D and S

[2008] FCWAM 4

JURISDICTION : MAGISTRATES COURT OF WESTERN AUSTRALIA - 150

TERRACE ROAD

ACT : FAMILY LAW ACT 1975

FAMILY COURT ACT 1997

LOCATION : PERTH

CITATION : D and S [2008] FCWAM 4

CORAM : FLEMING M

HEARD : 21 APRIL 2008

DELIVERED : 29 APRIL 2008

FILE NO/S : PTW 6735 of 2007

BETWEEN : D Applicant/Father

AND S

Respondent/Mother

Catchwords:

Children - with whom child lives - relocation

Legislation:

Family Court Act 1997 s 66, s 66A, s 66C

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 & A Relocation Approach (2000) FLC 93-035
H & L (2000) FLC 93-036

1The application before this Court for a final determination is that of the father, [Mr D] (“the father”), filed 24 December 2007 wherein in his substantive application he sought that the child of this relationship, [M] born [in] September 2004, spend equal time with each parent. In that application, in addition to this order, he sought the following orders:-

“1. That the child [M] born [in] September 2004 (‘the child’) spend equal time with her respective parents and that she live with each of her parents for alternating one week periods.

2.That the parties have equal shared parental responsibility for the child.

3.That the parties be restrained and an injunction be granted restraining them from changing the child’s residential address without 28 days’ prior written notice to the other party.

4. Each party:

a. shall inform the other party of any serious injury or serious health problem suffered by the child whilst in that party’s respective care;

b.inform the other party by telephone, as soon as practicable, of any medical or other emergency concerning the child;

c. keep the other party informed of a landline telephone number and address at which child, or anyone having responsibility for her day-to-day care, can be contacted.

5.The mother deliver the child to the father’s residence at the commencement of any periods when the child lives with him and the father deliver the child to the mother’s residence at the conclusion of such periods.

6.Each party have reasonable telephone communication with the child whilst she is living with the other party.

7.Such further or other orders as this Honourable Court deems appropriate.”

2In an accompanying Application in a Case he sought, on an interim basis, inter alia the following order:-

“Until further order, the mother be restrained from relocating [M] out of the Perth Metropolitan area.”

3The respondent mother, [Ms S] (“[the mother]”), filed her responding applications on 7 January 2008. In both her substantive and interim applications she sought the same orders and those orders were as follows:-

“1. That the Applicant’s Application be dismissed.

2. That the child of the relationship, namely [M] born [in] September

2004 (“the chid (sic)”) live with the mother and the mother have sole responsibility for the child’s day to day care, welfare and development whilst the child is in her care.

3. That the mother be permitted to relocate with the child to

[the South of the state].

4. That the father spend time with the child as follows:

(a) until the child commences full time compulsory schooling, every alternate weekend from

6.30pm Thursday until 4pm Sunday afternoon; thereafter, each alternate weekend from 6.30pm Friday until

4pm Sunday afternoon

(b) Such other times as the parties agree.

5.For the purposes of child handover in relation to clause 4, the mother to drop off the child to the father at [a halfway point] on at the commencement of the spend time with period, and collect the child from that place at the conclusion of the spend time with period.

6.That each party keep the other party informed of a mobile or landline telephone number and address at which the child, or anyone having responsibility for her day to day care, can be contacted.”

4 On 8 January 2008 the following orders were made:-

“1. Until further order of the Court, the Respondent, [THE MOTHER] , be restrained an injunction is hereby granted restraining her from changing the principal place of resident (sic) of the child, [M] born [in] September 2004.

2.The said application otherwise be adjourned to a Case Assessment Conference on 25 January 2008 at 11.15am and be transferred to the Family Court of Western Australia.”

5The orders were not opposed at that time by [the mother] on the understanding that at that stage she was prepared to await the outcome of a judicial determination in the matter and would remain in Perth to await that outcome.

6At the Case Assessment Conference on 25 January 2008 it became evident that the central issue in this matter, that is the issue of relocation to [ the South of the state], was not negotiable by the parties and accordingly the matter would need to be set down for a final hearing. This hearing took place on 21 April 2008 and this decision was reserved.

7At the final hearing both parties were self-represented and the only witnesses they called were themselves. There was very limited cross-examination. The issue between the parties was self-evident.

History

8[The father] is an accountant and is 28 years of age. [The mother] is a stay-at- home mother and is 25 years of age. The parties commenced their relationship in [the North of the state] in late-1999/early-2000. They moved to Perth in 2001 and resided together as a couple until late-2005. As stated, [M] was born [in] September

2004.

9After separation the parties had an informal arrangement wherein [the father] saw [M] on what eventually became an alternate-weekend arrangement and at such other times as agreed between the parties.

10 [The mother] says that [the father] then met [B], his current partner, in early-2006 and the time that he then spent with [M] was rearranged so as to coincide with the time that [B] spent with her daughter, [E]. This became basically every second weekend from Friday evening through to Sunday afternoon. [The father] says that this was so but to a large extent the time that he spent with [M] was dictated to him by [the mother]. [The mother] says that she allowed him extra time but was not happy with overnight contact other than the above arrangement because it interfered with the child’s routine given her age.

11 In May 2006 [the mother] decided that she did not enjoy the Perth lifestyle and contemplated moving back [to the North]. She says that had she done this she realised that the time [the father] would spend with [M] would be materially affected. On that basis she decided that [the Southern town] was a country location where she would like to live and it would provide the lifestyle that she wanted for herself and [M]. She indicated it would also allow [the father] to spend regular time with [M]. To that end, in July 2006 she moved to [the Southern town] with [M]. [The father] continued to spend the same time with [M] every second weekend. The parties would meet at the roadhouse [half way point] for the handover.

12 In August 2007 [the mother] and [M] moved back to Perth. [The mother] said that within a short period of time she realised that she had made the wrong decision and told [the father] that she would be moving back to [the Southern town] once her six-month lease on her residence was completed. The parties endeavoured to arrange mediation but this, however, did not occur or did not resolve the matter. The parties have tried to resolve the matter themselves without success.

13 During the time that [the mother] was back in Perth the contact arrangements that were occurring whilst she was in [the South] were essentially the same. [The mother] said she made [M] available to [the father] at other times. She indicated that she did not allow further overnight contact because of the age of the child and the fact that it would upset her routine. [The father’s] position is that he wanted extra time but was largely, again, subject to the dictates of [the mother] in relation to the extra time he was to spend with [M].

14 After the negotiations failed [the father] filed his documentation and the interim restraining orders were made that would govern the situation pending this final hearing.

15 The injunction has caused difficulties for [the mother] in that she had completed her lease and has had to reside with her grandparents pending this determination as to whether or not she will be able to relocate to [the South]. The parties did, however, agree on 4 March 2008 to allow her to leave the Perth metropolitan area with [M] for a period of time from 17 March 2008 to 11 April 2008 to take the child to [the North]. This was to take some pressure off her current housing arrangements with the elderly relatives. The parties agreed make-up time for [the father] given that he would miss time with the child because of the [Northern] visit.

The issues

16 The issues in this case are relatively straightforward. They are as follows:-

1. Should [the mother] be allowed to relocate to [the Southern town]

with [M].

2.In the event that that does occur, what time should [M] spend with her father.

3.In the event that the Court does not allow the relocation then is it appropriate that the child spend equal or significant and substantial time with the father, that is, should there be a shared arrangement insofar as time spent with each parent and if not how much time should [M] spend with her father.

4.There are other issues in relation to communication and the like but I believe that these issues will be resolved between the parties once the central issues have been determined.

The competing proposals

[The mother]’s proposals

17 [The mother]’s proposals are largely contained in her affidavit that was sworn on

14 April 2008. There was some suggestion that the affidavit may have been filed late but in any event I allowed the late filing of the affidavit.

18 At paragraphs 32 through to 42 of her affidavit she deposes as to why it is in the child’s best interest to allow her and her mother to return to live in [the South]. She says that the general lifestyle and the like are in the best interests of the child. More specifically she says as follows:-

•That in living in the country [M] would be able to grow up and enjoy a similar lifestyle that her parents enjoyed growing up in the country.

•She says that she has the support of her family and in fact some of [the father]’s family for the move to the country.

•That she has, during the period of time that they resided in [the Southern town], become involved in the local community. In the 18 months that she was residing in [the town] she was involved in various activities and [M] was involved in the [local] playgroup and story time at the [local public] library.

•That during the period of time they resided in [the town] [the mother] worked part time and [M] spent time at the local childcare. She developed relationships with other children which would be rekindled upon a return to [the Southern town].

•She also indicates that the schooling facilities in [the Southern town]are of a high standard and would allow a continuity of schools at which she would attend with her school friends.

•That whilst she is well-educated (she has two university degrees) she has made a conscious determination that she would remain a stay-at-home mother so as to look after [M] at least until school age. She indicates that she can and has in the past been able to work casually or find part-time employment in the [Southern town].

•She also indicates that the costs of living in [the Southern town] are cheaper than Perth and that she already has been able to secure cottage accommodation one street back from [the beach]. She says the costs of living in the country are less than Perth and there is also the possibility that she may be able to purchase a property in [the town].

•She also makes the point that access to [the Southern town] from Perth is now relatively straightforward given the extensions to the freeway and that, in any event, the child has been used to country travel for a large proportion of her life.

•In relation to the other issue, that is, in the event that the Court does not allow the relocation she has real concerns about the time that [the father] wishes to spend with [M]. She believes that the arrangements that he proposes for equal

time with each parent, or as an alternative to equal time significant and substantial time, would cause a disruption to this young child’s routine and would not be in her best interests.

•She states that she is very flexible in relation to the time which [the father] would spend with [M] and her proposals include an additional night on the alternate weekends commencing on Thursday evening rather than Friday evening until such time as [M] attends school in approximately two years’ time. She is also open as to other times that [M] can spend with her father. These, of course, are issues that need to be determined once the issue of relocation has been determined because this would obviously impact upon time to be spent with each parent.

[The father]’s case

19 [The father] maintains throughout his affidavit, that was sworn on

29 February 2008, that he has only been precluded from spending extra time with [M] because of the dictates of [the mother]. His concern is that, in the event that she does return to [the Southern town] then he will not be able to have a proper degree of contact with the child. He says that the mother’s proposal of four or six nights a month is not sufficient to allow a proper bonding between father and daughter.

20 His case is essentially as follows:-

•The time offered by [the mother] is not sufficient to allow the proper bonding of father and daughter.

•[The mother] has no family ties in [that town] and indicates that she has no employment prospects or accommodation. Under cross-examination it became apparent that he had no direct knowledge in these areas.

•He believes that the idea of bringing [M] up in a country environment should be subsidiary to the consideration of the proper time that a father should spend with his daughter.

•He indicates that there has been no consideration given to schooling or accommodation although these issues have been specifically addressed by [the mother] in her affidavit.

• He makes the point that all of the so-called attractions of the [the Southern town]

can be equally accommodated by the child remaining in Perth with the

additional benefit of being able to spend a proper amount of time with her father and his now extended family, his partner, [B], and her daughter, [E].

•The second limb of [the father]’s argument is that in the event that the Court determines that the child should remain in Perth, he believes that he should have additional time with [M] over and above the current arrangements. At paragraphs 37 through to 46 of his affidavit he deposes to the amount of time that he should spend with the child. Essentially a lot of the times will be able to be agreed but he does indicate that he is prepared to reconsider his proposal for equal time if [M] remains in Perth and puts forward an alternative that would provide him receiving at least a substantial and significant amount of time with the child.

The law

21 In 2002 the Full Court of the Family Court of Australia considered the issue of relocation and the principles to be applied by the Courts in relation to those matters. The two cases that dealt with the issue of relocation were H & L (2000) FLC 93-036 and A & A: Relocation Approach (2000) FLC 93-035. These decisions were decisions that were considered in light of the determination of the High Court in AMS v AIF (1999) FLC 92-852.

22 As a result of these cases, the Full Court determined that the following principles need be considered in cases of potential relocation:-

•The welfare and best interests of the child remains the paramount consideration but is not the sole consideration.

•A Court cannot require an applicant to demonstrate “compelling reasons” for the potential relocation and the paramountcy principle remains intact.

• The Court must evaluate each of the proposals advanced by the parties.

• A Court is not, however, bound by these proposals.

•The Court cannot proceed to determine issues in a way that separates the issue of relocation from that of residence and the best interests of the child. There should be no dissection of the case into discrete issues namely, a primary issue as to who should have residence and a further or separate issue as to whether or not a relocation should be “permitted”.

•The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child’s best interests.

•It is necessary to follow the legislative directions of section 60CA and section 60CC of the Family Law Act (or in this case its equivalent under section

66A and section 66C of the Family Court Act). The wording of section 60CC(2) (in this case section 66C(1)) makes it clear the Court must consider the various matters set out in the subsections of that section.

• The object and principles of section 60B Family Law Act (in this case section

66A of the Family Court Act) provides a guidance to a Court’s obligations to consider the matters in section 60CC (section 66C Family Court Act) that arise in the context of a particular case.

23 The Full Court then indicated that a three-stage analysis should be undertaken:-

• The Court will identify the relevant competing proposals.

•For each relevant section 66C factor a Court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to section 66A.

•The matter of relocation should be weighed with all the other matters under section 66C and not be treated as a separate issue.

•As stated, the ultimate issue is as to what is in the best interests of the child and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.

•On the basis of the steps of analysis a Court will then determine and explain why one of the proposals is to be preferred having regard to the principle that the child’s best interests are the paramount but not sole consideration.

24 In evaluating the proposals the Court must have regard to the following issues:-

•That neither party bears an onus in relation to the issue of relocation and the whole determination is based on what is in the best interests of the child.

•A party’s right to freedom of movement – a Court must take this into consideration given a party’s rights under section 92 of the Constitution but again is only a factor in the overall determination.

•The Court must consider the proposals for maintaining contact in the case of relocation.

•When determining the matters under section 66A and 66C the Court must indicate which of the factors have attracted a greater significance so as to reach the conclusion.

25 In essence, therefore, no single factor should determine the issue of relocation but it must be considered along with all of the other factors mentioned under the relevant legislation.

Findings of the Court

26 As stated, a Court when making a particular parenting order must regard the best interests of the child as the paramount consideration (section 66A). In making that determination the Court is referred to section 66C of the Family Court Act that outlines the matters that need to be considered.

Section 66C(2) – Primary considerations

The primary considerations are:-

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.

27 In this particular case the only relevant primary consideration relates to the need to allow the child to have a meaningful relationship with each of her parents. In this case, because of the relatively short distance that [the mother] is intending to move from Perth there would be no significant dislocation of this relationship. This is especially so given that the proposals that [the mother] has put for contact are, in fact, to allow [the father] more contact than he currently enjoys under the existing framework that the parties have agreed. Had the mother proposed to relocate interstate or overseas then this may have had a material effect in itself but in this particular case I find that the projected move would not interfere with a meaningful relationship between father and daughter.

Section 66C(3) – additional considerations

(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

28 Given [M]’s age this subsection is not relevant as she is not yet four years’ of age.

(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)

29 The child obviously enjoys a good relationship with each parent.

In [the mother]’s case the majority of her family reside in [the North of the state] and on that basis the child would, in any event, have limited contact with that part of her family. In [the father]’s case there are extended family members both in Perth and [in the North] together with his current partner, [B], and her daughter, [E].

30 The proposals that had been put by [the mother] for contact would not, in this Court’s view, in any way affect the relationships with parents, extended family and friends.

(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

31 I find that each parent will encourage a proper and loving relationship with the other parent. On the evidence available in particular I find that [the mother] has adopted a proper approach in relation to this and, of her own volition, has put in place and encouraged contact between [M] and her father. She has, however, drawn some delineation and I accept her evidence in relation to the fact that she did encourage additional contact over and above the agreed contact but not on a nightly basis. I accept that given the age of the child that a certain routine and discipline is required. In particular, I was impressed with her example of [M]’s toilet training and how problems eventuated in the overnight contact because of the differing methods in which the parties were endeavouring to accomplish this toilet training. I do not find that in any respect has she attempted to not encourage contact with [the father] and, indeed, I find the opposite in that she has acted in a very proper way in encouraging [M] to spend appropriate amounts of time with her father.

(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

32 Whilst in an ideal world, and indeed this is reflected by the legislation, a child should spend as much time as possible with each parent. Pragmatically however, parties are entitled to freedom of movement and there is no doubt in this particular case that both the mother’s and the child’s wellbeing will be enhanced by a move to [the South]. For the mother to be compelled to remain in Perth against her wishes would only act, in my view, to affect her lifestyle and wellbeing which would no doubt impact on [M]. In this particular case, whilst the parties are some 270

kilometres apart (in the event of a relocation) arrangements can be put in place so as to ensure that [M] spends proper time with her father. There is nothing in the proposals that have been put by the mother that would preclude [M] spending proper time with and communicating on a regular basis with her father.

(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

33 There is no doubt on the evidence that both parents are equally able to provide for the child in this regard.

(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

34 Both [the father] and [the mother] grew up in the country. It is apparent that [the mother] has determined, having spent a significant period of time in [the South], that the lifestyle in rural Western Australia is her preferred lifestyle. She indicates that she and [the father] both grew up and enjoyed growing up in this type of lifestyle. She says that she will enjoy it and that [M] has already had a taste and enjoyed the lifestyle in [the country town] and its surrounds. To that end, it would be in the child’s best interests to reside in [the South.]. [The mother] did indicate that if the Court compelled her to remain in Perth then, given her financial position, she would be more than likely unable to obtain rental accommodation in the area that she had previously rented and would be compelled to reside in the outer suburbs of Perth which would not be her preferred option and would not, in hers and the Court’s view, be in the best interests of [M].

35 Insofar as the maturity aspect is concerned, I was impressed by [the mother]’s maturity, concern for her own lifestyle, the child’s wellbeing and lifestyle, and also her commitment to encouraging the relationship between [M] and her father.

36 Insofar as [the father] was concerned he did impress as being somewhat angry at the prospect of the relocation and the fact that he felt that he was disempowered in this situation and that [the mother] effectively made the decisions as to what time he should spend with [M]. To that end, I find that he appears to lack a little maturity and insight into this situation. [The mother] has a right to get on with her own life and if that means moving to [the South] then so be it. Whilst one can understand his concern as a father as to a limitation of time spent with his daughter, he should also reflect upon the fact that the time being offered, in fact, is more time than he is currently having and further, should reflect upon the fact that the child would enjoy growing up in the rural atmosphere as he in fact did as a child. I find that, to an extent, he is considering this scenario from only his point of view and, perhaps, has not had the perscapacity to stand back and consider what benefits would be derived by the child

residing in [the country town]. The very fact that [the mother] would feel comfortable would, in this Court’s view, also allow for a better arrangement between herself and [the father] in respect of time spent with [M].

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

37 Both [the father] and [the mother] are good parents. The Court could find no fault in relation to their attitudes to [M] and their acknowledgement of their responsibilities as a parent.

(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

38 I believe that the orders that I will propose that will allow for a relocation will and should materially circumscribe further litigation in this matter.

(m) Any other fact or circumstance that the Court thinks is relevant

39 The Court has touched on the advantages of the child residing in [the Southern town]. [The mother] has demonstrated, in this Court’s view, that accommodation, schooling, association with other children would be enhanced by this move. It also must be considered that [M] has in fact lived in [the country town] for the vast majority of the last two years or thereabouts. [The mother]’s proposals, therefore, are not “pie in the sky” proposals but arrangements that have been actively considered and lived for a period of some 18 months. I am left in no doubt that the proposals that [the mother] has put in her affidavits would, in every respect, be in the child’s best interests.

40 The Court is also required to consider that section 66C(4) and section 66C(5) Family Court Act as to whether or not the parents’ behaviour since separation should be considered in this case. I find that neither party’s conduct has materially affected this determination. Whilst [the mother] would say that [the father] has not availed himself of as much contact as he could, in all I believe that both parents have recognised their responsibilities and performed their obligations as a proper parent to [M].

41 I determine that the proposed move to [the South] by [the mother] with [M] is in the best interests of the child. I recognise the existing state of the law that [the mother] need not show compelling reasons for the move but must demonstrate to the Court that the decision to move, together with all other aspects of her care and obligations in respect of the child, do amount to an overall package that could be construed as what is in the best interests of the child. Having found that it is in the best interests of [M] to reside mostly with her mother, this would also include the relocation to [ the country town]. I have found that under the relevant subsections of section 66C of the Family Court Act that in almost each and every case a benefit would accrue to the child in accord with [the mother]’s proposals. The court also recognises a right of an individual to get on with their life after separation and a right to freedom of movement. There is no doubt in this Court’s view that in allowing [the mother] to

move to the [the South of the state] with [M] will have a positive benefit to all concerned. In addition, I determine that the proposals for contact as set out in [the mother]’s trial affidavit are proper under the circumstances and, in fact, amount to more contact than [the father] is currently having with the child. As with many relocation cases, there will be a degree of expense and inconvenience between the parties but on the balance the positive aspects of the move greatly outweigh the negative aspects.

42 In making this determination that will allow [the mother] to move to [the country town], the Court then need not explore the alternate proposals as set out in [the father]’s trial affidavit. Given the geographical factors, a Court cannot contemplate an equal or substantial and significant period of time with the child as contemplated by [the father] in the event that the child remained in the Perth metropolitan area. I find that the proposals as put by [the mother] are appropriate under the circumstances given the distance that the parties will be apart.

43 For these reasons I propose to allow the relocation and will, at the handing down of this determination, then deal with the precise orders that can be made for [the father] to spend time with [M] on the alternate weekends together with holidays and special days.

I certify that the preceding [43] paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court

Secretary