HELLICK and WALTZ

[2018] FCWA 112

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: HELLICK and WALTZ [2018] FCWA 112

CORAM: THACKRAY CJ

HEARD: 11 & 12 JUNE 2018

DELIVERED : 19 JUNE 2018

FILE NO/S: PTW 5612 of 2016

BETWEEN: MR HELLICK

Applicant

AND

MS WALTZ

Respondent

Catchwords:

CHILDREN - With whom a child lives - Relocation - Father proposes to move to [Country B] with the child - Both parents propose a major change of circumstances for the child - The child enjoys loving relationship with both parents and extended families - Order for equal shared parental responsibility - Order for equal or substantial and significant time neither sought nor practicable - Finely balanced case - Father permitted to relocate to [Country B] with the child.

Legislation:

Family Court Act 1997 (WA), s 60C, s 70A(1)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms Giles
Respondent	:	Mr Nicholls QC

Solicitors:

Applicant	:	Kim Wilson & Co
Respondent	:	Kavanagh Lawyers

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

Nil

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

1[Abe], aged nearly six years, lives with his father and stepmother in [Suburb W] a southern suburb of Perth, and spends substantial time with his mother and her partner in [Country Town N] in the south‑west of Western Australia.

2The parents come from [Country B], where Abe was born. Abe’s father is a member of the [Country B Armed Forces]. He has been seconded to [Base S], just south of Perth, for the last couple of years but must return home very soon to take up a new posting in [City B]. He wants to take Abe with him. Abe’s mother has been in Western Australia since May 2013 and intends to remain here. She proposes Abe live with her in Country Town N.

Background

3The father and mother, both aged 27 years, have spent most of their lives in Country B. The father joined the Country B Armed Forces when he was 17. He is now [an engineer], well regarded in the [Armed Forces] and has achieved the rank of Officer. The mother had employment in Country B, but stopped work for about nine months after Abe was born in July 2012. She now has a steady office job in [Town B]. Neither of Abe’s parents is an Australian citizen and nor is Abe.

4The mother and father never married. They commenced a relationship when they were around 15 years of age, started living together in 2009 and separated in May 2013, although the relationship was very strained after January 2013 when the father returned from assignment in [Country D] where he had met his present wife, [Kate].

5The father and Kate married in Perth in January 2018. They have one child, [Regan], born in April 2015. Kate is expecting another child in November 2018. She is 28 years of age, and has a diploma in engineering and was working for the Country D Military when she met the father. She visited Country B in August 2013 and soon commenced living with the father. She has since obtained residency status in Country B. She hopes to achieve permanent resident status and will then seek Country B citizenship.

6The mother met her current partner, [Jake], in 2014 and soon formed a relationship with him. Jake, aged 31 years, is a qualified [tradesperson]. They do not have any children together, nor will they in the future. Jake has two children, aged seven and five years, but he has not spent any time with them for the last four years. In December 2015, Jake purchased a home in Country Town N, and in November the following year he and the mother moved to live in that home after they had both obtained work in the south-west.

7Since Abe commenced pre-primary this year he has been spending weekdays with the father and most weekends and school holidays with the mother. The arrangements have been working well and these proceedings have been necessitated only because the father has been told that his posting in Western Australia will come to an end in early July 2018.

Previous care arrangements for Abe

8The mother stayed at home to care for Abe after his birth. She looked after him alone for nearly four months from October 2012 when the father was posted to Country D. While he was away, the mother spent time visiting her family in Perth and the father’s family in [New South Wales] where she spent Christmas. When the father returned to Country B in January 2013, the parties lived under the same roof, but the mother continued to be Abe’s primary carer as the father was working. The mother returned to work about 30 hours each week in March 2013. Abe was placed in day care for six hours each weekday.

9The mother was very unhappy and the parties agreed to separate for a year. The father agreed to the mother and Abe coming to Perth in May 2013 so the mother could be near family members who live here. She had no family support nearby in Country B to help her through a very difficult time. The father drove the mother and Abe to the airport. I am inclined to accept his evidence that the mother told him that the move to Perth would not be permanent and that she wanted Abe to grow up and go to school in Country B.

10Upon her arrival in Perth in May 2013, the mother lived with one of her sisters in [Suburb H] and quickly obtained casual work. The hours varied, but she worked anything from zero to 20 hours a week. In her absence, Abe was mainly looked after by members of her family and by the father’s sister, but there was also some day care.

11In late November 2013, Abe returned to Country B to spend time with the father. The mother agreed to this because the father was [being deployed] for a year from March 2014. The deployment was delayed and there is a dispute as to whether the mother agreed to the father keeping Abe until June 2014, which is what happened. In any event, the mother went over to see Abe in February/March 2014 and came back without him, after spending a week visiting family with Abe. There was no court order and it is unnecessary to make any further finding other than that I am satisfied the mother wanted to take Abe home.

12The mother went back to Country B to collect Abe in early June 2014. Although I accept that her original intention had probably been to live in Australia for only a year, I am satisfied by this stage she was planning to stay here indefinitely. From Abe’s perspective, there was little point the mother returning to Country B while the father was deployed overseas.

13It was shortly after her return to Perth in June 2014 that the mother commenced her relationship with Jake. Any thought the mother might have had about returning to Country B would have vanished by this time and I am satisfied the father thereafter did not expect her to return to Country B.

14In around March 2015, the father was at Base S for six weeks, and he was able to have Abe on weekends. [The father] was then deployed around the world before [he] returned to Country B (two months early) in June 2015 following the birth of Regan in April 2015. He unsuccessfully sought to persuade the mother to allow Abe to come to Country B for two weeks to meet his new half-sister at the time of her birth. Abe was then not three years of age and the father was himself away from Country B, and unable to return for the birth of Regan.

15The mother and father agreed that Abe would go to Country D for a few months around Christmas 2015 to spend time with the father, and for Abe to accompany him and Katie on a three week visit to see Katie’s family. By this time, the mother knew that the father had obtained a secondment to Base S and she thought that it would be a good opportunity to move toward a shared care arrangement. The mother and Jake went overseas for a couple of weeks while Abe was away from Western Australia.

16In January 2016, the father, Katie and baby Regan came to Perth for the father to take up his new role. I am satisfied that he sought that posting to be closer to Abe and to be able to share his care. The posting was for two years, with the possibility of an extension for a further year.

17The parties then commenced sharing the care of Abe, with each having him on three or four days a week. The arrangement ensured that Abe spent both weekdays and weekends with both parents. He also spent time at day care, with the parents sharing the costs, although more time was spent at day care when he was with the mother.

18In August 2016, the mother travelled to Country B for two weeks and Abe stayed with the father. After Abe had spent time with the mother following her return to Perth, he informed his father that he had a “new house [that was] far away”.

19On 8 September 2016, the mother advised the father that she had enrolled Abe at a day care in Town B as she would be working there from 19 September 2016. The father was not prepared to agree to this proposal although it involved Abe still spending Thursday to Sunday with the father each week. Contrary to what the father initially said in his affidavits, he had been aware of the mother’s desire to move to Country Town N since early June 2016.

20On 13 September 2016, the father commenced proceedings seeking an injunction restraining the mother from changing the day care arrangements. An order was quickly made by consent restraining both parents from changing Abe’s place of residence or day care arrangements, on the basis that the proceedings were then to be adjourned and not relisted until after the parties had attended mediation. The mother nevertheless commenced working in Town B, but commuted each day so that the care arrangements for Abe could stay in place.

21The parties attended mediation in late 2016 and reached an agreement that was formalised in a Parenting Plan. This provided for the existing arrangements to continue until the mother moved to Country Town N, following which Abe was to live largely with the father during the week, and with the mother largely on weekends and during school holidays.

22The parties attended further mediation in September 2017 and agreed that from the beginning of 2018, when Abe was to commence pre‑primary, he would live with the father during the week and for two weekends each school term, and otherwise would spend weekends and holidays with the mother. This arrangement, also recorded in a Parenting Plan, is the current care arrangement. The father drives Abe to Town B on Friday each weekend that Abe spends with his mother and collects him on the Sunday. The mother collects Abe each Friday afternoon and brings him back to Town B from Country Town N on Sundays for the return trip.

23The father was unaware at the time of the mediation in September 2017 that his request for an extension of his posting to Western Australia had been refused (as his role was being “disestablished”). He learned about it only after he and Katie returned from their two-week honeymoon in Europe in January 2018, during which time Abe was cared for by the mother. Having ascertained that he had to be back in Country B by 9 July 2018, the father commenced this round of the proceedings, following an unsuccessful effort to resolve the issue at mediation. The matter was expedited to trial on 11 and 12 June 2018.

Orders sought by the father

24The father seeks equal shared parental responsibility and for Abe to live with him in City B. He originally proposed that Abe would return here to stay with the mother for three out of the four school holidays each year, at his expense. After comment had been made during trial about the impact of this arrangement, the father amended his proposal so that Abe would come back to Australia four times each year. The father’s proposals would also permit Abe to see the mother on long weekends on the East Coast of Australia and also allow for the mother to see Abe in Country B. The father sought a variety of other orders and put forward a suite of orders that would apply in the event that the relocation was not permitted.

Orders sought by the mother

25Although the mother originally sought no order in relation to parental responsibility, her senior counsel accepted during closing addresses that such an order should be made. Otherwise, the mother proposed that Abe should live with her in Country Town N and should visit the father in Country B during three school holiday periods each year on the basis that she would meet one half of the costs. The mother did not put forward any alternative proposal about her time with Abe if the relocation to Country B was permitted, but said that she was content with the proposals the father had made.

Impressions of the parties and the witnesses

26The mother and the father both presented as polite and responsible young parents who love Abe very much and are totally committed to his welfare. I accept the submission of counsel for the father that the father presents as somewhat more mature and composed than the mother, but I also consider the mother did not have the opportunity to show herself to full advantage, partly as a result of the rigorous cross-examination she endured.

27There were few credibility issues of any significance. I consider that, as usual, each party tended to present their case in the most favourable light. Whether by design or inadvertence, the mother misled the Court into believing that her partner spent time with his children when in fact he does not. She also failed to volunteer that she and her partner once had a separation of a few months, which is potentially of some significance.

28The failure of the mother to be frank about her partner’s lack of contact with his children resulted in the father’s advisers not pursuing a line of enquiry that I am satisfied would otherwise have been explored. I was accordingly left with only Jake’s explanation for having no contact with his children. His explanation sounded plausible, and child‑focussed, but it would have been better if he and the mother had been frank from the outset.

29The mother was warned not to speak with Jake about the evidence given on the first day of the trial, but she did so, as Jake readily acknowledged when giving evidence on the second day. I doubt that the mother set out deliberately to suborn her partner’s evidence. I was more inclined to think that her actions were an indication of a certain level of naiveté that had been apparent when giving her own evidence.

30Katie presented as a pleasant young woman. Although just a little older than the father, she appeared much younger. She is an only child and comes from a loving family with whom she remains very close.

31Jake also presented well. A few years older than all of the other main adults in the proceedings, he appeared mature and thoughtful. Apart from a couple of irrelevant driving convictions, he has no criminal record and has a history of steady employment.

32Each party sensibly elected to call only one further witness – a sister of each of the parties. Both appeared to be pleasant, warm and sensible young people. They, along with the parties, gave the impression of having had a good upbringing and being family orientated.

The proposals for caring for Abe

33Abe currently moves between the homes of the father and mother, although the majority of the time is with the father. He attends pre‑primary near the father’s residence. On either proposal before the Court, Abe will leave his school and friends he has made there, but on the mother’s proposal he will live in a home with which he is familiar.

34In the event the mother’s application is successful, Abe will travel to and from Town B each school day. This will involve him being in a car for the best part of two hours each day, although the mother says this is a good opportunity for them to communicate.

35The mother has already enrolled Abe at a state school in Town B. Although roundly criticised by the father’s counsel for not disclosing the father’s existence on the enrolment form, I did not interpret her actions as attempting to “expunge” the father from Abe’s life. Although I accept the mother should have given the father’s details on the enrolment form, I was inclined to interpret her actions as further evidence of her naiveté and an understanding that there was little point putting the father on the form if he was going to be in Country B.

36Although there have been a couple of occasions when, for potentially good reasons, the mother did not permit Abe to spend an extended period with the father, there have been other occasions when she did so – including at an age when many mothers would have been very reluctant for a child to be away for so long. The father has shown little appreciation of that fact. The mother also maintained, at the very least, a cordial relationship with the father’s sister, [Maria], and ensured that Abe remained in touch with her and stayed overnight from time to time. The mother also invited members of the father’s family to Abe’s first birthday party. Importantly, Abe was always able to keep in regular contact with his father by Skype. I do not see any of this conduct as being the behaviour of a person who wished to “expunge” the father from Abe’s life.

37In the event the father’s application is successful, Abe will live with him and Katie and their two children (Regan and the new baby), in a low cost Defence Housing home just a couple of kilometres from the Base in City B. Abe will attend the local primary school, which is about 800 metres from the father’s new home. Katie will be working with a company in City B that previously employed her. She plans to take maternity leave around the birth of her baby, but will then return to work.

38The father is likely to be based in City B until at least July 2022. He does not anticipate that he will be deployed, other than for combat reasons presently not foreseeable. In due course, the father will move into the role of an instructor and I anticipate he will either continue in that role or move into the private sector working alongside the Country B Armed Forces. I do not expect he would voluntarily take on a role that would involve him being away from his current family, notwithstanding a different history with his first family.

The father’s family

39The father’s family now largely live in Australia. His parents live in New South Wales, as do his brother and his family. His sister Maria lives in Perth with her partner and their child. His other sister lives in [City Y], Country B.

40Abe’s paternal grandfather works overseas, but his paternal grandmother often travels to Perth to see the father, Maria and their families. Abe’s paternal great-grandfather lives in Country B and his paternal grandmother often travels there to see him. Maria travels to Country B each year, as her partner’s family lives there.

41Katie’s parents live in Country D, but they have visited her in both Country B and Australia each year since she commenced residing with the father. On each visit they have stayed with the father and Katie for two or three months.

The mother’s family

42The mother’s family is spread between Country B and Australia. Her father (who works fly in/fly out) and stepmother and stepbrother live in Perth, while her mother lives in [Town O], Country B. Two of the mother’s sisters and their husbands live in Suburb H, just south of Perth. One of the mother’s sisters has a son, [Brad], aged about nine years. Another sister and her husband live in Town O, which is about a 4.5 hour drive from City B. Various members of the mother’s family visit each other from time to time.

43Jake’s grandparents live at Country Town N. Abe sees them often and calls them “Nanny” and “Poppy”. Jake’s mother and stepfather also see Abe regularly when they visit the area.

Applicable law

44These proceedings fall to be considered under the Family Court Act 1997 (WA) (“the Act”), which makes Abe’s best interests the paramount consideration.

45In deciding what orders to make, I must be guided by the objects of the Act and the principles underlying them, which indicate that children’s best interests are met by:

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

(b)protecting them from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

(c)ensuring they 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.

46Section 70A(1) requires me to apply a presumption that it is in Abe’s best interests for his parents to share parental responsibility equally. The allocation of parental responsibility does not govern the time children spend with each parent. However, if an order is made 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 Abe’s best interests. If either alternative is in his best interests, then I must consider making such an order, provided I have found the arrangement to be “reasonably practicable”.

47In determining what is in Abe’s best interests, I must consider the matters in s 66C of the Act. These are divided into “primary considerations” and “additional considerations”, but the law is well settled that the “primary considerations” do not necessarily outweigh any combination of the “additional considerations”.

The primary considerations

48The first of the primary considerations is the benefit to the child of having a meaningful relationship with both parents. It is well 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.

49I am satisfied beyond any doubt that it would be in Abe’s best interests for him to have a meaningful relationship with both parents. Although submissions were made on behalf of the mother concerning the possible deleterious effect on Abe of moving to Country B, it was not suggested by either counsel that Abe would not be able to have a meaningful relationship with his parents while living in different countries. I am satisfied that he would have such a relationship by virtue of spending considerable holiday periods with the other parent and also by keeping in contact by means with which he is very familiar.

50The second of the two primary considerations is not relevant as Abe is not at any risk of harm from either parent – or from their partners. He is a much loved and well-cared for child who would be nurtured and thrive in both homes.

The additional considerations

51I 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;

52Abe is too young for his wishes to be a significant factor. I am confident he would want to see as much of both his parents as possible.

(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);

53Abe enjoys loving relationships with not only his parents and their partners, but with a wide range of extended family members, including family members of his step-parents. I anticipate that wherever Abe is living, there will be a regular stream of visitors, some of whom are likely to stay for extended periods. If he is living in Western Australia, he will be able to see more of the members of both families living here and similarly, if living in Country B he will be able to see more of the family members who live there.

54It is not possible to be precise about which of the many relationships are of most importance to Abe. Apart from the close relationships he has with his parents and their partners, his friendship with his cousin, Brad, and the relationship he has with his half-sister, Regan, seemed to be of particular importance. Abe lived in the same home as Brad after the mother came to Perth in 2013, and has lived much of the time with Regan since the father came to Western Australia in January 2016. There has been some friction between Abe and Regan, but nothing that would be unexpected with children of their age.

55Abe does not have any relationship with Jake’s children and it appears unlikely he will do so in the foreseeable future.

(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;

56Both parents have spent considerable periods with Abe and communicated regularly with him when he is with the other parent. The parents are to be commended for the efforts to resolve issues about Abe privately, including by attending mediation. They have generally been successful other than when it came to the current heart-wrenching decision.

(da)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

57Abe currently spends most of his time with the father, and the mother is obliged to pay a very nominal amount of child support to him. This is not paid – but this is of no relevance since in the father’s first affidavit he was under the impression that it was him who was meant to be making the nominal payment. The mother and father meet Abe’s educational and medical expenses equally.

(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;

58Both parents propose a major change of circumstances for Abe. The obvious impact of either proposal will be a substantial diminution in the time Abe spends with the other parent. While there will still be frequent school holiday contact, I accept that for a child of Abe’s age the gaps between holidays will seem very long and he will undoubtedly miss close physical contact with one of his parents. This sense of loss will be ameliorated to some extent by regular Skype contact and the knowledge that the other parent would wish to be close to him. It will also be lessened by the visits he will receive from members of the extended families.

(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;

59There will be difficulty and expense associated with Abe spending time with the non-resident parent. There are, however, direct flights between City B and Perth and the father can afford the costs of the four annual visits he proposes. I am also satisfied that the mother and father between them can afford the cost of the three annual visits the mother proposes. Further, if Abe was living in Western Australia, the father could meet the cost of one additional journey each year, which is what I would order if Abe was to remain here. There will therefore be no more than about three months when Abe does not physically see his other parent.

60Abe can now travel as an unaccompanied minor on some airlines that fly between Perth and City B. At least one of the airlines has a monitoring device which keeps both parents updated in relation to progress of the journey. Nevertheless, I would expect that until Abe is at least seven, both families would arrange for him to be accompanied by a relative, especially given the frequency with which family members already visit each other. Thereafter, it is likely Abe would be accompanied by a family member on many journeys because of the regularity with which the families visit each other.

61I am satisfied that both parents would arrange for Abe to remain in regular contact with the non-resident parent by means with which Abe is familiar.

(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;

62Both parents have undoubted capacity to provide for all of Abe’s needs.

(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;

63Abe is described by both parents as being “part [Country B ethnicity]”. The father says he shares the mother’s desire for Abe to be involved in his Country B culture and he gave undisputed evidence of the cultural education and linguistic tuition provided in all schools in Country B.

64The mother teaches Abe about Country B culture. Her father, who the mother described as a “very proud [Country B] man”, speaks [his native language] to Abe on occasions and asks Abe to repeat words. I consider this of great importance, as Abe is a member of a proud people with a rich and vibrant culture.

65While I accept that the mother and her family are far better placed than the father to promote Abe’s understanding of his Country B heritage and language, there would still be significant opportunity for this to occur during holidays if Abe is living with his father. On the other hand, living in Country B with the father would provide opportunities for Abe to be physically closer to his Country B heritage than when living in a foreign country.

(h)if the child is an Aboriginal child or a Torres Strait Islander child …

66This factor is not relevant.

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

67Both parents have demonstrated a very good attitude to the responsibilities they have as parents and can take great pride in the fact that Abe seems to be coming along very well, notwithstanding some fairly significant chopping and changing in his young life.

(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…

68These factors are not relevant.

(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;

69It is usually preferable to make the order least likely to lead to the institution of further proceedings. Aside from the contentious issue associated with relocation, the mother and father have shown capacity to resolve matters without litigation. There is therefore a strong basis for anticipating that once the decision about the relocation has been made, Abe’s parents will resolve future issues by direct communication or by mediation.

(m)any other fact or circumstance that the court thinks is relevant.

70I do not consider there are any other relevant facts or circumstances.

Parental responsibility

71The mother and father agree there should be an order for equal shared parental responsibility. Given the attitude they have demonstrated, including their preparedness to attend mediation, I am satisfied that making such an order will be in Abe’s best interests.

Equal time and substantial and significant time

72Having decided to order equal shared parental responsibility, the legislation requires me to consider making an order for equal time or substantial and significant time. No one seeks those orders and they are impracticable when the parents will be in different countries.

Relocation

73I turn then to the crucial issue – should Abe live in Country Town N or City B?

74The first thing to be said is that it will be the decision of Abe’s parents, not the Court, which will result in Abe not spending regular time with each parent. The mother could, if she wished, return to Country B to live near Abe if I make the orders proposed by the father. Conversely, the father, if he wished, could remain in Western Australia and spend regular time with Abe – if not continuing to have him for the majority of the time. Neither of these options is available, since both parents presented their cases on the basis of acceptance of the propriety of the choice the other has made. The father has good reasons for wishing to remain in the Country B Armed Forces and the mother has good reasons for wishing to remain in the environment in which she and Jake are now well settled.

75The second thing to be said is that there will be a safe and generally satisfactory outcome for Abe regardless of whether he is living predominantly with his father or with his mother. The only part of the proposed arrangements of both parties which is unsatisfactory is the longer periods of separation from the non-resident parent.

76The third thing that must be noted is that this is a very finely balanced case. I have found it difficult to fasten upon one factor, or series of factors, which point clearly toward the best outcome. Nevertheless it is my role to identify such factors, although in the final analysis my decision may be seen as depending more on intuition formed on the limited opportunity I have had to observe the parents and their partners.

77These are the reasons I have decided to permit Abe’s return to Country B:

1.Abe is now accustomed to staying the majority of the time with the father and, importantly, going to a school near the father’s home. There will be less change in his routine under the father’s proposal than under the mother’s.

2.Abe will have the best opportunity to continue to develop a relationship with Regan and, in due course, the baby expected later this year. They will probably be the only siblings Abe will ever have and I consider it in his best interests to have the opportunity to enjoy and learn from those associations. Abe can maintain his friendship with Brad during regular holiday visits to Western Australia.

3.While I accept that if Abe remains here, there is a likelihood that he will more regularly see a wider range of extended family than he would living in City B, I am satisfied he will still have opportunities to see all members of his family.

4.I gained the impression that the father’s relationship with Katie may be somewhat more secure than the relationship the mother has with Jake. The only objective basis upon which such a finding can be made is that there was a time when the mother and Jake separated for some months. I am not entirely convinced that I have the full story in relation to that separation (just as I was not given the full story in relation to the time Jake spends with his children). This is a significant factor since the Country Town N home is in Jake’s name and a future separation would be likely to lead to Abe shifting residence. I note also that the father’s sister Maria was not cross‑examined on her claim that the mother told her during the separation that “[Jake] had issues”. It was not put to Maria that the mother had told her that the reason for the separation was because of Jake’s long working hours. In this context it is worth noting that the mother has a history of “putting up with” the lot of a “[Armed Forces] wife” and it seems she only called an end to that life when the father formed a new attachment. In making these observations, I have not overlooked that the mother returned to live with Jake after their separation and that there is no evidence to suggest that there is currently any difficulty in their relationship. I hope for Abe’s sake that the relationship continues because Jake presented as a decent person with strong values.

5.Although little was made of it at the trial, I consider that life for Abe will be easier if he is living close to his school rather than having fairly extensive travel every day of the school week. The drive from Country Town N to Town B takes 50 minutes according to the mother (and an hour according to the father). In City B, Abe will be likely to live much closer to children attending his school, although I accept some children from Country Town N do go to school in Town B.

6.While accepting the much greater capacity of the mother and her family to provide a culturally appropriate upbringing for Abe, the opportunity for him to live in the homeland of the Country B people should be to his advantage.

7.While also accepting the possibility of the father’s career not proceeding as planned, he presented as a stable individual who would make every effort to provide stability in Abe’s life. If it came to pass that the father was required to leave City B for more than a fairly short period, he would be obliged by the orders I propose to make to inform the mother so she will have an opportunity to approach the Court to seek a change in residence arrangements. For example, if the father was to be deployed for an extended period, then it may be better for Abe to return to his mother rather than stay with his stepmother (notwithstanding she is a kind and loving person who would make good arrangements for his care). It should be noted that it was common ground that under the current applicable law in Country B, any application to vary the orders I propose to make would need to be made here, not in Country B.

8.Abe appears to share many of the same interests as his father and it would be good for him to share those interests together, notwithstanding that Jake too shares many common interests with Abe, which Abe greatly enjoys.

9.I have considered the arguments advanced on behalf of the mother that Abe’s primary attachment is likely to be to his mother rather than his father, and that it would accordingly be better for Abe to live with her. While I accept that there may be some basis for that submission, the care arrangements for Abe have been somewhat out of the ordinary, and he has spent extensive periods of time in which the majority of his care has been provided by his father. In the absence of expert observational evidence I could not safely make any findings about his primary attachment(s). I also cannot overlook the fact that the mother herself has been prepared to agree, albeit perhaps reluctantly, to arrangements whereby Abe spends the majority of his time with his father.

10.Although I have considered the evidence relating to Katie’s immigration status in Country B, I do not consider this a matter of great significance as it appears more likely than not that she will achieve permanent residency and citizenship.

Orders

78Although the father is required to return to Country B on 9 July 2018, his lease on his Suburb W home ends on 30 June 2018 and he is required to vacate on 29 June 2018. He will then stay with his sister until 9 July 2018 when he and his family are booked to fly to City B.

79It is in this context that I make the following orders, which are largely in a form the father proposed and which the mother considered appropriate if the relocation was permitted. The main change I propose is that the fourth annual visit proposed by the father should continue after the time Abe turns 10 years. I did not raise this possibility at trial and would therefore allow liberty to apply to make submissions about this amendment.

1.The parties have equal shared parental responsibility for [ABE HELLICK] born … July 2012 (“Abe”).

2.Abe live with [MR HELLICK] (“the father”).

3.The father be at liberty to relocate [Abe] to [City B], [Country B] on or about 9 July 2018.

4.Within 48 hours of the father arriving in [City B], the father notify [MS WALTZ] (“the mother”) of:

(a)the residential address at which he and [Abe] are living;

(b)a telephone number on which the mother may contact [Abe];

(c)an email address to which the mother may email the father and [Abe];

(d)upon [Abe]’s enrolment at school, the name and contact details for the school and the school Principal; and

(e)thereafter notify the mother of any subsequent changes of address, telephone number or email address.

5.As soon as practicable upon the father’s arrival in [Country B] the father do all things necessary to:

(a)register these Orders with the District Court of [Country B];

(b)obtain from the District Court [Country B] Court if practicable a certificate or declaration of enforceability in [Country B] of these Orders or a similar document confirming the enforceablity of these orders in [Country B]; and

(c)serve upon the mother a copy of:

(i)all documents filed in the District Court of [Country B]; and

(ii)all documents issued by that court, in relation to the registration of the orders in that court.

6.[Abe] spend time with the mother:

(a)pending [Abe]’s relocation to [City B], during the time provided in the existing Parenting Plan and for such additional time as the father may permit.

(b)after [Abe]’s relocation to [City B], on four occasions each calendar year, on the following terms:

(i)on three occasions during the three mid‑year school holidays each year, [Abe] travel to Western Australia to spend time with the mother for a period of not less than 14 days;

(ii)on one further occasion each year, during the December/January school holidays for a period of three weeks, alternating so that [Abe] spends Christmas Day in Western Australia in odd numbered years and in [Country B] in even numbered years; and

(iii)at other times as agreed between the parties in writing, with such time to include:

(A)occasions when the mother travels to [Country B] to spend time with [Abe]; and

(B)occasions when the mother requests for [Abe] to spend time with her immediate family in [City B], [Country B].

(iv)For the purposes of this Order, the mother’s “immediate family” means:

(A)her parents or either of them;

(B)her grandparents; and

(C)her siblings, siblings in law, nephews and nieces; and

(D)such other relative of the mother’s agreed between the parties.

7.In addition to the time provided for above, the mother be at liberty to nominate four periods of up to four days, to spend time with [Abe] in either Sydney, Melbourne or Brisbane/Gold Coast, subject to:

(a)the mother giving the father at least 21 days’ written notice of her wish to do so;

(b)the time taking place during a long weekend or public holiday weekend for [Country B];

(c)the mother meeting the following costs:

(i)the air fares for [Abe] from and to [Country B]; and

(ii)her own travel and accommodation expenses; and

(d)the father meeting the costs of his travel from and to [Country B], and his own accommodation costs.

8.The father meet the costs of [Abe]’s travel and that of any accompanying adult to and from Western Australia as provided for in these orders.

9.For the purposes of arranging the time provided for in these orders, by no later than 28 February in each year, the father provide the mother with written notice of the dates on which he proposes:

(a)[Abe] will travel to Western Australia in the following 12 months;

(b)within 28 days of receipt of the notice from the father, the mother confirm her agreement to the proposed dates of travel; and

(c)the father then book the flights and provide the mother with the flight itinerary upon confirmation of the booking.

10.During the time [Abe] is living with the father, the father facilitate reasonable telephone, Skype or Facetime communication between [Abe] and the mother each Sunday between 3 and 5 pm [Country B] time with such calls to be initiated by the father to the mother’s mobile telephone.

11.During the time [Abe] is spending with the mother, the mother will facilitate reasonable telephone, Skype or Facetime communication between [Abe] and the father each Sunday between 3 and 5 pm [Country B] time each week he is with the mother, with such calls to be initiated by the mother to the father’s mobile telephone.

12.In the event [Abe] is in the father’s care on his birthday, the mother’s birthday or Mother’s Day, the father do initiate telephone calls, Skype or Facetime to the mother’s mobile telephone and the father do permit [Abe] to speak with the mother for no less than 10 minutes of uninterrupted conversation or such lesser time as [Abe] requests.

13.In the event [Abe] is in the mother’s care on his birthday, the father’s birthday or Father’s Day, the mother do initiate telephone calls, Skype or Facetime to the father’s mobile telephone and the mother will permit [Abe] to speak with the father for no less than 10 minutes of uninterrupted conversation or such lesser time as [Abe] requests.

14.From the date the father relocates to [Country B], handover do take place at the Perth International Airport with the father to notify the mother of the flight arrival time and terminal at least 7 days before the date of the flight.

15.The parties keep each other informed of any hospitalisation, significant injury or serious health problems suffered and treatment received by [Abe] as soon as practicable.

16.The parties authorise and instruct each educational institution attended by [Abe], to release to each of the parties such information regarding the progress of [Abe] in his education as may be reasonably requested from time to time.

17.The parties authorise and instruct each medical institution attended by [Abe] to release to each of the parties such information regarding [Abe]’s medical and dental health as may be reasonably requested from time to time.

18.Each parent will endeavour to promote [Abe]’s relationships with maternal and paternal family members and other significant persons.

19.The father and the mother each notify the other in writing as soon as practicable of any proposed change in their residential address and/or contact telephone number.

20.The father forthwith provide the mother with full particulars in writing upon him receiving any information suggesting that he may be required to leave [City B] for any reason (other than a holiday)for a period of more than seven days.

21.There be liberty to apply.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM
ASSOCIATE

19 JUNE 2018