E and E

[2008] FCWA 32

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: E and E [2008] FCWA 32

CORAM: PENNY J

HEARD: 4 DECEMBER 2007

DELIVERED : 14 MARCH 2008

FILE NO/S: PT 6651 of 2006

BETWEEN: E

Applicant/Mother

AND

E
Respondent/Father

Catchwords:

Children's issues - residence and the time the husband spends with the children - husband seeks children return to [the Eastern states] - wife established with children in Perth - children to live with wife in Perth

Legislation:

Family Law Act 1975 - s 60B, s 60CA, s 60CC(2) and (3), s 61DA, s 65DAA(1) and (2)

Category: Not Reportable

Representation:

Counsel:

Applicant: Ms H Athanasiou

Respondent: Self Represented Litigant

Solicitors:

Applicant: Ferrier Athanasiou & Kakulas

Respondent: Not Applicable

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

Nil

1The husband and wife separated in December 2005 while they were living in [the Eastern state]. The wife moved to Perth to live with the two children of the marriage, [B], born [in] June 2000, and [O], born [in] December 2004. The husband says he consented to the wife coming to Western Australia to live, but only on a temporary basis. The wife says there were no conditions attached to her relocation to Perth. She has continued to reside in Western Australia since that time.

2In December 2006 she agreed that the children could spend two weeks with the husband in [the Eastern states]. They were to be returned to her on 21 December 2006. The husband refused to return the children, mainly, he says, because [B], then aged 6 years, wanted to remaining living in [the Eastern states]. The children were not returned until the wife commenced proceedings in the Family Court of Western Australia and obtained an order that the husband return the children on or before 19 January 2007.

3The husband opposed the wife’s application to return the children and filed an affidavit in support and a response in January 2007. After that time he filed no further affidavits. At a hearing in August 2007 he indicated that he would file affidavits from his partner and other witnesses. No affidavits were filed.

4The husband ran this case on the basis that it was “a relocation case”. He says as he did not give the wife permission to leave [the Eastern states], and despite the fact that she had been residing in Western Australia for almost two years before the hearing, the wife should not be given permission to live with the children in Western Australia. In his response filed in January 2007 he sought orders that the children reside with him.

5The wife’s position has always been that she relocated from [the Eastern states] in December 2005 because she was separating from the husband and wanted the support of her mother and other family members. She says while at one stage she considered returning to [the Eastern states] and reconciling with the husband, that that did not occur. She said the husband gave her $38,000 and his consent to leave [the Eastern states]. She says that the children should continue to reside with her and spend time with the husband during school holidays.

Background and history of the parties and the marriage

6The parties commenced cohabitation in [the Eastern states] in 1999, and married in February 2000. The child [B] was born in June 2000. During 2003 the parties had problems in their marriage and attended counselling. [O] was born in December 2004. In October 2005 the wife says the husband advised her that he had been having an affair with [Ms W]. The husband disputes that and says that he told her that he had a special friendship with [Ms W]. In any event, the parties agreed to separate in December 2005 when the wife came to Perth.

7In February and April 2006 the husband came to Perth for a few days each time to visit the children and stayed with the wife. In September 2006 the husband came to Perth to see the children, spent one night with the wife and another night in the wife’s accommodation with [B]. The wife stayed with [O] at her mother’s home. The father came to Perth to collect the children in December 2006 and failed to return them.

8From the time the children were returned to the wife in January 2006 until trial the husband had not attended in Perth to see the children, nor had he spent time with the children in school holidays as provided for in the orders made on 2 March 2007.

Law in relation to children’s issues

9S 60B of the Family Law Act 1975 sets out the objects of Part VII, that is the part of the Act dealing with children, and the principles underlining the objects. S 60B states as follows:

“(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).”

10S 60CA provides when deciding whether to make a particular parenting order in relation to a child, I must regard the best interests of the child as the paramount consideration. S 60CC(2) and (3) sets out primary and additional considerations I must take into account when determining what is in the child’s best interests.

11S 61DA of the Family Law Act 1975 states that 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, except in cases of abuse and family violence.

12S 65DAA(1) states that if a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, the Court must consider whether the child spending equal time with each of the parents would be in the best interests of the child and whether spending equal time is reasonably practicable, and if it is, consider making an order to provide for the child to spend equal time with each of the parent.

13S 65DAA(2) states that if there is an order for shared parental responsibility for the child and the Court does not make an order for equal time with each of the parents, the Court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child, and whether it is reasonably practicable, and if it is, to consider making such an order.

Best interests of the children

14I must consider what is in the best interests of the children before I can make a determination about the parties’ competing claims. S 60CC(2) of the Family Law Act 1975 sets out the primary considerations I must take into account when considering what is in these children’s best interests. The first of these is the benefit to the children of having a meaningful relationship with both of the child’s parents. If the children reside in Perth, there will be some difficulty in them having personal contact with the husband. The husband appears to have limited means and may not be able to afford to travel to Perth or to pay for the children to travel to [the Eastern states] to see him. That is not to say the children cannot have a meaningful relationship with the husband, but this relationship may have to be developed by way of telephone and, when the children are older, internet contact.

15The other primary consideration I must take into account is the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. While the husband has alleged that the wife has anger management issues, I am satisfied that the children will not be exposed to physical or psychological harm when in her care, for reasons I shall set out later in this judgment. If the children reside with the husband, I have very real concerns about whether he appreciates the importance of the wife’s role in the children’s lives, and the fact that she has, at least for the last two years, been the primary care-giver for the children. This was particularly obvious in the only affidavit sworn by him for these proceedings filed 10 January 2007. In that affidavit he was describing [O]’s behaviour while in his care in [the Eastern states]. [O] was only one year old when the wife came to Perth. She saw the husband for only a few days that year. Despite this he described her as:

“… [O] is showing no signs of missing the wife and has settled in and is happy and well cared for in my care.”

16Further, in relation to [B], he described the child as:

“Positively distraught at the prospect of having to return to Western Australia.”

17There was no evidence of [B] being distraught when he returned to Western Australia. I have real concerns that if the children lived with the husband he would not support the wife’s relationship with them and, in that event, they are at risk of suffering from psychological harm in his care.

18The additional considerations I must take into account when determining this matter are as follows.

(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

19I am satisfied that any allegedly strongly held views by [B] when he was residing with the husband in [the Eastern states] were as a result of the fact that he was isolated from the wife and unable to return to her care. I am satisfied that [B] is happy to spend time with both the husband and the wife.

(b) the nature of the relationship of the child with:

(i) each of the child’s parents

20There is nothing to suggest that the children do not have a good relationship with both the husband and the wife.

(ii) other persons (including any grandparent or other relative of the child)

21The children’s maternal grandmother, [Ms L], has had a relationship with the children both when they were living in [the Eastern states] and in Perth. After the wife returned to Perth at the end of 2005 she arranged rental accommodation for her. She is closely involved with the wife and the children in Perth and I am satisfied they have a good relationship with her.

22The husband is in a relationship with [Ms W]. I presume, as a result of spending time with her and her children in [the Eastern states] at the beginning of 2007, that they have a good relationship with her.

(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

23After separation the wife was prepared to facilitate a close and continuing relationship between the children and the husband. The husband came to Perth and stayed with the wife in February and April of that year. The parties were considering a reconciliation until around July 2006 when the wife discovered the husband was continuing his relationships with other women. She allowed the husband to see the children in September and [B], in particular, maintained a telephone relationship with him. She allowed the husband to have the children for two weeks in the following December but, as stated previously, the husband refused to return the children. Not surprisingly, she lost confidence in the husband’s ability to facilitate her relationship with the children and to return them.

24The wife agreed that on one occasion she advised the husband that unless he agreed to a property settlement, he would not be able to spend time with the children. She later apologised for this. I am satisfied that the wife will facilitate the children’s relationship with the husband provided she is satisfied the children will be returned to her.

25I do not believe that the husband would encourage the children to have a relationship with the wife if they resided with him in [the Eastern states]. He has already been prepared to keep the children and break an agreement he had to return them. I am satisfied that he put pressure on [B] to encourage him to tell the wife that he wished to remain living in [the Eastern states]. I also accept the wife’s evidence that he has denigrated her to the children during the course of a telephone conversation.

(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 his or her parents

26I am satisfied that the children would miss the wife if they were now to live with the husband. [O] is now aged three years. For two of those years she has resided with the wife in Perth and has only seen the husband for a few days in 2006, and for approximately a month when he retained her in [the Eastern states]. Although he says there was no impact upon [O] of being separated from her mother, in my view, this comment shows that he has little or no understanding of the effect on a child of an extended separation from the parent to whom they are primarily bonded.

(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

27If the children are mainly residing with the wife in Perth the time the children can spend with the husband will be restricted because of the parties’ financial situation.

28On 2 March 2007 orders were made that the husband have contact in Perth with the children, provided he gave the wife reasonable notice, for a period of three days, or as otherwise agreed between the parties. There was a further order made that he have contact for each of the school holidays pending trial. The husband stated that he did try to see the children, but the wife had stopped it. He also gave evidence that he filed an application for contravention of the contact orders before the hearing in July 2007. There is no evidence of any such contravention application being filed. In August 2007, in proceedings before Chief Judge Thackray, it was explained to the husband what would need to be done by him to spend time with the children in Perth or [the Eastern states]. He did not attempt to put in place any arrangement for him to see the children during 2007.

29In his closing submissions the husband suggested that he was unable to contribute towards airfares if the children resided in Perth. In his evidence the husband stated that he may be able to afford the costs of spending time with the children if the wife contributed to half the airfares.

30There is in existence an order that the husband have telephone contact with the children each second day. There is no reason why telephone contact cannot continue if the children continue to reside in Perth.

(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

31The wife has shown she has the capacity to care appropriately for the children. They have been in her sole care now for over two years, at times with no financial support from the husband. A letter from the school teacher of [B] indicates that his attendances were good through the year, he was punctual and well presented in his school uniform. [B] was described to be a happy, confident and well cared for child.

32The husband criticises the wife because [O] is in day care regularly during the week. The wife works for three days a week as a [beautician]. The wife says that on the other two days she catches up on household chores. The husband says that if the children were residing with him in [the Eastern states] that between himself and his de facto he would ensure that [O] was rarely in day care. There is no evidence that [O]’s attendance at day care is prejudicial to her development. The husband’s de facto, [Ms W], has not sworn an affidavit setting out her willingness or availability to care for [O] if the children reside with the husband in [the Eastern states].

33The husband has raised the wife’s anger management as an issue. He has contacted the Department for Child Protection and advised them of his concerns. They apparently have no intention of becoming involved in this matter.

34If the husband's conduct when the parties lived together in [the Eastern states] was anything like that described by the wife in her affidavit, I am not surprised that at times she was angry and frustrated with him. There is no evidence that, since living in Western Australia, that she has lost her temper and, in particular, no evidence of the children having been at risk. Prior to the hearing the husband hinted that he had witnesses who would come forward to give evidence in relation to the wife’s anger management issues in Perth. Those witnesses never swore affidavits or gave evidence in Court.

35In relation to the husband I have serious concerns that his financial situation is such that he may not be able to provide the children with a stable environment in which to reside. The husband gave evidence that a firm of solicitors is taking action to foreclose his mortgage. He stated in evidence that he earned less than $300 per week. His de facto partner earns and they pool resources. His de facto partner’s children live with the husband and his de facto partner as well. [Ms W] has not sworn an affidavit and indicated her support for the husband’s application that the children reside with him.

36The husband also gave evidence that he is either being investigated or has been charged with stalking offences.

37For these reasons I have concerns about the husband's capacity to care for the children should they reside with him.

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

38I am satisfied that during the marriage, and since separation, the wife has acted in a responsible manner towards the children. She has done this at times with limited or no financial support from the husband. The husband stated that when the wife left [the Eastern states], he paid child support of $200 per week until December 2006. He says he then stopped paying when the children resided with him. He then resumed paying child support in the months of April, May and June. He confirmed that his last payment was in June 2007. He says he has not made child support payments because of his poor financial circumstances. In evidence he stated that he was not paying the monthly assessment of $259 per month. I am not aware of any application by him to reduce the child support assessment.

39I am satisfied the husband has not taken his financial responsibilities towards the children seriously.

40The husband retained the children in December 2006 without court approval. The husband’s application seeking an order that the children reside with him was sworn by him on 18 December 2006 and was to be lodged in the Dandenong Registry. His solicitors then became aware that proceedings had already commenced in the Family Court of Western Australia. The husband did nothing about obtaining orders in this Court that the children should reside with him until after the wife’s Form 2 application was filed seeking that the children be returned to Perth.

41The husband, although he had orders allowing him to do so, did not see the children during 2007 after returning them to Perth.

(j) any family violence involving the child or a member of the child’s family;

42The husband makes allegations about the wife punching a hole in the door when she found that the husband was in a relationship with [Ms W]. I am not satisfied that the children were in any danger at the time this incident occurred. I am satisfied that the children are not likely to be exposed to family violence if they continue to reside with the wife.

(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

43I am satisfied that it would be preferable to make an order least likely to lead to the institution of further proceedings. The relationship between these two parties is very poor. It is important to have specific orders in place so that they have to deal with each other as little as possible. I indicated at the hearing that I would consider whether the time the husband spends with the children should be supervised by the Family Court Counselling & Consultancy Service. I am not prepared to do that at this time as the services of that agency are stretched to capacity. I hope that once a decision is made the parties will move on and be able to deal with each other in a sensible manner.

Conclusions

44In my view, the children should continue to reside with the wife in Perth. From the matters set out above, it is clear that the wife is a responsible parent and she has the capacity to care for the children. I am satisfied she will encourage the husband’s relationship with the children, as she did prior to the husband retaining the children in [the Eastern states]. I am not satisfied that the husband's housing situation in [the Eastern states] is secure. There was no affidavit from his de facto supporting his application that the children reside with him. He has not demonstrated a responsible attitude to the children as set out in my judgment. He has a very poor opinion of the wife, and I am not satisfied he will encourage the children’s relationship with her.

45The wife seeks an order that she have sole parental responsibility for the children, but that she must consult the husband about major decisions about the children’s health, religion, education and other matters relating to their long-term welfare. The husband seeks an order that he has sole parental responsibility for the children. S 61DA of the Family Law Act 1975 states that when making a parenting order in relation to a child I 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, except in cases of abuse and family violence. I am satisfied that the children have not been exposed to abuse or family violence and on that basis the presumption that it is in the children’s best interests applies. However, I am not satisfied that in this case it is in the children’s best interests for the parties to have equal shared parental responsibility.

46In s 61B parental responsibility is defined to mean all duties, powers, responsibilities and authority which, by law, parents have in relation to children. S 61D(1) states that parenting orders confer parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibility or authority in relation to the child. In these circumstances where the husband lives in [the Eastern states] and the wife lives in Perth, and given these parties’ very poor relationship, it is going to be very difficult for them negotiate on all the duties, powers and responsibilities parents have in relation to children.

47The wife has sought to limit the matters upon which she has to consult with the husband to major issues. In my view, in these circumstances, it is appropriate. The presumption, therefore, is rebutted and there should be an order in terms of the Minute of Orders Sought by the wife.

48Giving this finding that the presumption in s 61DA has been rebutted, I do not have to consider the provisions of s 65DAA(1) which, in any event, would be unable to be implemented in this matter.

49The wife, in her Minute of Orders Sought proposes that the husband spend time with the children in Perth or [the Eastern states] during school holidays for a period of up to two weeks at a time. In my view, that order is appropriate in all the circumstances. If the contact is to take place in [the Eastern states], the husband and wife are to share the travel cost of the contact. The husband is to be responsible for the airfares for the children going to [the Eastern states], and the wife should be responsible for the return airfares.

50The wife has sought an order that the husband give 60 days’ notice prior to the commencement of the proposed holiday time he intends to spend time with the children. In my view, this is appropriate and gives the wife the opportunity to organise her own time with the children during the holidays.

51There should be a further order that the husband have telephone contact with the children three times per week at a time agreed by them.

Proposed orders

1The wife have sole parental responsibility for the children, [B] born [in] June 2000 and [O] born [in] December 2004 (“the children”), but must consult with the husband about major decisions about the children’s health, religion, education and other matters relating to the long-term welfare of the children.

2The children live with the wife.

3The husband spend time with the children in Perth or in [the Eastern states] during school holidays for periods of up to two weeks at a time.

4The husband is to exercise the school holiday contact and must give to the wife the following:

(a)at least 60 days’ written notice prior to the commencement date of any proposed holiday time he is to spend with the children;

(b)the period of the proposed holiday;

(c)the address and telephone number where the children will be during the period; and

(d)confirmation that he has paid for the children’s air tickets to [the Eastern states] in the event the children are to spend time with him in [the Eastern states].

5The husband spend further time with the children as can be agreed between the parties.

6The husband is to pay the airfares for the children to travel to [the Eastern states] and the wife is to pay the children’s return airfare.

7The husband is to communicate by telephone with the children three times per week between 4.30 pm and 7.00 pm or as agreed by the parties.

8Both parties keep the other informed as soon as practicable of any emergency or serious occurrence affecting the children’s health.

9The wife authorise the children’s school and day care centre to provide the husband with any information or documentation as requested by him, at his expense.

10 The application and response otherwise be and are hereby dismissed.

I certify that the preceding [51] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate