F and B
[2008] FCWA 132
•7 NOVEMBER 2008
[2008] FCWA 132
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY COURT ACT 1997 |
| LOCATION | : | PERTH |
| CITATION | : | F and B [2008] FCWA 132 |
| CORAM | : | THACKRAY CJ |
| HEARD | : | 21 AUGUST 2008 |
| DELIVERED | : | 7 NOVEMBER 2008 |
| FILE NO/S | : | PTW 4635 of 2007 |
| BETWEEN | : F |
Applicant/Father
AND
B
Respondent /Mother
Catchwords:
CHILDREN - With whom a child lives - Relocation
Legislation:
Family Court Act 1997
Family Law Act 1975, s 60B, s 60CC, s 61C, s 65DAA
Category: Not Reportable
[2008] FCWA 132
Representation:
Counsel:
| Applicant | : | Mr P Mugliston |
| Respondent | : | Mr M Berry |
Solicitors:
| Applicant | : | CB Legal |
| Respondent | : | DCH Legal Group |
Case(s) referred to in judgment(s):
AMS v AIF (1999) 199 CLR 160
B and B
Family Law Reform Act 1995 (1997) FLC 92-755
C and G [2006] FCWA 57
Carpenter and Lunn [2008] FamCAFC 128
Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450
G and C and Independent Children’s Lawyer [2006] FamCA 994
Goode and Goode (2006) FLC 93-286
Marsden and Winch (No. 3) [2007] FamCA 1364
Mazorski v Albright (2007) 37 Fam LR 518
Sealey and Archer [2008] FamCAFC 142
Taylor and Barker (2007) FLC 93-345
U v U (2002) 211 CLR 238
[2008] FCWA 132
1 [Mr F] and [Ms B] cannot agree where their three year old son, [Charlie], should
live. [The mother] wants to take [Charlie] to live in [the capital city] where most of her family lives, whereas [the father] wants [Charlie] to stay in Perth, where his family resides and where [Charlie] has lived all of his life.
Orders sought by father
2 When [the father] commenced proceedings in August 2007 he was proposing
that [Charlie] continue to live primarily with [the mother] and spend time with him on alternate weekends from 6.00 pm on Friday to 6.00 pm on Sunday, as well as on special occasions.
3 The orders sought by [the mother] in her Response filed in September 2007 proposed that [Charlie] live with her in [the Eastern states] and spend time with [the father] each alternate weekend from 3.00 pm on Saturday until 3.00 pm on Sunday. In his Reply filed in December 2007, [the father] sought an order that [the mother] be prohibited from relocating. He proposed that if [the mother] did relocate, [Charlie] should live with him and [the mother] could have contact with [Charlie] for up to two months each year in [the Eastern states].
4 Shortly prior to trial, [the father] filed a Minute of Proposed Orders which
assumed that [the mother] would return to [the Eastern states] without [Charlie] if she did not obtain the orders she was seeking. On that basis, [the father] sought an order for joint parental responsibility and an order that [Charlie] live with him and spend time with [the mother] in [the Eastern states] (at least initially) twice a year for a period of ten days. However, at the commencement of his cross-examination, [the father] made clear that his preference was for a continuation of the current arrangements, although “a bit more contact would be great”.
Orders sought by mother
5 The orders ultimately sought by [the mother] were contained in a Minute of
Proposed Orders filed shortly prior to trial. She sought no order in relation to parental responsibility. Otherwise, [the mother] sought orders permitting [Charlie] to live with her in [the Eastern states] and for [the father] to have periodic contact. During the balance of 2008 this would involve one block period of ten days. In 2009 it would involve two block periods of ten days in Western Australia, with [the mother] meeting the travel costs. In 2010 there would be two periods of ten days in Western Australia with an additional period of ten days at Christmas 2010, once again at [the mother]’s expense. (Although not reflected in the Minute, [the mother]’s trial affidavit indicated that it was intended that this arrangement would continue past 2010 – with there being two visits back to Western Australia in odd numbered years and three visits in even numbered years.)
6 [The mother] proposed that with effect from 2009, [the father] would be able to
have additional contact in [the Eastern states] and/or [a capital city nearby] for a period of up to ten days. During the trial it became apparent that [the mother] would also be agreeable to [the father] having such further time with [Charlie] in [the Eastern states] as he wanted, subject to her receiving notice. She also proposed that
[2008] FCWA 132
[the father] would have two hours contact by webcam on three occasions each week,
in addition to daily telephone contact (and in due course contact by email).7 Although [the mother] is very anxious to return to [the Eastern states] as soon as
possible, she indicated during cross-examination that she would not be strongly opposed to her departure being postponed until August 2009, so that [Charlie] could settle down in [the capital city] before commencing kindergarten in February 2010.
Credibility
8 There were significant discrepancies between the evidence given by the parties,
particularly concerning the nature of their relationship prior to separation, but also
concerning some events following separation.9 I did not find [the father]’s denials of his poor conduct towards [the mother]
during the relationship to be convincing. I consider that he significantly
underestimated the extent to which he was abusive and uncaring towards her.10 [The mother] was very “wound up” when giving evidence, as she is clearly quite
desperate to return to [the Eastern states]. As a consequence, part of her testimony was given in a somewhat theatrical fashion, but overall I was satisfied that the account she gave in her affidavit and in her oral evidence, especially concerning the nature of the parties’ relationship, was the more truthful version of events. Accordingly, where there was conflict in the evidence, I was inclined to believe [the mother]’s version.
11 Almost all of the witnesses who had filed affidavits were not required for
cross-examination. [The father]’s current girlfriend, [Ms P], was required. She presented as a very pleasant young lady and I am satisfied she told the truth as she understood it. The only witness on [the mother]’s side who was required for cross- examination on any issue of substance was [her sister]. She also seemed a very pleasant young lady who made many concessions favourable to [the father]. I was also satisfied that she had told the truth as she understood it.
12 I have no reason to disbelieve the evidence of the witnesses who were not
required for cross-examination. I considered some of what they had to say quite important, but I have not placed any weight on that part of their evidence which constituted hearsay or opinion.
Background
13 [The father] is 38 years of age and is the General Manager of a [business]. He
lives in a home he has recently purchased in [the southern suburbs]. [The father] formed a relationship with [Ms P] earlier this year. [Ms P] has been spending increasingly lengthy periods living in his home to the extent that she is now there more or less permanently. She has full-time employment.
14 [The mother] is 26 years of age. She lives in premises she rents from her aunt in
[a southern town]. She does not currently have employment, although she has worked
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in the [same business as the father] previously. She has not re-partnered since
separation.15 [The father] was born in Western Australia and has lived here most of his life.
He did travel to the Eastern States and Europe for an extended period in 2002 and he also spent a few months living in [the Eastern states] from late 2003 until early 2004.
16 [The mother] was born in Western Australia but lived in [the Eastern states]
from when she was a baby. She took up residence in Perth in April 2001 and met [the father] in February 2003. They commenced cohabitation in July 2003 but separated in the following month, when [the mother] returned to [the Eastern states]. [The father] followed her there and they reconciled, before agreeing to come back to Western Australia together in early 2004.
17 There is one child of the relationship, [Charlie F], born in June 2005. [Charlie]
is [the mother]’s only child. [The mother] suggested that [the father] had a child from a previous relationship but he categorically denied this. I accepted his evidence on this point.
18 [The mother] and [the father] separated in late July/early August 2007. [The father] was soon thereafter having contact with [Charlie] on each alternate weekend. In November 2007, [the mother] agreed that [the father] could have three additional hours of contact on the intervening weekend. [The father] has only ever taken up two of these three hours, claiming that he had misunderstood what was agreed.
19 [The father] comes from a [large family] and lives close to a number of his
relatives. He is estranged from his mother but has a good relationship with his stepmother, who he wants to be treated as [Charlie]’s grandmother. There have been some “ups and downs” in the family over the years, but I accept they are fairly close-knit. [The father] and [Charlie] spend a great deal of time with [the father]’s family during his alternate weekend contact visits.
20 [The mother]’s mother and stepfather live in [the Eastern states] and have done
so for many years. [The mother]’s father and his partner live close to [the mother]’s mother. [The mother]’s 82 year old grandmother also lives nearby. [The mother]’s only sibling, [her sister], aged 24, lived in Western Australia from March 2005 until May 2008 when she returned to [the Eastern states], where she now works as a [travel consultant]. [The mother] has four step siblings, all living in the [same] area, with whom she keeps in contact. There are other relatives in [other capital cities in the Eastern states]. [The mother] also has many friends in [the Eastern states].
21 During the time that [the mother] has been in Western Australia she has returned
to [the Eastern states] to visit family and friends on eight occasions. Her mother has visited her in Perth on six occasions and her father on three occasions. [The mother] has also had more or less daily telephone contact with her mother. Whilst [the mother]’s family is not as large as [the father]’s, I accept that they are a close-knit family unit. There have also been “ups and downs” between [the mother] and [her sister ] but my impression was that they have a close relationship.
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Applicable law
22 As the parties were never married, the proceedings fall to be determined under
the Family Court Act 1997 (WA). In the discussion that follows, reference will nevertheless be made to cases decided under the Family Law Act 1975 (Cth). The relevant provisions of the two Acts are substantially identical, with all amendments made to the Commonwealth legislation having been mirrored in the State legislation. In order to assist understanding of the cases, I intend to refer to the section numbers of the Commonwealth Act. The corresponding State provisions can be easily ascertained by reference to the annotations embedded in the Family Court Act 1997.
Best interests and the objects of the legislation
23 Section 60CA makes clear that I must treat [Charlie]’s best interests as the
paramount consideration. In doing so, I will be guided by the relevant objects of the legislation and the principles underlying them. The stated objects are to ensure that the best interests of children are met by:
“(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
24 These objects are more comprehensive than the previously stated object of the relevant part of the legislation. Prior to the 2006 amendments, the stated object was:
“…to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
25 The first of the four “new” objects is far from novel. It echoes two of the guiding principles which were previously to be found in the legislation, namely:
“(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and (b)
children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development…”
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26 The Full Court of the Family Court of Australia has previously considered the impact of statutory amendments dealing with the objects of the Family Law Act 1975. In B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at [9.2], the Full Court said this concerning the 1995 amendments to that Act:
“It is clear that many of the aims of the Reform Act are long-term, educative and normative. That is, they are directed towards changing the ethos where parents separate in the ways in which they think and act in their role as parents, in their approaches to resolving disputes about their children, in the ways in which lawyers act for the parents (and the children), in the approach by the Court in the adjudication of disputes and, more broadly, in the attitudes of society generally.”
27 Notwithstanding the changes of emphasis and terminology made by the 1995 amendments, the Full Court was in no doubt about the core task of judges entrusted with responsibility for making decisions about the welfare of children. The Full Court said at [9.51] to [9.60] (my emphasis added):
“In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII of the type to which we have referred, starts from that essential premise and it remains the final determinant.
The legislature has also made it clear that in that process the Court is required to have regard to both the provisions contained in s 68F(2) and those contained in s 60B.
The wording of s 68F(2) makes that clear — the Court "must consider" the various matters set out in (a)-(l) of that sub-section. That sub-section sets out a list of matters which the Court is required to consider to the extent that they are relevant to the particular case. The weight which is attached to any one consideration will depend upon the circumstances of the individual case and is a discretionary exercise by the trial Judge. The list is similar to the list contained in previous legislation but with the additions previously referred to. The list is not intended to be exhaustive. That is made clear by par (1) “any other fact or circumstance that the court thinks is relevant”. This simply underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of the particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.
Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s 65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub-section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual
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cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court's consideration of the matters in s 68F(2) and to the overall requirement of s 65E. The matters in s 68F(2) are to be considered in the context of the matters in s 60B which are relevant in that case. But s 65E defines the essential issue.
Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of the children in the particular case. Although the Attorney-General submitted that the inter- relationship between the three sections was as much about procedure as it was about substantive law, we think it would be a mistake for this essential exercise to be clouded by procedural or semantic issues.
The Court now, as previously, is required to determine what is in the best interests of the particular children (s 65E). It will direct attention to both of the other sections, but the weight to be attached to individual components of those sections may vary significantly from case to case.
This approach, which emphasises the essential importance of the exercise of the discretion in each case, accords with the approach otherwise adopted by courts to the discretionary provisions in the Family Law Act see for example the decision of the High Court in Mallett v Mallet … (1984) 156 CLR 605, and ZP v PS … (1994) 181 CLR 630. For many years in child related cases the legislature and the courts have consistently emphasised that the welfare or best interests of the particular child in the particular circumstances of that case is the determinant, and have eschewed the application of fixed or general rules as the solution. That continues to be the case; the Reform Act should not be understood as suggesting otherwise.
As a matter of proper practice and to ensure that this essential task is performed, a judge in the adjudication of such a case would be expected in the judgment to clearly identify s 65E as the paramount consideration, and then identify and go through each of the paragraphs in s 68F(2) which appear to be relevant and discuss their significance and weight, and perform the same task in relation to the matters in s 60B which appear relevant or which may guide that exercise. The trial Judge will then evaluate all the relevant issues in order to reach a conclusion which is in that child's best interests.
In this approach no question of a presumption or onus arises… The Act contemplates individual justice. Any question of presumption or onus has the potential to impair the inquiry as to what is in the best interests of the particular children. It may render the case more technical and adversarial, and may divert the inquiry from the facts relating to the children's best interests to legal issues relating to burdens of proof. The task is not “to be undertaken with a mind-set that defaults in favour of a pre-ordained outcome absent persuasion to the contrary”…
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In cases where there are no countervailing factors the s 60B principles may be decisive, not only because they are contained in s 60B but because they accord with what is in the best interests of the particular children. Where there are no countervailing factors, the Court may normally be expected to conclude that it is in the best interests of the children to have as much contact with each parent as is practicable. However, to attempt to impose that approach in cases where the best interests of the children may not indicate that conclusion as appropriate is contrary to the legislation and contrary to the long established views of this and other courts which deal daily with the welfare or best interests of children.”
28 It will be noted that the Full Court made many references in this citation to
s 65E, which was the provision making the best interests of the child the paramount consideration. Section 65E has now been repealed, but only for the purpose of advancing it to a position of earlier prominence in the Act. In my view, many of the remarks made by the Full Court in relation to the 1995 amendments hold true in relation to the 2006 amendments. In particular, it remains the case that the paramountcy provision defines the essential issue and the legislation still contemplates individual justice.
Parental responsibility and the outcomes the Court must consider
29 In enacting the 2006 amendments, Parliament has given legislative voice to what
was already a presumption that responsibility for making decisions about children should ideally be exercised jointly by their parents. The presumption in favour of equal shared parental responsibility does not apply if there are reasonable grounds to believe that either parent, or a person who lives with either parent, has engaged in child abuse or family violence (as defined by the Act). The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
30 In cases where the Court decides not to order equal shared parental responsibility, the legislation is silent about the outcomes the Court should contemplate in making the decision most likely to promote the best interests of the child. The High Court has said that in such matters the Court is “obliged to give careful consideration to the proposed arrangements of the parties”, but it is not bound by them: U v U (2002) 211 CLR 238. In undertaking that “careful consideration”, the Court is directed by the statute to take into account a catalogue of potentially relevant matters, which will be discussed later in these reasons.
31 If, on the other hand, the Court does propose to order equal shared parental responsibility, the Act requires the Court not only to have regard to that catalogue of potentially relevant matters, but also directs the Court to consider two specific outcomes.
32 First, by operation of s 65DAA(1), the Court is required to consider whether or not the child spending equal time with each parent would be in the child’s best interests and reasonably practicable. If such an outcome is found to be in the child’s
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best interests and reasonably practicable, the Court is then required to consider
making an order to provide for the child to spend equal time with each parent.33 Second, by operation of s 65DAA(2), if the Court decides that an “equal time”
order would not be in the child’s best interests or would not be reasonably practicable, the Court must consider whether or not the child spending “substantial and significant time” with each parent would be in the child’s best interests and reasonably practicable. If such an outcome is found to be in the child’s best interests and reasonably practicable, the Court must then consider making an order for the child to spend “substantial and significant time” with each parent. (The expression “substantial and significant time” is defined by s 65DAA(3)).
34 The Full Court has said in Goode and Goode (2006) FLC 93-286 at [64] that the juxtaposition of the provisions of s 65DAA(1) and (2) “suggests a consideration tending to a result, or the need to consider positively the making of an order” for equal time or substantial and significant time – provided such outcomes would be in the child’s best interests and reasonably practicable. The Full Court also said in Goode at [72] that the 2006 amendments evince a “legislative intent” in favour of substantial involvement of both parents in their child’s life, both as to parental responsibility and as to time spent with the child. However, the legislative intent is subject to many important qualifications. Fundamentally, it is subject to the need to protect children from harm, abuse and family violence. It is also dependent upon the arrangement being in the child’s best interests and reasonably practicable.
Controversy concerning the interpretation of s 65DAA
35 In his Paper delivered at the National Family Law Conference in Adelaide in
April 2008, the eminent commentator, the Honourable Professor Richard Chisholm, expressed concerns about the drafting of s 65DAA and the Full Court’s analysis of that provision in Goode, in particular the reference to s 65DAA as suggesting “a consideration tending to a result”. In order to appreciate Professor Chisholm’s argument, it will be helpful to set out s 65DAA(1), which I have earlier only paraphrased:
“(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”
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36 Professor Chisholm expressed his concerns about this subsection and the Full Court’s analysis in Goode as follows [footnotes omitted]:
“The drafting problem is this: since the child’s best interests are the paramount consideration, once the court has found that a particular order (here, equal time) is in the child’s best interests, and is reasonably practicable, so far as I can see the court would obviously go ahead and make that order. Doing anything else would be making an order that was not best for the child, and doing that would seem to be contrary to the principle that those interests are to be the paramount consideration. The word ‘consider’ is therefore mis-used in paragraph (c), because it suggests that there remains something else to be taken into account in deciding whether to make the order. The subsection should have stopped before paragraph (c).
The problem is not quite solved by the Full Court’s analysis in Goode. The Full Court quotes some perfectly appropriate authorities on the meaning of ‘consider’ – they contain no surprises. But then it says that the meaning of ‘consider’ in those decisions is ‘not entirely apposite to the meaning of the word in s 65DAA’. This is said to be so
because the juxtaposition of s 65DAA(1)(a), s 65DAA(1)(b) and 65DAA(1)(c) suggests a consideration tending to a result, of the need to consider positively the making of the order, if [the conditions in paragraphs (a) and (b) are met.]
The problem with this, I think, is that it treats the word ‘consider’ as having the same meaning in all three paragraphs. What I think the Full Court should have said is that the authorities cited were entirely applicable to the meaning of the word ‘consider’ in paragraph (a) and (b). As to paragraph (c), I think it should have said that despite the word ‘consider’ in paragraph (c), once the court has found that an order for equal time is in the child’s best interests, and is reasonable practicable, since the child’s interests are paramount, the court will ordinarily, if not inevitably, make that order. It is in this sense, and this sense only, that it can be said to be ‘tending to a result’.
The reason I think it worth bothering with this apparently pedantic point is that if the Full Court’s remark about ‘tending to a result’ is not understood as confined to paragraph (c), it could be taken to indicate that s 65DAA as a whole tends towards orders for equal time; or, in other words, that it creates something like a presumption favouring equal time. I am confident that the Full Court did not mean this, since such a statement would be quite wrong. It is crystal clear that the court’s obligation under the section is, essentially, to pay attention to whether equal time would be in the child’s interests – and, if it is, then of course to make the order. ‘Consider’, in paragraphs (a) and (b), means precisely this, as it does in the administrative law cases cited by the Full Court. The quote from the Full Court would be correct if their Honours had said that the administrative law definitions were not apposite to the meaning of the word ‘consider’ in
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s 65DAA(c). I suggest that this is what the Full Court must have meant to
say.”
37 I would venture, with utmost respect to Professor Chisholm, an alternative
approach to the interpretation of s 65DAA, which would have the benefit of allowing the word “consider” to be interpreted consistently wherever it appears in the section. As Hodges J said in Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452 [my emphasis added]:
“I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, and with especial force to words contained in the same section of an Act. There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section.”
38 I acknowledge these words may be treated as “the counsel of perfection” (as
suggested in the discussion in Pearce DC & Geddes RS, Statutory Interpretation in Australia, 5th ed., Butterworths, Australia, 2001 at [4.5]), and that it is legitimate for a
Court to give a different interpretation to the same word, even when construing the words of just one section of an Act. Nevertheless, in my view, an approach which allows the same meaning to be given to the critical word “consider” in all of the many places in which it appears in s 65DAA is to be preferred over an approach requiring differing meanings, provided the interpretation is consistent with the objects of the Act and the paramountcy provision.
An alternative approach to s 65DAA
39 The interpretation I propose for the word “consider” achieves the objective of
consistency and also sits comfortably enough with the formulation in Goode of “the need to consider positively” the making of certain orders. I accept, however, that it may not sit quite so comfortably with the alternative formulation proposed in Goode of “a consideration tending to a result”.
40 My interpretation of “consider” stems from asking two questions: Why would
Parliament merely require the Court to “consider” making an order that is both in the best interests of a child and reasonably practicable when the Court’s fundamental obligation is to make orders that are in the best interests of the child? Why not instead direct the Court to make such an order?
41 The answers can be provided by recognising that there may be a number of possible outcomes in one case that could be seen as promoting the best interests of the child and being reasonably practicable. Life is full of occasions when two different but tempting scenarios present themselves, with what may appear to be an equal measure of “pros and cons”. When faced with such alternatives, the competing factors are usually weighed before identifying those that ultimately make one outcome more appealing than another. Sometimes the final decision is made on the strength of nothing more than a “gut feeling” on the part of the individual, couple or family
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making the decision. On other occasions, it will be a matter of deciding whether
short-term or long-term advantages are to be given greater weight.42 The judicial officer allotted the task of making decisions for families employs
a process of reasoning which arguably is not dissimilar to that employed by families when weighing up the benefits of competing scenarios. One important difference, of course, is that families might choose the option that is seen as best for the family as a whole (or sometimes just for one member of the family), whereas the judicial officer must treat the child’s best interests as paramount.
43 The judicial officer will carefully assess all of the available outcomes and select
the one that stands out from the others. Selection of that outcome does not mean that the other options were not in the child’s best interests, it just means that the option which found favour was considered the “best” available. Having undertaken this process and come to a decision, the judicial officer will have discharged the legislative requirement to “consider” making all orders that would have been in the child’s best interests.
44 This approach to the interpretation of “consider” can be best understood when
applied to that range of cases in which there appears to be only a marginal difference between the competing proposals. Take, for example, a dispute as to whether a child will attend one excellent school instead of another excellent school. Or a dispute about where a child will live, when both parents are outstanding parents, but a shared care regime is impracticable. It would be straining the language in such cases to say that the proposal which was rejected was not in the child’s “best interests”.
45 I acknowledge that the views expressed above may be perceived by some as
heresy. Discussion of the legislation has hitherto proceeded on an unstated assumption that there can be only one outcome that is in a child’s best interests. If indeed such an assumption was correct prior to 2006, the way in which Parliament has chosen to amend the legislation requires reassessment of the language of the statute.
Relocation cases – best interests and reasonable practicability
46 Relocation cases are notorious for presenting options which whilst being starkly
different in outcome can be seen as potentially likely to promote the child’s best interests. The parties involved in such cases are often outstanding and highly committed parents. Many of them have never needed to involve the Family Court in resolution of any other issue concerning their child. Such parents do not generally make proposals that are contrary to their child’s best interests.
47 The judicial officer given the unenviable task of deciding such disputes may see
great benefits to the child associated with the proposed move to a new locale (or a return to a former locale) and at least as many benefits to the child associated with staying where they are. On the interpretation I have proposed above, both proposals may be assessed as being in the child’s best interests. This is arguably why judicial officers so frequently say that they have found the decision in a relocation case to be excruciatingly difficult.
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48 The “reasonable practicability” of the possible outcomes will assume crucial
significance in relocation disputes, especially when the relocation is to a far distant place. In such cases, if only one parent relocates, it is not generally practicable for children to spend equal time with each parent. It is also usually difficult to craft orders permitting children to spend substantial and significant time with the parent left behind.
49 The Full Court discussed these and other issues in Taylor and Barker (2007) FLC 93-345. The majority of the Full Court (hereafter “the Full Court”) acknowledged at [53] that prior to the 2006 amendments “the preferred approach” in relocation cases had generally been not to treat the relocation proposal as a separate issue, but rather as just one of the proposals for the child’s future living arrangements. The Full Court went on to say at [60] that although a relocation proposal should continue to be considered and evaluated in the context of the paramountcy provision, the proposal must also now be considered in the context of s 65DAA.
50 The Full Court in Taylor and Barker recognised at [62] that the Act gives no express guidance as to the appropriate order in which the relevant sections of the legislation are to be considered; however, the Court said it would seem only logical to make the necessary findings under s 60CC (which contains the list of relevant factors to be considered), before applying any of the provisions in which the determinative factor is the child’s best interests (which would include s 65DAA).
51 The Full Court went on to endorse the approach taken by the Federal Magistrate
in that matter, which involved consideration being given first to whether it was in the child’s best interests to spend equal time with each parent, without regard to the relocation proposal, before then moving on to consider whether an order for substantial and significant time was in the child’s best interests.
52 The Full Court noted at [78] that the legislation gives no guidance as to the stage
at which a Court should commence consideration of the relocation proposal, but said that if the Court found advantages in either the equal time or substantial and significant time scenarios, the Court would then be required to consider the “reasonable practicability” of such outcomes. In considering that issue, the Court said assistance would be gained from s 65DAA(5), which provides that in determining whether it is “reasonably practicable” for a child to spend equal time or substantial and significant time with each parent, the Court must have regard to:
“(a) how far apart the parents live from each other; and (b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and (c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and (d) the impact that an arrangement of that kind would have on the child; and
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(e) such other matters as the court considers relevant.”
53 The Full Court said at [79] that consideration of these matters would have
required the Federal Magistrate to evaluate the differing proposals of the parties and to consider whether a substantial and significant time regime would be “reasonably practicable” if one parent were to relocate. The Full Court said “this would seem to be a logical path to follow”, although it would not necessarily be erroneous to adopt a different approach, since the legislation does not prescribe the order in which relocation proposals are to be considered.
54 The Full Court then concluded:
“81. We acknowledge that his Honour's approach … which we have endorsed, does require that the matters which the court has to consider under that section (being "equal time" or "substantial and significant time"), must initially be considered without regard to any relocation proposal which might also be before the court. However any relocation proposal will then have to be balanced against the option of “equal time” or of “substantial and significant time” if either of those options has been found to be in the child's best interests, with the outcome normally emerging from a consideration of whether such an arrangement was “reasonably practicable”.”
55 A subsequent Full Court has made clear that nothing said in Taylor and Barker could be read as suggesting that a trial judge would ignore the relocation proposal when making the necessary findings under s 60CC. On the contrary, it would be expected that before moving to consider the equal time and substantial and significant time scenarios, the Court would have made all such findings: Sealey and Archer [2008] FamCAFC 142 at [67].
56 I intend to follow the course approved by the Full Court in Taylor and Barker. I will first make the necessary findings under s 60CC, having regard to all of the proposals before the Court, including the relocation proposal. I will then move on to consider the equal time and substantial and significant time scenarios, before considering the relocation proposal. In doing so, I will keep in mind that the legislation does not impose a legal onus on either parent to establish that the proposed relocation, the status quo or some other outcome will promote the child’s best interests.
57 I will also keep in mind that Western Australia is not the only place where
[Charlie] can spend equal time or substantial and significant time with both parents. (See in this regard the remarks of Gaudron and Hayne JJ in U v U (2002) 211 CLR 238 at [35] and [175] respectively.) Such outcomes can also be achieved if both parents move to [the capital city]. Therefore, if I considered it was in [Charlie]’s best interests, I could make an order that permits [the mother] to move to [the capital city], but at the same time make an order for [the father] to have equal time or substantial and significant time with [Charlie]. It would then be a matter for [the father] to decide if he wants to avail himself of the benefit of the order by moving to [the Eastern states].
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58 In approaching the dispute from this basis, I concur with the views expressed by
Professor Patrick Parkinson in his article in ‘Freedom of movement in an era of shared parenting: the differences in judicial approaches to relocation’ (2008) 36 Federal Law Review 145 that the remarks made by the Full Court in the last sentence of paragraph 81 of the judgment in Taylor and Barker (cited in paragraph 54 above) should be interpreted as meaning that the “relocation should not be treated as a given” when assessing the “reasonable practicability” of the equal time and substantial and significant time scenarios.
The “right” to freedom of movement
59 By the very nature of relocation disputes, the strong desire of one parent to stay
in the current locality is usually matched by the strong desire of the other parent to move away. The desires of one must inevitably give way to the desires of the other. There is nothing in the legislation which gives preference to the parent who wants to stay in the location in which the family happens to be living at the time of trial.
60 In making these observations, I accept that in the “typical” case, there may be
strong reasons to require one parent to remain in the area in which they have previously been living. However, this is not because there is any presumption in favour of the current geographical location, but rather because it will often be in the best interests of a child not to disturb their existing living arrangements – for example, because the child is well settled in a local community and happy in their school. In other cases, there may be countervailing factors, or these types of factors may not apply at all – for example, in C and G [2006] FCWA 57, I dealt with a “relocation” case that commenced within a matter of days of the arrival of both parents in Perth.
61 It is in this context I will deal with what has been called the “right of freedom of mobility of a parent” – see AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238. I recognise that my decision could impinge on [the mother]’s “right” to move back home to [the Eastern states]. If I refuse her application she will have to remain resident in Western Australia, as there is no way she would be parted from [Charlie]. On the other hand, if I grant her application, [the father] will be required to move away from his home if he wants to see [Charlie] more than a few times each year. As a matter of law, both parents will retain freedom of mobility, regardless of the decision I make. In reality, each of them will make decisions about where they will live based on my decision about what is in [Charlie]’s best interests. As was said in the High Court in U v U (supra at [89]):
“. …whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent.”
The primary and additional considerations
62 As will be apparent from the discussion above, my overriding objective in
navigating the complex statutory pathway must be to make the orders most likely to promote [Charlie]’s best interests. The legislation itself specifies those matters I must take into account in determining what orders I should make. Section 60CC divides
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these into what are called the “primary considerations” and “additional
considerations”.63 This dichotomy between “primary” and “additional” considerations was
introduced by the 2006 amendments. There has not been a great deal of judicial guidance concerning the way in which respect is to be paid to Parliament’s intention in specifying two factors as being the “primary” considerations. However, the Full Court (Warnick & Thackray JJ, with whom Le Poer Trench J agreed) said this in Marsden and Winch (No. 3) [2007] FamCA 1364:
“The present case is not an appropriate vehicle in which to undertake a detailed analysis of the implications of the legislation prescribing certain matters as “primary” considerations. It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.”
64 I also concur with the views expressed by Professor Chisholm on this topic in
his paper “The Family Law Amendment (Shared Parental Responsibility) Act 2006:
An Overview”, in which he said:“It is clear that the relationship between the “primary” and the “additional” factors cannot be that any primary considerations must necessarily outweigh any combination of “additional” considerations. First, the language of considerations involves matters of degree, not absolute. Second, such an approach would be inconsistent with the fundamental principle that the child’s best interests must be the paramount consideration… Third, and most obviously, it is expressly stated in [paragraph 51 of the Explanatory Memorandum] that there may be some instances where secondary considerations may outweigh the primary considerations.”
65 It is within this legal framework that I will proceed to determine this case.
The primary considerations
66 I turn first to the primary considerations:
The benefit to the child of having a meaningful relationship with both of the child’s parents
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67 Although this factor has been afforded a position of prominence in s 60CC, the
legislation does not provide a definition of the crucial expression “meaningful
relationship”.68 In seeking to give meaning to that expression, I have had the benefit of reading
the decision in Mazorski v Albright (2007) 37 Fam LR 518 in which Brown J provides a careful analysis of the various meanings given to the word “meaningful”. I respectfully adopt her Honour’s analysis and agree with her conclusion that it is appropriate to proceed on the basis that “a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child” and that it is “a qualitative adjective, not a strictly quantitative one”.
69 It will be observed also that the focus of this primary consideration is on “the
benefit to the child” of the relationship the child has with both parents. I respectfully concur with the thorough analysis of Bennett J in G and C and Independent Children’s Lawyer [2006] FamCA 994 to the effect that the benefit to a child of having a significant relationship with both parents cannot be treated as “a given” and that it is necessary for the Court to “evaluate the extent to which a meaningful or significant relationship with both of [the child’s] parents is going to be beneficial and of advantage to [the child] into the future”.
70 I consider it is imperative for [Charlie] to have a meaningful relationship with
[the mother]. She was far and away the parent most involved in caring for him prior to the separation. She has continued to be the parent with whom [Charlie] has spent most of his time since the separation. There would be no doubt that [Charlie]’s primary attachment is to [the mother]. [The father] readily concedes that [the mother] is an excellent mother and (notwithstanding the terms of the order he formally sought from the Court), he accepts that [Charlie]’s best interests would be served by him primarily living with his mother.
71 I accept there are also considerable benefits associated with [Charlie] having
a meaningful relationship with [the father]. In determining the extent of the benefit, however, I take account of the fact that [the father] played a fairly minor role in [Charlie]’s life prior to separation. I accept that [the father] was working long hours and that this was for the financial benefit of the family; however, I accepted [the mother]’s evidence that [the father] did not take up the opportunities available to him to have a more active role in [Charlie]’s upbringing.
72 On the other hand, [the father] is to be commended for the fact that since
separation he has taken up almost all of the time he has been allowed with [Charlie], notwithstanding the difficulty and expense associated with the travel. He has also paid appropriate levels of child support. I have absolutely no doubt that [the father] loves [Charlie] very much and wants to ensure the best possible future for him.
73 Given my firm satisfaction about [the mother]’s willingness to promote
[Charlie]’s relationship with [the father], I am satisfied that whatever orders I make, [the father] will have the opportunity to have a meaningful relationship with [Charlie] and that this relationship will be of benefit to [Charlie]. It will be far easier, of course, for [the father] to have such a relationship if he is living in close proximity to [Charlie], but it is my view that such a relationship can be achieved even if [Charlie]
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and [the father] are living in different States, especially if [Charlie]’s departure were to
be delayed until he is a little older.The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
74 [The mother] is concerned about the psychological impact on [Charlie] of having
witnessed what she described as [the father]’s “verbal abuse, denigration and aggression” towards her at handovers. For example, I accept that he called [the mother] “trailer trash” and a “fucking slut” in the presence of [Charlie]. ([The mother]’s evidence in this regard was corroborated by the evidence of her aunt who was not required for cross-examination.) [The mother] is also understandably concerned about [the father]’s lack of emotional sensitivity, for example by his practice of numerically grading affection of various family members.
75 I am not satisfied, however, that these matters would come within the definition
of “abuse, neglect or family violence” in the Act and they therefore cannot be treated as a “primary consideration”. They are nevertheless relevant and will be taken into account when dealing with the “additional considerations”.
Additional considerations
76 I now turn to discuss those of the additional considerations that appear to be
relevant.
The nature of the relationship of the child with —
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
77 [Charlie] has a very close relationship with his mother, who is his primary
attachment. I am satisfied he also has a very good relationship with his father. He has good relationships with his father’s extended family, although I am not satisfied those are of great significance, given the relatively short periods he has been spending with his father since separation.
78 In recent months, [Charlie] has been seeing a good deal of [Ms P] during his
time with his father. She impressed me greatly as a warm young lady with whom I am sure [Charlie] would have a very easy and happy relationship. I was also impressed by the fact that it appeared that [Ms P] holds no animosity towards [the mother].
79 [Charlie] would also have a relationship with members of [the mother]’s
immediate family, as there have been many visits back and forward and regular telephone communication with [Charlie]. [Charlie] in particular has had a lot to do with his [mother’s sister], who until recently was living in Western Australia.
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The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
80 [The father]’s case was presented on the basis that [the mother] would be likely
to be “vindictive” towards him and would therefore not be likely to encourage a close relationship between father and son. I could find no foundation in the evidence for this submission. On the contrary, I am satisfied that [the mother] has gone out of her way to encourage a good relationship between [Charlie] and [the father] and has sought to minimise the impact on [Charlie] of [the father]’s bad behaviour at handovers. In fairness to [the father], the way in which his case was presented did not seem to correspond with his own evidence in that, for example, he accepted without hesitation that if [the mother] were to be permitted to relocate to [the Eastern states], he had every confidence she would allow him additional contact with [Charlie] on relatively short notice.
81 I am very much less satisfied that [the father] would encourage a close and
continuing relationship between [the mother] and [Charlie]. Whilst he described [the mother] in Court as being “a fantastic mother” and he appreciates the importance of children having good relationships with their parents, [the father]’s past behaviour would suggest that he would take the opportunity from time to time to denigrate [the mother]. I am not satisfied he would refrain from doing so in the presence of [Charlie].
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from —
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
82 The likely effect of granting [the mother]’s application for relocation is that
[Charlie] will have much more limited opportunity to spend time with his father (unless he also relocates). He will also have very limited opportunity to spend time with his father’s extended family (who clearly love [Charlie] very much and would be devastated by his departure). Conversely, the relocation to [the Eastern states] would allow [Charlie] to resume his relationship with his [mother’s sister] and develop his relationship with his maternal grandparents and their partners and the other relatives he has in [the capital city]. His grandparents in particular have demonstrated a strong desire to be part of [Charlie]’s life and have provided, as best they can from a distance, significant support to [the mother] in the difficult circumstances she has experienced whilst living in Western Australia.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
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83 This is a matter of considerable significance, especially if [the father] decided
not to relocate to [the Eastern states] if [the mother] was permitted to go home with [Charlie]. [The father] gave evidence that the cost of a trip to see [Charlie] in [the Eastern states], including airfares, hire car, fuel and accommodation would be in the region of $3,000. He was not challenged on this assessment.
84 I accept that [the father] earns a well above average income and that he
anticipates earning more than $100,000 per annum in the future. I also accept that now he has acquired a new home he has significant financial commitments, in addition to his obligation to pay a fairly high level of child support. [The father] was nevertheless confident he would be able to afford to travel to [the Eastern states] on two occasions a year. In fact, at times in his evidence he seemed to concede he would be able to travel to [the Eastern states] four times a year.
85 [The mother] was not challenged on her claim that she would be able to afford to
bring [Charlie] back to Western Australia twice each alternate year (and three times in each intervening year). On these occasions, [the mother] will be able to stay in [the country town] with her aunt, who has been exceedingly supportive of [the mother] since the parties separated.
86 [The mother] will also be able to afford the cost of acquiring a suitable computer and webcam to facilitate electronic contact between [Charlie] and his father.
The capacity of —
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child),
to provide for the needs of the child, including emotional and
intellectual needs
87 I have no doubt about [the mother]’s capacity to provide for [Charlie]’s needs. I
was satisfied in particular that she has a very good understanding of his emotional
needs.88 I am satisfied that [the father] could provide a suitable home for [Charlie].
Although [the father] suggested that he would reduce his hours of work to look after [Charlie], I found it difficult to accept that he would be likely to do that other than for the short term. [Ms P] indicated she would be prepared to give up work to look after [Charlie]; however, she and [the father] have only been in a relationship for a short time. Long-term arrangements for [Charlie] could not be reliably constructed around her availability. Nevertheless, I accept that [the father] would make proper arrangements for [Charlie] if he ever lived with him, probably with the support of [Ms P] and/or extended family.
89 Whilst I accept he is not perceived in this way by relatives and friends, I formed
the view that [the father] is a fairly aggressive and domineering person who does not appreciate the impact of his behaviour on those with whom he has intimate relationships. I did not accept his denial of [the mother]’s allegation that he regularly
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referred to his own mother as “a slut”. He did not challenge [the mother] on her evidence about the way in which he numerically “graded” various members of the family. Given my acceptance of [the mother]’s evidence about the way he treated her during their relationship, I consider there are aspects of [the father]’s behaviour which need to change so that he can be the good role model for [Charlie] I am confident he wants to be.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
90 This is a factor of significance, given that [Charlie] is just three years of age.
However, there was no denial of the claim that [Charlie] has advanced communication skills for his age and enjoys talking for long periods. This is significant because it would, for example, be practicable for him to have regular telephone contact if he moved to [the Eastern states] and his father remained in Perth. It would also be feasible for them to keep in touch by webcam (although it would be unrealistic to expect a child of [Charlie]’s age to spend two hours at a time, three times a week on the computer as proposed by [the mother]).
91 The fact that [Charlie] is of [European] extraction is not of particular
significance in itself. What is of more significance is that close involvement with extended family is of considerable importance to [the father], just as it is important for [the mother] and her family.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
92 [The father] has demonstrated a good attitude to the responsibilities of
parenthood since separation in that he has maintained regular contact with [Charlie] and has paid proper child support. He has not demonstrated a good attitude to the responsibilities of parenthood in the way that he has spoken to [Charlie]’s mother, both prior to and after separation.
93 [The mother] has demonstrated a good attitude to the responsibilities of parenthood at all times.
Any family violence involving the child or a member of the child’s family
94 I accept that [the father] behaved roughly towards [the mother] in the manner
she described in her evidence. She conceded that these incidents occurred on only a very few occasions, but [the father]’s behaviour on those occasions was such that she was quite wary of him and she knew not to push him too far in arguments.
95 [The father]’s counsel suggested that the fact that [the mother] had withstood his
aggressive cross-examination indicated that she was capable of standing up for herself. That submission ignores the relevant dynamics. I have no doubt that [the mother] was genuinely worried about what [the father] might do to her if she pushed him too far.
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She knew she need not have the same worries about counsel who was cross-examining her in my presence.
Any family violence order that applies to the child or a member of the child’s family, if —
(i) the order is a final order; or
(ii) the making of the order was contested by a person
96 [The mother] sought a Violence Restraining Order shortly after separation but
agreed not to pursue it in return for an undertaking from [the father] that he would not
behave inappropriately.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
97 If the relocation were to be permitted, [the mother] would ensure that [Charlie]
would have all of the contact with [the father] permitted by the Court’s orders, hence it would be unnecessary for [the father] to take any enforcement proceedings. There is, of course, always a question mark in relation to issues of financial capacity to cover costs of travel for contact, but given that there was no challenge relating to [the mother]’s capacity to meet such expenses, I will proceed on the basis she will honour her promise that either she or her family will meet the cost of such trips.
98 If I were to refuse the application for relocation, it is likely that some years
hence [the mother] would make a further application. Indeed it was all but conceded during the course of the hearing that there would be a likelihood that at some stage [Charlie] would be permitted to live in [the Eastern states] with [the mother]. However, the fact there might be such further litigation is not a matter of great significance in my view.
Any other fact or circumstance that the court thinks is relevant
99 I find that the cost of accommodation in [the capital city] is cheaper than in
Western Australia (a fact about which there was no dispute.) [The mother] may therefore have a better chance of acquiring a stable home for herself and [Charlie] in [the Eastern states] than she does in Western Australia. I do not, however, consider this to be a matter of great significance.
Section 60CC(4) factors
100 I am also required to consider a variety of other matters set out in s 60CC(4).
The provision is lengthy and I do not intend to repeat it here. I have already dealt with the relevant matters adequately.
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Parental responsibility
101 [The father] sought an order for equal shared parental responsibility.
[The mother] did not seek such an order, but her counsel submitted that the effect of there being no order would be that there would be equal shared parental responsibility. I do not agree. In the absence of any order for parental responsibility, each parent would have full parental responsibility independently of the other. This is the effect of s 61C. (For a discussion concerning the difference between an order for equal shared parental responsibility and the parental responsibility which exists as a result of s 61C, see Goode (supra at [29]-[30].)
102 The legislation requires me to apply a (qualified) presumption that it is in
[Charlie]’s best interests for [the mother] and [the father] to have equal shared parental responsibility. It is unnecessary for me to consider whether the presumption applies, as I am satisfied it is in [Charlie]’s best interests for his parents to have equal shared parental responsibility. Both [the father] and [the mother] are committed to doing the best by [Charlie]. Whilst their relationship is not good, I consider they have the capacity to consult with each other (possibly in writing rather than verbally) in relation to major long-term issues. I also consider there is a likelihood that they would be able to come to agreements about such matters – once I have made the decision about where [Charlie] should be permitted to live.
103 As I propose to order equal shared parental responsibility, the legislation
requires me to consider making an order for [Charlie] to spend his time equally with each parent. I am not satisfied such an arrangement would be in [Charlie]’s best interests and neither parent is seeking such an outcome. At this time in his life I am quite satisfied that [Charlie] should spend most of his time with his mother. In reality, [the father] accepts this would be the best outcome for him.
104 I am next required to consider whether or not it would be in [Charlie]’s best
interests and reasonably practicable to spend “substantial and significant time” with his parents. There is no doubt that it would be in his best interests to spend such time with his mother, with whom he is very closely attached. I consider there are potential advantages for [Charlie] in spending substantial and significant time with his father and such an arrangement might be in [Charlie]’s best interests.
105 There are, however, practical difficulties. At present [Charlie] is living in
[the town] (where [the mother] has accommodation and moral support provided by her aunt) whereas [the father] is living in [the southern suburbs]. The distance between the two homes makes it difficult for [the father] to have involvement in [Charlie]’s daily routine. When [Charlie] commences school it would be difficult for him to have [Charlie] on anything other than weekends and school holidays. Clearly, these problems would be exacerbated if [the mother] were to move to [the capital city] and [the father] did not follow. If, on the other hand, [the father] decided to relocate to [the Eastern states], it would be practicable for him to have substantial and significant time with [Charlie].
106 One regrettable aspect of “relocation cases” is that the party opposing the move
is inclined to emphasise the reasons why it would be difficult/impossible for them to move. It is rare to find a parent opposing such a move who volunteers a willingness to
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follow the child if the relocation is permitted. Parents opposing the relocation inevitably (and no doubt genuinely) profess their great love for the child and their fervent desire to maintain a strong and continuing bond. When faced with the harsh reality of the child moving against their will, it would be reasonable to assume that at least some of these devoted parents would accompany the child and pick up their relationship in the new location – notwithstanding what they told the Court when opposing the move.
107 [The father] falls into the category of parent that I have described. He has given
evidence of the many good reasons why a move to [the Eastern states] would be unpalatable to him. Western Australia is his home and all his family and his friends are here. He has a very good job here and there is very little prospect, if any, of him being able to replicate his current income in [the capital city]. Nevertheless, he has extensive experience in the [industry] and it could be reasonably expected that he would obtain some form of employment sufficient to allow him to maintain himself, albeit insufficient to pay anything like the level of child support that he currently pays.
108 [The father] has in the past expressed a preparedness to live in
[the Eastern states]. I accept [the mother]’s evidence (which at least in part was corroborated by [the father]’s own testimony and by that of her relatives) that [the father] persuaded her to return to Perth in 2004 on the basis that they would build a financial base in Western Australia in readiness for their return to [the Eastern states]. I accept that [the father] later led [the mother] and other members of her family to believe that the return to [the Eastern states] would occur around the time that [Charlie] was to start school. Whilst such a move would not be as attractive to [the father] now that his relationship with [the mother] has ended, it does indicate that [the father] has been prepared to live away from his family and might be prepared to do so if that were to be the only means by which he could have regular contact with [Charlie].
109 I do not propose to make a finding about the likelihood of [the father] moving to
[the capital city] if [the mother] were to be permitted to relocate. Only one person knows that – and I presume [the father] will not make up his mind until he has had time to contemplate the outcome of these proceedings. What is important to appreciate is that [the father]’s reasons for wanting to stay in Perth are almost precisely the mirror image of why [the mother] wants to live in [the capital city]. Both their reasons are perfectly valid. Each wants to live near their family and each sees economic advantages associated with the place where they would prefer to live. Each will be devastated by the outcome if they are unsuccessful. Perhaps one telling point of difference is that there is no doubt that [the mother] would always choose to live where [Charlie] was living – regardless of the impact on her finances and the impact on her ability to maintain close association with her family and her friends.
110 I turn then to consider whether or not the relocation proposal is in [Charlie]’s
best interests. In my view it is. [The mother] is clearly the parent with whom [Charlie] should spend most of his time. [The mother] was not successfully challenged on her evidence in relation to her emotional fragility and the beneficial impact likely to follow as a result of having the proximity and support of her family. Having had the opportunity to see her in Court, I am quite convinced that the feelings [the mother] expressed were genuine and that there are likely to be adverse
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consequences for her emotional health and her ability to provide optimal care for
[Charlie] if she was to be forced to remain in Western Australia indefinitely.111 If [the mother] and [Charlie] were to remain living in Western Australia, I have
some difficulty envisaging circumstances in which [the father]’s time with [Charlie] in the future would move beyond weekend and holiday contact. The opportunities he would have to spend time with his father’s side of the family would therefore be limited to those times. If [Charlie] were to live in [the capital city], he would have far more extensive opportunities to spend time with his mother’s family, whilst still being able to come back to Perth for holidays to see his father’s family.
112 In coming to my decision I have been influenced to some extent by the
comparative lack of interest that [the father] showed in spending time with [Charlie] prior to the separation. That factor is of less relevance than it would otherwise have been because of the significant effort [the father] has made since separation to build and maintain a solid relationship with [Charlie]. However, I have also been influenced by [the father]’s poor behaviour towards [Charlie]’s mother both before and after the separation. This has an impact on my decision at a number of levels. Most importantly, for present purposes, it goes a long way towards explaining why [the mother] needs the support and security of her own family following the termination of a traumatic relationship.
Timing of move to [the Eastern states]
113 During the course of cross-examination it was put to [the mother] that she would
be prepared to accept staying in Western Australia until say August 2009 so as to give [Charlie] an opportunity to improve his relationship with his father (and his father’s extended family) prior to returning to [the Eastern states] to commence kindergarten in 2010. [The mother] conceded that she would be comfortable with such an arrangement, so long as she knew that she was guaranteed of being able to go home. She considered it was important that she be able to return to [the Eastern states] by August 2009 so that she had a chance to acquire accommodation; settle [Charlie] into a playgroup; and help him develop a network of friends prior to commencing kindergarten. She made clear, however, that her preferred position would be that she be allowed to go home more or less immediately.
114 I am satisfied that [the mother] and [Charlie] should be required to remain in
Western Australia for a period. [Charlie] is very young and his relationships with his father and his father’s family will be further strengthened by remaining here until well into 2009. It is my assessment that [the mother]’s emotional wellbeing will receive a profound lift once she knows she is guaranteed of being able to return to [the Eastern states] in what will seem to her to be the “not-too-distant future”.
115 Whilst there is an arbitrary element to this, I do not accept that [the mother]
needs to go home as early as August 2009 in order to have [Charlie] settled in for kindergarten at the start of the school year in 2010. In my view if she were to arrive back in [the Eastern states] at the beginning of December 2009, the two months that would then elapse before the commencement of kindergarten would be sufficient time for [Charlie] to settle down prior to commencing kindergarten.
[2008] FCWA 132
116 I should make clear that in coming to this decision I expect [the father]’s abuse
of [the mother] at changeover times to cease immediately. I can understand that he will be very upset by the Court’s decision and may feel inclined to express his frustrations and anger towards [the mother]. This will be upsetting to both [the mother] and [Charlie]. In the event that evidence were to emerge of this type of behaviour between now and December 2009, I would give careful consideration to expediting the date of [the mother]’s return to [the Eastern states].
Father’s time with [Charlie] prior to departure for [the Eastern states]
117 [The mother] said in cross-examination that she would be prepared to allow
[Charlie] any additional extra time with his father that [the father] wanted prior to her departure. The open-ended nature of this concession was strong evidence of the yearning [the mother] has to be allowed to go home and I accept the submission made on her behalf that the Court should specify the times, rather than leaving the matter open-ended.
118 Given that [Charlie] is at present not participating in any kind of formal
education and given the wide circle of loving family that [Charlie] will be leaving behind, I consider it would be appropriate, pending his departure for [the Eastern states], that [Charlie] be able to spend more time than he does at present with [the father]. I therefore propose to order that he spends seven out of every eight weekends with [the father]. Furthermore, as he has already enjoyed some extended periods with his father, I consider that he should also spend a few more extended periods with [the father] pending his departure. This will include Christmas this year, as [the father] agreed to [Charlie] spending Christmas last year with [the mother] and her family in [the Eastern states].
Terminology used in this judgment
119 These proceedings were instituted after the commencement of the State equivalent of the Family Law Amendment (Shared Parental Responsibility) Act 2006. The new legislation replaced the legal concept previously known as “contact” with the concept of a child “spending time” with someone. The legislation, however, does not prohibit the use of the noun “contact” in its everyday sense. In these reasons, I have used “contact” interchangeably with expressions such as “spend time with”. In doing so, I have not ignored the legislative intent, but rather have avoided the linguistic gymnastics that would otherwise have been necessary: Carpenter and Lunn [2008] FamCAFC 128 at [4].
| Orders | |
| 120 | Given that [the father] has not addressed the issue of the time he would wish to |
| spend with [Charlie] if he also elects to relocate to [the capital city], I do not propose to make any orders in that regard, but will give [the father] liberty to apply for appropriate orders if agreement cannot be reached on that issue. |
121 Subject to hearing from counsel, I propose to make the following orders:
[2008] FCWA 132
1. The father, [Mr F], and the mother, [Ms B] , have equal shared parental responsibility for the child of their relationship, [CHARLIE F ] born [in] June 2005.
2. The mother be permitted to relocate the child to, [the Eastern states] provided that the relocation does not take place earlier than 1 December 2009.
3. That pending the relocation the father spend time with the child as follows:
(a) On seven out of eight weekends from 6.00 pm on Friday until 5.00 pm on Sunday; and (b) For three periods of ten days at times to be nominated by the father on giving not less than 28 days’ notice to the mother, such time to include Christmas Day, Boxing Day and New Year’s Eve 2008. 4. That upon the mother relocating to [the capital city], [Charlie] shall spend time with (or have communication with) the father as follows:
(a)
In Western Australia on two occasions each year for a block period of ten days during the [the Eastern states] mid-year school holidays with the mother to pay the costs of the airfares and, while necessary, to accompany [Charlie] to and from Perth.
(b)
In 2010 and each alternate year thereafter, one additional period of ten days with the father in Perth to include Christmas Day, Boxing Day and New Year’s Eve with the mother to pay the costs of the airfares and, while necessary, to accompany [Charlie] to and from Perth.
(c)
Reasonable additional time in [the Eastern states] upon the father giving the mother not less than 21 days’ notice of his intention to spend time with [Charlie].
(d)
Communication by webcam on three occasions each week for periods of up to thirty minutes or such longer time as the mother shall reasonably permit and for this purpose the mother shall acquire a computer and webcam for use in her residence in [the Eastern states].
(e)
Daily communication by telephone, with the father to initiate the calls.
(f)
Communication by email when [Charlie] is able to manage such communication.
[2008] FCWA 132
5. The mother and the father shall be restrained and an injunction be granted restraining each of them from denigrating the other at changeover times.
6. In the event of the father breaching the terms of the aforesaid injunction the mother be at liberty to apply to the Court to expedite the date of her departure to [the Eastern states].
7. In the event that the father elects to relocate to [the capital city] and in the event that the parties are unable to agree the time to be spent by the father with [Charlie], the father have liberty to apply to the Court on short notice for definition of his time with the child.
8. That the Application, Response and Reply be otherwise dismissed.
I certify that the preceding [121] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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