Ganit and Ganit

[2018] FCCA 2252

FEDERAL CIRCUIT COURT OF AUSTRALIA

GANIT & GANIT [2018] FCCA 2252

Catchwords:
FAMILY LAW – Parenting – interim relocation.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61D, 65DAA

Cases cited:

Sayer & Ratcliffe and Anor [2012] FamCAFC 209

Vontek & Vontek [2017] FamCAFC 28

Applicant: MS GANIT

Respondent: MR GANIT

File Number: DUC 119 of 2018

Judgment of: Judge Myers

Hearing date: 22 June 2018

Date of Last Submission: 22 June 2018

Delivered at: Parramatta

Delivered on: 27 June 2018

REPRESENTATION

Solicitor for the Applicant: Ms Raines

Solicitor for the Respondent: Mr Bainbridge

Solicitor for the Independent Children’s Lawyer: Ms Shirlow

ORDERS

THE COURT ORDERS THAT:

1. The parties have equal shared parental responsibility for the children [X] born 2009 and [Y] born 2007.

2. That where the mother relocates the children’s residence to Town B, Western Australia and thereafter enrols the children in their previous school within 56 days of today’s orders, the children shall live with the mother.

3. The children spend time with the father as agreed between the parties in writing but failing agreement:

   (a)During the school term from after school Friday until 9am Monday morning on each alternate weekend;

   (b)For half of each school holiday period, being the first half in even numbered years and the second half in odd numbers years.

4. On the children’s birthdays, the children shall spend 4 hours with the parent with whom they are not staying that night.

5. That on the Father’s Day weekend the children to spend the entire weekend with the father even if it not a scheduled weekend for the children to stay with the father.

6. That on the Mother’s Day weekend the children to spend the entire weekend with the mother even if it not a scheduled weekend for the children to stay with the mother.

7. The mother and father enrol in a drug & alcohol counselling course within 42 days of today’s orders and the father enrol in and complete an anger management course within 6 months of today’s orders.

8. That the children spend time with the parents on Christmas Day and Boxing Day in 2018 as follows:

   (a)With the mother from 5pm Christmas Eve until 12pm Christmas Day;

   (b)With the father from 12pm Christmas Day until 5pm Boxing Day.

9. Should the mother fail to relocate residence to Town B, Western Australia in accordance with Order 2, then Orders 2–8 shall be discharged and the following orders shall apply:

   (a)The children to live with the father.

   (b)The parents to have equal shared parental responsibility for the children.

   (c)The children to spend time with the mother in the first half of each of the Western Australia school holiday breaks.

10. The matter is transferred to the Family Court of Western Australia on a time and date to be advised.

11. Where neither party files an appeal in the proceedings respect of the orders made by the Court today the Independent Children’s Lawyer shall be discharged from the proceedings.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

DUC 119 of 2018

MS GANIT

Applicant

And

MR GANIT

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an interim parenting decision in the matter of Ganit & Ganit in relation to the parties’ children [Y], age 10, and [X], age nine years.  The mother essentially seeks orders that she be permitted to remain living with the children in Town A, a town in New South Wales whereby:

   a)The mother have sole parental responsibility for the children [Y] born 2017 and [X] born 2009.  The mother keep the father properly informed of the children’s education, medical needs and other major long-term decisions involving the children.  The children live with the mother.  The mother be permitted to relocate the permanent residence of the children to Town A, New South Wales. 

   b)The children spend time with the father as agreed between the parties, and failing agreement as follows:  from the first Saturday of terms 1, 2 and 3 New South Wales gazetted school holiday periods until the second Friday of the same school holiday period; for a period of three weeks during the term 4 summer New South Wales gazetted school holiday period; in even-numbered years with the father. 

   c)Father’s time with the children is to commence on the first Sunday of the school holiday and conclude on the Sunday of the weekend three weeks later; in odd-numbered years the father’s time with the children shall commence on 30 December and conclude on Sunday three weeks later, or otherwise as agreed.  For the purposes of changeover the mother shall be responsible for the children’s flights to the father and the father shall be responsible and the father shall be responsible for the children’s flights back for the mother.

   d)The parties must confirm and pay for the children’s flights at least three weeks prior to the first day of the father’s proposed time with the children.  This shall be done by providing a full copy of the booking confirmation as soon as possible after booking but not later than two weeks prior to the time the Court has provided above.  The father shall complete an anger management course and commence counselling with a qualified psychologist to address his anger management issues.  Confirmation is to be provided with the mother’s legal representative in writing. 

   e)The children shall have telephone communication with the non-lives with parent each Tuesday and Friday from 7.30 until 8 pm.  This includes FaceTime and/or Skype when available.  That each party is restrained from using physical force upon the children when disciplining them or permitted any third person to do so. 

   f)The parties shall communicate via email as to any parenting issues or arrangement except in the case of emergencies where such communication shall be via telephone.  The parties are restrained from consuming alcohol to excess during any period that the children are in their care and for a period not less than 12 hours prior to the children coming into their care. 

   g)The parties shall refrain from making derogatory remarks about the other parent or members of their family in the presence or within hearing of the children, and the parties shall do all things necessary to ensure that no other person makes any derogatory remarks about the other parent or members of their family in the presence or hearing of the children. 

   h)The parties shall each do all acts and things and provide all authority as necessary to ensure that whichever school the children may attend, from time to time that this school forward directly to each party copies of each child’s school reports and merit cards and any written material pertaining to each child’s academic and extracurricular activities.  That in any event any of the child have been hospitalised or receiving medical attention the parents spending time with that child shall notify the other parent as soon as is practicable after the first contact with a medical practitioner, medical centre or hospital. 

   i)That each party advise the other and keep the other party advised of their current address and contact numbers including landlines and mobile phone numbers if applicable, and advise the other party of any changes to these details within two days of such change occurring. 

   j)In the event the mother’s relocation application is unsuccessful, the mother have sole parental responsibility for the children.  The mother keep the father properly informed of the children’s education, medical needs and all major long-term decisions involving the children.  The children live with the mother. 

   k)The children spend time with the father as agreed between the parties, and failing agreement, during school terms, from after school Friday until 4 pm Sunday on each alternate weekend, for half of each school holiday period being the first half of even-numbered years and the second half on odd-numbered years.  Changeovers shall occur at the school whenever possible and if the school is not open, the parties shall meet at McDonald’s at Town B. 

2. The mother sought orders that the parties spend time with the children on occasions of special significance including on Mother’s Day and Father’s Day.

3. The father seeks the mother cause the children be returned to live within 100 kilometres of Perth, Western Australia, from December 2018 with the children thereafter to live with the mother and spend time with the father each alternate weekend from Friday until Monday and for half of each school holiday period. 

4. The father seeks orders in the alternative that where the mother chooses to remain living in New South Wales the children are to live with the father and spend time with the mother for half of the school holidays and then in either scenario the parties have equal shared parental responsibility of the children. 

5. The independent children's lawyer seeks orders that the children return to live in Western Australia, be returned to their previous school and that this take place forthwith.

6. By way of background, the father and mother met in Town C in New South Wales in 2001 and beginning a relationship.  In mid-2002 the parties moved to Town A, New South Wales and managed a (business omitted).  The parties then travelled around New South Wales.  The parties married in 2005.  The parties discovered the mother was pregnant with [Y] whilst living on the Region 1 of New South Wales.  [Y] was born on 2007.

7. In late 2007 the parties moved to Town D following the husband purchasing a truck.  [X] was born while the parties were living at Town D on 2009.  In mid-2012 the parties relocated with the children to Western Australia ultimately purchasing a property in the suburb of Suburb E.

8. In January 2013 the father witnessed what the mother described as a horrific accident where a child was hit by a truck.  The mother deposes the father thereafter suffered post-traumatic stress disorder.  The mother alleges that towards the end of the parties’ relationship the father become what she described as unbearable to live with where he was aggressive towards the children and used the words fuck and shit and cunt in conversations in front of the children. 

9. Candidly, the mother deposes that the father would drink up to 12 beers a day and that the mother herself would consume a glass of wine every day and sometimes this was up to two bottles.  The parties separated in November 2016.  The family consultant sets out that following separation the mother relocated with the children in the suburb of Town B, located 35 minutes’ drive from Town E.

10. Following separation the children lived with the mother and spent alternate weekends with the father.  The father is employed as a (occupation omitted) and lives in the former matrimonial home in Suburb E.  It is not controversial that in October 2017 the mother asked the father to allow her to move to New South Wales so that she could support her mother, being the maternal grandmother, who had been diagnosed with cancer and was required to undergo chemotherapy. 

11. The father initially agreed to such a proposal on the basis that the mother would return the children to Perth within 12 months of departure and on the basis the parties documented the agreement in writing.  An agreement was subsequently drafted.  The Court accepts that the mother left Western Australia without signing the agreement.  The father sets out at paragraph 31 the mother left four or five days earlier than she had suggested she would.  This left no opportunity to finalise the agreement, written or otherwise, or time for the father to say goodbye to the children.

12. The father went on to depose at paragraph 32 it had only been about four weeks between the mother signalling an intention to help her mother and then actually leaving, the father set out “It all happened very fast and within that time my own mother past away.”

13. The family consultant set out at paragraph 5 of the family consultant’s memorandum:

    Following her relocation to New South Wales, Ms Ganit established a household in Town A and the children commenced to attend School 1 Public School.  Thereafter Ms Ganit and the children interacted regularly with the maternal grandparents who lived at Town C.  Ms Ganit reported that her mother has now completed a course of chemotherapy and she has been given the all clear in relation to the cancer from which she was suffering … [T]he current reasons for wanting to remain in New South Wales, Ms Ganit reported, “I enjoyed it when I got here,” and in February 2018 her parents proposed to buy a Business M in Town A which she agreed to manage on their behalf in order to repay, at least in part, the hundreds of thousands of dollars that her parents had previously provided to underwrite the former matrimonial home and Business N in Western Australia.  It is understood the purchase of the Business M is to complete in 2018. 

14. Interestingly, the mother’s evidence as contained in her affidavit in respect of working in the Business M is well less than conclusive about any such agreement where the mother deposes at paragraph 75:

    [M]y parents have purchased a Business M in Town A as an investment property.  I have discussed with my parents that I would like to run the Business M and feel this is also a way I could repay them for all they have done for Mr Ganit and I financially.  They are scheduled to take over ownership of the Business M on 2018.  The Business M has a residence and I will be at home with the children always and will not need to put them into after school care as I have done with them previously.

15. The Court notes the maternal grandmother was present at the interim hearing and provided no evidence about whether her daughter (the mother) would be employed in the business.  The Court notes the mother’s evidence at paragraph 74 that:

    [X] and I continue to live in a four-bedroom rental property in Town A together with our two dogs.

16. There is insufficient evidence to allow the Court to make a finding that the mother would be employed and for that matter live at a Business M being purchased by the maternal grandparents and whether such purchase has proceeded.  The mother sets out at paragraph 83 of her affidavit:

    My sister is living in Town D and my parents live a 40 minute drive from Town A but each of them visit regularly.  [Y], [X] and I see my parents at least once per fortnight and speak to them almost daily.  My mother has recently been cleared of non-Hodgkin’s lymphoma and my father had heart surgery on 2018 at Hospital.

17. The mother suggests at paragraph 71:

    The children have become accustomed to living in New South Wales and a move back to WA again would cause significant disruption to them.  I have recently had [Y] and [X]’s parent-teacher interviews during which both teachers spoke glowingly of them.  I provided Mr Ganit with updates following the children’s parent-teacher interviews...

18. The Court notes that the children have only lived in Town A for some six months.  It is, in the view of the Court, less than a well-settled arrangement.  The mother alleges incidents of family violence perpetrated against her by the father.  The father alleges that the mother would hit and punch him, that he would never retaliate with physical violence and instead block strikes and punches. The father alleges the mother’s behaviour was a result of the mother’s drinking and the mother would claim to not remember what she had done the next morning.

19. At paragraph 83 the father denied that he was ever physically violent towards the mother, however, he deposes that the parties would argue.  The father gave evidence as to three separate incidents where the mother had alleged the father had been physically violent, deposed at paragraph 89 and 90 onwards. 

20. The father says:

    The first physical claims is that I punched a wall and my wife came into the bedroom.  The claims of the applicant are false and in fact the situation is as follows.  The applicant had been drinking heavily.  We began to argue.  I had a few drinks as well but not as many as the applicant.  We were arguing about the incident with the 11 year old boy.  We were in the lounge room.

    I became frustrated, stormed out of the room and towards our bedroom.  The door of the en suite bathroom was ajar.  I punched it on the way through.  The applicant was not in the bathroom.  She was in the bedroom.  And in fact I had walked away from her, not towards her.  I should not have punched the door and I accept my responsibility in relation to this.  However, the circumstances are certainly not as the applicant describes them. 

21. The father goes on in paragraph 91:

    The second claim of physical violence is in 25 December that I had punched the applicant while she was asleep on the couch to wake her up.  There then purports to be a photo of the injury, a bruise on the arm.  This is simply false in its entirety.  Knowing the manipulative mindset of which the applicant is I should imagine that it is possible she received a bruise somehow somewhere along the line, photographed it and kept for the future when she might claim I had struck her. 

22. At paragraph 92 the father deposes:

    A third claim of physical violence is on 3 July 2016 the applicant suggests I hit the Motor Vehicle and broke the windscreen.  This is false and the situation was actually as follows:  (a) the applicant had been drinking heavily, (b) we began to argue about the accident, (c) the applicant grabbed my car keys, (d) the applicant had a penchant for drinking and driving and would do it often, (e) the applicant had slurred speech and could not walk properly, (f) the applicant went to drive the vehicle, (g) I asked her not to, however, she was insistent, (h) I began to tell her not to, however, she would not listen, (i) I screamed at her to stop, hoping she would listen but she wouldn’t, (j) I thought she might kill herself or somebody else behind the wheel, (k) she started the car and the only thing I could think to do was immobilise the vehicle, (l) I could not think of a way to deflate the tyres so I pounded on the windscreen hoping to break the glass so the car would be un-driveable, then she would have to stop;  (n) I thought a broken windscreen would be better than death. 

23. When considering the issue of family violence the family consultant suggested at paragraph 10 of his report:

    With regard to his Ms Ganit’s claim about anger and verbal abuse Mr Ganit responded that both situations involved heated verbal arguments with one another in which each of them were equally implicated.  Mr Ganit characterised his interactions as involving mutual conflict rather than unidirectional abuse.  Mr Ganit also denied calling Ms Ganit “the dumbest person I know”, claiming that what he had actually said is “the dumbest smart person I know” and his reference to her diminishing decision making capacity was due to her excessive alcohol consumption.

24. The family consultant noted:

    Both parties make claims about excessive alcohol consumption by the other parent, although each denies that it was as excessive as the other claims. Both parties further claim that their personal alcohol consumption has diminished enormously in recent months, with Mr Ganit claiming that his alcohol consumption has now reduced to minimal levels, while Ms Ganit claims to have ceased consuming alcohol entirely since April 2018. Neither party ever appears to have come to the adverse notice of police or other authorities due to excessive alcohol consumption. No allegations or concerns were expressed by either party in relation to drug use/abuse by the other parent.

    The only mental health issue identified during this Conference related to the Post Traumatic Stress Disorder suffered by Mr Ganit, after he was involved in a fatal road crash in Western Australia in 2013. Mr Ganit said he underwent extensive psychological counselling following this incident, and his PTSD has now diminished to a manageable status. There was no suggestion that his PTSD continues to be an active problem at the present time.

1. The views of the children set out by the family consultant’s in a child inclusive memorandum and are telling as to the situation the children find themselves in.  The family consultant noted at paragraphs 21 onwards:

   [Y] and [X] attended this Conference with their mother and maternal grandmother. Upon seeing their father at the commencement of the day, both children squealed with excitement and ran over to greet their father with a hug. Thereafter, both children were observed to spend the majority of the time during this Conference interacting with their father, despite what appeared to be the maternal grandmother’s initial unhappiness about this.

   During interview on his own, [Y] said he understood these interviews were about “trying to see who we’re going to be [living] with”. [Y] reported that he is “turning 11” years old, and that he currently attends School 1, where he is in Year 5. He named his teacher and said that he has “about 28” friends. [Y] said the best thing about school is “T and E [Technology and Engineering]”, and he also enjoys “recess and lunch”. When he is not at school, [Y] said he enjoys playing computer games and watching YouTube videos on his iPad.

   [Y] was asked how well his parents get along together, and he replied “they used to get on with each other … but they had more fights as I got older”. If he could change something about his family, [Y] said he would want his “Mum and Dad [to] get along” with each other.

   [Y] spoke positively about spending time with his father in WA during the April 2018 school holidays, recalling that they had gone away for part of that time to visit Town F, and during the remaining time he had also caught up with his friends in Town B.

   [Y] was asked whether he has any ideas about where he would like to live in the future, and he replied “I can’t choose … [but I would like it] if we can [all] live in the same suburb … that would be good”.

   [Y] was asked how he had felt about his relocation to NSW in 2017, and he replied that when they left Western Australia his mother had told them they would only be going away for one year, following which they would be returning to live in WA. However, he said that after they had been living in Town A for a while, his mother had told them they would be living here permanently. When asked how he felt about this, [Y] replied “I feel that she betrayed us … that she just wanted us to stay away from Dad”. [Y] then went on to say “I want to go back to Perth”.

   [Y] was asked how he would feel if certain outcomes occurred in the future. For example, when asked how he would feel if he was able to move back to live in Perth, [Y] replied “Yes, that would be a good thing. [Why’s that?] Most of my friends are in Perth”. When asked how he would feel if he was to continue living in Town A, [Y] replied “I’d feel like my whole life would be left behind [in Perth]”, and “My whole life was there … I thought I’d be going back, but Mum changed her mind”.

   [Y] was asked whether his mother is aware of his preference to live in Perth, and he confidently replied “Mum knows I want to go back to Perth.” However, towards the end of his interview, [Y] began to express concerns about how his mother might feel about him having expressed a preference to live in Perth.

   [Y] spoke positively about his father’s partner Ms G, and said she has never done anything that he didn’t like.

   [Y] was asked whether either of his parents ever say negative or ‘bad’ things about the other, and he replied “it’s very rare … [but] they both say it … [although] I can’t put my finger on what they say”. On those occasions when this occurs, [Y] said it make him feel “bad”.

   [Y] spoke positively about moving into the Business M that his grandparents are purchasing in Town A shortly, saying that he is especially excited about having unlimited access to the Business M’s “Wi-Fi” internet access.

   [Y] described seeing his father today as “great … because it’s been a long time since I’ve seen him”. He said he is looking forward to spending some more time with his father later this afternoon, explaining that they are going Ten Pin bowling, and to a park to kick the ball together.

   During interview on her own, [X] said she is 9 years old, and she attends School 1, where she is in Year 4. However, [X] went on to say “I’m going to be moving schools. [Why’s that?] Because I don’t really like Town G… we have a teacher [on Tuesdays] who keeps yelling at us”. [X] said the best thing about school is her regular teacher, who she really likes, and her six friends, and the main thing that she doesn’t like about school is “that teacher on Tuesdays”.

   When she is not at school, [X] said she enjoys playing on her iPad, playing with their dogs, “going to the park with my cousin” and “seeing my Nanna and Pop”. She explained that they spend time with her grandparents in Town C on “most weekends”.

   [X] was asked how well her parents get along with each other, and she replied “not very well … they used to get on well when they were together … when we were really small … [but] when I was about 7 they started to fight, so Mum decided to break up”. When asked whether she would like to change anything about her family, [X] replied “to make Mum and Dad stop fighting, and to make them go back together”. However, [X] said she does not believe this will ever happen because “Mum’s afraid of Dad. [Why is she afraid of Dad?] When he was angry he yelled [at her]. He’s got the same temper as me … I’m a bit used to it … [Y] and I aren’t afraid of Dad”.

   [X] was asked how she would feel if certain outcomes were to occur in the future. For example, when asked how she would feel if she was to return to live in Perth, [X] replied “I’d really like that, but I also want to stay here … I don’t know which place I want to live in”. [X] was then asked how she would feel if she was to continue living in Town A, and she replied “it’s the same answer as before [I don’t know which place I want to live in]”.

   [X] said that when they relocated to NSW, “Mum told us it was for a year … [but] she was lying. She later told us the truth [And what’s the truth?] That we’re living here forever”. [X] was asked how she would feel if they continued living in Town A, and she replied “sad”, because she is living so far away from her father.

   [X] said that when they were living in Western Australia, “[Mum] couldn’t get a job … [but] she’s really excited about this job [managing her parents’ Business in Town A]”. When asked how she feels about this change, [X] replied “I feel really excited … it has like a two-storey house, and a pool out the front … and we’ll put the dogs out the back”.

   [X] was asked whether either of her parents drink alcohol, and she replied “Mum hasn’t been drinking anymore … she used to drink heaps … when we were [living] at Town B, she always went to Ms D’s [next door] to have a drink when we were in bed. [How did you feel about that?] Scared”. However, [X] said this doesn’t happen anymore because “she doesn’t have a friend that lives next door anymore”. When asked about her father’s alcohol consumption, [X] replied “Not since they split up”. In reflecting on her parents’ current drinking habits generally, [X] said “Mum and Dad only drink now when they’re having parties”, but not at other times.

   [X] was asked whether either of her parents ever say ‘bad’ things about the other, and she said that they don’t.

   [X] described it as “really exciting” to see her father today, and to be able to spend some more time with him this afternoon. She explained that they intend to “go ten pin bowling, kick the ball around, and go out for dinner [tonight]”. She said she would have preferred to be able to spend more time with her father over the forthcoming weekend, but “Mum said he chose to go back to Perth” instead. However, [X] added that she believes “we’re going to see him in the July school holidays”. When asked how she feels about travelling unaccompanied by air between Sydney and Perth, [X] replied “I like planes … the air hostess looks after us”, and she also noted that on the last occasion there was a large group of children on their flight/s who were also doing the same thing as them.

   [X] was asked whether she had any questions that she would like to ask the family consultant, and she replied “At Court, [will] they tell Mum to delete Snapchat?’ [X] explained that she doesn’t want this to occur, because this would make her mother unhappy. She went on to say that she believes her mother is “friends with a boy” on Snapchat, which makes her feel somewhat uncomfortable, because she believes that she knows all of her mother’s friends, but she doesn’t know “this boy”.

2. The family consultant commented on the situation in which the children found themselves and the issue to be immediately determined by the court at paragraph 43:

   On an interim basis, the central question before the Court is whether [Y] and [X] should continue to live in NSW, or return to live in Western Australia.

3. The family consultant suggested that it understood the parties had previously agreed that the mother could relocate with the children to New South Wales on a temporary basis, subject to the condition that she return the children’s residence to Western Australia by the end of November 2018.  However, following an argument between the parties in November 2017, both of them withdrew their consent to that agreement and Ms Ganit, the mother, unilaterally relocated the children to New South Wales anyway.

4. The family consultant opined that the mother’s original reason for seeking to relocate to New South Wales was to support her mother through a cancer diagnosis and treatment noting that this reason no longer applies, given the maternal grandmother’s cancer treatment has now concluded.  The family consultant set out his understanding that the maternal grandmother had been given the medical all-clear.  The family consultant noted the mother now wishes to remain living in New South Wales with the children because:

   I like it here. 

5. The Family Consultant noted that New South Wales is where the mother’s parents and much of her extended family live and living away from WA removes the mother from close proximity to what she claims is ongoing hostility and getting verbal abuse by the father.  For this part, the family consultant suggested the father considers the mother is putting her own needs and interests ahead of the children, which he believes necessitates the children living in reasonably close geographical proximity to both parents so that they can maintain positive relationships with both of them.  The family consultant sets out at paragraph 46, importantly:

   Serious concern exists about Ms Ganit’s lack of commitment to facilitating and maintaining the children’s relationships with their father, especially given that they are currently living so far away from him. For example, Ms Ganit did not contribute to the children’s airfares when they returned to Western Australia to spend a week with their father during the April 2018 school holidays (despite proposing in her Initiating Application that she would do so). I also note that Ms Ganit does not encourage or facilitate the children communicating with their father on a regular basis. Indeed, Ms Ganit said she sometimes ignores Mr Ganit’s telephone calls to the children, if she considers they are not available to speak to him, but without explaining this to Mr Ganit, or facilitating the children returning his calls when they are available.

6. The family consultant opined:

   These are hardly the actions of a parent who is committed to maintaining the children’s relationship with their father or seeking to overcome the difficulties created by the parenting decision she has made and now wants the Court to affirm.

7. At paragraph 47, the family consultant raised further concerns stating:

   Nor does Ms Ganit appear to be keeping Mr Ganit informed about issues of shared parental responsibility, such as the possibility of [X] changing schools in Town A in the near future, or the reasons why such a change of schools may be necessary.

8. The family consultant goes on at paragraph 48 to say:

   Some concerns also exist about Ms Ganit’s financial capacity to contribute to the children’s airfare to visit their father in Western Australia on four occasions each year on a permanent basis.  For example, Ms Ganit said she did not contribute to the children’s airfare to visit their father in the April 2018 school holidays because she was financially unable or unwilling to do so because Mr Ganit had not paid any child support.  The risk here is that even if Ms Ganit may have positive intentions about doing this at the present time, she could be falling into the psychological trap of discounting the future when the possible consequence is that she may actually find this commitment to be financially unsustainable at some stage in the future.  If this were to occur, the potential consequences of the children’s relationship with the father could be dire.

9. The family consultant sets out at paragraph 49:

   Ms Ganit alleges the existence of family violence by Mr Ganit, including a couple of incidents of physical violence against external objects located close to her, as well as an ongoing pattern of anger and verbal abuse. For his part, Mr Ganit essentially denies that there has ever been any family violence perpetrated by him whatsoever. For example, he denies some of the allegations completely, and he characterises others as involving mutual conflict, rather than unidirectional abuse. While this may (or may not) be the case in relation to the some of the incidents, it is difficult to accept that Mr Ganit’s actions in smashing the windscreen of their vehicle in July 2016, while Ms Ganit was sitting inside it, was anything but an exercise of raw power, designed to instil fear into Ms Ganit.

10. During the interview, [Y] said he would prefer to live in Western Australia while [X] did not wish express a preference one way or another, although she said she was sad about living far away from her father.  In the event he was not able to return to live in Western Australia, [Y] said:

    I feel like my whole live will be left behind.

11. The family consultant opined at paragraph 51:

    Some concern exists about the possibility that both parents have sought to influence the children’s perceptions about contested issues, for example, [Y] using the word “betrayed” (as in “I feel that she betrayed us …”) to describe Ms Ganit’s apparent change of mind about returning to live in Western Australia; and [X] referring to her mother eventually telling them “the truth” about remaining in Town A, both of which I suspect may reflect Mr Mr Ganit’s own words/feelings about these issues.

12. The Court notes the family consultant’s concerns.  At the time the children were interviewed, they had not spent time with their father for several weeks.  The mother took them to the interviews.  When considering whether the children’s views were influenced, the Court accepts that the children may have overheard or heard those words but in circumstances where they actually understood the meaning of the words used, and where the children used those words correctly.  The children didn’t parrot the words.  The children had not spent time with the father for several weeks so it is the view of the Court that it would hardly be a set of circumstances where the father immediately told the children before the interviews make sure you go in and tell the family consultant these things, please use these words. 

13. The family consultant went on to suggest that Ms Ganit’s promotion of the advantages of living in the Business, that her parents will shortly be purchasing in Town A, is one of those matters the mother may have influenced the children over. 

14. The perception that each parent has sought to influence the children’s views in relation to the contested parenting proceedings does no credit to anybody.  When talking about the future direction of the case, the family consultant went on to say:

    With regard to future case management of the matter, a family report should be prepared prior to final hearing.

15. Each relocation case is determined in accordance with part VII of the Family Law Act in relation to the best interests of the child. In Sayer & Ratcliffe and Anor (2012) FamCAFC 209 at 47 to 48 it’s stated:

    It is now a well-established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathway as other parents’ cases under the Act. 

16. In other words, relocation is not to be treated as a discreet issue in making the parenting orders.  The Court must consider each party’s proposal on its merits in accordance with the prescribed legislative pathway.  In Vontek & Vontek (2017) FamCAFC 28, dated 28 February 2017, the Full Court of the Family Court, comprising Ainslie-Wallace, Aldridge and Kent JJ went on to say at paragraph 65:

    It follows from the decisions in the High Court in AMS & AIF (1999) 199 CLR 160 and U & U [2002] HCA 36; (2002) 211 CLR 238 that parenting proceedings there is no requirement for a parent to demonstrate compelling reasons to live where the parent proposes to live, be that a proposed new location or, axiomatically, in their current place of residence.  Here, the mother was no more required to demonstrates compelling reasons for her choice to remain living Town S than was the father to do so with respect to his choice to live in Town C or for either to not live anywhere else. 

    The same may be said of their respective choices of employment, the mother’s in Town S and the father’s in Sydney.  The Court must be sensitive to the wishes and rights of parents to live and work wherever they desire.  See U & U at paragraph 82 citing AMS & AIF.  These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify interference; and then the interference is legitimate only to the extent that it is necessary to avoid adverse effects.

    Consequently, whilst the Court is not bound by the proposals advanced by the parents and can, subject to natural justice considerations, adopt modified proposals, the justification for that is the same and the extent of modification legitimately can only be as far as is necessary to avoid adverse effects upon best interests.  As Callinan J observed in AMS & AIF (cited with approval by Gummow and Callinan JJ in U & U (with whom Gleeson CJ, McHugh and Hayne JJ agreed)).

17. The Court has considered the mother’s proposal. The Court has considered her reasons, be they compelling or otherwise, her desire to remain living in Town A where she lives close to her parents. Much, much closer than that of where she lived in Western Australia. The Court turns to those matters set out at section 60CC. The Court considers the primary consideration of the benefit of the children having a meaningful relationship with both parents. There is a real benefit with these children having a meaningful relationship with both parents.

18. The family consultant raises some concern about the capacity or ability of these children to maintain that meaningful relationship in circumstances where they remain living with the mother in Town A. The Court considers the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The Court is concerned about the issues of the parties drinking, it is concerned about the father’s anger to the extent that the Court can make orders that will protect the children from suffering physical or psychological harm as a result of being subjected to or exposed to abuse, neglect or family violence in circumstances where the Court orders the father undergo an anger management course and where the parties undertake drug and alcohol counselling. The Court considers those matters set out at section 60CC subparagraph (3), being:

    (a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views

1. The Court gives weight to the children’s views.  The children are sad.  [X] is sad.  She has sufficient maturity and understanding to be able to express that view.  She is sad at being separated from the father.  [X] has formed a view about her mother now telling her something different to that [X] was told when she left Western Australia.  [X] has characterised that as lying but be it characterised as lying or otherwise, [X] has expressed a view that her mother has told her something that was not correct, something that has changed in circumstances where at least when [X] moved to Town A she was under the belief that something else would take place, that is, she would return to live in Western Australia. 

2. [Y]’s views are much stronger, given his age.  He talks about being betrayed by the mother.  He is very, very clear in his view that he wants to return to live in Western Australia.  In the circumstances where [Y] has moved to Town A, [Y] was clear that he was under the belief that he was going to be going back.  The Court gives weight to [Y]’s views.  [Y] is, given his maturity and level of understanding, able to express whether he feels sad.  He is able to express how he feels.  He is able to express what might be described as his hurt at the mother’s changed arrangements. [Y] is able to express that he misses his father and wants to be close to him. The Independent Children’s Lawyer submitted that [Y]’s view should be accorded significant weight.  Whether the mother and perhaps others might ignore [Y]’s views, or seek to diminish [Y]’s views, [Y] has made his views clear, he wishes to return to live in Western Australia. Given [Y]’s level of maturity and understanding around the circumstances he finds himself including the possible effect of what he has said on the mother and his insightful exchange with the family consultant, those views must be given significant weight.

3. The Court considers the nature of the relationship between the children and each of the children’s parents, any other person including grandparent or other relative of the child.  The children have a strong and loving relationship with their father, as evidenced by their interactions between the children and the father in front of the family consultant.  There’s no suggestion that the children have anything other than that.  They have a good relationship with their father’s partner. 

4. The nature of the relationship between the children and the mother is one of some concern where [Y] is raising issues about his feelings about the mother betraying him, where he feels misled.  The Court is concerned that the children’s feelings about the mother, where they remain living in Town A, may cause the children’s relationship with the mother to change.  Where, if things remain as they are, given the children’s views that I have heard through the family consultant and, where the mother remains in Town A, the relationship between the children and mother could become strained and perhaps may begin to break down. 

5. But otherwise, the Court considers this.  The children love their mother, they have a good relationship with her.  The mother’s actions are, for want of another expression, putting strain on that relationship.  The Court does not have any evidence to suggest that ultimately that the relationship between the children and the mother would break down as a result of a choice to remain in Town A but it is at least a concern to the Court where the paramount consideration remains the best interest of the children.  The Court notes the children have a good relationship with their grandparents – the maternal grandparents – and they have a relationship with the mother’s sister and her children. 

6. The Court considers that the parties have participated in making decisions about major long-term issues in relation to the children.  They have taken the opportunity to spend time with the children and communicate with the children.  It is of some concern that the father has failed to pay child support.  This failure has occurred in circumstances where the father had agreed to pay some $600 a week to the mother on the basis that she was going to live in Town A and return back to Western Australia.  And when she failed to do so, the father has not paid.  That is the mother has failed to honour that agreement when she has left and the father has not made payment.  It is a concern of the Court. 

7. The Court considers the likely effect of any change in the children’s circumstances, including the likely effect of any separation from either his or her parents or any other child or other person.  There is a change in these children’s circumstances.  The mother left in November last year, unilaterally making a decision to move with the children to Town A permanently.

8. The effect upon the children, having regard to the family consultant’s memorandum, is one that their relationship with their father will diminish, where it will be difficult to maintain a meaningful relationship with the father where the family consultant has formed a view that the mother may not facilitate it.  The mother suggests that if the children go back to Western Australia she will return back as well. The mother is clear in that if the Court makes an order for the children to return to Western Australia, they will live with the mother. 

9. They will spend time with their father.  The arrangement will return to much the same as it was prior to the mother moving to Town A.  The Court considers the practical difficulty and expenses of the children spending time with and communicating with a parent and whether that difficulty or expenses will substantially affect the child’s rights to maintain personal relations and direct contact with both parents on a regular basis.  The distance between Town A and Perth is great.  There is a practical difficulty in the children spending time with the father. 

10. The cost of airfares were not met by the mother on the last occasion the children spent time with the father where it would appear the mother could not afford it.  The children travelled to see the father because the father paid.  The family consultant raises issues about his concerns with respect to the cost of airfare.  The family consultant is clear that the cost of airfares is a real issue in these proceedings and that it ultimately may lead to a diminishment of the children’s relationship with the father. 

11. The Court considers the capacity of the children’s parents to provide – and any other person to provide for the needs of the children, including their intellectual and emotional needs. 

12. The Court is satisfied that the parents have that capacity.  The Court is concerned about the parents’ drinking to the extent that the court will make orders to ensure that capacity remains in place; to ensure the parents continue not drinking, where they don’t fall into alcohol abuse, orders that the parties should attend upon drug and alcohol counselling.  In circumstances when one looks at the material before the Court, the parents’ drinking has been problematic.  In circumstances where [X] talks about the mother drinking, particularly where it caused [X] to feel scared. 

13. The Court considers that the father’s capacity to provide for the needs of the children, including intellectual and emotional needs. This capacity will be bolstered by the father undertaking an anger management course so that he can deal with those matters that cause him anger, so that he can work out ways of managing his emotions, particular given his history of PTSD, so that the father does not get angry, and so that it does not affect his capacity to parent.  There’s nothing in the maturity, sex, lifestyle and background, including the lifestyle, culture and traditions of the children the Court gives weight.

14. The Court is not aware that the children are Aboriginal or Torres Strait Island children.  The Court considers the attitudes to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents.  The Court considers the father has a good attitude towards the responsibilities of parenthood and the attitude towards the children.  The Court considers the mother’s attitude towards the children and the responsibilities of parenthood are somewhat wanting.  In circumstances where the mother has moved from Perth to Town A, New South Wales, for the purposes of caring for her mother who has had cancer and then decided that she simply liked it in Town A and wishes to stay, where she does not consider the impact that her decision has had on the children or consider the hurt that they are going through in circumstances where she has told the children one thing, allowed them to move to Town A, and then told them something else.

15. The mother’s attitude towards the children has had a major impact upon these children and having read the family consultant’s memorandum, it has had an impact upon the children’s relationship with their mother, where they have a particular view about their mother which, to be frank, given the children’s ages, is not a good one. 

16. The Court considers the allegations of family violence involving the children and the members of the children’s family.  It is difficult for the Court to make findings about family violence in these proceedings where both parties allege family violence perpetrated by the other, where both parties deny the allegations of family violence, where the father seeks to offer up what might be described as possibly plausible explanations as to why he did things, such as damaging the windscreen on the mother’s vehicle.

17. These are matters that will need to be considered and determined, where evidence can be tested and findings made at a final hearing.  For the purposes of today, the Court cannot make those findings; the evidence is not tested.  The allegations are significant.  The history is longstanding, but the Court can find this:  whatever has transpired – and the Court accepts there has been fights or disagreements – the courts can find that laying, at least in part, at the root of those fights or disagreements is the use and abuse of alcohol. 

18. As I have said, the mother was candid about her alcohol use and quite clear about the father’s.  The parties not pretend in these proceedings that they did not drink or, for that matter that they have not drunk to excess.  Both parties suggested they have curbed their alcohol use and, again, it is for that reason – it is the view of the Court both parties should attend upon drug and alcohol counselling so that they can reflect upon their alcohol use and the detriments caused to themselves as individuals and upon their children as a result of it.

19. The Court is not on notice there is any family violence order that applies or has applied to the children or a member of the children’s family.  The Court makes orders today but in circumstances knowing full well whatever the Court orders, there will be further proceedings.  These are interim proceedings in circumstances where the mother has expressed a strong desire to remain living in Town A, close to her family.  The father expresses a strong desire that the children return to live with him so they can enjoy a meaning relationship in close proximity to him, where the children can also live with the mother.

20. The Court considers the effect of the children’s separation from the mother if she failed to relocate. It would be significant; it would be detrimental to the children, but the mother has been clear.  If the children are to relocate to Perth, she will relocate to Perth.  In those circumstances, the court cannot and should not just ignore the realities of the case, where upon either set of orders the children will not be separated from their mother.

21. The Court also needs to consider the possibility that the mother, may not despite her representations relocate and allow the children to go back to Western Australia without her.  In those circumstances, the Court considers the issues in relation to the mother’s attitude towards the relationship between the children and the father. Significant concerns where raised by the family consultant about this issue with respect to whether the mother is willing, on an ongoing basis, to facilitate and encourage an ongoing relationship with the father.  It is the view of the Court that it would be detrimental to leave the children in Town A having regard to the evidence of the family consultant as the distance between the children and the father would allow a diminishment of the relationship between the children and the father where the mother would not facilitate it.

22. It is the view of the Court if the children did relocate to live with their father, they would also miss their mother, but that the father would facilitate and encourage a meaningful relationship with the mother. The Court considers those matters set out at section 61D of the Family Law Act – the presumption in favour of equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who was, at the time, a member of the parents’ family or rebutted by reasons of family violence.

23. The Court does not find that the parents have abused the children or any other children who is a member of the parents’ family.  The Court has said it cannot make finding as to the family violence in the proceedings where both parties allege significant family violence; where both sets of allegations are denied; where, on the face of it, there have been disagreements.  The Court does not know whether the father perpetrated family violence; whether the mother perpetrated family violence; or whether there has been what might be described as “mutual partner family violence”.

24. When the Court is making an interim order, the presumption applies unless the Court considers it would not be appropriate, in the circumstances, for the presumption to be applied. It is the view of the Court that the presumption should apply. The Court does not consider it would not be appropriate. The Court considers the provisions of section 65DAA whether the children spending equal time with each of their parents is in the best interests of the children and otherwise reasonably practicable. The Court notes the father’s location in Perth. The Court considers circumstances where the children are relocated, having regard to the orders sought by the independent children’s lawyer that the children be returned to their former school in Western Australia and that be done so forthwith.

25. The Court notes the nature of the relationship between the parents, the history of their relationship; it is the view of the Court, given the difficulties between these parties, having regard to these children in the circumstances that they find themselves; having regard to those matters set out at section 60CC(2A) and (B), (3A) through to (M) is probably not in the best interests of these children right at this moment that they spend equal time with these parties because the effect of the separation on the children from the mother would probably be detrimental.

26. That is, the longstanding arrangement these children have lived in is one where they spent alternate weekends with the father and the balance of the time with the mother. The Court considers the previsions of section 65DAA(5) where the parties will live in Western Australia where they will likely be a distance apart that makes it difficult to facilitate an equal time arrangement where the children’s school will be located some 35, possibly 40 minutes away from where they would be living with the father if the children were living in a week-on/week-off about arrangement.

27. The Court considers the parents’ capacity being current and future capacity to facilitate an arrangement for the children spending equal time.  It is the view of the Court because of the father’s employment – and in circumstances where he does not seek equal time – it would be impracticable for there to be an arrangement of equal time. 

28. The Court considers the parties’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of equal time. The parties communicate poorly.  It is the view of the Court currently they do not have the current and future capacity to communicate sufficiently with one another and resolve difficulties that might arise in implementing an arrangement for equal time.  The Court has a view that the impact of an arrangement for equal time would probably be detrimental the children, noting the distance the parties live.

29. The Court considers whether substantial and significant time as defined by subparagraph (3) of section 65DAA would be in the children’s best interest. It is the view of the Court, having regard to those matters set out at section 60CC(2A) and (B), (3A) through to (M). The nature of the relationship between the children is strong with the father; that the effect of separation on the children from the mother would not be detrimental if they spent something akin to five nights a fortnight.

30. Overall, it would be in the best interests of these children if they spent substantial and significant time with their father. However, when one turns those matters set out at subparagraph (5) of section 65DAA, while the parents do not live so far apart from one another, the Court question’s the father’s capacity to implement an arrangement for the children spending substantial and significant time where there is not sufficient evidence before the Court and in circumstances where he does not offer evidence that would allow the Court to find that he could implement such an arrangement.

31. The Court considers that the parties would have the current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of substantial and significant time.  The Court does not consider that it would be detrimental to the children.  However, as I have said, the Court is not satisfied as to the father’s capacity to implement an arrangement and, for that reason, the Court finds at the moment that substantial and significant time would not be reasonably practical.

32. The Court does however consider that the father would and could based upon the limited evidence about his employment alter his work arrangements such that he would be able to manage looking after the children full time if the children were to return to Western Australia without the mother children.  The court further considers that the father would facilitate a relationship between the children and the mother.

33. Having considered the evidence of the parties, the evidence of the family consultant, the orders sought by the parties and independent children’s lawyer and having applied the provisions of Part VII of the Family Law Act the Court makes the following orders.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Myers

Date: 17 August 2018