FENTON and McGOOGAN

[2017] FCWA 52

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: FENTON and McGOOGAN [2017] FCWA 52

CORAM: DUNCANSON J

HEARD: 13 APRIL 2017

DELIVERED : 13/04/2017

FILE NO/S: PTW 6765 of 2016

BETWEEN: MR FENTON

Applicant

AND

MS McGOOGAN
Respondent

Catchwords:

CHILDREN - where mother removed child to NSW - where it is not in the child's best interests to make an order for her return to WA pending trial - application for transfer of proceedings to NSW refused

Legislation:

Family Court Act 1997 (WA) s 66A, s 66C
Family Law Rules 2004 (Cth) r 11.18

Category: Reportable

Representation:

Counsel:

Applicant: Self-Represented Litigant

Respondent: Mrs R Oakley

Solicitors:

Applicant: Self-Represented Litigant

Respondent: Thompson Wheelahan & Hampshire

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

Nil

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

INTRODUCTION

1These interim proceedings concern the child, [N], who is aged 19 months. N’s father, [Mr Fenton], and her mother, [Ms McGoogan], are unable to agree about N’s living arrangements.

2The parties formerly lived together with N in [Coastal Town B], Western Australia (“WA”). On 2 October 2016 the mother left the parties’ home with N and took her to her parents’ home in [Country Town C], New South Wales (“NSW”). She did not tell the father of her intention to do so.

3The Court is asked to determine N’s living arrangements pending a trial. The mother wants N to continue living with her in Country Town C and if the Court so orders, she wants the proceedings transferred to the Federal Circuit Court of Australia, [Country Town D] for hearing in [Coastal Town E].

4The father wants N to return to WA. His position is that the mother should return to Perth with N and in that event N would live with the mother and spend time with him.

THE PARTIES’ PROPOSALS

5The father proposes that N be returned by the mother to Perth, to live within a 20 kilometre radius of his home in [Northern Coastal Suburb F]. N would spend time with him each day from 8.00 am to 5.00 pm for a week in alternate weeks. Overnight time would commence when N turns two years of age in 2017 and then she would live with the parties on a week about basis.

6In the event N remains in Country Town C, pending the trial, the father proposes to spend time with her for one week every six weeks. That time as before would be from 8.00 am to 5.00 pm each day until she is two years of age when overnight time would commence.

7If it is ordered that N may remain in Country Town C, the father proposes that her time with him take place in NSW or Perth alternating every six weeks and in that way the parties would share the costs of travel.

8The mother proposes that if it is ordered that she return N to Perth, N would live with her and spend time with the father frequently but not overnight until she is two years of age. That time would have regard to the parties work shift patterns.

9If N is permitted to remain in Country Town C, the mother proposes that she spend time with the father for a block period of five days every three months in either Country Town C, Sydney or Perth. The block period of five days would not include nights until N turned two years of age. The mother’s proposal is that the father should travel to NSW three times each year and she would travel with N to Perth on one occasion each year, although she would travel to Perth with N on one further occasion in 2017.

BACKGROUND

10By way of brief background the father is 44 years of age and is a [public officer]. The mother is 33 years of age and is a [teacher]. The parties commenced living together in 2013. N was born [in] 2015. The parties separated on 2 October 2016 when the mother left the parties’ home in Coastal Town B with N.

11The parties formerly lived in Perth. The mother deposed to difficulties in the parties’ relationship and it is not in dispute that she suffered from post-natal depression after the birth of N.

12The family moved to Coastal Town B in 2016.

13In 2016 an altercation took place between the parties. The mother said the father swore at her and smashed a glass on the floor whilst standing over her and yelling. She said she tried to leave with N but the father blocked her exit. He ripped her shirt causing bruising to her arm.

14The father described the incident differently. He said the parties argued about outstanding fines and the mother began to yell and he said she became “manic”. He knocked a glass out of her hand. She took N from her cot and the father said when he tried to calm the mother down she pushed and slapped him. He reached out to stop her and ripped her blouse.

15The mother left the house with N and reported the matter to the police.

16The mother said she continued to feel anxious and stressed. The father said she returned home and apologised.

17In 2016 the mother went to Country Town C to visit her family, while there she deposed her stress and anxiety subsided. She returned to Coastal Town B.

18While in Coastal Town B the mother spoke with a couples counsellor and psychologist about returning to Country Town C. On 2 October 2016 she left the home without telling the father and took N to Country Town C.

19The mother says she now lives in Country Town C with the support of her family, her health has improved and proper arrangements have been made for N. The father now lives in Perth. He too has a supportive family.

20The father spent time with N in Country Town C between 10 and 16 December 2016. He spent 32 hours with her accompanied by his mother.

21The mother travelled to Perth in early March 2017 and N spent time with the father during the day for five days. The mother said there were some difficulties for N. The father says N settled well with him and his family. Currently N has FaceTime communication with the father every day, at least once and some days twice.

22On 29 March 2017 the parties met with Family Consultant Willix at a Case Assessment Conference. The Family Consultant reported:

It is noted that the mother experienced a stressful and worrying time after [N]’s birth. It is also evident that the father continues to experience grief and sadness due to the absence of [N] in his daily life.

THE LAW

23These proceedings are determined under Part 5 of the Family Court Act 1997 (WA) (“the Act”). In reaching my decision I am guided by the objects of that Part and the principles underlining those objects. In deciding whether to make a particular parenting order, section 66A directs me to regard the best interests of the child as the paramount consideration. Section 66C sets out how I determine what is in a child’s best interests. I must consider the primary and additional considerations insofar as they are relevant.

24It is unnecessary for me to address each and every consideration where it is obvious that findings made as to some of the section 66C factors will be determinative of the child’s best interests on an interim basis.

25I am not able to make any findings of fact where the evidence is in dispute.

THE PRIMARY AND ADDITIONAL CONSIDERATIONS

26N has a meaningful relationship with the mother who has been her primary carer since birth, and it is to her benefit that it continues. N has been separated from the father and apart from a few days in December 2016 and March 2017 has not had direct contact with him since early October 2016. It is to the benefit of N to have a meaningful relationship with the father.

27Both parties refer to the incident of family violence which occurred in June 2016. N was exposed to this. As the parties have now separated, there is not currently a need to protect her from physical or psychological harm from being subjected, to or exposed to, abuse, neglect or family violence.

28N is too young to express any view. She has a close relationship with the mother and is likely to have a close relationship with members of the mother’s family, in particular her maternal grandmother who assists in her care. The father described N’s relationship with him as “strong” and this was not in dispute.

29Both parties have participated in making decisions about major long-term issues in relation to N, spending time with, and communicating with her, to the extent to which they have been able to do so. Both parties support N financially. As to the likely effects of any changes in the child’s circumstances, this is a significant consideration in the context of this case. N lives with the mother who has been her primary carer since birth. If she is separated from the mother that would be a significant change and one that is likely to have a detrimental effect upon her, having regard to her tender age. However, upon the proposals of both parties N would continue to live with the mother.

30Currently N is separated from the father. He loves her and wants her to maintain her bond with him. He says she should have both parents present in her life.

31If the mother is ordered to return N to Perth, that would involve a change in her circumstances including her home, her routine and those involved in her care. She would however no longer be separated from the father who would commence spending time with her frequently.

32If it is ordered that N may remain in Country Town C pending the trial, her circumstances would remain unchanged, but her time with her father would be restricted to occasions when he travelled to NSW to see her or the mother brought her to Perth.

33There is practical difficulty and expense of N spending time with and communicating with the father. This arises by reason of the distance between Country Town C and Perth. The other difficulty for both parties is the expense of travel. However, both parties are in employment and could meet the cost of travel.

34The capacity of the parties to provide for the child’s needs is a significant consideration. It is not in dispute that the mother was unhappy prior to leaving for Country Town C. She deposes that living in Country Town C with the support of her family has had a positive effect upon her and her ability to care for N. She has the support of close family members and lives with her retired parents in suitable accommodation. The mother has commenced employment as a teacher and the maternal grandmother assists in the care of N while the mother works. N attends family day-care.

35The father says the mother had counselling when in Perth and would be able to resume counselling in Perth if needed. She owns a property in [Southern Coastal Suburb H] which is currently leased out, but it is his proposal that she find accommodation within 20 kilometres of his home in Northern Coastal Suburb F. The father says the mother has friends in Perth and as a teacher she is likely to be able to obtain employment at the [local school]. He asserts, in the circumstances, she would be able to return to Perth which he says is not a foreign place for her. The father says he and his family have no animosity towards her. He says he is not going to control or dominate her.

36The mother’s psychologist, [Ms T], a Clinical Psychologist, provided a report concerning the mother dated 7 April 2017. In referring to this report I am mindful it is evidence which is as yet untested.

37Ms T diagnosed the mother as having major depression with anxious mood, and opined that the mother was in an abusive relationship with the father who coercively controlled her.

38Ms T expressed concern for the mother and N’s wellbeing if they were to return to WA. She reported the mother continues to be vulnerable to being manipulated by the father and the return raises the risk of further abuse.

39It appears that on a practical level the mother may have support and employment prospects in WA however, there is a risk that the return may impact on her mental health and consequently her capacity to care for N. This is important in circumstances where on the case of both parties N would continue to live with her.

40The father is capable of providing for N’s needs. He has a supportive family. He has employment in Perth. In his submissions he showed considerable insight into the needs of a young child.

41Both parties have demonstrated an appropriate attitude to the responsibilities of parenthood except when they exposed N to the family violence to which I referred above. The mother has facilitated N’s time with the father. There is no family violence order in place.

42These are interim proceedings only and the orders I make today are unlikely to conclude the proceedings.

43As to any other fact or circumstance that the court thinks is relevant, the duration of the interim arrangement is important. If the trial was to take place in Perth it would be expedited. It is possible the trial could take place towards the end of this year. Proceedings were commenced by the mother in the Country Town D Registry of the Federal Circuit Court of Australia. The mother’s counsel is unable to predict whether the trial would be expedited and in the ordinary course, a parenting trial there would be listed in about a year’s time. At best therefore, the duration of the interim arrangement would be six to eight months and at worst about 12 months.

44The father said he has been with [his current employer] for 10 years and is now a [senior public officer]. He has a good relationship with his colleagues. If he left his employment, he would have reduced pay and would have to apply for a position and would have three months [further training]. He said he would be lucky to find employment in Country Town C. The father’s ability to relocate to NSW is probably a matter which has more relevance in the final hearing and I accept it would be difficult for him to relocate on a temporary or interim basis.

CONCLUSION

Parental responsibility

45Notwithstanding that there has been family violence between the parties. On 24 November 2016 by consent, an order was made until further order, that the parties have equal shared parental responsibility for N.

Living arrangements

46There being an order that the parties have equal shared parental responsibility for N, it is necessary for me to consider whether it would be in the best interests of N and reasonably practicable for her to spend equal time with her parents failing which substantial and significant time.

47Neither party seeks an order for equal time and the proposals of each party do not amount to substantial and significant time having regard to the definition of such time. Having regard to N’s young age, I do not consider it would be in her best interests to spend equal or substantial and significant time with her parents and it is necessary therefore for me to craft orders which I consider to be in her best interests.

48N is still very young and is accustomed to being cared for solely by her mother who has been her primary carer since birth. Orders providing for N to spend gradually increasing time with the father are likely to be those which are in her best interests. That time should increase from day time to overnight time when N is ready for that progression. If N is returned to Perth, such an arrangement can be facilitated. If N remains in Country Town C, the reality is that the time she will spend with her father will occur only if he visits Country Town C or the mother brings N to Perth. Either way, N will have to become accustomed to spending time with the father once again and then overnight time should be introduced.

49I have given careful consideration to the proposals of the parties, both of which have merit. Ultimately my decision in this difficult matter is determined by what is in the best interests of N.

50The mother has been N’s primary carer since her birth. She suffered health difficulties after N’s birth. She was unhappy in the parties’ relationship. The mother moved with N to Country Town C where she now receives the support of her family. She is able to provide for N and has made arrangements for her care which are proper in all the circumstances.

51It is important for N’s care that her primary carer is emotionally stable. While I acknowledge that N’s relationship with the father is fractured, at this time I consider that pending trial it would be in N’s best interests to remain in the care of the mother in Country Town C. This is an arrangement which promotes stability for the child. I am acutely aware that this outcome means that N’s time with her father will be infrequent and will involve travel. I am satisfied however that N will be able to maintain her strong relationship with the father notwithstanding. I propose to make orders which provide for N to spend time with the father, and the electronic communication which is currently taking place should continue. It is to the credit of both parties that this has occurred. I am mindful that if I order the return of N to Perth and ultimately the mother was successful in her application to relocate N to NSW, the child’s living arrangements would be disrupted in the move to Perth and then again the return to Country Town C.

52My decision is intended to lead to the least disruption to N and to maintain her present stability until there can be a thorough enquiry into the matter and a decision made as to her best interests based on evidence which is tested at trial. The likely duration of my order is six to eight months and I have taken this into account in arriving at my decision.

53In all the circumstances, I intend to order that the mother be permitted to relocate N to Country Town C on an interim basis pending trial as I consider such an order to be in the child’s best interests.

54It will be necessary for the parties to consider now what arrangements can be made for the child to spend time with and have communication with the father to ensure that their relationship can develop and be maintained.

Spend time arrangements

55I propose to order that N live with the mother and spend time with the father. Both parties are working and while the costs of travel are a financial impost on both, I consider these costs are capable of being met.

56In my view, it would be in the best interests of N to spend a period of no less than seven days with the father every eight weeks, alternating in NSW and in Perth. The effect of this is that N, and consequently the mother, will have to travel to Perth every 16 weeks which I consider to be manageable.

57The mother brought N to Perth in March 2017 and I anticipate the father would travel to NSW in May 2017 and the mother to Perth eight weeks later.

58The parties are in agreement that overnight time would not commence until N is two years of age, and the order I propose to make at this time would not include overnight time as it will depend very much on N’s ability to cope with such an arrangement.

Transfer of proceedings

59The mother seeks to have the proceedings transferred to the Federal Circuit Court of Australia, Country Town D Registry for hearing in Coastal Town E. The father opposes that order.

60The mother refers to the costs of travel to Perth for trial of herself, N and her witnesses, and submits that the balance of convenience lies in her favour. There are costs to the father of the proceedings taking place in NSW.

61The factors which the Court must consider in deciding whether to transfer the proceedings are contained in rule 11.18 of the Family Law Rules.

62The cost to the parties is relevant and I accept that there are costs for both parties of travel interstate.

63Some costs can be mitigated, for example, by attendance of professional witnesses by electronic means, for example the mother’s psychologist. Of greater significance however is the issue of how quickly the proceedings can be listed for trial. As stated above, the trial is likely to proceed sooner in the Family Court of WA at Perth if the proceedings are expedited. A Readiness Hearing could be listed in a matter of weeks and the matter placed in an appropriate Callover.

64I consider the time to trial to be persuasive on this issue and I therefore refuse the order sought to transfer the proceedings to the Federal Circuit Court of Australia.

THE ORDERS

65I made the following orders:

1[Mr A Fenton] is permitted to be the McKenzie Friend for the Applicant, [MR FENTON].

2Until further order of the Court, the child, [N] born [in] 2015, live with the Respondent, [MS McGOOGAN].

3Until further order of the Court, the Respondent be permitted to relocate the child’s primary place of residence to [Country Town C], New South Wales.

4Until further order of the Court, the child spend time with the Applicant at such times as may be agreed between the parties and in default of agreement as follows:

(a)for seven consecutive days from 8.00 am to 5.00 pm every eight weeks with such time to alternate between [Country Town C], and Perth; and

(b)the first period of time referred to in order 4 above, take place in [Country Town C], no later than the week commencing 1 May 2017 unless otherwise agreed between the parties in writing.

5Until further order of the Court, the child shall have FaceTime or Skype calls with the Applicant once a day from Monday to Wednesday inclusive and twice a day from Thursday to Sunday inclusive at times to be agreed between the parties.

6Until further order of the Court, each party shall pay the costs of their own travel and shall share equally the costs of travel of the child.

7Until further order of the Court, each party shall keep the other promptly informed of any significant matters regarding the welfare of the child whilst in their respective care.

8The trial in this matter be expedited.

9The proceedings be included in the Judges Defended List as from 25 January 2017 with an estimated hearing time of 3 days.

10The parties and their lawyers, if represented, attend a Readiness Hearing on Thursday, 1 June 2017 at 10.00 am before the Honourable Justice Duncanson.

11At the Readiness Hearing each party must satisfy the Judge that the case is ready for trial and be prepared to provide the Judge with the following information:

(a)the issues for determination at trial;

(b)a reasoned assessment of the likely length of a trial;

(c)the expected length of opening and closing addresses; and

(d)a list of witnesses and the time needed for examination and cross examination of the witnesses.

12By no later than 21 days from the date hereof, the parties file and serve a Minute of Proposed Orders sought setting out the orders they are now seeking on a final basis.

13By no later than 25 May 2017, and noting that the parties have leave to rely on their earlier affidavits filed in these proceedings, each party file and exchange with each other party:

(a)an updating affidavit setting out that party’s evidence;

(b)an affidavit of each witness;

(c)a list containing the names of any proposed witness who has refused to provide an affidavit; and

(d)a Form 13 Financial Statement by the Respondent.

14If there is a dispute involving expert evidence, the experts shall confer by no later than 14 days prior to trial. Each party must provide to any expert they have instructed a copy of the document entitled “Expert’s Conferences – Guidelines for expert witnesses and those instructing them in the Family Court of Western Australia”. The experts shall prepare and provide to the parties a joint statement setting out the issues that are agreed and not agreed, identifying the reasons for disagreement on any issue and identifying what action (if any) may be taken to resolve any outstanding issues. The report may be tendered to the Court as evidence of matters agreed upon and to identify the issues on which evidence will be called.

15By no later than 7 days prior to the date fixed for the Readiness Hearing, each party shall file and serve a Trial Plan setting out:

(a)the expected length of that party’s opening and closing addresses; and

(b)the list of witnesses required to be called and the time needed for examination and cross‑examination of the witnesses.

16By no later than 7 days prior to the date fixed for the Readiness Hearing, each party (except the Independent Children’s Lawyer) shall file and serve a written undertaking as to disclosure in the form set out in the Family Law Rules 2004 (Cth), attaching each party’s list of disclosure documents.

17No earlier than the allocation of the trial date but no later than 28 days before the first hearing day of the trial, and subject to any subsequent costs order made by the Court, waiver or exemption:

(a)the Applicant and the Respondent shall each pay 50% of the setting down fee and the hearing fee for a 3 day trial; and in the event that the actual hearing time exceeds the estimated hearing time of 3 days, then prior to the commencement of the additional hearing day/s the Applicant and the Respondent shall each pay 50% of the additional hearing fee and provide a copy of the receipt to the presiding Judicial Officer.

18The parties have permission to issue Subpoena to produce documents, returnable in a Subpoena List in the usual course.

19The proceedings be included in the cases awaiting allocation of a trial date to be called over on Friday, 16 June 2017 at 9.00 am. A fixed date is requested, as one of the parties lives interstate.

20By no later than 7 days prior to Callover, each party provide the Court and each other party with a Callover certificate in the form prescribed by the Principal Registrar from time to time.

I certify that the preceding [65] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate