GIALLO and RUGGERI - [2017] FCWA 132

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: GIALLO and RUGGERI [2017] FCWA 132

CORAM: O'BRIEN J

HEARD: 20-21 SEPTEMBER 2017

DELIVERED : 18 OCTOBER 2017

FILE NO/S: PTW 4900 of 2016

BETWEEN: MS GIALLO
Applicant
AND
MS RUGGERI
Respondent

Catchwords:

CHILDREN - Child-related proceedings - Relocation - Where the desire to relocate is bona fide - Where the parties presently share the care of the children - Where there is no discernible difference in the children's relationship with each parent - Where expert evidence suggests that relocation would be devastating for the children - Turns on own facts.

Legislation:

Artificial Conception Act 1985 (WA), s 6A
Family Court Act 1997 (WA), s 66, s 66C, s 202H
Interpretation Act 1984 (WA), s 5
Marriage Act 1961 (Cth), s 88EA

Category: Not Reportable

Representation:

Counsel:

Applicant: Mrs T Farmer
Respondent: Mr G Cridland

Solicitors:

Applicant: Loukas Law
Respondent: Friedman Lurie Singh & D'Angelo

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

Badawi & Badawi (Costs) [2017] FamCAFC 196
Banks & Banks (2015) FLC 93-637
Bondelmonte & Bondelmonte (2016) 91 ALJR 402
Insurance Australia Ltd t/a NRMA Insurance v Milton (No 2) [2016] NSWCA 173
Re C and D (1988) FLC 92-815
Stott & Holger and Anor [2017] FamCAFC 152

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

1[Ms Giallo] and [Ms Ruggeri] are unable to agree the arrangements to be made for their sons [Child A], born [in] 2011, and [Child B], born [in] 2013.
2Central to their dispute is Ms Ruggeri’s desire to relocate with the children to [Country A].

Background

3Ms Giallo is a 38 year old [business executive]. She was born and raised in [City A, Western Australia].
4Ms Ruggeri is 36 years old. She was born and raised in [City B, Country A]. She has previously worked in Country A as a [careworker] and in Western Australia in [finance]. She is presently engaged in part-time study towards a qualification in [social work].
5The parties met in [Country B] in mid-1999 when they were both travelling. Over time they commenced a relationship and began living together as a couple in City B in mid-2000.
6In November 2004, the parties moved from City B to Perth and have lived here ever since. Ms Ruggeri immigrated to Australia under a permanent resident visa and became an Australian citizen in or around May 2010.
7The parties decided to have children together and agreed that Ms Giallo would attempt to conceive via IVF using anonymous donor sperm. They also agreed that Ms Giallo would initially take time off work after the birth of each child but would later return to work and Ms Ruggeri would then take on primary responsibility for their care. Ms Giallo’s earning capacity was significantly higher than Ms Ruggeri’s.
8After the birth of each of the children, in accordance with their plans, Ms Giallo took seven months off work to breastfeed and be with the children. She then returned to full-time work. Broadly, the parties planned that Ms Ruggeri would be a stay-at-home parent until the children were both at school.
9On 15 January 2015, the parties married under Country A law at the Country A Consulate in Perth.
10Unknown to Ms Ruggeri, Ms Giallo had commenced an affair with [Ms L] only a month or two prior to the wedding. In June 2015, Ms Giallo told Ms Ruggeri about her relationship with Ms L and the parties separated.
11Ms Ruggeri was devastated by the breakdown of the parties’ relationship. On the same day that Ms Giallo told her about Ms L, and with Ms Giallo’s agreement, Ms Ruggeri travelled temporarily with the children to be with her family in Country A.
12Within a few days, and in circumstances where she still hoped to save the relationship, Ms Ruggeri asked Ms Giallo to come to Country A to (in her words) “come and get me and the children and bring us home”.
13Ms Giallo travelled to Country A and after a few days the parties made the necessary arrangements to return to Perth. There was a conversation between them at the airport in City B, where Ms Ruggeri pressed Ms Giallo for a commitment to discontinue her relationship with Ms L on their return to Australia. Ms Giallo gave that commitment.
14On their return to Australia the parties undertook some counselling and lived together in their home. After a short period, they occupied separate bedrooms.
15Ms Giallo continued her relationship with Ms L and in November 2015 left the family home and moved in temporarily with her parents. The parties have not lived under the one roof since that date.
16There were then issues between the parties as to whether Ms L should be introduced to the children, and if so in what circumstances. There were also issues in relation to the details of the arrangements for the care of the children.
17Proceedings were commenced by Ms Giallo on 10 August 2016. In her application, she sought detailed parenting orders. In particular, she sought “joint parental responsibility” and orders whereby the children would live for equal time with each parent.
18In her response filed on 4 October 2016, Ms Ruggeri expressed her agreement to the proposed order for “joint parental responsibility” and certain other orders proposed by Ms Giallo in relation to the sharing of information between the parties. She otherwise sought orders that the children live with her, and spend time with Ms Giallo from 2.00 pm each Wednesday to 9.00 am each Thursday, and from 2.50 pm each Friday to 8.00 am Sunday, “without the presence of” Ms L. By the time those orders were proposed by Ms Ruggeri, Ms Giallo and Ms L had purchased a home together.
19Interim orders were made by consent on 7 October 2016. Those orders provided for the parties to have “joint parental responsibility”, for the children to live with Ms Ruggeri and for them to spend time with Ms Giallo on a timetable set in accordance with Ms Ruggeri’s proposals set out above. On a “without admission” basis orders were made excluding Ms L from being present at handovers, during Skype communications with the children and from attending various school and sporting events if Ms Ruggeri was attending.
20In late February 2017, the parties reached agreement that a Single Expert Witness (“SEW”) should be appointed to provide expert evidence as to the matters then in issue between them. By that time, Ms Giallo’s affidavit of evidence for trial had been filed, but Ms Ruggeri’s had not. Orders were made by consent on 3 March 2017 for the appointment of Dr Phil Watts as the SEW.
21On 8 March 2017, Ms Ruggeri’s affidavit of evidence for trial was filed. Notwithstanding the proposals set out in her filed response, her desire to relocate to Country A with the children was raised in that affidavit.
22On 27 March 2017 Ms Ruggeri filed an amended Form 1A. That response was silent on the issue of parental responsibility and proposed orders permitting her to relocate to Country A with the children within 30 days from the date of any order. She proposed that until that departure the children continue to spend time with Ms Giallo in accordance with the interim orders which had been made on 7 October 2016, and that following the relocation they spend time with Ms Giallo during Country A’s school holidays.
23The parties were unable to reach agreement and the matter progressed towards trial. At a status hearing on 5 September 2017 I directed the parties to confer and file, prior to trial, a joint minute setting out any orders that could be made by consent regardless of the determination of the issue of where the children are to live, and any orders that could be made by consent on either scenario. While the parties did not properly comply with that order, nevertheless by that process, and in the course of my enquiries of counsel at the commencement of the trial, it became clear that an order for equal shared parental responsibility could be made by consent and that a very significant number of matters were not in dispute.

The law

24While the parties were married on 15 January 2015 pursuant to Country A law, their marriage is not recognised as valid in Australia: Marriage Act 1961 (Cth) s 88EA.
25The proceedings accordingly fall to be determined pursuant to the Family Court Act 1997 (WA) (“the Act”).
26Ms Giallo is a biological parent of the children; Ms Ruggeri is not. Both parties are parents of the children for the purposes of the Act: Interpretation Act 1984 (WA) s 5; Artificial Conception Act 1985 (WA) s 6A. The biological parent does not “stand in any preferred position” and the fact of biological parentage “does not in any way impinge upon the principle that the best interests of the child are paramount:” Re C and D (1988) FLC 92-815 at [10.10].
27The court’s power is to make such parenting order as it thinks proper. In determining what parenting orders are to be made, the children’s best interests are the paramount but not the only consideration. The interests of the parties may appropriately be taken into account, provided that the children’s interests remain paramount.
28In determining what parenting orders will be in the best interests of the children, the court is required to consider the matters set out in s 66C of the Act. While those matters are divided in the legislation into “primary” and “additional” considerations, the primary considerations do not necessarily outweigh any combination of the additional considerations.
29As in all civil litigation, the issues that are joined between the parties will dictate which s 66C factors are relevant. The requirement to “consider” each factor does not mean that each factor must be expressly discussed in a judgment where the factor in question has no sufficient relevance in the particular circumstances of the individual case to displace the determinative significance of factors specifically discussed: Banks & Banks (2015) FLC 93-637.
30The court must also be guided by the objects of Pt 5 of the Act and the principles underlying those objects.
31Those objects and principles are set out in s 66(1) and (2) in the following terms:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

32I note also the additional object of Pt 5 stated in s 66(4). The court is not in any sense bound by the proposals of the parties, subject to the requirements of procedural fairness and the parties being given notice of the possibility of an order being made unless the making of such an order is obviously open on the known material: Stott & Holger and Anor [2017] FamCAFC 152 at [26]. Nevertheless the proposals of the parties must be clearly identified, and submissions made by them as to the orders which should be made if orders are not made in terms of their proposals must be considered.
33As an order for equal shared parental responsibility is to be made, I am required to consider whether the children spending equal time with each of their parents would be in their best interests and whether such an arrangement would be reasonably practicable. If so, I am then required to consider making such an order.
34Again against the background of an order for equal shared parental responsibility being made, if I do not make an order for the children to spend equal time with each parent I am required to consider whether spending substantial and significant time with each parent would be in their best interests and reasonably practicable. If so, I am required to consider making such an order.
35In determining whether it is reasonably practicable for the children to spend equal time, or substantial and significant time, with each parent I am required by s 89AA(5) to have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.

36In a parenting case where the proposals of one party would involve the relocation of the children, 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 live at the time of or prior to the application. The parent wishing to move does not need to demonstrate “compelling” reasons to justify the proposed move, and the children’s best interests must be weighed and balanced with the proposed relocating parent’s right to freedom of movement. A court should not lightly interfere with that right of freedom of movement, save and except where it is contrary to the best interests of the children.
37While the parent proposing to relocate is not required to justify the desire to move (beyond the court being satisfied that the application is bone fide and not motivated by some ulterior consideration) it is appropriate for the court to have, as it does in this case, evidence as to the benefits which that parent says would flow from the relocation. 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.
38As the High Court observed in Bondelmonte & Bondelmonte (2016) 91 ALJR 402, the making of a parenting order involves the exercise of judicial discretion, and the assessment of the considerations set out in the legislation by reference to the circumstances of the case involves value judgements in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the children.

Matters not in dispute and issues joined

39As already noted, the parties agree that an order for equal shared parental responsibility should be made.
40At the commencement of the trial, I asked counsel to confirm the issues joined between the parties, by reference to the primary and additional considerations in the legislation.
41It was common ground that both parties are good parents. Ms Giallo did not suggest that Ms Ruggeri’s desire to relocate to Country A was anything other than bone fide.
42It was also common ground that each of them have a meaningful relationship with both children, and that it is in the best interests of the children for those relationships to be maintained. Similarly, it was agreed that orders need not be crafted with an eye to protecting the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
43It was common ground that given the ages and level of maturity of the children, any views expressed by them should be given little or no weight.
44It was also common ground that both parties have appropriately taken the opportunity to participate in making decisions about major long-term issues in relation to the children, to spend time with them and communicate with them, and that nothing turned on that consideration as expressed in the legislation. Similarly, it was agreed that both parties had fulfilled their obligations to maintain the children, and that nothing turned on the maturity, sex, lifestyle and background of the children or either party, other than in relation to Ms Giallo’s attachment to Australia and Ms Ruggeri’s attachment to Country A.
45It was common ground that both parties have an appropriate capacity to provide for the needs of the children, including their emotional and intellectual needs. The only caveat to that agreement was that Ms Giallo would argue that Ms Ruggeri’s desire to relocate with the children to Country A demonstrates a lack of recognition by her of the children’s emotional need to be with Ms Giallo, and Ms Ruggeri would argue that Ms Giallo’s resistance to the relocation demonstrates a lack of recognition by her of the benefit of that move to Ms Ruggeri, with a consequential benefit to the children.
46Similarly, the parties agreed that each has an entirely appropriate attitude to the children and to the responsibilities of parenthood, and that nothing turned on that consideration as expressed in the legislation. The only caveat in that regard is that Ms Giallo would argue that what she regards as Ms Ruggeri’s lack of recognition of her own role as a parent, and her attitude towards Ms L, reflects on Ms Ruggeri’s attitude to the responsibilities of parenthood.
47It was common ground that issues of family violence are not relevant in this case.
48During the exchange at the commencement of the trial, counsel for Ms Ruggeri suggested that the orders proposed by her would be less likely to lead to the institution of further proceedings in relation to the children, given the conflict that might arise if both parties remain in Perth. By the conclusion of the trial it was apparent that the point was not pressed, and that Ms Ruggeri is committed to complying with whatever orders are made and endeavouring to improve the communication between the parties.
49Ms Ruggeri also made it clear that if I determine that it is in the best interests of the children to spend a level of time with Ms Giallo inconsistent with the proposed relocation, she will remain in Perth and that such orders would (subject to any argument she might raise about Ms Giallo’s work commitments) be reasonably practicable.
50For obvious reasons, the considerations set out in s 66C(3)(d) and (e) are of relevance in these proceedings.
51When asked to define what other fact or circumstance might be considered relevant, counsel for Ms Giallo referred to her position as the biological mother of the children, and the children’s perception of that, the potential for a relationship between the children and the sperm donor, and the relationship between the children and [Child C] (the newborn daughter of the relationship between Ms Giallo and Ms L). By the conclusion of the trial it was apparent that the sperm donor was anonymous and that Ms Giallo did not know, but assumed, that he lives in Australia. It was conceded that in those circumstances, the point raised about the possibility of a relationship with the donor was not relevant.

52When asked to similarly define what other fact or circumstance might be considered relevant, counsel for Ms Ruggeri pointed to what Ms Ruggeri would say are her enhanced accommodation and job prospects in Country A and the availability to her of the practical and emotional support of her family there. It was Ms Ruggeri’s case that those factors would positively impact on her well-being, to the benefit of the children.

The proposals of the parties

53Ms Giallo proposes that the children live equally with each party.
54From the date of any orders until the end of Term two in 2023 she proposes that the children live with her for a two night block from 8.00 am on Monday until 8.00 am on Wednesday in the first week of a fortnightly cycle, and from 8.00 am or after school on the Friday of the first week until the start of school on the following Wednesday (“the 2/2/5/5 proposal”). From the end of Term three in 2023 she proposes that the children live with her and with Ms Ruggeri in alternating blocks of seven consecutive nights, with handover pivoting around school on Monday each week (“the week about proposal”).
55She otherwise proposes that the children spend half of every school holiday period with each parent and specific orders in relation to special occasions, handovers other than at school, alternative dispute resolution in the event of disagreement and orders facilitating travel with the children by both parties. She proposes further orders regulating the parties’ behaviour towards each other, and in the presence of the children, and mutual injunctions restraining the parties from changing their places of residence to anywhere more than 50km from [School A]. She seeks an order requiring the parties to do all things necessary to enrol the children in that school (or another school by agreement) from the commencement of the 2018 school year and orders for the exchange of information between the parties.
56Ms Ruggeri proposes that the children live with her, and that she be permitted to relocate with them to Country A within 30 days from the date of orders being made. While the orders proposed by her seek permission to move to Country A, it was made clear during trial that she seeks permission to move with the children to the village of [Town A] near City B in Country A.
57She proposes by reference to the school holidays in Country A that the children spend time with Ms Giallo each alternate Christmas and New Year period from 9.00 am on the first day the school holidays to 5.00 pm on the last day of the school holidays. She further proposes that the children spend time with Ms Giallo for the first four weeks of the end of term summer school holidays, 10 days during the Easter holidays and the whole of the half term and end of term holidays. Her proposal in that regard modified somewhat over the course of the trial when she was presented in cross-examination with a calendar showing the available school holidays in Country A, demonstrating certain issues with her proposals as initially framed.
58She proposes that Ms Giallo pay any travel costs for the children associated with them spending time with her. She did not agree with Ms Giallo’s proposal that the children attend School A, even if they remain living in Perth. She did not agree with Ms Giallo’s proposal in relation to alternative dispute resolution, and says that a number of the injunctions proposed by Ms Giallo are unnecessary. She agreed to certain orders proposed by Ms Giallo in relation to the exchange of information.
59At my direction, the parties each filed minutes setting out orders they would submit should be made in the event that orders were not made in terms of their proposals. I note that I have not misunderstood those submissions as representing any departure by either party from their proposals, nor as representing any concession by either of them.

The evidence at trial

60Ms Giallo relied on the following affidavits:
(a)her initial trial affidavit filed on 3 February 2017;
(b)her further trial affidavit filed on 13 June 2017, after Ms Ruggeri had amended her response to seek orders for the children to live with her in Country A;
(c)her financial statement filed on 5 September 2017;
(d)affidavit of Ms L filed on 13 June 2017; and
(e)affidavit of her friend [Ms G] also filed on 13 June 2017.

61Both Ms L and Ms Giallo were required to present for cross-examination and did so. Ms G was not required to present for cross-examination and her evidence was accordingly unchallenged.
62There were certain difficulties with the affidavit material filed on Ms Giallo’s behalf.
63In an amended application filed only on 6 September 2017, two weeks prior to the scheduled trial, Ms Giallo purported for the first time to seek orders for the alteration of property interests. In the same document, she sought for the first time orders for a departure from any administrative assessment of child support in the event that the children were to live with Ms Ruggeri in Country A.
64Ms Giallo’s second trial affidavit filed on 13 June 2017, well before the filing of that amended application, included some 50 paragraphs relevant only to the issue of alteration of property interests. At a status hearing on 5 September 2017 I had questioned her counsel about the inclusion of those paragraphs, as at that point no financial proceedings were on foot. The explanation given was that there were negotiations in process in relation to financial matters and that the relevant paragraphs were included in the trial affidavit so as to enable a finding at trial that any orders that might be proposed by consent were just and equitable.
65The following day, the amended application was filed.
66At trial, I pointed out that on Ms Giallo’s own case the relationship between the parties had ended in June 2015. Ms Giallo confirmed that was her position. The proposed amended application seeking orders for alteration of property interests was accordingly filed out of time. Properly, counsel for Ms Giallo conceded that to be the case. The purported application for alteration of property interests was not, therefore, in any sense before me and I have placed no weight on the parts of Ms Giallo’s affidavit material which relate solely to that purported application.
67One other point needs to be made in relation to the affidavit material filed on behalf of Ms Giallo. At the status hearing I noted that her more recent affidavit had annexed to it some 342 pages of material, spanning 62 separate annexures. I queried the relevance of those materials to matters in issue and made an order requiring the filing and service prior to trial of a schedule specifying which, if any, of those annexures Ms Giallo sought to have received into evidence. I made it clear that any annexures not listed in that schedule would not be received into evidence.
68A schedule was filed as ordered. That resulted in the removal of only seven annexures amounting to 19 pages, as being acknowledged by those advising Ms Giallo to be irrelevant. By way of example, the annexures removed included comparative printouts from the internet containing data about rainfall, average temperature, and hours of sunshine in Perth and City B and printouts from the internet showing average life expectancies in the two cities.
69Of the 55 annexures, spanning 323 pages of materials which remained, only a very few were actually the subject of any questions or submissions in the course of the trial.
70While certain of the rules of evidence are excluded in child-related proceedings by s 202H of the Act, the fundamental tests of relevance to matters in issue, and probative value, are not. The “proposition that experienced legal practitioners have difficulty with the application of such a test defies comprehension”: Insurance Australia Ltd t/a NRMA Insurance v Milton (No 2) [2016] NSWCA 173 at [7].
71As the Full Court recently observed in Badawi & Badawi (Costs) [2017] FamCAFC 196 at [16], albeit in the context of the inclusion of unnecessary documents in appeal books, it is essential that the parties “bring a rational mind” to the question of what documents are to be produced or exhibited. The “automatic inclusion” of documents without proper consideration as to whether they are necessary for the disposition of the proceedings is to be “greatly deprecated”. Both the Family Law Rules and the Legal Professional Conduct Rules contain provisions consistent with that observation.
72Ms Ruggeri relied on the following affidavits:
(a)her trial affidavit filed on 8 March 2017;
(b)affidavit of her mother [Mrs Ruggeri] filed on 6 July 2017; and
(c)affidavit of Ms Giallo’s brother [Mr Giallo] filed on 19 May 2017.

73Ms Ruggeri and her mother were required to present for cross-examination and did so. Mr Giallo was not required for cross-examination and his evidence was accordingly unchallenged.
74The SEW, Dr Watts, swore affidavits on 27 March 2017 and 23 April 2017. Both were in evidence. The first affidavit annexed his report responding to the agreed terms of reference. The second affidavit annexed questions put to him on behalf of Ms Giallo and his responses to those questions.
75Dr Watts was not required by either party to present for cross-examination. His evidence was accordingly unchallenged. I accept his evidence, and his opinion when reviewed against the other evidence available to me informs the conclusion ultimately to be drawn.

Observations as to the oral evidence of the parties and their witnesses

76Ms Giallo gave her evidence in a measured and direct manner. While she was careful in her answers, and did not expand on them, I did not interpret that as being in any sense evasive. Rather, she presented as an intelligent and analytical person in control of her emotions, which is consistent both with Ms Ruggeri’s description and Dr Watts’ observations of her. She made admissions against interest where appropriate, without hesitation. By way of example, when I cut short a series of questions about her conduct in proceeding with her planned wedding with Ms Ruggeri when she was already conducting an affair with Ms L, by suggesting that it was common ground that she had behaved appallingly, she agreed without hesitation.
77Contrary to the submissions of counsel for Ms Ruggeri, I regarded Ms Giallo as an honest witness.
78Similarly, I regarded Ms L as an honest witness. While she too was cautious in her evidence, and inclined to say that she did not recall the precise details of some events and conversations, again that was, in my view, indicative of care and caution on her part rather than evasion.
79Ms Ruggeri too was an honest witness. Her personality differs to Ms Giallo’s and the differences in their presentation reflected that. She presented as a more emotional person and appeared to have given less analytical thought to both her circumstances and the detail of her proposals than had Ms Giallo. That caused her at times to become confused in her evidence, or to struggle to articulate the detail of what she envisaged for the future beyond the general propositions that she would be much happier in Country A, the children would cope with the associated change and would benefit from her enhanced well-being, and that she would support their ongoing relationship with Ms Giallo. In cross-examination that absence of careful analysis prior to trial became apparent, for example, when it emerged that she had not considered the timing and duration of Country A School holidays when compiling her proposals, and had adopted a position in relation to FaceTime or Skype communication based on an inaccurate view of the time difference between City B and Perth.
80Those features of Ms Ruggeri’s evidence, however, do not in any way reflect adversely on her honesty nor the bone fides of both her desire to relocate and her view of herself as the children’s primary carer.
81Ms Ruggeri’s mother, Mrs Ruggeri, was cautious in her manner and on occasion a little defensive under cross-examination. Nevertheless, she answered questions directly and in my view honestly.
82Bearing in mind the parameters and nature of the matters in issue, nothing turns on a comparison of the credibility of the parties in any event.

The evidence of Dr Watts

83While Dr Watts was not cross-examined, it is convenient to review his evidence at this point in these reasons.
84He noted that it was “evident from talking to both parents that they were equally actively involved in the children’s lives, although availability fluctuated with different arrangements”. He noted further that when talking to the parties “their mindset is clearly one of the children being connected by the relationship and not biology” and that they clearly viewed themselves as equal parents.
85He observed that Ms Ruggeri projected blame for the breakdown of the relationship onto Ms L but spoke of being able to deal with Ms Giallo for the most part. He observed Ms Ruggeri to have a “massive emotional reaction” to Ms L, leading her at times to behave irrationally to her later regret. Dr Watts described Ms Ruggeri as presenting with a “classic trauma profile” such that her reactions to encountering Ms L are not intellectual, but deeply emotional. He described Ms Giallo as having a personal style best characterised as pragmatic and independent, with an element of dominance.
86Dr Watts observed Ms Giallo to express quite a lot of insight into the impact of her behaviour on Ms Ruggeri, who in turn has a lack of trust but is able to deal with Ms Giallo in a civil and workable fashion. He said that within the court environment he had rarely “seen two people more dedicated and focussed on providing healthy, balanced, mature parenting” of their children, who he described as “delightful”.
87Importantly, he “could see no discernible difference in the quality and strength of the children’s relationships” with their two mothers.
88He observed the boys to be happy and comfortable with Ms L, without her trying to take over any parenting role. He also observed the children to be comfortable and familiar with members of extended family.
89He described the parenting capacity of each party in glowing terms and saw no risk factors other than the slight risk associated with Ms Ruggeri being “triggered” and reacting inappropriately. In the same context, he had no doubt that Ms Giallo and Ms Ruggeri would each support the children’s relationship with the other, but acknowledged the possibility that under pressure Ms Ruggeri might seek to undermine the children’s relationship with Ms L. He noted that the children had been exposed to some comments Ms Ruggeri had made about Ms L and considered it important that she learn not to react in that manner.
90Consistently with the matters referred to earlier in these reasons, Dr Watts expressed the opinion that Ms Ruggeri has a “justifiable argument for herself that relocation would be better”. He referred to her “separation induced trauma” which has had “quite a profound impact on her functioning”. Having some distance from Ms L would help her avoid being triggered and she would benefit from direct family support. He concluded that relocation would be “good for [Ms Ruggeri’s] mental functioning and her ability to cope”. He gave her credit for trying to put aside the great intensity of feelings she experienced because of the separation, while noting that she had “residual issues which she needs to keep working at” and that she would benefit from therapy. In her trial affidavit, Ms Ruggeri indicated that she had begun counselling, but did not elaborate further.
91By the same token, Dr Watts expressed the opinion that Ms Giallo would be “quite affected if the children were allowed to relocate, and she would find it very distressing”.
92As to the effect on the children of the implementation of Ms Ruggeri’s proposals, Dr Watts said this (emphasis added):
However, relocation would be quite devastating for these children, in the sense that they have two mums and if [Ms Ruggeri] is allowed to relocate they will effectively have one mum and the second mum will become more like an auntie over time, because even with frequent communication, the lack of substantial day-to-day interaction will effectively render that relationship differently.

93As already noted, Dr Watts was not challenged on his opinions. Indeed, his opinion was consistent with that expressed by Ms Ruggeri at various points in her trial affidavit where she said:
The current arrangements allow the Children to have equal time with [Ms Giallo] and I each week: at [264];
…the only time there is a conflict is where [Ms Giallo] fails to respect my wishes in not having [Ms L] present where I am in attendance: at [267];
…the Orders in place are currently working as the Children get to spend meaningful time with both of us: at [270];
At present the Children have equal time with [Ms Giallo] and I each week and it is important that this remain as it has been working and provides them with stability. That said I propose that I be granted leave to relocate with the children to [Country A]: at [286 – 287].

94During cross-examination of Ms Ruggeri the following exchange took place:
[COUNSEL FOR MS GIALLO]: Do you accept that regardless of outcome, regardless of whether His Honour lets you move to [Country A] or not, ultimately, these children are going to be in a position where they’re going to be spending multiple nights away from you and multiple nights away from [Ms Giallo]?
[MS RUGGERI]: I guess it depends how His Honour presents the orders.
[COUNSEL FOR MS GIALLO]: Even if His Honour made orders as you’ve asked, even if His Honour confirmed the orders of 7 October 2016… pursuant to those orders, paragraph 14, [Ms Giallo] can take the kids overseas for one week in 2017, two weeks in 2018 and three weeks in 2019...
[MS RUGGERI]: Yes.
[COUNSEL FOR MS GIALLO]: …so even if His Honour makes the orders that you want him to make, [Ms Giallo] will have block time, at least one week in 2017, with the children.
[MS RUGGERI]: Yes.
[COUNSEL FOR MS GIALLO]: So they will be spending time away from you for multiple nights. And ultimately that’s going to be the outcome for your children… So, coming back to Easter, do you not think it’s a good thing for the children if they spend a four night block every second year with [Ms Giallo] so she can take them away?
[MS RUGGERI]: I feel that my children will be more concerned about getting their chocolate eggs than they will be concerned about having a four day break…
[COUNSEL FOR MS GIALLO]: Ok. You can’t see that there’s any benefit… in spending a block time with [Ms Giallo] and [Child C] and [Ms L]?
[MS RUGGERI]: I think consistent and frequent time is really essential and that’s what they have.
[COUNSEL FOR MS GIALLO]: As they’re getting older you don’t see any benefit in getting block time?
[HIS HONOUR]: Sorry what was the last answer? Consistent and frequent time…
[MS RUGGERI]: With each of us.
[HIS HONOUR]: …is the strongest benefit?
[MS RUGGERI]: Yes.
[HIS HONOUR]: So that’s the best arrangement for your children is it?
[MS RUGGERI]: Yes.
[HIS HONOUR]: So how does that happen if you’re in [Country A]?
[MS RUGGERI]: Well [Ms Giallo] will get consistent time with them in the holidays.
[HIS HONOUR]: There were three words there, “consistent and frequent”.
[MS RUGGERI]: And as frequent as we can facilitate it. Frequently on FaceTime and frequently as we can make it happen.

The interests of the parties

95As already noted, Ms Giallo does not dispute that Ms Ruggeri is bone fide in wishing to return to Country A, nor does she dispute the proposition that Ms Ruggeri will be happier there than she is in Perth.

96There is disagreement between the parties as to the more practical benefits to Ms Ruggeri of moving back to Country A. Ms Ruggeri says that she will have accommodation provided by her family, and expresses concern that once financial matters between the parties are resolved she will struggle to obtain suitable accommodation in Perth. It must be observed that the latter concern was raised only in the trial itself, primarily in cross-examination of Ms Giallo by Ms Ruggeri’s counsel, and was not the subject of any evidence-in-chief from Ms Ruggeri. It must also be observed that Ms Ruggeri has not found it necessary since separation to commence proceedings for financial relief of any sort against Ms Giallo, and that subject to the issue earlier identified in relation to the need for leave to commence proceedings out of time, all her rights in that regard remain available to her.
97Ms Ruggeri says that she will [apply to] have the opportunity to work during school hours upon return to Country A. At trial, she and her mother both gave further evidence in relation to her prospects in that regard; while it appears that the enquiries which led to that evidence being given were made somewhat at the last minute in the lead up to trial, nevertheless I accept that Ms Ruggeri is likely to have suitable employment prospects available to her in Country A.
98If she remains in Perth, however, Ms Ruggeri proposes to continue her current studies towards a social work degree rather than working either full-time or during school hours. Her present earning capacity in Perth is limited somewhat by her commitments to the children and her perfectly proper choice to have a full-time career after her studies, revolving around school hours.
99All that said, the evidence does not descend into detail sufficient to enable a conclusion to be drawn that any economic benefit to Ms Ruggeri of the move to Country A would be significant.
100It is clear that the primary benefit to Ms Ruggeri in moving back to Country A would be emotional and psychological, and that the potential benefit to her in that regard is significant. That said, at the conclusion of her evidence there was the following exchange:
[HIS HONOUR]: Is it fair or unfair to say that the primary reason for you wanting to relocate to [Country A] is that you don’t want to be constantly reminded of the relationship between [Ms Giallo] and [Ms L]?
[MS RUGGERI]: Primarily, the reason for me wanting to go to [Country A] is to be with the support of my family. And I do feel that it takes a community to raise children and it’s not just about me and [Ms Giallo] it’s about what we can provide for them in the ways of grandparents, aunts, uncles, cousins and [Ms Giallo] at this point in time has no relationship with her family. And although I keep a limited relationship with her family it’s not the same.

101It is clear also that Ms Ruggeri struggles with the idea of the children being away from her. When asked why, if the children are to remain living in Perth, she would propose to be permitted to take them overseas herself for four weeks per annum but that the same option not be available to Ms Giallo, she very honestly admitted that the reason was that she would simply miss the children too much. Similarly, her sense of isolation in Perth is reflected by her insistence that if the children remain in Perth they should wake up in her care every Christmas morning, as in the absence of her family she would otherwise “have nothing” on Christmas Day.
102The interests of Ms Giallo, while no less important, are less complex. She has no interest in moving to Country A. Her life both professional and personal is in Perth. While she did not suggest that she could not find appropriate accommodation and employment in Country A if she chose to move, her explanation as to the effect of such a move on her career and her prospects was credible. Importantly, she is in a committed relationship with Ms L and they have just had their first child together. While there are difficulties in her relationships with her own extended family, primarily because of their views as to the circumstances of the breakdown of her relationship with Ms Ruggeri and their sympathy for Ms Ruggeri, that family is largely in Western Australia.

The best interests of the children

103The conclusion that it is in Ms Ruggeri’s best interests to move to Country A, and that she would not do so without the children, is readily drawn. The court’s obligation, however, is to determine what parenting orders are in the best interests of the children.
104Against the background of the undisputed matters set out earlier in these reasons, the uncontested evidence of Dr Watts, both as to the equality of the children’s relationships with each of their mothers and the devastating effect on them of a move to Country A is compelling.
105The opinion expressed by Dr Watts that an equal care arrangement is in the best interests of the children is also unchallenged, supported by the evidence of both parties and consistent with the agreed arrangements which have been in place since the parties separated.
106Indeed, the present arrangements are in the terms proposed by Ms Ruggeri throughout the proceedings up until the filing of her amended response on 27 March 2017. In her trial affidavit, she said that the current arrangement:
…sees the Children spend approximately 61 hours a week with me and 58 and a half hours with [Ms Giallo]. I note there is a difference of 3 hours which could be worked out equally through negotiations. The current arrangements allow the Children to have equal time with [Ms Giallo] and I each week. This excludes [Child B] however as he is only at school 3 days of the week.

107I conclude that it is both in the best interests of the children and reasonably practicable for them to continue to live equally with each parent.
108It remains then to resolve the difference between the parties as to how such an arrangement is best structured.
109Ms Ruggeri submits that, should I conclude as I have that the children should live equally with each parent, the present arrangement should simply continue by the interim orders made on 7 October 2016 by consent being pronounced as final orders. Ms Giallo submits that the 2/2/5/5 arrangement should be implemented, progressing to the week about arrangement in mid-2023.
110In that regard again the uncontested evidence of Dr Watts is helpful. He said this:
My recommendation is that younger children like short, frequent visits, and as they get older they like longer blocks of time. The first thing I see is we have two happy secure boys enjoying a great relationship with [both parties]. It begs the question, if this current arrangement is working, why change it now? Therefore, if the parties proceed to Trial I would recommend the current arrangement stays in place, pending the outcome of the relocation.

111After noting the then impending changes in Ms Giallo’s life from the anticipated birth of Child C, Dr Watts went on to say:
I see value in shifting the arrangement to longer blocks of time rather than more frequent cycles as currently is the case, probably from next year (assuming the relocation issues resolved).
My recommendation at that time would not be to go to week-week blocks. I would consider the children would find it pretty hard to adjust from the relationship that they have now to that type of arrangement. Therefore, I would recommend that the children have something like a 2/2, 5/5 style arrangement.... This allows one or both parent (sic) to be able to work regular part-time days as they choose, or know which days they are going to have shorter or longer work time but, more importantly, the boys are never more than 5 days away from the other parent.
Such an equal-care arrangement is likely to need reviewing somewhere between 10 and 12 years of age, because at that age the children may find the 2 night, 2 night has become inconvenient and they would prefer to have block time of alternating weeks. At this age their perception of time is a lot better and their ability to communicate through alternate means such as telephoning when they want will be well-established.

112Ms Giallo’s proposals were consistent with the recommendation of Dr Watts. In arguing for a continuation of the interim orders, Ms Ruggeri expressed both concerns about the practicality of any change given Ms Giallo’s work commitments, and the view that the responsibility for care of the children should be undertaken by the parties and not by others on their behalf. During her re-examination, the following exchange explained her views:
[COUNSEL FOR MS RUGGERI]: [Counsel for Ms Giallo] asked you some questions about you not agreeing to certain of the orders that [Ms Giallo] had sought. Are there any practical reasons why you’re opposed to the 2/2/5/5 arrangement suggested?
[MS RUGGERI]: [Ms Giallo] works full-time and works long hours and used to travel interstate and in the State as well, lots of travel, and I feel that [Ms Giallo] in her orders put “or her delegate” and it’s for me or [Ms Giallo] to be the parents for these children, not for delegates.
[HIS HONOUR]: Does that mean, and I’m not putting words in your mouth so tell me if I’m wrong - does that mean that if everyone was in the same place, whether it was Perth or [Country A], you don’t have a conceptual problem with the 2/2/5/5, provided that if either you or [Ms Giallo] are not available to personally look after the kids the other would, or am I taking that too far?
[MS RUGGERI]: The 2/2/5/5 I personally struggle with, I will miss my kids and it will be a long period of time without them. But yeah it’s a big important issue for me that [Ms Giallo’s] not just giving them to delegates - that she will be there to pick them up and look after them. And that’s a very big… because that’s what I want to be, is there for my kids and if [Ms Giallo] can’t I want to pick up the slack as their Mum.

113I found Ms Giallo’s evidence as to the flexibility involved in her work arrangements while she is in Perth to be credible. It is not suggested by either party that the other would ever make inappropriate arrangements for the care of the children; rather, Ms Ruggeri argues that if Ms Giallo is going to be away and unable to care for the children then they should remain with her.
114I accept that argument. I propose to make orders requiring Ms Giallo to give Ms Ruggeri notice if she is going to be away from Perth for more than 24 hours during any period when the children would be in her care, giving Ms Ruggeri the option to care for the children during that period. It will be up to Ms Ruggeri to decide whether she wishes to take up that option; I regard that as being preferable to any orders which would in real terms require Ms Ruggeri to hold herself available to the vagaries of Ms Giallo’s work commitments, thereby inhibiting her own ability to arrange her study, part-time work and eventually full-time work.
115In my view, the arrangements recommended by Dr Watts are otherwise appropriate and in the children’s best interests. I regard it as appropriate for the new arrangements to commence from the start of the 2018 school year to allow both parties time to make any necessary arrangements. I also regard it as appropriate for the term time arrangements to alter to the week about arrangement at the end of Term two in 2023 as recommended by Dr Watts; by that time, both children will be old enough for such an arrangement to be more suitable and considerable time will have passed since the anticipated conclusion of Ms Ruggeri’s study.
116Of course, it is open to the parties at any time to agree to bring the proposed change forward if that suits their circumstances and if they both perceive it to be in the children’s best interests.
117The parties were unable to agree the arrangements to be put in place for school holidays. Ms Giallo proposes that the children spend half of each school holiday period with each parent in a block. Ms Ruggeri did not agree, arguing that such an arrangement would involve the children being away from her for too long, while acknowledging the inconsistency between that position and her proposal that the children spend extended holiday time with Ms Giallo in the event that they lived with her in Country A. She explained that inconsistency by saying that the proposal for holiday time if she was living with the children in Country A reflected a pragmatic acceptance of the costs and time limitations associated with the travel involved.
118In my view, it is appropriate for the children to progress towards more extended holiday periods with each parent. That need not, however, commence immediately. I consider it appropriate for the children to settle into the 2/2/5/5 arrangement for a period before making the next change in their arrangements. Accordingly, I propose that the 2/2/5/5 arrangement will continue in place through the school holidays at the end of Term one and two in 2018, with holiday arrangements broadly as proposed by Ms Giallo to commence from the end of Term three.
119Both parties wish to be able to travel overseas with the children. Ms Giallo properly accepts that it is important that Ms Ruggeri be able to do so, in order to visit her family. Ms Ruggeri expressed some reluctance to agree to similar arrangements to enable Ms Giallo to travel with the children, but prior to trial, and to her credit, had agreed to a proposal that Ms Giallo have the opportunity to take the children [overseas] . While that trip did not eventuate, that was through no fault of the parties.
120In my view it is appropriate for the children to have the opportunity of overseas travel with each of their parents.
121The parties were also unable to agree precise arrangements for the children to spend time with each of them on special occasions such as Christmas, Easter, Mother’s Day and birthdays, while each acknowledging that the children should spend time with both parents on each. I propose to make orders to facilitate that. While I understand Ms Ruggeri’s desire to have the children wake up in her care every Christmas morning, in my view it is clearly in their best interests to have the opportunity to do so in the care of each parent in alternate years. That is particularly so as their relationship with Child C can be expected to become more important to them as time goes on.
122In my view, the orders proposed by Ms Giallo in relation to change over are sensible. Ms Ruggeri’s primary objection to those orders was the inclusion in Ms Giallo’s proposal of provision for the children to be collected by “her agent”; that reflects Ms Ruggeri’s ongoing difficulty in dealing with Ms L. While I have no doubt that Ms L would behave appropriately at all times, by the same token I accept that Ms Ruggeri’s issues in that regard are genuine and deep-seated and not susceptible to her simply “getting over them” intellectually. I therefore propose to craft orders in a manner to reassure Ms Ruggeri that the opportunities for her to come into contact with Ms L will be minimised in so far as that is consistent with the best interests of the children.
123Ms Giallo sought an order requiring the parties to do all things necessary to enrol the children in School A. Ms Ruggeri opposed the making of any such order, preferring that the children remain in their present school. On her case, the children are happy there and in addition she herself is developing a network of other parents at the school which she finds helpful and supportive. Ms Giallo had no objection to the children being at that school other than financial; in her view, the present financial circumstances of the parties mean that they cannot afford the relevant fees.
124Financial issues between the parties are yet to be resolved, and such evidence as there was before me about their respective financial circumstances was understandably incomplete, given that Ms Giallo’s amended application was only very recently filed. Ms Ruggeri has taken the necessary steps to have the children’s fees at their current school paid in the short term. Any ongoing dispute between the parties as to which school the children should attend, how any associated expenses should be met and the interaction of that with the assessment of child support, can appropriately be considered further in the resolution of their financial affairs against the background of the agreed order for equal shared parental responsibility. At this stage, I do not propose to make any order in relation to the children’s future education. I do, however, propose to make the order sought by Ms Giallo which will restrain both parties from changing their place of residence to anywhere more than 50km from School A.
125Additionally, the necessary leave to bring the application for financial relief can be sought retrospectively; the day before the scheduled delivery of these reasons, an application was filed by Ms Ruggeri in relation to that issue. I do not, therefore, propose to dismiss the application for financial relief at this stage.
126I also propose to make the order sought by Ms Giallo restraining both parties from behaving in ways which they would both agree are inappropriate; while Ms Ruggeri indicated that she regarded such an order as unnecessary, she readily agreed that it could be made.
127Otherwise, I propose to make the various incidental orders that the parties agreed could be made by consent.
128I recognise that Ms Ruggeri will be disappointed by my decision and I acknowledge that the emotional difficulties she faces are real. That said, the evidence supports a conclusion that she is making progress in that regard, and that she has taken some steps to obtain appropriate professional support. The evidence and the parties’ presentation in court also supports a conclusion that Ms Giallo and Ms L will, once the stresses of the court proceedings are behind the parties, make considered efforts to avoid actions which would exacerbate Ms Ruggeri’s struggles with the circumstances of separation.
129As Dr Watts observed, Child A and Child B are very fortunate to have two mothers who are dedicated, devoted and capable parents.

Proposed orders

130Subject to any submissions as to form, I propose to make the following orders:
1.All previous parenting orders be and are hereby discharged.
2.[Ms Giallo] (“the Applicant”) and [Ms Ruggeri] (“the Respondent”) have equal shared parental responsibility for the children, [Child A] born [in] 2011 and [Child B] born [in] 2013 (“the children”).
3.The children live with each party equally as set out in the orders below, unless otherwise agreed between the parties.
4.If either party will be unavailable to personally care for the children for any period of time longer than 24 hours, during a time when the children would be in that party’s care pursuant to these orders, that party shall promptly notify the other party, who may elect to care for the children during the unavailability of the first party.
Until Commencement of the 2018 School Year
5.From the date of these orders until the commencement of the 2018 school year, the children live with the Applicant from 2.00 pm each Wednesday until 9.00 am each Thursday and from 2.50 pm each Friday until 8.00 am each Sunday, and with the Respondent at all other times.

School term
6.From the commencement of the 2018 school year, until the end of Term 3 in the 2023 school year, the children live during school terms:
(a)with the Applicant for a two night block from 8.00 am or the beginning of school on Monday until 8.00 am or the beginning of school on Wednesday in the first week of a two week cycle;

(b)with the Applicant for a five night block from 8.00 am or the end of school on Friday in the first week until 8.00 am or the start of school on Wednesday in the second week of a two week cycle; and
(c)with the Respondent at all other times.

7.From the end of Term 3 in the 2023 school year the children live during school terms with each party in alternating consecutive blocks of seven (7) nights, with handover to take place at the beginning and end of the school day on Mondays unless otherwise agreed between the parties.

School holidays
8.During the school holidays at the end of Term 1 and 2 in the 2018 school year, the children live with the parties in accordance with the term time arrangements set out in paragraph 6 above unless otherwise agreed.
9.Commencing with the school holidays at the end of Term 3 in the 2018 school year, the children live with the parties as follows during the school holidays at the end of Term 1, 2 and 3 each year unless otherwise agreed:
(a)with the Respondent for the first half of the said holidays in 2018 and alternate years thereafter;
(b)with the Applicant for the second half of the said holidays in 2018 and alternate years thereafter;
(c)with the Respondent for the second half of the said holidays in 2019 and alternate years thereafter; and
(d)with the Applicant for the first half of the said holidays in 2019 and alternate years thereafter.

10.Commencing with the school holidays at the end of the 2018 school year, and subject to the orders set out below in relation to the Christmas period, the children live with the parties as follows during the school holidays at the end of each school year unless otherwise agreed:
(a)with the Respondent for the first half of the said holidays at the end of the 2018 school year and alternate years thereafter;
(b)with the Applicant for the second half of the said holidays at the end of the 2018 school year and alternate years thereafter;
(c)with the Respondent for the second half of the said holidays at the end of the 2019 school year and alternate years thereafter; and
(d)with the Applicant for the first half of the said holidays at the conclusion of the 2019 school year and alternate years thereafter.

Christmas and other special occasions
11.Notwithstanding any other provisions of these orders, the children spend time with each party over the Christmas period as follows unless otherwise agreed:
(a)with the Applicant from 5.00 pm on Christmas Eve until 2.00 pm on Christmas Day in 2017 and each alternate year thereafter;
(b)with the Respondent from 2.00 pm on Christmas Day until 5.00 pm on Boxing Day in 2017 and each alternate year thereafter;
(c)with the Respondent from 5.00 pm on Christmas Eve until 2.00 pm on Christmas Day in 2018 and each alternate year thereafter; and
(d)with the Applicant from 2.00 pm on Christmas Day until 5.00 pm on Boxing Day in 2018 each alternate year thereafter.

12.Notwithstanding any other provisions of these orders, in the event that Easter falls outside school holidays the children spend time with each party over the Easter period as follows unless otherwise agreed:
(a)on the first occasion on which Easter falls outside school holidays, and each alternate occasion thereafter, with the Applicant from after school on Maundy Thursday until 5.00 pm on Easter Saturday;
(b)on the first occasion on which Easter falls outside school holidays, and on each alternate occasion thereafter, with the Respondent from 5.00 pm on Easter Saturday until the commencement of school on the Tuesday after Easter;
(c)on the second occasion on which Easter falls outside school holidays and each alternate occasion thereafter, with the Applicant from 5.00 pm on Easter Saturday until the commencement of school on the Tuesday after Easter; and
(d)on the second occasion on which Easter falls outside school holidays and each alternate occasion thereafter, with the Respondent from after school on Maundy Thursday until 5.00 pm on Easter Saturday.

13.Notwithstanding any other provisions of these orders, both children spend time with each party on each child’s birthday each year as follows unless otherwise agreed:
(a)if the birthday falls on a school day, from after school until 6.00 pm with the party in whose care they would not otherwise be pursuant to these orders; and
(b)if the birthday falls on a non-school day, from 9.00 am to 2.00 pm with the party in whose care they would not otherwise be pursuant to these orders.

14.Notwithstanding any other provisions of these orders, if not already in her care both children spend time with the Applicant on her birthday each year, and the birthday of her daughter, [Child C], each year as follows unless otherwise agreed:
(a)if a school day, from after school to 7.30 pm; and
(b)if a non-school day, from 9.00 am to 2.00 pm.

15.Notwithstanding any other provisions of these orders, if not already in her care, both children spend time with the Respondent on her birthday each year as follows unless otherwise agreed:
(a)if a school day, from after school to 7.30 pm; and
(b)if a non-school day from 9.00 am to 2.00 pm.

Interstate and overseas travel
16.The parties do all acts and things and sign all documents necessary to obtain and maintain current passports for the children, with the passports to be retained by the Applicant.
17.The Applicant be at liberty to travel with the children for holidays and other short periods of time, subject to her compliance with the following:
(a)the Applicant’s travel with the children shall coincide with their normal time with the Applicant pursuant to these orders;
(b)the Applicant is to give the Respondent as much notice as possible of her intention to travel with the children, and in any event must notify the Respondent within no less than four (4) weeks prior to the proposed departure, and provide her with a complete itinerary of their proposed travel, which includes the following information:
(i)departure and return destinations and dates;
(ii)flight numbers for all flights;
(iii)localities that the children will be travelling to, and the dates and times that the children are expected to arrive and depart each locality; and
(iv)contact telephone number(s) for the children at each location for the trip.

18.The Respondent be at liberty to travel with the children for holidays and other short periods of time, subject to her compliance with the following:
(a)the Respondent’s travel with the children shall coincide with her normal time with the children pursuant to these orders;
(b)the Respondent is to give the Applicant as much notice as possible of her intention to travel with the children, and in any event must notify the Applicant no less than four (4) weeks, and provide the Applicant with a complete itinerary of their proposed travel, which includes the following information:
(i)departure and return destinations and dates;
(ii)flight numbers for all flights;
(iii)localities that the children will be travelling to, and the dates and times that the children are expected to arrive and depart each locality; and
(iv)contact telephone number(s) for the children at each location for the trip.

19.In the event of the Respondent travelling overseas with the children, the Applicant is to provide the Respondent with the children’s passports no less than four weeks prior to the date of departure, with the Respondent to return the children’s passports to the Applicant upon the return of the children to Western Australia.
20.Unless otherwise agreed, the parties shall be primarily responsible for collecting the children at the beginning of their time with the children, and the Applicant shall avoid any arrangement requiring any handover not taking place at school to be facilitated by her partner [Ms L], other than in the case of a genuine emergency.
21.In the event the parties are unable to agree with regard to handover, handover occur at [Shopping Centre A].
22.In the event of any dispute as to the interpretation, implementation or enforcement of this order (including any claim by a party that it should be varied) the parties shall first attend Family Dispute Resolution (“FDR”) with an FDR practitioner appointed by the parties and make a genuine attempt to resolve the dispute, failing agreement as to that appointment the party raising the dispute shall nominate three (3) FDR practitioners, one of whom shall be chosen by the other party within 14 days.
23.Without admission as to need, the parties, and their servants and agents, be restrained and an injunction is hereby granted restraining them from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other party or any of their immediate or extended family members including step or half family members; and
(b)discussing Court proceedings with the children and with or in the presence or hearing of the said children, and from permitting any other person to do so.

24.Each party be restrained and an injunction is hereby granted restraining them from changing their place of residence more than 50 kilometres from [School A] without prior written consent of the other party or a Court order.
25.Each party is hereby authorised to obtain from the children’s school all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited.
26.The parties advise the other of any change of telephone number or residential address within 24 hours of such change occurring.
27.The parties encourage each child’s relationship with the other party, and not undermine such relationship.
28.All outstanding applications and responses insofar as they seek parenting orders and orders in relation to child support be and are otherwise dismissed.
29.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
30.In relation to material tendered as an exhibit into evidence in these proceedings and absent the filing of any Notice of Appeal:
(a)all parties must collect the exhibits tendered by them (“their exhibits”), from the Chambers of Justice O’Brien at least 28 days, and no later than 42 days, from today’s date;
(b)all parties must contact the Chambers of Justice O’Brien to arrange the collection of their exhibits; and
(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.

I certify that the preceding [130] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate
18 October 2017