EISNER and CANDACE

[2019] FCWA 134

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: EISNER and CANDACE [2019] FCWA 134

CORAM: O'BRIEN J

HEARD: 17 & 18 APRIL 2019

DELIVERED : 14 JUNE 2019

FILE NO/S: PTW 7172 of 2015

BETWEEN: MR EISNER

Applicant

AND

MS CANDACE

Respondent

Catchwords:

PARENTING– Where parties separated when child very young – Where child has been in primary care of the wife since separation, spending progressively increasing time with the husband – Where the wife wishes to move with the child to [Region A]– Where the husband opposes the proposed move and seeks orders to progress to an equal time arrangement – Turns on own facts.

PRACTICE AND PROCEDURE– Importance of personal conferral to the proper conduct of proceedings – Duties of lawyers to adduce only evidence which is relevant and of probative value – Principles for the conduct of child related proceedings

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms Anderson
Respondent	:	Mr Jones

Solicitors:

Applicant	:	Cobalt Legal
Respondent	:	HBR Family Lawyers

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

A Team Diamond Headquarters Pty Ltd v Main Road Property Group Pty Ltd (2009) 25 VR 189

Banks & Banks (2015) FLC 93-637

Bondelmonte & Bondelmonte (2016) 259 CLR 662

Real Estate and Business Agents Supervisory Board v Espanol Holdins & Ortin (in liq) & Anor [2007] WASCA 67

Virgtel Ltd v Zabusky (No.2) [2009] QCA 349

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Mr Eisner] (“the husband”) and [Ms Candace] (“the wife”) have been unable to agree the parenting arrangements to be made for their daughter, [K], born [in] 2013.

2Both parties presently live in Perth. Central to their dispute is the wife’s desire to move with K to live in [Region A].

Background

3The husband is a [statistician] who was born in 1973. The wife is a [yoga instructor] who was born in 1980. The parties began living together in March 2008, and were married in 2011. They separated in January 2015, and were divorced in April 2016.

4K has lived primarily with the wife, and spent time with the husband, since the parties separated.

5The parties have both re-partnered. The husband lives with his new partner [Ms B]. Their child together, a daughter, was born shortly prior to the trial. The wife is in a committed relationship with [Mr D], who lives in Region A and owns a home there.

6Proceedings were commenced by the husband filing an application [in] December 2015, in which he sought equal shared parental responsibility for K, and that she live with each parent for seven nights per fortnight, with multiple handovers. He also sought orders in relation to school holidays, communication, special occasions and other specific issues.

7The wife filed a response on 19 January 2016. She too proposed that the parties have equal shared parental responsibility, but otherwise proposed that K live primarily with her and spend time with the husband, gradually increasing to a routine where she would spend five nights per fortnight with him, including alternate weekends. She also sought orders for alteration of property interests and spousal maintenance.

8To the credit of the parties, the financial proceedings were settled by the making of consent orders [in] April 2017.

9Over the course of the parenting proceedings, various interim orders were made. From the husband’s perspective, it was necessary for him to return to court on a number of occasions to overcome resistance from the wife to him spending more time with K. From the wife’s perspective, the series of court events and orders simply represented a progression in K’s time with the husband as she got older.

10On 1 December 2016, orders were made for K to spend time with the husband in each week from 5.00 pm Wednesday to 7.00 am Thursday, from 12:30 pm to 6:30 pm Thursday, and from 5.00 pm Friday to 6.00 pm Saturday. Additional orders for telephone communication and Christmas arrangements were also made.

11[In] March 2018, those orders were discharged. Further interim orders were made providing for K to spend time with the husband from the conclusion of school on Wednesday to the commencement of school on Thursday each week, and each alternate weekend from the conclusion of school on Friday to 5.00 pm Sunday (“the current orders”).

12Shortly thereafter, the wife moved to Region A with K. She did not inform the husband of her intention to move. Notwithstanding the terms of a Minute attached to consent orders made [in] April 2016, it was the common understanding of the parties that there was no injunction in place at the relevant time precluding any change of K’s place of residence. Nevertheless, the wife acknowledged in retrospect that she had done “the wrong thing”.

13In the period immediately following her move, the wife continued to comply with the orders for K to spend time with the husband, transporting her to Perth for that purpose, albeit there were disputes about her punctuality.

14The husband brought the matter back to court, and an interim order was made by consent [in] June 2018 for the wife to return K to live in the Perth Metropolitan Region and enrol her at [School A]. The orders made by consent [in] March 2018 were to recommence with effect from her return. Otherwise, both parties were restrained by injunction from changing K’s primary place of residence to outside the metropolitan area, cancelling her enrolment at School A, and enrolling or applying to enrol her in any other primary school.

15Difficulties then arose in relation to the intended enrolment, as the wife had rented a property outside the relevant catchment area.

16The wife filed an amended response [in] August 2018. She continued to propose that the parties have equal shared parental responsibility, but amended her position to seek liberty to relocate with K to Region A, proposing that K spend time with the husband each alternate weekend and, albeit with a progression, half of school holidays.

17Further interim orders were made [in] August 2018, including orders for K to spend time with the husband “in all school holiday periods for three consecutive nights, then with the [wife] for four nights, the [husband] for four nights, and with the [wife] for the balance of the holiday period at the end of Terms 1, 2 and 3” and “with the pattern of 3/4/4/3 during Christmas holiday periods.”

18At the time of trial, K was living primarily with the wife and spending time with the husband in accordance with the current orders. The wife was living in [Suburb A] and the husband in [Suburb B].

Relief sought by the parties

19The husband initially sought orders in terms of a Minute filed by him [in] April 2019. As some confusion emerged in closing submissions as to the precise orders he sought, he was permitted without opposition to file a further Minute after the trial, clarifying his position. That Minute was filed [in] May 2019. He sought an order for equal shared parental responsibility, and an order that K retain her hyphenated surname. In the event that the wife remained with K in Perth, he proposed that K spend time with him for six nights a fortnight until she reaches the age of seven, and thereafter live with the parties equally on a week about basis, with handover to take place on Wednesday afternoons. In the event that the wife was permitted to move to Region A with K, he proposed that K spend equal time with each parent on a week about basis until the move, and thereafter spend each alternate weekend with him from 6.00 pm on the Friday until 3.00 pm on the Sunday, with the wife to undertake all necessary travel to facilitate that. He also sought orders prioritising long weekends with K for him.

20The wife sought orders in the terms of a Minute filed by her [in] April 2019. She sought sole parental responsibility, purporting to change the position she had consistently adopted in that regard since the commencement of the proceedings, and most recently in her amended response. She sought orders enabling her to immediately relocate with K to Region A, whereupon she proposed that K spend time with the husband each alternate weekend from after school Friday until 5.00 pm Sunday, with handover to take place at a café in [Suburb C], which on her case is roughly halfway between Perth and Region A. In the event that she was not permitted to relocate with K to Region A, or for that matter if both parties were living in Region A, she proposed that K nevertheless spend each alternate weekend with the husband from after school Friday to the commencement of school on Monday.

21Both parties sought detailed orders in relation to school holiday arrangements, special occasions, and specific issues.

Matters not in issue

22At the Status Hearing [in] April 2019, I ordered the parties to confer in person and file prior to the close of Registry on 15 April 2019 a joint Minute setting out those orders which could be made by consent whether or not the wife moved with K to Region A, any additional orders which could be made by consent in the event that she was permitted to move, and any additional orders which could be made by consent if she was not.

23Regrettably, particularly in circumstances where both counsel had expressed concern as to whether the trial could be completed in the two days allocated, the parties did not comply with that order. The Minute was not filed, and enquiries made by my chambers to the solicitors for the parties the day before trial were not fruitful.

24At the start of the trial, counsel told me that a draft Minute was available, albeit in an incomplete state, and requested the opportunity to finalise that document over the course of the trial. In response to a direct question from me, counsel acknowledged that the parties had not conferred in person as had been ordered.

25Quite apart from the obvious point that a specific order had been made, proper personal conferral is a critical feature of the proper conduct of litigation,[1] other than in exceptional circumstances including those in which family violence might render it inappropriate. It is necessary for the purpose of identifying the issues actually in dispute, endeavouring to resolve them, and if they cannot be resolved, narrowing them. The benefit to the parties of that approach, which frankly only reflects the basics of sound practice by lawyers in any event, is obvious. Correspondence, no matter how voluminous or frequent, is no adequate substitute for parties and their lawyers actually talking to each other.

[1] Real Estate and Business Agents Supervisory Board v Espanol Holdins & Ortin (in liq) & Anor [2007] WASCA 67.

26Over and above that, compliance with any mandated requirement for conferral is essential to effective case management in circumstances where the workload of the Court continues to increase, and where parties understandably wish to see their cases progress through the court system as promptly and cost effectively as possible.

27That efficiency can only be achieved if parties identify and narrow the matters actually requiring resolution by the Court, without consuming Court resources or judicial time in what should be a process preliminary to litigation, and certainly preliminary to trial.

28I made it clear to the parties and those advising them that the trial would not commence until they had complied with the clear orders made at the Status Hearing. The matter was stood down for that purpose, and with the assistance of their counsel the parties personally conferred.

29To their credit, by that process the parties were able to agree a number of orders which can be made by consent regardless of the determination of the central issues, and various other orders which can be made by consent dependent on that determination. Those orders will be incorporated in the draft orders set out at the conclusion of these reasons.

30Helpfully, and consistently with the approach mandated by Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”), the parties also identified common ground in relation to a number of the primary and additional considerations which inform the determination of what parenting orders are in K’s best interests.

31It was common ground that K has a meaningful, close and loving relationship with each of her parents, and that it is to her benefit for those relationships to be maintained.

32It was also common ground that K is not at risk of physical or psychological harm in the care of either parent.

33The parties agreed also that, given K’s age, maturity and level of understanding, no weight should be given to any views she may have expressed.

34The husband agreed that K has a beneficial relationship with Mr D. The wife was unable to express a view as to K’s relationship with Ms B, but did not contend that the relationship was other than beneficial, and did not dispute that K will likely benefit from a developing relationship with her new sister. It was common ground that K has a good relationship with her maternal grandparents, and will benefit from a continuing relationship with her paternal grandparents, with the obvious limitation that they live in [Country A].

35It was not in dispute that both parents have appropriately taken the opportunity to participate in making decisions about K, to spend time with her, and communicate with her. From the wife’s perspective, there have been communication difficulties in that process which need to be taken into account in the consideration of any order for parental responsibility.

36While there have been some issues between the parties about child support, it was not suggested by either of them that those issues inform the determinations to be made.

37Each party acknowledged the capacity of the other to provide for K’s needs, including her emotional and intellectual needs. The only caveat either raised in that regard was the wife’s concern that the husband might not be appropriately supportive of her relationship with K.

38Neither party suggested that the maturity, sex, or background of either of them or K would influence the determinations to be made. On the wife’s case, what she perceives to be the lifestyle benefits both for her and for K in living in Region A rather than suburban Perth is a relevant consideration.

39Both parties acknowledged broadly that the other has an appropriate attitude to K and to the responsibilities of parenthood. Consistently with the matters raised above, the wife expressed some concern as to the willingness of the husband to support her relationship with K, and what she perceives as his inflexibility. The husband expressed a concern that the wife’s eagerness to move to Region A reflects a lack of regard by her for the value to K of their relationship, and a lack of respect for his role as a parent.

40On each party’s case, there was an unfortunate physical confrontation between the wife and Ms B at a handover. The wife alleged that Ms B assaulted her; Ms B alleged that the wife assaulted her. Each applied for a Family Violence Restraining Order against the other; those proceedings were resolved by the giving of mutual undertakings without admission.

41At the commencement of the trial, both counsel acknowledged that the determination of that factual dispute between the wife and Ms B would not inform the decisions that need to be made. Given that it is common ground that there is no risk in either household of K being exposed to family violence, and bearing in mind the principles by which child related proceedings are to be conducted, that was a sensible approach. The parties agreed that the factual dispute in that regard did not require determination, and sensibly neither counsel cross-examined on it.

42The parties also agreed that by virtue of that incident the statutory presumption of equal shared parental responsibility does not apply in this case. That said, neither suggested that any perceived issues arising from the incident, nor issues regarding violence more generally, would inform the decision as to whether an order for equal shared parental responsibility is in K’s best interests.

The law

43The Court must be guided by the objects of Part VII of the Act and the principles underlying them.

44Parental responsibility is defined in s 61B as meaning all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Pursuant to s 61C, subject to any order of a court, each of the parents of a child who is not 18 has parental responsibility for that child.

45As noted above, it was common ground that the presumption set out in Section 61DA does not apply in this case. As such, the question of what order for parental responsibility should be made is to be decided by reference to best interest considerations, without a mandated starting point.

46If an order for equal shared parental responsibility is to be made, I am required to consider whether K spending equal time with each of her parents would be in her best interests, and whether such an arrangement would be reasonably practicable. If so, I am then required to consider making such an order.

47Again, against the background of an order for equal shared parental responsibility being made, if I do not make an order for K to spend equal time with each parent, I am required to consider whether spending substantial and significant time (as that term is defined in the Act) with each parent would be in her best interests and reasonably practicable. If so, I am required to consider making such an order.

48In determining what is in a child’s best interests, the Court must consider the matters set out in s 60CC. While those matters are divided in the legislation into primary and additional considerations, the primary considerations do not necessarily outweigh any combination of the additional considerations. The issues that are joined between the parties will dictate which s 60CC factors are relevant.

49The requirement to consider each matter set out in s 60CC does not mean that each factor must be expressly discussed in a judgment, where the factor in question has no sufficient relevance to displace the determinative significance of factors specifically discussed.[2]

[2] Banks & Banks (2015) FLC 93-637.

50In a parenting case where the proposals of one party involve the relocation of the child, there is no presumption against an order being made which permits relocation, nor is there a presumption in favour of a parent with whom the child predominantly lives at the time of or prior to the application. The parent wishing to move does not need to demonstrate “compelling” reasons to justify the proposed move, and the child’s best interests must be weighed and balanced with the proposed relocating parent’s right to freedom of movement. A Court should not lightly interfere with that right of freedom of movement, save and except where it is contrary to the best interests of the child.

51While the parent proposing to relocate is not required to justify the desire to move (beyond the Court being satisfied that the application is bone fide and not motivated by some ulterior consideration), it is appropriate for the Court to have evidence as to the benefits which that parent says flow from the relocation. The welfare of the parents is to be considered and balanced with the best interests of the child; that exercise necessarily includes an examination of the likely benefits to the parent of the proposed move, and the likely detriments of an inability to move.

52Ultimately, the making of a parenting order involves the exercise of judicial discretion. The primary considerations set out in the legislation are “matters to be borne in mind as consistent with the objects” of Part VII of the Act. The additional considerations set out in the legislation:

… require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child”.[3]

The evidence relied upon by the parties

[3] Bondelmonte & Bondelmonte (2016) 259 CLR 662, 77,094 [32].

53The husband relied on the following affidavits:

(1)His trial affidavit filed [in] October 2018;

(2)His further affidavit filed [in] December 2018;

(3)Affidavit of his partner, Ms B filed [in] October 2018; and

(4)Affidavit of his family friend, [Ms W] filed [in] October 2018.

54Ms W was not required for cross examination. Ms B was cross examined only briefly.

55The wife relied on the following affidavits:

(1)Her trial affidavit filed [in] November 2018;

(2)Affidavit of her mother, [Ms C] filed [in] November 2018;

(3)Affidavit of her father, [Mr C] filed [in] November 2018;

(4)Affidavit of her partner, Mr D filed [in] March 2019; and

(5)Affidavit of her family friend, [Ms S] filed [in] November 2019.

56Mr C and Ms S were not required for cross examination, and Mrs C and Mr D were cross examined only briefly.

57To my perception, both parties endeavoured to give their evidence honestly. While both were acutely conscious of their desired outcomes, and prone to argue their respective cases rather than simply answer questions, I did not interpret that as any indication of lack of truthfulness by either. For the most part, the factual disputes between them were likely differences of perception and interpretation rather than reality; they are two very different people, who see the world in different ways. Their respective perceptions of various events were likely also, entirely understandably, influenced by both their emotions and the stresses associated with dealing with each other after a difficult separation, and trying to resolve arrangements for the daughter they both love.

58None of the differences between them in relation to purely factual matters, without scope for differences of perception or interpretation, require determination to inform the decisions to be made.

59Similarly, the new partners of each party, to my perception, gave their evidence honestly and directly, as did the wife’s mother.

60Against that background, and given the range of matters not in dispute, it was unfortunate to say the least that the affidavits filed contained material that was irrelevant to matters in issue, of no probative value in any event even had more been in dispute, and potentially damaging to the ongoing parenting relationship between these two parties.

61While affidavits must always speak in the voice of the witness, and not in the voice of the lawyer who prepared them, in parenting proceedings lawyers have an obligation to counsel against gratuitous and unhelpful evidence, which is of no probative value in determining the best interests of the child but which can damage relationships to the detriment of that child. That obligation applies even where, whether due to insistence by the witness or to save costs, affidavits are largely drafted by the deponents and only “edited” by the lawyers involved. It would, in my view, apply even were it not for the express provision contained in s 69ZN(6), which requires that child related proceedings, as far as possible, be “conducted in a way that will promote cooperative and child-focused parenting by the parties”.

62In making that observation, I acknowledge that such advice may well have been properly and firmly given to the parties in this case; if so, it is regrettable that it was not followed. That said, the lawyer’s duty to the court goes beyond the duty described above.

63In all litigation, lawyers have a duty to give “sufficient consideration in preparing or presenting their case as to how they might best assist the court in the use of its limited resources”,[4] and to do all they reasonably can to ensure that proceedings are conducted in a timely and cost efficient way.[5] Adducing only that evidence which is relevant to matters actually in issue is fundamental to the discharge of those duties.

[4] A Team Diamond Headquarters Pty Ltd v Main Road Property Group Pty Ltd (2009) 25 VR 189, [15].

[5] Family Law Rules 2004 (Cth) r 1.04, 1.08; Legal Profession Conduct Rules 2010 (WA) r 36(1); Virgtel Ltd vZabusky (No.2) [2009] QCA 349, [30].

64The lawyer’s duties, while common to all civil litigation, are of particular importance in proceedings in this court, never more so than in parenting proceedings.

65It was to the credit of both counsel and the parties that, notwithstanding the unfortunate approach earlier taken, the trial itself was conducted in a manner consistent with those duties and the principles set out in s 69ZN.

The bona fides of the wife’s desire to move to Region A

66The husband did not concede that the wife’s wish to move to Region A was entirely bona fide. While he accepted that she wishes to live there, he expressed the view that she was motivated, at least in part, to put geographical distance between them, and reduce the opportunity for him to play a regular and frequent role in K’s life. That concern was consistent, in his view, with the wife’s proposal that she have sole parental responsibility.

67In short, I reject that expressed concern. The wife’s explanation for her desire to move to Region A was cogent and consistent. I accept that she prefers the lifestyle on offer there, and that she is genuine in her view that the move would benefit her both personally and professionally. I accept also that she is close to her parents, and that they are in the process of retiring to Region A. Additionally, I accept that the wife is genuine in her pursuit of her new relationship, and that she and Mr D want to live together in the home he has purchased.

68While the wife bears no onus to justify her desire to move, I am comfortably satisfied that her expressed desire is bona fide.

Parental responsibility

69As noted above, the parties agree that the statutory presumption of equal shared parental responsibility does not apply in this case.

70Nevertheless, the conclusion that an order for equal shared parental responsibility is in K’s best interests is, in my view, readily reached.

71The parties are both devoted parents. They are also very different people. The husband is of Country A heritage, and works as a statistician. He is very structured in his thinking, and particular in his approach. The wife is of Australian heritage and is a yoga instructor. She is less structured in her thinking, and less particular in her approach to the day to day order of her life. She regards the husband as rigid and pedantic; he regards her as ‘free-range’ and unreliable.

72There have been communication difficulties between the parties, and some conflict between them at handovers, particularly in the period shortly after separation. Both must bear some responsibility for those difficulties. To a significant degree, they are reflective of the emotional circumstances surrounding the separation, the differences between the parties in personality and approach, and the stresses associated with their uncertainty regarding the outcome of litigation.

73To their credit, both parties appear sincere in their desire to communicate better. Both acknowledged that in recent months their communication has improved. Both would hope for continued improvement once the court proceedings are behind them.

74Given that both parties are devoted and intelligent parents, I regard it as important that K continue to have the benefit of important long term decisions about her being made jointly, incorporating their admittedly differing perspectives and qualities. Those perspectives and qualities will, it is to be hoped, complement and balance each other in the decision making process, to K’s long term benefit.

75I propose to make an order for equal shared parental responsibility.

The Primary and Additional Considerations

76As already noted, the primary considerations are not contentious; nor are many of the additional considerations.

77The potential impact on K of a change in her circumstances is in issue. From the husband’s perspective, the wife’s proposed move to Region A will remove her from a familiar environment, and reduce the frequency with which she can have personal contact with him, Ms B and her new sister. He refers to K being familiar with, and settled in, the home which he has rented for some considerable time, and to her having made friends in the neighbourhood. The proposed move would also render impractical the progression to a more equal shared parenting arrangement which the husband regards as being in K’s best interests.

78From the wife’s perspective, the impact of the proposed change in circumstances would be positive, for the reasons already referred to. On the wife’s case, the positive impacts on her of the proposed move will in turn benefit K. Even leaving aside the wife’s views as to the desirability of K growing up in a country town, and availing herself of the various activities referred to over the course of the trial, she points out further that K’s current regular overnight weekend time with the husband will be largely unaffected.

79More particularly, the wife argues that, in effect, the progression towards equal time proposed by the husband itself represents a far more significant potential change of circumstances for K than the proposed move to Region A. That is so, as the wife has been K’s primary carer since her birth, and the parties separated when K was only 17 months old. While the gradual progression of the husband’s time with K since separation is perceived by him as reflective of having to fight every step of the way for additional time, viewed objectively it is more reflective of K’s age and state of development as time passed.

80The husband’s proposals would also depend heavily on a parenting contribution by Ms B. In that sense, his evidence at trial was somewhat inconsistent with that of his new partner. On his evidence, he presently works an average of between 40 to 45 hours per week if busy, and occasionally less. He has some flexibility to work some hours from home. He generally leaves home for work between 7.00 am and 7:30 am, returning early on Wednesdays to spend time with K but otherwise generally arriving home between 5:30 pm and 6.00 pm. He then occasionally does additional work at home after the evening meal.

81When asked whether, in the event that K was living in Perth and spending block time with him, she would have to go into either before or after school care, he said that she would not. When asked whether Ms B would be responsible for getting K to and from school, he said that the responsibility would be shared between them, and that perhaps he would work longer hours on days when K was living with the wife. In his affidavit material, he had noted that while Ms B was then employed as a [recruitment officer] and enjoyed flexible work arrangements, she would be ceasing work at the end of March 2019 for the birth of the new baby, and that would in turn “create sole financial dependency of [Ms B], [K] and [the new] baby on [his] income” resulting in a “high financial strain on [the] family”.

82When she was cross-examined, Ms B confirmed that she was on parenting leave for 12 months. She indicated her intention to return to work at the end of that period, working about 38 hours per week from roughly 8.00 am - 8:30 am to 4.00 pm - 4:30 pm each weekday. When asked about the care arrangements for K and the new baby once she returns to work, she said initially that she would “plan to give that to [the husband]” and that they would be “playing tag essentially, so he’ll take time off.” She accepted the proposition that he would be taking paternity leave from his employment. When pressed, she described those as “preliminary plans” saying they had not really been “solidified at this stage”. Her later explanation of what practical arrangements would be made on a daily basis described the current arrangements rather than any changed future plan. When pressed on the concept of the husband taking parenting leave, she acknowledged that she and the husband did not know what sort of work he would be undertaking in the future, but said that she was able to support the family on her income. She then said that, as distinct from taking parenting leave, the husband would “basically not go into the workforce for 12 months”.

83I conclude that, were orders in the terms proposed by the husband to be made, a very significant change in K’s circumstances would inevitably follow, most particularly against the background of the wife’s undisputed role as her primary carer to date. The evidence of the husband as to just how that would be managed, and how much responsibility for K’s care would fall to Ms B rather than to him, was vague and did not appear to have been the subject of careful consideration, or for that matter detailed discussion with Ms B.

84In contrast, the wife’s proposals for K’s care, and her own work arrangements, were clear. I conclude that if the wife moves to Region A as planned, she will remain able to care personally for K outside school hours, with only minimal scope for intrusion by her work commitments. Her plans to conduct her practice from the home already purchased by Mr D appear well thought out and logical, and have clearly been discussed and agreed with him.

85On the wife’s proposals, therefore, notwithstanding the obvious geographical change and the impact of that on the frequency of K’s time with the husband, in a very real sense K’s circumstances will change less than they would on the husband’s proposals.

86As may be inferred from what is set out above, I have considered whether a progression towards equal time would be in K’s best interests; I conclude that it would not. While K clearly loves her father and has a meaningful relationship with him, as already noted she has been in the primary care of the wife since birth, and particularly since the parties separated when she was only 17 months old. The evidence does not support a conclusion that a change as significant as that proposed by the husband would be in her best interests. I note further in that regard the evidence of both the wife and Ms B describing K as a sensitive child who sometimes struggles to cope.

87I conclude that it is in K’s best interests to continue to live primarily with the wife. I conclude further that it is in K’s best interests for the wife to be permitted to relocate, as she proposes, to Region A. In those circumstances, it is common ground that arrangements for K to spend substantial and significant time (as that term is defined in the legislation) with the husband would not be practicable. I record that I would not regard a progression towards K spending substantial and significant time with the husband at this stage as being in her best interests, even if the parties were living in close proximity to each other.

Arrangements for K to spend time with the husband

88The parties largely agreed the orders which should be made in the event that I reached the conclusions outlined above. Specifically, they agreed the arrangements that should be made for K to spend time with the husband during school terms, and both compromised on their initial positions in relation to handover arrangements, agreeing that the husband will collect K from the wife at [Suburb D] at the commencement of his time with her, and return K to the wife at a café in Suburb C.

89The parties were not able to agree what arrangements should be made for K to spend time with the husband during school holidays. As will appear, in relation to some of the matters in dispute I propose to make orders not specifically sought by either party. The Court is not bound to simply choose between the proposals of the parties, subject to the requirements of procedural fairness. The orders I propose below are obviously open on the known material, such that there was no need to specifically foreshadow during the trial the possibility of them being made.[6]

[6] Stott & Holgar [2017] FamCAFC 152, [26].

90The husband proposed that for the holidays at the end of term two in 2019 K should spend the first five nights with him, the next eight nights with the wife, and the remaining three nights with him. The wife proposed that K should spend the first four nights of the holidays with the husband, the next four nights with her, a further four nights with the husband, and the balance of the holidays with her. It will be seen that the difference between the two positions is very minor, with both parties proposing that K spend the same number of nights overall with the husband, and both proposals involving the same number of handovers.

91Given the wife’s evidence as to K’s continuing progression to spending more time out of her care, I regard her proposal as preferable.

92The husband proposed that for the holidays at the end of term three in 2019, K should spend the first six nights with him, the next seven nights with the wife, and the remaining three nights with him. The wife proposed the same arrangement as that which she proposed for the end of term two. In my view, it is appropriate for K’s time with the husband to continue to progress to longer blocks, with a view to both improving the quality of her time with the husband, and reducing the number of handovers over time. Accordingly, while it was not specifically proposed by either party, I regard it as being in K’s best interests for the arrangements at the end of term three in 2019 to be those which the husband proposed should be in place at the end of term two.

93The husband proposed that for the holidays at the end of the 2019 school year, K spend half the holidays with each parent, in alternating blocks of eight nights. The wife proposed that K spend half the holidays with each parent, in alternating blocks of five nights. Given the wife’s concession that she would have no objection to the husband taking K to Country A for 10 days during those holidays, provided that she was able to maintain electronic communication with her, I see no reason why a progression closer to that proposed by the husband should not occur. For the sake of simplicity and to reduce the potential for miscommunication and dispute, I regard a default position of an alternating weekly arrangement as preferable to the husband’s proposal. That is not, of course, to say that the parties could not agree a different arrangement from time to time, particularly if the number of days in the school holiday period make that more convenient to them.

94The husband proposed that for the school holidays at the end of term one in 2020, K spend the first seven nights with him, and the balance with the wife. The wife proposed that K spend eight nights with the husband, comprised of five consecutive nights with her, five consecutive nights with the husband, three consecutive nights with her and the balance of the holidays with the husband. Consistently with my earlier observations about a steady progression, and bearing in mind the benefits to K of reduced handovers, I regard the husband’s proposal as preferable.

95The husband proposed that, for the school holidays at the end of terms two and three in 2020, K spend the first eight nights with him and the balance with the wife. The wife proposed the same arrangement as she had proposed for the holidays at the end of term one in 2020.

96The husband proposed that for the school holidays at the end of term one and three in 2021, and for alternate years thereafter, K should spend time with him for the first 10 nights of the holidays, and the balance with the wife. At the end of term two, he proposed that K should spend the whole of the holidays with him. The wife proposed that K should spend eight nights of those school holidays with the husband, comprised of six nights with him, followed by six nights with her, followed by two nights with him and the remainder with her.

97Commencing in 2022, and for each alternate year thereafter, the husband proposed that for the school holidays at the end of term one, K should spend the whole of the holidays with him. At the end of term two, he proposes that K should spend the first 10 nights of the holidays with the wife and the balance of the holidays with him, and that K should spend the first 10 nights of the holidays at the end of term three with him and the balance with the wife.

98On the wife’s proposal, K would spend half of each of those school holidays with each parent, alternating between the first and second halves.

99In my view, for the reasons already expressed, a simple arrangement whereby K spends half of each of the short school holidays with each parent, commencing in the holidays at the end of term two in 2020, is preferable. I propose to set a “default” position directing which half of each of those holidays she should spend with each parent; it goes without saying that if the parties agree a different arrangement about a particular holiday, or for that matter agree to alternate complete holiday periods, that will remain open to them. As earlier noted, they are both intelligent people and both have K’s best interests at heart; they will understand the difficulties presently faced in trying to mandate what specific arrangements will be best for K’s school holidays in circumstances where she will continue to mature, and will no doubt develop interests and have other opportunities which will require the parties to communicate, and seek some flexibility for her benefit.

100The proposals of the parties for Christmas school holidays beyond the end of 2019 also differed.

101The husband proposed that for the holidays at the end of the 2020 school year, K spend half the holidays with each parent, in alternating blocks of 10 nights, and that he receive an additional four nights during the wife’s final block of time. The wife proposed alternating blocks of six nights. In my view, an arrangement with alternating blocks of 10 nights, without the additional element proposed by the husband, is preferable. Any ‘gap’ between the end of the last 10 night block and the start of the new school year should be divided equally between the parties.

102The husband proposes that from December 2021 K spend half the school holidays with each parent on a fortnightly rotation, with an additional four nights with him in what would otherwise be the wife’s last block of time; the wife proposes a weekly rotation on an ongoing basis. Doing the best that I can on the available evidence, I regard a continuation of the 10 day rotation as more appropriate until the holidays at the end of the 2023 school year, by which time K will be 10. Subject to any alternative agreement between the parties, a fortnightly rotation can commence from that point. Again, any ‘gap’ between the last rotation and the start of the new school year can be divided equally.

103Again, I emphasise for the benefit of the parties that the orders which I make in relation to holidays represent the “default” position to which each must conform if they do not reach alternative agreements from time to time which they regard as being in K’s best interests.

Specific issues

104The husband sought orders whereby, if he is in Region A on either K’s birthday or his own birthday, K spend reasonable time with him. While the matter was not specifically agitated at trial, it is clearly in K’s best interests to see her father in those circumstances and, for that matter, to see her mother if she is in Perth on the relevant day. I propose to make orders accordingly.

105The parties had different proposals for K to regularly communicate with each parent by telephone while not in their care. Neither of the proposals were agitated at trial, although they were briefly touched on in cross examination; either proposal would facilitate desirable communication without either parent unduly intruding on the life of the other. I propose to make an order enabling each parent to contact K by telephone not less than twice a week while she is in the care of the other.

106The husband sought an order requiring the wife to enrol K in the relevant local school, and an injunction restraining her from altering that enrolment. That issue was not agitated at trial. In any event, as I propose to make an order for equal shared parental responsibility, any decision to enrol K in a particular school must be made jointly.

107Similarly, the husband sought an order restraining the wife from changing K’s principal place of residence to anywhere outside a 20 km radius of Region A, but that matter was not agitated at trial. The issue, to the extent there is one, is adequately addressed by the proposed order for equal shared parental responsibility bearing in mind the express provisions of the legislation.

108There was an inherent inconsistency within the joint Minute setting out the orders able to be made by consent, in the form of a provision that any extended travel with K by either parent could not intrude on the time she was otherwise scheduled to spend with the other parent, and other provisions permitting exactly that. On balance, and given in particular that the husband’s family resides overseas, I consider that the jointly proposed orders providing for some extended overseas travel, with make‑up time for the non-travelling parent in the event there is an intrusion on that parent’s time, are in K’s best interests. In the event that either party seeks to travel within Australia with K, extending into the time when she would otherwise be with the other parent that can be arranged only by agreement.

Proposed orders

109Subject to any submissions as to form, I propose to make the following orders:

1.All previous parenting orders be and are hereby discharged.

2.The parties have equal shared parental responsibility for the child of the marriage, [K] born [in] 2013.

3.The parties do all things necessary to ensure that the child continues to be known by the surname [Candace-Eisner].

4.[K] live with the wife, and the wife be permitted to change her principal place of residence to [Region A].

5.[K] spend time with the husband during school terms on each alternate weekend from 6.00 pm Friday, or the conclusion of school in the event the husband is in [Region A], to 4.00 pm Sunday.

6.[K] spend time with the parties during school holidays as follows;

(a)During the Term 2 School Holidays in 2019;

(i)With the husband for the first four nights;

(ii)With the wife for the next four nights;

(iii)With the husband for the next four nights; and

(iv)With the wife for the balance of the holidays

(b)During the Term 3 School Holidays in 2019;

(i)With the husband for the first five nights;

(ii)With the wife for the next eight nights;

(iii)With the husband for the next three nights; and

(iv)With the Wife for the balance of the holidays.

(c)During the summer School Holidays at the end of the 2019 school year;

(i)With the husband for the first week and each alternate week thereafter;

(ii)With the wife for the second week and each alternate week thereafter; and

(iii)For equal periods in the event of any ‘gap’ between the last of the alternate weeks and the commencement of the school year.

(d)During the Term 1 School Holidays in 2020;

(i)With the husband for the first seven nights; and

(ii)With the wife for the balance of the holidays.

(e)Commencing with the holidays at the end of Term 2 in 2020, during the short school holidays at the end of each term in 2020 and every alternate year thereafter;

(i)With the husband for the first half of the holidays; and

(ii)With the wife for the second half of the holidays.

(f)During the short School Holidays at the end of each term in 2021 and every alternate year thereafter;

(i)With the wife for the first half of the holidays; and

(ii)With the husband for the second half of the holidays.

(g)During the summer School Holidays at the end of the 2020, 2021 and 2022 school years;

(i)With the husband for the first 10 nights and each alternate 10 night period thereafter;

(ii)With the wife for the second 10 nights and each alternate 10 night period thereafter; and

(iii)For equal periods in the event of any ‘gap’ between the last of the alternate 10 night periods and the commencement of the school year.

(h)During the summer School Holidays at the end of the 2023 school year and each alternate year thereafter;

(i)With the wife for the first fortnight and each alternate fortnight thereafter;

(ii)With the husband for the second fortnight and each alternate fortnight thereafter; and

(iii)For equal periods in the event of any ‘gap’ between the last of the alternate fortnights and the commencement of the school year.

(i)During the summer School Holidays at the end of 2024 and each alternate year thereafter;

(i)With the husband for the first fortnight and each fortnight thereafter;

(ii)With the wife for the second fortnight and each alternate fortnight thereafter; and

(iii)For equal periods in the event of any ‘gap’ between the alternate fortnights and the commencement of the school year.

7.In the event that all parties are in the [Region A] and unless otherwise agreed between the parties, handover shall take place at the child’s school on school days, and at the [Location A], on non-school days, at the commencement and conclusion of each parents’ time with the child.

8.In the event that the husband is in the Perth metropolitan area and unless otherwise agreed in writing between the parties, the wife deliver the child to [Suburb D] at the commencement of the husband’s time, and collect the child from [Suburb C]. at the conclusion of that’s time.

9.Notwithstanding the above orders, [K] spend time with the parties as follows:

(a)If Mother’s Day falls on a weekend when [K] normally in the care of the husband, then the husband’s time with [K] be suspended and [K] spend time with the wife from 5.00 pm on the Saturday prior to Mother’s Day until 5.00 pm on Mother’s Day.

(b)If Father’s Day falls on a day when [K] is normally in the care of the wife, then the wife’s time with [K] be suspended and [K] spend time with the husband from 5.00 pm on the Saturday prior to Father’s Day, until 5.00 pm on Father’s Day.

10.Notwithstanding any other order, during the Easter period each year, [K] spend time with the parties as follows:

(a)In 2019 and each alternate year thereafter, from 9.00 am Good Friday until 5.30 pm Easter Saturday with the husband, and from 5.30 pm Easter Saturday until 5.30 pm Easter Monday with the wife; and

(b)In 2020 and each alternate year thereafter, from 9.00 am Easter Friday until 5.30 pm Easter Saturday with the wife, and from 5.30 pm Easter Saturday to 5.30 pm Easter Monday with the husband.

11.Notwithstanding any other order, during the Christmas period each year, [K] spend time with the parties as follows:

(a)In 2019 and each alternate year thereafter, from 9.00 am on 24 December to 9.00 am on 26 December with the wife, and from 9.00 am on 26 December until 9.00 am on 28 December with the husband.

(b)In 2020 and each alternate year thereafter, from 9.00 am on 24 December to 9.00 am on 26 December with the husband, and from 9.00 am on 26 December until 9.00 am on 28 December with the wife.

12.Other than the Easter or Christmas public holidays, where a public holiday falls on a Monday, any handover on the Sunday immediately prior to the public holiday be postponed by 24 hours.

13.With the exception of emergencies, the parties shall communicate by email with regard to [K’s] education, extra-curricular activities and any other significant events in [K’s] life.

14.The parties shall keep each other informed of their contact details, including telephone numbers and email addresses, within 48 hours of any changes occurring. The parties shall inform each other in writing 14 days prior to any change to their residential address.

15.On [K’s] birthday, the party who does not have [K] in their care be at liberty to have telephone or video call contact with [K] between 8.00 am to 9.00 am.

16.In the event that [K] is in the care of the wife on [K’s] birthday or the husband’s birthday, and the husband is in [Region A], [K] spend reasonable time with the husband on the relevant day.

17.In the event that [K] is in the care of the husband on [K’s] birthday or the wife’s birthday, and the wife is in Perth, [K] spend reasonable time with the wife on the relevant day.

18.The parent with the care of [K] from time to time shall do all things necessary to facilitate her communicating with the other parent by telephone or Skype or similar not less than twice per week.

19.In the event that the child wishes to have other telephone contact with the non-residential parent, the residential parent shall facilitate the child having telephone contact with the other parent via their mobile phone.

20.The parties be restrained and an injunction be granted restraining them from denigrating or describing in negative terms the other party and his or her partner, friends and family in [K’s] presence or hearing, and from allowing [K] to remain in the hearing or presence of any person denigrating or describing in negative terms the other party and his or her partner, friends and family.

21.In the event that [K] suffers any significant injury or illness, the parent with whom the child is spending time with at the time informs the other parent without delay of:

(a)The nature of the illness or injury;

(b)The name, address and telephone number of any medical or dental professional upon whom the child is being treated; and

(c)Any treatment that has been prescribed for the child.

22.Except in the case of a medical emergency, both parties shall obtain the other party’s prior written consent for significant medical, surgical, or dental procedure or intervention.

23.The parties authorise all medical and dental professionals to provide each parent with reports and other information regarding [K’s] health.

24.The parties are to keep each other informed as to [K’s] place of school and participation in extra-curricular activities in a timely manner.

25.The parties authorise the relevant school authorities to provide both parties with copies of all [K’s] educational, sporting, recreational, artistic or other related school reports.

26.Both parties have liberty to attend all assemblies, parent-teacher interviews, school carnivals, and other school events that parents would ordinarily attend.

27.Each party be permitted to travel interstate with [K] without the other party’s consent, provided that the interstate travel occurs during the travelling parent’s allocated time with [K] pursuant to these orders, with the travelling party to give 7 days’ notice of their intention to travel.

28.The husband have liberty to travel to [Country A] with [K] each alternate year, commencing no earlier than the summer School Holidays at the end of the 2020 school year, with the husband to:

(a)Nominate the dates of travel;

(b)Provide 30 days’ notice of the intention to travel; and

(c)Provide 30 days’ notice of the travel dates to the wife.

29.No earlier than the summer School Holidays at the end of the 2020 school year, each party be permitted to travel overseas with [K] on the following conditions:

(a)The travelling parent must notify the non-travelling parent of their intention to travel 30 days’ prior to their travel in writing, including proposed travel dates and location, except in the case of an emergency where the travelling parent can provide less notice;

(b)The travelling parent will provide a copy of the full itinerary, travel insurance policy and return airfare tickets to the non-travelling parent 30 days prior to travel;

(c)The travelling parent will in writing provide the non-travelling parent with contact details for [K] whilst they are away;

(d)The travelling parent will provide prompt notice of any changes to the travel itinerary; and

(e)Details of any inoculation or medical treatment [K] may need prior to the holiday, shall be provided 30 days prior to [K’s] departure by the travelling parent and copies of medical records showing that such treatments have been administered no less than 14 days prior to departure.

30.Any overseas travel with [K] shall not exceed a three consecutive week period.

31.In the event that any overseas travel impacts upon the non-travelling parent’s time with the child, the non-travelling parent shall be entitled to make-up time with the child for any time missed whilst the child is travelling.

32.The parties shall do all things necessary and sign all documents to obtain and keep valid both an Australian passport and [Country A] passport for [K].

33.Where a party fails or refuses to sign the relevant documents to obtain an Australian or [Country A] passport for [K], the requirement for that party’s consent be dispensed with.

34.The wife shall hold [K’s] Australian passport, and the husband shall hold [K’s] [Country A] passport.

35.The wife release [K’s] Australian passport to the husband no later than 14 days prior to his intended travel departure date, or earlier if required for an international Visa application. The husband shall return the passport to the wife within 7 days of [K’s] return to the Commonwealth of Australia.

36.Within 7 days of these Orders, the husband shall provide the wife with a certified true copy of [K’s] current [Country A] passport. The husband shall inform and update the wife with a certified true copy of K’s current [Country A] passport each time a new [Country A] passport is issued to [K], within 2 weeks of its issue or update. The husband shall notify the wife in writing 28 days prior to departure if [K] will be travelling outside of the Commonwealth of Australia on a [Country A] passport.

37.All outstanding applications and responses otherwise be dismissed.

38.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.

39.In relation to material tendered as an exhibit into evidence in these proceedings:

(a)all parties must contact the Chambers of Justice O’Brien to arrange the collection of their exhibits; and

(b)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.

40.In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 38 and 39 above do not apply

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM
Associate

14 JUNE 2019