. As the father’s sister said, her brother “understands more than most the impact of not having a father’s influence in his life and has had to deal with, and learn to cope, with the sense of abandonment any child feels when their parent wants nothing to do with them”.
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
65It is unclear whether the father has met his proper child support obligations as he has not lodged a tax return since 2011. He has, however, paid child support in accordance with assessments and has met half of the payments to an education fund set up for the boys at birth.
66The mother has met the vast bulk of the costs of the children. For example, the total contribution made by the father from September 2015 to June 2016 was just $1,679. Notwithstanding the modest financial support he has provided, the father asked the Child Support Agency (unsuccessfully) for a credit for making three payments towards the boys’ education fund and childcare costs totalling less than $400. Since 2011, the mother has paid in excess of $67,000 in childcare.
(d) 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;
67There would be a significant impact on the children if the mother was to relocate to City A and the father was to remain in Perth. The children benefit from regular contact with their father, and I consider they would miss that greatly if he remained in Perth. However, my estimation of the father is that if the children moved to City A, as a minimum, he would move interstate so that he would be in somewhat closer proximity to his sons. He would have good prospects of obtaining work interstate, utilising his family’s contacts and the assistance his sister’s [business] could provide.
68It is more likely, however, that the father would move to City A, as he would miss his sons greatly, and would appreciate that it would be in their interests for him to be living close to them. Under cross-examination, he said the possibility of him relocating was an option he would “look at if it arises”, possibly on “a trial basis to see if it would work”. One of the father’s sisters said that the option of the father moving to City A had been discussed, but she was unsure what his decision would be about that. The other sister gave evidence that the father had said that he will relocate to City A “if he has to” in order to be close to his children, even though this would be a “significant upheaval”.
69The father had not read a bundle of documents the mother’s solicitors had sent to him about the viability of him living in Country A. Nevertheless, he agreed that Australian citizens can live in Country A without a visa. The father is a hard worker and has a number of skills, and he accepted there was no reason he would not be able to obtain employment in City A.
70Moving to City A would provide the children with the great advantage of having their maternal grandmother closely involved in their lives again. There will also be greater opportunity for the children to spend time with members of the extended family living in and around City A. Although I would not anticipate that the children would spend a great deal more time with their father’s family than they presently do, by living in City A they will be in closer proximity to them. This will, at the very least, increase the chances of them spending holiday time with the father’s family.
(e) 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;
71There will be no difficulty or expense associated with the father spending time with the children if they all moved to City A. On the other hand, there will be significant difficulty and expense if the boys relocate to City A and the father remains in Perth. The father is in regular employment and does not have more than four weeks per annum leave. If he was to remain in Perth, the most that could be hoped for would be that he would spend part of each school holiday period with the children each year. There would be expense associated with the children flying to Perth, and with the father travelling to City A. The other costs of the father spending time with the children would be reduced as a result of the mother and the maternal grandmother making accommodation and a vehicle available for the father while in City A. The father also accepted that he would have reduced petrol and day-to-day living costs if the boys were no longer living in Perth, and that these savings could be put toward airfares for him to and from City A. There is also the possibility of the father being able to apply for a reduction in his child support, depending upon the extent of the expense he incurs in travelling to see the boys. His costs of travel would be reduced further if he were to move to live near his own family.
72The mother is prepared to meet the costs of the children travelling to and from Australia once each year if she is permitted to relocate. She proposed to take them to either City F or City E, and agreed in oral evidence that she could also take them to [City D] if that suited the father. She believed the children were getting close to the age where they could travel unaccompanied but she intends, for the time being, to accompany them and would meet her own cost of doing so.
(f) 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;
73Both parents have the capacity to provide for the children’s physical, emotional and intellectual needs, although I consider the mother’s capacity is a little greater as a result of her individual talents and having been the primary carer of the children.
74In my view, the father at times demonstrated a lack of insight into the developmental needs of the children. I have in mind in particular his insistence that the mother was unreasonable in not allowing him overnight time with Child B when he was six months of age, notwithstanding that Child B had never lived in the same home as him. The father’s response to questions indicated that he saw this as a statement by the mother that he was unable to care for the child, whereas the real issue was whether Child B was at an age where it would be appropriate for him to be removed from his full-time carer overnight.
(g) 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;
75The factor of real significance here is that the children are still quite young and would benefit from frequent contact with both parents. This can be achieved by the mother remaining in Perth, or by the father relocating to Country A.
76Another characteristic of importance is that the boys suffer from [a medical condition] and must comply with action plans [for the condition]. In 2015, both of them were hospitalised with [the medical condition] – Child B on three occasions and Child A once. The mother and maternal grandmother have attended an education session run [by the hospital]. The mother advised the father of the information she received at her session, which he felt sufficient for his requirements, combined with his prior knowledge of the condition, which is prevalent in his family.
77A significant advantage for the children in moving to City A will be the greater opportunity for them to be cared for appropriately when they become unwell, which is an event more likely to occur for them than other children because of their medical conditions.
78The father was scathing of the mother in his affidavit in which he said for example:
There’s perhaps no greater evidence of [the mother’s] selfishness and irresponsibility than the fact that she was going to take [Child B] to the Doctor only after she had had her work meeting. Clearly both boys should have been at [Hospital A] during the night. [The mother’s] only concern however was about her meetings.
79Like all working parents, the mother has faced quandaries in working out how to balance her responsibilities in earning an income to support the children and her responsibilities in providing adequate care for the children. Although my impression is that the mother has provided well for the children in difficult circumstances, the father has a different impression. Regrettably, of course, his own work commitments are such that he is not able to provide the assistance that he clearly considers would be necessary to ensure the well-being of the children. The availability in Country A of the maternal grandmother and the mother’s very close friend would increase the prospects of the children receiving the standard of care that both parents wish them to have.
(h) if the child is an Aboriginal child or a Torres Strait Islander child …
80Not applicable.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
81Both parties have shown an excellent attitude to their responsibilities as parents.
(j) any family violence involving the child or a member of the child’s family;
(k) if a family violence order applies, or has applied…
82There is no suggestion of violence and there has been no family violence order.
(l) 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;
83If I were to make an order preventing the mother from relocating now, it would be partly on account of the fact that the boys are still young, and therefore less able to maintain a relationship with their father than they would if they were somewhat older (assuming he stayed in Perth). An order preventing their removal now would not be an impediment to a further application being made in some years’ time when the boys are more mature.
84On the other hand, if I permitted the relocation now, it would be in circumstances where it is not entirely certain whether the father will move to City A or perhaps interstate, and there may therefore need to be further proceedings to resolve any disputes about the times the father will spend with the children. However, I consider it fairly likely the parents would be able to reach an agreement in relation to such matters.
(m) any other fact or circumstance that the court thinks is relevant.
85The mother has very close long-term friends who continue to live in City A, including two with whom she remains in weekly contact. One of these friends, Ms M, travelled to Perth in order to give evidence and support the mother during the trial. The mother has known Ms M since she was 11 years of age, and lived with her and her husband while she was completing her final years at university. The mother and the boys have spent quite a lot of time with Ms M over the years, both in Perth and City A and on holidays together. The father agreed that he did not know anyone in Western Australia who provided the mother with the same emotional support that Ms M could provide. She would be an invaluable physical and emotional support for the mother if she relocated to Country A.
Parental responsibility
86The presumption in favour of equal shared parental responsibility applies. Furthermore, the parents have demonstrated a good capacity to work together in the interests of the boys, although there were some lapses in which communications by the father in particular were characterised by unnecessarily strong language.
87The only credible argument in support of the mother’s proposition that she should have sole parental responsibility was the fact that if the father did not relocate to City A then she would be “on the ground” and in a better position to make informed and prompt decisions. This would not apply if, as I consider is likely, the father moved to City A. Even if the father does not move to City A, I consider there should be an order for equal shared parental responsibility. The mother is able to communicate with the father and inform him of local matters that are important in making decisions for the children. Both parents are united in their desire to do the best for the children and I think it is likely that they would come to agreements about the few long-term issues that are likely to arise. In saying that, I have not overlooked the evidence about difficulties they have experienced in dealing with some issues, but most of these have been of a day-to-day nature, rather than issues that would be encompassed by an order for parental responsibility.
Equal time
88As I have determined there should be an order for equal shared parental responsibility, I am obliged to consider whether it would be in the interest of the children, and reasonably practicable, for them to have an equal shared care arrangement. The father did not formally seek equal shared care until the month prior to the trial. He provided no affidavit evidence to demonstrate how he could make a shared care arrangement work and his oral evidence in support of such an arrangement was entirely unconvincing, since it demonstrated that he would have to rely on some unspecified proposal to change his present employment and/or to rely upon a nanny. He gave no evidence at all about how such an arrangement would work if he moved to City A.
89I am not persuaded that it is in the best interest of the children for there to be an equal shared care arrangement, especially given the mother’s capacity and track record in providing good quality care for the children. I am also not persuaded that the arrangement would be practicable, even if the parties remained in Perth. One of the difficulties in such an arrangement is the distance between the parents’ homes. Although the father thinks the mother should move back to the northern suburbs, there is no reasonable basis on which I could require her to do so. I am not convinced the father would move to live near the mother although he belatedly gave evidence of that being a possibility.
Substantial and significant time
90As I have determined that it is not appropriate for there be an equal shared care arrangement, I am next obliged to consider whether there should an order for substantial and significant time. If the parents are living in the same city, such an arrangement is likely to be reasonably practicable, and I also consider that it would be in the interest of the children because it would provide an opportunity for both parents to spend significant time with the children and to be involved in more than just leisure activities. However, the advantages associated with such an arrangement need to be measured against the advantages and disadvantages to the children associated with the proposed relocation. If one parent was given permission to relocate, and the other parent refused to relocate, then an order for substantial and significant time would not be practicable. While the parents are living in the same city, I consider orders along the lines proposed by the mother to be in the boys’ interests.
The relocation
91The position adopted by the father is entirely reasonable. The children were born in Western Australia, grew up here and now attend school here. The father is well settled in Western Australia and has a preference to remain here. He points out that the mother has been living in Perth for a long time and has made contacts and formed some friendships here.
92Equally, the mother’s position is perfectly reasonable. Although she has lived here for many years, she has no significant family living in Western Australia (the suggestions to the contrary were not properly proven). Although the mother has a network of friends in Perth, her primary emotional support is provided by her mother and by longstanding friends in City A. As the father said in his oral evidence, he does not see it as being his position, as an “ex-husband”, to provide the mother with emotional support. The main reason for the mother remaining in Perth is because the father is here and wishes to continue to maintain a relationship with the children. That relationship, however, can be maintained in the event that the father moves to Country A. Either way, one of the parents is going to be living in a place where they do not wish to live if they are to both remain living close to their children.
93The father’s loyal and supportive sisters both gave evidence of the great advantage to their children of living in close proximity to grandparents and extended family. In describing their own circumstances, both sisters spoke of the importance of children being connected to family, and one said she “fully believed” that having many friends and relatives around them “helps children build their own character” which was not possible when they lived “miles apart”. These advantages are simply not available to the boys in Perth, and neither party has a proposal for the children to move interstate to be part of the father’s extended family. The opportunity for them to grow up in proximity to family exists only in City A.
94While the mother is a high functioning individual, she is obviously struggling while forced to remain here. She managed to live here happily enough while her mother was here, but now that her mother has returned to Country A, she has been managing only as a result of her mother visiting very regularly, which I find is unlikely to continue for much longer.
95The mother will be much happier and content, and will therefore provide better care for the boys, if permitted to live in proximity to her family and close friends. While the father will also struggle if he is required to relocate to Country A, where he knows nobody, he is a personable individual with some inner strength and better able than the mother to get by without the support of family (the absence of which has not troubled him for a long time).
96The father’s devotion to his sons is such that I consider he will make the most of life in Country A in the fairly likely event that he decides to move there. If I am wrong in my assessment that it is likely the father will move to City A, it is possible that he would instead move interstate where he would have slightly greater opportunity to spend more time with the children and certainly have greater assistance in caring for the children if they were to come and visit him during holidays as the mother proposes. If he elects to remain in Perth, rather than live nearer his sons, then this would be his legitimate choice. He would then take advantage of every opportunity he could to spend time with his sons. By this means and by regular electronic communication, his sons would grow up knowing that they were still an important part of his life and that he valued his time with them.
Timing of the relocation
97Although I propose to permit the mother to relocate, I intend to order that this not occur until December 2017. My primary reasons for delaying the departure are these:
•The children have recently commenced the school year in Australia and are happy at their current school. The delay will give them an opportunity to be slowly prepared for their departure for Country A and to say goodbye to schoolmates and others with whom they have associated in Perth;
•The delay will give both parents the opportunity to terminate leases/sell property and make arrangements to set themselves up in City A;
•Although I have found that the mother is unhappy living in Perth, the knowledge that she will soon be returning to her homeland will assist her to deal with her disappointment at not being able to move immediately;
•I consider it likely that the mother will be able to obtain relief work in Perth to help support herself while waiting to move; this will give her experience that will be valuable to her in obtaining work in City A;
•The boys are quite young. I cannot be certain that the father will relocate to City A, and I consider they would be better able to cope with separation from him if they were just a little older (Child B in particular).
Orders
98I propose to require the mother to cover the costs of return airfares to the east coast of Australia and return twice a year. I am satisfied that she will have the means to afford this. The father can then take the children home to Perth if he wishes, or alternatively can spend time with his family interstate.
99I do not propose to make the order sought by the father in relation to the setting aside of his child support payments to cover other costs of travel. If the father qualifies, he can make an application to the child support authority for a reduction in his child support payments. No doubt the costs the mother will incur in transporting the children would also be taken into account if such an application were to be made.
100I do not propose to make the order sought relating to the father paying one half of the payments required by the scholarship fund. I hope that he will find the means to do so (as he proposes) but it will be more important for him to preserve his funds to cover the costs of visiting the children if he elects to remain in Australia. In any event counsel for the mother properly drew attention to the jurisdiction issue associated with making such an order.
101I propose to make the order sought by the mother in relation to the children obtaining dual Australian – Country A citizenship. The children will be living in Country A and it is appropriate that they have the privileges and benefits associated with citizenship of the country in which they are living.
102For all the reasons I have given, I propose to make the orders set out below.
1.The applicant mother, [Ms Clement], and the respondent father, [Mr Bisset], have equal shared parental responsibility for the children, [Child A] born [in] 2008 and [Child B] born [in] 2010.
2.The children live with the mother, who shall be at liberty to remove the children from the Commonwealth of Australia provided that the relocation does not occur earlier than 21 December 2017.
3.Pending the relocation of the mother and children, the father shall spend time with the children as follows:
(a)during school term from 5 pm on Thursday to 5 pm on Saturday;
(b)for half of each of the mid-year holidays at times to be agreed and in the absence of agreement for the first half of each holiday commencing at 5 pm on the Friday of the last week of term;
(c)during the 2017 summer school holidays from noon on 16 December 2017 until noon on 21 December 2017;
(d)at Easter 2017 from 5 pm on Thursday until 5 pm on Monday;
(e)on the weekend of [Child B’s] birthday, the father’s time with the children be extended to 5 pm on [the] Sunday, (it being noted that in 2017 the father will have time with [Child A] on his birthday from 5 pm);
(f)on the weekend of Father’s Day in 2017 the father’s time with the children be extended to 5 pm on the Sunday.
4.Pending the relocation of the mother and children:
(a)the mother be at liberty to take the children to [Country A] during her time with the children; and
(b)the father be at liberty to take the children [interstate] during his time with the children.
5.In the event the father does not relocate to [Country A], the following arrangements shall apply after the mother and children relocate:
(a)The father shall spend time with the children in Australia each year for all but three days of one of the mid-year school holidays and for half of the Christmas school holidays, with the mother to meet the costs of return travel for the children and herself (if she travels) to either [City F], [City E] or [City D] as requested by the father;
(b)The father shall spend time with the children in [Country A] for half of any of the three end of term school holidays he elects not to spend in Australia, with the father to meet all costs of travel, save that the mother shall ensure the father and children are provided with accommodation in a home and the use of a motor vehicle during the father’s time in [City A].
(c)The children shall spend Christmas and Boxing Day with the father each alternate year commencing in 2018 and with the mother each intervening year commencing in 2017.
(d)The father shall be at liberty to communicate with the children electronically on two occasions each week at times to be agreed between the mother and father to include communication on the children’s birthdays, the father’s birthday and Father’s Day.
6.In the event that the father does relocate to [Country A], until further order of this court or a court of competent jurisdiction in [Country A], the following arrangements shall apply:
(a)The father shall spend time with the children:
(i)during school term from 5 pm on Thursday to 5 pm on Saturday;
(ii)for half of each of the school holidays;
(iii)for two hours on the children’s birthdays if a school day and for five hours if not a school day;
(iv)from 5 pm on the Saturday of the weekend of Father’s Day to 5 pm on Father’s Day.
(b)The children shall spend Christmas and Boxing Day with the father each alternate year commencing in 2018 and with the mother each intervening year commencing in 2017.
(c)The children shall spend Easter with the father each alternate year commencing in 2019 and with the mother each intervening year commencing in 2018.
7.The mother and the father shall keep each other advised at all times of their residential and email address and telephone contact numbers.
8.The mother and the father shall provide such authorities as are necessary to enable the other to obtain information about the children from the children’s schools or any health professional attended by the children.
9.In the event either child requires urgent medical attention, the party in whose care the child is in at the time shall promptly provide the other party with relevant information relating to the child’s condition.
10.The mother and father shall do all such acts and things as necessary to ensure that the children obtain dual Australian – [Country A] citizenship.
11.The mother shall hold the children’s passports and make them available to the father for any travel required for the implementation of these orders.
12.Any documents produced pursuant to subpoena be returned or destroyed in accordance with any request made by the person producing the documents.
13.Each party have liberty to apply in relation to the further definition and implementation of these orders.
14.The application and response be otherwise dismissed.
I certify that the preceding [102] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
28 February 2017
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