D and P
[2008] FCWA 4
•11 JANUARY 2008
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: D and P [2008] FCWA 4
CORAM: MARTIN J
HEARD: 18 SEPTEMBER & 15 NOVEMBER 2007
DELIVERED : 11 JANUARY 2008
FILE NO/S: PT 2310 of 2000
BETWEEN: D
Applicant/Father
AND
P
Respondent/Mother
Catchwords:
FAMILY LAW - child - parental responsibility - spending time with
Legislation:
Family Court Act 1997 - s 66, s 66A, s 66C, s 70A
Category: Not Reportable
Representation:
Counsel:
Applicant: Self Represented Litigant
Respondent: Ms Brownlie
Solicitors:
Applicant: Self Represented Litigant
Respondent: Hammond Worthington
Case(s) referred to in judgment(s):
Nil
1The present proceedings were commenced by the father’s application for parenting orders, first filed 19 October 2006, to which the mother filed a response on 16 November 2006.
2The father’s preferred position was that the child of the parties, a girl now aged 8 years, should live with him, and have contact with the mother during school holidays.
3On behalf of the mother, the issue of whether the father had reached the threshold at which variation of the orders would be justified was raised, as the child has lived with the mother throughout her life, and orders by consent were made in 2004, confirming that the child is to reside with her, and for the mother to have sole responsibility for the child’s day to day care, welfare and development.
4The father’s position was that the circumstances have changed in that the mother has not encouraged his relationship with the child and, in the future, he is going to be working on a part-time basis, and this would justify the child moving to live with him, and his present family, in [the Eastern states].
5At the commencement of the trial, I indicated to the father that, in the present circumstances, I was not satisfied it was in the best interests of the child for there to be a change in residence:
•It is clear that the father has been able to maintain a meaningful relationship with the child, as the child obviously has a good relationship with him;
•The father has been having regular holiday and weekend contact with the child, even though living a long distance from Perth;
•The child has always lived with the mother and has not been separated from her other than for holidays;
•The evidence is that the child is progressing very well despite the protracted conflict between her parents;
•The only changes of significance since the previous orders were made are the father’s move from [the North-west] to [the Eastern states], and the birth of half-siblings of the child.
6However, there were additional issues to be determined regarding the arrangements for the child to spend time with the father, and fine-tuning of the present orders. The principal issues, in summary, were:
1.The precise extent of the father’s time to be spent with the child during mid‑term school holidays.
2.Minor details of the summer school holiday time to be spent with the child.
3.Whether the parties should share the cost of the child’s travel, or whether the father should meet all the costs.
4.The telephone, and other indirect, contact arrangements.
7I am satisfied further orders were necessary in relation to these issues, having regard to the father’s change in circumstances in moving to [the Eastern states], and because of some of the difficulties in relation to the present orders.
8I apologise to the parties for taking longer than I had hoped to give judgment. Frankly, I regard the existing orders as, generally, quite satisfactory and in [Christine]’s interests, and it really was just a matter of fine-tuning them.
9Earlier today, I made the following orders:
1.The previous substantive orders be discharged.
2.The mother and the father have joint parental responsibility for the child [Christine], born [in] February 1999.
3.The child live with the mother.
4.The father spend time with the child during school holidays as follows:
(a)in the April school holidays in each year, commencing on the first Friday after the school term ends and concluding on the last Friday before the next school term resumes;
(b)in the July and September/October school holidays commencing on the first Friday after the school term ends and concluding on the middle Sunday of the holidays;
(c)in 2008/2009 and in alternate years thereafter, for three weeks from the first Friday or the first Sunday after Christmas Day, on the father’s nomination, with the father to provide the mother with notice of his nomination by no later than 1 November prior to that Christmas Day;
(d)in 2009/2010 and alternate years thereafter, for 23 days from the first Friday of the holidays;
(e)in the event the father does not seek to spend holiday time with the child during the July school holidays, in any year, then he provide written notice of this to the mother by no later than 1 May in each year, and he then may choose to have the child’s time spent with him during the September/October school holidays extend to the last Friday of the holidays;
5.The father spend additional time with the child if he travels to Perth:
(i)for a maximum of four weekends during each school term from after school Friday or 8:00 am Saturday, at the father’s nomination, until 6:00 pm the following Sunday or in the event of a long weekend 6:00 pm the following Monday, with the father to give no less than 10 days’ notice of his intention to spend time with the child;
(ii)between Monday and Thursday from after school to 7:00 pm on three days’ notice to the mother;
6. In relation to the travel associated with the father’s time with the child:
(i)the father pay the costs of travel for the child;
(ii)as far as practicable, for travel between Perth and [the Eastern states], the father shall book the child on direct flights between Perth and [the Eastern states], and return.
7.The father have telephone contact with the child each Sunday between 6:00 pm and 7:00 pm Western Australian time, such call to be initiated by him, and, in addition, he be permitted to telephone the child up to twice per week.
8.(i)When giving the required notice of the father’s intention to spend holiday time with the child, such notice is to include:
(i)the commencement and conclusion dates and times of his time with the child;
(ii)where such time with the child shall take place;
(iii)any flight details.
(ii) Any notice of any matter required may be sent by email, and each party is to ensure they have, and maintain, an email address.
9.In the event the child is to stay at a place away from her home with her mother for more than seven days, the mother provide the father no less than 10 days’ notice prior to the trip, brief details of the itinerary and destination.
10.The mother have telephone contact with the child on the first day and on at least two other occasions each week during the child’s school holiday time with the father, such telephone calls to be initiated by the mother and at the mother’s expense.
11.The child be permitted to telephone either parent whilst in the care of the other parent if she wishes and that party to facilitate the making of such telephone call, and such telephone call not to be made reverse charges to the parent being called.
12.Each parent ensure the child has telephone contact with the other parent on Christmas morning, and that the father has telephone contact with the child on her birthday.
13.Each parent ensure the child has email access while residing with them, and is encouraged and facilitated to email the other parent at least twice per week, unless holidaying at a place where email access is not readily available.
14.(i)The father not have time with the child on the weekend of Mother’s Day or a weekend including the mother’s birthday.
(ii) In the event he is in Perth on the child’s birthday, on 10 days’ notice to the mother, the father spend from after school to 5:30 pm with the child.
15.The mother ensure that the child receives any letters, drawings, cards or presents posted to her by the father or his family.
16.(i)The parties keep each other informed of their current residential address and telephone number and advise of any changes within 24 hours prior to such change occurring.
(ii) The parties ensure the other has a telephone contact number for them at all times.
17.The mother authorise the school which the child attends to provide the father with all relevant information (including school reports and work folios), and provide regular advice to the father about the child’s progress at school.
18.(i)In the event the child sustains any major illness or injury whilst in the other party’s care, such party inform the other of such illness or injury by telephone as soon as practicable.
(ii) Each parent ensure the other is informed, in writing, of any medical treatment, or treatment by their health professionals, while the child is with them, and of any medication prescribed.
19.The parties each be and are hereby restrained by injunction from removing the child from the Commonwealth of Australia without the consent of the other party which consent will not be unreasonably withheld, or order of the Court.
20.The parenting arrangements be subject to supervision by a Family Consultant of the Family Court Counselling and Consultancy Service for one year.
21.There be liberty to apply for further definition and in relation to implementation of the orders.
22.The applications otherwise be dismissed.
10Counsel for the mother also sought an order for costs so, in the absence of the applicant (who had not made arrangements to attend the hearing by telephone), I made directions for the filing of written submissions, and adjourned the proceedings for judgment on this issue, and for any fine-tuning of the orders, once the parties had an opportunity to properly consider the details.
Background
11The father is 43 years old, and at the time of trial was a [Team Leader], but he proposed to cease his then employment in October 2007. The mother is 41 years old and engaged in home duties. The parties commenced cohabitation in 1997. The one child of the relationship, [Christine], was born [in] February 1999 in [the Eastern states]. The parties separated on 1 December 1999 when the parties were living in [the North-west]. The father continued to live in [the North-west], and shortly afterwards the mother and child returned to Perth where they have resided since that date.
12Both parties have repartnered. The mother has been living in a de facto relationship with [Mr V] since November 2006, after being involved in a relationship for about two years prior to that (despite the fact the father says the mother has had a “long list of failed relationships”). The couple are engaged. They have a daughter, [Shauna], aged 9 months. The father commenced a relationship with [Ms K] in about 2000, and the couple married in 2004. [Ms K] is working [in a bank]. The couple have a son, [Ben], aged 2 years, and hope to extend their family soon.
13Proceedings between the parties first commenced by an application filed by the father in the Court of Petty Sessions at [the North-west] on 8 March 2000, and, on 26 June 2000, orders were made by consent for the father to have daytime contact with the child, gradually increasing.
14In March 2001, the father filed a further application seeing to vary the contact orders. The application proceeded to a trial before Justice Barlow, as he then was, in November 2001. At that time, the main issue was whether the father should have overnight contact with the child. His Honour made orders which provided for this to be gradually phased in. At that time the father was still living in [the North-west] and the mother in Perth. By June 2003, the father was to be having contact on six separate occasions each year, each of up to one week.
15The father filed a further application in 2002 seeking clarification of the orders and, on 1 July 2002, the orders were further defined.
16The father filed another application in March 2003, and the orders were further varied by consent on 5 June 2003.
17The parties largely resolved the issues between them, and orders were made by consent on 15 July 2004. In summary, the orders provide for the parties to retain joint responsibility for the long term care, welfare and development of [Christine], with the child to reside with the mother and the mother have sole responsibility for her day to day care, welfare and development. The father was to have contact on four weekends during each school term from either 4.00 pm Friday or 8.00 am Saturday until 4.00 pm the following Sunday, provided the weekend contact did not take place on consecutive weekends, for a week in July 2004, and from the September/October school holidays 2004, for the first week of the mid‑year school holidays.
18The father also had the right to have school holiday contact in [the North-west] if he paid the costs of the airline flights.
19The matter again proceeded to trial, with the trial proceeding for only a short time, on 9 August 2004.
20Further consent orders were made for the father to spend time with the child in [the North-west] for three weeks from 24 December, and in intervening years for three weeks from not before 27 December. The wife was to give detailed notice of the summer holiday arrangements by 31 October.
21Orders, not by consent, were then made for the father to have a further two weeks of the summer holidays with the child, in the second half of January 2005, and in relation to telephone contact.
22On 1 September 2006, [the father] caused a letter to be sent from his then solicitors to Corinne. The letter expressed concerns about:
•alleged bribing of the child by the mother to encourage her to return home to her mother early after weekend time spent with her father;
•the mother not allowing any flexibility whatever in relation to the orders and in relation to flight bookings;
•problems with telephone contact in that sometimes the telephone was not answered, and [Christine] was not permitted to telephone the father;
•[Christine] not being given mail from her stepbrother;
•information not being provided about [Christine]’s schooling in contravention of the orders.
23The letter informed the mother that the father and his family would be moving to [the Eastern states] in the near future. A variation of the orders was then proposed in relation to holiday time and that the mother share the costs of the travel.
24The mother responded to the letter through her solicitors, but the father immediately thereafter, on 19 October 2006, commenced these proceedings. [The father] then sought orders that the child reside with him although these had not been foreshadowed in the letter. He proposed the mother have contact with the child for almost all the April and September/October school holidays, half the July holidays and three weeks each summer holidays.
25The proceedings were commenced in the [the North-west] Circuit, but were transferred to Perth, by consent, on 22 November 2006. A family consultant, [Ms H], provided a report to the Court, having seen each party separately, the father in [the North-west], and the mother in Perth. The family consultant referred generally to the specifics of the arrangements, but also the communication difficulties between the parties. She suggested any orders be supervised by a Family Court consultant.
26The proceedings were first listed before me on 19 June 2007, when I made orders listing the matter for trial in September.
27On 3 August 2007, there was a hearing before me because the arrangements for time to be spent by [Christine] with her father during the trial, and in the September school holidays, were not agreed.
28Eventually, the matter proceeded to trial before me on 18 September 2007. The father was self‑represented at trial. The father’s wife, [Ms K], gave evidence from [the Eastern states] by videolink.
29I required the parties to attend a conference with a family consultant, [Mr P] who reported to the Court that it appeared the child had some anxiety about the ongoing conflict between her parents.
30At the conclusion of the hearing I made the following orders:
1.The father attend the Relationships Australia Centre in [the Eastern states] and take any course that is then recommended by discussion with the counsellor at that course in relation to respectful and practical parenting after separation.
2.The mother attend either a parenting programme for separated parents, or a “Mums & Dads Forever” course.
31Judgment was otherwise reserved.
32I trust that the parties have complied with this order, but I will enquire further of them on the adjournment date.
33The mother sought, by a Form 2 application filed 6 November 2007, to re‑open the proceedings, as it was said enquiries had been made of the child’s school, and the headmaster had said that the child had not received letters or parcels from any source posted to the school, contrary to the father’s evidence. I permitted very brief re‑opening to permit the mother to file an updating affidavit. The father sent a response by facsimile received on 21 November 2007. He said he had not received advice of the listing before the hearing date, which I accept was probably the case, and was quite rude to the mother’s solicitor about her actions. He says the material, a picture from his son, [Ben], was provided to a previous school teacher. Frankly, this issue is only marginally relevant to my determination, and is just another example of the parties’ poor relationship.
The father’s proposals
34The father’s position was that he intended to be largely a “stay at home dad” in the future so he could look after both [Christine] and his son [Ben]. However, he would take on part time work in the [the Eastern states]. At the time of trial, he had still been working in [the North-west] but he intended to cease this employment shortly after trial. His present wife [Ms K] is engaged in full time employment with [a bank].
35All of [Ms K]’s family, and most of his family, will be living in [the Eastern states].
36As to his financial circumstances, the father says he is able to cease work as the family is “financially stable”. At trial, he did not know what his income would be. He and his present wife are building their own home and own an investment property in [the Eastern states] - their equity in these properties exceeds $1,000,000. The father’s wife [Ms K] earns about $55,000 per annum. He and his present wife, with partners, have purchased a [business] near Perth, and this is why he is likely to visit Perth fairly regularly.
37The father’s complaints about the present position was that the mother had insisted on strict compliance with the orders, and totally lacked flexibility when this was required because of the practical problems of fitting in with other commitments, flight times, etc. Since separation, he says he has had to take legal action on several occasions to gradually obtain an extension of the time he is to spend with [Christine]. He believes that the mother does not encourage his relationship with [Christine], and the child is made to feel guilty about spending time with him, and maintains telephone contact has been very difficult.
The mother’s proposals
38The mother proposed that the child will continue to live with her and spend holiday time, and some weekends, with the father if he comes to Western Australia.
39The mother and [Mr V] live in a four bedroom, two bathroom home, which they are purchasing. [Christine] has been attending [the local] Primary School since kindergarten, and the mother proposes that she continues to attend this school. [The mother] and [Mr V] have built a home in that school zone so the child would not have to change school. [Christine] is progressing well. She plays tennis, including on Saturday mornings, at a local club and also plays basketball.
40The mother’s complaints about the present position are that the father is demanding and wants to change arrangements, when she is prepared to abide by the court orders and does so. She accepts [Christine] enjoys spending time with her father.
41Her financial position is that she is not in employment. Her partner, [Mr V], is in partnership with others in a [store] in which he invested about $100,000. She and [Mr V] are purchasing their own home, and she also has an investment property in which she says she has an equity of about $240,000.
Relevant factors
42Section 66 of the Family Court Act 1997 provides:
(1)The objects of this Part are to ensure that the best interests of children are met by -
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests) -
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
43Section 66A provides, in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
44Pursuant to Section 70A:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in –
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence. …
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
45It was not in dispute that the parties should continue to have equal shared parental responsibility.
46Section 66C provides that in determining what it in the children’s best interests, the court must consider the matters set out in subsections (2) and (3).
47The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
48Both parents accept that it is to the benefit of [Christine] to have a meaningful relationship with both her parents, and both have facilitated this arrangement. Although the parties have been involved in legal proceedings over a lengthy period, court orders have generally been complied with by both parties. The main problem in maintaining a close relationship between the child and her father has been the physical distance separating the parties.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
49Neither party suggested that this was a relevant issue in this case.
50The additional considerations are:
(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;
51[Christine] is eight years of age, and neither party has suggested that her views should be independently canvassed. It was accepted, in the circumstances, that her views should bear little weight.
52There was no suggestion that [Christine] does not enjoy being with both her parents and their families. The father’s evidence is that [Christine], when with him, says she would like to stay longer and would like to live with him one day.
(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);
53The child has a loving relationship with both her parents. I accept that her relationship with her mother is closer than that with her father, as she has always lived with her mother since separation, when she was 10 months old.
54It was not in dispute that the child has a very good relationship with her half siblings, and at least a reasonable relationship with her parents’ partners. The mother blames [Ms K] for the parties’ problems and neither has spoken to each other since 2001, when [Ms K] admits calling [the mother] an “evil so and so” when, I believe, the mother had put the child’s gym class ahead of seeing her father on one occasion.
55The mother says that the child does not seem to have a particularly good relationship with [Ms K], and is not affectionate to her father when she greets him. This is hardly surprising if the child is in front of her mother.
56The mother’s parents and her aunt, uncles and cousins live in Perth, and [Christine] has a good relationship with them.
57The father’s mother and stepmother have lived in [the South], as does some of his extended family. The father has taken the child to visit his family in [the South] occasionally, but usually has spent time with [Christine] in [the North-west], and sometimes in Perth or at the [business]. The father’s evidence is that his mother and other family members are moving to [the Eastern states], so [Christine] will be able to spend time with them there.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
58Both parents criticise the other in this regard – the mother was concerned that, should the child live with her father in [the Eastern states], that he may not encourage a close and continuing relationship between the child and her mother. [The mother] says that she has had difficulties speaking to the child by telephone when [Christine] is staying with her father.
59The mother says that she encourages the child’s relationship with her father and his family and, in particular, encourages the child when she is going to spend time with her father and his family.
60The father says that the mother has not given the child’s relationship with him sufficient priority, and has done her best to discourage it. He says she has made it difficult for him to, for example, maintain telephone and weekend contact by her inflexible approach.
61In his claim for the child to live with him, I consider the father was underrating the importance and closeness of the child’s relationship with her mother. Both parties have largely complied with court orders and both have taken the necessary steps to facilitate the child’s relationship with the other parent. However, their ability to genuinely and openly encourage this has been hampered by their very poor relationship and their inability to freely communicate with each other.
(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 her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom she has been living;
62The child has been used to living with her mother, and spending gradually increasing times with her father, so that at the time of trial, she was spending half school holidays with him, and some fairly frequent additional time in the Perth area with him, and sometimes his family.
63I accept that it would have a major effect on the child to be separated from her mother, and the rest of the mother’s family for the whole of school terms, and such a major change is not warranted in the circumstances. I accept that the father did not fully consider the likely impact on the child, or if he did, did not place sufficient weight on it.
(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;
64Arrangements for the child to spend time with her father have always had practical difficulties because the mother has lived in Perth since separation and, until recently, the father lived in [the North-west]. Early in 2007, the father and his family moved to [the Eastern states]. To date, the father has paid all the costs associated with the child spending time with him in [the North-west] or [the Eastern states]. The move to [the Eastern states] has meant some increase in the expense and difficulty, in making practical arrangements for the child to spend time with her father, largely because of the limited number of direct flights. The evidence was the cost of a return flight is about $800 and there are two direct flights per week, both ways, on Friday and Sunday in the late evening. The child has previously travelled unaccompanied and, because of the flight times, is readily able to sleep on the flight.
65The father’s evidence is that he and his family moved to [the Eastern states] because his wife wishes to live in [the Eastern states] as her family live there. He claims that the mother should share in the costs of travel, partly because, in the future, he will be earning a much more modest income, and because he has done it up to now.
66The mother’s position was that, as she is not working, she has no capacity to contribute to the costs of the child’s travel between Perth and [the Eastern states].
67Both parties are quite financially secure, and have some investment income, and substantial capital and can afford the costs of travel.
(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;
68It was not suggested that either family is not able to care for the child’s physical and material needs. The mother claims that the father has not demonstrated he is able to provide for all the child’s emotional and intellectual needs. I accept that in proposing the child’s change in residence, he was not showing a capacity to care for all the child’s emotional needs.
69In general, there is no serious suggestion that [Christine] is not well cared for in both families.
(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;
70[Christine] is a happy healthy child and has no unusual characteristics which are relevant to my determination. The mother says that she is quite shy. She is progressing well at school.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
71The mother is primary caregiver of the child, and claims that she has always been very responsible in her care. Her criticism of the father is that he has a very negative view of her and she says that the father does not promote the child’s relationship with the mother in that his rude and patronising to her, particularly if he wishes to vary the arrangements for the child.
72In return, the father also claims to have been a responsible parent in every respect, and criticises the mother for being negative in her approach to him, and not being flexible in her approach.
73[The father] obviously considers that, particularly since he has lived physically distant from the child for most of her life, when he is available to spend time with her this should take priority over other activities. There have been occasions, for example, a gym lesson and a football match, where the mother gave the child’s involvement in these priority over spending time with her father.
74The mother says the father should comply with the court orders, particularly in giving her three weeks’ notice of weekend visits.
75While both parties are caring and committed parents, they have, unfortunately, allowed the problems in their relationship to reduce their focus on what is really best for [Christine], which is to have meaningful relationship with both her parents, and for her not to be torn between her parents, and feel involved in a conflictual situation.
(j)any family violence involving the child or a member of the child’s family; and
(k)any family violence order that applies to the child or a member of the child’s family, if —
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
76It was not suggested these factors were relevant.
(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;
77The father has commenced proceedings on several occasions, and it is possible that unless he obtains the order he seeks, he will institute further proceedings. Now he is settled in [the Eastern states], I consider it important, in the child’s interests, for there not to be further proceedings about [Christine], unless there is a very significant change in circumstances.
(m)any other fact or circumstance that the court thinks is relevant.
78Any other relevant factors will be referred to in my conclusion.
79Section s 66C(4) of the Act provides;
Without limiting subsection (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents —
(a) has taken, or failed to take, the opportunity —
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent —
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
80The parties have a very poor relationship, and since 2001, have only communicated by letter. The mother says that the father has provided minimal information to her about his circumstances, but she has kept him informed about major long term issues in relation to the child, for example, change of school, or residence. The mother says that the father has not always contacted her to request time with the child when he has travelled to Perth for business, alleging that the mother would not agreed to his spending time with the child if the request was made less than three weeks prior to the visit, as this is the amount of the notice required in the previous orders.
81The father also alleges the mother does not facilitate his having telephone contact with the child, but this is denied. The mother says that, in turn, the father has not been cooperative in facilitating the child speaking to her on the telephone when she is with her father on visits.
82The father’s position is that he accepts that he has been informed about major long term decisions, but has not been involved in decision making. He has spent time with the child as much as practicable, having regard to the distance between the parties. I accept that this is generally the case. He has taken the opportunity to communicate with the child as far as reasonably practicable.
83As to the parties’ fulfilment, or failure to fulfil their obligation to maintain the child, the father has paid child support pursuant to assessments. The mother (but really, in more recent times, her partner, [Mr V]) has otherwise supported the child. At trial, the mother’s income was a family tax benefit of approximately $360 per fortnight. At trial, the child support assessment was $293.17 per month, and has generally been a bit less than this. In addition, the father has incurred all of the costs of travel.
Conclusion
84The issue to be decided is whether it is in the child’s best interests, having regard to the relevant factors to which I have referred, and all the evidence, for the parenting orders to be varied, to some extent, as proposed by both parties.
85Both parties, to some extent, are at fault for the problems which have occurred over the parenting arrangements. Both parties have some blame for the lack of communication and the lack of respect between them. The father has complicated matters by his move to [the Eastern states]. He has placed the mother under unnecessary stress, and caused her expense by the ongoing legal proceedings. He has been unnecessarily rude to her when some of the difficulties have been caused by his wish to see [Christine] outside the terms of the orders, for example, with less notice than required.
86While the mother can rightly say she has complied with the orders, there should have been a more flexible approach. The mother has, by her actions, not been fully prepared to accept the great importance of the child’s relationship with her father, having seen the father’s visits, to some extent, as an intrusion.
Parental responsibility
87It was not in dispute that the parents should retain joint parental responsibility, despite their poor relationship.
Residence
88I have already said that I am not satisfied that there has been any change in circumstances such that it is in the child’s best interests for her to move to [the Eastern states] and live with her father and his family.
89I therefore have referred only to the proposed orders from the father’s minute as to what should occur if the child is living with the mother. I appreciate this was the father’s secondary position.
The arrangements for the child to spend time with her father
90The present orders are fairly detailed and extensive, and were largely made in July and August 2004, after substantial agreement was reached between the parties, and some further orders were made at a defended hearing.
91I have already referred to the broad terms of the orders.
Mid year school holidays
92The present orders provides for the child to spend time with her father for the first week of the April/July and September/October school holidays, for the first week of each of the holidays from 8:00 am on Day 1 until 4:00 pm on Day 8, but subject to the timing of Easter, as the father is to have the child over Easter in alternate years. In the event Easter falls during the April school holidays and the father has Easter “contact”, then the father was to have contact for one week during the April school holidays and the week should include Easter contact. In the event Easter fell during the April school holidays, and it is an intervening year when the father does have Easter contact, then the father was to have contact for one week during the April school holidays, excluding Good Friday, until Easter Monday.
93In his minute, the father sought that he have “contact” with the child for the whole of the April and September/October school holidays, commencing on the Friday from 4:00 pm after the school term ends, and concluding two days before the next school term resumes. In relation to the July school holidays, the father proposes that he have contact for half of the holidays from Friday at 4:00 pm on the day school term ends and concluding on the following Saturday.
94In her minute, the mother agreed that the child could spend time with her father for the April school holidays and the September/October school holidays in 2008 and alternate years thereafter, commencing on the first Friday after the school term ends and concluding on the last Friday before the next school term resumes for each of the term holidays. In the intervening years, the father should spend time with the child for almost all the July school holidays, but spend time with the child in July in the alternate years.
95The mother proposed, as an alternative, that the father spend the first week of each of the April/July and September/October school holidays each year with the child from the first Friday after school term ends until the second Friday of the school holidays.
96All the mother’s proposals in relation to the father spending time with the child over school holidays were conditional on the father paying for the cost of transport, and the child, if practicable, flying direct between Perth and [the Eastern states].
97It is clear that it is preferable for there to be a regular and fixed arrangement for the division of the holidays, as there have been significant problems in the past, also regarding the notice provisions. I regard it as being preferable for [Christine] to spend time with her father, and his family, and half-siblings in [the Eastern states] each school holidays, if practicable. I am not satisfied on the minimal evidence in this regard that there is a need for a “clear” holiday without the child visiting her father. There is a “clear” run of at least three weeks every year in the summer when this occurs. However, I have concluded, since I am requiring the father to pay the airfares, that it will be his choice as to whether he would seek that the child miss spending the July holidays with him in a particular year, and then he have nearly the whole of the September/October school holidays with her. In fixing times, it is necessary to take account of the fact the flights each way are on Fridays and Sundays.
98I have decided to delete the specific Easter provisions so the father is then more likely to have [Christine] with him over Easter. This reduces the uncertainty and complexity of the arrangements.
Christmas and summer school holidays
99The present orders provide for the child to spend three weeks with her father in the summer holidays, commencing on 24 December 2005, and with specific orders to cover transport arrangements to and from [the North-west]. In 2006/2007 and alternate years thereafter, they are to commence not before 27 December.
100The father proposed that in 2007 and each alternate year thereafter, he have contact with the child for three weeks from 27 December, and in 2006 [really 2008] and each alternate year thereafter for three weeks from Friday at 4:00 pm after the school term ends.
101The mother proposed that in 2007/2008 and in alternate years thereafter, the father spend time with the child for three weeks from the first Friday or Sunday immediately before 24 December and concluding on Day 21 after the commencement of the father’s time with the child.
102In 2008/2009 and in alternate years thereafter, she proposed the father have the child for three weeks from the first Friday or the first Sunday after Christmas Day with the child returning to Perth on Day 21 after the commencement of the father’s time with the child.
103There is therefore no real argument between the parties in this regard. The limitation would appear to be the availability of the direct flights, so the time should work around these, with the father to give considerable notice of his intentions.
104The father had sought the holiday handover at 4:00 pm, but I am not sure why this was, as the flights leave in the late evening. If the father has arranged someone well known to the child to collect her, then that is fine, but otherwise, if the father is not here to accompany the child, the mother should take her to and from the airport. I will hear further submissions on this point if necessary.
During term time
105The present orders provide for the father to have contact with [Christine] for four weekends during the school term from either 4:00 pm Friday or 8:00 am Saturday until 4:00 pm the following Sunday, or in the event of a long weekend, to 4:00 pm the following Monday provided weekend contact does not take place on consecutive weekends. However, the father is to give the mother at least three weeks’ written notice of his intention to exercise contact - this presently extends to any contact, including holiday contact.
106Now the father has moved to [the Eastern states] and intends to cease his previous employment, it is possible he will be travelling to Perth less frequently, so may have less weekend contact with the child, but he and [Ms K] do have the interest in the [the business] which he will still be visiting.
107The father proposed the orders provide that he have additional contact time with the child if he travels to Perth for a period not exceeding five days upon giving the [mother] not less than five days’ notice of [his] intention to travel to Perth. During that period of contact, the father must ensure [Christine] attends school.
108The order sought by the mother is that the present provisions largely continue, and the father spend time with the child for four weekends during each school term, to extend to Monday on a long weekend, provided such weekend time with the child does not take place on consecutive weekends and takes place in Western Australia. The mother proposed that the current orders requiring three weeks’ written notice of the father’s intention to spend time with the child continue.
109The father’s proposal is very open-ended, has no limitations on the number of occasions it would occur, and even if the child is attending school while staying with the father, could unsettle her stability at school.
110The mother’s requirement that the father give three weeks’ notice, even though previously agreed to, has led to a lot of disputes between the parties, and I have concluded is an unnecessarily long period in the circumstances. I consider 10 days’ notice should be sufficient for a weekend, and three days for a visit during the school week. I consider it would be in the child’s interests, if the father is in Perth, for him to collect her from school, so he can discuss her progress with her teacher, if practicable.
111As to weekend sporting activities, if the father is in Perth, [Christine] should be able to attend, for example, her tennis with him, but I do not intend to insist this occur, having regard to the fact that the father’s visits are not likely to be frequent.
Costs of travel
112The father has been responsible for meeting all the costs of transporting the child. The father seeks the following order:
The parties share the costs of the holiday time … such that the mother pays for the cost of the air travel for the April and September/October school holidays and the father pays for the cost of the air travel for the April and December school holiday period with each party to give the other a copy of the itinerary showing the booked flights not less than four weeks prior to the intended period of travel.
113The mother’s orders in relation to school holiday time to be spent by the father with the child were conditional on:
•the father pay the costs of travel for the child;
•as far as practicable, for travel between Perth and [the Eastern states], the father shall book the child on a direct flight between Perth and [the Eastern states].
114It was not in dispute that direct flights should be used if practicable.
115There was some evidence as to the parties’ financial positions, to which I have already referred. Both parties are in quite a comfortable financial position, the father more than the mother, although I appreciate the father’s wife had some assets. The father’s child support assessment is at a very modest level and obviously takes into account his commitment towards the costs of travel for the child, which is estimated to be $3,200 per annum. In these circumstances, I accept that he should be required to continue to meet all of the costs of travel, even if he has to do so from capital.
Telephone contact
116The present orders provide as follows:
•the father have telephone contact with the child each Sunday between 6:00 pm and 7:00 pm, such call to be initiated by him;
•the father to install, and keep installed, a home-link facility on his telephone and in event that the child is unable to be at home to take the telephone call from the father on Sunday evenings, the mother to ensure the child calls the father on the home-link number in lieu of the father telephoning the child;
•the mother to assist the child to telephone the father on the home-link telephone number at any other time the child wishes to telephone the father;
•the mother shall have telephone contact with the child on the Thursday and at least two other occasions each week during school holiday contact periods, such telephone calls to be initiated by the mother at the mother’s expense.
117The father seeks the following orders:
1.The father have telephone contact with the child three times per week between the hours of 5:00 pm and 6:00 pm WA time, Sunday, Tuesday and Thursday, with the father to initiate the call and the mother to ensure that [Christine] is available to receive the call;
2.In the event [Christine] is not available to receive the call, the mother must return the call in lieu of the missed call.
3.The mother have telephone contact with [Christine] when [Christine] is spending time with the father three times per week between the hours of 6:00 pm and 7:00 pm Queensland time, Sunday, Tuesday and Thursday, with the mother to initiate the call and the father to ensure that [Christine] is available to receive the call;
4.In the event [Christine] is not available to receive the call the father must return the call in lieu of the missed call;
5.The father have telephone contact on Christmas Day between 8:00 am and 9:00 am WA time. The mother is to ensure that [Christine] available to receive the call.
6.The mother have telephone contact on Christmas Day between 9:00 am and 10:00 am Queensland time if the child is spending time with the father. The father is to ensure that [Christine] is available to receive the call.
7.The father have telephone contact on the child’s birthday between 5:00 pm and 6:00 pm WA time. The father is to ensure that [Christine] is available to receive the call.
8.[Christine] be permitted to telephone either parent whilst in the care of the other party if she wishes and that party to facilitate the making of such telephone call.
118The mother proposed that the current orders in relation to the father having telephone contact each Sunday between 6:00 pm and 7:00 pm WA time, such call to be initiated by him, continue, and that the mother have telephone contact as per the present orders when the child is staying with her father and agreed that the child should be permitted to telephone either parent while in the care of the other parent if she wishes and that that parent is to facilitate the making of such a telephone call. She also sought an order that such telephone call is not to be made reverse charges to the parent being called.
119I certainly agree that each parent should bear the costs of the calls from their respective telephones.
120Generally, I consider the father’s proposals are too limiting and the mother’s proposals slightly too restrictive. I accept that sometimes telephone calls with young children may be a little forced, and I would encourage email contact, partly because it does not have time limitations. I was informed this would be practicable, and the parties can clearly afford it. Webcam contact would be desirable.
121The intention is that the father should be able to ring and speak to the child on other occasions than just on Sunday evenings, which has been the arrangement for a lengthy period, but I will not require the child to be available to take calls at any other particular time. Presumably, she is usually likely to be home in the evenings, during the school week. Obviously, each parent should have an opportunity to speak to the child on Christmas morning.
Other issues
122There were really no other issues in dispute as to the proposed orders.
123Both parties should have contact numbers for each other at all times, but I am not requiring the father to provide the mother with as extensive information re the child’s whereabouts on weekends, as he should be trusted to properly care for the child, and the mother is not required to do so.
124I have extended slightly the requirements for the parties to keep each other informed regarding the child. I would prefer if the parties, when the child is with them, provide the other with occasional email updates, as parties who live closer together would do through a communications book.
125There have been some problems about the father believing the child has not received items he has sent her, and going through the school. This should not be necessary, and I will make an order to ensure letters, parcels and other items are delivered to her.
126The orders will be supervised by a family consultant to whom the parties can turn, at first instance, to help sort out any problems which arise. Otherwise, any further application may be listed before me.
I certify that the preceding [126] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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