Eades & Wrensted
[2014] FCWA 15
•5 MARCH 2014
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: EADES and WRENSTED [2014] FCWA 15
CORAM: WALTERS J
HEARD: 29, 30 & 31 JANUARY 2014
DELIVERED : 5 MARCH 2014
FILE NO/S: PTW 3045 of 2012
BETWEEN: EADES
Applicant Wife
AND
WRENSTED
Respondent Husband
Catchwords:
CHILDREN – TEMPORARY RELOCATION – Where parents separated in 2010 – Where children live with mother and spend time with father – Where mother and father have acrimonious and conflictual relationship – Where mother's husband is employed in Thailand – where mother wishes to spend 18 months with her husband in Thailand and take children with her – Where there are substantial financial and other benefits for mother and her husband if they spend the 18 month period in Thailand – Where father opposes temporary relocation – Where the legitimate interests and desires of mother are relevant to children's best interests – Whether father can maintain meaningful relationship with children if temporary relocation is permitted – Temporary relocation permitted
Legislation:
Family Law Act 1975 (Cth), Pt VII, s 4(1), s 60B, s 60CA, s 60CC, s 60CC(2), s 61DA, s61DA(3), s 64B, s64B(3), s 65D(1), s 65DAA(1), s 65DAA(2), s 65DAA(5), s 65DAC, s 65DAE
Category: Not Reportable
Representation:
Counsel:
Applicant: Ms G Anderson
Respondent: Self Represented Litigant
Solicitors:
Applicant: Cullen Babington & Hughes
Respondent:
Case(s) referred to in judgment(s):
AMS v AIF (1999) 199 CLR 160 (at [144]
Bretton & Bondai [2013] FamCAFC 168
Champness & Hanson (2009) FamCAFC 96
Collu & Rinaldo [2010] FamCAFC 53
Cox & Pedrana [2013] FLC 93-537
DL & W [2012] FLC 93-496
Goode & Goode [2006] FLC 93‑286
Heath & Heath [2012] FamCA 844
Hungerford & Tank [2007] FamCA 637
Jets & Maker (No 2) [2011] FMCAfam 1473
M & S [2007] FLC 93-313
Mabry & Neilson [2013] FCCA 478
Marsden & Winch (No 3) [2007] FamCA 1364
Marsden v Winch (2009) 42 Fam LR 1
Mazorski & Albright (2008) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
McLay (1996) FLC 92-667
Mills & Watson (2008) 39 Fam LR 52
Moose (2008) FLC 93-375
Morgan & Miles [2007] FLC 93-343
MRR v GR (2010) 240 CLR 461
Re F – Litigants in Person Guidelines [2001] FLC 93-072
Rice & Asplund (1979) FLC 90-725
Saxena [2006] FLC 93-268
Sayer& Radcliffe [2012] 48 FamLR 298
Selkin & Artliff-Selkin [2013] FamCAFC 19
Starr & Duggan [2009] FamCAFC 115
Taylor & Barker [2007] FLC 93-345
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN
CHANGED
Introduction and background
1These proceedings concern a mother's application for permission to relocate her two children from Australia to Thailand on a temporary basis. The mother's partner has obtained employment in [City A], Thailand. The mother proposes to live with her partner in City A for a maximum of 18 months, during which time she and the children will return to Australia regularly.
2The children's father opposes the temporary relocation (which I shall call "the sojourn") for a number of reasons, including –
a)issues relating to the children's security (which issues are connected to the current political unrest in Thailand and the volatility engendered by that unrest);
b)his concerns that the mother will not foster a close and loving relationship between the children and himself;
c)his concerns that the amount of travelling between Thailand and Australia proposed by the mother will adversely affect the children;
d)his concerns that the children's schooling (or more particularly, the elder child's schooling) will be adversely affected by the sojourn; and
e)his concerns that the children will feel isolated from their friends and family while in Thailand, and that the form and frequency of communication proposed by the mother will be inadequate to offset that feeling of isolation.
3Although the children have spent a great deal of time with the father since the parties separated, and have a close and positive relationship with him, there can be no doubt that the mother is their primary caregiver and primary source of comfort and security.
4Since separation, the parties' relationship has been less than satisfactory. At times it has been extremely acrimonious. Each has insulted and belittled the other, but it must be said that the expressions used by the father in the process of denigrating the mother were confronting in their vileness and vulgarity – even for an experienced judicial officer. I have never before encountered such terms of opprobrium directed by one parent to the other.
5After a trial which occupied three days, I concluded that the mother should be permitted to take the children to Thailand for the sojourn. I stood the proceedings over, however, for approximately six days before making final orders. I ordered the short adjournment because elections were due to take place in Thailand immediately after the completion of the trial and I wished to satisfy myself that the Department of Foreign Affairs and Trade travel advice for Thailand remained at an acceptable level.
6The travel advice for Thailand did not alter in any relevant sense between the final day of the trial and the adjourned date. Accordingly, on the adjourned date I made orders permitting the sojourn. The orders were in a form to which the parties agreed, but they were not made by consent. I indicated that reasons for my decision would be provided at a later time. These are my reasons.
Overview
7In these Reasons, and unless otherwise indicated:
a)all statements of fact comprise findings of fact;
b)I have referred to the parties as the mother and the father (and I mean them no disrespect by doing so) – because it is less confusing than referring to them in other terms; and
c)I have not drawn a distinction between proceedings or events in the Magistrates Court, 150 Terrace Road, Perth and proceedings or events in the Family Court of Western Australia (given that the two Courts operate "in tandem" and exercise similar jurisdiction).
8Although the law now refers to a child “spending time” with a person with whom the child does not live, I shall use the obsolete term “contact” from time to time in these Reasons. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.
9The mother was born [in] 1979. It follows that she is now 35. The father was born [in] 1976. He is now 37. They commenced cohabitation in early 2003 and married [in] 2005. They separated in [in] 2010, very shortly before the mother was due to give birth to the parties' second child. They are now divorced.
10There are two children of the parties' relationship: [Child A] (who was born [in] 2003) and [Child B] (who was born [in] 2010). Child A is now 10. Child B is 4.
11The father works as a [Manager]. He is employed on a full‑time basis.
12The mother recently completed a Graduate Diploma of Education at the University of Western Australia, which qualifies her as a high school teacher. She is not currently employed, but intends to obtain employment in the future. She proposes to do relief teaching work.
13The father commenced a relationship with [Ms G] in May 2011. I am not aware of when they began to live together.
14In June 2011, the mother commenced a relationship with [Mr D]. They began living together in January 2012. They are soon to be married.
Relevant procedural and other history
15On 22 October 2010, consent orders were made in relation to property settlement. The orders were varied (also by consent) on 3 April 2012.
16The orders made on 3 April 2012 ("the 2012 orders") include provisions relating to parenting issues. Relevantly, the 2012 orders provide that the parties are to have equal shared parental responsibility for the children, and that the children are to live with the mother. The 2012 orders also provide for the father to spend time and communicate with the children as follows:
a)in relation to Child A:
i)each week from 4 PM Thursday to 8:30 AM Friday;
ii)each fortnight from 4 PM Thursday until the resumption of school on the following Monday (or, if not a school day, until 8:30 AM on that Monday);
b)in relation to Child B: each fortnight from 4 PM on Friday to 8:30 AM on the following Monday; and
c)in relation to both children: on birthdays and other special days (such as Christmas Day and Father's Day, by telephone at all reasonable times and on other occasions by agreement between the parties.
17It is readily apparent that the 2012 orders do not make provision for the father to spend holiday periods (or other extended periods) with the children. It is also readily apparent that the 2012 orders provide for different arrangements for Child A and Child B.
18The current proceedings began with the filing of the mother's initiating application on 2 October 2013. In broad terms, the mother sought orders suspending the contact arrangements reflected in the 2012 orders for a limited period to enable the sojourn to occur.
19On the first return date of the mother's initiating application (being 16 October 2013), the proceedings were expedited to trial. The father was ordered to file and serve a response and supporting material by 8 November 2013.
20The father's response was filed in late November 2013. In it, he sought orders preventing the mother from "relocating the children's residence from the Perth ... metropolitan area without further order or written agreement from both parties". He also sought a substantial change to the pre-existing care arrangements for the children as reflected in the 2012 orders: he proposed, in effect, that a shared care arrangement be implemented, with the children spending week-about with each parent.
21The proceedings came before Moncrieff J on 2 December 2013. His Honour directed that the matter be listed for trial "to commence not before 29 January 2014". His Honour also made procedural orders regarding the filing of further documents prior to trial.
22It is not clear whether his Honour's attention was drawn to the substantial changes to the parenting arrangements proposed by the father. His Honour regarded the orders sought by the mother as "interim" orders, given that she sought to relocate to Thailand on a temporary basis only. There can be no doubt, however, that the only substantive issue that was to form the subject of the trial to be held on 29 January 2014 was the mother's proposed temporary relocation – in other words, the sojourn.
23During the period leading up to trial, the father filed a large volume of material, much of which had no relevance to the proposed temporary relocation. For example, the affidavit of his step-mother, [Ms K], was prolix and argumentative; further, it did not confine itself to facts about the issues in dispute and contained inadmissible evidence, including opinion evidence.
24At the commencement of the trial, it was made clear to the father (who was unrepresented) that he faced significant legal and procedural hurdles if he wished to press his application for the week-about shared care arrangement. Those hurdles included the fact that the 2012 orders had been made by consent and that, if the mother were not to be permitted to relocate to Thailand on a temporary basis as she was seeking, then no "changed circumstances" existed such as to warrant a variation of the 2012 orders (or even a re-examination of those orders): see Rice & Asplund (1979) FLC 90-725, Marsden v Winch (2009) 42 Fam LR 1, DL & W [2012] FLC 93-496 and Bretton & Bondai [2013] FamCAFC 168. Further, no family report or single expert report had been obtained, or even sought. As a result, there was no independent evidence of (for example) [Child A's] wishes or the likely impact on the children of the proposed week-about arrangement.
25To his credit, the father recognised that his application to vary the 2012 orders was premature and misconceived. Indeed, the father explained his decision to include his shared care proposals in his response, and to seek (initially) to press them at trial, by reference to his misunderstanding of the likely approach the Court would take to the dispute in the light of the Full Court's decision in Goode & Goode [2006] FLC 93‑286.
26Suffice it to say that the father withdrew his application for shared care on the first day of the hearing (29 January 2014) and the trial proceeded on the basis that the only issues for determination by the Court were those relating to the sojourn.
Documents relied upon
27The mother relied upon her initiating application filed 2 October 2013, her trial affidavit sworn 14 January 2014 and the affidavits of her fiance, Mr D, sworn 30 December 2013 and her father, [Mr Eades], sworn 15 January 2014.
28The father relied upon his response filed 8 November 2013, his trial affidavit sworn 17 January 2014 and the affidavits of –
a)Mr Wrensted (his father) sworn 15 January 2014;
b)[Mr F] (his stepfather) sworn 16 January 2014; and
c)[Mr J] (his friend) sworn 21 January 2014.
29The father confirmed that he did not rely upon the affidavits sworn by Ms K, [Mrs F], Ms G and [Mr H].
30Both parties filed papers for the judge prior to trial.
31A number of documents were tendered during the course of the trial.
The mother's proposals
32The mother's proposals are set out in the minute of proposed orders attached to her papers for the judge. I need not reproduce them in these Reasons. In broad terms, she proposed that:
a)the contact arrangements contained in the 2012 orders be suspended to enable her to relocate with the children to City A, Thailand for a period of 18 months from February 2014;
b)the children attend [The Local School] while they are in Thailand;
c)the children spend time with the father in Australia for extended periods on at least six occasions during the sojourn, and on other occasions when the father is in City A;
d)the mother meet the costs of the children's travel to and from Perth for the six contact periods in Australia;
e)the mother (or other agreed adult) accompany the children on the trips back to Perth;
f)the father be at liberty to spend time with the children in Thailand whenever he is minded to visit that country; and
g)the children engage in various forms of Internet/electronic communication with the father.
The father's proposals
33The father's proposals are set out in the minute of proposed orders attached to his papers for the judge. Again, I need not reproduce them in these Reasons.
34As indicated above, the father withdrew his application for a week-about living arrangement for the children. In broad terms, he proposed that the mother's application for leave to take the children to Thailand for the sojourn should be dismissed and that certain limitations should be placed on the mother if she wishes to take the children with her to visit Mr D while he is working in City A.
Parenting orders – the law
35The following summary of the law is based on similar summaries in my decisions in Mills & Watson (2008) 39 Fam LR 52 and Jets & Maker (No 2) [2011] FMCAfam 1473.
36Applications concerning children (or, more accurately, applications for parenting orders) are dealt with in Part VII of the Family Law Act 1975 ("FLA").
37The Full Court carefully analysed the structure and effect of Part VII in Goode [2006] FLC 93-286. It began by identifying the types of orders that fall within the category of "parenting orders", and by referring to s 64B (which includes, among other things, a list of the matters with which a parenting order may deal). For example, orders allocating parental responsibility for a child, specifying the person with whom a child is to live or defining the time a child is to spend (or the communication a child is to have) with a person, are all parenting orders.
38Parenting orders dealing with the allocation of parental responsibility for a child can also deal with "the allocation of responsibility for making decisions about major long-term issues in relation to the child” [s 64B(3)]. Such issues include (but are not limited to) important questions regarding a child's education, religious and cultural upbringing and health. A proposed change to a child's name, or proposed changes to a child's living arrangements which would make it significantly more difficult for the child to spend time with one of his or her parents, are also regarded as major long-term issues. But a parent's decision to form a relationship with a new partner is not, of itself, a major long- term issue in relation to a child ─ even though such a decision could involve a major long term issue if the new relationship requires the parent to move to another place (thereby making it more difficult for the child to spend time with the other parent): see the definition of "major long-term issues" in s 4(1).
39If a parenting order provides that parents (or others) are to share parental responsibility for a child, and if the exercise of that responsibility involves the making of a decision about a major long term issue regarding a child, then the relevant decision must be made jointly. Further, an order for equal shared parental responsibility requires those in whose favour the order has been made to consult with each other in relation to any relevant major long term issue, and to make a genuine effort to come to a joint decision [s 65DAC]. Such consultation is not required in relation to issues that are not major long-term issues, and a parent with whom a child is spending time will not normally need to discuss minor matters (such as what a child eats or wears) with the other parent [s 65DAE].
40As has long been the case, the child’s best interests remain the paramount consideration in the making of parenting orders. That principle is set out in s 60CA:
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.
41The objects of Pt VII, and the principles underlying it, are set out in s 60B. They are important.
42The objects of Pt VII are set out in s 60B(1). They are:
… to ensure that the best interests of children are met by:
•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
•protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
•ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
•ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of the children.
43The principles underlying these objects are set out in s 60B(2). They are:
... that (except when it is or would be contrary to a child's best interests):
•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
•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
•parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
•parents should agree about the future parenting of their children; and
•children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
44Aboriginal or Torres Strait Islander children not only have a right to enjoy their culture, but they also have the right to:
a)“maintain a connection” with and “develop a positive appreciation” of it; and
b)be provided with “the support, opportunity and encouragement necessary to explore the full extent of that culture” (consistent with the child's age and developmental level, and the child's views): see s 60B(3).
45Given that all the expressed objects of Pt VII are directed towards ensuring that a child’s best interests are promoted, and given that the court must always regard the child's best interests as the paramount consideration in deciding whether to make a particular parenting order, the question of how a court determines what is or may be in a child's best interests is crucial. The subject is dealt with in s 60CC, which directs the court to consider a relatively lengthy list of factors before determining what is in a child's best interests.1 The list is divided into two parts, the first comprising "primary considerations", and the second comprising "additional considerations".
46The primary considerations are set out in s 60CC(2). They are:
a)the benefit to the child of having a meaningful relationship with both of his or her 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.
47The additional considerations are set out in s 60CC(3). They include:
a)any views expressed by the child, and any factors that the court thinks are relevant in determining the weight that should be given to those views;
b)the nature of the child’s relationship with each of his or her parents and other relevant people (including grandparents and other relatives);
c)the extent to which each parent has taken (or failed to take) the opportunity to participate in making decisions about major long-term issues regarding the child, and to spend time or communicate with the child;
d)the extent to which each parent has fulfilled (or failed to fulfil) his or her obligations to maintain the child
e)the willingness and ability of each parent to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
f)the likely effect of any changes in the child's circumstances (including as a result of any separation from a parent, sibling or grandparent with whom the child may have been living);
g)the practical difficulty and expense of a child spending time with and communicating with a parent (and the effect of such difficulty and expense on the child's right to maintain personal relations and direct contact with both parents on a regular basis);
h)the capacity of each of the parents, and of any other relevant person, to provide for the child's needs (including his or her emotional and intellectual needs);
i)the child's maturity, sex, lifestyle and background (including the child's culture and traditions);
j)in the case of an Aboriginal or Torres Strait Islander child, the child’s right to enjoy his or her indigenous culture;
k)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents;
l)any relevant family violence, or family violence order;
m)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"; and
n)any other fact or circumstance that the court considers relevant.
48The long list of additional considerations makes it clear that the court is required to focus on – among other things – each party’s "track record" as a parent.
49Although the primary considerations are listed before the additional considerations, they will not always "outweigh" them: see Champness & Hanson (2009) FamCAFC 96 at [101]. Clearly, the primary considerations "should be accorded particular importance in determining what order will best promote the interests of the child", but they will not always determine the outcome of the proceedings. Thus, in Marsden & Winch (No 3) [2007] FamCA 1364, the Full Court said at [78]):
…[the Court is] obliged to take into account all of the relevant considerations identified in the legislation, giving each of them such weight as [it thinks] appropriate in arriving at the result most likely to promote the child's best interests. … [Particular emphasis must be placed on the primary considerations] not only because the legislature has identified them as "primary" but also because they are manifestly of the utmost importance in determining what outcome will best advance the child's best interests.
50In considering the first of the primary considerations (being the benefit to a child of having a meaningful relationship with both of his/her parents) the "preferred" approach is to "consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents" – although an approach which involves examining evidence of the nature of the child's relationship as at the date of the hearing in order to make findings based on that evidence and to frame orders accordingly may also be relevant in certain circumstances: see McCall & Clark (2009) FLC 93-405 at [117-22]. Irrespective of the approach to be adopted, the benefit to a child of a meaningful relationship with his/her parents is not a legislatively defined presumption, or even an assumption.
51In Goode, the Full Court summarised the above process at [10]:
… in deciding to make a particular parenting order, including an order for parental responsibility, the individual child's best interests remain the paramount consideration … and the framework in which best interests are to be determined are the factors in ss 60CC ... The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.
52Notwithstanding the Full Court's reference to a "framework", and to the context in which the factors comprising that framework are to be considered, a trial judge who is obliged to determine competing applications for parenting orders does not start with a blank sheet of paper: see, in a different context, McLay (1996) FLC 92-667 at 82,901. Relevantly, certain conditional presumptions (relating to parental responsibility) may apply. Generally speaking, however, and subject to those presumptions, the court may make such parenting order as it thinks proper [s 65D(1)].
53When making a parenting order, the court must apply a presumption that it is in the child's best interests for his or her parents to have equal shared parental responsibility [s 61DA]. Such a presumption, although clearly important, says nothing about the amount of time that the child should spend with each parent.
54The presumption relating to equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent (or somebody living with a parent) has abused the child (or another relevant child), or has engaged in family violence. In interim proceedings, the application of the presumption is less strict: it does not apply if the court considers that "it would not be appropriate in the circumstances" for it to be applied.2
55In circumstances where the presumption relating to equal shared parental responsibility would otherwise apply, it may be rebutted "by evidence that satisfies the court that that it would not be in the best interests of the child" for the parents to have equal shared parental responsibility [s 61DA(4)].
56Where parents are ordered to have equal shared parental responsibility for their child (whether as a result of the application of the presumption referred to above, or otherwise), the court must go on to consider whether the child spending equal time with each parent would be both reasonably practicable3 and in the child's best interests. If it is both of these things, then the court must consider whether it should make an order to that effect: s 65DAA(1). If the court comes to the conclusion that an order for equal time should not be made, it must then go on to consider whether the child spending "substantial and significant time"4 with each parent would be both reasonably practicable5 and in the best interests of the child. If it is both of these things, then the court must consider whether it should make an order to that effect: s 65DAA(2).
57In MRR v GR (2010) 240 CLR 461, the High Court said at [13] and [15]:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order (for equal time). ... A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. ... If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent. ...
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. (Emphasis added.)
58The sequence in which the court should consider the various provisions discussed above (and other relevant matters) is not clear from Part VII itself. In Taylor & Barker [2007] FLC 93-345, however, the Full Court said at [62]:
… (Given) that the concept of the child's best interests is the determinative factor in the application of so many of the provisions of Pt VII, and given that s 60CC(1) provides that in determining what is in the child's best interests, the Court must consider the matters set out in subsection (2) ("primary considerations") and subsection (3) ("additional considerations") of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child's best interests.
59The Full Court in Taylor & Barker added that failure to follow the above approach (which it clearly regards as "the logical approach") does not necessarily amount to an appealable error. Such an error would arise, however, if a trial judge failed to give adequate reasons or did not have regard to "the matters which the legislation requires must be considered".
60In Mazorski & Albright (2008) 37 Fam LR 518, Brown J dealt with the “additional considerations” (in s 60CC(3)), prior to dealing with the primary considerations (in s 60CC(2)). In Moose (2008) FLC 93-375, Boland J (with whom May J agreed) approved of such an approach, saying that, in certain cases, it may help to focus the court's attention on relevant matters to be determined under s 60CC(2) if it first considers and makes findings about relevant factors under s 60CC(3): see also Collu & Rinaldo [2010] FamCAFC 53, at [335].
61Having summarised the effect of Pt VII in Goode at [65], the Full Court then described at [82] the "legislative pathway" that "must be followed" in interim proceedings. There seems to be no reason, however, why the same pathway ought not to be followed at trial, where final orders are sought: see, for example, Hungerford & Tank [2007] FamCA 637 and M & S [2007] FLC 93-313 at [36].
62The relevant steps (as modified for a final hearing, and taking into account the High Court's decision in MRR v GR) are as follows:
a)Identify the parties’ competing proposals.
b)Identify the issues in dispute in the proceedings.
c)Make relevant findings in relation to the facts.
d)Consider the relevant s 60CC factors and (if possible) make findings about them.
e)Decide whether the presumption in s 61DA (that equal shared parental responsibility is in a child's best interests) applies.
f)If the s 61DA presumption applies, then consider whether it has been rebutted (because its application would not be in the child's best interests).
g)If the s 61DA presumption applies, and has not been rebutted, then consider both the following questions:
i)Is it in the best interests of the child to spend equal time with each parent?
ii)Is it reasonably practicable for the child to spend equal time with each parent?
h)If both the above questions are answered in the affirmative, then consider making an order for equal time, but the court is not obliged to make such an order.
i)If the s 61DA presumption applies and has not been rebutted, but equal time is not in the child's best interests, or is impracticable, then consider both the following questions:
i)Is it in the best interests of the child to spend substantial and significant time with the other parent?
ii)Is it reasonably practicable for the child to spend substantial and significant time with the other parent?
j)If both the above questions are answered in the affirmative, then consider making an order that the child spend substantial and significant time with the other parent, but the court is not obliged to make such an order.
k)In considering whether to make an order for equal time (or, alternatively, an order for substantial and significant time), the court is not required to assume that it is desirable that such an order should be made, or that the making of such an order is the "default" position (as it were) under the FLA. Instead, the court must concern itself with the reality of the situation of the parents and the child; it must make a practical assessment as to whether equal time (or, alternatively, substantial and significant time) is both feasible and in the best interests of the child.
l)If the s 61DA presumption does not apply or has been rebutted, or if it does apply but neither equal time nor substantial and significant time are both feasible and in the best interests of the child, then issues regarding the child's living arrangements and the time that the child is to spend with each of the parents are "at large and to be determined in accordance with the child's best interests" (or, in other words, as a result of consideration of the objects and principles in s 60B and the factors set out in s 60CC): see Goode at [65.8].
m)Throughout the entire process, the court must bear in mind that the child's best interests "remain the overriding consideration", and that those interests are to be “ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC”: see Goode at [65.11] and [65.9].
63Notwithstanding the dicta discussed above, the question of an appropriate "legislative pathway" to provide guidance through the intricacies of FLA Pt VII has continued to trouble judges at first instance. In Cox & Pedrana [2013] FLC 93-537, however, the Full Court said at [31]:
Whilst reference to a “legislative pathway” is, of course, an accurate descriptor of what individual sections within Part VII of the [FLA] require when taken together, care must be taken to not permit arguments about form to take precedence over the substance of what Part VII requires. Equally, care must be taken to ensure that the use of such an expression is not to be a suggestion that a particular order must be followed if error is to be avoided.
"Relocation" cases
64Many judges have described the difficulties inherent in dealing with cases which involve a proposal on the part of a parent to remove children from their present place of residence and relocate with them to a different place, often very distant from the other parent's home (which cases are known universally as "relocation cases"): see, for example, the observations of Judge McGuire in Mabry & Neilson [2013] FCCA 478 at [39]. Occasionally, judges give way to the temptation to describe the effects of a proposed relocation in somewhat emotive terms: see, for example, Heath & Heath [2012] FamCA 844 at [98] to [100]. It seems to me, however, that such language is ultimately unhelpful. How, really, can a judicial officer be expected to balance the inability of a father "to put a consoling arm around [his child]" against, for example, the potentially paralysing unhappiness of a mother who is told that, for all intents and purposes, she must continue to live in one place when she aches to live in another? In that regard, it is helpful to note the following passage from the judgment of Kirby J in AMS v AIF (1999) 199 CLR 160 (at [144]):
…a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule. [Footnotes omitted.]
65Kirby J's comments were cited with approval by the Full Court in Selkin & Artliff-Selkin [2013] FamCAFC 19.
66The "relevant principles" adhering to relocation cases were restated recently by the Full Court in Sayer& Radcliffe [2012] 48 FamLR 298. Their Honours said (references omitted):
47.It is a now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the [FLA]. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders ...
48.A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents ... It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway. ...
50.The legislation ... requires multiple layers of consideration, but does not provide express guidance as to the order in which such matters are to be considered, or what weight is to be attached, other than to commence with the presumption of equal shared parental responsibility and what follows from that decision.
67In Cox & Pedrana, the Full Court also emphasised that it is not necessary for a trial judge to consider the relevant sections in any particular order It said at [32] (references omitted):
... [The] reference by this Court in [Sayer & Radcliffe] to “commenc[ing] with the presumption of equal shared parental responsibility…” is not a prescription that this issue must be addressed first but, rather, an express recognition of the necessity for findings which firmly establish the bases upon which the Court is exercising its power to make parenting orders.
68The Full Court in Sayer & Radcliffe said that cases such as Starr & Duggan [2009] FamCAFC 115 provide "clarification and guidance" as to the approach to be adopted in relocation cases. Among other things, the Full Court in Starr & Duggan said (references omitted):
37.[The] appellate decisions determined after the commencement of the Family Law Amendment (Shared Parental Responsibility)Act 2006 (Cth) have set out a framework which a judicial officer may follow when determining applications for parenting orders, including an order that a child be permitted to relocate.
38.However, it is important to emphasise ... that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
(a)first make findings concerning the relevant s 60CC factors;
(b)then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
(c)then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
39.Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.
69In Morgan & Miles [2007] FLC 93-343, Boland J (sitting as a single judge on appeal from a federal magistrate) considered the effect of the 2006 amendments to the [FLA] on relocation cases. Among other things, her Honour said at [80] that the following "core values" remain valid:
a)the child’s best interests remain the paramount consideration, but they are not the sole consideration;
b)a parent wishing to move does not need to demonstrate “compelling” reasons;
c)a judicial officer must consider the proposals presented by the parties, but may also be required to formulate alternative proposals in the child’s best interests; and
d)the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent to freedom of movement.
70A better way of describing or contextualising a parent's "freedom of movement" is to regard the concept is falling within that parent's "legitimate interests and desires". As the passage quoted above from the decision of Kirby J in AMS v AIF makes clear, those legitimate interests and desires should not be ignored.
71I would also add the following:
a)Although the Court is not bound by the parties’ proposals, it must not put in place an arrangement that has not been sought by any of the parties without giving reasonable notice that it is minded to do so, and without giving the parties an opportunity to be heard in relation to the subject.
b)A party’s right to freedom of movement exists (under the general umbrella of that party's legitimate interests and desires), and it is important; if necessary, however, the right to freedom of movement can be outweighed by a court’s conclusion to the effect that there is a need to put in place an arrangement that is inconsistent with that right, but is nevertheless in the best interests of the child.
c)In an appropriate case, it is important for a Court to inquire as to whether the party who opposes the proposed relocation could not, himself or herself, move to a place which is close (or closer) to where the child will be living if the relocation goes ahead.
This was not a "relocation case" in the usual sense
72Although I have set out the law relating to parenting cases in some detail, and described how a relocation case should be approached, the current proceedings did not comprise a relocation case in the usual sense. The mother's proposal is for the children to spend 18 months in Thailand with her and Mr D. It follows that the proposal does not entail the children being permanently removed from their present place of residence. That is not to say that the changes to the present arrangements sought by the mother are insignificant, or that the father's objections are to be treated lightly, but the temporary nature of the relocation and the comparatively substantial contact between the father and the children proposed by the mother serve to reassure the Court that the sojourn is unlikely to have the dire consequences foreshadowed by the father in his trial material. Importantly, and as discussed below, I have concluded that the sojourn will not result in the father having anything other than an ongoing, meaningful relationship with the children.
The father was unrepresented
73Given that the father was unrepresented, I was very conscious of the obligation upon the Court to provide a fair trial – for both parties. I am aware of the guidelines regarding the manner in which a judicial officer should deal with unrepresented litigants, and the associated discussion contained in Re: F – Litigants in Person Guidelines [2001] FLC 93-072 at [209] to [253]. I applied those guidelines during the course of the proceedings, and am comfortable that the trial was fair. In summary:
a)Procedural fairness was afforded to both parties.
b)The “mechanics” of the trial, and the right of the father to cross-examine witnesses, were explained to him.
c)Other relevant procedures were explained to the father as they arose.
d)I explained to the father that he had the right to object to inadmissible evidence, and explained to him – in very broad terms – the types of evidence that might be considered inadmissible.
e)Where appropriate, I attempted to clarify the substance of the father’s submissions.
f)Where appropriate, I took other steps as authorised by the Full Court in Re: F – Litigants in Person Guidelines at [253]: see Guideline #9 in that paragraph.
74In Saxena [2006] FLC 93-268, Coleman J emphasised that the type of guidelines set out in the previous paragraph “were no more than the name implies” and that they “derive from the broader considerations of natural justice, implicit in which is the recognition that for a litigant in person to be afforded natural justice and procedural fairness, that litigant must have some appreciation of just what is going on”. His Honour added that the Court must be concerned with “the spirit rather than the strict letter of the guidelines”.
75In the present case, and as I have outlined above, the father participated in the trial process fully, confidently and relatively comfortably. I have no doubt that he fully understood exactly "what was going on" at all times.
The mother's evidence
76The mother traced the history of the parties' relationship in her trial affidavit. Much of that history is not relevant to the current dispute because of the father's decision to withdraw his application for shared care. It follows that it is unnecessary for me to deal with the history of the relationship in detail.
77In April 2006, some three years after the parties commenced living together (and when Child A was approximately 2½ years old), the father was involved in a serious car accident. The mother noticed a change in the father's personality after the accident. He became depressed and moody. In early 2009, the mother fell pregnant. For reasons that are not now important, the parties decided the pregnancy should be terminated. Their respective reactions to the decision to terminate the pregnancy placed additional pressure on their relationship.
78Not long after the termination, the mother fell pregnant with Child B. The parties' relationship did not improve, however, and they separated a few weeks before Child B was born.
79The period after separation was very difficult for the mother. She had a newborn child, and Child A commenced Year 1 immediately after Child B's birth. The mother perceived the father as being unsupportive at that time. She described him as appearing "very depressed".
80The mother was the primary caregiver for Child A prior to separation, and for both children after separation. She said, and I accept, that she made an effort to co-parent with the father in relation to both of the children.
81When Child B was approximately five months old, she began spending time with the father overnight approximately once per week. Child A spent more time with the father.
82After separation, the father commenced sending offensive and sexually belittling text messages to the mother. In what I regard as a significant understatement, the mother said in her trial affidavit at [36]:
These communications between [the father] and I made my life unhappy and difficult.
83In mid 2010, the mother began a relationship with a man named [Mr B]. The father resented the relationship and insulted and bullied the mother in relation to it. He also threatened Mr B.
84In the meantime, the father began a relationship with a woman named [Ms N]. There was friction between the mother and Ms N. The mother perceives that the father was indifferent to Ms N's antagonism towards her.
85In approximately March 2011, the parties argued about matters associated with the sale of the former matrimonial home. During the argument, the father was violent to the mother – who said it was the first time he had been physically aggressive with her. The mother described the incident in her trial affidavit at [52]:
... I recall that [the father] placed his hand around my neck and forced me against a wall. I don't recall the words that he was saying to me but I do recall being in fear that he might harm me. I don't recall if [Child A] and/or [Child B] witnessed this incident or not, however it is unlikely that [Child B] wasn't in the home at the time, given that she was only 14 months old. [The father] left the home shortly thereafter. ...
86Over time, the father's contact with the children gradually increased to the arrangement reflected in the 2012 orders, but the parties' relationship remained volatile and acrimonious. As I have mentioned elsewhere in these Reasons, each party insulted and belittled the other, but the father's denigration of the mother was confronting in its vileness and vulgarity: see the mother's trial affidavit at [57] to [65].
87In the second half of 2011 (and probably in or around August 2011), the parties argued about an overseas trip the father was about to embark upon – at a time when, according to the mother, he was in arrears of child support to the extent of approximately $3000. Immediately before the father was due to depart for Europe, he attended the mother's home and entered the house uninvited. An ugly incident ensued, during which the mother repeatedly asked the father to leave. In the course of his cross examination of the mother, the father saw fit to play a recording he had made of the mother's interaction with him at that time. The mother was being recorded without her knowledge, and the father clearly saw it as being in his interest to subject the children to the mother's impatience with him in order to gain evidence against her. The mother's language was coarse and offensive, and obviously should not have been used in the presence of the children. On the other hand, that the father saw fit to engineer a situation in which he could seek to embarrass the mother, that he was quite content to allow the children to serve as "extras" in that engineered situation and that he did not take immediate steps to remove himself from the mother's home in order to spare the children further distress, reveals that he was quite prepared to use the children to obtain a perceived advantage over the mother. The father suggested that the recording revealed that the mother hit him while he was in her home but, in my opinion, it revealed no such thing. The father seemed oblivious to the fact that his playing of the recording in the courtroom was counter-productive. It was excruciatingly uncomfortable having to listen to the recording. It upset the mother considerably, for no valid forensic purpose. There can be no justification for the father's actions, either in engineering the situation reflected in the recording or in seeing fit to play the recording as part of his cross-examination of the mother.
88Following the father's return from overseas, an email exchange occurred between the parties. The exchange comprises annexure MCE 14 to the mother's trial affidavit. In the light of the father's criticism of the mother for devaluing his role as father of Child A and Child B (which criticism I discuss below), it is illustrative to record the contents of the final email in the exchange (dated 22 September 2011). The father wrote:
Even now after all this time your stubbornness and stupidity never fails to amaze me.
You will not get another cent off me than what was agreed in writing.
This correspondence will serve as ample evidence of your abuse of the privilege of having our children, and your despicable utilisation of them to try and gain more money off me.
The attached voice memo should serve as an everlasting source of shame for you, your actions and the consequences that they have had on our children.
Shame on you [Ms Eades].
89The "voice memo" referred to in the email is the recording the father played in open court during his cross examination of the mother. In my opinion, the person who should be most ashamed is the father.
90The father cross-examined the mother about various text messages she had sent to him in which she had suggested, or said directly, that he could or should be replaced as the children's father: see the father's trial affidavit at [32] to [35]. Exhibit F1, however, makes it clear that the mother's comments were in the context of acrimonious exchanges between the parties, where each was expressing frustration and dissatisfaction with the attitude or behaviour of the other (although I am not satisfied that exhibit F1 adequately reflects the totality of the exchanges between the parties). A passage that the father has partially underlined from a text message sent to him by the mother in late September 2012 is illuminating:
[Mr D] is not going anywhere. Sorry to disappoint you. And he isn't [Child B's] "step" father – he is her father. We have been together since she was 18 months old. He will be more of a father to her then you will ever be. Certainly this week I have been frustrated [with] your blatant lack of financial support [with] the children's extra-curricular activities. ...
91In my opinion, the father set the tone for the communication between the parties by referring to the mother in the vile, demeaning manner to which I have referred. The expletives used by the mother, and her denigration of the father generally, were often in response to the father's insults and accusations.
92Moreover, the father himself is not blameless when it comes to the making of criticisms directed to the question of the worth (as a parent) of the other party, as the extract from the father's email to the mother of 22 September 2011 quoted above makes clear.
93A comparison of the exchanges referred to in exhibit F1 and the parties' affidavits (see the mother's trial affidavit at [33] to [35] and [58] to [65], and annexures MCE 2 and MCE 6 to MCE 11, and the father's trial affidavit at [32] to [37]) reveals that each party has highlighted text messages or emails which show the other party in a bad light. There can be no doubt, however, that the father's vilification of the mother was immeasurably more disrespectful than the mother's comments. His purpose seems to have been to mock and humiliate her in order to assert his perceived superiority over her.
94At the conclusion of her evidence, the mother said that the language used by the father in the parties' communications has improved over the past 12 months. She added that, although the parties do not enjoy a good relationship, the worst of the father's abuse of her has stopped. In her trial affidavit at [179]-[180], however, the mother deposes to having received "prank calls" on her mobile telephone shortly after the father was served with her application initiating the current proceedings. The father denied making the calls or causing them to be made, but I do not accept his evidence in that regard.
95The 2012 orders were made by consent, and provide for Child A to spend time with the father each Thursday evening and from Thursday to Monday in each alternate week. The 2012 orders provide for Child B to spend time with the father each alternate week from Friday to Monday. The mother accepts that the children enjoy the time they spend with the father and that he cares for them appropriately during contact periods.
96The 2012 orders do not provide for the father to spend time with the children during school holidays. The mother conceded, however, that Child A had spent some nine nights with the father on one occasion (when they undertook a road trip to [Coastal Town A). This appears to be the only occasion on which the father has had an extended period of contact with either of the children. It is noteworthy that the father made the point to the mother during cross-examination that Child A was car sick during the whole of the trip. He suggested that Child A could get air sick on the various flights between Thailand and Perth during the sojourn. The mother said that Child A gets car sick but not air sick and confirmed that he had travelled to and from Thailand without difficulty in October 2013. In any event, it was apparent from the father's comments that Child A was clearly well enough for the road trip to continue. In other words, the fact that Child A may have been car sick did not prevent the father from continuing with the trip.
97Child A has been attending [Primary School A] and would be commencing Year 5 in 2014 if the sojourn were not to occur. Child B is due to commence kindergarten this year.
98The mother commenced a relationship with Mr D in mid 2011. They have been living together since January 2012. They proposed to marry in early February 2014, shortly after the trial. I assume the marriage went ahead as planned.
99The mother has met the father's partner, Ms G, on one occasion only. The interaction was pleasant.
100Until mid-2013, Mr D was working as an electrician in Malaysia on a fly‑in, fly-out basis. He was on a four week rotation. He was earning approximately A$200,000 per annum.
101In mid-2013, Mr D accepted a position with [Company A] as an electrical and instrumentation inspector. The job is based in City A, Thailand. The contract is for two years. The job is a substantial promotion for Mr D, and involves him moving into "a management-type role". The job also involves a significant pay rise, and includes substantial financial benefits.
211Exhibit M4 comprises the DFAT TAD issued on Tuesday 4 February 2014 (TAD2). The recommendations in TAD2 remain unchanged from those in TAD1: namely, Level 4 for the southern provinces and Level 2 for the rest of Thailand (including City A).
212TAD2 contains the following information:
•We advise you to exercise a high degree of caution in Thailand due to the possibility of civil unrest and the threat of terrorist attack. You should pay close attention to your personal safety at all times and monitor the media for information about possible new safety or security risks.
•National elections were held across Thailand on 2 February 2014. A new government has not yet been formed and in coming months there are likely to be further by-elections and other legal processes and political events. The security environment remains volatile, particularly in Bangkok and surrounding areas.
213The information in TAD2 is otherwise identical or almost identical to the information in TAD1, including under the headings Safety and security – Civil unrest/political tension and Terrorism.
214As the travel recommendation had not altered between TAD1 and TAD2, and because the mother proposed to travel to Thailand to begin the sojourn on or shortly after 17 February 2014, I advised the parties that, in my opinion, it was in the children's best interests for the sojourn to proceed. The matter was then stood down to enable the parties to discuss the preparation of a minute of orders to give effect to my decision that the sojourn should proceed.
215After approximately 2 hours, the parties presented the Court with a minute of proposed orders in an agreed form. Both parties were comfortable with the form of the orders although, obviously, they could not be made by consent. After hearing the parties in relation to some aspects of the minute, I proceeded to make orders in accordance with it.
216Given that the minute was in a form agreed upon by the parties, I do not propose to provide a detailed explanation as to why each specific provision is appropriate and in the best interests of the children.
Parental responsibility, equal time, substantial and significant time and the sojourn
217The parties have equal shared parental responsibility for the children pursuant to the 2012 orders.
218As discussed under the heading Parenting orders – the law above, and having regard to the fact that an order for equal shared parental responsibility exists, I am required to consider whether the children spending equal time with the father and the mother would be in their best interests (and related questions) and, in turn, whether the children spending substantial and significant time with the father and the mother would be in their best interests (and related questions).
219I am not satisfied that it is in the best interests of the children for them to spend equal time with each of their parents. The father had applied for orders to that effect, but withdrew his application at the commencement of the trial. It follows that neither party has proposed such an arrangement. Even if it had been proposed by one of the parties, I am not satisfied that it could be made to work. I have described the history of the parties' relationship in these Reasons. The parties' communication is poor, disputes between them are frequent or relatively frequent and their relationship has been acrimonious for an extended period of time. I have described the father's attitude and personality. They are not conducive to a close and constructive relationship with the mother, whom he does not seem to respect and whose input he devalues.
220At first blush, the comments I have made in the previous paragraph may appear to conflict with the existence of the order for equal shared parental responsibility. The perceived conflict can be explained, however, by recognising that an order for equal shared parental responsibility requires the parties to consult with each other and make a genuine effort to come to a joint decision about major long-term issues affecting their children. Such consultation is not required in relation to issues that are not major long-term issues – such as what children eat or wear or what their daily activities should be when they are spending time with the parent with whom they do not live. An order to the effect that children are to share their time equally between their parents requires the parties to consult and cooperate with each other in relation to a myriad of issues that cannot be categorised as major long-term issues. In other words, the consultation and cooperation associated with an order for equal shared care of children is more frequent and, in many senses, more intimate and immediate than the consultation and cooperation associated with an order for equal shared parental responsibility. It is not unusual for parents to fail comprehensively at the former, but to put aside their differences and make a genuine effort to succeed at the latter.
221It is also relevant to have regard to the fact that the mother has been the children's primary caregiver throughout their lives. She has done a good job in that regard.
222Even if it could be considered to be in the best interests of the children for them to spend equal time with the father and the mother, such an arrangement is clearly not reasonably practicable if the sojourn is to occur. It would only be practicable if the parties were to live in relatively close to each other.
223Given that the sojourn is to occur, it is also not reasonably practicable for the children to spend substantial and significant time with the father (beyond the contact arrangements reflected in the orders made on 6 February 2014). I accept, however, that it is likely to be both reasonably practicable and in the children's best interests for the father to spend substantial and significant time with them after they return from the sojourn. By then, the children will be older and he will have spent extended periods with them. There seems to be no reason, therefore, why he should not commence spending half of all holiday periods with them at that time – although I accept that there is always the possibility that circumstances will change between now and the date of the mother's return from the sojourn.
Conclusion
224As foreshadowed above, and –
a)bearing in mind that the children's best interests remain the overriding consideration;
b)taking into account the objects and principles set out in s 60B; and
c)having regard to my discussion of the evidence before me and the s 60CC factors above,
I conclude that it is in the best interests of the children for the sojourn to proceed.
225In reaching the above conclusion:
a)I have not required the mother to demonstrate "compelling reasons" for the sojourn;
b)I have done my best to evaluate the two broad proposals advanced by the parties;
c)I have not considered myself wholly bound by the parties' proposals;
d)there has been no need for me to separate the notional issue of whether the sojourn should proceed from the question of with whom the children are to live (because it has been conceded that the children should continue to live with the mother);
e)I have done my best to weigh the evidence and submissions as to how each proposal holds advantages or disadvantages for the children's best interests;
f)I have done my best to follow the legislative pathway (to the extent that that term adequately describes the relevant process) as I have described it in my earlier discussion of the law;
g)I have recognised that the mother's freedom of movement is an important consideration, but I have also recognised that her right in that regard must, if necessary, give way to the children's best interests; and
h)I have recognised that neither party bears any relevant onus of establishing that one proposal better promotes the children's best interests than does the other.
226Because the mother is to be the children's unchallenged primary caregiver, it is not possible to strictly separate what may be regarded as the children's best interests from the mother's circumstances, and her legitimate interests and desires. The law does not suggest otherwise, as the passage from the judgment of Kirby J in AMS v AIF that I have cited above makes clear. The mother's happiness and emotional health are clearly important considerations.
Orders
227The orders made on 6 February 2014 are as follows:
1.Paragraphs 6 and 7 of the Orders made on 3 April 2012 be suspended until 3 August 2015.
2.The Mother be permitted to relocate with the children, CHILD A [in] 2003 and CHILD B born [in] 2010, to City A, Thailand (Thailand) no earlier than 17 February 2014.
3.The Mother cause the children to resume living in Perth no later than 3 August 2015, after such time paragraphs 6 and 7 of the Orders made on 3 April 2012 shall resume.
4.The Mother shall make arrangements for the Children to be enrolled at The Local School, and the cost of same shall be borne solely by the Mother.
5.The Children spend time with the Father as follows:
a)in the April 2014 term break from 5 April to 19 April;
b)in the mid-year school holidays from 30 June to 27 July;
c)in the October 2014 half term break from 18 October to 25 October;
d)in the December 2014 term break from 15 December to 3 January;
e)in the February 2015 half term break from 14 February to 21 February;
f)in the April 2015 term break from 5 April to 18 April.
5AIn relation to the orders in paragraph 5, the following shall apply unless otherwise agreed between the parties:
a)the time the children spend with the father shall commence the day following the travel;
b)Child A shall spend the whole of the time continuing with the father, except in the period in 5(b) when he will return to the mother for 2 periods of 2 days, at times agreed between the parties;
c)in each of the periods 5(a), 5(d) and 5(f), Child B shall spend 3 days in the middle of the period with the mother;
d)in the period 5(b), Child B shall spend 4 days with the father, followed by 3 days with the mother until the conclusion of the time;
e)the time Child A spends with the mother referred to in paragraph 5A(b) shall coincide with the time Child B spends with the mother;
f)in the time referred to in paragraph 5(d), the children shall spend time with the mother from midday Christmas Eve at midday until Boxing Day 10:00am.
6.The Children spend further time with the father as follows:
a)at any time the Father is in City A, Thailand provided that reasonable notice is provided to the Mother and such time does not interrupt the children’s schooling; and
b)at any other times agreed between the parties.
7.The Father provide the Mother with notice of his intention to spend time with the Children under paragraph 5 by email no less than 1 month prior to the commencement of such time, and if no such communication is made it is accepted that the Father does not intend to spend time with the Children.
8.The Mother pay the cost of the Children’s travel to and from Perth to spend time with the Father in accordance with paragraph 5, with the Mother or other agreed adult to accompany the Child on all such trips unless agreed between the parties.
9.The Children communicate with the Father liberally by Skype, Facetime and Viber contact:
a)at any time the Children wishes to communicate with the Father;
b)at times and dates to be agreed between the parties; and
c)the Mother will provide the Children with privacy during such calls, without interruption.
10.When the Children spend time with the Father under this order, the Mother may communicate with the Children liberally by telephone and other electronic means and the Father will provide the Children with privacy during such calls, without interruption.
11.In the event that the paternal grandparents or other family members travel to Thailand, the Mother is to make the Children available to spend time with them whilst they are in Thailand.
12.The parties provide information to each other in relation to the Children’s health within 48 hours of attendance on a medical practitioner, or in the event of an emergency as soon as practicable.
13.Each party provide the other with a contact telephone number and keep the other party informed of any changes to that telephone number.
14.Each party keep the other informed of their home address and provide 28 days’ written notice of any change of address.
15.The Mother:
a)authorise the Children’s school to provide the Father with copies of school reports, notices, other publications and any information he may request about the Children; and
b)will keep the Father informed of the children’s significant school and extracurricular activities.
16.If during the time the children live in Thailand DFAT issues a travel warning for Thailand at level 4, “Do not travel”, the mother will do all things to return to Australia with the children as soon as practicable.
17.If during the time the children live in Thailand DFAT issues a travel warning for Thailand at level 3, “Reconsider your need to travel”, the mother will reconsider the living arrangements for the children in consultation with the father.
18.Within 28 days of the delivery of reasons for judgment, the mother file and serve a:
a)Minute of orders she seeks in relation to costs;
b)Affidavit on which she seeks to rely;
c)Submissions in support of her orders sought; and
d)Form 13- Financial Statement.
19.Within 28 days of service of the mother’s documents, the father file and serve:
a)Minute of orders he seeks in relation to costs;
b)Affidavit on which he seeks to rely;
c)Submissions in support of his orders sought; and
d)Form 13- Financial Statement.
20.The question of costs is to be determined on the papers and without further appearance by or on behalf of either party.
21.The parties attend mediation to discuss the holiday periods for the children upon resumption of the Orders of 3 April 2012, such mediation to occur during either of the periods referred to in paragraphs 5(e) and 5(f) of these orders, or earlier if for any reason the children’s return date is before 3 August 2015.
22.All extant applications otherwise be dismissed.
I certify that the preceding [227] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
______________________________________
1 If the court is considering whether to make an order with the consent of all parties, it is not required to have regard to all or any of the listed factors (although it may do so if it wishes) ─ see s 60CC(5)
2 See s 61DA(3); it is important to note, however, that the Full Court in Goode (at [78]) held that the discretion in s 61DA(3) should not be exercised "in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult."
3 How a court determines "reasonable practicality" is the subject of s 65DAA(5)
4 "Substantial and significant time" is defined in s 65DAA(3)
5 How a court determines "reasonable practicality" is the subject of s 65DAA(5)
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