F and M

[2006] FCWA 66

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY COURT ACT 1997
LOCATION:	PERTH
CITATION:	F and M [2006] FCWA 66
CORAM:	HOLDEN CJ
HEARD:	12-14 JUNE 2006
DELIVERED:	30 JUNE 2006
FILE NO/S:	PT 1620 of 2006
BETWEEN:	F

Applicant Father

AND

M

Respondent Mother

Catchwords:

Residence - relocation

Legislation:

Family Court Act 1997 Part 5

(Page 2)

Family Court Act 1997 s 66

Category: Not Reportable

Representation:

Counsel:

Applicant Father	:	Mr Klimek
Respondent Mother	:	Mrs Brownlie

Solicitors:

Applicant Father	:	Legal Aid WA
Respondent Mother	:	Legal Aid NSW

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

B & B; Family Law Reform Act 1995 (1997) FLC 92-755
(Page 3)

1 Before me are the competing applications of the parties each seeking residence of [SF], born March 1999 (aged 7) and [BM] born September 2002 (almost 4). In the event that the mother is granted residence she wishes to reside in [the Eastern states]. At the conclusion of the trial, I made orders:

(a)	that the children reside with their mother;
(b)	that the mother be permitted to relocate to [the Eastern states]; and
(c)	certain orders for defined contact.

2 I indicated that I would give reasons for the making of those orders at a later date. These are those reasons.

3 The children’s father is [NF], who was born February 1972 and who is 34 years of age. Their mother is [SM], born May 1973 (aged 33). The parties commenced a relationship in 1994 and commenced living together in [the Eastern states] in 1995.

4 The parties and [SF] moved to Perth in late 1999. It would appear that the parties separated in early 2004. Initially, both children resided with their mother. After a short time, [SF] went to live with her father because the mother was battling with pressure and depression, a fact which she freely admitted. In August 2005, the father ceased work to remain home with [SF].

5 In November 2005, the mother and [BM] commenced residing in the father’s premises as the wife had been evicted from her rental accommodation for non-payment of rent.

6 On 3 February 2006, the father ejected the mother from the home. On 11 February 2006, she took the children to [the Eastern states]. The children have remained in [the Eastern states] since that date, except for a week of holiday contact with their father. The father then instituted these proceedings. He made a Form 2 application in a case on 22 March 2006 seeking inter alia that the children be returned to him in Western Australia.

7 On 11 April 2006, a Magistrate dismissed that application and ordered that the father have contact with the children:

(Page 4)
(a)	by telephone each Tuesday, Thursday and Saturday between the hours of 6.30 pm and 7 pm Western Australian time;

(b)	for one half of each of the [the Eastern states] gazetted school holiday periods as agreed between the parties, and failing agreement for the first half.
(c)	such other times as may be agreed between the parties from time to time.

I am satisfied that the mother fled to [the Eastern states] to escape the father’s physical and verbal aggression.

8 The issue of domestic violence was hotly contested at trial. The father only admitted to one incident when he slapped the mother across the face with wet clothing approximately 10 years ago. The mother, on the other hand, asserted that there had been considerable domestic violence throughout the entire relationship.

9 In arriving at the conclusion that I have it is apparent that I prefer the evidence of the wife. I prefer her evidence because, although there were relatively minor inconsistencies in her evidence and in the evidence that she gave at trial, as compared with evidence she gave in violence restraining order proceedings, I am satisfied that she was, for the most part, a credible witness. Furthermore, her evidence was corroborated by witnesses called on her behalf, whom I also found to be credible witnesses. This is particularly true of the father’s stepmother, [SS].

10 In my view the father’s evidence was unreliable. He clearly did not tell the truth with respect to various matters. Two examples will suffice and they are:

(a) he indicated that he was receiving treatment for his problem with alcohol and in his evidence in chief led me to believe that he was succeeding with that counseling and that he had his drinking under control; only drinking one or two beers after work. His stepmother, on the other hand, gave evidence as to the father’s drinking habits when he had the children for a period of one week’s contact a few weeks before trial and lived with them in his parents’ house. Her evidence was that the father would begin with two of the large bottles of beer and then change to port. She indicated that his port glass was never empty and that this occurred every night. Her evidence was that when he drank to this

(Page 5)

extent he becomes angry and more

confrontationalist.

(b) The father does not enjoy a good relationship with his father. Both he and his father denied that they had ever had a physical altercation. [SS], however, gave evidence that in either 2001 or 2002 on the occasion of [the father’s] birthday, she received a telephone call to come and collect her partner who had been in a fight with [the father] and which also involved his sister. She said that when she arrived [the father] was very angry and that all three were in a bloody condition.

The case for each of the parties

11 To her credit, the mother, except for the issue of domestic violence, was not critical of the father as a parent. At all material times she acknowledged that he was a good father and indicated during the course of her evidence that she would never say otherwise.

12 The father, on the other hand was not so charitable. The main focus of his case appeared to be establishing that the wife suffered from a mental illness. I do not find that to have been established. She admitted from the very outset that she suffered from depression which was now controlled by a prescribed drug regime with which she was compliant. There was no independent evidence that she suffered from any other mental illness or that her depression precluded her from being a good mother to the children.

13 She was unmercifully cross-examined about events in her life until I stopped that cross-examination. That included questioning her about being raped when she was younger, discovering the murdered body of a friend of hers, and a stillbirth whilst in a relationship with the father. Until she finally broke down in the witness box, for reasons which I fully understand, she exhibited enormous composure and strength when being led through these unhappy memories. The mother impressed me greatly as a witness and as a person. Her case was that, notwithstanding the father was a good father, the children generally would be better off in her care.

Applicable law

14 These proceedings fall to be determined pursuant to Part 5 of the Family Court Act 1997. Section 66 of the Act sets out the object of Part 5 and the principles underlying the object as follows:

(Page 6)
“66 (1)	The object of this Part is 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.

(2)

The principles underlying these objects are that, except when it is or would be contrary to a child’s best interests -

(a)	children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
(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;
(c)	parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d)	parents should agree about the future parenting of their children.”

15 Section 90 provides that in deciding whether to make a particular parenting order in relation to a child I must regard the best interests of the child as the paramount consideration.

16 Identical provisions are contained in the Family Law Act 1975. The inter-relationship between Sections 60B, 65E and 68F(2) has been explained by the Full Court of the Family Court in B & B; Family Law Reform Act 1995 (1997) FLC 92-755. The Court described the inter-relationship in the following terms:

“9.51 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

(Page 7)

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.

9.52 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.

9.53 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 (l) “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.

9.54	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 (l) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual 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
(Page 8)
in s. 60B which are relevant in that case. But s. 65E defines the essential issue.

9.55 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.

9.56 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.

9.57 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 Mallett (1984) FLC ¶91-507; (1984) 156 CLR 605, and ZP v PS (1994) FLC ¶92-480; (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.

9.58 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

(Page 9)

Judge will then evaluate all the relevant issues in order to reach a conclusion which is in that child’s best interests.”

17 Although numbered differently, both the Family Law Act 1975 and the Family Court Act 1997 have identical legislative provisions. The above comments are therefore equally pertinent to cases decided under the Family Court Act 1997.

Orders sought by each party

18 By an amended application for final orders, filed 7 June 2006, the father seeks the following orders:

Upon the Amended Form 1 Application filed by the Applicant Father on 6 June 2006 and the Amended Form 1A Response filed by the Respondent Mother on 29 May 2006, the following Orders be made:-

1. All previous child welfare orders be discharged.

2. Within 7 days of these Orders, the Mother return the children [SF] born March 1999 and [BM] born September 2002 to the Father.

3. The parties share responsibility for any decisions affecting the long term care, welfare and development of the children.

4. Upon the completion of the paragraph the parties be restrained and an injunction be granted restraining them from relocating the residence of the children outside of the Perth Metropolitan Area without the prior written agreement of the other party.

5. The Mother be restrained and an injunction be granted restraining her from using or allowing any other person to use any means of corporal discipline upon the children.

6. The parties be restrained and an injunction be granted restraining them from the following:

6.1.	Denigrating the other party or any other significant person in the children's lives to them or within their hearing distance, or from allowing any other person to do so; and
6.2.	Using any illicit drugs 24 hours prior to or during a care period of the children.

(Page 10)

7. The Father be restrained and an injunction be granted restraining him from consuming alcohol to excess 12 hours prior to or during a care period of the children.

8. The parties enrol in and attend until completion the Kinway "Mums and Dads Forever" course as soon as practicable and the parties furnish upon each other documentary evidence of their enrolment and completion of the course as soon as such evidence becomes available to them.

9. The parties notify each other of any medical emergency or significant illness in relation to the children as soon as practicable whilst the children are in their respective care.

10. The children exercise reasonable telephone contact to each parent whilst they are in the care of the other parent.

11. The schools at which the children attend be directed to provide copies of all correspondence that is ordinarily sent to parents to each party and each party be authorized to correspond with the schools and to attend any event at or in relation to the schools that parents may ordinarily attend.

12. The parties at all times keep the other party advised of their residential address, landline and mobile telephone numbers.

13. In the event that a party travels with the children interstate that party provides the other party not less than 21 days of departure in writing, as well as any updated information in relation to the following:

13.1. An address at which they will primarily reside;

13.2. a landline telephone number at which the children may regularly be contacted upon; and

13.3. A copy of the children's travel itinerary.

The Father's First Proposal

14. The children reside with the Mother as follows:

(Page 11)

14.1. Each alternative weekend during the school term from after school Friday to before school Monday;

14.2. Each intervening week during the school term from after school Tuesday to before school Thursday;

14.3. For the first consecutive week of each term school holiday period from after school on the final day of the school term to 3.30pm on the day a week later;

14.4. For three weeks during each Christmas school holiday period concluding at 3.30pm on the final Friday of such period;

14.5. In 2006 and each alternative year thereafter from 9.00am on Christmas Eve to 2.00pm on Christmas Day;

14.6. In 2007 and each alternative year thereafter from 2.00pm Christmas day to 5.00pm Boxing Day;

14.7. From 9.00am on Mother's Day to before school
the following day;

14.8. Care be suspended from 9.00am on Father's

Day; and

14.9. Any further or alternative period as agreed upon
between the parties in writing.

15. The children reside with the Father for the balance of the time to that set out in the preceding paragraph.

16. For the purposes of handover that cannot be conducted through the children's schools, such occur by the collection and delivery of the children at the Paternal Grandfather's residence.

Further or in the alternative to the Father's First Proposal:

The Father's Second Proposal

17. Children reside with the Mother as follows:

17.1. For 2 out of each 3 weekends during the school term from after school Friday to before school Monday;

(Page 12)

17.2. In each week during the school term that the children do not reside with the Mother during the weekend from after school Tuesday to before school Thursday;

17.3. For the first consecutive week of each term school holiday period from after school on the final day of the school term to 3.30pm on the day a week later;

17.4. For three weeks during each Christmas school holiday period concluding at 3.30pm on the final Friday of such period;

17.5. In 2006 and each alternative year thereafter from 9.00am on Christmas Eve to 2.00pm on Christmas Day;

17.6. In 2007 and each alternative year thereafter from 2.00pm Christmas day to 5.00pm Boxing Day;

17.7. From 9.00am on Mother's Day to before school
the following day;

17.8. Care be suspended from 9.00am on Father's

Day; and

17.9. Any further or alternative period as agreed upon
between the parties in writing.

18. Children reside with the Father for the balance of the time to that set out in the preceding paragraph.

19. The purposes of handover that cannot be conducted through the children's schools, such occur by the collection and delivery of the children at the Paternal Grandfather's residence.

Further or in the alternative to the Father's First and Second

Proposals:

The Father's Third Proposal

20. The children reside with the Mother as follows:

20.1. Each alternative week from after school Friday to before school the following Friday or at 3.30pm on Friday in the event of the Term school holiday periods;

(Page 13)

20.2. For three weeks during each Christmas school holiday period concluding at 3.30pm on the final Friday of such period;

20.3. In 2006 and each alternative year thereafter from 9.00am on Christmas Eve to 2.00pm on Christmas Day;

20.4. In 2007 and each alternative year thereafter from 2.00pm Christmas day to 5.00pm Boxing Day;

20.5. From 9.00am on Mother's Day to before school
the following day;

20.6. Care be suspended from 9.00am on Father's

Day; and

20.7. Any further or alternative period as agreed upon
between the parties in writing.

21. The children reside with the Father for the balance of the time to that set out in the preceding paragraph.

22. For the purposes of handover that cannot be conducted through the children's schools, such occur by the collection and delivery of the children at the Paternal Grandfather's residence.

Further or in the alternative to paragraphs 2 and 4 herein:

The Father's Fourth Proposal

23. Upon the Father residing in the state of [the Eastern states], the children reside with the parties pursuant to the Father's First, Second or Third Proposals.

24. For the purposes of handover that cannot be conducted through the children's schools, such occur by the collection and delivery of the children at the Maternal Grandmother's residence.

25. In the event that the Father does not reside in [the Eastern states]: 25.1.

25.1	The children reside with the Mother.
25.2.	The Father exercise contact with the children: 25.2.1. During each school holiday period;

(Page 14)

25.2.2. Reasonable telephone contact to include each Tuesday, Thursday and Friday initiated by the children between 4.00pm and 5.00pm Western Australian time; and

25.2.3. Any further or alternative contact as

agreed between the parties

25.3. The Mother meet all costs associated with the travel of the children for the purposes of facilitating contact and provide the Father with a copy of the children's travel itinerary not less than 21 days prior to each departure.”

19 By a Minute of Proposed Orders forwarded to the Court on 12 June 2006, the mother seeks the following orders:

1. That the children [SF] born March 1999 and [BM]

born September 2002 shall reside with the Mother.

2. That the Mother and the Father shall have the joint responsibility for making decisions about the long term care, welfare and development of the said children.

3. That the Mother and the Father shall have the responsibility for making decisions about the day to day care, welfare and development of the said children when the said children are in each party's respective care.

4. The Mother have leave to relocate the children's principal place of residence to [the Eastern states].

5. That the Father have contact with the said children as

follows:

(a)	For each of the [state] Gazetted School holiday periods;
(b)	By telephone each Tuesday, Thursday and Saturday between the hours of 3.30pm and 4.30pm Western Australia Time;
(c)	At such other times as agreed between the parties.

6. That for the purpose of the Father's contact as per these Orders, the Mother shall be responsible for the costs of contact as per 5(a) and shall purchase the children their

(Page 15)

flight fourteen days period to the children exercising contact with the Father as per these Orders and provide the Father with a copy of the children's itinerary seven days before the date on which the children are due to arrive in Western Australia.

7. That when the children are exercising block contact with their Father, the Mother shall have telephone contact with the said children each Tuesday and Saturday between the hours of 3.30pm and 4.30pm Western Australia time.

8. That the Mother shall authorise the school attended by each of the children to send to the Father directly copies of any report, newsletters and photographs and keep the Father informed on the progress of the children.

9. That each party is hereby restrained from consuming alcohol to excess or from using any illegal substances at anytime when the said children are in either party's respective care.

10. That each party shall notify the other of any medical emergency or significant illness suffered by the children or either of them at any time whilst they are in the party's respective care, and visit the children whilst hospitalised.

11. The Mother shall attend counselling at Relationships Australia or such other counselling required by his Honourable Court.

12. The Mother shall ensure the child [SF] attends counselling as required by this Honourable Court.

13. Both parties as soon as practical attend a parenting course.

IN THE EVENT THE FATHER RELOCATES TO [THE
EASTERN STATES]

14. If the Father lives in [a certain town] in [the Eastern

states]:

(a)	contact on two out of every three weekends but suspended on each Mother's Day.
(b)	One half of each school holiday period.
(c)	Father's Day.

(Page 16)

(d) Each other Christmas Day unless otherwise agreed.

15. If the Father lives in [another town], [the Eastern

states]:

(a) Contact during one half of each Gazetted School Holiday period the Mother to meet the associated costs of the children's transport.

(Page 17)

The best interests of the children

20 The first matter that I am required to take into account are any wishes expressed by the children and any factors (such as the children’s maturity or level of understanding) that I think are relevant to the weight I should give to the child’s wishes. I was not advised of any wishes expressed by either of the children and in the Papers for the Judge each of the parties identifies this factor as being not relevant. With that assessment I agree.

21 I am required to take into account the nature of the relationship with each of the children’s parents and with other persons. It appears on the evidence to be common ground that both parties enjoy a close and loving relationship with their children. It is true that when the mother relocated to [the Eastern states] the children behaved uncharacteristically towards her, including physically attacking her. I do not find any particular reason for this as to do so would be entirely speculative. Suffice it to say that the evidence of the mother and her mother is that the children are now well adjusted and settled in their new environment. It is also beyond dispute that the children enjoy a good relationship with both of their grandmothers and their partners.

22 I am required to take into account the likely effect of any changes in the children’s circumstances, including the likely effect of the children being separated from either of their parents or any other person.

23 The children have already been separated from their father and the evidence does not suggest that they are suffering any ill effects apart from an initial settling in period. In any event, the father’s very clear evidence was that if the mother was permitted to continue living in [the Eastern states] and in the [capital city] area in particular, he would move in order to maintain his relationship with the children. There may be attendant difficulties with making such a move but he admitted that he could easily obtain a job as a chef in [the capital city].

24 Counsel for the father suggested that it would be to their detriment to be separated from their paternal grandparents and, in particular [SS]. I am satisfied on the evidence that Ms [SS] intends to continue a great deal of involvement in the children’s lives and that the mother will ensure that happens. The submission of course also works in reverse. If the children were forced back to Western

(Page 18)

Australia, then contact between the maternal grandmother and her partner, with whom the children have been living for about four months, would be lessened. One can only speculate what effect a change in residence would have on [BM], who has always lived with his mother. On the case for each of the parties, the children have virtually been brought up together, notwithstanding the separation of their parents.

25 I am required to take into account the practical difficulty and expense of the children having contact with their father and whether that difficulty or expense will substantially effect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.

26 Obviously, the frequency of the husband’s direct contact with the children would be reduced. I am satisfied, however, that the contact that will enable the father to maintain a good relationship with his children. As far as expense is concerned, the mother has proposed that she be responsible for the cost of facilitating transport for contact. She will do this with the assistance of her relatives, one of whom is a [pilot] and who flies to Perth on occasion.

27 Counsel for the husband criticized the lack of independent evidence that the mother could facilitate contact financially. I have no reason to doubt that she can as she demonstrated in the most recent school holidays.

28 A feature of the father’s case (or at least his counsel) was that the mother was unlikely to promote a relationship between the children and their father. In my view, the evidence does not establish that this is likely. She has already facilitated contact. She gave evidence that she wants [SS], the paternal step-grandmother to remain involved in the children’s lives. Ms [SS] confirmed that this was so. She also confirmed that she and the mother enjoy a good relationship insofar as her contact with the children is concerned.

29 I am completely satisfied that the reasons for the mother’s move back to [the Eastern states] had nothing to do with the relationship between the children and their father but, rather, was to avoid conflict and to return to the bosom of her family. She has few friends or support network in Western Australia. In any event, all of the above is only applicable if the father remains in Western Australia, whereas his evidence is that he will move to [the Eastern states].

(Page 19)
30	I am required to take into account the capacity of each parent or of any other person to provide for the needs of the children including their emotional and intellectual needs. Insofar as their physical needs are concerned, I am satisfied that each of the parties can provide for them. It is true that at the present time the mother is living with her mother and her partner in a 2 bedroom unit, which requires the mother and the two children to sleep in the same bedroom. It is the mother’s evidence, which I accept, that they have the main bedroom which does not result in overcrowding. In any event, it is a temporary arrangement until the time arrives when she can arrange independent accommodation.
31	I am satisfied that it is the mother who is more likely to be able to provide for the children’s emotional and intellectual needs. The evidence, which was largely uncontested is that even when the parties were separated, it was the mother who assumed the responsibility for getting the children to school. The evidence, in my view, establishes that for whatever reason the father did not wake in time to ensure the older child’s attendance at school. This is largely corroborated by the evidence of [TB], [SF]’s school teacher last year. I am left in no doubt that the mother regards the children’s education as being more important than does the father.
32	It is true that the mother has suffered from depression for a number of years. It has not been established to my satisfaction that that has substantially interfered with her ability to care for the children. She is now on the proper medication with which she is compliant. There is no expert evidence with respect to her mental condition. It is common knowledge, however, that many Australians suffer from depression yet are able to function in their daily lives. In any event, the father’s alcohol dependency which he clearly does not yet have under control is a worry when it comes to him having the care of both of the children on a full time basis.
33	I am required to take into account the children’s maturity, sex and background (including any need to maintain any connection with the lifestyle, culture and traditions of aboriginal people or Torres Strait Islanders) with any other characteristics of the children which I think are relevant. In my view, this is not relevant in these proceedings.
34	I am required to take into account the need to protect the children from physical or psychological harm which is caused or that may be caused by:
(Page 20)
(i)	being subjected or exposed to abuse, ill-treatment, violence or other behavior; or

(ii) being directly or indirectly exposed to abuse, ill- treatment, violence or other behavior that is directed towards, or may affect, another person;

35 These young children have unfortunately been subjected to a turbulent relationship between their parents. Neither party seeks to justify that fact. Given the father’s dependence on alcohol and the evidence of his behavior when he indulges in alcohol, I could not be confident that he would not subject the children to behavior that might result in psychological harm. It was the father’s case that the mother had been physically abusive of [SF]. This allegation surfaced very late in the day and was not canvassed in his earlier affidavits. He primarily relies upon the evidence of Dr Dhammika Perera who provided a report dated 31 May 2006. In that report he said:

“On direct questioning as if she was happy at home I understood that she was living with her mother, who would be ‘mean to her’ when she was naughty. When asked as to how she was ‘mean’, [SF] reported that her mum would often smack her very hard over her face, head and upper arms.”

36 There is no independent evidence of any abuse by the mother to [SF]. The question then becomes whether or not the report of the doctor can be relied upon. I conclude that it cannot. I arrive at that conclusion because:

(a)	there is no evidence that the doctor is skilled in interviewing children with respect to abuse and, in any event, it would appear that he asked leading questions; and
(b)	the father was present in the same room while she was being interviewed.

In summary, I am not satisfied that the mother has been physically abusive to [SF]. My assessment of the validity of the Doctor’s report is reinforced by the evidence of the court counselor.

37 I am required to take into account each party’s attitude to the children and to the responsibilities of parenthood demonstrated by each of them.

38 I am satisfied that each of the parties has engaged in inappropriate behaviour in front of the children and that they

(Page 21)

therefore have demonstrated a lack of insight as to the best interests
of the children in this regard.

39 Some criticism was made of the mother that she had unilaterally, and against the express wishes of the father, relocated herself and the children to [the Eastern states]. Further criticism is made that once having done that, she did not facilitate communication between the children and the father. I have already indicated that in my view the mother was fleeing from domestic violence. The evidence does not suggest that she did not adequately facilitate communication between the children and the father. I am satisfied, as previously set out in these reasons for judgment, that the mother will facilitate contact.

40 It is asserted that the mother does not appear to have followed up with ongoing treatment for her mental health issues. In my view, the evidence establishes that whenever the mother has a crisis in her life, she seeks the appropriate counseling. She has exhibited remarkable insight as to when and how much counseling she needs.

41 I am required to take into account 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 children. In the Papers for the Judge the following assertion is made:

“k)

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

1. A change from the status quo and the children’s residence in Western Australia would likely lead to further proceedings more likely being instituted because the mother may further disrupt contact (particularly interstate contact for many reasons including cost), the Mother may have a turn in her state of mental health if she does not receive adequate support (or even receives abuse) from the Maternal Grandparents and the Father would likely then seek to relocate the children back to Western Australia.”

I find that assertion to be totally unsubstantiated.

42 Finally, I am required to take into account any other fact or circumstance that I think is relevant.

43 I reject the submissions made by counsel for the father in the Papers for the Judge. I do consider it relevant, however, that the

(Page 22)

father when the mother was subjected to the cross-examination to which I referred earlier, became distressed and during an adjournment apologized to the mother and said that cross- examination was not in accordance with his instructions. If that assertion is true then it raises significant concerns as to the conduct of counsel. This was not the only incident of such behaviour (if it occurred) because I clearly remember saying to counsel during the course of his cross-examination of the other that one does not cross-examination (willy nilly) but according to one’s instructions.

44 It is for these reasons that I made the orders that I did.

I certify that the preceding [44] paragraphs are a true copy of the reasons

for

judgment delivered by this Honourable Court

Associate