G and A

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY COURT ACT 1997
LOCATION:	PERTH
CITATION:	G and A [2007] FCWA 11
CORAM:	THACKRAY J
HEARD:	29, 30 & 31 AUGUST 2006
DELIVERED:	12 JANUARY 2007
FILE NO/S:	PT 2786 of 2005
BETWEEN:	G

Applicant/Father
AND
A
Respondent/Mother

(Page 2)

Catchwords:

Child - relocation to [another capital city] refused - parental responsibility
- meaning of major long-term issues - introduction of overnight contact

Legislation:

Family Court Act 1997, s 7A, s 66A, s 66C(3), s 89AD, s 89AD(2)
Family Law Act 1975, s 65E

Category: Not Reportable

Representation:

Counsel:

Applicant:	Mr R Hooper
Respondent:	Ms G Braddock SC

Solicitors:

Applicant:	DCH Legal Group
Respondent:	Carr & Co

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

B & B Family Law Reform Act 1995 (1997) FLC 92-755
Cotton & Cotton (1983) FLC 91-330
Goode and Goode [2006] FamCA 1346
D and SV (2003) FLC 93-137
Powell and Ptolemy (2005) FLC 93-239
U v U (2002) 211 CLR 238
AMS v AIF (1999) 199 CLR 160
B and B [2006] FamCA 1207
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1 These proceedings concern [[Calllum A-G], who is 2½ years of age. [Calllum]’s] mother, [Carol A], would like to relocate to [to another capital city] with [Calllum]. His father,[Peter G], is opposed to this happening and would like to begin overnight contact. [Carol] and [Peter] have also been unable to agree on a number of other issues about [Calllum].

Orders sought by Peter

2 Peter seeks equal shared parental responsibility for [Calllum]. He also wants [Calllum] to live with him at the following times:
Until February 2007:
(i) from 3.30 pm to 6.30 pm each Wednesday;
(ii) from 1.30 pm until 6.30 pm on Saturday and from 9.00 am to 6.30 pm on Sunday each alternate week; and
(iii) from 9.00 am until 6.30 pm on Sunday and Monday each other week;

From February 2007 until July 2008:

(i) from 3.30 pm on Tuesday until 9.00 am
Wednesday;

(ii) from 1.30 pm on Saturday until 6.30 pm on Sunday each alternate week; and
(iii) from 9.00 am on Sunday until 9.00 am on Monday each other week;

Commencing July 2008:
(i) from 3.00 pm on Friday until 9.00 am on Monday each alternate week;
(ii) from 3.00 pm on Thursday until 9.00 am on Saturday each other week.

3 Peter also proposes that [Calllum] spend time with him for one half of all school holiday periods, commencing in 2009. He suggests this time be taken in periods not exceeding five days in succession in 2009 and not more than a week at a time in 2010 and

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4	Peter would also like handovers to take place at the parties’ respective homes, with them sharing equally in the travel.

Orders sought by Carol

5 Carol seeks sole parental responsibility for [Calllum] (both short-term and long-term).
6 When she first responded to Peter’s application, Carol did not seek permission to leave Perth. She has since amended her Response and now asks permission to take [Calllum] to live in [another capital city]. In the event that she and Peter are living in the same city, Carol proposes that [Calllum] spend time with Peter as follows:
Until August 2008:
(i) in Week 1, from 9.00 am until 5.00 pm on Saturday and Sunday; and

(ii) in Week 2, from 9.00 am until 5.00 pm on

Friday;

From August 2008 to August 2009:
(i) in Week 1, from 9.00 am on Saturday until 5.00 pm on Sunday; and

(ii) in Week 2, from 9.00 am until 5.00 pm on

Friday;

Commencing August 2009:
(i) each alternate weekend from 5.00 pm on Friday until 5.00 pm on Sunday; and

(ii) additional contact in each school holiday
period.

7 In the event she moves to [another capital city] and Peter remains in Perth, Carol would propose that [Calllum] spends time with Peter in Perth during six visits of ten days’ duration each year. Until August 2008, she suggests Peter would see [Calllum] on six different days in each ten day visit (with no overnight contact). From August 2008, Peter would have [Calllum] on three occasions during each ten day visit, with each contact period lasting for 32 hours. She also proposed that Peter be able to visit [Calllum] in
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[another capital city], on giving 7 days’ notice. In addition, she suggests Peter be permitted to contact [Calllum] over the telephone and by email and web-cam on a weekly basis.
8 Carol proposes that while she is living in Perth, all handovers for contact be conducted at the supermarket near the home where she is presently living or at such other place as she might propose. She also proposes that a friend or relative conduct the handovers on her behalf.
9 Both Peter and Carol sought a variety of other orders concerning [Calllum], many of which were not contentious. I will discuss these matters later in these reasons.

Applicable law

10 The trial took place soon after the Family Legislation Amendment Act 2006 came into force. That legislation substantially amended the Family Court Act 1997, which is the statute under which these proceedings were instituted, since Peter and Carol were never married.
11 Section 66A of the Family Court Act 1997 makes clear that I am required to treat [Calllum]’s best interests as the paramount consideration. In doing so, I will be guided by the relevant objects of that Act and the principles underlying those objects. The stated objects are to ensure that the best interests of children are met by:

(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; 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.

12 These objects are somewhat more comprehensive than the previously stated object of the relevant part of the Act. Prior to the recent amendments, the stated object was:
“…to ensure that children receive adequate and proper
parenting to help them achieve their full potential, and to
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ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”

13 The first of the four new objects of the Act set out above is far from novel. It echoes two of the guiding principles which were previously to be found in the Act, namely:

“(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development…”

14 The Full Court of the Family Court of Australia has previously considered the impact of statutory amendments dealing with the stated objects of the law relating to children of a marriage. In B & B: Family Law Reform Act 1995 (1997) FLC 92-755 at [9.2], the Full Court said, in speaking of the 1995 amendments to the Family Law Act 1975 (which were later mirrored by amendments to the Family Court Act 1997):
“It is clear that many of the aims of the Reform Act are long- term, educative and normative. That is, they are directed towards changing the ethos where parents separate in the ways in which they think and act in their role as parents, in their approaches to resolving disputes about their children, in the ways in which lawyers act for the parents (and the children), in the approach by the Court in the adjudication of disputes and, more broadly, in the attitudes of society generally.”

15 Notwithstanding the changes of emphasis and terminology made by the 1995 amendments, the Full Court was in no doubt about the core task of Judges entrusted with responsibility for making decisions about the welfare of children. The Full Court said at [9.51] to [9.60] (my emphasis added):
“In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII of the type to which we have referred, starts from that essential premise and it remains the final determinant.
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The legislature has also made it clear that in that process the Court is required to have regard to both the provisions contained in s 68F(2) and those contained in s 60B.
The wording of s 68F(2) makes that clear — the Court "must consider" the various matters set out in (a)-(l) of that sub- section. That sub-section sets out a list of matters which the Court is required to consider to the extent that they are relevant to the particular case. The weight which is attached to any one consideration will depend upon the circumstances of the individual case and is a discretionary exercise by the trial Judge. The list is similar to the list contained in previous legislation but with the additions previously referred to. The list is not intended to be exhaustive. That is made clear by par (1) “any other fact or circumstance that the court thinks is relevant”. This simply underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of the particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.
Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s 65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub-section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court's consideration of the matters in s 68F(2) and to the overall requirement of s 65E. The matters in s 68F(2) are to be considered in the context of the matters in s 60B which are relevant in that case. But s 65E defines the essential issue.
Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of the children in the particular case. Although the Attorney-General submitted that the inter-relationship between the three sections was as much about procedure as it was about substantive law,
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Gordon v Goertz, supra, is compelling. The Act contemplates individual justice. Any question of presumption or onus has the potential to impair the inquiry as to what is in the best interests of the particular children. It may render the case more technical and adversarial, and may divert the inquiry from the facts relating to the children's best interests to legal issues relating to burdens of proof. The task is not “to be undertaken with a mind-set that defaults in favour of a pre-ordained outcome absent persuasion to the contrary”. See the
we think it would be a mistake for this essential exercise to be The analysis by McLachlin J in
clouded by procedural or semantic issues.
The Court now, as previously, is required to determine what is
in the best interests of the particular children (s 65E). It will
direct attention to both of the other sections, but the weight to
be attached to individual components of those sections may
vary significantly from case to case.
This approach, which emphasises the essential importance of
the exercise of the discretion in each case, accords with the
approach otherwise adopted by courts to the discretionary
provisions in the Family Law Act see for example the decision
of the High Court in Mallett v Mallet (1984) FLC 91-507;
(1984) 156 CLR 605, and ZP v PS (1994) FLC 92-480;
(1994) 181 CLR 630. For many years in child related cases
the legislature and the courts have consistently emphasised
that the welfare or best interests of the particular child in the
particular circumstances of that case is the determinant, and
have eschewed the application of fixed or general rules as the
solution. That continues to be the case; the Reform Act should
not be understood as suggesting otherwise.
As a matter of proper practice and to ensure that this essential
task is performed, a judge in the adjudication of such a case
would be expected in the judgment to clearly identify s 65E as
the paramount consideration, and then identify and go through
each of the paragraphs in s 68F(2) which appear to be relevant
and discuss their significance and weight, and perform the
same task in relation to the matters in s 60B which appear
relevant or which may guide that exercise. The trial Judge will
then evaluate all the relevant issues in order to reach a
conclusion which is in that child's best interests.
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judgment of Brennan J (as he then was) in Brown and
Pederson, supra.
In cases where there are no countervailing factors the s 60B principles may be decisive, not only because they are contained in s 60B but because they accord with what is in the best interests of the particular children. Where there are no countervailing factors, the Court may normally be expected to conclude that it is in the best interests of the children to have as much contact with each parent as is practicable. However, to attempt to impose that approach in cases where the best interests of the children may not indicate that conclusion as appropriate is contrary to the legislation and contrary to the long established views of this and other courts which deal daily with the welfare or best interests of children.”

16 It will be noted that the Full Court made many references in this citation to s 65E of the Family Law Act 1975, which was the provision making the bests interests of the child the paramount consideration. Section 65E has now been repealed, but only for the purpose of advancing it to a position of earlier prominence in the Family Law Act 1975. A similar exercise has been undertaken in amending the equivalent provisions of the Family Court Act 1997. In my view, the remarks made by the Full Court in relation to the 1995 amendments to the stated objects of the Family Law Act 1975 hold true in relation to the recent amendments to the objects of the Family Court Act 1997. In particular, it remains the case that
s 66A, the paramountcy provision, defines the essential issue.
17 On this occasion, Parliament has gone much further than reformulating the objects of the legislation and changing (once again) the terminology with which the community was slowly becoming familiar. It has also introduced into the Act a (rebuttable and highly qualified) presumption that it is the best interests of a child for his/her parents to have equal shared parental responsibility. In doing so, Parliament has given legislative voice to what was the longstanding practice of the Court.
18 Parliament has also provided even more guidance to the Court about the matters to be taken into account in discharging its fundamental task of establishing what is in the best interests of the child. It has also directed the Court, in appropriate circumstances, to consider certain possible outcomes before determining the outcome that best suits the needs of the individual child who is the
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subject of the proceedings. Had Parliament wanted to go further, it could have done so. Instead, it left the ultimate determination to the Judge hearing each case on its unique merits. To borrow the phrase of the Full Court in B & B, the Act still contemplates individual justice. Accordingly, my objective in deciding this case is to make sure I treat [Calllum]’s best interests as the paramount consideration – i.e. what is best for him will be the final determinant.
19 The Full Court of the Family Court of Australia has recently, in Goode & Goode [2006] FamCA 1346, said that the amendments made to the legislation in 2006 evinced a “legislative intent” in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children. However, the legislative intent is subject to many important qualifications. Fundamentally, it is subject to the need to protect children from harm, abuse and family violence. It is also dependent upon the arrangement being in the children’s best interests and reasonably practicable. The legislative intent is also tempered by s 66C(4), which requires the Court to consider the extent to which each parent has fulfilled (or failed to fulfil), his or her responsibilities as a parent.
20 Section 66C sets out the matters I must take into account in determining what is in [Calllum]’s best interests. Section 66C(2) details what are described as the “primary considerations” and
s 66C(3) details “additional considerations” to be taken into account in determining what is in his best interests. This dichotomy between “primary” and “additional” considerations has also been introduced into the legislation by the recent amendments.
21 There is, as yet, no guidance from the Full Court as to the way in which respect is to be paid to the intention of Parliament in specifying two factors as being the “primary” considerations. In preparing my reasons, I have had the benefit of reading a paper prepared by the Honourable Richard Chisholm, following his retirement from judicial office. The paper, entitled ‘The Family Law Amendment (Shared Parental Responsibility) Act 2006: An Overview’, was first delivered in May 2006. I do not propose to repeat here what I regard as being the learned author’s compelling analysis of the way in which the division between “primary” and “additional” considerations should be treated. I adopt his summary of the significance of some of the considerations being characterised as “primary”:

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“Those matters should be considered first among relevant considerations, and should be treated as being of particular importance in assessing what orders are likely to promote the best interests of the child.

…The primary considerations should not be regarded as necessarily outweighing or “trumping” other considerations, nor is it appropriate to attempt a mathematical or quantitative approach. The primary considerations, especially paragraph (a), cannot in fact be determined without reference to the additional considerations. A holistic approach is not only desirable, but logically necessary.
If all this is correct, the legislation will have been followed, in spirit and in the letter, if the court treats the primary considerations in subsection (2) as the first matters to be considered, and as matters of particular importance, as it engages in the task of determining, on the basis of the evidence and the provisions of [the relevant Part of the Act], what orders are most likely to serve the best interests of the children who are the subject of the proceedings.”

22 It is also worth observing, as Professor Chisholm did in his presentation at the National Family Law Conference in Perth in 2006, that Parliament must surely have made a considered decision when electing to describe the second raft of factors to be taken into account as “additional”, rather than “secondary”. The latter word might have been expected to be employed to describe the factors appearing in the Act immediately after the “primary” factors. Reference to any dictionary would indicate that the use of the word “secondary” would have made clear that these factors were “next below” or “depending on or supplementing what is primary”, but this was not the word chosen. Parliament elected instead to use “additional” – which means precisely that – something added to what has already been stated.

23 It is within this new legislative framework that I will now proceed to determine the dispute between [Calllum]’s parents. Later in these reasons I will return to discuss some aspects of the law which have particular application to “relocation” cases.

The parties and their relationship

24 Peter is aged 36 years. He is employed as the manager of a [business] owned by his father. Peter has lived in Perth all of his life, save for three years spent travelling and working overseas from 1995 to 1998. He lives alone, but has a lot of contact with his parents/stepmother and large extended family who live in Perth.

(Page 12)
25	Carol is 35 years of age. She was born in Perth and grew up here. In 1994 she went to live [overseas], where she was involved in [various types of work]. She is not currently working. She lives with her mother and father (who are presently sharing the same home, albeit their marriage has come to an end). She also has a lot of contact with her two siblings and extended family in Perth.
26	Peter and Carol had a brief casual relationship after they first met in Perth in 1990. Their paths then crossed only fleetingly until early 2003, when Carol returned to Perth after a number of failed marriages/relationships and a miscarriage. Carol again made contact with Peter. They had a short, passionate relationship, the result of which was that Carol became pregnant with [Calllum], who was born in July 2004.
27	Peter and Carol never lived together. In retrospect, it is clear their relationship had ended well prior to the birth of [Calllum]; however, Peter was still besotted with Carol. At the very least, he wanted to continue to be involved with her because she was carrying his child and he wanted to be part of the baby’s life. Carol allowed Peter to continue to make himself useful, although it seems unlikely she entertained any strong desire for a reconciliation.
28	Carol did not want Peter to be present at [Calllum]’s birth; however, he began to have contact with the baby as soon as he was born. There were some difficulties in putting contact arrangements in place, as is common in cases involving estranged parents of a newborn baby. Peter nevertheless persisted in seeking contact. He has been having regular contact with [Calllum] and the amount of time he has been able to spend with him has increased gradually.
29	Initially all contact between Peter and [Calllum] took place at Carol’s residence in circumstances which Dr Phil Watts, the Single Expert, described as some of the strangest he had ever encountered. Although the arrangements were out of the ordinary, they nevertheless ensured that father and son spent time together regularly. The arrangement also allowed Carol to remain nearby to provide comfort to the baby when needed, but ensured she did not have to come into contact with Peter unless she chose to do so.
30	Eventually, in July 2005, Peter obtained an order allowing him to have contact away from Carol’s residence. The order permitted Peter to see [Calllum] on three occasions each week for a total of eight hours. Carol said in her trial affidavit that she was “extremely surprised and disappointed” at the extent of the contact, but she nevertheless facilitated the contact pursuant to the order.
(Page 13)
The contact periods were extended by further order in December 2005. This order allowed Peter to see [Calllum] from 3.30 pm to
6.30 pm every Tuesday and Thursday and from 9.00 am to 4.00 pm every Sunday. This was the contact arrangement in place at the time of trial.

Parental responsibility

31 In view of the amendments to the legislation, it is necessary to resolve first the dispute about parental responsibility, since certain consequences now flow from a finding that it is in the best interests of the child for parents to have equal shared parental responsibility.
32 Although there are circumstances in which the new presumption of equal shared parental responsibility has no application, Carol accepted that the presumption did apply in this case. She argued, however, that the following matters were sufficient to rebut the presumption:

“1. The parties’ relationship is such that they are unable
to communicate easily or effectively.
2. Communications take place through the ‘communication book’ and at times these have become an unhealthy misuse of a good device.
3. There is no foundation of prior co-habitation or shared care under the same roof at any time during [Calllum]’s life to give expectation of a norm to be regained.
4. The obsessive characteristics and rigid behaviour of the Applicant give grounds to fear that these traits rather than the best interests of [Calllum] will predominate in future dealings between the Applicant and Respondent.
5. It is unlikely that this relationship will improve sufficiently to discuss issues in relation to the child”.

33 I do not consider there could be any serious argument about the first three of these propositions. The parties have a well- established track record of being unable to communicate with each other – starting from prior to [Calllum]’s birth. They have never worked together cooperatively in making decisions about his welfare.

(Page 14)
34	I also consider there was some basis for the proposition concerning the way in which Peter’s alleged “obsessive characteristics and rigid behaviour” might dominate future dealings between the parents if parental responsibility were to be shared. I found Peter to be a somewhat immature and, at times, petulant individual. He was previously besotted by Carol (to the extent that, for example, he had her name tattooed on his back in large letters). I find he had considerable difficulty letting go of his relationship with her. Once he finally recognised they had no future together, he appeared, from time to time, to adopt a fairly vindictive attitude towards her. He has also demonstrated a tendency to concentrate on his “rights” as a father, rather than considering what would be in [Calllum]’s best interests and what impact his behaviour might have on Carol, who is his son’s primary carer.
35	I do not propose to go into detail, but in making these adverse comments about Peter, I have particularly in mind the way he has threatened and abused Carol; his conduct relating to [Calllum]’s [health]; the [country] trip; and the way in which Peter conducted himself in relation to the child support issues. I accept that in a number of instances there were mitigating factors, but nevertheless, overall, I gained the distinct impression Peter was too often “rights orientated” rather than “child focused”.
36	In making these observations, I do not in any way suggest that all of the fault lies with Peter. Carol has made her own contribution to the problems that have existed between the parties. I can accept that in a number of respects she would have been an extremely frustrating person to deal with. Apart from anything else, she appears to have great difficulty in ever getting to the point of anything quickly. I also gained the impression she takes offence relatively easily, often without much foundation, although I accept there were elements of Peter’s behaviour towards her which legitimately gave her a sense of grievance.
37	I accept the assessment of the Single Expert, that parents who have been unable to achieve a cooperative working relationship with each other two years after the end of their relationship are probably unlikely ever to do so. I am unfortunately quite pessimistic about the prospects of Peter and Carol ever being able to communicate effectively. Their personalities are diametrically different. Peter is a fairly “gung ho” individual and Carol is exceedingly anxious and fragile. I would anticipate that if they were required to share parental responsibility, they would continue to aggravate each other and Carol would feel greatly intimidated.
(Page 15)
This would create many opportunities for conflict, to which [Calllum] would be likely to be exposed. I also consider it likely that an order for equal shared parental responsibility would be more likely to result in the parties coming back to Court to resolve issues which they would be unable to agree themselves.
38	This ongoing disputation and involvement in litigation would be debilitating for both parents, but especially for Carol who is the more fragile of the two. For these reasons, I consider that parental responsibility for major long-term issues should be entrusted to the parent with whom [Calllum] is primarily living. This is obviously going to be Carol for some years to come and perhaps indefinitely.
39	Carol also argued that she should have sole responsibility for day-to-day decisions concerning [Calllum]’s welfare, even during the time he is staying with Peter. In order to understand the basis for her argument, it is necessary first to consider what matters will come within her authority as a result of my decision for her to have responsibility for major long-term issues concerning [Calllum].
40	Section 7A of the Act provides that: “major long-term issues”, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about —

(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.”

41 Although the nuances of the words chosen by Parliament to define the expression “major long-term issues” were not the subject of any submissions, it seems to me the definition arguably renders the word “major” entirely redundant. Somewhat surprisingly, the test is not at all whether an issue is “major” or “minor”, but rather whether the issue is “of a long-term nature”. It seems to me that there may be elements of decision making about a child’s care, welfare and development that might not be perceived in normal parlance as “major” but which are nevertheless of “a long-term nature”.

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42	This definition needs to be borne in mind when considering another statutory provision that is highly relevant in understanding the argument made by Carol in support of her application for sole responsibility for day-to-day issues. Section 89AD of the Family Court Act 1997, provides as follows:

“(1) If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who —

(a) has parental responsibility for the child; or
(b) shares parental responsibility for the child with another person,
about decisions that are made in relation to the child during that time on issues that are not major long- term issues.
(2) Subsection (1) applies subject to any provision to
the contrary made by a parenting order.”

43 By virtue of s 89AD(2), it is an option for me to make an order for Carol to have parental responsibility for some or all of the matters that are not “major long-term issues”, even during the times when [Calllum] is living with Peter. The Act provides no guidance as to the circumstances in which it would be appropriate for a court to remove all aspects of parental responsibility from a parent with whom a child is spending time; however, there would need to be circumstances outside of the ordinary before such a decision could be in the best interests of a child. I do not consider there are any such circumstances in this case.
44 Carol attempted to make clear that she did not want to interfere with the way in which Peter looked after [Calllum] whilst he was in his care. In her trial affidavit, she said she was not proposing to give directions about what [Calllum] “eats, what he wears, what activities he attends, who he visits and what he watches on television, for instance…” The sorts of matters that did give her concern were decisions such as “choosing a regular General Practitioner and Dentist, arranging haircuts and other such things, enrolment in kindergarten and pre-school”. Carol felt these were decisions that should be made by her as “primary caregiver and residential parent”.
45 The focus of the trial was on the relocation and contact disputes. No submissions were made as to whether or not the
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matters that Carol specifically mentioned were, in fact, “day-to- day” or “major long-term” issues. In the absence of submissions, I am not persuaded that a decision as important as the choice of a child’s regular doctor and dentist is a “day-to-day” matter at all. In my view, it would be better characterised, to use the words of the statute, as an issue of a “long-term nature…about …the child’s health”. Accordingly, my view would be that if [Calllum] developed a cold or some other minor ailment whilst staying with Peter during a school holiday period, Peter would be required to take [Calllum] to the doctor who Carol had chosen as being his regular GP. On the other hand, he would not have to consult with Carol as to whether he needed to be taken to the doctor at all for such a minor ailment. If, however, Peter and [Calllum] were holidaying away from Perth, Peter would also be entitled to choose the doctor to consult about a minor ailment, since it would be a “one-off” or “day-to-day” decision.
46 Similarly, whilst Carol is concerned that issues associated with [Calllum]’s enrolment at school might be seen as a day-to-day issue, it seems to me that this could not be so, since it is surely part and parcel of her prerogative to make decisions “of a long-term nature …about …the child’s education (both current and future)”.
47 There will, inevitably, be some parenting issues that arise which will fall close to the line. Informed minds might differ on which side of the line they fall. Short of vesting every aspect of parental responsibility in one or other of the parents, there is no alternative than to leave the delineation of such matters to the good sense of the parents. One of these borderline issues is haircuts, which in my experience occasionally leads to controversy in high conflict families. In my view, the style/frequency of haircuts could arguably be a matter pertaining to “the care …of the child of a …long-term nature”, since it is an integral part of the way the child presents to the world. Hence Carol would determine the style and frequency of haircuts until [Calllum] is old enough to make his own decisions. It would also be expected she would normally arrange the haircuts, as [Calllum] lives with her. If, however, in times to come, [Calllum] is with his father for half the summer holidays, and the time for a haircut falls due, it would not be expected that Peter would have to consult with Carol before taking him to the hairdresser to have his hair cut in his normal style.
48 Since these matters were not the subject of any submission, my views should be treated as being preliminary only. In the event a dispute arises between the parties as to who actually had
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responsibility for making a particular decision, they can bring the matter back to court for determination - if they consider it to be of sufficient importance. What I am not prepared to do at this stage is to take the easy option of giving Carol the right to make all day-to- day decisions so as to avoid the possibility of any such dispute. Whilst I appreciate that she says now she does not want to make every decision about [Calllum]’s day-to-day care when he is with Peter, I accept the view expressed by the Single Expert that there has, at times, been a tendency on Carol’s part, as a highly protective mother, to “micro-manage” Peter’s care of [Calllum]. Even if she does not presently plan to interfere in Peter’s handling of the everyday matters she mentioned, there would be nothing to stop her from doing so if she was given sole parental responsibility for day-to-day issues.
49 There was no evidence to satisfy me that Peter is incapable of adequately attending to [Calllum]’s needs and making day-to-day decisions whilst he is spending time with him. I am satisfied he does his utmost to ensure [Calllum] has an enjoyable time when he is with him. I consider he can be trusted with making the day-to- day decisions necessary to promote [Calllum]’s welfare whilst in his care.

Reasons for proposed relocation

50 Before proceeding to consider the matters I am required to take into account in determining what parenting orders will be in [Calllum]’s best interests, it is convenient to mention the reasons Carol has given for wishing to relocate. In doing so, I acknowledge that she is not required to demonstrate “compelling reasons” for wishing to move to [another capital city] or anywhere else. I record her reasons only to put in context some of the findings I will make in dealing with each of the relevant factors. Her reasons (in full) were as follows:

“228. I visited [the capital city] during 2005 with a view to relocating there permanently with [Calllum]. A friend I have known for many years, Mr Mathew Logan (“Mathew”), has asked me to assist him in undertaking certain research projects in [the state]. Mathew has a number of connections with [business people]. He advised me that [in this state] – in particular [the capital city] and the [other coastal areas] – are areas where the chances of [business opportunity] are high.
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229. My role would be undertaking research and preparing various reports about the advantages [for business opportunity] in [the state], in particular the [capital city] and [coastal areas]. My reports will include what the lifestyle is like and providing comparisons on areas between [adjacent areas] to [the capital city], [the coastal areas], etc. in [the state].
230. The payment for my involvement would include a percentage of success fees if any [business opportunity] went ahead.
231. I would be able to work from home in relation to the production of my reports, and otherwise if any local travel were involved, [Calllum] would be able to come with me.
232. Mathew has suggested [the capital city] is the obvious place for this work to be undertaken given it is the centre for [major] industry in Australia, the weather is reasonably predictable and it is close to [other capitals] and [other countries].
233. I spent 4 days in [the capital city] in November last year, which enabled me to get a feel for the city. I spoke to some real estate agents and also looked at some residential areas in relation to a possible relocation.
234. I say that a relocation to [the capital city] will provide more financial opportunities for me, both in relation to work possibilities and in relation to investment of my own funds. I sold my home in February 2006 and have some approximately $3.6 million deposited, which I would prefer to invest in [the Eastern states]. From research undertaken by me, it appears the real estate market in Western Australia is “over inflated” and investing in [the state] will provide me with a greater long term potential growth and return on my investment.
235. I do have extended family in [the capital city], being my mother’s cousins, whom I would re-establish contact with if I was granted liberty to relocate.
236. I also have friends who reside in [the capital city].
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237. I have a number of friends who live in [the Eastern states](including my former husband), who I would propose visiting more regularly if I resided in [the state], and who would visit me in [the state]. I also have a number of friends who reside [overseas] who regularly visit [the state].”

51 The references to the [industry] in this portion of Carol’s affidavit were a little mysterious but she clarified the relevance in her oral evidence.

[Specific details of this paragraph have been removed to
protect the privacy of the parties involved]

Her contacts in the [industry] would leave her well-placed to undertake this kind of work, which would fit in well around her obligations to [Calllum].

[Calllum]’s best interests – the primary considerations

52 I turn now to the primary considerations to be taken into account in determining which orders would be most likely to promote [Calllum]’s best interests.
The benefit to the child of having a meaningful relationship with both of the child’s parents

53 Before considering the evidence relevant to this factor, it is appropriate to reflect on the language Parliament has used in describing this, the first of the primary considerations to be taken into account.
54 It is appropriate to begin by recording that judges of the Family Court have long considered the relationships children have with their parents to be of utmost importance in determining their best interests. For example, in Cotton & Cotton (1983) FLC 91- 330, Nygh J said, at 78,252-253 (my emphasis added):
“The test which must apply in proceedings involving children is that of the welfare of the child being the paramount consideration, which is in my view the one and only principle to be applied. It means that in each case the Court must make an independent investigation of what the welfare of the child requires, and the Court is not very much assisted by recourse to general principles other than that principle. It is true that we can fall back on generally accepted experiences and perceptions in so doing as a guide, but care should be taken not to elevate any of these generally accepted perceptions into
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chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact's sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist. Nor is it necessary, as it must be obvious from the way I have expressed myself, that access should only be denied if it is established that a parent is likely to be a positive harm to the child – it is the emotional relationship which counts and not the inherent harmfulness of the parent as such: thus I can well imagine that in certain circumstances a woman who leads a totally immoral life such as a prostitute may have something to offer her children. On the other hand, it may be that a person who leads a life which to the general observer is one of a pillar of rectitude has nothing to offer to his children. In this case, as I have said, it is not a question of generalisation. One must come down to the real situation of the parties.”
presumptions which can only be displaced by evidence to the
contrary.
One of these generally accepted perceptions, as I see it, is
that it is desirable for a child to maintain a meaningful
relation with each of his or her parents. That is obviously
desirable when the parents are living together in a united
household, but it becomes even more desirable when the
parents are separated. It is a trite observation that the parties to
a marriage may divorce one another, but they can never
divorce themselves from their children. In that sense, the
parties remain tied to one another, at least, until those children
can stand on their own two feet which may not necessarily
occur at 18 years of age or 21 years of age.

55 I consider the observations of Nygh J to be most instructive when considering the meaning to be given to this factor. The focus of the provision is not on the “meaningful relationship”, but on the “benefit to the child” of such a relationship. As Professor Chisholm has said in the paper cited above, the amendments to the Act do not indicate that “the maintaining of the relationship is an end in itself”.

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56	I find that [Calllum] has a close and loving relationship with Carol, with whom he has lived all his life. Apart from two short trips Carol made to the Eastern States last year, she and [Calllum] have never spent a night apart. There can be no doubt that it will for his benefit to have an ongoing meaningful relationship with her.
57	Although [Calllum] has only been able to spend short periods of time with Peter, they have now been having very regular contact with each other for 2½ years. I find that during this time they have developed a close and loving bond. I consider there would be much benefit to [Calllum] in having an ongoing meaningful relationship with his father. Parliament has indicated that this must be a “primary consideration” in reaching my decision. I would, in any event, have placed much weight upon it.
58	The real issue is whether or not [Calllum] will be denied the opportunity to have an ongoing meaningful relationship with Peter if Carol is permitted to relocate to [another capital city]. Carol has put forward a set of proposals for contact which, if implemented, she considers would ensure that [Calllum] continues to see Peter sufficiently often to make it feasible for them to continue to have a meaningful relationship. Although I gained the distinct impression that Carol would much prefer that Peter remained behind in Perth, her case was presented on the basis that it would be feasible for him also to move to [another capital city] and continue to have contact on a weekly basis. Alternatively, if Peter remained in Perth, Carol proposes coming back for visits with [Calllum], during which time he would be able to have contact with Peter. Even if this proposal was implemented, there would be breaks of between one and two months between each visit. Furthermore, the feasibility of such an arrangement continuing indefinitely, once [Calllum] started school, was not in my view adequately explored.
59	I accept, however, that both parents are well-placed financially and it would therefore be affordable for them to meet the costs associated with six annual visits by [Calllum] to Perth, as well as additional visits by Peter to [the capital city]. In due course, when [Calllum] is older, it would be possible for him to spend holidays with his father and extended family in Western Australia. Nevertheless, whatever travel arrangements might be made, it is a fact that [Calllum], who is not yet 3 years of age, would be seeing his father much less regularly in the event they were living in different cities. I accept the assessment of the Single Expert that in the event [Calllum] moved to live in [another capital city] he might be able to maintain a relationship with his father but
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they would not be able to build their relationship in the way they could if they lived close together.
60	Peter did not rule out all together the possibility of him moving to [another capital city] in the event that Carol was able to relocate with [Calllum]. I consider, however, that there is at least an even chance that he would ultimately elect not to move. Peter has a very well-paid position in his family’s business in Western Australia. He has worked in that business since the age of 14 years. His parents, and at least some of his five siblings and their children, live in Perth. There are very strong reasons why he would elect to continue to reside here rather than move to [another capital city].
61	Furthermore, I accept the submission made on behalf of Peter that there would be absolutely no guarantee that Carol would remain living in [another capital city] for any extended period of time. On the contrary, her previous lifestyle would suggest that there is a fairly strong prospect that she would then wish to move on to somewhere else, possibly overseas. Accordingly, even if Peter were to move to [the capital city] and obtain employment there, he might find himself facing the same scenario as he now does in a few years’ time.

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

62 It was not suggested that [Calllum] was likely to be exposed to abuse, neglect or family violence, regardless of whatever outcome might be ordered. This factor is therefore of no relevance.

[Calllum]’s best interests – the additional considerations

63 I do not propose to discuss all of the additional considerations mentioned in the legislation since some have no relevance and others have minimal relevance to the outcome. To the extent they are relevant, I have taken all of the factors into account in coming to my decision.
The nature of the relationship of the child with –
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)

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64 I have already noted that [Calllum] has a very good relationship with each of his parents. He is also fortunate in that he has had a considerable amount of contact with both of Carol’s parents (with whom he is presently living) as well as Carol’s two siblings and wider extended family who live in Perth. Although he has had less opportunities to spend time with Peter’s family, he has nevertheless had frequent contact with the many members of Peter’s family who live in Perth, especially Peter’s mother, who has accompanied him on a great many of the contact visits.

65 Carol anticipates that her mother will come to live with her if she is permitted to move to [the capital city]. I would expect this is highly likely to occur, since Carol seems to depend a great deal on her mother for practical assistance on a day to day basis. Carol expects that her father and her siblings will come to visit her regularly in [the capital city] and of course she would have the opportunity to visit them when she comes back to Perth to allow Peter to have contact with [Calllum].
66 There was no suggestion that it was likely that Peter’s family would get to see [Calllum] in [another capital city] very often, if at all. Accordingly, if [Calllum] went to live there with Carol, he would have far more limited opportunities of seeing Peter’s extended family than he would if he remained living in Perth.
67 I regard [Calllum]’s relationship with his grandparents, aunts, uncles, cousins and even wider extended family as being of considerable importance to him. Both sides of the family seem to be quite close and I consider it would be very much for [Calllum]’s benefit in the event that he was able to maintain regular contact with them. Whilst they would be able to remain in touch in the event that Carol was able to implement her proposal for regular trips back to Perth, I am satisfied the quality of those relationships would suffer since there would be many fewer opportunities for [Calllum] to spend time with them.
The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
68 Although Peter claims that Carol is not committed to encouraging a close and continuing relationship with him, I was not persuaded that this was the case. Carol is a concerned and somewhat anxious first-time mother, who has had understandable
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concerns about the way in which contact arrangements with Peter can best be handled. I accepted the evidence given by Carol and her mother about the way in which she encourages [Calllum] to look forward to and enjoy his contact visits with his father. I am also satisfied that in proposing to move to live in [another capital city], Carol has not been motivated by any desire to diminish the relationship between [Calllum] and his father.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from –
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

69 I have already referred to this factor in discussing the nature of [Calllum]’s relationship with his parents and other members of his family.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
70 Peter has a very large income and Carol has a very large amount of capital. Whilst the issue of the expense of air fares is therefore less significant than it would be in other cases, there are nevertheless significant practical difficulties associated with the exercise of contact in the event that [Calllum]’s parents end up living on opposite sides of the continent. Apart from anything else, if Carol’s proposals were implemented, [Calllum] would indefinitely be moving back and forward across Australia six times a year. This would become more problematic once he starts attending school, as there are only four school holidays each year.
The capacity of –
(i) each of the child’s parents; and

(ii)
relative of the child),
any other person (including any grandparent or other and intellectual needs

71 I am satisfied that both Peter and Carol do their best in providing for all of [Calllum]’s needs. It seemed to me, however,
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that each of them relied to a greater or lesser extent on their mothers for advice and assistance in managing [Calllum]. The important thing, however, is that both grandmothers appear more than happy to provide this help for their grandson.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
72 The only matter of significance under this heading is the fact that [Calllum] is still a very young boy. As a generality, I accept older children are better able to cope with lengthy separation from a parent than are younger children. Apart from other considerations, older children are more proficient in keeping in touch by letter, cards, email, telephone, etcetera. [Calllum] is only 2½ years of age and is therefore too young for these forms of communication to be a viable means of remaining in contact with a distant parent.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
73 Both parents have demonstrated a generally good attitude to the responsibilities of parenthood. The evidence indicates that [Calllum] is a healthy, happy, good-natured little boy who is developing very well. His parents and others who have had involvement in his care are to be congratulated for all they have done to achieve this.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
74 I was not satisfied that any of the proposals put forward by the parties were any more or less likely to lead to the institution of further proceedings. Regrettably, the family dynamics are such that there is likely to be some further disagreements between the parties before matters settle down.
Any other fact or circumstance that the court thinks is relevant
75 I have already set out above the reasons Carol gave for wanting to move to [the capital city]. There was no evidence of the availability of opportunities for Carol to be employed [for specific work], nor any evidence of what she might be paid for such work. Cross-examination of Carol also established that there is no firm arrangement in place with Mr Logan about quite what work she
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would do for him, and in particular how much she would be paid for whatever she might do. There was no documentation whatsoever to corroborate any of the claims she made in relation to her prospects in [the state]. Mr Logan did not provide an affidavit.
76 Furthermore, I have no alternative than to record that notwithstanding her varied and interesting life experiences, Carol presented as one of the most naïve parties who has ever appeared before me. She seems incapable of conducting some aspects of her own affairs without help, let alone being herself able to give advice to others in relation to development prospects. Although there were other examples, I mention only that she does not know how to send an email and has her friends do it for her on the very odd occasions she needs to communicate by this means.
77 Towards the end of the hearing, I took the liberty of describing the arrangements proposed by Carol as “pie in the sky”. It seems simply fantastic to imagine that Carol would be able to go to the Eastern States and obtain income from the activity she describes, with the talents that she possesses. I recognise, however, that it might equally have been said, as Carol was setting out from Perth to pursue her [previous work overseas] , that it was “pie in the sky” to think that she would be likely to make such a success of her career that she would return to Australia with a net worth of some millions of dollars. That, however, is precisely what seems to have happened. The exact way in which she was able to accumulate these funds, however, was not made clear in the evidence, although Peter claimed in his evidence that Carol had told him, inter alia, that she:
“hung out with wealthy people; they liked being with me and gave me gifts of money just for spending time with them. There was a [foreign] guy in particular - we had a great relationship and he just gave me money”.

78 Carol also allegedly told Peter that a [friend] with whom she had a long-term relationship had given her:
“money, cars and gifts over a long period of time ….he gave me [expensive vehicles] – he paid for my home – it was $20,000 rent per month in [an exclusive suburb].”

79 By whatever means, Carol accumulated her wealth with the talents that she possesses. I need to keep that fact firmly in mind in being too ready to dismiss Carol’s future plans as being as flimsy as they first appear. That said, however, I consider that the probabilities are that Carol would do no better financially in [the
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state] than she would if she set about trying to obtain some kind of income in Western Australia, especially as she says that she has no intention of engaging in any “paid employment that would require me to be away from [Calllum] or our home for many years”.
80 I should also record that there seemed to be some prospect of Carol being able to remain in Perth, whilst still doing whatever work it is that she plans to do for Mr Logan. This was mentioned at paragraph 238 of her affidavit, but the proposal was said to be dependent on her being able to suspend the contact arrangements to allow her to travel to [another capital city] “on a number of occasions” each year for periods of two weeks at a time. This scenario did not receive much of an airing at the hearing.
81 Wherever she lives, Carol’s talents would be suited to a very narrow range of occupations. It is true that when her financial advisor was seeking funds from a lending institution to help her acquire a very valuable property, a variety of people claimed to have given her highly paid employment. It seems that these claims were nothing more than part of a scheme to persuade a bank to lend her money to purchase the very expensive home she acquired in Perth when she came back from [overseas]. I do not suggest Carol is a fundamentally dishonest person, but I suspect she knew more than she “let on” about the details of this scheme, which was probably concocted by her financial advisor. I do not accept that Carol has had any kind of employment of any substance since she returned to Western Australia a few years ago.

Section 66C(4) factors

82 The Act in its amended form requires me to consider a variety of other matters set out in s 66C(4). The provision is lengthy and I do not intend to repeat it here. In considering the matters mentioned, I find that Peter has not participated in making decisions about major long-term issues concerning [Calllum], but that this has been the result of Carol failing to allow him to do so. Peter has, however, spent time with [Calllum] and Carol has facilitated this. Peter has also adequately fulfilled his obligation to assist Carol to maintain [Calllum] (having commenced making child support payments relatively soon after his birth).

Relocation outcome

83 The Full Court had this to say in D and SV (2003) FLC 93- 137 at [63], which was a “relocation case” dealt with under the law prior to the 2006 amendments:

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“….where there is no or no credible alternative proposal with respect to residence advanced by the non-residential parent the correct approach to adopt is the one identified by Kirby J in AMS v AIF…that the focus of:

“the attention of the decision maker should ordinarily be at a possibility of formulating different arrangements for access and contact which would meet the child's welfare”.”

84 The Full Court has subsequently, in Powell and Ptolemy (2005) FLC 93-239 at [49], made clear that it would be “a misunderstanding of D and SV that an uncontested resident parent can always move”. Nevertheless, in deciding whether to allow an “uncontested resident parent” to move, the Full Court said that the trial Judge is obliged to consider not only the proposals made by the parties for contact, but also must consider whether some other contact proposal might allow that parent to move, whilst at the same time facilitating the continuation of the child’s relationship with the parent left behind.
85 The latter part of the proposition has support in the remarks of Hayne J in U v U (2002) 211 CLR 238 at [171-2]. However, in that case Hayne J cautioned at [172]:
“That is not to say that the Family Court is to embark upon some roving inquiry about the matter, unfettered by any regard for the evidence led and the matters which the parties seek to contest. Due account must be taken of the fact that proceedings in the Family Court are conducted in a framework of adversarial procedure familiar to the common law.”

86 It is also appropriate to consider a matter on which Senior Counsel for Carol placed strong emphasis in her closing address – namely Carol’s right to “freedom of movement”. Counsel placed particular stress on this “right” in circumstances where [Calllum]’s parents had never cohabited and where both had lived overseas previously. She also placed emphasis on the fact that Carol had only returned home to Perth for support at a time of distress and that she had not necessarily intended to reside here permanently. In these circumstances, Senior Counsel submitted that it would be oppressive to require Carol to be bound to remain in Perth merely because she now has a child to Peter.
87 The High Court has recognised that there is a “right of freedom of mobility of a parent” – see AMS v AIF (1999) 199 CLR
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160 and U v U (2002) 211 CLR 238 at para 89. But how is this “right” to be recognised in a jurisdiction where the statutory obligation of the Court is to treat the best interests of the child as the paramount consideration? In endeavouring to resolve this dilemma, I have had the considerable benefit of reading the recently delivered judgment of Warnick J in B and B [2006] FamCA 1207. In that case, in determining an appeal from a Federal Magistrate, Warnick J grappled with the question which has perplexed many judicial officers over the last six or so years. As his Honour said at [37]:
“A need for a court to address two legal principles, even if they are in competition, is not unusual. But, in my view, when one is said to be “paramount” and what is paramount is also superlative, namely the “best” interests of a child, application of the other principle presents a major challenge to reason”.

88 Having then posed a number of questions about the application of two principles where one is subordinate to the other, his Honour said at [44]:
“The answer to these questions might be seen as given in the
statement of Gummow and Callinan JJ (with whom
Gleeson CJ, McHugh and Hayne JJ agreed) in U v U at 262:
“89. …whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent.”

89	Warnick J went on to say: “45. If that means, as I think it does, that the right to freedom

of movement should never be acted upon to counterbalance or outweigh factors that would otherwise result in a conclusion that the best interests were served by refusing relocation, then as I earlier said, I see no point in any reference to the right.
46. But, as earlier seen, recognition of the right as a relevant consideration pervades the authorities, here and overseas. In my view, that promotes the impression that the principle really being applied is along the lines of; a move will be permitted if the children will be alright.

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47 This is of course a heresy …”

90 Warnick J went on to say that he had not discussed these matters with a view to arguing against weight being given to a right to freedom of movement. As he said, “recognition [of that right] accords with the reality of life in many societies including ours and is the pragmatic approach”.
91 I respectfully concur with what Warnick J has had to say in relation to this most difficult of issues. Fortunately, the application of these potentially competing principles in this case is somewhat easier than in many others. I am satisfied that it would be contrary to [Calllum]’s best interests, at this early stage of his life, for him to be separated for weeks at a time from his father and his extended family in Perth, with whom he enjoys a close and loving relationship. Whilst there is a possibility that his father might follow him to [the state] in the event that he were to relocate with Carol, there would be no guarantee of this. There would also be no guarantee that it would not be the first of many moves that Peter might be required to make in order to remain in close contact with his son. As the High Court has made clear, Carol’s right to “freedom of mobility” must give way in the event that it is contrary to [Calllum]’s best interests.
92 It is also worth observing that if I proceeded on the assumption that Peter could and would move to live in [another capital city], and I allowed the relocation on that basis, I would be impinging upon Peter’s right of freedom of mobility as much as I would be impinging upon Carol’s right of freedom of mobility by making orders that, in effect, force her to remain in Perth. His desire to remain in Perth is as least as strongly felt as is Carol’s desire to move. It might also be fairly said that Peter’s reasons for wishing to stay in Perth are at least as strong, and arguably far stronger, than Carol’s reasons for wishing to move. Significantly, many of the reasons Peter has for wishing to remain in Perth are also the reasons why I consider it would be in [Calllum]’s best interests to remain here – particularly proximity to extended family.
93 Whilst her Senior Counsel claimed that Carol felt “chained in Perth and on a very short leash”, I propose to make orders that will give her a much greater opportunity to travel than she has enjoyed thus far during [Calllum]’s life. Furthermore, although Carol may feel frustrated by not being able to continue the rather carefree lifestyle she has enjoyed for many years, such are usually the
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consequences of parenthood. I am not satisfied that the delicacy of Carol’s psychological makeup is such that it is important that she be permitted to move in order to remove any frustration she feels by being tied to one home base. To her credit, Carol has not allowed any unhappiness she might feel about being required to remain in Perth to have an impact upon her ability to provide for [Calllum]’s needs. As I have already found, he is a very healthy, happy and well-adjusted young boy.
94 In these circumstances, I do not propose to accede to Carol’s request for permission to relocate to [another capital city]. Carol’s Senior Counsel, towards the end of her closing address, made an oblique reference to the possibility that I might instead make orders that require Carol to remain in Perth for some time, but then allow her to relocate at some predetermined future time. Counsel for Peter made a similar allusion to this possibility in his closing address.
95 Whilst I recognise that it would be within my discretion to give Carol a “ticket” to leave in a few years’ time when [Calllum] is more mature and able to cope more effectively with separations from his father, I do not consider this would be an appropriate exercise of my discretion. There are too many variables to make it appropriate for me to attempt to predict at what time and in what circumstances it may be appropriate for [Calllum] to move away from Perth.
96 I should make clear that in coming to my decision, I have not been influenced by the fact that I consider Carol would do as well financially in Perth as she would in [another capital city]. Carol is a very wealthy woman and would be able to manage to live comfortably for a very long period of time using the funds she has in the bank, even if she earned nothing from her proposed endeavours on the East coast.
97 In coming to my decision, I have also not overlooked the fact that Peter could remain living in Perth and make occasional trips to [another capital city], but I accept those trips would have to be very brief if he was to continue with his present employment. I have also considered what other forms of contact might be ordered but this does not advance matters much, if at all, given the logistical difficulties of implementing a satisfactory contact regime for a child as young as [Calllum] if his parents lived on opposite sides of Australia.

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Introduction of overnight contact

98 I turn now to the next contentious issue, which relates to the stage at which [Calllum] should start spending time overnight with his father. Whilst Peter considered that [Calllum] was ready for overnight contact at the time of trial, his proposal was that it be introduced with effect from February 2007. This would be on the basis that until July 2008, [Calllum] would have one overnight period with him each week. With effect from July 2008, he proposed that he have two overnights in succession each week. Carol was opposed to the introduction of overnight contact until August 2008 (i.e. after [Calllum] turns 4 years of age). Initially, she proposed that the contact be for one overnight period each fortnight, increasing to two nights each fortnight in August 2009.
99 In deciding when to introduce overnight contact, I need to keep in mind that thus far [Calllum] has not only never stayed overnight with his father but he has also never stayed away overnight from his mother, save for two short periods in 2005 when he was looked after in his own home by his maternal grandparents. However, those separations went well, since the evidence satisfied me that his reaction to being parted from his mother was what would be expected with any child of his age – at most he was a little more “clingy” than normal.
100 I nevertheless agree with the assessment of the Single Expert that in cases of high conflict such as exists here, it is desirable to take a more conservative approach to the introduction of overnight contact. Whilst it is entirely possible that [Calllum] could cope with overnight contact now, there would be a risk that things would go wrong if overnight contact was pushed too quickly, especially if it were to be introduced soon after this judgment is delivered. Rushing matters too quickly could result in a setback in the progression towards a satisfactory long-term contact regime between Peter and [Calllum]. I therefore accept the Single Expert’s (slightly modified) recommendation that regular overnight contact should not commence until [Calllum] turns 3 (i.e. in July 2007).
101 I consider there would be some advantage in there being a “one-off” overnight contact period prior to the commencement of the regular overnight contact periods in July 2007. This will give [Calllum] the opportunity to experience a short overnight time away from his mother before settling down to regular overnight visits. Subject to any submissions from the parties, I consider that this would be best arranged over the Easter long weekend in 2007.
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I note the evidence indicates that [Calllum] very much enjoyed the Easter egg hunt that was arranged by Peter’s family last Easter. In the event that [Calllum] was feeling in any way apprehensive about staying overnight with his father, such apprehension I am sure would be eased by the knowledge that he can awake the following morning to an Easter egg hunt with his father and his family.
102 I have given some consideration to whether or not it is desirable, as suggested by Carol and the Single Expert, that there should be two days of daytime contact in succession before the overnight contact commences. Such orders were not formally sought and I am not satisfied it is appropriate to further complicate what will be a complicated set of orders by requiring this. Nevertheless, the parties have heard what the Single Expert had to say and they can make any slight changes to the current arrangements if they wish before the overnight arrangement commences. It should not be necessary for the court to regulate every last detail of the arrangements they have to make as parents to best suit their son’s needs. Presumably this is the reason neither of them has sought specific orders regarding [Calllum]’s birthday, Christmas and other special occasions.

Holiday contact

103 Peter does not proposing commencing extended holiday contact until 2009, the year in which [Calllum] will turn 5 years of age. He proposes a graduated introduction of holiday contact, with the periods not exceeding five days in 2009 and not exceeding seven days in 2010 and 2011. This graduated programme of holiday contact was largely, but not entirely, in accordance with the recommendations made by the Single Expert. Having considered Dr Watts’ recommendations. I consider it appropriate that Peter’s time with [Calllum] during the first two school holiday periods in 2009 be for periods of only four days and then the next two holiday periods in 2009 be taken in blocks of not more than five days. I otherwise intend to make orders for holiday contact as Peter proposes.

Arrangement of contact

104 Apart from the timing of the introduction of overnight and holiday contact, a major issue between the parties was the structuring of the regular contact regime. Although Peter is the manager of the [business] where he works, and his father is the owner, he nevertheless claimed that it was very difficult for him to arrange his working schedule around a contact order. Instead, he
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preferred the contact order be arranged around his working schedule. Carol was strongly opposed to this approach, particularly as it would deny her the opportunity to spend Sundays and full weekends with [Calllum] (at least until July 2008).
105 Peter says he has a staff of 75 to manage and claimed to work a 64-hour week. He said his weekend usually started at 4.00 pm on Saturday, after the work at the [business] finished. Sometimes he also worked on Sundays. He said it was very hard for him to be able to have contact on Saturday mornings and there was no chance at all of him being able to work a four-day week. Monday was the best day for him to have off work.
106 Whilst I recognise that Carol is not in employment, I accept that she genuinely and reasonably wishes to have weekend time with [Calllum]. This is because weekends, particularly Sundays, are the time when many activities including family activities are arranged. Furthermore, [Calllum] will be in kindergarten from 2008 and will then move on to school. This will reduce the opportunity Carol has to spend leisure time with [Calllum] during the weekdays. She also draws attention to the fact that on occasions Peter has been able to re-arrange his working hours in order to suit other personal and leisure commitments.
107 Carol’s Senior Counsel drew attention to the fact that Peter failed to call his father to corroborate his claims that his father would be unwilling to allow him to vary his work schedule to accommodate contact. There were a number of snippets of evidence which suggested that there is an underlying difficulty in Peter’s relationship with his father. That evidence left me with the impression that it may well be that Peter’s father adopts a fairly “tough” stance in relation to matters such as family members seeking special treatment (albeit he has allowed Peter to take over management of a very large [business] with a very high salary). However, without Peter’s father being called to give evidence, these matters in my view could not be adequately explored. Whilst I do not underestimate the difficulties that Peter may face, I was ultimately not persuaded that his work commitments were so rigid that he could not make arrangements from time to time to take his contact in a way which would allow him to remain in touch with [Calllum], but also allowed Carol the opportunity to spend some full weekends and some Sundays with [Calllum].
108 The Single Expert was of the view that mid-week contact was essential up until [Calllum] turned 3 years of age and it was then
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“important” until he turned 5 years of age, but thereafter mid-week contact was “optional”. In deciding whether or not mid-week contact would continue past the age of 5 years, the Single Expert’s view was that it was “beneficial” so long as the disruption to the child’s routine was not “extreme”. His view was that the current two mid-week contact periods should continue until such time as overnight contact commenced, and at that stage one of the two mid-week periods could be dropped. I concur with his views.
109 Carol is strongly supportive of reducing the number of mid- week contacts as the current arrangements involve three visits each week and therefore six handovers. Whilst I recognise that this is a difficult arrangement, I am satisfied it should continue until July when the overnight contact period commences. [Calllum] has become used to the arrangement and it allows him to keep in very regular contact with his father during a time when his contact visits are quite brief.

Handover

110 Peter wants the parties to share the travel arrangements for handover and he also wants the handovers to take place at the parties’ respective residences. Carol does not wish to take part in handover arrangements at all. She proposes that they occur at the supermarket near her parents’ home, rather than the current venue at a supermarket near Peter’s home.
111 Carol is a woman of delicate constitution, as too is her mother. I am satisfied that they both have a genuine fear of Peter. Carol does not want to come into contact with him at all and I accept Carol’s mother would find it intimidating going to Peter’s residence for handover. Although I hope that, in the future, these dynamics might change and handover could take place at the parties’ homes, I am satisfied that it is in [Calllum]’s best interests for the handovers to take place, for the foreseeable future, in the way that Carol proposes. Whilst on the one hand it might be perceived as “fair” for the parties to each be required to share in travel arrangements, it needs to be appreciated that Carol has responsibility for arranging all of [Calllum]’s travel needs whereas Peter is only required to collect and return him for contact visits and transport him during short contact visits. Furthermore, Carol is dependent upon her parents to assist her with the travel arrangements and I do not consider it appropriate to inconvenience them any more than is necessary.

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112	There is a strong prospect that Carol will in due course again acquire accommodation of her own and possibly some distance from her parent’s home. In those circumstances, the venue for the handover would need to change to a supermarket or other suitable place near her new residence.

Suspension of contact

113 Carol sought an order, in the event she was not permitted to relocate, to suspend contact with Peter to allow her to travel with [Calllum]. The conditions she suggested appropriate were that she give seven days’ notice in writing of her desire to suspend contact, that she provide makeup time, that the suspension occur on no more than four occasions each year and that the suspension not result in a period longer than three weeks during which [Calllum] does not spend time with Peter.
114 It was the opinion of the Single Expert that there would be no adverse impact on [Calllum] at the present time if he was to go away for a fortnight every three months with his mother. I consider that Carol’s proposals are reasonable, provided that until [Calllum] attains the age of 4 years the suspensions of contact be for not longer than two weeks. As I have indicated above, I consider it important that Carol, who has led quite a mobile and independent existence, should not feel any more tied down than necessary to living in Perth.

Child’s surname

115 Carol opposed the making of the injunction sought by Peter preventing her from referring to [Calllum] verbally or in any documentation by a surname other than his legal surname “A-G”. Carol opposed this injunction on the basis that it was unnecessary, whereas it was claimed by Peter’s Counsel in his closing address that there were occasions when [Calllum] had not been called by his correct name.
116 There was no evidence to satisfy me that this injunction was
necessary.

Mediation and the communication book

117 Peter seeks an order that if either party wishes to vary or suspend the contact orders, they should first provide the other party with written notice of the variations sought and the reasons why. In the event they are unable to reach an agreement, Peter proposes that the parties use their best endeavours to resolve the issue with
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the assistance of a mediator prior to making an application to the
Court.
118 In his closing address, Peter’s Counsel indicated that these orders were sought in part with a view to removing such debates from the communication book that the parties use to deal with issues relating to [Calllum]. I accept that it would be desirable for the communication book not be used for proposals about variation or suspension of orders, but there is nothing to prevent the parties from communicating with each other by letter in relation to those matters.
119 Carol is opposed to being forced to attend any form of mediation which would involve her being in the same room as Peter. I accept that her feelings in this regard are genuine and that there would be a significant imbalance of power in any such discussion, as Peter is forceful and Carol is fragile. I am not persuaded that it would be appropriate to make the order Peter seeks although, of course, I would encourage both parties to exhaust all other avenues reasonably available to them prior to commencing any proceedings in the Court.
120 The Single Expert was of the opinion that it may be beneficial for Carol to receive some form of counselling as her concerns about Peter and his contact with [Calllum] are “very deep-seated”. Similarly, he was of the view that Peter could benefit from having an independent person, such as a psychologist experienced in Family Court matters, with whom he could “bounce off his thoughts”. He thought this was especially desirable in view of the “rigidity” of Peter’s thinking in relation to matters concerning Carol and [Calllum]. Although I do not propose making any orders to this effect, I consider that both parties might do well to consider taking up the suggestions made by the Single Expert.
121 I note that neither party has attended the excellent “Mums and Dads Forever” program conducted by Anglicare. Carol indicated she would have no objection to attending the program. Peter made reference to another program he had been thinking about attending, but I am unaware whether he has followed this through. The Single Expert was somewhat doubtful whether the “Mums and Dads Forever” program would be of much assistance to the parties in resolving their underlying problems because of their “psychological makeup”. Nevertheless, he thought that attendance at the course would do no harm. I consider both parties could obtain some benefit from attending the “Mums and Dads Forever”
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program, which could at least provide them with better skills in communicating with each other in relation to matters concerning [Calllum].

Explanation of terminology in judgment

122 As already observed, Parliament has seen fit (once again) to amend the terminology previously used to describe concepts of guardianship, custody, residence, access and contact – all of which were very easy to use and very well-known (or in some cases becoming very well-known) in the community. Parliament would now prefer that the concept of residence be referred to as someone “living with” someone else. Contact is now generally to be described as “spending time with” somebody else. Contact, other than face to face contact, is now desirably to be described as “communication with”. The legislation, however, does not prescribe the use of this terminology nor does it prohibit the use of the former terminology. In the course of these reasons, I have used the “old” and the “new” interchangeably. In doing so, I do not wish to show any disrespect to Parliament, but have chosen to avoid the linguistic gymnastics that would have otherwise been necessary.

Orders

123 Many of the orders I propose to make were agreed between the parties and I have made no comment about them in these reasons. Subject to hearing from Counsel, I propose making the following orders:
1 The Respondent, CAROL A, have sole parental responsibility for major long-term issues concerning the care, welfare and development of the child, [CALLLUM] A-G, born July 2004 (“[Calllum]”).
2 [Calllum] shall live with the Respondent, save as otherwise provided in these orders.
3 [Calllum] shall spend time with the Applicant, PETER G, as follows:

(a)

until 7 July 2007, in accordance with the existing interim orders, save that the contact falling due on Easter Sunday 2007 be suspended and in lieu [Calllum] spend time with the Applicant from 12.00 noon on Easter Saturday until 12.00 noon on Easter Sunday;
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(b) commencing 7 July 2007:
(i) from 3.30 pm to 6.30 pm each Wednesday;
(ii) from 1.30 pm Saturday until 6.30 pm Sunday each alternate week;
(iii) from 9.00 am Sunday until 9.00 am Monday each intervening week;

provided that the Applicant’s time with [Calllum] pursuant to subparagraph 3(b)(iii) be suspended on each fourth occasion, on the basis that in the week of that suspension the Applicant instead shall spend time with [Calllum] from 9.00 am on Monday until 9.00 am on Tuesday;

(c) commencing 7 July 2008:

(i) from 3.00 pm Friday until 9.00 am Monday each alternate week;
(ii) from 3.00 pm Thursday until 9.00 am Saturday each other week;
provided that the Applicant’s time with [Calllum] pursuant to subparagraph 3(c)(ii) of this order be suspended on each fourth occasion, on the basis that in the week of such suspension the Applicant in lieu have contact with [Calllum] from 3.00 pm on Thursday until 5.00 pm on Friday.

4 Commencing in 2009, the arrangements in the preceding paragraph be suspended during school holiday periods and in lieu [Calllum] shall spend one half of every school holiday period with the Applicant, provided that the time is taken in blocks not exceeding:

(a) four days in the holidays at the end of the first and second school terms of 2009;
(b) five days in the holidays at the end of the third and final school terms of 2009;
(c) seven days in 2010 and 2011.
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5 The Respondent be at liberty to suspend [Calllum]’s time with the Applicant pursuant to these orders to enable her to travel away from Perth with [Calllum] on the following conditions:

(a) she give to the Applicant no less than 7 days’ notice in writing of her desire to suspend contact;
(b) she provide the Applicant with makeup time with [Calllum] in the same or similar terms as his regular time, as agreed between the parties;
(c) the suspension under this order occur on no more than four occasions each year; and
(d) the suspension does not result in a period longer than two full weeks during which [Calllum] does not spend time with the Applicant until July 2008 and thereafter not longer than three full weeks.
6 In each alternate school holiday period commencing with the holidays at the end of first term 2009, the Respondent have the right to nominate her preference for living arrangements for [Calllum] and the Applicant have the right to nominate his preference for each other school holiday period with the advice to be given to the other party in writing as soon as practicable but not less than 35 days prior to commencement of the relevant holiday period.
7 The arrangements for [Calllum] to spend time with each parent be suspended on Mother’s Day and on Father’s Day and [Calllum] shall spend time with the Respondent on Mother’s Day and with the Applicant on Father’s Day.
8 The Applicant and Respondent (or their agents) shall arrange for [Calllum] to be handed over for the purposes of these orders at the [supermarket in the Respondent’s suburb] (or such other supermarket as shall be closest to the Respondent’s residence in the event she moves residence).
9 In the event that the Applicant, for whatever reason, is unable to spend time with [Calllum] pursuant to these orders, he shall provide the Respondent with
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verbal notification of such inability no less than three days in advance of the scheduled contact period in question, except where unforeseen circumstances prevent him from doing so.
10 The Applicant have liberty to:

(a) liaise and discuss the progress of [Calllum] and personally attend upon all health professionals dealing with [Calllum] on the proviso that the Applicant is not permitted to attend with the Respondent on medical appointments but the Applicant may attend separately subject to the consent of any treating health professionals;
(b) receive medical reports or other documents relating to [Calllum] directly from the health professionals dealing with [Calllum]; and
(c) visit [Calllum] in hospital in the event [Calllum]
is hospitalised.
11 Each party be restrained and an injunction is hereby granted restraining them from removing [Calllum] from the Commonwealth of Australia without the prior written consent of the other party or an order of the Court.
12 The Respondent be restrained and an injunction is hereby granted restraining her from changing [Calllum]’s residential address without 28 days’ prior written notice to the Applicant.
13 Each party:

(a)

shall inform the other party of any serious injury or serious health problem suffered by [Calllum] whilst in that party’s respective care;

(b)

inform the other party by telephone, as soon as practicable, of any medical or other emergency concerning [Calllum];

(c)

keep the other party informed of a landline telephone number and address at which [Calllum], or anyone having responsibility for his day-to-day care, can be contacted.
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14 Without finding as to the necessity, each party be restrained and an injunction is hereby granted restraining them from:

(a) using illicit substances either during, or for 48 hours prior to, any contact period;
(b) physically disciplining [Calllum], or allowing any other person to do so; and
(c) smoking in the vicinity of [Calllum], or allowing any other person to do so during periods of contact.
15 The Respondent comply with all of the Applicant’s reasonable requests for information in relation to [Calllum] including his day-to-day activities and his educational, sporting and recreational activities.
16 The parties arrange for the completion and exchange at changeover of a communication book (such that the pages are in triplicate); and:

(a) the original sheet of the communication book is to remain in the communication book, and each party be at liberty to take a copy of any communications in the book; and
(b) information contained in the communication book is to relate to the immediate care, welfare and development of [Calllum] only.
17 [Calllum] spend such further and other time with the Applicant as may be agreed between the parties from time to time.
18 The parties each attend the Mums and Dads Forever course as soon as practicable.
19 The application and response be otherwise dismissed.

I certify that the preceding [123] paragraphs are a true copy of the reasons

for

judgment delivered by this Honourable Court

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Associate

(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.

“(a)	children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)	children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development…”

“1.	The parties’ relationship is such that they are unable to communicate easily or effectively.
2.	Communications take place through the ‘communication book’ and at times these have become an unhealthy misuse of a good device.
3.	There is no foundation of prior co-habitation or shared care under the same roof at any time during [Calllum]’s life to give expectation of a norm to be regained.
4.	The obsessive characteristics and rigid behaviour of the Applicant give grounds to fear that these traits rather than the best interests of [Calllum] will predominate in future dealings between the Applicant and Respondent.
5.	It is unlikely that this relationship will improve sufficiently to discuss issues in relation to the child”.

(a)	the child’s education (both current and future); and
(b)	the child’s religious and cultural upbringing; and
(c)	the child’s health; and
(d)	the child’s name; and
(e)	changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.”

“228.	I visited [the capital city] during 2005 with a view to relocating there permanently with [Calllum]. A friend I have known for many years, Mr Mathew Logan (“Mathew”), has asked me to assist him in undertaking certain research projects in [the state]. Mathew has a number of connections with [business people]. He advised me that [in this state] – in particular [the capital city] and the [other coastal areas] – are areas where the chances of [business opportunity] are high.
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229.	My role would be undertaking research and preparing various reports about the advantages [for business opportunity] in [the state], in particular the [capital city] and [coastal areas]. My reports will include what the lifestyle is like and providing comparisons on areas between [adjacent areas] to [the capital city], [the coastal areas], etc. in [the state].
230.	The payment for my involvement would include a percentage of success fees if any [business opportunity] went ahead.
231.	I would be able to work from home in relation to the production of my reports, and otherwise if any local travel were involved, [Calllum] would be able to come with me.
232.	Mathew has suggested [the capital city] is the obvious place for this work to be undertaken given it is the centre for [major] industry in Australia, the weather is reasonably predictable and it is close to [other capitals] and [other countries].
233.	I spent 4 days in [the capital city] in November last year, which enabled me to get a feel for the city. I spoke to some real estate agents and also looked at some residential areas in relation to a possible relocation.
234.	I say that a relocation to [the capital city] will provide more financial opportunities for me, both in relation to work possibilities and in relation to investment of my own funds. I sold my home in February 2006 and have some approximately $3.6 million deposited, which I would prefer to invest in [the Eastern states]. From research undertaken by me, it appears the real estate market in Western Australia is “over inflated” and investing in [the state] will provide me with a greater long term potential growth and return on my investment.
235.	I do have extended family in [the capital city], being my mother’s cousins, whom I would re-establish contact with if I was granted liberty to relocate.
236.	I also have friends who reside in [the capital city].
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237.	I have a number of friends who live in [the Eastern states](including my former husband), who I would propose visiting more regularly if I resided in [the state], and who would visit me in [the state]. I also have a number of friends who reside [overseas] who regularly visit [the state].”

[2007] FCWA 11

12 JANUARY 2007