D and H

[2004] FCWA 81

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: D and H [2004] FCWA 81

CORAM: PENNY J

HEARD: 17 MARCH 2004

DELIVERED: 4 JUNE 2004

FILE NO/S: PT 4959 of 1995

BETWEEN: D Applicant/Mother

AND H

Respondent/Father

Catchwords:

Children's issues - relocation application unsuccessful - change of residence - contact

Legislation:

Family Law Act 1975 - s 68F

Category: Not Reportable

Representation:

Counsel:

Applicant : Self Represented Litigant

Respondent : Self Represented Litigant

Solicitors:

Applicant : Self Represented Litigant

Respondent : Self Represented Litigant

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

A and A

Relocation Approach (2000) FLC 93-035

1This application deals with the vexed issue of where, and with whom, the child [ A, aged 14 should reside.

2[A]'s parents separated in 1995. Initially [A] and his sister [K], now aged 17, resided with the wife. Shortly after separation consent orders were made that the husband have contact each alternate weekend, half school holidays and for other important events.

3Within months of the separation the wife commenced a relationship with [Mr D] and they were married in 1996. The children continued to reside with the wife and [Mr D].

4In October 1999 [K] contacted the husband and advised that she wished to come and live with him. She has lived with the husband since that time. In November 1999 [K] revealed to the husband that [Mr D] had been dealing with her in a sexually inappropriate fashion. [Mr D] was charged with indecent dealing with a girl under the age of 13 years, and was convicted by a jury. The wife refuses to accept that [Mr D] was guilty of this offence. She gave evidence in support of [Mr D] at the trial in which [K] was a prosecution witness. Not surprisingly, [K] and the wife now have a poor relationship. They see each other infrequently and have occasional telephone contact.

5In February 2000, Family & Children's Services advised the wife that if A was going to continue to reside with her, that [Mr D] was not to stay overnight in the house. The wife and [Mr D] have now separated. She says they are good friends and [Mr D] visits her home every day, but resides with his elderly parents.

6Although [K] and the wife did not have a good relationship after 1999, A has maintained a close relationship with the husband and [K]. He has visited each alternate weekend and for half of the school holidays, and all the indications were that until January of this year the relationship between the husband and the two children was a close and loving one.

7In December/January 2001 the wife and [A] went [interstate] for a holiday. The wife says that she did this to "get away from the stress". The wife stayed with the husband's sister and her husband [interstate] in a small town. The husband is estranged from his sister and has not had contact with her for between 10 and 15 years.

8The wife says that [A] formed the strong view over this holiday period that he did not wish to return to Western Australia and that he wanted from that time on to live permanently

[interstate]. The wife states she also wishes to live permanently [interstate], citing her medical condition of vitiligo, an autoimmune disease process which results in depigmentation, as being one of the reasons she wishes to live in a cooler climate.

9The wife filed an application on 11 March 2002 seeking orders that she be able to relocate [interstate] with [A]. The husband opposed that application.

10 In December 2003, [A] who, as stated previously, has had a very good relationship with the husband and regular contact with him, refused to go on contact with the husband unless he signed a consent for him to live [interstate]. The husband refused to sign this consent and there has been no contact since that time.

11 The husband seeks an order that A reside with him. If this request is not granted, he seeks an order that the wife be restrained from relocating from the Perth Metropolitan Area with A. The wife's case is that A should continue to reside with her, preferably [interstate], but if that application is unsuccessful, she should be able to relocate in Western Australia, with [A], to a cooler area.

The law

12 In A and A: Relocation Approach (2000) FLC 93-035 the Full Court set out the way in which matters dealing with proposed relocation of children should be determined. In summary the court should:

• identify the relevant competing proposals;

•for each relevant s 68F(2) factor a court will set out the relevant evidence and the submissions with particular attention as to how each proposal is said to have advantages or disadvantages for that factor;

•reasons for the proposed relocation will be weighed with other matters, rather than treated as a separate issue;

•the ultimate issue is the best interests of the children, and to the extent that the freedom of a parent to move impinges upon those interests, then it must give way;

• none of the parties bears an onus; and

•the court must take into account the importance of a party’s right to freedom of movement.

Section 68F factors

(a) any wishes expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thin[K]s are relevant to the weight it should give to the child's wishes;

13 The wife says that [A] formed a strong view in January 2001 that he wanted to live in [interstate]. Before this time he had not met the relatives with whom he was residing. Following his return to Perth, the husband says [A] did not comment on his holiday [interstate] to him, other than to say "it was alright". The husband became aware of the wife's intention to move [interstate] in January 2002. At that time he received a note signed by [A] stating that he wished to live [interstate], citing the wife's medical condition as his reason for wanting to move. This note was dated

28 December 2001. The husband said he asked [A] about the note

at his next visit, but he became upset and he did not press the issue.

14 The husband says it was not until September 2003 that [A] telephoned him and advised him that he wished to relocate [interstate]. He says this was the first and only time [A] initiated any communication regarding [moving interstate].

15 Paul Kerin, a counsellor of this Court, interviewed the parties, [A] and [K] in August and November 2002. Mr Kerin commented in that report that [A], who was then 12½ years, commenced his interview with the deliberate intention of telling him about [movin g interstate] and why he wanted to go and live there. It was Mr Kerins’s view that:

"Such immediate delivery of information by a child in this context is a significant indicator that a child has been influenced and/or scripted by a parent to provide certain information."

Further in that report Mr Kerin stated:

"When asked about moving, [A] again indicated that he would like to move [interstate], but was much more ambivalent than when he stated the same at the commencement of the interview. The primary reason [A] gave for moving was to ensure that his mother would be able to live in a cooler climate, and therefore be more healthy. He added that he would like living in the country, but he liked his father's sister, with whom he would initially be living, and that they would be close to his grandparents, who live in [the capital city].

[A]’s ambivalence was clearly evident when considering the negative impact of moving [interstate]. He said he would lose contact with his friends, that he would have to stay back in year 7, which he would prefer not to, that he would have to go to school on a school bus to a different town to that in which they would be living, but mostly he would miss spending time with his sister and father."

16 Later in the report he was asked by Mr Kerin what would happen if the Court prevented him from going [interstate]. Mr Kerin stated:

"[A] openly and positively discussed living with his father and sister, and going to [a private school]. He was sadend (sic) at the thought of not seeing his mother very much, but thought that he would adjust to that as he would have to go with his father and sister should (she) go [interstate]. [A] believes his mother would still go [interstate], even if he couldn't, and he would want her to go so her health could improve."

17 At the end of the interview, Mr Kerin said that [A] made it clear that he was not prepared to make the decision by expressing a preference about residing [interstate], other than to be able to live where he could have regular and significant contact with both parents and his sister. He did not believe that this was achievable because the wife had to move to a cooler climate.

18 I accept the opinion of Mr Kerin that at this time [A] had clearly taken on the burden of the wife's health and saw his decision as being responsible for her health problems.

19 A was again interviewed by Mr Kerin in March 2004, after he had refused to see the husband. In that interview A confirmed that his decision not to see the husband, and as a consequence not to see his sister, [K], was his choice and that the wife needed to be able to go [interstate]. He stated that he had the wife's support to stop contact. When asked what would have happened if the wife had said he should continue to see the husband, [A] said he would have been happy to do so. He confirmed he had not been encouraged to resume contact by the wife. It was Mr Kerin’s opinion in relation to [A]'s determination not to have contact with the husband that:

"Whilst he has maintained his position of no contact, with the support of his mother, [A]'s body language and restlessness clearly demonstrates his ambivalence about his decision not to have contact."

20 While [A] set out to Mr Kerin the advantages of living [interstate], including living near his aunt and uncle, a greater career path for him to become a chef, living in a small country town and the fact that he had been enrolled in a school in [ anearby town], he could not elaborate on any of these reasons. For example, he did not know the size of the town he would be living in, the size of the school, the distance of travelling to school and why his career prospects as a chef would be better in [interstate] than in Perth. [A] admitted that his knowledge of the advantages had all come from the wife.

21 In relation to the wife's health and other problems, Mr Kerin said:

"The other significant aspect of [A]'s decision to move [interstate] relates to his mother's health. In discussing her health in the period since the last report, A said that although his mother had coped with the hotter climate, it was very stressful for her, and that part of his responsibility was to help her get through it until the decision of the Court had been made. He said that his mother was afraid that she might lose him, and she was often in tears and that she needed him to console her when stressed."

22 When questioned what would happen if he was forced to remain in Perth and live with the husband, [A] told Mr Kerin that he would be down and depressed, but stated it would be "okay living with the husband, and he presumed it would be okay at [the high school]. He reminded Mr Kerin, however, that his preference was to live with the wife [interstate].

23 While [A] appears to have now taken and stand a refused to see the husband until such time as he is allowed to go [interstate], in my view, he is still ambivalent about this decision and has taken this extreme action with the support of the wife and [Mr D]. I have no doubt that if it was not for the encouragement of the wife and [Mr D], [A] would be having contact with the husband and his sister, and maintaining what was previously, a close, loving and important relationship for him.

b) the nature of the relationship of the child with each of the child's parents and with other persons;

(Page 8)

The Wife

24 It is clear that [A] has a very close relationship with the wife but, in my view, that relationship is not a healthy one. I agree with Mr Kerin when he states that:

"It remains clear that A has taken on the burden of his mother's health, and increasingly appears to have accepted his mother's dependence on him as normal. I consider such dependence as problematic for [A], and increasingly so for his development and future independence as he gets older. He needs to be released from the burden of this responsibility……"

[Mr D]

25 [A] has a close relationship with [Mr D]. When interviewed for the report in 2002 he indicated that [Mr D] was likely to follow the wife and he [interstate] and reside with the wife there. He acknowledged the difficulties for the wife and [Mr D] as a result of the fact that Family & Children's Services had insisted that [Mr D] was not able to spend nights at the home if [A] was residing there.

26 [Mr D] gave evidence that he told [A] he should confront the husband in relation to his wish to go [interstate], and get written permission from him. He describes [A]'s attitude to the husband and [K] as being "indifferent". In my view, [A]'s attitude is only "indifferent" because of the encouragement given by the wife and by [Mr D].

27 [Mr D] also gave evidence of the fact that [A] has written a letter to the police stating that his mother has not kidnapped him. [A] wrote this letter in October or November 2003. [Mr D] was not sure whether [A] had given it to the police. I find it most disturbing that [A] was put in a position where he should have to write such a note, when there is clearly no suggestion by anyone that [A] has been kidnapped.

28 If [A] remains in Perth and remains residing with the wife, he will have regular daily contact with [Mr D]. I am not satisfied that such a relationship is in his best interests. Certainly, [Mr D] will not encourage his relationship with the husband or his sister, [K], who has accused him of indecent dealing.

29 If [A] resides with the wife [interstate], [Mr D] says he will not move to that State to live with her. When interviewed in 2002,

[A] thought it was likely that [Mr D] would follow them [interstate], and that [Mr D] and the wife could then live together. When interviewed in 2004, he no longer thought that was the case, however, he was not able to provide any reason for that. I am not satisfied that if the wife was given leave to relocate [interstate] that [Mr D] would not also move to that State. He indicated that his parents are unwell and will have to move from their home in the near future in any event. He currently appears not to have any firm plans other than to say he might reside in [another town]. If the wife lived either [interstate] or in the South West of this State, it is highly likely that [Mr D] would reside in the same area, if not with her.

Husband

30 When interviewed in 2002 [A] reported a positive relationship with the husband. He said that he enjoyed his weekends with him, although they occasionally had arguments. He stated that if he was not living with the husband he would like to spend at least three weeks of the end of year holidays with [K] and the husband. His reason for wanting an extended period living with the husband and [K] was that it would make his relationship better with the husband. [A] at that time had nothing detrimental to say about the husband.

31 When interviewed in 2004 when he had ceased going on contact with the husband, [A] confirmed that the contact with the husband from when he was first interviewed by Mr Kerin in 2002 until he ceased contact in December 2003, had been a positive experience. Surprisingly, although he indicated that if the wife relocated away from Perth and he resided with the husband he would be "down and depressed", he stated that it would be "okay" living with the husband.

[K]

32 A described his relationship with [K] in 2002 as being a normal sibling relationship which included a lot of good times and some arguments. He stated he missed [K] when she first moved to live with the husband, but it was now okay because he saw her regularly. In 2002 he stated that he would like to live with his sister and be able to go to the same school as her.

33 In 2004, when [A] was not regularly seeing [K], he stated that he missed her and regretted not being able to see her regularly.

When interviewed in 2004, [K] stated that she was surprised at [A]'s cessation of contact with her as she, [A] and the husband had been getting on very well on contact weekends. [K] had rung [A] for his birthday, however, he had not returned her call.

Conclusion on relationships

34 In my view, the relationships [A] has with the husband and sister, [K], are very important relationships. They appear to be appropriate and not dysfunctional as is his relationship with the wife. I have already stated I do not thin k his relationship with [Mr D] is a helpful one. If [A] resided with the wife either in Perth, [interstate] or the South West of this State, I am convinced that his relationship with the husband and with [K] would not be encouraged by her. This would be detrimental for his emotional development.

35 If [A] resided with the husband and [K], I am satisfied that the husband would encourage him to have contact with the wife. He encouraged [K] to have contact with the wife even though she did not believe [K] had been sexually abused by [Mr D], and gave evidence against her in Court.

(c) 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, with whom he or she has been living;

36 [A] has stated that if he resides [interstate] he will have regular email and telephone contact, and personal contact with the husband once per year. He acknowledges, however, that that is not happening at the present time living in Perth and is certainly not encouraged by the wife. If [A] continues to reside with the wife and the Court refuses permission to relocate from Perth with [A], it is highly likely that he will not have contact with the husband or [K]. In my view, this would not be [A]'s best interests as the relationships he had in the past with [K] and the husband were far more "normal" than his relationship with the wife. There is likely to be a growing dependence upon [A] by the wife in the future and this would certainly not be in [A]'s best interests.

(Page 11)

37 It is important that [A] maintains his previously good relationship with [K]. This is unlikely to be achieved if [A] resides in either [interstate], the South West of this State or with the wife. If he resided with the husband that relationship is likely to become a closer one and would be to his advantage.

38 If an order was made that [A] resided with the husband, I have no doubt that he would, in the short term, be "down and depressed", however, even in March this year he could see advantages of living with the husband. I am satisfied that [A] would recover from any short term unhappiness as a result of his changed circumstances and benefit from a close relationship with the husband and his sister.

(d) the practical difficulty and expense of a child having contact 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;

39 If [A] resided with the wife in [interstate], contact he has with the husband and his sister would be restricted, if it occurred at all, to email, telephone and once yearly contact. The once yearly physically contact would be dependent upon both the husband and the wife, both of whom are in receipt of Social Securities benefits, being able to afford the airfare. A acknowledged that while he would hope that while living [interstate] he would be able to have contact with the husband, the situation presently is that he lives in the same city as him and does not have contact in any form.

40 If [A] resided with the wife in country Western Australia, there is less practical difficulty in [A] having contact with the husband, although it is unlikely to be each alternate weekend, as is currently ordered.

41 If [A] resided in Perth with either the husband or wife there is no practical difficulty or expense in [A] having contact with the other parent.

(e) the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;

42 In my opinion, the wife is unable to provide appropriately for [A]'s emotional needs. I have already indicated that the relationship the wife has encouraged [A] to have with her is not appropriate and not in [A]'s best interests. This relationship has the

capacity to interfere with his emotional development. The wife has been prepared, to get her own way, to encourage [A] to have no relationship with the husband and [K]. This indicates to me she has no respect for those relationships, nor can she see any benefit to [A] in having them. This conduct also has the capacity to interfere with [A]'s emotional development.

43 The fact that the wife has chosen not to have a relationship with [K] and to provide, instead, her emotional support to [Mr D], also indicates that she does not have the capacity to understand the needs of her children or to be able to provide for their emotional needs in the future.

44 The wife indicates that her capacity to care for [A] would be improved if she was living in a cooler climate and if she was away from the "stresses" of having to deal with the husband. I have no doubt that she wishes to put as much distance as she can between herself and the husband. While she may be happier living in [interstate], and this may reflect on [A], who is concerned about her welfare, I do not consider that this would be an appropriate reason, in itself, to allow the wife to relocate with [A] [interstate].

45 I am satisfied that the wife provides an appropriate physical environment for [A] in Perth. I am not satisfied that the environment would be appropriate [interstate]. The wife proposes that she and [A], in the short term, would be residing with [A]'s aunt and her husband [interstate]. The only time [A] has met these people is when he stayed with them for a period of a few weeks, three years ago. Neither [A] nor the wife know any other people in the town, where they would be living. [A] would attend high school at a [town nearby], which involves a bus ride of 1½ hours each way. [A] says that he is looking forward attending this school, as they have indicated that they will be happy to have him as a student. [A] is progressing well at school in Perth and has many friends. I do not accept that it is in [A]'s best interests to be taken to a very small country town where he knows very few people, and where he will have to spend 3 hours a day in a bus going to school. I have no doubt that in that environment [A] will be deprived of educational, sporting and other recreational opportunit ies, which would be available in a larger town or city.

46 If [A] continued to reside with the wife in Perth, he would continue to attend the same school and have his close friends.

47 In relation to living in the South West of Western Australia, the wife did not commit herself to a town, nor was she able to give

any details of the arrangements which would be made for [A] if he lived with her in that part of the State.

48 If he resided with the husband in Perth, he would attend [private school] a school his sister attends, and where he has indicated he would be happy. He would have the advantages of the facilities that are available in the city.

49 The husband has, since separation, insisted on having regular and frequent contact with the children. He acknowledges at times that he has not always considered their interests before his own. [A] was a good sportsman and very interested in sport. The husband conceded that he did not get involved in his sporting commitments and stated he has "a low attention span for sport".

50 [K] has been residing with the husband since 1999. The husband has ensured [K] has had counselling in relation to the abuse by [Mr D]. [K] was described by Mr Kerin in his report as "a well cared for, respectful, intelligent, young lady". It appears that the husband has cared for [K] in an appropriate fashion and I have no doubt he has the capacity to care for [A] in the same manner.

(g) the need to protect the child from physical or psychological harm caused, or that may be caused, by:

(i) being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or

(ii) being directly or indirectly exposed to abuse, ill- treatment, violence or other behaviour that is directed towards, or may affect, another person;

51 I am satisfied that [A] will not suffer from any physical harm residing in either the husband's or wife's household. In relation to psychological harm, there is a prospect he could suffer from psychological harm residing with the wife because of her dependence upon him and because of the fact that he is unlikely to have a relationship with the husband or [K].

52 If he resides with the husband, this will ensure he has a close and "normal" relationship with the husband and [K]. I have no reason to believe the husband will not encourage [A] to have contact with the wife, whether she resides in [interstate], the South West of Western Australia or Perth.

(Page 14)

(h) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

53 The husband has not attempted to contact [A] to encourage him to have contact since December. He did not contact him at either Christmas time or for his birthday. This attitude was not likely to encourage [A] to have contact with the husband and, more particularly, with [K]. The husband says he did not want to put any pressure on [A], however, it is also important for [A] to know that the husband loved him and wished to see him. He should have at least contacted [A] from time to time to reassure him that he still wished to see him.

54 I am satisfied that the wife has provided for [A]'s physical needs and encouraged him in his sporting activities. By not encouraging him to have a relationship with the husband and his sister she has, in my view, been irresponsible.

([K]) 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;

55 If the wife resided [interstate] with [A], I am not convinced that any contact orders would be complied with. This is likely to result in continued litigation.

56 If [A] resided with the wife in Perth, as stated previously, I still have no confidence that he would have contact with the husband. This could also result in further litigation.

57 If [A] resided with the husband in Perth, I am satisfied that he would encourage his contact with the wife.

Conclusions on residence

58 In my view, it is in [A]'s best interests that he reside with the husband and [K]. In making this decision I have particularly taken into account the following matters:

• The dysfunctional relationship he has with the wife.

•The wife will not encourage his relationship with the husband and [K].

•The only way he will be able to have a relatio nship with them is to live with them.

•Although [A] wished to reside with the wife [interstate], he agreed he could live with the husband and attend [private school].

(Page 15)

•The arrangements proposed by the wife for [interstate], the South West of Western Australia or Perth are not as appropriate as those the husband proposes.

59 The wife should have contact in the same terms as that previously ordered for the husband.

I certify that the preceding [59] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate