GARDNER and BATTS
[2020] FCWA 221
•9 DECEMBER 2020
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: GARDNER and BATTS [2020] FCWA 221
CORAM: TYSON J
HEARD: 21, 22, 23 and 24 SEPTEMBER 2020
DELIVERED : 9 DECEMBER 2020
FILE NO/S: PTW 4543 of 2018
BETWEEN: MS GARDNER
Applicant
AND
MR BATTS
Respondent
Catchwords:
FAMILY LAW – Child-related proceedings – International relocation – Where the mother seeks to relocate with the children to Country A and for the children to spend time with the father by electronic means and in person each alternate year – Where the father seeks the children remain in Western Australia and spend gradually increasing time until shared care – Where the mother has fostered the children’s relationship with the father and paternal family – Where the mother is suffering from depression and anxiety – Where the evidence is the mother is on the edge of a mental health breakdown – Where requiring the mother to remain in Australia indefinitely will likely adversely impact on her parenting capacity – Where the children’s best interests are met by being permitted to relocate to Country A with the mother in 2021 – Case turns on its own facts
Legislation:
Family Court Act 1997 (WA)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Mrs Farmer |
| Respondent | : | Mrs Oakeley |
Solicitors:
| Applicant | : | Kim Wilson & Co |
| Respondent | : | Paterson & Dowding |
Case(s) referred to in decision(s):
AMS v AIF (1999) FLC 92-852
Babcock v Waddell [2019] FamCAFC 129
Baghti & Baghti and Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Bondelmonte v Bondelmonte (2016) 259 CLR 662
Godfrey & Sanders (2007) 208 FLR 287
M v M (1988) 166 CLR 69
Stott & Holgar [2017] FamCAFC 152
Zahawi & Rayne [2016] FamCAFC 90
TYSON J:
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gardner & Batts has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).
1 The mother [Ms Gardner] and the father [Mr Batts] were in a de facto relationship which ended in April 2018. They have three children, [Child A] who is five years of age and twins, [Child B and Child C] who are three and half years of age.
2 The parents are unable to agree on the arrangements that are in their sons’ best interests. Central to their dispute is where and with whom the children are to live. The mother wants the children to relocate to [Country A], where she was born and raised. The father wants the children to remain in Western Australia.
3 The children are delightful little boys, who are much loved by their parents and extended families. The mother and father are each devoted and caring parents. Each parent has been significantly involved in the children’s care. Each of them desperately wishes to continue to do so. The case presents a difficult dilemma. Regardless of the outcome, one parent is going to be deeply unhappy.
WHAT IS AGREED?
4 At the commencement of the trial, the parties agreed to a number of orders. I was satisfied the consent orders were in the best interests of the children and supported by the available evidence. They are set out in full at the conclusion of these Reasons.
5 The parents agree that:
•The children have a meaningful relationship with both parents and it is in their best interests to maintain those relationships.
•It is in the children’s interests to maintain a meaningful relationship with their extended maternal and paternal families.
•The children are not of an age, or maturity, to express a view that any weight could be attached to, in relation to their future living arrangements.
•Each parent is capable of providing for the children’s intellectual and physical needs.
•The children are not at risk of family violence, neglect, abuse or physical harm in either parent’s care.
•The children have Australian and [Country A] heritage.
•Each parent has taken the opportunity to spend time and communicate with the children
•Each parent has fulfilled their legal obligation to financially maintain the children.
•There are no family violence orders or family violence issues between the parents.
•It is preferable to make orders that are the least likely to lead to the institution of further proceedings.
WHAT IS NOT AGREED?
6 The parties conducted their cases with a focus on two key issues: the impact on the mother’s mental health and her capacity to parent should she remain in Australia, and the impact on the children’s relationship with the father should they relocate to Country A. The ultimate question for the Court is: what arrangements are in the children’s best interests?
7 With the assistance of the parents, the following issues were identified as significant matters requiring determination:
•What is the capacity of each parent to meet the children’s emotional needs?
•What is the likely effect on the children being separated from either parent or other significant people in their lives?
•What are the practical difficulties and expense of the children spending time and communicating with both parents?
•What attitude has each parent demonstrated towards the responsibilities of parenthood?
•What is the capacity of the parents to communicate? What impact have the parties’ communications had on the mother’s capacity to parent?
•To what extent has each parent promoted and encouraged the children’s relationship with the other parent?
•To what extent have both parents participated in making decisions about long-term issues concerning the children?
THE PROPOSALS OF THE PARTIES
8 The mother proposes to relocate with the children to Country A by 1 January 2021. She seeks an order for sole parental responsibility, on the basis she will give the father notice and consider his input before making a major long-term decision. She proposes the father spend time with the children as agreed, and failing agreement, by electronic means twice a week and on special occasions, and in Western Australia for not less than 21 days between July and August, once each alternate year commencing 2022, with the airfares to be shared equally. She proposes the father be able to spend time with the children in Country A commencing in 2021, at his cost, on terms.[1]
[1] Mother’s amended Minute of Proposed Orders Sought at trial.
9 The father proposes that the parents have equal shared parental responsibility. He seeks[2] the children continue to live with the mother and spend gradually increasing time with him, until the commencement of term two 2022, when they live in a shared care arrangement. He proposes the children spend time with each parent on special occasions and over the holiday periods, and each parent be able to travel with the children. He seeks an injunction restraining either parent from moving more than 20 kilometres from the other’s residential address.
WHAT WAS THE EVIDENCE RELIED UPON?
[2] Father’s Minute of Orders Sought at trial, Annexure A of his papers for the judge filed 2 September 2020.
10 The mother relied on her affidavits filed 15 April 2019, 6 May 2019 and 14 August 2020, together with her financial statement filed 14 August 2020. She also relied on the affidavits of [Ms Z] filed 15 April 2019, [the maternal grandfather] filed 21 June 2019 [the maternal grandmother] filed 25 July 2019 and [Ms X] filed 28 August 2020. The father relied on his affidavits filed 29 April 2019 and 14 August 2020, together with his financial statement filed 14 August 2020. He also relied on the affidavits of [Mrs B], [Mr B] and [Ms Y] each filed 26 April 2019, [the paternal great-grandmother] filed 8 May 2019, and [Ms W] filed 14 August 2020.
11 The paternal great-grandmother and Ms Y were not required for cross-examination. I accept their unchallenged evidence. However, I do not attach any weight to Ms Y’s evidence “as an educator”, given she is not an expert in the proceedings.
12 Each of the parties, the balance of their respective witnesses and the Single Expert Witness were cross-examined.
WHAT ARE MY OBSERVATIONS OF THE PARTIES AND THEIR WITNESSES?
13 I found the mother to be open, balanced and honest. She easily made concessions against self-interest, including in relation to various incidents since separation, to which I will refer in greater detail later. She accepted the challenges the children would face in maintaining a relationship with their father. While English is not the mother’s first language, she was articulate and readily able to give her evidence, without the assistance of an interpreter. She struck me as a devoted and committed mother, who genuinely considers her proposals to be in the children’s best interests.
14 The mother carefully considered her answers. She was an accurate and reliable historian. She was clear and consistent about matters which she recalled, while accepting matters she was unsure about.
15 The mother easily described the father’s positive attributes as a parent. She said he was musical, easy going, very practical and talented when it came to building or constructing things. She said and I accept he is a fun father, who treats the boys well. She was an impressive witness.
16 Ms Z is married to the mother’s half-brother [Mr V]. She is an [accountant] who lives in Country A. Ms Z has a close relationship with the mother and they communicate on an almost daily basis. She gave her evidence by video link, from Country A. I found her to be intelligent, articulate, and strongly supportive of the mother. Her evidence was not shaken in cross-examination.
17 The maternal grandmother and the maternal grandfather each gave evidence by video link from Country A, with the assistance of a court-appointed interpreter. The mother’s parents are separated and have each repartnered. Both are strongly supportive of the mother and her application for the children to relocate. They each impressed me as being honest witnesses.
18 Ms X is a clinical psychologist, who has been treating the mother for over two years. She gave her evidence in a professional manner, which I accept. Her evidence was not seriously challenged in cross-examination.
19 Dr [U] is the Single Expert Witness. His evidence was given in a thoughtful, professional and helpful manner, to which I will refer in more detail later.
20 The father was cross-examined at some length. The father’s evidence was given honestly, with a view to the outcome he sought. He impressed me as a deeply devoted father, who is distressed at the prospect of the children relocating to Country A. I accept he genuinely considers his proposals for the children to remain in Western Australia, as being in their best interests.
21 The father, to his credit, made some concessions against self-interest. For example, he agreed the mother was increasingly unhappy in Australia and longing to return to Country A. He accepted the mother’s family was important to her and following the birth of the children, she felt the absence from her family more significantly. While he does not agree with all of the mother’s decisions, he accepted she was a good mother and was capable of providing for the children. The father accepted some of his communications with the mother were unhelpful.
22 The father was less prepared than the mother to make concessions, where they ought to have been readily made. The father minimised and justified his conduct in terms of contributing to the conflict between the parties. He was unwilling to accept that some of his communications and conduct were selfish and demonstrated a lack of empathy for the mother. The father was unsure whether the [charity] page,[3] and the negative remarks made about the mother would be seen as critical of her. He did not accept the mother felt isolated. He refused to acknowledge the mother was struggling when the twins were born, and was unable to recall the mother receiving in-home help from [Support Service A] for two to three days each week, arranged through Ms X. The father focused on his own difficulties after surgery, and struggled to see how his limited ability to assist the mother, or her need to care for him and all three children impacted upon her, saying “we were both struggling”.
[3] Set up by his brother to raise money for the father.
23 When the father was confronted with examples of inappropriate messages, his general response was that he did not recall sending such messages. I was not convinced the father had no recollection, but instead I considered he was reluctant to admit to matters which reflected poorly on him.
24 I had some questions about the father’s evidence in terms of his previous cannabis use, despite issuing the father with a certificate.[4] I accept the father no longer uses cannabis. To the father’s credit, he accepted the mother’s concerns about his cannabis use after separation were reasonable.
[4] Pursuant to s 11 of the Evidence Act 1906 (WA).
25 My observations of the father were consistent with Dr U’s description of the father being used to doing things his own way, having some strong views and lacking emotional insight.
26 [Mrs B] is the paternal grandmother (“paternal grandmother”). To her credit, [she] is strongly supportive of the father and his application. She previously enjoyed a close relationship with the mother, which has unfortunately broken down since separation. Despite the deterioration in their relationship, the paternal grandmother has continued to provide support to the mother. The paternal grandmother is distrustful of the mother. She has accepted what the father has reported, which in my view, clouded some of her views about events since separation. However, I consider the paternal grandmother gave her evidence in an honest manner. She described the mother in positive terms and accepted the difficulties the mother experienced following the birth of the twins.
27 [Mr B] is the paternal grandfather (“paternal grandfather”). He is also strongly supportive of the father and his application. I consider he gave his evidence honestly and as he saw it.
28 Ms W is the father’s partner. She gave her evidence in a frank and candid manner. She is strongly supportive of the father. She was considered, measured and careful in her evidence. I consider she was an honest and impressive witness.
BRIEF BACKGROUND
29 The mother is 33 years old. She is a full-time homemaker and parent and currently lives in [Suburb A], in rental accommodation. The mother is reliant on government benefits. She receives Family Tax Benefits and Rental Assistance of $402 each week, single parenting payments, together with a number of supplements, of $679 each week. The father pays child support as assessed of $160.68 per week. The maternal grandmother provides some financial assistance.
30 The mother was born in Country A [in] 1987. She grew up in [City E], Country A, where she lived until she was around 22 years of age. The mother commenced her undergraduate studies in [nursing] in Country A, before she travelled to Australia.
31 The father is 41 years old. He is a self-employed [gardener]. His income is variable, and is presently $819 each week. He is in receipt of Jobseeker payments of $173 each week and his partner contributes to his household.
32 The father was born in Western Australia [in] 1979. He lives with his partner at [K Rd], [Suburb G], which he owns.
33 In 2010 the parties met in Country B. At that time, the father had been travelling for the past decade. They commenced a relationship and travelled together. In November 2010 the mother came to Australia to spend time with the father, before returning to Country A to complete her studies.
34 The parties remained in contact and spent time together. In 2011 the mother moved to [Country C] to complete an internship, where the father joined her. They lived together for six to seven months.
35 At the completion of the mother’s internship, they moved to Country A and lived with the mother’s family. The parties separated in August 2011, with the father returning to Australia. The mother visited the father in July 2012. In February 2013 the mother completed her studies. The parties reconciled and the mother then moved to Western Australia, to live with the father.
36 Less than two years later, [in] 2015, Child A was born. The maternal grandmother travelled to Perth and stayed for around four weeks, to assist with care of Child A.
37 In April 2015 Child A suffered a seizure, resulting in his hospitalisation and subsequent diagnosis. In July/August of that year the mother travelled to Country A with Child A, paid for by her family.
38 Between November 2015 and January 2016 the parties lived with the paternal grandparents. The maternal grandfather and his wife travelled to Australia to spend time with the family.
39 The mother formed a close relationship with the father’s grandparents and regularly visited them with the children. Around the time of separation, the mother told the paternal great-grandmother she was struggling. The paternal great-grandmother suggested she could access [support] services. The mother thought the paternal great-grandmother was being critical of her mental health. Unfortunately, the misunderstanding resulted in a breakdown in their relationship, to the distress of both the mother and the paternal great-grandmother. Prior to trial, the mother reached out to the paternal great-grandmother. Why the father considered it necessary, or relevant, to adduce evidence of the mother’s communications to his grandmother and her response, was not satisfactorily explained.
40 In April 2016 the mother returned to Country A for a holiday.
41 In November 2016 the parties’ purchased K Rd, Suburb G, which became the family home.
42 [In] 2017 Child B and Child C were born. The maternal grandmother came and stayed with the parents in May and June 2017 to assist. Shortly after the birth of the twins, the father underwent surgery. He had two operations, the first in June 2017 and the second in September 2017. After each operation, he was unable to walk for six to eight weeks. The parties’ relationship significantly deteriorated during this time. The father felt unsupported by the mother, who travelled to Country A in September 2017 to attend a wedding and spend time with her family. The father had a difficult time post-surgery; he reacted adversely to pain medication and antibiotics, he developed an infection and was readmitted into hospital. The father utilised cannabis to assist in his pain management.
43 The mother felt unsupported by the father. She was caring for three very young children, with limited practical support. The parties were in difficult financial circumstances, as the father was not working. The father’s cannabis use and his rehabilitation meant he was unable to provide much assistance to the mother to care for the children. The mother struggled to do so on her own, while also caring for the father. The paternal grandparents provided financial assistance and helped where possible.
44 In November 2017 the mother briefly moved into live with the paternal grandparents, following a separation with the father. The maternal grandfather and his wife travelled to visit that month, followed by Mr V and Ms Z who visited in December 2017.
45 In January 2018 the father commenced working as a [security officer].
46 In March 2018 the mother booked flights to Country A to visit her family in early July 2018, following discussions with the father. The maternal grandfather paid for the airfares. The mother was unable to fly alone with all of the children and made arrangements to travel with another woman from Country A, who she contacted online.
47 In March 2018 the parties argued and the mother left their home. She slept in her car for the night. The mother sent the father a long message, explaining she was struggling and she needed time. The mother said she was vulnerable and asked the father not to turn what she had shared against her.[5] The father asked her to come home. The mother said she needed time to think and could not function properly. The father replied, “Think about caring for me while you at it”.[6] The mother said she was unable to care for him and would be home later. He replied, “Best be joking… I had plans”.
[5] Exhibit 14, 16 March 2018.
[6] Exhibit 14, 17 March 2018.
48 The parties attended counselling, before separating under the one roof [in early] April 2018. The mother and children moved out [in late] April 2018.
49 Following separation, the father no longer agreed to the mother travelling to Country A with the children, which resulted in her bringing an urgent application. When the proceedings first came before the Court, interim orders were made restraining the children from leaving Australia. The parties then discussed and eventually agreed to orders to facilitate the mother travelling to Country A with the children.
50 The circumstances were plainly distressing. The father accused the mother of being mentally unwell and having booked flights behind his back. The mother told the father he would never see the children again and she would make his life hell. Both parties’ communications reflected poorly on them. I do not accept the mother booked the flights without the father’s knowledge. The communications established the father was informed and involved in the discussions, before the flights were booked.
51 There was an exchange of messages in May 2018, about the items the mother removed from the home. The father accused the mother of stripping the house without notice to him. That was untrue.
52 Final orders were made by consent in June 2018. The orders provided the children live with the mother, travel to Country A, and for the parents to have equal shared parental responsibility, with the father to return the children’s passports to the mother. The mother says she agreed to the orders in circumstances where she felt under pressure from the father and desperately wanted to return to Country A as planned, to have the physical and emotional support from her family.
53 The mother and children travelled to Country A [in] July 2018 and returned to Perth [in] September 2018. The parties agreed if the father travelled to [Continent A], he could spend time with the children. The father travelled to [Country D] for two weeks, while the mother and children were in Country A. He claimed the mother agreed to pay for his flight to Country A, while the mother said she would contribute to the cost. The father did not travel to Country A, because the mother could not afford to pay for his flights. The father paid reduced child support while the mother was overseas.
54 The children were away for eight weeks. On their return, Child A (who was then three and a half years old), had lost most of his English. The father sent an angry, inappropriate message to the mother. At the time, neither parent understood Child A had some learning difficulties, which likely impacted on his verbal skills.
55 On the mother’s return, she raised with the father her wish for the children to relocate to Country A, which he opposed. The mother then commenced proceedings on 30 October 2018 seeking permission to relocate. The father unsuccessfully sought the dismissal of the mother’s application. The proceedings were programmed to trial.
56 The parties resolved financial matters and orders were made by consent on 13 May 2019. The father retained K Rd, Suburb G and paid the mother $41,500, which he borrowed from his parents. The father has extended his borrowings to meet his legal costs and continues to owe a debt to his parents.
Extended Families
57 I have already referred to the paternal grandparents. The father has one brother [Mr T], who is married to [Ms S]. They have three children [P], [Q] and [R], who live in Perth. Child A and P are close in age and share a special relationship. The paternal grandparents live in [Suburb B]. They are semi-retired and operate a family business, in which Mr T is involved.
58 The father has a close and connected relationship with his extended family. They spend holidays together including camping and trips to [Location A], they celebrate special occasions, and regularly spend time together.
59 The paternal grandparents have provided significant assistance to the parents: they assisted the parties’ to purchase K Rd, Suburb G; they provided financial assistance when the father was not working; they have bought items for the family; provided a car; and contributed to Child A’s childcare, amongst other matters. The paternal grandmother has cared for Child A and P, to enable them to spend time together and to give the mother some respite. She has cared for the children on a regular basis, including to facilitate the mother’s attendance at medical appointments.
60 The mother has not repartnered. The father and Ms W commenced a relationship in December 2018 and commenced cohabitation in February 2020. Both the father and Ms W describe their relationship as serious and see a long-term future together. Ms W adores the children. She has taken time off work to care for them. She has sent photographs of the boys to the mother.
61 The mother’s parents separated when she was 16 years old. The mother has a brother, [Mr O], with whom she shares a close relationship. Mr O is not in contact with either of his parents. Following separation of the mother’s parents, the mother had some difficulties with her father. They now have a close relationship, as does the mother with her mother. The maternal grandfather is married to [Ms N]. The maternal grandfather has two sons from his first marriage, Mr V and [Mr L]. Mr V and Ms Z live in [City A], Country A. They are both close to the mother. The mother does not have a close relationship with Mr L. The maternal grandmother is married to [Mr K]. Mr K has a daughter [Ms J] from his previous marriage.
Single Expert Witness
62 Dr U was appointed the Single Expert Witness pursuant to orders made on 10 April 2019. He is a Clinical Psychologist and Forensic Psychologist with the National Registration Board of APHRA. He holds a Bachelor of Applied Science in Psychology, a Graduate Diploma of Psychology, a Masters of Applied Clinical Psychology and a Doctorate of Philosophy. He has worked in the area of clinical and forensic psychology since 1990. On pages two and three of his first report his qualifications and experience are set out at length.
63 Dr U has prepared two reports, dated 20 May 2019 and 1 September 2020.
64 In his first report, Dr U detailed the documents he had received, his meetings with each parent and the home visits he conducted. The salient parts of his first report were as follows:
•He found the mother to be a sensitive, intelligent and articulate person, with good insight. He found the father to be down-to-earth, with some alternative views. He described the father’s presentation as someone who had spent his life, “following the beat of his own drum”. The father was used to doing things on his own terms and held strong and sometimes “a little bit left-of-centre beliefs”. He found the father to be very practical, but lacking high levels of emotional insight.
•Dr U considered the dynamics which each parent described, as fitting their personality. The father was used to doing things his way. He was positive and outgoing, but not particularly emotionally connected. The mother had a normal range of emotions, wanting to deal with issues on an emotional and practical level, but struggled when the father failed to understand this. Dr U considered the mother’s responses were more normal, which meant the mother did not feel fulfilled, while the father felt the mother was moody and negative. The dynamics were further impacted by each parties’ cultural backgrounds. The mother’s Country A communication was more direct and less positive, which clashed with the father’s more easy-going style.
•Dr U described the post-separation period as difficult for both parents. The father voiced concerns about his capacity to afford to travel to Country A, which would be no more than once a year. He expressed concerns about communicating with the children, who would then speak Country A, and considered the mother would “not put in the energy for my happiness”.
•Despite the parties’ difficulties, he found the parents on a day-to-day basis were civil in their interactions. He opined that once the issues surrounding relocation were settled, the parents’ communication would improve, but observed the fundamental flaws in their personality dynamics would remain, noting:
Essentially, [the mother], as the younger, less experienced partner, was happy to defer to [the father], but now that the children are here, she wants the ability to be able to do it her way, and this creates quite significant dynamics between them.[7]
•He described the children as “quite delightful little bundles of energy”. Child A was then four years of age. His language development was found to be poor, and in need of speech therapy. He recommended an educational assessment and questioned whether Child A had some learning difficulties. Dr U voiced no concerns about the twins’ general development. The children were each fluent in [Language A] and English.
•He found the children had been largely protected from the dispute between their parents; they enjoyed time with their father and were secure with their mother. Each parent was attentive to the children’s needs. He found the mother was their primary attachment, and the father was a secure attachment.
•He described the mother as highly competent, able to read the children’s emotional needs, with good insight into her own life. The mother was struggling with mild depression and anxiety, but not to a level that impacted on her day-to-day care of the children. He found the father to be a capable parent, but not as insightful as the mother. He described the children enjoying a lovely relationship with both parents. While the mother was the primary parent, there was no reason the father could not have primary or frequent care. Given the children’s ages and the differences in parenting styles, Dr U considered it was better for there to be a primary and secondary parent.
[7] Paragraph 43.
65 In response to the question as to the likely impact on the children if they were relocated to Country A, Dr U wrote:
58.Essentially, the consequences of a relocation in this case are quite knowable and predictable. Essentially, the mother lacks support, all of her family is in [Country A]. A return to [Country A] will enable the mother to function to a higher level. Currently, she has mild depression and anxiety, which is likely to make her life miserable, but not necessarily interfere with her parenting capacity. In [Country A], I suspect that she will go back to normal functioning and will be more happy and vibrant. She will also be in a better position to provide for the children. Moving to Country A will increase the children’s relationship with their Country A family, and the mother will be happier and better able to meet their needs.
59.The cost of the relocation is that the father enjoys a very strong and comfortable relationship with the children. If they relocate to Country A, there are both cross-cultural and cross-country difficulties. By this, I mean it’s a long way to go and very expensive as well as very different in how things are done. [The father] recognises he would be lucky to afford one trip a year and, because of time differences and so on, communicating is also fairly restricted. Therefore, [The father’s] relationship would very quickly deteriorate and his relationship with the children would be quite poor.
60.Because the children will be speaking Language A, their English will quickly wane and, unless he is having significant time with the children, their language will increasingly make it difficult for him to communicate with them.
66 He predicted if the children were not permitted to relocate, there would be an escalation in the mother’s levels of depression. Dr U opined if relocation was ordered, there may be benefits in a delay, such as three years, to allow the children to better develop their English, to improve their capacity to remember their father (which would assist in maintaining their relationship) and facilitate ongoing contact. He noted a delayed relocation would be hard on the father, but also impact on the mother, who required practical support to meet the demands of three young children.
67 In his second report, Dr U observed each parent had experienced a marked deterioration in their mental health functioning, to which I will return to.
68 Dr U was impressed with the twins overall development. He repeated his concerns for Child A’s development and cognitive functioning, but described the children as thriving, and transitioning without major difficulty between their parents. He found the children to have a strong and secure attachment with each parent, as well as Ms W, whom he considered was a positive attribute in the father’s household.
69 He proposed the parties consider using Our Family Wizard, to assist in their communications. He noted the father had a paranoid distrust of the mother, and the mother had very poor self-esteem making her vulnerable to a sense of manipulation. He predicted some of these issues would settle after a trial.
70 In Country A, Dr U accepted the children would have the benefit of a happier mother, who would be more stable, which would provide many positive benefits for the children. A life in Country A would provide a different lifestyle to that which the children enjoy in Australia. That would be at a cost of enjoying the current relationship the children have with their father.
71 In his oral evidence, Dr U acknowledged that regardless of the outcome, either parent was likely to experience a deterioration in their mental health. If relocation were declined, he predicted the mother would suffer increased levels of anxiety and depression. While an end to the litigation would be a positive factor, the mother would continue to struggle with serious mental health issues, a lack of family support and a sense of isolation. He did not anticipate that she would return to full functioning, which would negatively impact on the children, because her capacity to parent would be severely compromised. On a practical level, the mother would struggle to manage the children; she would be less responsive to them, and be unable to assist them to regulate their own emotions and provide for their emotional needs.
72 If the relocation were permitted, he predicted the mother would return to a full level of functioning, but the father would likely spiral into a formal depression.
73 If the relocation were permitted, but delayed, he expected the fact a decision had been made would assist the mother to manage, but she would still require significant assistance. He considered the father would be disappointed, but relieved to have additional time with the children, which would likely override the impact of his mental health. He accepted the father would find it tough, but it would not impact on his capacity to parent.
Mother’s mental health
74 The mother has struggled since the birth of the twins. Her health has been compounded by the conflict with the father, separation and these proceedings. However, the mother’s mental health difficulties pre-date separation. In early 2018 the mother’s GP referred her to Ms X, for assessment and treatment for symptoms of anxiety and depression.
75 Ms X first saw the mother in [early] 2018. She described the mother as tense, anxious and teary, experiencing severe distress due to her relationship difficulties and the demands for caring for her then three year old and 10 month old twins. The mother reported feeling overwhelmed since the birth of the twins and unsupported by the father. She described the father’s denigrating and demeaning comments compounding her sense of guilt and failure. Ms X found the mother’s presentation as consistent with her diagnosis of postnatal anxiety and depression.
76 Ms X referred the mother to [a support service], which provided her with in-home support. The mother was identified as vulnerable, experiencing reduced coping capability, and feeling isolated from family support.
77 Ms X has provided cognitive behavioral therapy for the mother’s anxiety and depression. The mother has engaged openly and positively in treatment, but she has continued to struggle. Ms X noted the mother’s report of receipt of derogatory and demeaning messages from the father, her discovering the charity page, to which I will refer to later, and the fact the mother was unable to return to Country A this year, as planned, had significantly increased her levels of distress. The mother was now severely distressed and overwhelmed, with a significant reduction in her coping, resulting in her being prescribed anti-depressant medication.
78 The mother has regularly attended on Ms X. She has had 28 appointments between February 2018 and September 2020, pursuant to a Mental Health Treatment Plan. Ms X considered the mother would benefit from more frequent appointments, but acknowledged the mother’s advice that she could not afford to do so.
79 If the mother was not successful in her application to relocate, Ms X expressed concerns the mother would likely experience an escalation in anxiety and depression, which would adversely impact on her daily functioning. In her view, the mother would struggle, and her need for support would be significant. In circumstances where the mother is the primary carer, that would impact on her capacity to parent and the emotional development of the children.
80 In May 2019 Dr U reported the mother displayed mild levels of stress, with some symptoms of anxiety and fearfulness. He described the mother as “not in a happy place” and exhibiting mild to moderate symptoms of depression.
81 By September 2020, Dr U found the mother’s depression had escalated from mild to severe, and her anxiety had increased from average to moderate. He considered the mother was experiencing serious struggles in coping, increased levels of mood swings and a decreasing sense of identity. Dr U deposed the mother was on the edge of a mental health breakdown and her levels of depression and anxiety were impacting on her day-to-day functioning.
82 The mother’s family have attempted to support the mother as best they can. The mother has contact with the maternal grandfather on a daily basis by text message, and regular skype contact with both he and Ms N. The mother has frequent contact with the maternal grandmother, including FaceTime, Skype and telephone contact, up to multiple times a day. She also speaks regularly with Ms Z and Mr V.
83 Both of the mother’s parents and Ms Z have expressed concerns about the mother’s well-being in Perth, and lack of support.
Father’s time with the children since separation
84 The father has spent time with the children as agreed, or as ordered by the Court. Initially, the children spent one afternoon during the week and one night over the weekend with the father, commencing in April 2018.
85 In November 2018 the children went to [Location B] with the father for four days. Child A also went to Location A with the father for a couple of nights. The children spent four nights with the father in each of the April and July 2019 school holidays, and three nights in the October 2019 school holidays.
86 Since October 2019 the children have spent regular time with the father on alternate weekend from Friday afternoon until 6:30pm Sunday, each intervening week from Thursday afternoon until 6:30pm and each Tuesday from 3:30pm until 6:30pm.
87 There have been disagreements about these arrangements. Some disputes arose because the parties’ took different views as to whether the usual arrangements were suspended during school holidays. Some disputes related to timing. In the September/October 2019 school holidays, the father asked and the mother agreed for the children to spend the first week in his care. The father then wanted the second week and was then critical of the mother, accusing her of being difficult, when she said she had made plans. The father denied that he had ever asked for the first week. That was untrue. From June 2019 the mother had agreed to the father’s request for the first week. On 14 September 2019 the father then asked to have the children for the second week, for the first time and contrary to his previous requests.
88 The father’s counsel submitted that irrespective of those squabbles, the children have been able to spend time with the father, and his extended family. I agree.
89 To the father’s credit, he has cared for the children when the mother has been unwell, or when one or other of the children have been sick. He cared for the children when the mother travelled to [City B] in Australia. The father has agreed on occasions to vary arrangements, to facilitate the mother’s travel with the children. He has offered the mother the opportunity to spend time with the boys on Mother’s Day. To the mother’s credit, she offered for the children to spend time with the father on Father’s Day this year.
Father’s criticisms of the mother
90 Since separation, the father has been highly critical of the mother and her parenting. He accused her of being selfish for speaking Country A language to Child A, that she was not helping him with his English and wrote “My family and I are the only positive influence for the poor little guy”.[8] The father acknowledged the speech therapist did not share his view, and considered it was of benefit for Child A to be bilingual.
[8] Exhibit 16, 25 September 2018.
91 The father has told the mother, “you don’t know what the kids need”, to “start doing what’s best for the boys” and “put the kids before yourself”. He said she did not, “care about the kids health because you give them milk when they are 2 ½ years old”. More recently, he has accused her of making “everything difficult”, and said “you just can’t coparent [sic] and put your boys first…all you can do is bitch and moan…You will just always put yourself first”.[9]
[9] Exhibit 18, December 2019.
92 The father denied accusing the mother of having mental health problems. His denial was contradicted by his own communications. In October 2018 the father wrote to the mother “your [sic] not mentally equipped to handle the children on your own”.[10]
[10] Exhibit 16.
93 In November 2018 the father wrote “also can you please test yourself for bipolar? Seriously. Your actions aren’t normal and hurt everyone around you so please do it”. The mother replied, “You don’t really think that? I have no idea why you say that! It hurts me”. The father responded:
I’m not the only one that thinks that, I’m very serious yes. It can’t be normal that you can treat me so bad after have have done [sic] nothing too [sic] you to deserve any of it. You are horrible [Ms Gardner] and destroy me anyway you can. Again there is sooo much proof of this. I think you have a mental issue and need help. If you had medication or help you would destroy everything you have and look at the world in a brighter way. If you didn’t treat me so horribly we could actually be amicable. But you just choose to screw me at ever [sic] angle and make my life hard. Think about the children and how much better it would be for them. You need to lose this selfish streak at least a bit. I know it’s in your nature but you could at least improve it.
94 The mother asked who else thought she had bipolar and said his comments hurt. He replied “Truth hurts, you hurt me all the time [Ms Gardner], and you don’t care. You actually enjoy it and it’s not right. I’m not trying to hurt you I’m letting you know to help you”.[11] In his oral evidence, the father explained his parents had discussed the mother possibly having bipolar, which the paternal grandmother denied. In circumstances where the father knew the mother was struggling, his communications reflected poorly on him.
[11] Exhibit 17.
95 In October 2019 the mother told the father the boys were not calming down and asked for his help. The father did not respond until the following day, when he wrote “Well you’re a single mum, your choice”.
96 The mother began toilet training the twins in August 2019. She explained to the father what she was doing, and asked him to assist. In April 2020 the twins were still struggling. The father blamed the mother, and suggested it was her fault. I am not satisfied it was either parent’s fault. Instead, it appeared poor communication and lack of consistency between each parents’ home impacted on the twins.
97 In June 2019 Child C fell over, hit his head and the mother took him to hospital. She immediately informed the father, who became angry and blamed the mother for Child C’s injury. The mother asked the paternal grandparents to collect Child B and Child A from the hospital. When they arrived, the mother was crying and distressed at the father’s comments. They argued, resulting in the paternal grandparents leaving without the boys.
98 This year, the mother contacted the father, asking whether he had done Child A’s night time [test],[12] because it was not recorded. The father said he did not know it was required, despite the mother having told him. The father then messaged the mother saying:
If you weren’t so horrible and ignored me in hand over this probably wouldn’t be a issue. You make so many issues and slam me for everything it’s hard to co parent. You make it hard and that’s why I didn’t know. Yes you can send messages but doesn’t mean I get them. I miss them because I’m just used to you negativity and my focus on them are low at times. As I said I just didn’t know... again because the way you behave [Child A] gets affected.[13]
[12] To monitor his condition.
[13] Exhibit 19.
99 The father’s response was indicative of a blaming, accusational attitude towards the mother.
100 More recently, in June 2020 the father told the mother the children no longer had manners, since spending time with her. In July 2020 he said to the mother she was “giving away the chance to give [Child A] the best start in life”.
101 I am not satisfied the father’s criticisms of the mother were fairly made or warranted. The evidence suggests the mother is a competent, capable and caring parent. I accept the mother found the father’s criticisms hurtful and undermining. They have compounded and contributed to her feelings of isolation, loneliness and lack of support.
The mother’s travel with the children post-separation
102 Following the mother’s trip to Country A in 2018, the children have travelled with their mother to [Country E] in June 2019 and to Country A from August until September 2019. The mother says she and the children enjoyed their time in Country A. She had the opportunity to reconnect with family and friends. The mother said it was positive to be able to share her culture with the children, and to have the assistance of her mother. She felt happier, lighter and considered her sense of increased belonging and support, benefited her parenting and the children’s relationship with her.
103 On her return, the mother says she felt “forced giving up the life I want to live all over again. I feel forced to live in Australia and I feel stuck and imprisoned”.
104 The parties agreed for the mother to travel to Country E with the children in January 2020. On arriving at the airport, the mother discovered Child A was unable to travel because his passport was due to expire. The mother permitted Child C and Child B to travel with her au pair, and [Ms H] and [Mr H] and their children. The mother remained in Australia with Child A until his passport was renewed. She and Child A then joined the twins, three days later. The father was angry, distressed, and upset by the mother’s decision to allow the two children to travel without her. His reaction was reasonable and understandable. The mother admitted she had not handled the matter well and would do it differently in the future.
105 The parties agreed for the mother and children to travel to Country A from 25 March until 8 May 2020. Following COVID-19, the father withdrew his consent and the mother agreed not to travel.
Child A’s Health
106 As an infant, Child A was prescribed medication but continued to experience poor health, requiring multiple medical appointments. In December 2015 Child A was hospitalised, when it was discovered his medication dosage was incorrect. Child A now has appointments twice a year, and his condition is well-managed by both parents. Child A takes medication three times a day and has a [specific] test every two – three days to manage his [condition]. He also requires [a special] diet.
107 Child A has also been diagnosed with [another condition]. In February 2020 he underwent surgery. Child A experienced difficulties which has required weekly appointments and further surgery in July 2020.
108In April 2019 Child A was taken to hospital by ambulance, with breathing difficulties. The mother rang the father, his partner, a neighbour, and her friend Ms G, to try and find someone to care for the twins. The mother’s neighbour cared for the twins, until the father was able to do so.
109On 25 May 2020 Child A had an appointment … for a [medical] test. The mother invited the father to attend and he declined. She explained she was struggling to pay the costs of fuel, antibiotics, parking and babysitting for the twins. The father said it was the mother’s choice to have someone care for the twins, so he would not contribute towards the babysitter’s costs. [In] June 2020 at Child A’s further hospital appointment, the father again did not attend and refused to contribute to the costs of a babysitter.
110The mother has attended all of Child A’s medical appointments. She has kept the father informed and invited him to attend, but he has not always done so, due to his work commitments. The mother says it is difficult to attend appointments on her own, with all three children. With COVID-19 restrictions, she was not permitted to bring the twins to appointments. When possible, she has arranged babysitters to care for the twins, so she can focus on Child A and the doctors. On occasions, the paternal grandmother has cared for the children, when the father has attended appointments or otherwise to assist the mother.
111 Child A has attended occupational therapy and speech therapy. He has demonstrated some delays in his general development, and difficulties with his fine motor skills and dexterity. At the father’s request, the mother changed Child A’s speech therapy appointments, so he could attend. The father then attended only two appointments, despite being notified of the amended additional appointments, made to accommodate his attendance.
Child B and Child C’s health
112 Both twins suffered from “breath holding episodes”, where they held their breath until they turned blue and lost consciousness. The father suffered from the same condition as a child. Child C had his first episode in around February 2018, and a few weeks later Child B began experiencing similar episodes. The children experienced these episodes on a regular basis, around every six weeks, which were stressful for both parents. Both boys fortunately now appear to have outgrown the condition.
113 In May 2020 Child B became unwell and was taken to hospital by ambulance with the mother. The mother immediately notified the father. The father was upset and crying. The mother kept speaking to the father on the telephone, while trying to manage Child B. Child C and Child A remained at the mother’s home, being cared for by her au pair.
114 The mother and Child B remained in hospital. The father said he could not immediately care for Child C and Child A, because he had been drinking. Ms G cared for the children, until the father could do so. When the father spoke to Child B (who was crying and in pain), the father asked Child B if he missed him and loved him.
Charity page
115 [In mid] 2020 the mother discovered the father’s brother had created a charity page. The page contained photographs of the father and the children, and had been shared by the father. The page read:
I am [the father’s] brother and I have watched him … fight to keep his Australian children in Australia. [The father] is a loving and committed father to his [sons]. His ex-partner is seeking to relocate overseas and intends to allow him visitation rights once a year. [He] has been in and out of the family court fighting to keep them in a Australia. He faces a 3-4 day trial [late 2020]. He has already borrowed over $50,000 and needs another $50,000 to keep fighting. This situation has put him in significant financial stress, let alone the emotional toll of possibly being permanently separated from his boys. [The father] needs our help with covering the legal costs so he can focus on his kids in this stressful time. Please help in anyway that you can. Thank you so much.
116 The father wrote on [social media] that he needed support to “fight for my boys”.
117 The mother says she felt humiliated, upset and overwhelmed when she saw the page and arranged an urgent appointment with her psychologist.
118 The mother was subsequently approached by a stranger, who asked if she knew about the charity page. The mother cried and left. Following a request by the mother’s solicitors, the page was removed.
Conflict
119 Since separation there have been a number of disputes between the parents, some of which I have already touched on.
120 The children were due to spend time with the father on the last weekend of February 2020. Child A had recently undergone surgery. The mother arranged for the twins to go to the father and said she would deliver Child A on Saturday, because he was unwell and wanted to stay with her. When the mother delivered Child A she gave the father his medication and explained the dosage. The twins were in their bedroom, crying. According to the mother, the twins heard her voice and called out for her. According to the father, the mother began speaking in a raised voice and calling out to the twins. The mother asked to see the twins. The father refused and they argued. The mother walked away. The father and Ms W came out the front with the twins. The mother then was able to speak to them for five minutes, and then left.
121 The parties agreed for the children to spend time with the father on his 40th birthday party. The mother understood the father would arrange for the children to be returned to her. The father thought the mother would collect them. This resulted in the mother arriving to collect the children, when the father had put them to bed. I accept the mother called the father an arsehole in Child A’s presence, despite her denials.
122 The mother’s relationship with the paternal grandparents has broken down. Despite their differences, the paternal grandmother has continued to assist the mother to care for the children, to her great credit. Their relationship is strained and has been marked with a number of tense exchanges. Her affidavit was critical of the mother, describing her as unpredictable and complex. The paternal grandmother acknowledged the mother has said she has felt bullied and intimidated by the father and her.
School
123 Child A commenced kindergarten at Suburb P Primary School. The parties disagreed about where he should go to pre-primary in 2020. The father wanted Child A to attend Suburb G Primary School, which is closer to his home. The mother wanted Child A to attend [Suburb C] Primary School, which was closer to her home. Each parent considered the school they preferred, as better able to accommodate Child A’s needs.
124 To the parties’ credit, they attended both schools together and met with staff. They were unable to agree and the mother enrolled Child A into Suburb C Primary School. While that was not the father’s preference, he accepts Child A is settled, happy and doing well. He is on an individual education plan to assist his literacy and numeracy.
125 The twins are due to commence kindergarten next year. It is now agreed they will also attend Suburb C Primary School.
Father’s work
126 The father worked as a [security officer] until July 2019, when he became self-employed. He changed his work commitments, in order to be more available to spend time with the children. The father has not attended all of the children’s medical appointments, nor has he always been available to assist the mother when she has sought his help, due to his work commitments.
Father’s mental health
127 The proceedings and the prospect of the children relocating has, understandably, impacted on the father. Dr U’s first report recorded the father’s advice he was suffering panic attacks at the thought of the children leaving Australia. By the second report, Dr U considered the father’s anxiety levels had escalated from the mild to moderate range, and an increase in the paranoid persecution scale, indicating increased feelings of victimisation. He recommended the father consider medication for anxiety, noting the father was opposed to that course. Dr U considered the father’s mental health was fluctuating between the mild to moderate range, where it was beginning to interfere with his functioning.
128 The father has recently commenced counselling.
129 The father’s parents and Ms W have articulated concerns about the father’s well-being if the children are permitted to relocate. The father was teary and distressed while giving evidence. I accept his presentation was genuine.
Language
130 If the children are permitted to relocate, their ability to maintain a relationship with the father will depend on their English, because the father does not speak Language A. The mother presently speaks Language A to the children at her home.
131 Dr U described each child speaking fluent English and Language A. He explained the more exposure the children had to English and the more English they used, the greater the prospect they would retain their English, even if living in Country A. Potentially Child A may have more difficulties, however given his age and grasp of English, he was in a stronger position than the twins. Dr U opined “in a perfect world maybe another year their language would be stronger to have – to hold”. Dr U described the development of the children’s language between his two assessments as “phenomenal”, and noted the twins were chatty, talkative boys.
132 The mother says she will continue to support the children’s English. She intends for the children to participate in English classes and to enrol the twins into an English playgroup. She will speak English to the children and proposes they watch English speaking television together. The mother said when she came to Australia, her English was so poor that she struggled to order a hamburger. She does not want that for the boys, in circumstances where they are now bilingual. She wants to ensure they retain English, which is an important aspect to maintaining their relationship with the father. I am confident she will do so, having heard her evidence.
Mother’s desire to return to Country A
133 There is no question that the mother’s desire to return to Country A and to have the support of her family is bona fide. The father accepted the mother was increasingly unhappy and missing her family throughout their relationship, which was growing prior to separation. He acknowledged the mother’s family was important to her, and following the birth of the children, she experienced more acutely the absence of her family’s support.
134 Following the mother moving to Perth in 2013, she has travelled back to Country A as often as she could. Members of the maternal family have also visited, particularly following the birth of the children, to provide her with assistance.
135 The mother identifies as [Nationality A] and says she feels she does not belong in Australia, which has a different culture and way of living. While she has tried to moderate her ‘way of being’ to fit in, she struggles to do so, which adds to her feelings of isolation.
136 The mother has had the support of a number of Nationality A au pairs since separation who have lived in her home and assisted with the care of the children. The mother formed a close friendship with the most recent au pair, [Ms G], who left in July 2020. Since her departure, the mother’s feelings of loneliness and isolation have increased.
137 I accept the father does not wish to relocate to Country A. His life, his family, his home and his partner are all in Western Australia. His reasons for wanting to remain are understandable and bona fide.
THE LAW
138 A parenting case involving relocation, is simply another parenting case.[14] There are no special tests that apply. There is no presumption against an order being made which permits relocation, nor is there a presumption in favour of a parent with whom the children predominantly lives at the time of, or prior to the application. The parent wishing to move, the mother, does not need to establish a compelling reason for wishing to relocate.[15]
[14] Zahawi & Rayne [2016] FamCAFC 90 at [48].
[15] AMS v AIF (1999) FLC 92-852.
139 The inquiry is not directed as to whether or not the mother should be ‘permitted’ to relocate.[16] The Court should not lightly interfere with the right of freedom of movement, save and except where it is contrary to the best interests of the children.
[16] Babcock v Waddell [2019] FamCAFC 129 at [141]-[142] per Aldridge citing AMS v AIF (supra) per Kirby J at 276, [188] and Hayne J at 281 [217]-[218].
140 In determining what parenting orders are to be made, the children’s best interests are the paramount, but not the only, consideration.[17] The welfare of the parents is to be considered and balanced with the best interests of the children; that exercise necessarily includes an examination of the likely benefits to the parent of the proposed move and the likely detriments of an inability to move. Where the legitimate interests of a parent conflict with the best interests of the children, the former must give way.[18]
[17] AMS v AIF (supra) at 277 [193].
[18] AMS v AIF (supra) at 267 [144].
141 The Court is not required to make findings of fact on every factual dispute raised by the parties.[19] The paramount issue is for the Court to determine what order in in the best interests of the children in the circumstances of the case. In that process, the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion” on every factual dispute.[20]
[19] Baghti & Baghti and Ors [2015] FamCAFC 71 at [63].
[20] M v M (1988) 166 CLR 69 at 76.
142 The making of a parenting order involves the exercise of judicial discretion, and the assessment of the considerations set out in the legislation by reference to the circumstances of the case. It involves value judgements in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the children.[21]
[21] Bondelmonte v Bondelmonte (2016) 259 CLR 662.
143 The parents were not married and accordingly, the proceedings are determined pursuant to the Family Court Act 1997 (WA). Part 5 sets out the objects, principles and matters which must be considered when determining what parenting order is proper. The Court is not bound by the proposals of the parties, subject to the requirements of procedural fairness and the parties being given notice of the possibility of an order being made, unless the making of such an order is obviously open on the known material.[22]
[22] Stott & Holgar [2017] FamCAFC 152 at [26].
144 Section 70A provides a presumption that it is in the best interests of children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent or other relevant adult has engaged in abuse of the children, or family violence. Even if the statutory presumption applies, it may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for their parents to have equal shared parental responsibility.
145 If an order for equal shared parental responsibility is to be made, the Court is required to consider whether the children spending equal time with each parent is in their best interests, and whether such an arrangement would be reasonably practicable. If so, the Court is required to consider making such an order.
146 Against the background of an order for equal shared parental responsibility being made, if the Court does not make an order for the children to spend equal time with each parent, the Court is required to consider whether spending substantial and significant time (as that term is defined in the Act) with each parent would be in their best interests and reasonably practicable. If so, the Court is required to consider making such an order.
147 In determining whether it is reasonably practicable for the children to spend equal time, or substantial and significant time, with each parent, s 89AA(5) of the Act requires the Court to have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
148 In determining what parenting orders will be in the best interests of the child, the Court is required to consider the matters set out in s 66C of the Act. Although I may not specifically discuss in these Reasons each subparagraph of each relevant section, I have considered all of the sections as required, when making my determination.[23]
[23] Banks & Banks (2015) FLC 93-637.
WHAT ARE THE MOTHER’S PROPOSALS?
149 The mother seeks to relocate to Country A with the children. She proposes to initially live with her mother in City E, who resides in a three-storey home, with a garden, on a street which limits traffic speed, to accommodate children. The mother and children would be able to occupy the basement, which is a large floor, containing its own bedroom, bathroom, laundry and living room. There are also two bedrooms on the upper levels which are free, if the mother wished to use them. The maternal grandmother lives her with her husband, who works on a full-time basis, while the maternal grandmother works part-time.
150 The maternal grandmother is strongly supportive of the mother. She will provide the mother and children with physical and practical assistance. She is willing to provide financial assistance. The maternal grandmother intends to reduce her work to 20 hours a week upon the mother’s arrival in Country A. She will assist the mother to obtain work.
151 The paternal grandfather is retired. He and his wife live in a neighbouring village of City E. He is willing to assist the mother in the care of the children, including taking them to and from school/kindergarten and activities. He lives in a four-bedroom home and has offered for the mother to stay with him, if she wishes.
152 Mr V and Ms Z live in City A, which is around an hour away from City E, Country A. Ms Z is currently working reduced hours and works from home, following the birth of their son, [M]. Mr V also has some flexibility in his employment. They have offered to assist in the care of the children and to help the mother in any way they can.
153 The mother intends to obtain accommodation close to her mother, when she is on her feet. She will immediately apply for [Government Assistance], the Country A equivalent of Centrelink assistance. In Country A, the mother will be eligible for health insurance, free education, a subsidised apartment, (subject to any waiting list) and government funding until each child attains 18 years, which is not income assessed. The free medical services will entitle Child A to speech therapy and other interventions. Country A also funds activities including swimming, and various sports for children.
154 The mother is a qualified [nurse] in Country A. She intends to look for work at schools, private organisations, prisons or hospitals. Her mother’s employer hires [nurses], which may be an option. The mother’s qualifications are not recognised in Australia and to obtain recognition, would cost around $2,000.
155 When the mother commences work in Country A, she will be required to meet monthly fees for access to the health system. She is confident that with the support of her family, the various benefits she and the children will be entitled to, together with her income, that she can afford to travel with the children to Australia each alternate year.
156 Children commence school in Country A when they are six years old. The first four years of schooling involves half days, while kindergarten is either full or half days. The local school and three kindergartens are all within walking distance from the maternal grandmother’s home. English is mandatory at school.
157 The mother will have significant emotional, financial and practical assistance in Country A, which she does not enjoy in Australia. The mother’s parents are each able to provide physical assistance, as indicated.
158 The mother has limited support in Perth and her mental health has deteriorated since separation, but markedly so in the past 12 months. The mother needs the support of her family, and their extended support network, which will assist in managing her mental health, to ensure that she is the best parent she can be. While she has friends in Perth, together with au pairs, their support is not the same as that of her family. The mother no longer enjoys the same relationship and support from the extended paternal family. The mother’s case is that her relationship with the father was characterised by her feeling a lack of support, which has only increased since separation, where the father has continued to be critical of her. The conflict between the parties has contributed to her feelings of isolation and loneliness.
159 The mother says she will support and promote the children’s relationship with the father, as she has done to date. Her proposals will permit the children to maintain a meaningful relationship with the father and extended paternal family. The mother says she will continue to support the children to speak English and will ensure they remain bilingual.
WHAT ARE THE FATHER’S PROPOSALS?
160The father seeks the children remain in Western Australia and be able to spend regular and frequent time in each parents’ care. They will continue to enjoy time with his extended family. He proposes a gradual increase whereby the children will spend alternate weeks with each parent by the time the twins are five years old. He proposes the parents remain living close to one another, to facilitate shared care. The father says he can combine caring for the children with his work (where he has flexibility) plus the support of his family and partner. His home is familiar and well set up to accommodate the children; it provides ongoing opportunities to engage in outdoor activities, including at the nearby beach.
161 The father says he and his family will continue to assist the mother where possible. The mother could have her [nursing] qualifications recognised in Australia, which she intended to do before the twins were born, that would enable her to work. As the children get older and on his proposals, the mother will be able to work and have more opportunities to do so, when the children are in his care.
162 On his case, the mother can travel to Country A in either the short school holidays, or for up to five weeks in the summer school holidays. Her family can continue to spend time and communicate with the children as they have done to date. He is agreeable to suspending the children’s time with him for up to two weeks, if the extended maternal family travel to Australia.
To what extent have each parent promoted and encouraged the children’s relationship with the other parent?
163 I am satisfied the mother has promoted and encouraged the children’s relationship with the father. She readily acknowledged the children loved their father, they enjoyed spending time with him and the positive attributes he offered to them. My findings are consistent with the mother’s statements to Ms X, Dr U, and her evidence. While the father complained about the mother’s failure to have Child A contact him on Father’s Day 2018 when they were in Country A, and the Father’s Day card this year prepared by Child C (which says his father is named [another name] and is six years old), the mother accepted she could have managed those matters better.
164 My findings are supported by the observations of Dr U together with the chronology of the mother’s conduct since separation. The father considers the mother has not promoted the children’s relationship with him, because she has not agreed with his requests to spend increased time with the children. I accept the mother’s proposals have been based on the children’s ages, their needs, and her view as to the arrangements that were in their best interests. I do not consider she was overly protective or unreasonable in that regard. The mother has supported the children’s relationship with the father, while balancing their needs.
165 I accept the father has largely supported the children’s relationship with the mother. However, there have been occasions when he has been upset or angry with the mother, which has resulted in him not making decisions in the children’s best interests. For example, in January 2020 the parties agreed for Child A to go to Location A with the father. The parties agreed the father would collect Child A at 9am. The father then asked to collect Child A earlier. The mother did not agree, explaining Child A slept longer and it was hard to get moving in the holidays. That led to an argument. The father arrived at 8:30am. The mother did not hear him knocking until around 8:40am when Child A answered the door. Child A left with his father shortly afterwards.
166 The mother asked the father if she could speak to Child A while he was away. She also asked the father for information about Child A’s [test] levels. The father ignored her requests, over two days. He told her she had been horrible and he felt bullied. The father said Child A was having fun and did not want to speak with her. The mother then asked the paternal grandmother, who said it was not up to her.[24] The father accepted it was wrong to not allow Child A to speak with his mother. I agree.
[24] Exhibit 10.
What is the capacity of each parent to meet the children’s emotional needs?
167 I am readily satisfied the mother can meet the children’s emotional needs. I accept Dr U’s evidence that she is attuned to their needs. She is a capable and caring parent.
168 The mother’s capacity to continue to meet the children’s emotional needs is dependent upon her state of health. Dr U’s evidence as to the detrimental effect on the mother should the Court decline her application does not require repetition. If the mother suffers a further deterioration in her health, and a breakdown (an outcome which Dr U predicts) that will see a decline in her capacity to meet the children’s needs. That cannot be in the children’s best interests, in circumstances where she is the primary parent.
169 I am satisfied the father loves the children and wants to be the best parent he can be. I have concerns about his capacity to meet the children’s emotional needs, for the following reasons:
Firstly, the father has directly involved and exposed Child A to disputes between the parties which demonstrate a lack of insight into their emotional needs. For instance in July 2019 the father told Child A, via voice message, that he had not seen the children “because of the breach”. Child A asked his mother what that meant.
Secondly, the father’s actions, at times, have been punitive and immature, where he has prioritised his own desires above the needs of the children. The incident when the mother returned Child A to him and he initially would not allow the twins to see her, together with the incident at Location A, support my finding. The father filmed the mother on at least two occasions, in the presence of the children and only stopped when she asked. The mother dropped Child A to the father and removed Child A’s school shirt, so he had it for the next day. She asked the father if he could put another shirt on Child A, and he agreed. Rather than say to the mother he thought that was inappropriate, the father took a photograph of Child A without his shirt. The mother then brought a t-shirt for Child A.
Thirdly, the father’s criticisms and denigration of the mother and the impact that has had on her health, and by extension, her capacity to parent, were indicative of a lack of understanding of his conduct. The father minimised and struggled to acknowledge the inappropriateness of some of his communication. He frequently justified his correspondence, saying he was frustrated or confused.
Fourthly, I accept the evidence of Dr U that the father lacks an element of insight into the children’s emotional needs, as demonstrated by the examples to which I have referred.
What is the capacity of the parents to communicate? Do the parties’ communications impact on the mother’s capacity to parent?
170The father has been critical of the mother and her parenting, to which I have referred. Contrary to the submissions of his counsel, his criticisms have been ongoing and continual in the period post-separation. Ms X’s evidence illustrated the adverse effect of the father’s communications on the mother, who is vulnerable given her anxiety and depression. The father’s communications have been derogatory, critical and demeaning.
171 The father’s messages actively sought to undermine the mother, hurt her and convince her she was suffering from bipolar, while portraying himself as the victim. In isolation, some messages may appear trivial. In totality, the father’s ongoing negative messages to the mother have contributed to her lack of self-esteem, her sense of isolation and lack of support, while increasing her unhappiness. They reflect poorly on the father.
172 I accept there are aspects in which the parties have been able to communicate in a positive manner, such as with respect to managing the children’s health. However, even in that regard, the father has been critical of the mother, where I do not consider his criticisms were fairly made.
To what extent have both parents participated in making decisions about long-term issues concerning the children?
173 Both parents have participated in making long-term decisions for the children. They each have been involved in important health and medical decisions for the children. While they did not agree on Child A’s school they each had input and involvement in the decision, which was ultimately made by the mother.
What is the likely effect on the children being separated from either parent or other significant people in their lives?
174 The children have a secure and loving relationship with their mother. They have spent time with their extended maternal family when they have travelled to Country A, or when family have travelled to Perth. The mother has facilitated the children’s relationships with her extended family through electronic means. I accept they share a warm and loving relationship.
175 If the children are not permitted to relocate, I expect their relationship with their extended maternal family will continue, as it has to date. The paternal grandfather indicated he was unlikely to travel to Australia. Apart from the global pandemic which presently restricts international travel, I expect the maternal grandmother may return, if/when it is safe for her to do so. Neither party led any evidence about the current COVID-19 restrictions, nor was it the topic of any detailed submissions.
176 The children have a secure and loving relationship with the father. The children have a close and loving relationship with the extended paternal family. The children are fortunate to be part of a large extended family including their grandparents, aunt, uncle, cousins, great-grandparents and the father’s partner. The children spend regular and frequent time with the father, which facilitates time with their extended paternal family.
177 If relocation is granted, the children will no longer be able to enjoy regular and frequent time with the father and his extended family. I accept they will experience a loss, and grieve the close relationship they enjoy. The father will lose the opportunity to be actively involved in the children’s day to day lives. This will be an acute loss for the father. I accept he is devastated at the prospect of missing those opportunities with the children. Dr U emphasised the father was an active and outdoorsy person, who engaged with the children in that manner. That opportunity would be reduced if the children relocated.
178 On the mother’s proposals, the children will have regular telephone and electronic communication with the father twice a week. He will be able to travel to Country A to spend time with the children for block periods. The mother proposes to return to Australia every second year, to facilitate the children spending time with him. If the father were to travel to Country A, the mother proposes the children spending additional time with him. The father says it is unlikely that he could afford to travel more than once a year. Both paternal grandparents indicated a willingness to provide financial assistance to the father, should that be required. I am confident they would do so, given the support they have extended to date and the importance they place on the children’s relationship with the father. The father also has the support of Ms W, who works on a full-time basis.
179 While the opportunities for physical and direct time will be significantly curtailed, I am satisfied the mother’s proposals will provide for the children and the father to spend time together, and to communicate frequently with him and his extended family, which will enable the children to maintain a meaningful relationship with the father.
180 All of the children have a secure attachment to the father. If the relocation were to occur by 1 January 2021, as the mother seeks, Child A will be nearly six and the twins will be three years old.
What is the likely impact on the mother of having to remain in Australia, contrary to her wishes?
181 If the mother’s application to relocate is declined, she will not leave the children in Australia.
182 I accept the mother feels trapped, isolated and lonely. She is struggling and she is experiencing poor mental health, which has developed into severe depression and anxiety. The mother is taking appropriate steps to manage her health, including medication and attending on her treating psychologist. Her ability to attend on Ms X is limited by her financial circumstances. Both Ms X and Dr U consider the mother requires more intensive psychological support.
183 The mother’s health is not assisted by the current proceedings. The conclusion of the litigation will provide some benefit. However, that will not see an end to the mother’s difficulties. The mother is struggling without the support of her family. While giving evidence, she was teary and distressed at the prospect of relocation being declined. I accept her presentation was genuine.
184 The mother is presently not working. She is reliant on government benefits and child support. She has struggled financially, despite assistance from her family. Her limited finances have reduced her capacity to engage with psychological support with regularity, as recommended. That has not assisted the mother’s feelings of sadness and desolation.
185 The mother has friends in Perth, including Mr H and Ms H, Ms G, [Ms F], [Mr E] and [Ms D]. She has been on holidays with her friends, both with and without the children. She has also had the assistance of a number of Nationality A au pairs. However, I accept their support is not the same as the support which the mother has from her own family. Further, the mother’s friendships have not been constant. For example, Ms D has returned to Country A. Her relationships with Mr E and Ms G appear to have broken down.
186 The mother has been able to regularly return to Country A on an annual basis since 2015 until this year, due to COVID-19. She says, and I accept, that returning to Country A has been a positive experience, but it is not the same as living in Country A.
187 The paternal family, in particular the paternal grandmother, has provided physical assistance to the mother. The paternal grandmother accepted support from the mother’s own family was different to the support she could offer and indeed is different to the support she provides to her son. The father was unable to make that concession.
188 The mother’s feelings of isolation and unhappiness in Australia pre-date separation. The mother has lived in Australia since 2013, and previously considered Australia to be her home. That does not detract or diminish her desire to live close to her family.
189 I accept the mother’s sense of isolation has increased because she was unable to travel to Country A earlier this year. The current COVID-19 restrictions mean that her family have been unable to visit. The mother says and I accept, there are limited au pairs presently available in Australia, due to the hard borders.
190 The children have largely been protected from their parents’ conflict. They are not aware of the competing applications before the Court. I have referred to the level of parental conflict already. If the mother is not successful, she will clearly be disappointed. It is unclear the extent to which she may blame the father for the outcome. Whether that leads to further tension in their relationship, which the children may be exposed to, is not known.
191 It is unnecessary for the mother to demonstrate any compelling reason to relocate. However, her reasons are relevant and her right to live where she wants, are material considerations. That is so where she is the children’s primary carer. The mother’s wishes do not determine the outcome.
192 To require the mother to remain in Australia will have a serious and significant impact on her health and her capacity to parent. It will impact on her happiness. More concerningly, that outcome puts her at risk of a mental health breakdown. The unchallenged expert evidence is that the mother will not return to full functionality, if she is to remain in Australia indefinitely.
193 While I accept the mother would continue to parent to the best of her ability, that ability would be compromised and she would be unable to meet the children’s emotional needs. In circumstances where she is best placed to do so and in light of the limitations of the father’s capacity, that is an important consideration.
194 The mother seeks to relocate as soon as she can. In closing, her counsel submitted while that was her primary position, in light of the evidence of Dr U, should the Court consider a relocation be delayed, to assist the twins’ development of language and consolidate their time with the father, she would accept that. Any delay is likely to be difficult for the mother, for the reasons articulated. However, I accept Dr U’s evidence that the certainty of knowing she can go, will assist her in coping. She will continue to require ongoing psychological assistance.
What are the practical difficulties and expense of the children spending time and communicating with both parents?
195 If the children remain in Western Australia, there will not be any significant practical difficulties or expense in the children’s time with each parent.
196 If the children are permitted to relocate, there will be practical difficulties in terms of distance, travel and costs of travel. If the children live in Country A and the father travels to spend time with the children, he will incur costs including travel, accommodation and other expenses to care for the children. If the children travel to Western Australia to spend time with the father, the costs will relate to travel, noting the father has accommodation and a car to transport the children.
197 Presently, the COVID-19 pandemic restricts the parties’ capacity to travel. Neither party made any specific submissions about the future of such restrictions, acknowledging the unique situation and rapidly changing circumstances which exist.
198 Neither parent is in a strong financial position, which impacts upon their respective capacity to afford to travel.
199 The flight from Perth to Country A takes about 21 hours. The mother says the airfares costs around $3,600 for return flights for an adult and three children. The mother proposes the parties share those costs for travel between Country A and Western Australia every second year. The parents agree an adult will travel with the children and those costs should be shared.
200 The mother’s ability to afford the flights will depend on her returning to the workforce. There was no criticism of the mother’s confidence of doing so, given her evidence about the financial benefits she will have in Country A and the support of her family. The father also seeks the mother contribute to his accommodation and car hire in Country A. He did not lead any evidence about those costs.
201 Despite the father’s current limited income, he has the capacity to contribute towards the costs of flights and arrangements in Country A. If the children relocate to Country A, he will be able to increase his work, or return to employment, which may improve his income. He owns Suburb G, mortgage free, noting his personal loan to his parents.
202 Perth is between six and seven hours ahead of Country A. I accept the time difference imposes an additional practical difficulty in terms of electronic contact, however given the father’s flexibility with employment, I do not view this as significant.
What is the attitude each parent has demonstrated towards the responsibilities of parenthood?
203 I consider each parent has largely demonstrated an appropriate attitude to the responsibilities of parenthood. I do not intend to repeat my findings with respect to the father’s criticisms of the mother post-separation and the occasions when I consider he has prioritised his own needs, above those of the children.
204 The father pays child support as assessed. The assessment changed in May 2019 from $64 to $160 per week. The father initially told the mother he could not afford to pay and accumulated $1,444 in arrears, which he paid off in instalments. That did not reflect positively on the father, in circumstances where the mother is dependent on child support to meet the needs of the children. The mother has otherwise met the majority of the children’s needs, when in her care.
205 To the father’s credit, he has assisted in meeting additional costs for the children, including Child A’s school uniform and school fees, medications and payment towards the au pair, to assist the mother in home schooling Child A during COVID-19.
CONCLUSIONS
206 This was a difficult decision. Having considered the evidence in the context of the primary and additional considerations, I have come to the following conclusions.
Parental Responsibility
207 In my view, the presumption clearly applies. It is in the children’s best interests for their parents to have equal shared parental responsibility. The mother seeks sole parental responsibility, while the father seeks an order for equal shared parental responsibility.
208 I have noted the difficulties the parties have communicating. I have been critical of the father’s communications with the mother. However, in my view, both parents have much to offer in terms of input into major long-term issues. To their credit, they have done so with respect to medical matters and education. It appeared the mother’s case was more predicated on convenience and practical matters, that if the children were to relocate, she alone should make those decisions. The mother conceded if relocation were declined, that an order for equal shared parental responsibility was in the children’s best interests.
209 I am not satisfied the presumption is displaced, regardless of the outcome. The parties have demonstrated an ability to communicate through electronic means, both via email, WhatsApp and text messaging. I intend to make an order for equal shared parental responsibility.
210 I accept the parties would benefit from assistance in terms of finding more appropriate methods of communication. Dr U recommended Our Family Wizard, which subject to hearing from the parties, I consider would be appropriate.
WHAT PARENTING ORDER IS PROPER?
211 Child A, Child B and Child C are fortunate little boys to have two devoted, loving parents, who want the best for them. It is in the children’s best interests to maintain a meaningful relationship with both parents.
212 As I intend to make an order that the parties have equal shared parental responsibility, it is necessary to consider whether the children spending equal time with each parent is in their best interests and is reasonably practicable. Having heard the evidence, I am not satisfied that it is. The chronology of disputes between the parties, their differing approaches to aspects of parenting, the father’s ongoing criticisms of the mother and the impact on her health, do not support a shared care arrangement. I am not satisfied the parties have the relationship or capacity to communicate to effectively manage shared care.
213 I am satisfied the children maintaining a primary household with their mother is in their best interests. To require the mother to remain in Australia indefinitely, against her wishes, will negatively impact on her mental health moving forward, and compromise her parenting capacity. That would be detrimental for the children.
214 If the children relocate to Country A, that will have a significant impact on the children’s relationship with the father. Such an outcome will also have an adverse impact on the father’s mental health. However, Dr U described the father as resilient and stoic, and predicted he would manage, despite being devastated. His feelings of loss and grief are understandable.
215 If the relocation is permitted, the children will no longer enjoy regular and frequent time with their father. Their time will be reduced to electronic communication on a regular basis and direct contact once every second year, for block periods of three weeks or more. If the father was able to travel more frequently, the children would be able to spend additional time with him.
216 I acknowledge electronic communication is not a substitute for face-to-face time. That is especially so where the father and boys enjoy outdoor activities and are physically active. However, the father impressed me as a dedicated parent, who would do all he could to maintain his relationship with the boys. Regular communication will allow him to do so, and enhance the prospects of retaining the meaningful relationship which they presently enjoy. With the boys becoming older, their ability to effectively communicate by electronic means will be enhanced.
217 When assessing the prospects of the children maintaining a meaningful relationship with the father, Dr U was concerned about the ages of the twins and to a lesser extent, Child A. My impression was Dr U’s focused on the children retaining an optimal relationship with their father. What the Court must do, is consider the benefit to the children of maintaining a meaningful relationship, rather than an optimal relationship[25] with both parents.
[25] Godfrey & Sanders (2007) 208 FLR 287 at [33]-[36].
218If relocation is permitted, I am satisfied the mother has fostered the relationship between the children and their father and she will continue to do so. I am confident the mother will facilitate the time and contact as proposed. She will facilitate photographs, videos and video calls. She will provide reminders to the children about their father and the extended paternal family. She will involve the father in the children’s lives, as she has done to date. While there is a time difference between Western Australia and Country A, with some flexibility by both parents, electronic communication can be accommodated.
219 The father’s counsel submitted relocation would result in an extinguishment of the children’s relationship with their father. That finding is not supported by the evidence. Given the evidence of the father, his parents and his partner, I accept they will each do all they can, to maintain the relationship which presently exists. They are prepared to travel to Country A. The father’s parents have offered financial support to assist the father. The father’s parents have been generous in their financial support of the father to date.
220 I have concluded it is in the children’s best interests to live with their mother and she be permitted to relocate. She is their primary carer. She has supported the children’s relationship with their father and it is a relationship which is meaningful. The mother’s capacity to care for the children will be enhanced if she is permitted to live in Country A, where she will have the emotional, practical, physical and financial support of her family. The mother is struggling and is in a delicate state. Her health is predicted to deteriorate if relocation is declined, which will adversely impact on her capacity to parent. That cannot be in the boys’ best interests.
221 Dr U’s evidence is that the mother would return to a full level of functioning, if she were permitted to relocate. It is in the children’s best interests to have a mother who is fully functioning and by extension, better able to meet their needs.
222 After careful consideration of the evidence I consider a short delay in the relocation until 1 August 2021 is beneficial for a number of reasons. Firstly, it will ensure the twins’ grasp of English improves, and allow Child A’s English to be consolidated, through additional time in Perth, together with their attendance at kindergarten and school. Child A will then be six and a half years old and the twins will be four years and four months old.
223 Secondly, it will provide for the children to spend further time with the father, to build on and consolidate the strong relationship they enjoy. That time, and increased development of the boys will enhance the children’s memory of their father and cement their relationship. It will strengthen the father’s relationship with the children, which will support the boys adjusting to extended periods of separation from the father.
224 Thirdly, while the mother will continue to struggle, I am confident she will manage her health, by continuing to take medication and engage with professional assistance. She has been unable to afford the level of psychological intervention which has been recommended however, both her parents indicated a willingness to assist her financially, if required. The fact the proceedings will come to an end, may reduce the mother’s feelings of helplessness and lack of control. There is now some certainty and a date she can work towards.
225 Finally, the date of the proposed relocation will allow the children to be in Country A shortly before the commencement of the school year, which will facilitate their transition.
226 I consider the mother’s proposals in terms of arrangements for the children to spend time and communicate with the father to be in their best interests and reasonably practicable. I am satisfied the parents should share the costs for the children and one adult between Country A and Western Australia, given their respective financial circumstances. If the father elects to spend time with the children outside of Western Australia, and he can do so, if that incurs an additional cost, he should meet that costs. I am not satisfied the mother should meet the additional costs proposed by the father, where she will be incurring the responsibility to meet the children’s costs, in her care.
227 If the father travels to Country A, he should provide 28 days’ notice to the mother, and spend time with the children. I propose to hear from the parties about those arrangements but consider a staged, gradual incremental increase in time, to be appropriate, given the children’s ages.
228 Pending relocation, I propose the children continue to spend time with the father, but that they be able to enjoy block periods in the various holidays, together with special occasions. Those matters were, understandably, not the focus of attention during the trial given the primary issue for determination. I intend to distribute the Reasons from chambers and invite the parties to confer about those arrangements. The parties will have the ability to agree to the arrangements pending relocation or otherwise have the opportunity to be heard about those matters.
229 Finally, I wish to extend my appreciation to counsel. Both counsel properly advanced their client’s cases. One of the principles to be applied in child-related matters, is the requirement for proceedings, as far as possible, to be conducted in a manner which promotes co-operative and child-focused parenting. Both Mrs Farmer and Mrs Oakeley’s advocacy fulfilled that principle, in the circumstances of this difficult case, for which they are to be commended.
PROPOSED ORDERS
230 SUBJECT TO HEARING FROM THE PARTIES as to the form of the orders only, I propose to pronounce orders as follows:
By Consent:
Australian passport
1.The parties do all things and sign all documents necessary to renew the children’s, [CHILD A], born [in] 2015, [CHILD B], born [in] 2017 and [CHILD C], born [in] 2017, (“the children”) Australian passports from time to time, with the parties to meet the costs of the renewal equally.
Exchange of information regardless of where the children might live
2.The Mother and Father shall keep each other informed at all times as to their current residential address and their contact mobile telephone number.
3.Both parties shall keep the other informed in the event that any or all of the children are either ill or sustain an injury whilst in their care, to the extent that such illness or injury necessitates medical intervention including the name and contact numbers for any medical practitioner engaged.
4.Both parties shall ensure that any treating medical practitioner is authorised to respond to any reasonable requests for information concerning the children by the other parent.
5.Both parties shall forthwith inform the other parent if any or all of the children are seriously ill or injured whilst in their care including the name and contact details for any treating medical practitioner/hospital.
Facilitation of relationship
6.The Mother facilitate the children receiving messages, videos, photographs, letters, cards and gifts from the Father and members of his family, including facilitating time between the children and members of the Father’s immediate family in the event they travel to [Country A] and give the Mother notice of a wish to do so.
7.The Mother undertakes to ensure the children continue English Language Classes at their chosen school and that the children enrol at and attend English Language Playgroups or activities.
8.The Mother shall facilitate the children regularly communicating with all members of the Father’s family (as defined in paragraph 11) by way of phone/Skype/FaceTime or any other reasonable electronic means.
9.The Mother provide the Father with:
(a)a collection of photographs and videos of the children participating in either school or extra-curricular / sporting activities not less than three monthly;
(b)copies of the children’s school reports once they commence school within 14 days of receipt of the same;
(c)examples of school work / art work (at least three items) not less than three monthly;
(d)copies of any other progress reports issued by the children’s school;
(e)copies of any merit certificates / awards that the children may receive in the course of their education or sporting / extra-curricular activities; and
(f)copies of any reports concerning the children’s health or development.
10.The Father be at liberty to provide the Mother with a photograph of himself and members of his family, whether that includes the children, and the Mother do ensure that photograph be displayed for the children’s benefit.
11.For the purposes of paragraph 10 above, the Father’s “immediate family” means:
(a)his parents or either of them;
(b)his partner, [Ms W];
(c)his siblings, siblings in law, nephews and nieces; and,
(d)such other family members agreed between the parties, provided the Father has given notice to the Mother of their travel to [Country A].
And otherwise:
12.The Mother be at liberty to relocate, with the children, to [Country A] not before 1 August 2021.
13.The Mother and Father have equal shared parental responsibility for the children.
14.Pending relocation, the children live with the Mother and spend time with the Father on terms agreed between the parties and, in the absence of agreement, (hear from parties) as follows:
(a)effective from the publication of the Orders and until the commencement of Term 1 2021 as follows:
(i)each Tuesday from 3:15pm to 6:30pm;
(ii)each alternate weekend from 3:15pm Friday until 6:30pm Sunday;
(iii)each intervening Thursday from 3:15pm until 6:30pm on Friday;
(iv)during the 2020/2021 Christmas School holiday period for 2 non-consecutive periods of 6 days and 5 nights on dates to be agreed and failing agreement from 9:00am on 25 December 2020 and from 9:00am 7 January 2021;
(b)effective from commencement Term 1 in 2021 as follows:
(i)each Tuesday from 3:15pm to 6:30pm;
(ii)each alternate weekend from the conclusion of school (or 3:15pm on a non-school day) Friday until the commencement of school (or 6:30pm on a non-school day) on Monday;
(iii)each intervening Thursday from after school (or 3:15pm on a non-school day) on Thursday until 6:30pm on Friday;
(iv)for a period of 7 days and 6 nights during the April and July school holidays on dates to be agreed and failing agreement, the first day to commence from the conclusion of school of the last week of the school term until 6:30pm on the sixth day;
(c)on special occasions as may be agreed between the parties and failing agreement:
(i)from 4:00pm Easter Saturday until 6:30pm Easter Monday;
(ii)on the children’s birthdays:
(A)if a non-school day from 4:00pm the evening preceding the birthdays until 2:00pm on the birthday;
(B)if a school day, from the conclusion of school the evening preceding the birthday until the commencement of school on the birthday itself;
(iii)on the Father’s birthday from 3:00pm until 7:00pm in the event that it coincides with a school day and otherwise from 9:00am until 6:30pm;
(iv)from 4:00pm until 6:30pm on New Years’ Day;
(v)on Australia Day from 9:00am until 10:00am on 27 January 2021; and,
(vi)such further or alternate periods as may be agreed.
15.Pending relocation (hear from parties), the Father’s time with the children shall be suspended during the following periods:
(a)from 4:00pm the afternoon preceding Mother’s Day until 6:30pm Mother’s Day;
(b)from 4:00pm on 23 December until 9:00am Christmas Day;
(c)from 4:00pm Easter Saturday until 6:30pm Easter Monday; and
(d)such further or alternate periods as may be agreed.
16.Within 48 hours of the Mother arriving in [Country A], the Mother notify the Father of:
(a)the residential address at which she and the children are living;
(b)a telephone number, Skype and WhatsApp account name on which the Father may contact the children;
(c)an email address to which the Father may email the Mother and the children; and
(d)the Mother do keep the Father notified of any changes of address, contact telephone number, Skype or WhatsApp account name, or email address.
17.Upon relocation (hear from parties), and in the absence of agreement between the parties, the children spend time with the Father:
(a)by Skype, FaceTime or such other electronic means on two occasions each week, namely Sunday and Wednesday, between 4:00pm and 4:30pm, local time for the children, with the Mother to initiate the call to a video call enabled device with the Father;
(b)by Skype, FaceTime or such other electronic means on such of the following special occasions if the children are not spending physical time with the Father:
(i)on each of the children’s birthdays;
(ii)on the Father’s birthday;
(iii)on Father’s Day;
(iv) on 25 December; and
(v)such other occasions as agreed between the parties;
(c)in Western Australia or such other place as agreed in writing by the parties, on one occasion in each alternate year, commencing in 2023;
(d)in [Country A] or such other place as agreed in writing by the parties, as arranged by the Father, commencing in 2022; and,
(e)at such other times as agreed in writing between the parties.
18.(Hear from the parties) For the purposes of paragraph 17(c) hereof:
(a)the time take place during the summer school holiday period in [Country A] (between July and August) for a period of not less than 21 days;
(b)the parties share the costs of the children’s airfares, and those of any accompanying adult between [Country A] and Western Australia;
(c)in the event the Father elects to spend the time with the children in a place other than Western Australia, the Father do meet any difference in cost of the children’s airfares and those of any accompanying adult between the cost of flights to Western Australia and the actual flights;
(d)the children spend overnight time with the Father, with such time to take place in accordance with paragraph 20 to 22 hereof.
19.(Hear from parties) For the purposes of paragraph 17(d) hereof:
(a)the Father do notify the Mother of his intended travel dates, not less than 28 days prior to his intended travel;
(b)in the event the Father elects to travel to [Country A] during a period when the children will be at school, the time be subject to the children attending school while spending time with the Father;
(c)in the event the Father elects to travel outside [Country A] then it be subject to the time taking place during school holiday periods;
(d)the Father do meet the costs of his travel to [Country A] if he elects to spend time with the children in [Country A]; and,
(e)if the Father elects to travel elsewhere with the children, the Father do meet the costs of the children’s travel and the costs of any accompanying adult;
(f)the children spend overnight time with the Father in accordance with paragraph 20 to 22 hereof.
20.(Hear from parties) For the purposes of the children’s time with the Father following relocation, and in the absence of agreement between the parties, the following applies:
(a)from the date of these Orders until time the younger children attain the age of 7 (14 April 2024):
(i)on the date of arrival for several hours (day 1);
(ii)from 9:00am on day 2 until 4:00pm on day 7;
(iii)from 9:00am on day 9 until 4:00pm on day 14;
(iv)from 9:00am on day 16 until 4:00pm on the day prior to the planned date of departure; and
(b)from the time the younger children attain the age of 8:
(i)on the date of arrival for several hours (day 1);
(ii)from 9:00am on day 2 until 4:00pm on day 9;
(iii)from 9:00am on day 11 until 4:00pm on day prior to the planned date of departure;
(c)from the time the younger children attain the age of 9, with the Father to collect the children from the Perth International Airport (or such other place as agreed) and return the children to the Mother by 4:00pm on the day prior to departure.
21.From the time of implementation of paragraph 20(b) and (c) above, the children have telephone or Skype contact with the Mother on days 3, 6, 9, 12, and 15.
22.If the parties are in the same place on the following occasions, the children do spend time with the Father, and the provisions of paragraph 20 do be arranged to enable the time to occur:
(a)from 10:00am on 25 December until 4:00pm on 26 December;
(b)from 10:00am on 14 April until 4:00pm on 15 April;
(c)from 10:00am on 18 January until 4:00pm on 19 January;
(d)for one half of the Easter period; and
(e)at such other times as agreed.
23.The time provided for in paragraph 20 hereof take place so that the children are in the care of the Mother:
(a)from 10:00am on 24 December until 10:00am on 25 December;
(b)from 10:00am on 13 April until 10:00am on 14 April;
(c)from 10:00am on 17 January until 10:00am on 18 January;
(d)for one half of the Easter period; and
(e)at such other times as agreed.
24.The parties do all things and sign all documents to obtain [Country A] Passports for the children, with the Father to give written consent for the Mother to obtain the passport when requested by her.
25.The Orders of 19 June 2018 as they relate to the children’s time with the Father do be discharged from the date the Mother and children relocate to [Country A] in accordance with these Orders.
Handovers
26.For the purpose of handovers the Mother deliver the children to the Father’s home or the children’s school (where applicable), at the commencement of each period that children are scheduled to be in the Father’s care and the Father deliver the children to the Mother’s home or the children’s school (where applicable), at the commencement of each period that the children are scheduled to be in the Mother’s care.
Communication with children
27.Each party have reasonable telephone/FaceTime communication with the children when the children are not otherwise in their care at times be agreed and failing agreement, each Wednesday and Sunday evenings between 4:00pm and 5:00pm (hear from parties).
Travel
28.Both parties be at liberty to travel interstate with the children during the periods that the children are scheduled to be in their care pursuant to these orders subject to the travelling party:
(a)giving the other party no less than 4 weeks’ notice of their intention to travel interstate including departure and return dates;
(b)provide the non-travelling party with the address and contact number at which the travelling parent and children will be staying;
(c)facilitating telephone/Skype/FaceTime communication between the children and the non-travelling parent on the Wednesday and Sunday evenings of the week that they are away.
29.Both parties be at liberty to travel overseas with the children subject to the following:
(a)save with the written consent of the other party, the travel period coinciding with any period that the children are otherwise scheduled to be in their respective care pursuant to these Orders;
(b)the travelling parent providing the non-travelling parent with 6 weeks’ notice of intention to travel including details as to the travel destination and itinerary;
(c)the travelling parent providing the non-travelling parent with the details of the address and contact numbers for any overseas accommodation for the children;
(d)the travelling parent providing a copy of the return travel tickets for the children to the non-travelling parent no later than 21 days prior to departure;
(e)the travelling parent facilitating telephone/Skype/FaceTime communication between the children and the non-travelling parent on the Wednesday and Sunday evenings during the period that they are away;
(f)the Father be restrained from traveling with the children during the period nominated by the Mother pursuant to the following Order; and
(g)any additional travel time to be by agreement between the parties in writing.
30.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from the date hereof.
31.In relation to material tendered as an exhibit into evidence in these proceedings, on the expiration of 42 days from the date hereof, all material tendered as an exhibit into evidence, save and except for material produced pursuant to subpoena, be destroyed by the Court without notice to the parties.
32.In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 30 and 31 above do not apply.
33.The Application and Response be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
CD
Secretary
9 DECEMBER 2020
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