FERNANDEZ and MACPHERSON
[2018] FCWA 12
•23 JANUARY 2018
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: FERNANDEZ and MACPHERSON [2018] FCWA 12
CORAM: O'BRIEN J
HEARD: 16-18 OCTOBER 2017
DELIVERED : 23 JANUARY 2018
FILE NO/S: PTW 6765 of 2016
BETWEEN: MR FERNANDEZ
Applicant
AND
MS MACPHERSON
Respondent
Catchwords:
PARENTING - where mother unilaterally relocated with very young child at time of separation - where father seeks orders for the child to live equally with both parents and for mother to be required to live within a 20 km radius of his home - turns on own facts
Legislation:
Family Law Act 1975 (Cth) s 4AB, s 60, s 65
Category: Reportable
Representation:
Counsel:
Applicant: Self-Represented Litigant
Respondent: Mrs R Oakeley
Solicitors:
Applicant: Self-Represented Litigant
Respondent: Thompson Wheelahan & Hampshire
Case(s) referred to in judgment(s):
Banks & Banks (2015) FLC 93-637
Bondelmonte & Bondelmonte (2016) 91 ALJR 402
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Oswald and Karrington [2016] FamCAFC 152
Stott & Holger and Anor [2017] FamCAFC 152
U v U (2002) 211 CLR 238
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1[Mr Fernandez] (“the father”) and [Ms MacPherson] (“the mother”) have been unable to agree the parenting arrangements for their daughter [Child A] (“Child A”) who was born [in] 2015.
2Central to their dispute are the issues which arise because the father lives in [City A] and the mother has, since October 2016, lived with Child A in [City B] in [State A].
3It is common ground that at the time the parties separated they were living in [Town A] and that the mother unilaterally relocated to City B with Child A without telling the father of her plan to do so.
Background
4The father is a 44-year-old [security guard] who lives in [Suburb A], in the metropolitan area of City A. The mother is a 34-year-old [teacher] who lives in City B, State A.
5The parties met in [Town B] in early 2014 and began a relationship. They began living together in June 2014. Shortly thereafter, the father’s posting in Town B came to an end and it was necessary for him to apply for a transfer within [his employment].
6The parties moved to City A in August 2014, initially staying at the home of friends. After a couple of weeks, they moved into a rental property with the father’s brother. The father commenced work stationed at [Suburb B], and the mother commenced work as a teacher.
7There were issues associated with the parties sharing the rental property with the father’s brother, and in early 2015 they moved into a property at Suburb A owned by the father. By that time, the mother’s pregnancy had been confirmed.
8It is common ground that the mother struggled living in the city. With the consent of the father, she visited her family in City B for two weeks in May 2015, and accepted a contract to work in Town B for the month of July that year.
9There were difficulties in the late stages of the mother’s pregnancy. On 20 September 2015 she was rushed to hospital as she could not feel the baby move. Child A was born [in] September 2015, after a very difficult and frightening birth, during which the mother haemorrhaged and suffered very significant blood loss.
10The mother and Child A came home from hospital five days after the birth. The mother began experiencing symptoms of postnatal depression and was admitted to the mother and baby unit at [Hospital A] (“Hospital A”) in late October 2015. She was discharged home after two weeks.
11The mother continued to struggle, and was readmitted to the mother and baby unit at Hospital A in early January 2016. She had been prescribed antidepressant medication. Recommendations were made for the parties to engage in couple’s counselling, and there is a dispute between them as to the degree of support provided by the father during this period and more generally. It is common ground that the father declined to participate in counselling beyond a short initial attempt.
12The parties discussed the mother’s unhappiness living in the city, and the father began to explore options for a transfer in his employment to a regional area. He was successful in obtaining a posting to Town A, and the parties moved there with Child A at the end of March 2016.
13There was an ongoing dispute between the parties at the time, as during the mother’s hospitalisation the father had accumulated a number of speeding fines while driving her car, and had not told her. Those fines were unpaid and the mother’s license was suspended. The father did not take steps to rectify the matter, and the mother became increasingly concerned at the prospect of being unable to drive while living in a country town with a small baby.
14Matters reached a head on 1 June 2016 and the parties became involved in a heated argument. While their accounts of that argument differ, it is common ground that the mother threw a drink at the father, the father smashed a glass, and that as the mother attempted to leave the house with Child A the father physically prevented her from doing so. The mother’s shirt was ripped in the process and she alleges that she also suffered bruising. The Police were called, but no charges were laid.
15On 1 July 2016 the mother returned again to her parent’s home in City B for a two-week visit with Child A. The parties then holidayed together in [Town C] and [overseas] in September 2016, with continuing conflict during that period. It is clear that by this stage the relationship was, at least from the mother’s perspective, very unhappy.
16The mother began to plan to leave the relationship and to leave Town A with Child A. She discussed those plans with a number of people, but did not discuss them at all with the father. She left Town A with Child A on 2 October 2016 while the father was at work.
17The father was upset by the mother’s actions and communicated with her in an effort to persuade her to return with Child A to Town A. When she would not, he commenced proceedings in this Court, filing an application on 4 November 2016. Before that application was served on the mother, she had commenced proceedings in the Federal Circuit Court at [City C] by filing an application on 7 November 2016.
18The father’s application sought final orders for Child A to live with the mother, and to spend time with him at such times as might be agreed between the parties and failing agreement as ordered by the Court. On an interim basis, he sought an urgent hearing, and an order that Child A be returned to Western Australia to live with the mother, and spend time with him.
19The mother’s response filed on 22 November 2016 sought final orders for Child A to live with her, and spend time with the father at such times as could be agreed, and in default of agreement “for 1 week each three months with such visits alternating between [City A] and [City D]”.
20The parties met with a family consultant in a case assessment conference on 29 March 2017. The consultant’s report is in evidence.
21On 13 April 2017, the Honourable Justice Duncanson heard the competing interim applications of the parties. The father sought interim orders compelling the mother to return with Child A to Western Australia and live with her in City A. The mother sought orders permitting her to remain in City B, and also sought the transfer of the proceedings to the Federal Circuit Court in City C. Duncanson J declined to order the mother to return to Western Australia and made orders permitting her to remain in City B with Child A until further order. Her Honour also made orders for Child A to spend time with the father and communicate with him regularly by Skype or FaceTime. She made orders expediting the trial, and dismissed the application for transfer of the proceedings to the Federal Circuit Court. The proceedings in the Federal Circuit Court were then discontinued by consent.
22It should be noted that even prior to those orders being made, the parties had made agreed arrangements for Child A to spend time with the father and for regular communication by Skype.
23Her Honour’s interim decision was informed, at least in part, by the fact that both parties proposed that Child A should live primarily with the mother and spend time with the father.
24On 24 May 2017, as required by her Honour’s orders programming the matter towards an expedited trial, the father filed a minute of proposed final orders. In that minute, he proposed for the first time that upon returning to Western Australia Child A should live with each parent equally, on a week about basis. He confirmed that proposal in his papers for the judge filed on 10 October 2017.
25No explanation was proffered by the father for the significant change in his proposals, nor was the matter explored in cross-examination or touched upon in submissions at trial.
The law
26While the parties were not married, Child A is not present in Western Australia. The proceedings accordingly fall to be determined pursuant to the Family Law Act 1975 (Cth) (“the Act”).
27The Court’s power is to make such parenting order as it thinks proper.
28When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for her parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or another relevant child, or family violence.
29Family violence is defined in s 4AB of the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful”. The Act makes it clear that the definition of family violence encompasses a wide range of behaviours, and is not in any sense limited to acts of physical violence.
30The phrase “reasonable grounds to believe” is not unimportant. Proof of abuse or family violence is not required for the statutory presumption to be inapplicable; it is sufficient for there to be reasonable grounds to believe that either parent has engaged in abuse of the child or family violence.
31Even if the statutory presumption applies, it can be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for her parents to have equal shared parental responsibility.
32In determining what parenting orders are to be made, the child’s best interests are the paramount but not the only consideration. The interests of the parties may appropriately be taken into account, provided that the child’s interests remain paramount.
33In determining what is in the best interests of the child, the Court is required to consider the matters set out in s 60CC of the Act. While those matters are divided in the legislation into “primary” and “additional” considerations, the primary considerations do not necessarily outweigh any combination of the additional considerations.
34The issues that are joined between the parties will dictate which s 60CC factors are relevant. The requirement to “consider” each factor does not mean that each factor must be expressly discussed in a judgment where the factor in question has no sufficient relevance in the particular circumstances of the individual case to displace the determinative significance of factors specifically discussed: Banks & Banks (2015) FLC 93-637.
35The Court must also be guided by the objects of Pt VII of the Act and the principles underlying those objects.
36Those objects and principles are set out in s 60B(1) and (2) in the following terms:
(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).
37I note also the additional object of Pt VII stated in s 60B(4).
38The Court is not in any sense bound by the proposals of the parties, subject to the requirements of procedural fairness, and the parties being given notice of the possibility of an order being made unless the making of such an order is obviously open on the known material: Stott & Holgar and Anor [2017] FamCAFC 152 at [26] citing U v U (2002) 211 CLR 238 at [30] and Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9]. Nevertheless, the proposals of the parties must be clearly identified and the submissions made by them as to the appropriate alternative orders if those proposals are not adopted must be considered.
39If an order for equal shared parental responsibility is to be made, I am required to consider whether Child A spending equal time with each of her parents would be in her best interests and whether such an arrangement would be reasonably practicable. If so, I am then required to consider making such an order.
40Again against the background of an order for equal shared parental responsibility being made, if I do not make an order for Child A to spend equal time with each parent I am required to consider whether spending substantial and significant time with each parent would be in her best interests and reasonably practicable. If so, I am required to consider making such an order.
41In determining whether it is reasonably practicable for Child A to spend equal time, or substantial and significant time, with each parent I am required by s 65DAA(5) to have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the Court considers relevant.
42In a parenting case where the proposals of one party involve the relocation of the child, whether or not that relocation has already occurred, there is no presumption against an order being made which permits relocation, nor is there a presumption in favour of a parent with whom the child predominantly lives at the time of or prior to the application. The parent wishing to move does not need to demonstrate “compelling” reasons to justify the proposed move, and the child’s best interests must be weighed and balanced with the proposed relocating parent’s right to freedom of movement. A Court should not lightly interfere with that right of freedom of movement, save and except where it is contrary to the best interests of the child.
43While the parent proposing to relocate, or to stay in the place to which that parent has already relocated, is not required to justify the desire to move (beyond the Court being satisfied that the application is bone fide and not motivated by some ulterior consideration) it is appropriate for the Court to have, as it does in this case, evidence as to the benefits which that parent says flow from the relocation. The welfare of the parents is to be considered and balanced with the best interests of the child; that exercise necessarily includes an examination of the likely benefits to the parent of the proposed move and the likely detriments of an inability to move or a requirement to return.
44The father’s application asks the Court to exercise its coercive power to order a parent to live with a child in a particular place. The consideration of that application will be informed by a determination of the question of with whom Child A is to live. The Full Court has made it clear, as recently as its decision in Oswald and Karrington [2016] FamCAFC 152 at [16] that while the Court clearly has the relevant coercive power:
…the proper exercise of that power is “at the extreme end of the discretionary range” and there should exist “rare” or “extreme” factors that warrant the Court exercising its discretion to make a coercive order requiring a parent to relocate so as to continue the role of primary caregiver of children.
45As the High Court observed in Bondelmonte & Bondelmonte (2016) 91 ALJR 402, the making of a parenting order involves the exercise of judicial discretion, and the assessment of the considerations set out in the legislation by reference to the circumstances of the case involves value judgements in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child.
Relief sought – the proposals of the parties
46To their credit, the parties conferred prior to trial in accordance with orders I had made at the status hearing and were able to tender on the first morning of trial a minute setting out certain orders which could be made by consent. Those orders are incorporated in the draft orders set out at the conclusion of these reasons.
47Importantly, the parties agreed that an order for equal shared parental responsibility should be made.
48The father’s proposals were set out in the minute filed by him prior to trial. He proposed:
(a)that the mother and Child A return to live in Western Australia, and that Child A live with each parent on a week about basis;
(b)that the mother be required to live with Child A within a 20 kilometre radius of his home in Suburb A; and
(c)that the mother be restrained by injunction from removing Child A from the State of Western Australia without his written consent, such consent not to be unreasonably withheld.
49In closing submissions, following discussions between the parties, the father amended his primary proposal slightly, to accommodate the possibility that upon returning to Western Australia the mother might prefer to live in the property that she owns in [Suburb C], which is outside the proposed 20 kilometre radius.
50The mother’s proposals were also set out in a minute filed prior to trial. She set out a number of alternative orders, effectively in descending order of preference, but did not depart in any sense from her primary proposal. The preparation and submission of alternative orders that she would say should be made in the event that she was unsuccessful in relation to that primary proposal did no more than acknowledge the logical possibility of that lack of success, and ensure that both the Court and the father had detailed submissions from her as to what orders she would argue should be made in that event.
She proposed:
(a)that Child A live with her in City B;
(b)that (without admission as to need) she be restrained from changing Child A’s principal place of residence to anywhere outside the City B area without the written consent of the father or order of the Court;
(c)that Child A spend time with the father every 12 weeks, alternating between City A and City B, until February 2021, being the anticipated time at which Child A will start full-time education;
(d)thereafter, the father be at liberty to nominate up to 10 days to spend with Child A in City B in the April and October school holidays, which such time being able to be spent in City A with Child A flying as an unaccompanied minor if the parties agree;
(e)the mother fly Child A to City A in the July school holidays to spend not less than seven days with the father;
(f)the father be at liberty to nominate time for him to spend with Child A in State A on any long weekend during school term, on certain conditions as to notice and expense;
(g)that Child A spend 10 days with the father in Western Australia during the school holidays at the end of 2021, to include the Christmas period;
(h)that Child A spend two weeks with the father in Western Australia during school holidays at the end of 2022, but outside the Christmas period;
(i)that Child A spend two weeks with the father in Western Australia during school holidays at the end of 2023, to include the Christmas period;
(j)that Child A spend up to three weeks with the father in Western Australia during the school holidays at the end of 2024, but outside the Christmas period; and
(k)that the parties equally meet the cost of Child A’s flights. Implicit in that proposal is the proposition that the parties each meet their own travel costs.
51Alternatively, if I determine that it is in Child A’s best interests to return to live in City A as proposed by the father, the mother submits that orders should be made:
(a)for Child A to live with her;
(b)that she not be required to return to live in City A until February 2019 (in part at least to afford her time to obtain employment), and in the interim Child A spend time with the father in accordance with her proposals as set out above;
(c)that upon her return to City A, and until February 2021, Child A spend time with the father:
(i)for the first six months, in a fortnightly cycle which would see her spend time with the father for short periods on three weekday afternoons, for a full day on Saturday in one week, and from Friday afternoon to Saturday afternoon the following week;
(ii)for the following six months, again on a fortnightly cycle but increasing by extension of the same schedule to include one overnight stay per week;
(iii)for the next 12 months, again on a fortnightly cycle but increasing again by extension of the same schedule to include one overnight period in week one, and two consecutive overnight stays in week two;
(iv)for the next 12 months, extending the same schedule to include one overnight stay in week one and a full weekend from 3.30 pm Friday until 5.00 pm Sunday in week two; and
(v)for the next 12 months, extending the same schedule so that the full weekend period in week two would commence at 3.30 pm on the Friday and conclude at the start of day care or kindergarten the following Monday.
52The mother also submitted that various specific orders in relation to school holidays should be made.
53The mother also made submissions in the form of a minute of orders she would say should be made if I determined that it was in Child A’s best interests to return to live in Western Australia, but permitted the mother to live with her in the north-west of the State. She made it clear that, without resiling in any way from her primary position, her strong preference if not permitted to remain in City B would be to live in the north-west rather than in City A.
54The mother made further submissions in the form of separate minutes of orders to cover the possibilities that the father might move to State A and live within 50 kilometres of City B, or move to State A but live in the city, or move to the north-west of Western Australia if she is living there with Child A. The father made it clear in his submissions that he has no intention of living outside the metropolitan area of City A, regardless of my determination as to the central issue between the parties, and acknowledged accordingly that it was not necessary to address those submissions on the part of the mother.
55Again without departing from his primary proposal, the father appropriately made submissions as to the orders he would say should be made if Child A is to live with the mother in City B. In those circumstances, he would submit that:
(a)the mother’s proposal whereby each party could have the opportunity to nominate up to two weeks per year for Child A to spend an extended holiday with them should be modified so as to commence immediately, rather than once Child A starts school;
(b) the proposed pattern of time Child A should spend with him alternating between City A and the eastern states should occur every eight weeks rather than every 12 weeks as proposed by the mother;
(c) on each such visit, after spending the day with him on the first day and then returning to the mother overnight, Child A should then spend five consecutive days and nights with him. That proposal, made in closing submissions, departed significantly from the position expressed by the father under cross-examination in which he acknowledged that the more staggered proposal of the mother was in Child A’s best interests;
(d) during periods when he is to spend time with Child A in the eastern states, that take place in [City E] rather than City B and the mother or her parents be responsible for transporting Child A to and from City E with a modest contribution by him to accommodation costs;
(e) in the July school holidays each year after February 2021 Child A spend 10 days with him in City A rather than the seven days proposed by the mother;
(f) on any long weekend during school term time after February 2021 where he proposes to take the option of spending time with Child A in the eastern states, he be permitted to do so in State A or [State B], and without any restrictions related to any prior commitments of the mother; and
(g) Child A commence spending up to 10 days with him in Western Australia during the end of year school holidays immediately, rather than at the end of her first year of full-time education as proposed by the mother, and that she spend Christmas 2017 with him.
56He submitted further that if I determine that Child A should return to live in City A, but permit the mother to delay her return for a year, Child A should spend time with him in the interim in accordance with the proposals outlined immediately above, and should move directly to a week about arrangement as soon as she returns to live in City A.
The father as a self-represented litigant
57The father represented himself at trial. The mother was represented by counsel.
58I explained various matters to the father at the commencement of the trial so as to ensure that he properly understood the process.
59I explained the steps that I was required to take to ensure procedural fairness. I informed him of the manner in which the trial was to proceed, the order in which the parties would give their evidence and make submissions and their right to cross-examine. I explained to him the importance of cross-examination and the likelihood that relevant evidence that was not challenged on cross-examination would be accepted.
60I explained that the parties would be permitted to give updating evidence-in-chief as to facts arising after the date on which their trial affidavits were sworn and I explained the nature and purpose of re-examination.
61I explained the principles to which the Court is required to give effect in conducting child-related proceedings. In particular, I explained the principle requiring me to actively direct control and manage the conduct of the trial. I confirmed my earlier explanation that the trial would be run in a manner that would ensure that the parties had all the time properly needed to explore matters genuinely in issue and ensure as far as possible that the best information was before the Court to allow parenting orders in the child’s best interests to be made, but that they would not be permitted to spend time on matters that were irrelevant to the issues.
62I explained that the formal rules of evidence did not apply other than in certain limited and specific circumstances. At the status hearing, I ensured that the father had the handbooks prepared by the Court for the assistance of self-represented litigants. By that mechanism, the relevant law was drawn to his attention. I also explained my obligation to attempt to clarify the substance of each party’s submissions, so as to ensure that I properly understood their cases as they wished them to be put.
63The father is an experienced security guard who had clearly prepared carefully for trial. He had no hesitation in asking me questions when he felt the need, and presented himself confidently. I am satisfied that he understood the information and explanations I provided to him, and that the trial proceeded in a manner which afforded procedural fairness to both parties.
64I record also that the father conducted himself in an entirely appropriate manner throughout the trial, including in his cross-examination of the mother.
Matters not in dispute and issues joined
65As already noted, the parties agree that an order for equal shared parental responsibility should be made.
66At the commencement of the trial, I asked the parties to confirm the issues joined between them, by reference to the primary and additional considerations in the legislation.
67It is common ground that Child A has a meaningful relationship with both parents and that it is in her best interests for those relationships to continue.
68On the father’s case, there is no need to craft orders designed to protect Child A from physical or psychological harm. On the mother’s case, there was significant conflict between the parties during their relationship and the risk of Child A being exposed to such conflict, and potentially suffering psychological harm, would increase if she is required to live in City A and share care with the father. The mother also argues that her own mental well-being will suffer if she is required to live in City A, and that circumstance might also expose Child A to the risk of psychological harm.
69Child A is two years old. Neither party suggested that she had expressed any views, nor that any weight should be given to them if she had.
70On the father’s case, the nature of Child A’s relationships with members of extended family is a factor to be considered. On the mother’s case, it is a matter of limited importance.
71It is common ground that both parties have sought to take every opportunity to participate in making decisions about major long-term issues in relation to Child A, to spend time with her and to communicate with her.
72It is also common ground that both parties have appropriately fulfilled their obligations to maintain Child A.
73For obvious reasons, the considerations set out in ss 60CC(3)(d) and (e) assume importance in this case. On the mother’s case, an assessment of the respective capacity of the parents to provide for Child A’s needs including her emotional and intellectual needs is required.
74It is common ground that no factor relating to the maturity, sex, lifestyle and background of Child A or either parent is a relevant issue, and that there are no relevant cultural issues.
75The father acknowledges that the mother has demonstrated an appropriate attitude to Child A and to the responsibilities of parenthood. The only caveat in that regard is that he would argue that by moving to City B and removing the opportunity for Child A to spend regular and frequent time with him, the mother has disregarded the importance to Child A of their relationship.
76At the commencement of the trial, counsel for the mother said that the father’s attitude to Child A and to the responsibilities of parenthood was “not a major issue” but might be explored in cross-examination. In the end result, nothing emerged from the cross-examination of the father to elevate that issue.
77There is no family violence order involving Child A or the parties, nor has there ever been. From the father’s perspective, there are no relevant issues relating to family violence; the mother disagrees.
78Both parties acknowledged that, given Child A’s age, it is not possible for orders made now to appropriately and comprehensively cover the parenting arrangements to be made for her between now and her 18th birthday and remove any need for later adjustments. They acknowledged, therefore, that the question of whether it would be preferable to make the order least likely to lead to the institution of further proceedings is not relevant to the determination of the present proceedings.
79Apart from the prescribed list of primary and additional considerations, the legislation empowers the Court to take into account any other fact or circumstance that it thinks relevant. I invited the parties to identify any such fact or circumstance they would contend is relevant. The father confirmed that there were no further matters to which he would refer. The mother submitted that her preference not to live in a city (which the father acknowledged was long-standing and genuine) is a matter appropriately to be taken into account.
The evidence at trial
80The father relied on the following affidavits:
(a)his affidavit sworn on 31 January 2017 and filed in the Federal Circuit Court of Australia, before being refiled in this Court on 3 October 2017;
(b)his trial affidavit filed on 24 May 2017;
(c)his financial statement filed on 6 April 2017;
(d)affidavit of his friend and work colleague [Ms W] filed on 25 May 2017;
(e)affidavit of his friend and colleague [Mr M] filed on 25 May 2017;
(f)affidavit of [Mrs H] filed 25 May 2017;
(g)affidavit of Mrs H’s husband [Mr H] also filed 25 May 2017;
(h)affidavit of his work colleague [Mr B] filed on 22 September 2017; and
(i)affidavit of his work colleague [Mr G] filed on 22 September 2017.
81Ms W, Mr M, Mr B and Mr G were not required to present for cross-examination and their evidence was accordingly unchallenged. Mr and Mrs H presented for cross-examination as required.
82The mother relied on the following affidavits:
(a)her trial affidavit sworn on 8 September 2017;
(b)her financial statement filed on 9 June 2017;
(c)affidavit of her mother [Ms Mc] filed on 11 September 2017;
(d)affidavit of her friend [Ms K] filed on 17 May 2017; and
(e)affidavit of her treating psychologist [Dr T] handed up in Court, annexing two reports which had previously been disclosed in a timely fashion to the father.
83The father did not require Ms Mc to present for cross-examination. Ms K presented for cross-examination. By agreement, Dr T who is based in State A gave evidence by telephone.
Observations as to the oral evidence at trial
84The father gave his evidence in a confident manner. He made admissions against interest, albeit when confronted with evidence that would make it difficult for him to do otherwise, and readily and promptly acknowledged with the benefit of hindsight that some of his earlier actions and behaviour were inappropriate.
85That said, while I do not suggest that he gave his evidence other than honestly, I formed the impression that to a degree at least he gave it strategically. He was very firm in his rejection of some factual allegations made against him, asserting more than once that he had a “very clear recollection” of particular incidents to a level of significant detail. He appeared very aware of evidentiary issues in relation to allegations regarding his behaviour in particular, and was concerned about possible findings against him impacting on his career as a security guard.
86The mother struggled at times in giving her evidence. She appeared to find it difficult to make eye contact with the father, and became upset when describing events during their relationship, and her reactions to them. While I regarded her evidence as honest, it was also coloured by her emotions, particularly as she described her feelings of being “belittled” by the father during their relationship.
87Mrs H appeared tense at times while giving evidence, but did so in a straightforward and sensible manner. I regarded her as an honest witness.
88Mr H was cross-examined only briefly. He was cautious in his responses, and appeared at times to be somewhat reluctant to give answers which might reflect other than positively on the father. The vagueness of his evidence in relation to the incident which occurred when the mother was rushed to hospital during the late stages of her pregnancy as she could not feel the baby moving, and the father was collected from his home, was unconvincing. Nevertheless, for reasons which will become apparent nothing turned on his evidence.
89Dr T gave her evidence in a measured and professional manner. That said, she appropriately acknowledged that the views expressed by her in her reports were based entirely on information provided to her by the mother, and her assessment of the mother. She acknowledged the proper distinction between evidence given based on interactions in a therapeutic capacity, and evidence given based on a forensic exercise.
The statutory presumption of equal shared parental responsibility
90It was the father’s case that there was no family violence in this relationship, and that the statutory presumption accordingly applies.
91The mother’s case in that regard was somewhat difficult to pin down. In her papers for the judge, the following passage appeared:
The mother does not submit that the family violence was such that the presumption of equal shared parental responsibility should be rebutted but she submits that the child has been subjected to family violence in the past (albeit when she was an infant) and that the child would be at risk of exposure to family violence in the future if the mother lived away from her support networks, particularly those who assist with handover.
92In closing submissions, counsel for the mother submitted that the statutory presumption was inapplicable by reference to family violence, while confirming that her instructions were that the mother proposed that an order for equal shared parental responsibility should be made.
93On either party’s evidence as to the incident on 1 June 2016, either or both of them engaged in behaviour meeting the definition of family violence. There are, accordingly, “reasonable grounds to believe that a parent has engaged in family violence”.
94That is sufficient to ground a finding that the statutory presumption does not apply.
95Of course, the application or otherwise of the statutory presumption is somewhat academic given the agreed position of the parties that it is in Child A’s best interests for there to be an order that they have equal shared parental responsibility for her.
96While there are clearly ongoing difficulties in the relationship between the parties and in their communication, and the ongoing consultation required by an order for equal shared parental responsibility will present challenges for each of them, I am nevertheless satisfied that it is appropriate to make the order that they propose. The order is consistent with the objects of Pt VII of the Act and the principles underlying them. The difficulties in communication between the parties must also be viewed in the context of the level of consultation actually required by the proposed order; that consultation and joint decision-making is required in relation to major long-term issues, as that term is defined in the Act. The proposed order will not require the parties to consult and reach joint decisions about matters which do not meet that definition.
97Notwithstanding the difficulties between them, it must also be acknowledged that the parties have managed to make various informal arrangements for Child A to spend time with and communicate with the father since their separation. That is to their credit, and is cause for some cautious optimism that their capacity to consult with each other will improve as time passes and the litigation is behind them.
Discussion and findings about matters in issue – the best interests of the parties
98There are relatively few factual disputes between the parties, as distinct from disagreements as to what arrangements will be in Child A’s best interests. Even fewer of those factual disputes actually require determination in order to inform the decision to be made.
99As already noted, there is a factual dispute between the parties as to the precise circumstances of the incident between them on 1 June 2016. The evidence supports a finding that there were significant difficulties in the relationship between the parties at that time, and that the mother was desperately unhappy. She regarded the father as being unsupportive and insensitive to her needs; he regarded her as irrational, and took exception to her efforts to leave their home with Child A in circumstances where he felt strongly that she had no right to “take his daughter away from him”.
100Similarly, the parties have different accounts of an incident between them overseas and different accounts as to what transpired on the day late in her pregnancy when the mother was rushed to hospital. They also have different accounts of the tensions in their household when they were sharing a rental property with the father’s brother, and the role of the maternal grandmother in those tensions.
101The relevance of those matters to a determination of what parenting orders are in Child A’s best interests can only be to inform an understanding of the dynamic between the parties, particularly in so far as that is relevant both to the issue of whether it is in Child A’s best interests to live equally with each of them, and also in the analysis of the mother’s case as to the location at which she should live.
102That understanding is better informed by the evidence of third parties.
103In her affidavit, Ms Mc describes a “toxic household”, significant tension between the parties, and inconsiderate and domineering behaviour on the part of the father. While it cannot sensibly be suggested that Ms Mc is an independent witness, and allowance must be made for some obvious hyperbole in her affidavit, nevertheless her evidence was unchallenged.
104Dr T describes the information provided to her by the mother as being indicative of a controlling and abusive relationship. She expressed concern as to the mother’s well-being if forced to return to Western Australia, describing her as continuing to be “vulnerable to being manipulated by [the father]”. She noted further that, while the mother’s mood had improved, she still had some residual symptoms from the coercive relationship described.
105As already noted, Dr T properly acknowledged that in forming her views she had relied entirely on information provided by the mother. She had not met or spoken to the father, nor read any of the Court materials. Nevertheless, her assessment of the mother’s presentation and symptoms, and their genuineness, is informative.
106The evidence of Ms K was helpful to an understanding of the dynamic between the parties. Ms K did not present as having any ‘axe to grind’; indeed, it was clear from the outset of her evidence that she found it distressing to have to give evidence in a dispute between two people with whom she had a good relationship, and that she was deeply saddened by the circumstances in which her friends found themselves. She was clearly fond of both parties. At the commencement of his cross-examination of her, the father confirmed that they knew each other well, had a good relationship and were very open with each other.
107In her affidavit, Ms K described the tension in the relationship between the parties. She described being present for a “massive fight” between the parties shortly after their arrival in Town A, in which the father told the mother that her family were “never setting one foot through my door”. She further described a conversation with the father after the mother’s admission into the mother and baby unit at Hospital A suffering from postnatal depression, saying that he “seemed very angry” and said words to the effect of:
I’m so embarrassed, how could she do this to me? She has put herself in the nut house so I can’t see my baby. This is meant to be bonding time and she has ruined it by playing the system… there is nothing wrong with [the mother], she has everything.
108Ms K’s evidence in relation to those matters was unchallenged.
109Similarly, she described a number of conversations with the father after the health professionals treating the mother for her postnatal depression had recommended couple’s counselling. The father attended one or two sessions of counselling only, and the mother attended the rest alone. Ms K described attempting on a number of occasions to persuade the father to participate in counselling, to no avail.
110Ms K gave evidence that the mother arrived at her home after the incident on 2 June 2016 in a distressed state, saying “she was visibly shaken and was crying” and that she had a “ripped shirt”. She described her as being “in a terrible state”. Again, her evidence was unchallenged.
111She described a conversation between the parties in her presence during which the mother told the father that the relationship was not working, and that they needed to discuss separation. The mother told the father that he was not meeting her needs, and she was desperately unhappy. The father responded by saying the parties would not be separating, as he loved his family too much.
112Ms K also said that the mother forewarned her of her plans to leave Town A with Child A. Her explanation as to the conflict she felt in having that information, when the father did not, was telling. During her cross-examination, the following exchange took place:
[THE FATHER]: Prior to [the mother] actually boarding a flight, did she tell you that she was going to be taking [Child A]?
[MS K]: Yes she did. I didn’t know for the duration of the planning of [the mother] leaving, but on the day before a couple of people had came to visit you and I didn’t know who they were, but [the mother] did, and I had volunteered [the mother] to give these two ladies a lift to the beach … And I could see a massive face change in [the mother] and I didn’t really understand why. It turns out that this one particular woman was an ex-partner of yours, or somebody that you’ve had history with, and I’d volunteered [the mother] for something that was really uncomfortable for her to do. So once we got rid of the ladies, at the caravan park [the mother] was like really bright red and very angry and just told me “I’m so angry and so hurt and I’ve been meaning to tell you this but I haven’t known how to but I’m leaving tomorrow”. And I was really shocked, because I didn’t understand any of it because I hadn’t been part of any of the build-up. And then we continued, we had a night out that night and then I obviously had a very hard decision to make whether to tell you or to tell [G] and put him in a position where he had to tell you. But I felt, I felt that for her to have to do this and do it this way, she had a very strong reason to. And I also really was concerned that if you did turn up at the airport that you’d get in trouble and lose your job. It would just be really bad…
113I conclude that the relationship between the parties was unhappy at least from the time of Child A’s birth, and that the father was unable or unwilling to provide the mother with the emotional and other support that she needed. I conclude further that the mother’s perception of their relationship as being one in which the father exercised coercive control over her is and was genuinely held. In the face of the evidence of Ms K in particular, it cannot be said that the mother’s perception in that regard was unfounded.
114Those conclusions inform not only an understanding of the mother’s actions in unilaterally leaving Town A, but an acceptance of the evidence of Dr T as to the potential effect on her of orders being made which would compel her to live in City A.
115As already noted, the welfare of the parents, and their best interests, are appropriately to be considered provided the best interests of Child A remain the paramount consideration.
116It is clearly in the best interests of the father for the mother to be compelled to live in City A so that he can spend time with Child A more readily and frequently, irrespective of whether she lives primarily with the mother or lives equally with each party as he proposes. The father has made it clear that he has no interest in moving to State A, and that for good reason it would be very difficult for him to do so in any event. He has a home in Suburb A, extended family in Western Australia, and an established career in [Western Australia]. It is not possible for him to transfer his employment to State A; he would have to resign his present employment and apply for employment in State A. He may or may not be successful in such an application, would have to undertake retraining, would suffer a reduction in income, and could not be guaranteed [employment in City B] in any event.
117Equally clearly, it is in the best interests of the mother to remain living in City B. Her desire to do so is entirely bona fide. She grew up in City B and her family is there. She has a support network and good employment available to her. She has never been happy living in the city, and is clearly happier living in City B than anywhere else.
The best interests of the child
118It is common ground that Child A has a meaningful relationship with both parents and that it is in her best interests for those relationships to be maintained.
119Importantly, it is also common ground that Child A’s meaningful relationship with the father has been maintained, and is continuing to grow, in the current circumstances where she lives in City B and he lives in City A. That is to the credit of both parties.
120It is appropriate at this point to consider the father’s proposal that Child A should live equally with both parents, and determine whether such an arrangement would be in her best interests, not only because of the statutory requirement for such a consideration against the background of the agreed order for equal shared parental responsibility, but also because the determination of that issue informs the determination of the balance of the matters in dispute between the parties. Similarly, it is appropriate at this point to consider whether an arrangement for Child A to live equally with both parents is reasonably practicable.
121It is not in dispute that, apart from the issue of Child A’s time with the father, the arrangements made for Child A’s accommodation, support and care by the mother in City B are entirely appropriate.
122Tellingly, the father’s evidence does not include anything to indicate why he regards an equal time arrangement as being in Child A’s best interests, why he informally amended his application to seek such an order after initially proposing that Child A live primarily with the mother, or just how he would envisage an equal time arrangement working.
123He provided no evidence as to the practical care arrangements to be made for Child A during the weeks in which, on his proposal, she would be in his sole care in circumstances where he is employed full-time in demanding shift work. He gave no evidence as to whether any other person is living with him, nor details of how his work roster is arranged. He offered no specific proposals as to day care or other arrangements, kindergarten or schooling.
124When asked by me during his closing submissions to explain how he would envisage a week about arrangement working in circumstances where both parties are shift workers in demanding careers, he said that the parties would need to consolidate their rosters to “accommodate the week about arrangement”.
125Similarly, the father gave no evidence as to why an arrangement whereby Child A would spend substantial and significant time, as that term is defined in the Act, with him would be either in her best interests or reasonably practicable, even if both parties were living in City A.
126The father’s proposals, to put it as neutrally as possible, did not appear to have been carefully considered with an eye both to Child A’s best interests and their practicality. The total absence of specific proposals, and the amendment of the father’s application after the determination by Duncanson J of the interim proceedings, might suggest that the pursuit by the father of equal time was reflective either of a strategic decision in support of his proposal that the mother be compelled to return to Western Australia with Child A, or a perception on his part of parental rights.
127It is unnecessary, however, to determine the father’s motivation in that regard. It is sufficient to observe that he offered no evidence to support a proposition that an order for equal time would be in Child A’s best interests or reasonably practicable.
128The totality of the evidence, in any event, supports the opposite conclusion.
129Child A is very young. She has been in the primary care of the mother since her birth and in the almost exclusive care of the mother since separation. She has not stayed overnight with the father since separation. It is clear that her primary attachment is to the mother, and that orders which provided other than for her to remain living primarily with the mother would represent a fundamental change in her circumstances. On the available evidence, I conclude that the effect of such a change would clearly be contrary to her best interests.
130By the same token, the father’s proposal that Child A transition immediately into an equal time arrangement calls into question his capacity to focus on her needs as distinct from his wants, and to recognise the steps necessary to adequately provide for those needs. The same observation may be made in relation to the father’s proposals as to the extended time he would say Child A should immediately spend with him even if she continues living with the mother in City B.
131I conclude that, irrespective of geography, it is in Child A’s best interests to live with the mother and spend time with the father. I conclude that it is not in her best interests to spend equal time with each of her parents.
132I conclude further that, irrespective of geography, it is not in Child A’s best interests to spend substantial and significant time (as that term is defined in the Act) with each parent.
133A consideration of the matters raised by each party as to the nature of Child A’s relationships with other persons, including extended family, does not alter those conclusions.
134Clearly, neither an order for Child A to live equally with each parent, nor an order for her to live with the mother and spend substantial and significant time with the father are reasonably practicable in circumstances where the mother lives in City B, and the father lives in Western Australia.
135The father has made it clear that he will not move to State A. For the reasons already outlined, I am unable to conclude that either an order for Child A to live equally with each parent, or an order for her to live with the mother and spend substantial and significant time with the father are reasonably practicable even if the mother returns to live in Western Australia, whether in the City A metropolitan area or otherwise.
136Against the background of those conclusions, the further conclusion that the mother should be permitted to continue living in City B with Child A is readily reached. The arrangements the mother has made in City B are appropriate. She is happy there, has the support of her family, and is predicted by Dr T to enjoy an improvement in mental health both in that environment and after the stresses of Court proceedings are removed. As already observed, the Court’s coercive power to require a parent to relocate so as to continue his or her role as primary carer of a child is properly exercised only “at the extreme end of the discretionary range and there should exist “rare” or “extreme” factors that warrant” such an order: Oswald and Karrington (supra).
137No such factors are present in this case.
138The consideration of what orders are in Child A’s best interests must therefore turn to the question of the arrangements to be made for her to spend time with and communicate with the father on the basis that he continues to live in City A and she continues to live in City B.
Arrangements for Child A to spend time with the father
139The competing proposals of the parties are summarised earlier in these reasons. The adoption of either of the competing proposals would, in my view, ensure that Child A is able to properly maintain her relationship with the father both by direct contact and communication with him. That conclusion is reinforced by the agreed position of the parties that Child A’s relationship with the father is meaningful, and has been maintained by the arrangements which have been in place since separation. It is common ground that Child A recognises the father, and runs happily to him at the commencement of any time with him. Her regular FaceTime communication with him works well, within the obvious constraints, inconsistencies and distractions which are a function of her age.
140A consideration of the competing proposals, and any alternatives, therefore properly involves not only considerations of Child A’s best interests, but issues of practicality.
141It must be noted in that regard that, again, the father’s proposals changed over the course of the proceedings and indeed over the course of the trial.
142In his minute of proposed final orders filed on 24 May 2017, confirmed by him at the commencement of the trial as representing his current position, the father proposed the following orders in the event that Child A lives in City B (errors as in original):
FATHERS TIME WITH [CHILD A] IF MOTHER AND CHILD REMAIN IN [CITY B]
5.If [Child A] and the Mother are to remain in [City B] the father will spend time with [Child A] in a 8 week rotation for a 1 week period with visits alternating between [City A] and [City B]:
(a)the week will be for seven consecutive days from 8.00am to 5.00pm every 8 weeks; and
(b)upon [Child A] attaining 2 years of age she will reside with the Father for a 1 week period with visits alternating between [City A] and [City B].
6.In order to give effect to the orders the Father is to travel to [City B] every 16 weeks.
7.The Mother will travel to [City A] every 16 weeks to facilitate [Child A’s] time with the Father.
8.If [Child A] is in the Mother’s care on [Child A’s] birthday, Christmas, Father’s day, and/or Easter, the Father will have FaceTime contact with [Child A] at a time agreed between the parties.
9.If [Child A] is in the Father’s care on [Child A’s] birthday, Christmas, Father’s Day, and/or Easter, the Mother will have FaceTime contact with [Child A]at a time agreed between the parties.
10.Upon [Child A]attaining 5 years of age, [Child A];
(a)Travel to [City A] to spend half of the school holidays with the Father;
(b)Spend time with the Father in [City A] from 9.00am Christmas Eve until 2.00pm on Boxing day in 2017 and each alternate year thereafter; and
(c)Spend time with the Father in [City A] from 9.00am Good Friday until 2.00pm Easter Sunday in 2018 and each alternate year thereafter.
143It will be seen that while the core proposition that Child A spend time with the father every eight weeks, with alternating visits in City A, has remained consistent certain other elements of the father’s proposal have not.
144In his closing submissions, the father proposed for the first time that when he is spending time with Child A other than in City A, that visit should take place in City E rather than City B and the mother should be responsible for transporting Child A at the commencement and conclusion of such visit. The rationale for that altered proposal was both a reduction in the cost to him (in travel and accommodation, although no evidence was given as to the proposed accommodation arrangements in City E) and the increase in time which he would have available to spend with Child A by virtue of not having to travel himself back and forth between City E and City B.
145Having agreed under cross-examination that the structure proposed by the mother for Child A’s time with him, involving an initial daytime visit, followed by an overnight visit with a return to the mother the following day for reassurance before further overnight time, was sensible and in Child A’s best interests, in closing submissions the father reverted to his earlier position that Child A should simply spend an immediate extended period with him.
146In his minute, the father proposes that certain arrangements for school holidays and Christmas commence upon Child A attaining five years of age, but then proposes that within those arrangements she spend time with him from 9.00 am Christmas Eve until 2.00 pm Boxing Day in 2017 and each alternate year thereafter. The internal inconsistency in his minute of proposed orders is clear; in closing he confirmed that he sought orders for Child A to spend Christmas with him this year.
147The issues which emerge are:
(a)whether, between now and the commencement of Child A’s schooling, her time with the father should occur once every eight weeks as proposed by the father, or once every 12 weeks as proposed by the mother, or on some other basis;
(b)whether, when that time is to be spent in the Eastern States, it should be spent in City B or in City E;
(c)the structure of that time in any event;
(d)whether such time should incorporate Christmas at any time between now and the commencement of Child A’s schooling and, if so, on what basis;
(e)how those arrangements should change once Child A commences school; and
(f)what precise arrangements for the agreed regular Skype communication should be put in place.
148For simplicity of expression, I will refer to Child A’s periods of time in the care of the father as “visits”; the use of that expression is not intended to in any way diminish recognition of their importance or the importance of the father’s parenting role.
Frequency of visits and the location for visits in the Eastern States – until the commencement of Child A’s schooling
149The dispute between the parties as to the frequency of visits between now and the commencement of Child A’s full-time schooling centres largely on convenience and cost. The father is anxious to spend time with Child A as often as possible; the mother has no difficulty with that, but argues that the expense associated with the present frequency of visits is unsustainable.
150The dispute between the parties as to the location for visits in the Eastern States also centres primarily around convenience and cost, although the mother would also argue that there is a benefit to Child A of spending time with the father in her home town, where he can take her to familiar places, and engage in her regular activities and with people who are a part of her day to day life.
151As counsel for the mother pointed out in closing submissions, the father’s amended position whereby he proposed that the mother should transport Child A to City E when he travels to see her was both very “last-minute”, and poorly considered. No evidence was given as to what arrangements the father might be able to make in City E that would be somehow preferable to those he could make in City B. While the father accepts the proposition that he should travel for half of the visits he spends with Child A, on his amended proposal both the mother and Child A would have to travel on every occasion.
152The dispute between the parties as to the sustainability of more frequent visits falls to be assessed against the background of limited information regarding their respective financial circumstances and the demands of their employment, an appreciation that those circumstances and demands are somewhat fluid in any event, and the fact that the parties have managed to sustain the frequency of visits proposed by the father at least on an interim basis.
153Neither party’s position is categorically “right” or “wrong” in relation to the frequency of visits issue. On the father’s proposal, between 1 January 2018 and the commencement of full-time schooling Child A would spend approximately 20 visits with him. On the mother’s proposal, over the same period there would be approximately 14 visits.
154As was made clear to the parties during the trial, I am not in any sense bound by their proposals. I acknowledge both that the father would wish to see Child A as often as possible, and that the ability of the parties to sustain in a financial sense an eight week rotation on an interim basis does not necessarily mean that such a rotation is sustainable longer term.
155Doing the best that I can on the evidence before me, I propose to order that the visits take place on an approximate 10 week rotation. The additional number of visits above the number proposed by the mother will be to Child A’s benefit, but the financial impost of the present arrangement will be alleviated, if only slightly. The rotation is necessarily approximate, as strict compliance to it would, for example, potentially interfere with the agreed position that Child A should spend time with the father in City A over the Christmas period in 2017 and 2019.
156I do not propose to order that the father’s visits with Child A in the Eastern States take place in City E. As already noted, his consistent proposal up until closing submissions was that such visits should take place in City B, no evidence was given to support the proposition that they should take place in City E, and self-evidently there was no opportunity for the mother to test that proposition. Even were that not the case, I would conclude that the benefit to Child A of having those visits take place in what will be her home town outweighs any benefit that might be associated with those visits taking place in City E.
157It was submitted on behalf of the mother that as the father presently has available to him six weeks annual leave and 11 weeks accrued long service leave, he should make use of those entitlements to undertake more of the travelling associated with Child A’s time with him than should she. I do not accept that submission. The father will necessarily devote a high proportion of his leave entitlements to spending time with Child A, and the current availability to him of long service leave does not persuade me to depart from the previously agreed position that the parties should share relatively equally in the need to travel.
Structure of the visits
158The father’s proposal that the visits take the form of an immediate one week block with Child A in his exclusive care is, in my view, inappropriate given Child A’s age, and the very limited time she has spent in his care to date.
159The mother’s proposal as to the structure of the visits was accepted by the father in cross-examination as being sensible and in Child A’s best interests. I regarded that as a sensible and child focused concession by him at the time it was made; my view in that regard was not altered by the submissions made by the father in closing as to his changed position.
160I propose to make orders broadly in terms of the mother’s proposed structure, at least initially. While the structure is appropriate at present, that does not mean that it should not be altered over the course of the next three years. It is to be expected that as Child A matures, and as the broad routine of visits becomes increasingly familiar to her, the need for gradual reintroduction into the care of the father at the commencement of each visit will likely diminish.
161I propose therefore to make orders in the terms of the mother’s proposed structure for 2018, but with progressions in each of 2019 and 2020.
Christmas – until the commencement of Child A’s schooling
162On either party’s submission as to the orders to be made if Child A is living in City B, she will spend time with the father over the Christmas period in City A in 2017 and 2019. Neither party submits that she should spend Christmas other than in City B with the mother in 2018 and 2020.
163I regard that as appropriate. As already noted, I intend that the proposed approximate 10 week cycle for visits will be adjusted as necessary by the parties so as to ensure that those Christmas arrangements are accommodated.
Arrangements once Child A commences school
164The father proposes that from the age of five Child A travel to City A to spend half of each school holiday period with him. The mother proposes that once Child A starts school, the father be at liberty to nominate up to 10 days to spend with her in City B in the April and October school holidays, or arrange for Child A to fly to City A as an unaccompanied minor for that period by agreement. She proposes that she will bring Child A to City A in the July school holidays each year, so that Child A may spend not less than seven days with the father, and arrangements whereby Child A would spend time in Western Australia during the end of year school holidays for gradually increasing periods, commencing with 10 days at the end of 2021 and progressing to three weeks at the end of 2024, by which time Child A will be nine years old.
165The mother’s proposals do not extend beyond the school holidays at the end of 2024. While to a degree that is understandable given the difficulties associated with long-range predictions as to what is in Child A’s best interests, in my view it is appropriate to make orders extending beyond that date in the hope that it will assist the parties to avoid the need for further proceedings.
166It must, of course, be understood that circumstances relevant to Child A’s best interests may change significantly over the next seven years, whether by virtue of specific intervening events or simply the passage of time. I record that in making orders extending beyond the end of 2024 it is not my intention to preclude the parties from making an appropriate application to vary those orders in due course.
167I regard it as appropriate for the point at which the holiday arrangements for Child A will change significantly to be set by reference to her commencement of full-time schooling, rather than her fifth birthday.
168I regard the progression proposed by the mother as being age-appropriate, and in Child A’s best interests. I also regard it as being in Child A’s best interests to continue spending holiday time with the father both in Western Australia and in the Eastern States until she is old enough to travel to Western Australia more frequently.
169In my view, the orders proposed by the mother represent the most appropriate arrangement to be put in place between the start of Child A’s schooling and the end of 2024. From that point, I consider it appropriate for Child A to spend half of each school holiday period with the father. There was no evidence before me as to the arrangements that might be able to be made for Child A to travel by air unaccompanied, nor as to the age at which that will be possible. I propose to make orders whereby the father will be at liberty to elect that she travel unaccompanied to Western Australia to spend time with him as soon as such travel is permitted by the airlines.
Communication between visits
170The dispute between the parties in relation to this issue is particularly narrow. The father did not address the issue in his minute of orders sought, but indicated early on the trial that he would seek a continuation of the interim orders made on 13 April 2017, whereby Child A has FaceTime or Skype calls with him once a day from Monday to Wednesday inclusive, and twice a day from Thursday to Sunday inclusive. Later in the trial, in addressing sequentially the orders proposed by the mother in her minute, he did not indicate any disagreement to the orders proposed by the mother in the following terms:
At all times [Child A] will have liberal telephone and Skype communication with the parties.
If [Child A] resides in a different state to a parent, the parent with whom she resides shall ensure that she has Skype communication not less than twice per week on dates and times to be agreed and failing agreement each Monday and Friday evening between 5.00 pm and 7.00 pm local time.
171It is common ground that it is in Child A’s best interests, particularly while she is so young, to have very frequent Skype or FaceTime communication with the father. Indeed, the frequency of that communication to date appears to have contributed significantly to the maintenance of Child A’s relationship with the father.
172The mother’s primary objection to a continuation of the interim order was based on convenience, and the understandable difficulty she sometimes encounters in persuading Child A to engage in the communication when she is tired, distracted, or keen to do something else.
173In my view, it is appropriate for the time being for Child A to have the opportunity to communicate with the father by Skype or FaceTime once a day. The frequency of those communications will become less important, and potentially more intrusive, as Child A gets older. Accordingly, I regard it as appropriate for there to be a gradual move from daily communication to communication on alternate days, and to communication twice a week in due course. I propose to make orders to that effect.
Proposed orders
174Subject to any submissions as to form, I propose to make the following orders:
1.All previous parenting orders be and are hereby discharged.
2.By consent, [Mr Fernandez] (“the father”) and [Ms MacPherson] (“the mother”) have equal shared parental responsibility for the child [Child A], born [in] September 2015 (“[Child A]”).
3.[Child A] is to live with the mother.
4.Until the commencement of the school year in 2019, [Child A] is to spend time with the father every 10 weeks, alternating between [City A] (commencing in [City A] on 22 December 2017) and [City B] (commencing in March 2018) as follows:
(a)when [Child A] spends time in [City A], the mother will:
(i)on the first day, drive from [City B] to [City E] airport, staying overnight in an airport motel;
(ii)fly to [City A] on the second day, renting accommodation within a 45 minute drive of the father’s [Suburb A] home;
(iii)make [Child A] available to spend time with the father:
1.on the third day from 8.00 am to 5.00 pm;
2.from 8.00 am on the fourth day until 2.00 pm on the fifth day;
3.from 8.00 am on the sixth day until 3.00 pm on the seventh day; and
4.departs [City A] on the eight day;
(iv) on the eighth day, fly to [City E] with [Child A];
(v)on the ninth day, drive [Child A] back to [City B] from [City E]; and
(vi)the mother or her agent accompany [Child A] when she flies from [State A] to [City A];
(b)when [Child A] spends time with the father in [City B], the father will:
(i)fly to [City E] and drive to [City B] on the first day;
(ii)spend time with [Child A] on days two to eight as follows:
1.on the second day from 8.00 am to 5.00 pm;
2.from 8.00 am on the third day until 12 noon on the fourth day;
3.from 8.00 am on the fifth day until 12 noon on the sixth day; and
4.from 8.00 am to 5.00 pm on the seventh and eight days;
(iii)return to [City A] on the ninth day.
5.From the commencement of the school year in 2019, until the commencement of the school year in 2020, [Child A] is to spend time with the father every 10 weeks, alternating between [City A] and [City B] as follows:
(a)when [Child A] spends time in [City A], the mother will:
(i)on the first day, drive from [City B] to [City E] airport, staying overnight in an airport motel;
(ii)fly to [City A] on the second day, renting accommodation within a 45 minute drive of the father’s [Suburb A] home;
(iii)make [Child A] available to spend time with the father:
1.on the third day from 8.00 am to 5.00 pm;
2.from 8.00 am on the fourth day until 5.00 pm on the fifth day;
3.from 8.00 am on the sixth day until 5.00 pm on the seventh day; and
4.departs [City A] on the eight day;
(iv) on the eighth day, fly to [City E] with [Child A];
(v)on the ninth day, drive [Child A] back to [City B] from [City E]; and
(vi)the mother or her agent accompany [Child A] when she flies from [State A] to [City A];
(b)when [Child A] spends time with the father in [City B], the father will:
(i)fly to [City E] and drive to [City B] on the first day;
(ii)spend time with [Child A] on days two to eight as follows:
1.on the second day from 8.00 am to 5.00 pm;
2.from 8.00 am on the third day until 5.00 pm on the fourth day;
3.from 8.00 am on the fifth day until 5.00 pm on the sixth day;
4.from 8.00 am to 5.00 pm on the seventh and eighth days; and
(iii)return to [City A] on the ninth day.
6.From the commencement of the school year in 2020 until the commencement of the school year in 2021, [Child A] is to spend time with the father every 10 weeks, alternating between [City A] and [City B] as follows:
(a)when [Child A] spends time in [City A], the mother will:
(i)on the first day, drive from [City B] to [City E] airport, staying overnight in an airport motel;
(ii)fly to [City A] on the second day, renting accommodation within a 45 minute drive of the father’s [Suburb A] home;
(iii)make [Child A] available to spend time with the father:
1.from 8.00 am on the third day until 5.00 pm on the fourth day;
2.from 8.00 am on the fifth day until 5.00 pm on the seventh day; and
3.departs [City A] on the eighth day;
(iv) on the eighth day, fly to [City E] with [Child A];
(v)on the ninth day, drive [Child A] back to [City B] from [City E]; and
(vi)the mother or her agent accompany [Child A] when she flies from [State A] to [City A];
(b)when [Child A] spends time with the father in [City B], the father will:
(i)fly to [City E] and drive to [City B] on the first day;
(ii)spend time with [Child A] on days two to eight as follows:
1.on the second day from 8.00 am to 5.00 pm;
2.from 8.00 am on the third day until 5.00 pm on the fifth day; and
3.from 8.00 am on the sixth day until 5.00 pm on the eighth day;
(iii)return to [City A] on the ninth day.
7.From the commencement of the school year in 2021 until the commencement of the school year in 2025, [Child A] is to spend time with the father as follows:
(a)the father be at liberty to nominate up to 10 days to spend with [Child A] in [City B] in the April and October school holidays, or if the parties agree, he may arrange for [Child A] to fly to [City A] as an unaccompanied minor for that time, with the mother to deliver [Child A] to [City E] airport and collect her from [City E] airport at the end of the holidays;
(b)the mother fly [Child A] to [City A] in the July school holidays so that [Child A] may spend not less than seven days with the father;
(c)the father be at liberty to nominate time for him to spend with [Child A] in [State A] on any weekend which includes a long weekend, provided that he provides the mother with not less than six weeks’ notice and that he meets any costs associated with his or [Child A’s] accommodation and subject to the mother not already having plans in place for such a weekend;
(d)during the end of year school holidays in 2021/2022, the father be at liberty to nominate up to 10 days for [Child A] to live with him in Western Australia, including during the Christmas week;
(e)during the end of year school holidays in 2022/2023, the father be at liberty to nominate up to two weeks for [Child A] to live with him in Western Australia, provided that his nomination does not include the period from 24 to 28 December 2022;
(f)during the end of year school holidays in 2023/2024, the father be at liberty to nominate up to two weeks for [Child A] to live with him in Western Australia, including during the Christmas week; and
(g)during the end of year school years in 2024/2025, the father be at liberty to nominate up to three weeks for [Child A] to live with him in Western Australia, provided that his nomination does not include the period from 24 to 28 December 2024.
8.From the commencement of the school year in 2025 and thereafter, [Child A] is to spend time with the father for one half of all school holiday periods, to include Christmas in 2025 and alternate years thereafter, with the father being at liberty to elect whether such time takes place in Western Australia.
9.[Child A] is to communicate with the father by Skype or FaceTime as follows:
(a)until the commencement of the school year in 2021, once a day;
(b)from the commencement of the school year in 2021 until the commencement of the school year in 2025, on alternate days; and
(c)from the commencement of the school year in 2025 and thereafter, on Monday and Friday each week.
10.By consent, each party forthwith inform and keep informed the other party in writing or by email of:
(a)the land line telephone number at their principal place of residence, if they have one, and immediately notify the other party of any change thereto;
(b)their mobile telephone number and immediately notify the other party of any change thereto; and
(c)their email address for correspondence in relation to [Child A] and immediately notify the other party of any change thereto.
11.Each party forthwith inform and keep informed the other party in writing or by email of their residential address, giving no less than 30 days’ notice of any intended change thereto.
12.By consent, the mother will:
(a)authorise and keep authorised at all times any school attended by [Child A] to provide or cause to be provided to the father copies of all school reports and other material as he may require and request directly; and
(b)inform the father of any group or club in which [Child A] is enrolled.
13.By consent, each party will advise the other forthwith of all of the following:
(a)any medical emergency and/or hospitalisation;
(b)significant medical appointments which have been scheduled for [Child A], regardless of which parent she is scheduled to live with at the time of the appointment;
(c)the outcome of significant medical appointments attended by [Child A] while she is living with them, including but not limited to any advice from a medical professional and a detailed description of any prescription given by that medical practitioner.
14.By consent, in the event [Child A] is given a prescription, the parties will ensure that the collecting parent is provided with the prescribed medicine for the time that [Child A] lives with them.
15.By consent, the parties be restrained and an injunction is hereby granted restraining them from denigrating the other or a member of the other’s family or discussing any dispute between the parties to or within the presence or hearing of, [Child A] and from permitting any other person to do so.
16.By consent, the parties communicate directly with each other and via email regarding matters relating to [Child A], and not via [Child A].
17.At all times [Child A] will have liberal telephone and skype communication with the parties.
18.The mother shall inform the father, within 24 hours of receiving notice, of any events including school, sporting, or other extracurricular events (“event”) [Child A] is scheduled or invited to attend, regardless of which parent [Child A] is scheduled to live with at the time of the event.
19.By consent, commencing in 2021, either party may nominate up to two weeks per year that [Child A] spend time with them for extended periods for the purpose of holidaying with [Child A], subject to the orders relating to Christmas.
20.By consent, neither party travel with [Child A] outside the Commonwealth of Australia without the written consent of the other party with such consent to not be unreasonably withheld.
21.By consent, if one party nominates a period of time to travel with [Child A], they will provide make-up time to the other parent.
22.By consent, in the event that either party intends to holiday with [Child A] they will advise the other party of their intention to do so and provide a travel itinerary which will include not less than the following information:
(a)all travel details including departure and arrival times and if travelling by air then all flight details;
(b)address and telephone contact information for all hotels and accommodation that has been arranged; and
(c)mobile telephone numbers.
23.By consent, on a without admission as to need basis, the mother be restrained and an injunction is hereby granted restraining her from changing [Child A’s] principal place of residence from the [City B] area of [State A] without the written consent of the father (such consent not to be unreasonably withheld) or order of the Court.
24.The parties equally meet the costs of [Child A’s] flights to spend time with the father, pursuant to these orders.
25.All outstanding applications and responses otherwise be and are hereby dismissed.
26.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
27.In relation to material tendered as an exhibit into evidence in these proceedings and absent the filing of any Notice of Appeal:
(a)all parties must collect the exhibits tendered by them (“their exhibits”), from the Chambers of Justice O’Brien at least 28 days, and no later than 42 days, from today’s date;
(b)all parties must contact the Chambers of Justice O’Brien to arrange the collection of their exhibits; and
(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the Court without notice to the parties.
I certify that the preceding [174] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
0
4
0