Fallon and Fallon - [2010] FMCAfam 18

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FALLON & FALLON

[2010] FMCAfam 18

FAMILY LAW – Parenting orders – who children are to live with and whether they “return” to Perth now or in 2010.

Family Law Act 1975, ss.60B, 60CA, 60CC, 65DAA

Applicant:

MR FALLON

Respondent:

MS FALLON

File Number:

MLC 6721 of 2009

Judgment of:

Bender FM

Hearing dates:

10 & 11 December 2009

Date of Last Submission:

11 December 2009

Delivered at:

Melbourne

Delivered on:

15 January 2010

REPRESENTATION

Counsel for the Applicant:

Mr Ambrose

Solicitors for the Applicant:

Wisewould Mahony Lawyers

Counsel for the Respondent:

Mr McIvor

Solicitors for the Respondent:

Perry Weston

ORDERS

The parties have equal shared parental responsibility for the children [X] born [in] 1998 (“[X]”), [Y] born [in] 2003 (“[Y]”) and [Z] born [in] 2008 (“[Z]”).
The wife be permitted to forthwith relocate to Perth, Western Australia with [X], [Y] and [Z].
Upon the wife relocating to Perth with [X], [Y] and [Z] and whilst the husband is residing in Victoria, [X], [Y] and [Z] live with the wife and spend time with the husband as follows:
(a)for one week in each of the Western Australian term holidays in Victoria or such other location as the parties agree at such times as agreed between the parties and failing agreement, the first week;
(b)for three weeks in the long summer vacation in Victoria or such other location as the parties agree at such times as agreed between the parties and failing agreement, three weeks from 1 January;
(c)by telephone, email and SKYPE at any reasonable time;
(d)upon the husband visiting Perth, at times agreed between the parties; and
(e)as otherwise agreed between the parties.
The husband shall be responsible for all costs associated with his spending time with [X], [Y] and [Z] pursuant to order 3 herein.
Upon the husband residing permanently in Perth, [X], [Y] and [Z] shall reside:
(a)with the husband in a two week cycle from after school Monday to before school Wednesday and from after school Friday to before school Wednesday, and with the wife from after school Wednesday to before school Friday and from after school Wednesday to before school Monday;
(b)with each parent for one half of each of the school term holidays as agreed and failing agreement, the first half with the husband and the second half with the wife;
(c)with each parent for half of the long summer vacation as agreed between the parties and failing agreement, the first half with the husband and the second half with the wife;
(d)each parent shall be at liberty to telephone [X], [Y] and [Z] at any reasonable time whilst they are in the other parent’s care; and
(e)as otherwise agreed between the parties.
The living arrangements for [X], [Y] and [Z] pursuant to order 5(a) herein shall be suspended during the school holiday period and shall recommence on the fortnightly cycle on the basis they shall live with the husband from after school on the first Monday of each term.
Notwithstanding any of the provisions of order 5 herein:
(a)[X], [Y] and [Z] shall spend from 9.00am to 5.00pm on Father’s Day with the husband in the event they are not living with the husband on Father’s Day;
(b)[X], [Y] and [Z] shall spend from 9.00am to 5.00pm on Mother’s Day with the wife in the event they are not living with the wife on Mother’s Day;
(c)whichever parent they are not residing with on either of [X], [Y] and [Z]’s birthdays, [X], [Y] and [Z] shall spend time with that parent for three hours on their birthday if it is a school day at times agreed between the parties, and failing agreement from 5.00pm to 8.00pm and for five hours on their birthday if it is a non-school day at times agreed between the parties and failing agreement from 10.00am to 3.00pm;
(d)if [X], [Y] and [Z] are not living with either of the husband or wife on the husband or wife’s birthday, they shall spend time with that parent on their birthday for three hours if it is a school day at times agreed between the parties, and failing agreement from 5.00pm to 8.00pm and for five hours if it is a non-school day at times agreed between the parties and failing agreement from 10.00am to 3.00pm;
(e)with the husband from 4.00pm Christmas Eve to 4.00pm Christmas Day 2010 and each alternate year thereafter and from 4.00pm Christmas Day to 6.00pm Boxing Day 2011 and each alternate year thereafter; and
(f)with the wife from 4.00pm Christmas Day to 6.00pm Boxing Day 2010 and each alternate year thereafter and from 4.00pm Christmas Eve to 4.00pm Christmas Day 2011 and each alternate year thereafter.
The parties shall advise the other of any medical or health emergency or accident involving [X], [Y] and/or [Z] whilst in their care and shall provide them with the names and contact details of any treating medical and health professionals and authorise such professional to speak and consult with the other party.
Whilst the husband is residing in Victoria, the wife authorise any school/s that the [X], [Y] and/or [Z] attend to provide to the husband, at the husband’s expense copies of all school reports, school photograph order forms, newsletters and any other information normally provided by schools to parents.
Upon the husband residing permanently in Western Australia, both parents are at liberty to attend parent-teacher interviews and school events to which parents are normally invited and both parents shall do all things necessary to ensure they both receive school reports, school photograph order forms, newsletters and any other information normally provided to parents at the expense of the recipient parent.
The husband and wife are to keep each other advised of their current residential addresses and current landline and mobile telephone numbers and are to advise each other in writing of any change of address or telephone number within seven days of any such change.

IT IS NOTED that publication of this judgment under the pseudonym Fallon & Fallon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 6721 of 2009

MR FALLON

Applicant

And

MS FALLON

Respondent

REASONS FOR JUDGMENT

Introduction

The parties in this matter and their children [Y] born [in] 2003 (“[Y]”), [Z] born [in] 2008 (“[Z]”) and the wife’s son from a previous relationship [X] born [in] 1998 (“[X]”) moved to Melbourne in May 2008 from Western Australia.
The wife was never happy living in Melbourne and upon the breakdown of the parties’ marriage in July 2009, the wife unilaterally returned to Western Australia with [X], [Y] and [Z] against the husband’s wishes.
The husband brought an application in the Federal Magistrates Court which was heard on 24 August 2009 and orders were made which required the wife and children to return to Victoria until the matter could be determined on a final basis. Orders were also made for the preparation of a family report and for each of the parties to undergo a psychiatric assessment.
This matter arises from the wife’s desire to return to Western Australia with the three children, though it is her evidence she will return to Western Australia even if there are orders that the children are to remain living in Victoria with the husband.
The husband, whilst conceding he would return to Western Australia if orders were made for the children to return to Western Australia with the wife, opposes a move to Western Australia by the children until at least the end of 2010 as they are settled and happy here.
The matter was also listed in relation to property matters. However, prior to the evidence commencing at the final hearing of the matter, the parties were able to resolve property matters between themselves and I made final orders by consent finalising a property adjustment between the parties.

Background

The husband was born [in] 1967 in Singapore and is aged 42 years. He is a [occupation omitted].
The wife was born [in] 1978 in Western Australia and is 31 years of age. She is engaged in home duties.
The parties commenced their relationship in May 2001 and began living together in June 2001.
The wife has been in a previous relationship with Mr M. [X] was born of this relationship. During this relationship, the wife became heavily involved in amphetamine use. The wife suffered a severe psychotic episode in 2000, requiring several weeks hospitalisation. Her relationship with Mr M ceased at this time.
[X] has not spent face to face time with his father since 2000. [X] has been raised by the parties since they commenced cohabitation in 2001.
The husband was also a heavy user of illicit drugs until 2000, when he suffered an aneurysm.
Both parties used recreational drugs during their marriage to enhance their sexual relationship. They also lived a ‘swingers’ lifestyle, indulging in consensual sexual relationships with other consenting adults. Both parties used drugs to enhance these experiences.
During the marriage, the wife experienced ongoing depressive illness. She was admitted to [omitted] Hospital in 2002 and again to [omitted] Hospital in 2006. She has been taking 40 mg of Cipramil, an anti-depressant since 2000 and reports her depressive condition is aggravated by non-compliance with her medical regime and, at times, by stress.
The parties were constantly on the move during the course of the marriage. When first married they lived in Perth. They then moved to [K] and from there to [C] and then to [A]. It was from [A] that they moved to Melbourne. Initially they rented a property in [W] for six months and then moved to rental accommodation in [P]. Thus [Z] in particular has been moved on at least six occasions, many of those moves requiring a change of school.
The parties’ marriage was at times rocky with them separating for some months in 2006 before finally separating in July 2009.
Shortly after the parties separated, the husband took an overdose of prescription mediation. He had the children in his care at the time and left a suicide note. The husband was communicating with the wife

‘on-line’ and he told her what he had done. She alerted the police who found the husband unconscious in his car some 150 metres from the former matrimonial home where the children were asleep. He was admitted to hospital and released the next day. The husband denies it was a ‘real’ suicide attempt and believes it was an emotional response to the breakdown of his marriage.
The wife unilaterally moved with the children to Perth in late July 2008 in the full knowledge that such move was opposed by the husband. The husband brought an urgent application to the court and on

24 August 2009, I ordered the wife to return [X], [Y] and [Z] to reside in Victoria on or before 7 September 2009. I also ordered that [X], [Y] and [Z] live with each of the husband and wife on a shared basis in the parties’ rental property in [P], on the basis they live with the husband from 5.00 pm Thursday to 5.00 pm Sunday and with the wife from 5.00 pm Sunday to 5.00 pm Thursday. This arrangement remains in place, save that the husband gave evidence he had terminated the lease on the [P] property being rented at separation and was confident of leasing an alternate property in [P] closer to the children’s school.
Prior to the wife returning to Perth in July 2009, she made contact via the internet with a former boyfriend, Mr R. Mr R assisted the wife financially when she ‘moved’ to Perth in July. The wife confirms she and Mr R are developing a relationship. She has visited him in Perth and he has visited her in Melbourne since her return in September 2009.
When the matter came before the court on 1 October 2009 for mention, I made orders requiring the parties to serve [X]’s biological father,

Mr M with all documents and orders made in these proceedings. Mr M was so served and has chosen not to participate or intervene in the proceedings.

The husband’s evidence

It was the husband’s proposal that the parties and the children continue to reside in Melbourne, and that there be put in place a shared care arrangement in accordance with the suggestions contained in the family report that was prepared in this matter by Terry Laidler. Mr Laidler’s proposal was that the boys share their time between their parents on a 4:3, 3:4 day per fortnight arrangement.
The husband’s ‘secondary proposal’ was that the parties and the children remain in Melbourne until the end of the 2010 school year, when the family as a whole would return to Perth, with the same living arrangements for the boys to continue upon that move.
It was the husband’s evidence that in the event the wife and children were permitted to relocate to Perth immediately, that he too would return to Perth and would seek orders that the shared care arrangement as recommended by Mr Laidler be put in place.
It was the husband’s evidence that he has a close and loving relationship with all three boys, including [X] who he considers to be his son.
It was the husband’s evidence that he believes the boys are very happy in Melbourne and that they feel that they have stability here. It was his belief that this particularly relates to [X], who has settled really well at school, has made lots of friends and who is actively involved in sport, particularly football, which both parents agree he is very gifted at.
It was the husband’s evidence that he believes that the children need to be given the opportunity to continue in this stable environment for at least the next twelve months, if not longer, as they appear to be truly happy and settled.
The husband gave evidence that the wife had always struggled with her mental health, and that during their relationship there had been many instances of admissions to hospital by the wife for depression and other issues.
He confirmed that both he and the wife had used recreational drugs throughout the relationship, particularly to enhance their sexual relationship and as part of the ‘swingers’ scene.
It was the husband’s evidence that he has not used any illicit substances since the parties separated. To this end, he produced four drug screens that he had undergone either of his own volition or through his employment, which were clear of any illicit substances.
It was the husband’s evidence that the wife would become very unsettled and that this was one of the major factors in them having made so many moves during the course of their marriage. He also conceded that another reason for their moving was for him to be able to pursue employment opportunities.
In relation to the move to Melbourne, it was the husband’s evidence that both he and the wife had agreed to the move to Melbourne to enable them to explore property investment and also to give them both a fresh start.
The husband conceded that both of the parties were initially unhappy when they moved to Melbourne and that he had explored the possibility of being able to move back to Perth with his job. It was his evidence that such a move became unviable when his company contracted out the work that he would otherwise have been engaged to do in Perth. It was his evidence that, with time, he began to enjoy living in Melbourne, but agreed that the wife had continued to be very unhappy living in Melbourne and had been wanting to move back to Perth for quite some time.
It was the husband’s evidence that prior to separation, [Z] had been placed in childcare five days a week and that [X] and [Y] were in after school care when not at school.
In relation to the husband’s proposals for the care of the children in the event he was successful in his application, he indicated that his current working hours are 8.00 am to 4.30 pm, and that he is able to work from home outside of these hours to meet his work commitments. The husband confirmed that until recently, he had been required to work extensively interstate, ironically particularly in Perth, but that that job had now been completed and that he was predominantly Melbourne-based with his duties.
It was the husband’s evidence that when the children were in his care, [Z] would continue at his current childcare centre, the elder boys would continue to go to school and he would utilise after school care as is currently the case.
The husband was questioned as to what would be the arrangements for the boys to see their mother in the event that the court made orders that they continue to reside with him in Melbourne and she return to Perth as was her evidence. The husband conceded that he had not given that any great thought, but was of the view that he would fund the boys being able to visit their mother during the school holiday periods and would be amenable to orders that would enable her to spend time with the boys at any time she came to Melbourne to visit them.
The husband conceded that at this time, he and the wife have great difficulty in communicating with each other and that he had in fact removed the SMS facility from his mobile phone because of the acrimonious exchanges that had been taking place between them.
It was his evidence however that when issues arose in relation to the boys, he did speak to the wife about those issues.
The husband expressed concerns about the wife’s lifestyle and made reference to her smoking and the cigarette butts she leaves around that [Z] picks up and plays with, concerns that she is continuing to use recreational drugs, concerns as to her mental health and a real concern that she will put the needs of her relationship with Mr R above those of the boys. The husband also expressed concerns about the longevity of the relationship with Mr R, the wife’s need to constantly be on the move and the impact this would have on the boys if they were to move to Perth and the relationship with Mr R fell through and/or the wife became bored and wanted to move yet again.
It was the husband’s evidence that he has secure employment in Victoria, though conceded that since moving here he has worked for three different companies. When questioned as to what enquiries he had made in relation to the availability of work in Western Australia, he conceded he had made no such enquiries, but acknowledged that historically he had always been able to find work in Western Australia.

The wife’s evidence

It was the wife’s proposal that she and the children move back to Western Australia to enable the eldest boys to commence school at the start of the 2010 school year and ideally upon the husband’s move to Western Australia that the boys live with him for two out of three weekends as well as one night each week during the school term as well as school holidays and other special occasions. In the alternative, she proposed arrangements be put in place in accordance with the recommendations of Mr Laidler.
It was her evidence that she did not believe that the boys were coping with the current arrangement, particularly changeovers during the school week, as homework and other school commitments were suffering because of the parties’ inability to communicate.
It was the wife’s evidence that she would be moving to Perth upon the finalisation of these proceedings, whatever orders the court made.
In the orders made by me on 1 October 2009, the parties were each required to attend upon Dr E for the preparation of a psychiatric assessment. As part of the interview process with Dr E, the wife indicated to him that she would remain in Melbourne with the boys in the event that the court did not allow relocation. She was cross-examined as to why she was no longer prepared to remain in Melbourne whatever the outcome of this case. It was her evidence that what caused her to change her mind in this regard was the following:
(1)knowing that Mr Fallon had stated he would return to Perth in the event that he was unsuccessful in his application;
(2)that she cannot support herself in Melbourne physically, mentally or emotionally; and
(3)the lack of communication, the level of acrimony and nastiness between herself and the husband is such that it is negatively impacting on the children and that they will flourish better if they are in a conflict-free household.

The wife was cross-examined at some length as to whether the real reason for her desire to return to Western Australia was because she wished to pursue a relationship with Mr R.
It was the wife’s evidence that they were not in a relationship at this time, but there was the potential for a relationship to develop. She conceded that they had been sexually intimate since July 2009, that the children had met him and ‘they adore him’, that he was living in the property that she had rented in [L] and was paying the rent, and that she had travelled back to Perth twice to see Mr R and he had travelled twice to Melbourne to see her, including being in Melbourne to support her during the running of the trial. The wife did not call Mr R to give evidence on her behalf.
It was the wife’s evidence that she wanted to take her children to Perth for their best interests, not because of her relationship with Mr R or that she thinks he might be a better father. It was concerning however that when cross-examined about this she made the aside ‘though I do wonder’ (sic whether he would be a better father).
It was the wife’s evidence that when she and the husband moved to Melbourne, they had agreed that it was to be for a short time only and that if either of them were unhappy with the move, they would move back to Western Australia. It was her evidence that she has never settled in Victoria, has always been unhappy here and that prior to the parties’ separation, they had been exploring ways to return to Western Australia. She was of the view that it is not her that is seeking to relocate to Western Australia with the children, but rather the husband who is seeking to relocate to Victoria with them.
It was the wife’s evidence that the marriage had been one characterised by continuous emotional abuse of her by the husband and that she had been unhappy in the marriage for a considerable period of time. She agreed that they had both used recreational drugs extensively during the course of the relationship and had engaged in a ‘swingers’ lifestyle, something she gave evidence the husband had introduced her to.
In relation to her mental health issues, it was the wife’s evidence that she has always suffered from depression, which had been exacerbated by the husband’s emotional abuse of her. In relation to her hospital admissions, it was the wife’s evidence that she manipulated the mental health system by exaggerating her symptomology in order to get respite from the husband and his abuse. It was her evidence that she would tell the doctors that she was feeling suicidal, that she’d get bed rest, three meals a day and some peace and quiet, and then when she’d see the doctor three days later, she’d explain to them what had happened, they’d tell her to end the abusive relationship and send her home. Whilst the wife conceded that not every admission was to get away from the husband, she indicated it gave her the respite she needed.
It was the wife’s evidence that since separating from the husband, a great deal of the stressors have been removed from her life and that she believed she was managing very well.
As with the husband, the wife confirmed that the parties were unable to communicate effectively at this time. She alleged that he continued to be emotionally and verbally abusive towards her.
In relation to the arrangements for the children in Perth, the wife gave evidence that she had rented a four bedroom property in [L], a northern suburb of Perth, within fifteen minutes of where her family are based.
The wife conceded that when she returned to Perth in July 2009, she had enrolled the children in schools and that [X] in particular had not coped because of the differences in the schooling systems between the two states. In Western Australia, children only do twelve years of schooling, Grades 1 to 7 in primary school and Grades 8 to 12 in secondary school. [X] had been placed in a Grade that was effectively a year ahead of where he was in Melbourne.
It was the wife’s evidence that she had made enquiries with the [L] School and that the children had been evaluated as to what level they would go into if she is permitted to move to Perth with the children. It had been determined that [X] would commence Grade 5 in 2010 in Western Australia, and that [Y] would go to pre-school as he was not yet properly reading or writing.
It was the wife’s evidence that she believed if the children are to move to Western Australia, it would be better for them to do it immediately rather than in twelve months time, as that will enable them to settle into a stable routine promptly and would ensure that [X] in particular would have an opportunity to develop the friendships that he could take with him into high school.

Terry Laidler

Terry Laidler is a registered psychologist and an accredited family dispute resolution provider who prepared a detailed family report in this matter dated 9 December 2009. Mr Laidler also gave viva voce evidence at the final hearing of this matter.
It was Mr Laidler’s evidence that the children need both of their parents actively involved in their lives and in their care.
Mr Laidler was of the view that if the children were to stay in Melbourne with their father for 2010 and their mother was in Perth, this would be detrimental for the boys, and similarly if they were to return to Perth with their mother and their father were to remain in Melbourne, that also would be detrimental for the boys.
He observed that the boys’ primary attachment is with their mother, but that their father provides them with stability. To quote Mr Laidler:
“These kids seriously need both parents.”
It was Mr Laidler’s evidence that if the wife were to remove herself from Melbourne for the next twelve months and only spend intermittent time with the children, that [X] would feel betrayed, for [Y] it would not be enough time with his mother and he would suffer severe separation anxiety, and that for [Z] it would be disastrous as he would not be able to form any attachment with his mother. The children would suffer the same problems in reverse in the event that they went to Perth with the wife and the husband stayed in Melbourne.
In the conclusion to his report, Dr Laidler noted the following:
9.5In the face of this dilemma, [X], understandably, is a highly conflicted boy: the relative stability he has enjoyed since his family came to Melbourne is very important to him and he worries that he will lose it again if he returns to Perth; he sees Mr Fallon as having provided him at last with that stability; but the threat that is mother will leave him and return to Perth alone also causes him great concern. I think that on balance he would prefer to remain in Melbourne, but not without his mother.
9.6While happy and comfortable in the care of his father as well, [Y] clearly wants to be where his mother.
9.7[Z] seems to have formed attachments to both parents and is at ease and secure in the care of wither (sic) and the company of his brothers.
9.8I found that Ms Fallon was still not able to put the children’s interests before her own. The history of her care for the children, her disingenuirty with me about the reasons for her return to Perth and her exposure of the boys to conflict and the threat of leaving them augur poorly, in my view, for both the future stability of the boy’s care, welfare and development.
9.9I though Mr Fallon showed greater insight into his own psychological vulnerabilities, was more focussed on the children’s best interests and more likely to put their needs before his own.
9.11If both parents, then, are in the same city, my recommendation is that the boys share their time in a 4/3, 3/4 day per fortnight arrangement.
9.13I cannot make a recommendation for contact that would be in [X], [Y] and [Z]’s best interest if their parents are in 2 different cities.

Dr E

As noted earlier in this judgment, orders were made for both parties to attend upon Dr E, consultant psychiatrist, so that he could provide to the court a psychiatric assessment of each of them respectively.
Dr E’s assessment dated 22 October 2009 was placed before the court by way of an affidavit sworn on 26 November 2009 and filed on

30 November 2009. Neither party sought to cross-examine Dr E in relation to his report and it was accepted into evidence in its’ entirety.
In that report, Dr E made the following diagnoses in relation to the husband:
“Mr Fallon suffers from an Adjustment Disorder with Depressed and Anxious Mood in remission with treatment and the lapse of time.”
In relation to the wife, Dr E’s diagnosis was:
“She suffers from a Borderline Personality Disorder, Drug Addiction and a recurrent Unipolar Depressive Illness.”
Dr E then set out in his report a quite lengthy opinion which I intend to include in full in this judgment as it is most insightful and of real assistance to the issues that are very much live in this case:
OPINON
1. Ms Fallon acknowledged that she has longstanding unresolved issues from her past, lives life at a superficial level, and has a tendency to act impulsively, finding herself in situations and relationships which are dysfunctional and/or destructive. Despite her outward, apparently confident demeanour, she is an insecure woman who is still searching for the solution to her unresolved emotional problems and her chronic sense of unhappiness. She is now seeking to return to Western Australia and has once again made contact with two former partners from school.
2. Both parties impress as vulnerable, somewhat opportunistic individuals who found themselves thrown together at a time of crisis in their lives. Mr Fallon acknowledged that he had been leading a disingenuous life prior to his disclosure of childhood sexual abuse and a serious illness due to a cerebral aneurysm. Ms Fallon was recovering from drug rehabilitation and was struggling to establish herself with her son [X] at that time. Their respective needs resulted in an intense relationship, and within a few short weeks they had decided to marry. The relationship began to falter but continued with the augmentation of drugs and sex with other couples. Their lifestyle was itinerant and involved many moves. On coming to Victoria, they met with another couple, [names omitted], and this arrangement served to distract them from the unresolved issues which continued between them.
3. For her part, Ms Fallon soon found herself struggling with the inner experience of a lack of connection with her husband, a waning sense of self, and she began to pine for home. Mr Fallon, for his part, noted his wife’s lack of interest in him and he, too, began to experience difficulties in that respect.
4. Following a fracturing of the relationship with their open relationship partners, the relationship quickly deteriorated, with Ms Fallon announcing to her husband that she was no longer interested in or loved him. This appears to have panicked Mr Fallon who acknowledged throughout the marriage that he had been a willing participant in providing drugs for his wife on the basis that this managed to keep her out of trouble. His wife regards him as manipulative and it would appear that such actions on his behalf could be regarded as such. Mr Fallon impressed as someone who was unaware of this tendency in himself during the marriage, but readily acknowledged it in his relationships previously. When Ms Fallon returned to Western Australia and was beginning to show interest in other men (Mr M and Mr R), he panicked and took an overdose. It is his wife’s contention that this was a manipulative gesture. She then seized the opportunity and took the children back to Western Australia. She now finds herself trapped in Victoria and wishes to return to Western Australia with them. The degree to which she is aware of the distress all this has caused the children appeared not particularly evident during the psychiatric assessment. It is her contention that her husband is simply blocking her from returning to Western Australia as a way of punishing her.
5. Mr Fallon does not present with a psychiatric condition which of itself would render him a risk to his children. Ms Fallon has a significant psychiatric history and a vulnerable personality style which makes it difficult for her to act in her children’s best interests and to think of them prior to her impulsive decision-making tendencies. Both parties appear to have lived life at a superficial level and whilst they both profess to have concerns about the children, this would not appear to have been reflected in regard to their lifestyle.
6. Not surprisingly, the parties now find themselves at odds. Both indicate however that they wish the other to be involved with their children. The difficulty in this matter is that Ms Fallon wishes to relocate to Western Australia. Ms Fallon makes the argument that all her family are there, and that Mr Fallon has worked in Western Australia previously and it would not be difficult for him to relocate.
7. Mr Fallon considers himself the more stable of the two, sees himself as having an established position and career here in Victoria and is not inclined to go along with Ms Fallon’s peripatetic lifestyle and impulsive decision-making processes. It is his contention that she is an unstable and erratic woman and that her various justifications to return to Western Australia are no different to her previous chronic gypsy life and impulsive decision-making previously.
8. I have not interviewed the children and my report needs to be read accordingly.

Best interests of the child

Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In relocation cases, the law is well-established that the best interests of the child remain the paramount consideration. The best interests are determined in the context of the provisions of section 60CC of the Act, as well as the matters the court has to consider under section 65DAA of the Act.
In this case, both parties agree that there should be equal shared parental responsibility in relation to the children. This is so even in circumstances where it is common ground that they are unable to communicate, and at this time at least, continue to be extremely bitter and angry with each other. In his evidence, Mr Laidler spoke of these parties needing to ‘parallel-parent’ rather than ‘co-parent’ and spoke in terms of his proposal being around ‘split-care’ rather than ‘shared-care’.
These children have a close bond with both of their parents and require both of them to be involved in the decision-making around their lives. In these circumstances and in accordance with the proposal of both parties, I am of the view that it is in the children’s best interests that an order be made for equal shared parental responsibility.
When an order is made for equal shared parental responsibility, important consequences flow. Section 65DAA of the Act requires the court to consider the children spending equal time, or a substantial and significant time with each parent.
Section 65DAA(1) of the Act provides as follows:
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.
The orders that are currently in place provide for the children to spend equal time with each of their parents. The recommendation of

Mr Laidler is that such arrangements should continue into the future for these children. The husband proposes that orders be made in accordance with Mr Laidler’s recommendations, regardless of whether they are to reside in Victoria or Western Australia.
The wife, however, has expressed concern that the current arrangements are not entirely successful for the children in that they are finding it confusing and more importantly homework and other school requirements are being compromised because of the parents’ inability to communicate. She has indicated however that she would be agreeable to those orders being made if that is what the court so determined so long as the children and the parties are residing in Perth.
The real difficulty in this case is that in the event the court determines that the children should remain with the husband in Melbourne, at least for the next twelve months, the children will not be able to spend equal or even significant and substantial time with the wife, albeit this is as a result of her decision to return to Perth regardless of the court’s determination in this matter.
Section 65DAA(2) and (3) of the Act provide as follows:
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)     the time the child spends with the parent includes both:
(i)     days that fall on weekends and holidays; and
(ii)     days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)          the child’s daily routine; and
(ii)     occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

The wife’s primary proposal for the arrangements for the children in the event that the family relocates to Perth, is that the children live primarily with her and spend two weekends out of three with their father, as well as one overnight each week. In real terms, this would equate to nine nights out of 21 in each three week period. This is clearly significant and substantial time in accordance with the definition in the legislation.
When this proposal was put to Mr Laidler however, he was of the view that one overnight every week is very disruptive for children and that clear ‘chunks of time’ are much better for the children and in particular it would be much better for young [Z].
When determining what is in the best interests of the children, the court has reference to the matters set out in section 60cc(2) and (3) of the Act. Each of those matters as contained in the subsections must be considered and assessed in the context of each of the parties’ proposals and behaviours, and a determination made as to which of the party’s proposal, or such other orders as the court determines, will be such that they best meet the children’s best interests.
Section 60cc(2) of the Act sets out the primary considerations which are as follows:

Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

There is no evidence that the children will be at risk of physical or psychological harm, or will be subjected to abuse, neglect or family violence in the care of either of their parents.
Whilst neither party was able to speak particularly positively of the other in relation to their parenting, both accepted that the children had a loving relationship with each of them, and ideally needed both of them in their lives.
Section 60cc (3) of the Act sets out the additional considerations to be taken into account and I will look at each of those in turn.

Section 60cc 3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

It was the wife’s evidence that [X] has told her that he wants to return to live in Perth and that any statements he might have made about wanting to remain in Melbourne were made because he had a false hope that she and the husband might reconcile.
However, as noted earlier in this judgment, when speaking to

Mr Laidler [Z] made it clear he didn’t want to choose where or with whom he would live, but that he was very happy in Melbourne, had lots of friends, was progressing well at school and most importantly for [X], was able to play football at a high level.
Mr Laidler formed the view that, on balance, he thought [X] would prefer to remain living in Melbourne, but not without his mother.
In relation to [Y], it is quite clear that his mother is his primary attachment, and that he wants to be wherever his mother is.
[Z] is far too young to have any views.
The wife confirmed in her evidence that she had already told [X] that she had decided she would be moving back to Perth whatever the outcome of the case, and it is extraordinarily sad that [X] has been made aware of this by his mother as there is no doubt his views are coloured by this knowledge. Having said that however, [X]’s clear wish to be able to spend time with both of his parents must be taken into account by the court in determining this matter.

Section 60cc 3(b) 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)

As set out earlier, the children are clearly attached to both of their parents and wish to be able to spend time with both of them.
The parties’ extended families, and in particular their grandparents, all live in Perth and would appear to have a close relationship with their grandchildren. It is of interest to me that the children mentioned their grandparents in their discussions with Mr Laidler in the context of the positive aspects of living in Perth.
Whilst the wife gave evidence that the children had met Mr R and that they ‘adore him’, he was not interviewed by Mr Laidler and did not give any evidence at the hearing. I do note that [X] at least mentioned ‘Mr R’ in his discussions with Mr Laidler and he clearly realises that Mr R is an important figure in his mother’s life.
At this time, [X] has no relationship with his biological father, though there was some suggestion from the wife that she would be looking to encourage this relationship between [X] and his biological father upon her return to Western Australia. This will be commented on further in this judgment.
Clearly, if the children and the parties were to return to live in Western Australia, both the maternal and paternal extended families would have a greater opportunity to be more involved in the children’s lives and would also be available to assist the parties in the care of the children.

Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)     has taken, or failed to take, the opportunity:
(i)     to participate in making decisions about major long term issues in relation to the child; and
(ii)     to spend time with the child; and
(iii)   to communicate with the child; and
(b)     has facilitated, or failed to facilitate, the other parent:
(i)     participating in making decisions about major long term issues in relation to the child; and
(ii)     spending time with the child; and
(iii)   communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Reference has already been made in this judgment to the high level of antipathy, bitterness and disrespect that the parties hold for each other.
Whilst both parties found it very difficult to find anything positive in the other as parents and as human beings, they did acknowledge that the children need each of their parents in their lives, and put proposals before the court that ensured that such relationships were encouraged and would be able to continue. How genuinely the wife believes this is can be challenged in light of her unilateral decision to take the children to Perth in July 2009 and her evidence she will move to Perth whatever the decision of this court is.

Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either 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

In many ways, it is this section that goes to the crux of this matter. The wife, as is her right, has made the decision that it is untenable for her to remain living in Victoria and that she will be returning to Western Australia when this matter has been finalised. It was the wife’s evidence that if this court determines that it is in the children’s best interests for them to remain living in Victoria with the husband for a period of time, then she will accept that determination and ensure that she spends as much time as possible with the children by having them visit her during school holidays and coming to Victoria as often as she possibly can.
Mr Laidler, in his family report and in his viva voce evidence, has made it very clear that in his opinion, the parents living in different states would be the worst possible outcome for the children as they need to have both of their parents in their lives on a regular and ongoing basis. It was his recommendation that in fact the parents have equal care of the children.
It is the husband’s evidence that he will ultimately be returning to Western Australia, but ideally not for at least another twelve months. If the children remain in Victoria with the husband, then the practicality is that they will spend limited time with their mother, at least for the next twelve months, to the detriment particularly of [Y] and [Z].
If the children return to Western Australia with their parents, accepting the husband’s evidence that if the children and the wife are able to relocate to Perth immediately he will return to Western Australia, then for there to be put in place orders for shared care, the parties are going to have to be prepared to live in reasonably close geographical proximity to make such an arrangement workable.

Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

In the event the children and the husband remain in Victoria and the wife moves to Perth, there will be considerable practical and financial difficulties in relation to the children being able to spend time with the wife.
It was the husband’s evidence that he was prepared to assist in the costs associated with the children flying to Perth to spend time with the wife and I accept his evidence in this regard.
The reality is however, that if the wife is in Perth she will not be able to be involved in the myriad of day-to-day activities of the children, including [X]’s football, parent-teacher interviews, other school and social events to the real detriment of the children.
As noted in the previous section, in the event that both parents relocate to Perth with the children, it will be incumbent upon them to arrange their living arrangements so that they will be able to put in place the split-care regime recommended by Mr Terry Laidler and supported by the husband.

Section 60cc 3(f) the capacity of:

(i) each of the child’s parents; and

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

to provide for the needs of the child, including emotional and intellectual needs

In his report of 22 October 2009, Dr E formed the opinion that both parties impressed as vulnerable and somewhat opportunistic individuals, who have lived life at a superficial level, and whose professed concerns for their children were not reflected in their lifestyle.
I too found both of the parties to be somewhat narcissistic, and neither impressed, at times, as being particularly child-focussed when giving their evidence.
The wife’s evidence that the motivation for her return to Western Australia was focusing on the best interests of the children was not convincing, and I am satisfied that a large part of her desire to return to Western Australia is to enable her to pursue her relationship with Mr R.
Similarly, the husband’s claim that he wished to remain in Victoria for at least another year to provide the children stability was not altogether convincing, and seemed to have an overlay of wanting to ‘punish’ the wife for the breakdown of the relationship, which he laid predominantly at her feet.
Having said that, I agree with Mr Laidler’s assessment that overall the husband was more focused on the children, and that he genuinely wants arrangements put in place that will protect them from further instability and enable him to continue to be a major part of their lives.
The wife’s history of constantly seeking to move, of lurching from one relationship to another, and of putting her needs above those of the children, particularly if under any form of stress, has to raise real concerns in relation to her being able to provide for the needs of her children ahead of her own.
The real question this raises is if the court were to order a return of the children with the wife to Perth, how long will that last in the event there is a breakdown of her relationship with Mr R, some form of schism in the wife’s relationship with her extended family or she once again just becomes unhappy and decides the only way that can be addressed is by again moving on.
It was also the wife’s evidence that upon returning to Perth, she intended to explore the possibility of encouraging [X]’s biological father having a relationship with [X]. This proposal has not been discussed with [X] or the husband. It shows a lack of insight by the wife as to how [X] could be affected by such a proposal. Again it seemed to reflect the wife’s needs and was not in any way focused on what might be best for [X].

Section 60cc 3(g) 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

The choice of lifestyle of the parties whilst they were together has already been commented on and can be seen not to have been at all child-focused, particularly in relation to the ongoing use of recreational drugs which seem to have had no other purpose than for the parties’ own self-gratification and enjoyment.
Both parties have given evidence that they have ceased their drug usage and lifestyle choices since separation, but the question has to remain whether the parties will refrain from such lifestyle choices in the future.

Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

Not relevant.

Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

It has been a constant them throughout this judgment that the parents have not prioritised their parental responsibilities over their own needs and requirements at times during their relationship, and their lives generally.
The wife’s decision to return to Perth immediately, whatever the order of this court may be is, arguably, a prime example of her placing her own needs above those of the children. Having said that, the court does accept that life for the wife in Victoria is exceedingly unhappy and that she does have the right to decide that she cannot contemplate living in Victoria even if the children remain here.
It must also be of concern to the court that the husband may, in part, be motivated to remain in Victoria not because of the children, but because it is a way of ‘punishing’ the wife. Having said that, the husband has made it clear he intends to live wherever the children are and will return to Western Australia in the event the court makes orders as sought by the wife.

Section 60cc 3(j) any family violence involving the child or a member of the child’s family

Not relevant

Section 60cc 3(k) 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

Not relevant.

Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

It is always difficult to determine whether further proceedings are likely in children’s matters.
In this matter, the level of disharmony between the parties and their inability to communicate civilly with each other in relation to the children has the potential to ensure ongoing conflict and recourse to the courts if they are unable to reach agreement in relation to their children.
If the wife were to continue her history of constant movement, any decision by her to move again could also lead to further litigation. Ultimately, the court can only make orders that are based on the best interests of the children at the time that the case is determined.

Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant

There is no doubt that at the time the parties moved to Melbourne, neither of them intended the move to be permanent. It was their joint evidence that they both intended to return to Western Australia at some time in the future.
Whilst the husband has made no specific enquiries in relation to employment in Western Australia, he has been able to be fully employed throughout his working career in Western Australia and I am satisfied that he would be able to find future employment in Western Australia.
The property settlement that was achieved between the parties has the effect that the husband will retain ownership of the parties’ jointly owned real estate in Western Australia and it was his evidence that he may at some time return to live in one of those properties in the future.
Whilst the husband’s primary position is that he was not prepared to give a definitive date as to a return to Western Australia with the children, it seemed to be conceded by him that he would be agreeable to orders being made that provided for that return to take place at the end of 2010.
It was Mr Laidler’s evidence that whenever the children return to Perth, it should happen at a time that would enable them to commence the new school year so that such move should either take place immediately or at the conclusion of school at the end of 2010.

Conclusion

This is an extraordinarily difficult matter. The children in this case have never led a particularly stable or settled life as their parents have moved on over half a dozen occasions during their relationship.
Both parties have lived a somewhat narcissistic lifestyle, and each have histories of long-term and at times excessive illicit drug usage.
The wife has long-standing psychiatric issues which impact on her relationships and her capacity to place the needs of the children ahead of her own. The husband attempted suicide upon the breakdown of the relationship, and whilst he tends to downplay the seriousness of this incident, it must cause concerns in relation to his emotional stability when under stress.
Both parties are from Western Australia, they have lived there nearly all their lives and their extended families continue to live there. The parties moved to Melbourne in 2008, with a view to a fresh start and to expanding their real estate holdings. Both acknowledge that at the time of the move, they did not intend to reside in Victoria permanently.
It is common ground that the wife was never happy in Victoria and that the parties were looking to return to Western Australia prior to the breakdown of their relationship.
The wife quite openly has told the court that she is going back to Western Australia whatever the decision of the court is, as she finds that it is untenable for her to continue to reside in Victoria.
It was submitted on behalf of the husband that the court should not be influenced by this decision as it is cynical, manipulative and ‘disgraceful’.
It was submitted that such a decision confirms that the wife is incapable of putting the best interests of the children ahead of herself, particularly in light of Mr Laidler’s evidence that the worst possible outcome for these children is that one or other of their parents is not spending regular and lengthy time with their children on an ongoing basis.

Whilst it is easy to have some sympathy with this argument, the reality is that the court must make a decision based on the children’s best interests in the context of the proposals that are being put, as measured against the factors set out under section 60CC(2) and (3) of the Act.
In the circumstances that it is the husband’s intention to move back to Western Australia within the next twelve months, and in the circumstances of Mr Laidler’s evidence that the worst possible outcome for these children is for their parents to be living in different states, I have formed the view that orders are to be made that will enable the wife and children to return to Western Australia immediately to enable the children to commence school at the start of the 2010 school year. I have also determined that it is in the children’s best interests that they live in a shared care arrangement with their parents as soon as the husband is able to put his affairs in order and also move to Western Australia.
It would be of real concern to this court if, at some time in the future, the wife again determined that because of her own personal unhappiness she wished to again relocate with the children. What is apparent is that these children need a period of long-term ongoing stability in their lives, and it is incumbent upon both their parents to do everything within their power to ensure that stability is brought to bear.

I certify that the preceding one-hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of Bender FM

Associate: Sarah Hession

Date: 15 January 2010