GUSTA and GUSTA
[2018] FCWA 164
•24 AUGUST 2018
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: GUSTA and GUSTA [2018] FCWA 164
CORAM: THACKRAY CJ
HEARD: 16 - 19 JULY 2018
DELIVERED : 24 AUGUST 2018
FILE NO/S: PTW 7003 of 2017
BETWEEN: MR GUSTA
Applicant
AND
MS GUSTA
Respondent
Catchwords:
CHILDREN - With whom a child spends time - Relocation - Where the mother seeks to relocate to [Town A] for a defined period – Mother has previously made allegations suggesting there may have been sexual abuse by the father of the child which were found to have no factual foundation - Accepted neither parent would expose the child to harm - Order for equal shared parental responsibility - Practical difficulty of the father spending time with the child if mother permitted to relocate considered - Found in the child’s best interests to remain living in Perth - Mother not permitted to relocate - Father to spend substantial and significant time with the child although not as much time as the father proposed or as little as the mother proposed
Legislation:
Family Law Act 1975 (Cth), s 60CC
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Mr Hedges |
| Respondent | : | Ms Farmer |
Solicitors:
| Applicant | : | Dimond Family Lawyers |
| Respondent | : | Carr & Co |
Case(s) referred to in decision(s):
Sawant & Karanth [2014] FamCAFC 235
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1The mother and the father are unable to agree about arrangements for their daughter [Lilly], aged four years. In particular, the father opposes the mother’s proposal to take Lilly to live in [Town A] until Lilly begins her secondary education in Perth. There is also a dispute as to whether the father should spend six consecutive nights a fortnight with Lilly during his rostered periods off work. The mother does not consider Lilly will cope with that arrangement and proposes that she have not more than four nights a fortnight with the father.
Background
2The parties met in 2009, commenced cohabiting in 2010, and married in 2012. Lilly, who is their only child, was born [in] 2014. She was only two when the parties separated in April 2016. Neither parent has re-partnered, although the father has a girlfriend.
3The father is aged 44 years. He is [a tradesperson], currently employed as a manager on a remote [location] in Western Australia. He spends eight days at the location and then six days in Perth. The father was previously married, but has no children other than Lilly.
4The mother is aged 51 years. She owns and operates [businesses] in Perth. She also has a 25 per cent stake in her family’s [restaurant] near [Town A] and assists in its running. She has two sons from a previous marriage, [Robert] and [Joe], both of whom are young adults.
Early care arrangements for Lilly
5The mother is a wealthy woman and the father was able to give up his work [as a tradesman] at around the time of Lilly’s birth. Thereafter, he helped out in the business and assisted significantly in looking after Lilly, although the mother was the primary carer. In July 2016, following the separation, the father resumed work on a fly-in/fly-out basis. He did not have stable accommodation for the first five months of the separation, but then obtained his current rental accommodation in a suburb not far from the mother’s home.
6The parents had a successful co-parenting arrangement following their separation. Even though the father did not have stable accommodation, and Lilly was very young, the father nevertheless had regular time with Lilly. The mother agreed to him taking Lilly to visit his family in [Town B] for about a week soon after the separation. The father also had three other extended periods with Lilly in the time between the parties’ separation and June 2017, including one period of 13 days in June 2017 when the mother went on a holiday to [Europe].
7The parties engaged a mediator early in their separation. In September 2016, they agreed on a parenting plan by which the father was to have a minimum of four consecutive nights with Lilly when he was in Perth, and for longer if he was in Perth longer than five days. There is a disagreement about how many times the father had as many as six nights with Lilly. I am satisfied he routinely spent four or five nights with her and occasionally six nights.
The sexual abuse allegations
8Although the mother no longer suggests that Lilly is at risk of sexual abuse from the father, it is important to set out the history of her earlier concerns in case the issue arises again and because it is potentially relevant to some of the issues I must decide.
9There was no suggestion by the mother during the relationship that the father had any sexual interest in Lilly. However, looking back after the separation, the mother had some doubts about him having played games in bed with Lilly when she was not wearing a nappy. A video clip was played during the trial showing an occasion when Lilly was playing on the bed without a nappy. It appeared perfectly innocent but the mother said this was not a representation of the type of play that had caused her concern. Nevertheless, the mother readily allowed the father unsupervised time with Lilly following the separation.
10On 19 June 2016, during a FaceTime session, the mother observed that Lilly was naked in the bath at the father’s residence, along with the five year old son of the male friend with whom the father was then boarding. The mother believed that the children were only being supervised by the boy’s seven year old sister, and she told the father he needed to stay in the bathroom supervising Lilly.
11On 11 July 2016, following Lilly’s return from the father, the mother observed Lilly “grabbing at her genital area, opening and closing her labia majora” and saying “looking mummy, pee pee”. The mother said that Lilly’s vagina was “gaping and was about the size of a 5 cent coin”. After Lilly was placed in the bath, the mother observed her “frantically” scrubbing her face with water. The mother said she slept on her concerns and then decided the next day to take her to a doctor. While the father tried to make something of the choice of doctor, I find nothing sinister in her choice of [Dr T], who was a female doctor at the local clinic where Lilly had previously attended, albeit she had not always been seen by Dr T.
12Following an examination, Dr T concluded that Lilly’s hymen was not intact, that her vulva was inflamed and that her introitus was larger than that expected for her age. Dr T said that in these circumstances she was obliged to make a report to the Child Protection Unit at Princess Margaret Hospital (“CPU”). There is nothing in the evidence to suggest that the mother sought that such a report be made, or that her intention in taking Lilly to the doctor was to ensure such a report was made. The mother recalled in her oral evidence that she had broken down crying when the doctor told her she believed Lilly’s hymen was not intact. The mother could think of no explanation other than that Lilly had been sexually abused by the father.
13On the day after the doctor’s visit, the mother who was by this stage “distraught”, observed Lilly touching her genital area at bath time and trying to put her hands in her vagina. When the mother stopped her and explained that “these are [Lilly]’s special parts”, she said that Lilly “began vigorously scrubbing her face in a frantic motion”, which the mother found unusual, since she said Lilly usually did not like having her face washed.
14The mother was then required to take Lilly to the CPU on 14 July 2016. After she was examined again, the mother was told by the staff that Lilly was a “normal, healthy little girl”. I accept that the mother was probably not told expressly that Lilly’s hymen was intact, but was instead told that it was not visible, possibly because it was “high up”. The mother said the medical staff seemed in a hurry and then moved on to see other patients. Bearing in mind that the mother had been informed just two days previously by a doctor that Lilly’s hymen was not intact, I do not find it surprising that she recalls leaving the appointment at the CPU feeling confused and with doubt about the outcome of the examination. Although she was contacted later in the day by the CPU to advise they were “closing the case”, she did not receive a written report explaining what had been concluded by the medical staff.
15I accept that at this point the mother was in “quite a state” following the appointment with Dr T. Her anxiety was heightened when the father telephoned her on the way home from the CPU appointment and revealed that he knew she had been to the CPU. She had mentioned nothing to him of Lilly’s behaviour, nor had she told him about going to the CPU. It transpired that the father knew of the visit because he still had access to her electronic diary.
16I doubt that the mother’s anxiety has returned to “normal” following what I accept was a traumatic 48 hours around the time of being told Lilly’s hymen was not intact. Thereafter, the mother appears to have been somewhat hypervigilant and has not appreciated that her own anxiety may have had an impact on Lilly’s subsequent statements and behaviours which were chronicled in some detail in her trial affidavit. I observe too that it seems not to have been thought that there was a possibility that Lilly’s seemingly unusual behaviour was associated with inappropriate conduct by anyone other than the father. While it was said that he was the only person with “access” to Lilly, she had in fact (inter alia) been living in a home with the father’s male friend and bathing with at least one of the friend’s two young children.
17The mother accepts she had ongoing concerns, but decided to take no further action as she thought Lilly’s behaviour would “normalise”. This is borne out by the fact that very soon after the visit to CPU she allowed the father to take Lilly on an eight day holiday to [the Eastern States] and she also permitted unsupervised visits, albeit there were times when she would not allow overnight time because of the father’s transitory and not entirely satisfactory accommodation arrangements.
18On 18 August 2016, the mother observed that Lilly’s vagina was “a bit red”. Lilly said she was “sore” when touching her genital area. The parents exchanged text messages in which the father suggested the mother was implying that he had hurt her, but to which the mother responded by explaining she simply wanted to know whether Lilly had been hurt, for example by “falling on something”. Very soon thereafter, on 2 September 2016, the parents agreed to the parenting plan that permitted the father extensive overnight time, which commenced once he had obtained stable accommodation.
19The parties largely complied with the parenting plan. As is not uncommon, there were occasional (fairly minor) issues between them involving Lilly. The mother was inclined to believe the father was too laissez faire in his parenting and the father was inclined to think she was too controlling. There seems to be some truth in both assertions, however it is accepted by both parents that the other loves Lilly and it was generally accepted that the other parent wishes to do the best for her.
20The mother has extensive experience in looking after her own (male) children as well as a background in [nursing], combined with 22 years’ experience in running the businesses. Therefore, while the father was, for example, dismissive of her concerns about him taking Lilly to play at the “[Swamp]”, the mother probably had a soundly based concern about the consequences of the father engaging in imaginative play with a child who was perhaps a little young for what sounded like a pretend crocodile/tiger hunt.
21On 23 April 2017, during a FaceTime call, the mother observed the father in bed with Lilly. Lilly was not wearing a nappy or underwear and the father was shirtless. It was in the middle of the afternoon and it is accepted Lilly would have appropriately been in bed for her afternoon nap. During the course of the call, Lilly said to the mother, “look mummy I touch my pee pee”. The mother asked the father why Lilly had no underpants on and he replied words to the effect “she won’t let me”.
22The mother also had FaceTime contact with Lilly on 9 July 2016 after the father had sent her a text saying he was in bed with Lilly. The mother felt that Lilly looked “really sad” and her “mother’s intuition” led her to have concerns about what might have been happening between Lilly and the father. Whatever concerns the mother felt, they were not such as to prevent her leaving Lilly with the father for 12 nights in June 2017 while she went on a holiday to Europe.
23The mother claims that, in September 2017, Lilly said “out of the blue” words to the effect, “mummy, you get your fingers and you go up and down, up and down, up and down on your pee-pee”, while she “had her hand in the air holding together her pointer and index finger together, motioning up and down”. The mother said she explained to Lilly that “no one is allowed to touch her private parts”, although nothing in the words Lilly used indicated that anyone else had touched her private parts. In any event, the mother said that she accepted “this was a form of sexual exploration by [Lilly]” which was age appropriate.
24On 2 October 2017, while Lilly was watching a movie and the mother was on her laptop, the mother says, “[Lilly] bent over in the downward dog yoga position and began wriggling her bottom in the air and said words to the effect of ‘my daddy touches my bum with his finger’”. The mother said that she was shocked and simply asked Lilly “where”, to which Lilly responded “in his bed” and the mother then asked “which part”, to which Lilly responded “my bumhole”. The mother said she had never heard Lilly use the word “bumhole” previously.
25The mother said she was concerned about what Lilly had said and therefore, on the following day, contacted the child protection authority (“DCP”) who advised her to contact Protective Behaviours WA who in turn told her that what Lilly had said was a “disclosure” which must be reported to the CPU, who in turn told her to tell the local police. The mother was promptly interviewed by the police. Shortly before giving her statement to the police the mother says she asked Lilly whether, when she had reported that “daddy touches your bottom with his fingers, is that when he’s changing your pooey nappy”, to which Lilly allegedly responded “no, in a different way”.
26The mother said she was concerned about the father spending unsupervised time with Lilly given her “disclosures” and that she followed advice from the police to postpone him spending time with Lilly until the investigation had been completed. The mother claims, and I accept, that the police officer said words to the effect that children of Lilly’s age “don’t just make these things up” and that “they have no reference points to create the disclosures from”. I also accept that the mother was concerned that the father would seek to confront her if she denied him time with Lilly and therefore booked herself into a hotel with Lilly for three nights. While at the hotel, the mother spoke with Lilly’s regular babysitter who informed her that when she last babysat Lilly on 29 September 2017, Lilly had told her that she did not want to go back to “daddy’s house” and wanted to stay with “mummy” all the time.
27Lilly was “interviewed” by the police on 5 October 2017, but did not make any disclosures concerning what she had said to her mother on 2 October 2017. The police immediately closed their investigation but said they would make a referral for Lilly to attend a protective behaviours course.
28On 7 October 2017, the mother supervised a visit between Lilly and the father. She claims and the father denies that he said words to the effect, “look, it could be to do with when I had put my fingers inside [Lilly]’s vagina to get poo out as she had the runs”. The mother said she found it “very concerning” that the father would “guess that this was the matter about which [Lilly] had made disclosures” because she had not said anything to the father about Lilly making disclosures regarding him inserting a finger into her body. Even if this is true, it does not seem to me out of the ordinary that the father would guess that this might be what Lilly had been saying. I am also not satisfied that the father ever did anything more than appropriately clean Lilly’s private parts when she was dirty. In any event, soon after this visit the mother approached contact services to arrange for the father to have supervised time with Lilly.
29On 25 October 2017, shortly after the mother had returned from a visit to Town A with Lilly, there was a long phone call between the mother and the father. The father tried (unsuccessfully) to record the whole conversation, having falsely assured the mother he was not doing so. During the phone call, the mother made known her desire to move to Town A within the next two years, but I do not accept that she endeavoured to “trade off” the withdrawal of the sexual abuse claims in return for the father’s agreement to her relocating. I nevertheless understand why it might be that the father was left with that impression, especially as the mother was inviting him to move to Town A and without there being any suggestion his time with Lilly there would need to be supervised.
30On 1 November 2017, the father’s visits with Lilly started being supervised by [a child contact centre]. The mother says she tried to encourage Lilly to look forward to seeing her father and she asked her whether she wanted to see her father that day. She claims that Lilly responded “no” and when she asked her why, Lilly responded “daddy hurts my bum actually”. Accepting that Lilly made such a remark, I consider it most likely that it arose as a result of conversations in which Lilly had participated or overheard and was not the result of an actual experience by Lilly of inappropriate conduct by the father. In any event, after Lilly had seen the father that day, the mother asked “[Lilly], you know when you said that daddy hurt your bum, was that true or pretend?”, Lilly responded “that’s true”.
31The father was clearly unhappy with his time with Lilly being restricted as a result of assertions that the mother herself now accepts do not have a factual foundation. He commenced proceedings on 9 November 2017 seeking six consecutive nights with Lilly during each of his periods off work. The mother filed documents at around the same time seeking permission to relocate to Town A and she also filed a Form 4 Notice of Risk of Child Abuse.
32On 1 December 2017, Lilly had her first protective behaviours session. On 2 January 2018, the mother says that “[Lilly] made a further disclosure to me”. She claims that, without prompting, Lilly said “daddy took a photo of my bum with no knickies on. He said smile”. The mother says that Lilly demonstrated going into a “downward dog position” in which the father had allegedly taken a photograph of her naked. The mother added, “this is not something that [Lilly] would have seen me do as I have not done Yoga at home in front of [Lilly]”. The mother contacted the police regarding this “disclosure”. The mother says that the police recommended that they should wait a month before interviewing Lilly so that she “would have more language”, but the mother insisted that the interview proceed as she was afraid Lilly would lose her memory of what had occurred.
33The further interview with the police took place on 4 January 2018. Lilly reported that the father had taken a photo of her bottom without her knickers on and that the photograph had been sent to the mother. In correspondence, and in her trial affidavit, the mother denied receiving such a photograph. However, a month before the trial, the mother found a video clip the father had sent to her (roughly) matching the photography Lilly described. The video clip depicted nothing inappropriate whatsoever and the mother accepted she had been very careless in not locating it earlier so this issue could have been put to rest.
34The father’s phone and computer were confiscated by the police on 9 February 2018. The father was eventually advised on 10 May 2018 that no charges would be laid and that the investigation was closed. He was informed by DCP on 21 May 2018 that their investigation was also to be closed. The mother accepts the outcome of the investigations and I proceed on the basis that there was no substance in the claims made against the father.
Care arrangements following commencement of proceedings
35Following the commencement of proceedings, orders were made on 23 November 2017 for the father to spend supervised time with Lilly on various dates. There was to be an interim hearing on 3 January 2018, but this was adjourned to 1 February 2018 due to the “disclosure” Lilly had made on 2 January 2018.
36The judgment following the February 2018 hearing was delivered on 7 March 2018. Orders were made by the Family Law Magistrate allowing the father a block of six unsupervised nights with Lilly during each of his fortnightly periods in Perth.
37Immediately following the delivery of judgment, the mother’s solicitor contacted DCP to advise of the orders made. On 8 March 2018, the mother received a telephone call from a DCP worker who told her that the father had said something of concern at a meeting that day and that it was DCP’s view he should not have unsupervised time with Lilly. This was followed by an email in which the mother was informed that DCP had “received new information regarding concerns for [Lilly] relating to sexual abuse” which were the subject of “an ongoing Police investigation”. The mother was not informed of the issue that was of concern but in accordance with the advice given, she did not allow the father the time with Lilly to which he was entitled under the 7 March 2018 orders. She also immediately instructed her solicitors to apply to suspend the orders until after the completion of the investigation and publication of the Single Expert Report and for orders that the father spend only limited supervised time with Lilly.
38On 23 March 2018, a Family Consultant completed a memorandum recording that she had been contacted by DCP who had advised that the file was currently open and that they were unable to disclose information as it was currently the subject of a police investigation. The memorandum recorded DCP’s position that any time the father was to spend with Lilly should be supervised until the investigations were complete.
39The report of the Single Expert, [Dr P], was distributed on 26 March 2018. He found nothing to indicate that Lilly had been abused or was at risk of abuse. On 26 March 2018 the Magistrate declined to suspend the orders, but varied them so as to provide for a graduated increase in the father’s time to the previously ordered six nights per fortnight. This change was in accordance with the recommendation made by Dr P in his report.
40Appeals were filed by the mother on 3 April 2018 seeking to have the orders of 7 March and 26 March 2018 set aside. These appeals were set down for hearing at the same time as the trial. Sensibly, they were not pursued given they no longer had utility, especially as the mother had permitted the visits to proceed in accordance with the orders.
41The trial was heard over four days commencing 16 July 2018, by which time Lilly had been on a number of the six consecutive night visits. At the conclusion of the trial, I made an order by consent permitting the father to take Lilly to the Eastern States for eight days in September 2018 for a family occasion. The mother had been initially opposed to such a long visit but had changed her mind by the conclusion of the evidence. Not knowing how long I would take to deliver judgment, I also delivered an ex tempore judgment permitting the mother to take Lilly [overseas] for three weeks shortly after the father’s return from the holiday with Lilly in the Eastern States. This order allows the mother to attend a friend’s wedding and is for a somewhat longer period than the father considered appropriate.
Orders sought by the father
42The father seeks an order for equal shared parental responsibility. Otherwise he proposes a time-sharing arrangement based upon both him and the mother living in Perth and, for this purpose, seeks an injunction restraining both parties from relocating Lilly outside the Perth metropolitan area.
43The father seeks six consecutive nights a fortnight with Lilly commencing at 6:30 pm on the first evening he is back in Perth after returning from the remote location. He proposes that during all school holiday periods his time with Lilly be extended so he has seven consecutive nights with her other than during the Christmas school holidays when he seeks to have the option of one block of 14 consecutive days. Otherwise, the father seeks a suite of orders I need not detail here save to note that he proposes that if he is not employed on a fly-in/fly-out roster, there should be an equal shared care arrangement, alternating on a week-about basis.
Orders sought by the mother
44The mother seeks an order for equal shared parental responsibility and for permission to relocate with Lilly to Town A “forthwith”, though counsel for the mother clarified during closing submissions that the mother seeks to relocate no later than the start of the 2019 school year. The mother intends for Lilly to return to Perth to commence secondary school.
45In the event the father remains living in Perth, the mother proposes that he spend time with Lilly when he is in Perth each alternate weekend from after school on Friday until 3:30 pm on Sunday (i.e. two nights a fortnight) and during school holidays commencing with periods of four nights but moving up to half of the three midyear holidays commencing in 2020 and for four nights each alternate week in the 2018 and 2019 Christmas school holidays, moving to three periods of one week during the 2020 Christmas school holidays. The mother proposes that handovers occur in [Town C]. She otherwise proposes a long suite of orders which I need not describe here. In the event the father moves to live near Town A, she proposes that he spend time with Lilly from after school on Thursday until commencement of school on Monday (i.e. four nights a fortnight).
46The mother also proposed a suite of orders to be made in the event that she is not permitted to relocate. These involve the father spending time with Lilly when he is in Perth each alternate week from after school on Thursday until the commencement of school on Monday. Her proposal for school holidays in that event would remain the same as that put forward in the event she was permitted to relocate to Town A.
The mother’s proposals for caring for Lilly
47The mother lives in a four bedroom, two bathroom house in [Suburb A], which has been Lilly’s home since she was a baby, although the mother has two holiday homes and spends time in at least one of them. The mother shares the Suburb A home with her son Joe and his partner. One of her work colleagues occupies an upstairs area. Lilly attends kindergarten at the local Primary School five days a fortnight from 8.45 am to 2.45 pm.
48In the event that the mother does not relocate, she will continue to reside in the Suburb A property and Lilly will complete her primary education at [her current primary school]. She will then, probably in Year 7, attend [College A] which is not far from the mother’s home.
49Although I had doubts about whether the mother worked as few hours in her business as she claimed, she is her own “boss”, has a reliable manager and will be available much of the time to attend to Lilly and her needs if she remains living in Perth.
50If the mother is permitted to relocate she will purchase a property around Town A, probably on some acreage so that Lilly can have a horse and enjoy a semi-rural lifestyle. Lilly would attend a private primary school in Town A, before probably returning to Perth in Year 7 to attend College A. The mother would retain her business interests in Perth but return here only as necessary. She otherwise plans to devote her energies to the family restaurant which has suffered financial difficulties in recent times. She will continue to be her own “boss” and will be largely available to attend to Lilly’s needs.
The father’s proposals for caring for Lilly
51The father has rental accommodation in [Suburb B]. There is no suggestion that it is anything other than appropriate for Lilly’s needs. I anticipate that the father would wish to purchase his own home depending upon the outcome of the parties’ financial dispute. I am confident that the father would ensure that he lives in close enough proximity to the mother’s home so that Lilly can continue to attend primary school and, in due course, College A.
52The father is likely to continue to work fly-in/fly-out at his current location and would be likely to continue in similar employment if his present job ends. The advantage the father sees in this arrangement is that when he is in Perth he is free to devote himself to Lilly full‑time. If he stopped working fly-in/fly-out, he would likely have to take up employment in Perth as there would not be opportunities in his field in the Town A region.
53The father comes from the Eastern States where his family still lives. The father’s parents are still alive although advancing in years (his father is 86) and are now unable to travel to Western Australia due to health issues. The father also has two sisters in the Eastern States with whom he is close. He visits his family a couple of times a year and he will continue to do so regardless of whether Lilly is living in Perth or Town A.
Impressions of the parties and the witnesses
54The father presented as an intelligent and committed parent. He has a somewhat laconic demeanour consistent with the evidence that suggests a fairly relaxed style of parenting. Given the significant disruption in his time with Lilly over the last nine months he presented with somewhat less resentment than what might otherwise have been expected. I was left with the impression that he endeavoured to tell the truth, albeit I was not persuaded that he had an accurate recollection of all of the many relevant events and conversations.
55The mother also presented as an intelligent and committed parent, albeit somewhat anxious. She repeatedly emphasised that her primary focus was on Lilly and I accept that is the case. She often failed to answer questions put to her by counsel for the father but I am not persuaded that this was always necessarily a sign of evasiveness but rather a reflection of her way of processing information. Although the mother, albeit arguably belatedly, accepted without apparent reservation that her fears about the father’s conduct towards Lilly have no foundation, I consider that she harbours lingering doubts. I was left with the impression that she endeavoured to tell the truth, albeit on occasions she was inclined to put a “spin” on past events so as to make her position in relation to the abuse allegations appear appropriate.
56Overall, I was left with the impression of two parents who were fundamentally decent and honest people and who are very strongly committed to achieving the best outcome for Lilly.
57None of the witnesses for either party was required for cross-examination save for Lilly’s maternal grandfather who is retired. He appeared to be a balanced and pleasant man who told the truth.
Applicable law
58These proceedings fall to be dealt with under the Family Law Act 1975 (Cth) (“the Act”), which makes Lilly’s best interests the paramount consideration.
59In deciding what orders to make, I must be guided by the objects of the Act and the principles underlying them, which indicate 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;
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
(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.
60As the Full Court said in Sawant & Karanth [2014] FamCAFC 235:
8. Orders that contemplate one parent and the child living in a place geographically remote from the other parent immediately bring the Objects and Principles of Part VII of Family Law Act 1975 … into sharp focus. The Objects of the Part “are to ensure that the best interests of children are met by” them having, among other things, “the benefit of both of their parents having a meaningful involvement in their lives …”. (s 60B(1)). The Principles underlying those Objects include the child’s right to “… spend time on a regular basis with … both their parents …” (s 60B(2)).
9. Yet, neither that right vested in the child, nor those consequential roles of the child’s parents, is absolute; when parents are unable to agree upon co-parenting arrangements, that right and those roles is each qualified by the Court’s determination as to what orders best meet the particular child’s best interests. That is neither more nor less so when a proposed significant geographical separation renders acute those Objects and Principles and the Considerations which mandatorily dictate the manner in which the child’s best interests are determined. While “relocation case” is a convenient descriptor for cases of this type, no specific statutory principles govern cases which meet that description. (See, for example, M v S (2007) FLC 93-313 per Dessau J; Taylor v Barker (2007) 37 Fam LR 461).
10.The parties’ proposals are important because they mark each parent’s own assessment of the nature and extent of their role; that is, what each sees as their “meaningful involvement” in the life of their child consistent with the child’s best interests. For that reason alone those proposals must be carefully considered albeit that, because the court is charged independently with arriving at a decision as to the child’s best interests, it is not bound by those proposals (see U v U (2002) 211 CLR 238 at [70], [72] per Gummow, Callinan JJ; Gleeson CJ and McHugh J agreeing).
61These remarks are apposite, as they draw attention to the fact that the focus must always remain on what is in Lilly’s best interests. In determining the orders most likely to be in a child’s best interests, the legislation mandates an approach to be followed if there is an order for equal shared parental responsibility. In coming to my decision, I am required to apply a presumption that it is in Lilly’s best interests for her parents to share parental responsibility equally. The presumption does not apply if there are reasonable grounds to believe that either parent, or a person who lives with them, has engaged in child abuse or family violence (as defined in the Act). Furthermore, this presumption may be rebutted by evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility.
62The allocation of parental responsibility does not govern the time Lilly will spend with each parent. However, if I make an order for equal shared parental responsibility, then the Act requires me to consider whether spending either equal time or, failing that, “substantial and significant time” with each parent would be in Lilly’s best interests. If either alternative is in her best interests, then I must consider making such an order, provided I have also found the arrangement to be “reasonably practicable”.
63In determining what is in Lilly’s best interests, I must consider the matters in s 60CC of the Act, which are divided into “primary considerations” and “additional considerations”. The dichotomy between the “primary” and “additional” considerations has been considered in many judgments of the Full Court, which have also discussed the significance of Parliament having described just two of them as being “primary” considerations. Those judgments adopt the analysis of former Justice Richard Chisholm, who said in one of his many scholarly papers:
It is clear that the relationship between the “primary” and the “additional” factors cannot be that any primary considerations must necessarily outweigh any combination of “additional” considerations. First, the language of considerations involves matters of degree, not absolutes. Second, such an approach would be inconsistent with the fundamental principle that the child’s best interests must be the paramount consideration … Third, and most obviously, it is expressly stated in [paragraph 51 of the Explanatory Memorandum] that there may be some instances where secondary considerations may outweigh the primary considerations.
64It is within this legal framework that I must determine this case.
The primary considerations
65The first of the primary considerations is the benefit to the child of having a meaningful relationship with both parents. It is accepted that a “meaningful relationship” is one which is important, significant and valuable to the child, and that “meaningful” is a qualitative adjective, not a quantitative one. It is common ground that there will be great benefit to Lilly of having such a relationship with both her parents. They both make her their first priority and have a great deal to offer her. I accept that Lilly would have such a relationship with both parents regardless of whether the mother was living in Perth or Town A.
66The second of the primary considerations is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The Act prescribes that this factor is to be given greater weight than the first of the primary considerations. Despite earlier reservations on the part of the mother, it is now accepted that neither parent would expose Lilly to any harm provided the mother does not continue to raise issues regarding sexual abuse of Lilly without any foundation.
The additional considerations
67I turn now to the additional considerations.
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
68Lilly is too young for her views to be considered.
(b) the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
69Lilly was breastfed until age six months and has spent the majority of the time in the care of the mother. The father has nevertheless been significantly involved in her care. I am satisfied that Lilly’s primary attachment is with her mother, but that she has a secure attachment with her father.
70Lilly also enjoys good relationships with the members of her extended family. These relationships will continue regardless of where the mother lives. Significantly, Lilly has been able to build strong relationships with the members of her mother’s family who live in the [area around Town A] notwithstanding that she herself has always lived in Perth.
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
71Both parents have taken up opportunities to participate in making decisions about Lilly and have always been keen to spend time with her and to communicate with her. Although the mother refers to occasions when the father has not taken up opportunities to see Lilly, she acknowledges these have been very much the exception.
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
72Each parent maintains Lilly when she is with them. The father commenced paying child support of $879.42 per month in November 2017. The father recently had an increase in his salary but the child support payments have not yet been reassessed.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
73If Lilly was living in the Town A region, she would have greater opportunities to spend time with relatives living in that area. She would also continue to be able to spend time with her father but not quite as much time as she would if living in Perth. On the other hand, she would likely spend less time with her half-brothers with whom she has a good relationship. She would also no longer be living in close proximity with the mother’s work colleague who has lived in her home since July 2016. The work colleague gave evidence that “[Lilly] appears to treat [her] as a member of the family”. Lilly would also no longer have a close proximity relationship with her regular babysitter who gave evidence that she considers Lilly to be “like a member of my family and I believe she feels the same way”.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
74If the mother was living in Town A, there would be much greater practical difficulty in the father spending time with Lilly given his roster and travel arrangements. I am not persuaded that he would be able to fly in and out of either Town C or [Town D].
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
75Both parents have the capacity to provide for all of Lilly’s needs. I accept Dr P’s assessment that the mother is an “exceptionally competent parent” and that the father is a “reasonably competent parent”. I also accept that there may be some substance in the mother’s concerns that the father is not as attuned as she is to the developmental needs of a young child. On the other hand, the mother has not shown quite the level of insight into some of Lilly’s statements and behaviours that might have been expected of a person of her experience.
76I accept Dr P’s assessment that while there are no real concerns about the father’s parenting, he may have more problems dealing with Lilly when she “is a teen and speaks her own mind”. I also accept his assessment that the mother provides a good “balance between her warm, loving and attentive nature and her ability to set limits” and that “she would be highly capable of providing [Lilly] with good quality developmental experiences”.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
77Dr P described Lilly as a “delightful little girl” who is “bright and happy [and] developing well”. I consider both parents can take credit for this. However, as Dr P said in his report, Lilly is a child who is used to getting her own way and being the centre of attention, and there is a danger of her “being a little precocious”. My impression is that the parents will need to work closely together to ensure that appropriate boundaries are set for Lilly and so she does not play one off against the other as she develops.
(h)if the child is an Aboriginal child or a Torres Strait Islander child …
78This factor is not relevant.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
79Both parents have demonstrated a good attitude to the responsibilities of parenthood.
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied…
80The parties had a difficult relationship, although their major disagreements were generally not played out in the presence of family and friends. I was inclined to think there might be some truth in the assertion by the father’s sister that the mother was disinclined to consider any views other than her own and I note also Dr P’s assessment that she is “fairly strong‑minded”. On the other hand, I accept that the father was not infrequently very unpleasant in his dealings with the mother and with Joe, with whom the father often clashed. The little evidence suggests that the father had a better relationship with the mother’s other son, Robert who, unlike Joe, did not file an affidavit.
81There was no physical violence in the relationship other than that the father slammed doors, once punched a bathroom door and once threw a washing basket in the mother’s direction. He also kicked the dog when the dog knocked Lilly over a few years ago. The father has, however, shown some insight into his lapses in conduct as demonstrated by the fulsome post-separation apology he wrote to the mother in which he described himself as “just a stupid stubborn … boy” and in which he described the mother as “a prefect [sic] mother, and so good with [Lilly]. So creative, so beautiful”.
82I accept that following the separation the father copied the mother into emails in which she was identified as “Cow Face”. I accept, however, that the father did not expect that the mother would see this unpleasant description, it being a title he had given her for his own amusement in his “address book”. I nevertheless accept that on at least one occasion during a dispute in front of Lilly the father referred to the mother as a “selfish cow”.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
83It would be preferable to make an order that would minimise the prospect of further proceedings between the parties; however, once the relocation issue is resolved it is likely the parties will continue to endeavour to resolve other issues that arise through mediation. There can be no guarantee there will not be further proceedings, regardless of the order I make.
(m)any other fact or circumstance that the court thinks is relevant.
84I am not persuaded that either party has ever had any significant mental health issues.
Parental responsibility
85Both parties seek an order for equal shared parental responsibility. I am satisfied such an order is in Lilly’s best interests. Although the parents have their differences and engage in some “niggling”, they are generally able to co-operate to make good decisions for Lilly. I am prepared to accept that some of the father’s unnecessarily abrupt communications as evidenced in Exhibit 1 may be the product of his understandable anger at being accused of sexual abuse. I hope their communications will improve now that this issue has been laid to rest. The parties should also now appreciate that all such communications will be of great interest to a judge or magistrate dealing with any further disputes between them.
86The parties are also aware of Dr P’s recommendation that they consider attending on a therapist or use a program such as Our Family Wizard to assist them in communicating. I would encourage them to consider these options but do not think it necessary to make any order on the topic given their proven ability to reach generally satisfactory agreements.
Equal time and substantial and significant time
87As I will make an order for equal shared parental responsibility I am obliged to consider making an order for equal time. For reasons I will give shortly, I consider that an order for the father to have something less than equal time would be the outcome that would be most likely to promote Lilly’s best interests. In any event, an order for equal time is presently not practicable given that the father works eight days a fortnight at a remote location. While he seeks an order for equal time if he returns to live in the Perth metropolitan area, there is no indication that he is likely to do so in the near future. I am satisfied, however, that an order for each parent to have substantial and significant time with Lilly would be in her best interests. Both parties’ proposals for the time Lilly is to spend with each parent if she lives in Perth answer the description of “substantial and significant time”.
88I accept Dr P’s assessment in his original report that it would be in Lilly’s best interests if she was to live primarily with the mother, who would provide her with a stable “base”, but spend something less than six nights a fortnight with the father. I accept Dr P’s evidence that having four or five nights a fortnight with the father would be sufficient to ensure that he maintains a good relationship with Lilly. Given the significant involvement he has had in her life to date and the closeness of his existing relationship with Lilly I consider that it would be in her interests to spend five nights each fortnight with him. I note that when the mother was speaking with DCP in May 2018 she said she would be happy to agree to Lilly spending five nights per fortnight with the father.
89Although not the primary reason for so ordering, such an arrangement will allow the father to settle in after returning from the remote location rather than immediately having Lilly come into his care as is occurring at present. It also allows a little more flexibility for those odd occasions when the father may be detained at the remote location or be required to return earlier. There is also a greater likelihood of the mother supporting the arrangement than there would be if the periods were as long as six nights. Given her past conduct, I would anticipate the mother would be looking for signs that Lilly was not coping with a six night regime. Lilly may “pick up” on her anxieties and this may interfere with the father having a satisfactory regime of visitation.
90The evidence about how Lilly is coping with the first lot of six nights a fortnight visits is inconclusive. In any event I accept Dr P’s evidence that it is too early to be sure how she would cope in the longer term with such an arrangement. While I accept that she might “cope” with spending six nights with her father, I generally accept Dr P’s reasons for considering that a somewhat shorter regular time with her father would be the preferable arrangement. I also generally accept his assessment about the times Lilly should spend with each parent during school holidays.
91In arriving at my conclusion, I have not overlooked the fact that Dr P did not have a significant opportunity to observe the parenting style and capacity of both parents, although I accept his evidence that he spent longer at the father’s residence than the father now recalls.
92While I do not propose to require a “review” of the arrangements at around the time Lilly moves into secondary education, I accept Dr P’s opinion that a review around then may be warranted as, inter alia, Lilly will be of an age where her views should potentially be taken into account. At present, all I have to go on is Dr P’s prediction, which I was inclined to think had some basis, that as Lilly “gets older and more stroppy” she may, as a strong willed child, “push more of [the father’s] buttons than mum’s buttons”. This is another reason why it may be preferable for the father not to have as many as six consecutive nights with Lilly.
Relocation
93I acknowledge that the mother does not need to have compelling reasons for wishing to move to Town A and that my task is to make such orders as I consider would be in Lilly’s best interests. I observe, however, that the mother has prevaricated in her proposals about moving. Although she sought permission to relocate when she first filed documents in these proceedings, she initially effectively wanted only the option to relocate within the next two years. Notwithstanding what was said in her Minute of Proposed Orders, the mother maintained that position at the commencement of the trial but then, for reasons which were not clearly articulated, changed her mind by the end of the trial and said she wanted to relocate by the start of the 2019 school year. I note also that in December 2017 the mother told the Family Consultant that she was no longer intending to relocate, although she might do so at a later date. When she saw Dr P in February 2018 she appeared to him simply to be keeping her options open about relocating.
94I nevertheless accept that the mother’s desire to move to Town A is a genuine one. She would like to be near her parents who are likely to need further support as they age. She would also like to be of assistance in turning around the fortunes of the restaurant which she is likely to be able to assist in doing given her skills and previous success in business. I also accept that having enjoyed a country lifestyle during her own youth, she would like to provide that opportunity to Lilly before she commences her secondary education.
95I accept that the father’s desire for Lilly to remain in Perth is also a genuine one. Lilly has spent her whole life in Perth and is well settled and well connected here, even if it is true she has only one friend at school (as the mother reported to DCP in May 2018). Most importantly, the father is concerned about the long-term difficulties associated with him maintaining a relationship with Lilly while continuing in his well‑remunerated fly-in/fly-out employment. Given the timing of flights to and from the remote location, the father would likely need to have a home both in Perth and Town A as he would need to overnight in Perth on his way home from work and certainly on his way back to work. Driving directly to and from Town A and the Perth airport would in my view be dangerous given the time of day/night and the father’s long hours of work. The father also sometimes has work meetings in Perth during his days off the remote location site. All of these circumstances would reduce his time with Lilly effectively to four nights a fortnight (at most) in circumstances where I have determined that five nights would better promote her best interests. Whether the father lived in Perth or Town A, there would be a very significant amount of travel which would become extremely tiring in the longer term (both for the father and for Lilly in the event that he decided, as he might, to maintain a residence only in Perth).
96In the event the mother’s relocation application was successful, Lilly would become settled in the Town A community only to leave at around Year 7 to take up her place at College A. While the mother proposes to maintain two residences when Lilly is at secondary school, she would not be available full-time to her parents or to the restaurant. At best, she would travel down to Town A while the father had Lilly in his care but she can do this now – and does so – as she has already begun to take on greater responsibilities with the restaurant. I note also that the mother has siblings who have the same stake in the restaurant as she does, but none of them provided an affidavit concerning the extent to which they could assist, although I accept the mother described the roles of the various family members in her evidence.
97I also consider that the mother has underestimated the extent to which she could be freed from involvement in her business interests in Perth in the event that she was to relocate to Town A. I would anticipate that she would need to return to Perth fairly frequently and not always at times of her own choosing, even though at present she has a manager whom she trusts. Whilst I am satisfied that she would make appropriate arrangements for Lilly’s care while she was away, there may be times when Lilly is not in the care of either the mother or the father, which is not likely often to be the case if both parents remained living in Perth.
98Lilly does not need to move to Town A in order to have a good relationship with her grandparents and other relatives who live in the area. There is plenty of opportunity for her to visit and she has already developed a good relationship with her mother’s family notwithstanding that they live a few hours away from each other. Significantly, as she has substantial means, the mother would be able to maintain a holiday residence in the Town A area where Lilly and she could stay during her part of the school holidays, while visiting relatives and helping out at the restaurant.
99Overall, I am satisfied that Lilly’s interests would be advanced by her continuing to live in Perth where the time-sharing arrangement between her parents can be more easily managed than would be the case if she was to relocate. Lilly will continue to live in the home in which she has lived since she was a baby, remain in the same school community in which she is currently enrolled and move smoothly into her secondary education at the nearby College A. She will still be able to continue to visit family in Town A regularly and the mother will, if she chooses, be able to be involved in the family business at Town A throughout the school holidays and during the five days a fortnight when she would not have Lilly in her care.
Orders
100The parties provided long suites of orders which had a degree of commonality. I intend to give them an opportunity to agree the terms of the orders to be made to give effect to my reasons. To the extent that there was controversy, I should indicate that (subject to hearing further from counsel about matters of detail) I consider Lilly’s best interests will be promoted by the following outcomes:
1.The parties have equal shared parental responsibility for [Lilly].
2.[Lilly] live with the mother.
3.The mother be restrained from changing [Lilly’s] permanent residence to outside the Perth metropolitan area.
4.When in Perth, the father spend five nights a fortnight with [Lilly].
5.The father spend time with [Lilly] for seven consecutive nights in the three mid-term school holidays.
6.Until she turns six, [Lilly] spend half the Christmas school holiday period with the father, but divided into blocks of seven days. After [Lilly] turns six, the father be permitted to spend this time with [Lilly] in one block.
7.For the purpose of Christmas and other special occasions, the time the parties would ordinarily spend with [Lilly] pursuant to paragraphs 2, 4, 5 and 6 be suspended and the parties spend time with [Lilly] as follows:
(a)In 2018 and each alternate year thereafter, [Lilly] spend time with the father for seven consecutive nights around Christmas with such time to include Christmas Eve, Christmas Day and Boxing Day and the father be permitted to travel with [Lilly] to [the Eastern States] during this period;
(b)In 2019 and each alternate year thereafter, [Lilly] spend time with the mother for seven consecutive nights around Christmas with such time to include Christmas Eve, Christmas Day and Boxing Day and the mother be permitted to travel with [Lilly] to [Town A] during this period;
(c)In 2019 and each alternate year thereafter, [Lilly] spend time with the mother over Easter from the conclusion of school on Thursday (or from 9 am in the event Thursday is a non-school day) until the commencement of school on the following Tuesday (or 5.30 pm in the event that Tuesday is a non-school day);
(d)In 2020 and each alternate year thereafter, [Lilly] spend time with the father over Easter from the conclusion of school on Thursday (or from 9 am in the event Thursday is a non-school day) until the commencement of school on the following Tuesday (or 5.30 pm in the event that Tuesday is a non-school day);
(e)In the event [Lilly] is not spending time with the mother on Mother’s Day, the mother spend time with [Lilly] from 5.30 pm the evening prior to Mother’s Day until the commencement of school the day after Mother’s Day;
(f)In the event [Lilly] is not spending time with the father on Father’s Day, the father spend time with [Lilly] from 5.30 pm the evening prior to Father’s Day until the commencement of school the day after Father’s Day;
(g)In the event [Lilly] is not spending time with the father on his birthday, the father spend time with [Lilly] on his birthday from 4.00 pm to 7.00 pm; and
(h)In the event [Lilly] is not spending time with the mother on her birthday, the mother spend time with [Lilly] on her birthday from 4.00 pm to 7.00 pm.
8.On [Lilly’s] birthday:
(a)If [Lilly] is scheduled to be with the mother, the time with the mother be suspended from after school (or 4.00 pm if not a school day) to 7.00 pm and [Lilly] spend time with the father.
(b)If [Lilly] is scheduled to be with the father, the time with the father be suspended from after school (or 4.00 pm if not a school day) to 7.00 pm and [Lilly] spend time with the mother.
9.The father’s time with [Lilly] be suspended once a year to allow the mother to take [Lilly] overseas for up to three weeks provided there is regular Skype or similar visual communication with the father while she is away and the mother gives the father one months’ written notice with an itinerary.
10.The father to be permitted to take [Lilly] overseas once a year during his regular time with [Lilly], provided he gives the mother one months’ written notice with an itinerary.
11.The parents otherwise be permitted to take [Lilly] overseas as agreed between them and may take her interstate at any time during their time with her.
12.The mother retain [Lilly’s] passport but provide same to the father at least 14 days before any overseas holiday with [Lilly] planned by the father.
13.[Lilly] not to be removed from school for the purposes of travel unless both parties agree.
14.The mother deliver [Lilly] to the father at the start of visits unless she is being collected from school, and the father deliver [Lilly] back to the mother at the end of visits unless she is being dropped off at school.
15.There be Skype or similar visual communication on special occasions as identified in the parties’ Minutes when it is not possible to have face-to-face time.
16.Both parties facilitate telephone or FaceTime contact between [Lilly] and the other party when reasonably practicable, including but not limited to when requested by [Lilly], and the parties instigate such communication no less than once every 7 days.
17.Each party notify the other as soon as practicable of any accident or illness requiring [Lilly] to have medical treatment, other than treatment of a minor and routine nature.
18.Both parties do all acts and things and sign all documents necessary to instruct and authorise the release to each other such information concerning [Lilly] as may be reasonably requested from time to time from each of the following:
(a)Educational institutions; and
(b)Medical institutions, including dental institutions.
19.Each party to keep the other party informed of their current address, mobile telephone number and email address and provide no less than 28 days’ prior written notice of their intention to change their place of residence.
20.The father provide his current work roster to the mother as soon as practicable and if the father’s work roster changes, the father provide the mother with written notice of the new work roster, as soon as reasonably possible, including the date upon which is roster is likely to start and details of his new work roster.
21.The parties be restrained and an injunction be granted restraining each party:
(a)From denigrating each other or any members of the other party’s extended family and/or permitting others to do so in the presence or hearing of [Lilly]; and
(b)Discussing these proceedings in the presence or hearing of [Lilly] and/or permitting others to do so in the presence or hearing of [Lilly].
22.Such other arrangements as are set out in the parenting plan that are not inconsistent with these orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
KM
ASSOCIATE24 AUGUST 2018
0
2
0