J and T
[2010] FCWA 52
•16 MARCH 2010
[2010] FCWA 52
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY LAW ACT 1975 |
| LOCATION | : REGIONAL CENTRE | ||
| CITATION |
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| CORAM |
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| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| BETWEEN |
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Applicant
AND
T
Respondent
Catchwords:
CHILDREN - With whom a child lives - Relocation - Meaning of "reasonably practicable" -
MRR v GRR [2010] HCA 4 followed
Legislation:
Family Law Act 1975
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Mr M Hynes |
| Respondent | : | Self Represented Litigant |
Solicitors:
| Applicant | : | Martin Hynes Lawyers |
[2010] FCWA 52
| Respondent | : | Self Represented Litigant |
Case(s) referred to in judgment(s):
B and B
Family Law Reform Act 1995 (1997) FLC 92-755.
Champness & Hanson [2009] FamCAFC 96.
Goode and Goode (2006) FLC 93-286.
Marsden and Winch (No. 3) [2007] FamCA 1364.
MRR v GR [2010] HCA 4.
Mulvany & Lane [2009] FamCAFC.
U v U (2002) 211 CLR 238.
[2010] FCWA 52
1 HIS HONOUR: [Ms J] and [Mr T] have for a number of years been managing a shared care arrangement for their eight year old daughter, [Tina]. During this time they have both been living in [the same country town]. The mother now wishes to reside on a full-time basis in Perth where her husband and her three other children from a previous marriage are living. Tina's father wishes to continue the shared care arrangement in the town. If this were to be ordered, the mother would have to return to the town to live every second week, since clearly it is necessary for Tina to attend only one school.
Orders sought
2 The orders sought by the mother were contained in her Minute of Orders filed on
5 March 2010. This minute proposed that Tina would live with her in Perth on a full-time basis. It also proposed that Tina would spend time with her father each alternate weekend and for one half of all school holidays and at other times, including times when the father might be visiting Perth.
3 The orders sought by the father were contained in a Minute handed up at the
commencement of the trial yesterday. This proposed that Tina would live with the father on a full-time basis and that the mother would have time with Tina on two out of three weekends, for the majority of the mid-year school holidays and for three weeks during the Christmas holidays.
4 Although these were the orders formally sought by the father, he made clear that
his preference was for a continuation of the current shared care arrangement. The mother also made clear that while she was seeking an order that Tina live full-time with her, if she was unsuccessful in that application then she would continue to travel to the town each second week in order to spend equal time with Tina.
5 Both parties sought an order for continuation of the current arrangement for
equal shared parental responsibility and they each sought a number of other orders that
were largely uncontroversial.
Background
6 The father was born [overseas], is 45 years of age and is a disability pensioner.
He is a qualified electrician, but had an accident at work when he was about 21 and has now not worked for many years.
7 The mother was born in [the Eastern states]. She is 39 years of age. She owns a
[business] in which her present husband is employed. The mother was previously married to [Mr B]. There are three children of that marriage; [Naomi], born in 1990; [Janice], born in 1991; and [Errol], born in 1994.
8 The mother and father in these proceedings commenced a relationship in about
1999 and commenced living together in about 2000. They were married in December
2000. Tina is the only child of their marriage. She was born in June 2001.
[2010] FCWA 52
9 In 2003, the mother and father, together with all four children, moved from Perth
to take up residence in the town. In 2004, they acquired a home in the country town, in which the father is currently living. The property was purchased in a shared equity arrangement with a low interest mortgage, subsidised by a government instrumentality. The parties never actually lived in the home together as the relationship came to an end at around the time the property became available to them.
10 On the basis of the limited evidence available to me, it seems the problems in the
marriage may well have been related to the husband’s depression and back pain, which led to a situation developing that the mother and her children from her first marriage found intolerable. Soon after the separation, the mother, together with Tina and the older children, returned to Perth to live. In the same year, the mother commenced a relationship with her current husband, [Mr I].
11 Family Court proceedings were commenced, but the matter was resolved when
the mother agreed to return to live in town with all of the children. She and Mr I and the children returned in 2005 and the parties commenced a shared care arrangement. Under the terms of the consent orders made on 30 April 2007, the parties had equal shared parental responsibility and agreed to share the care of Tina on a week about basis.
12 In 2006, the mother commenced a business with the work apparently being
primarily performed by Mr I. There was insufficient work for the business in and around the town and so Mr I moved to Perth in 2007 in order to obtain more work which was available in that location. Initially, all of the children remained behind in the country town with the mother, but in 2008 the oldest child Naomi also moved to Perth for work. Naomi is now engaged to be married to a young man who also works in the business.
13 In February 2009, the mother and Mr I were married. Mr I continued to live
primarily in Perth, with the mother joining him when she could. Her visits had to be fitted around the time she had responsibility for looking after Tina in town each alternate week. The mother was unhappy with the ongoing shared care arrangement.
14 After unsuccessfully endeavouring to resolve matters by mediation, the mother
instituted proceedings in October 2009 to allow her to relocate to Perth with Tina. At Christmas 2009, Janice and Errol moved to Perth to live full-time in the home in which Mr I was residing. Errol was enrolled in a school near the home in which Mr I was then living and Janice has commenced studies at university.
15 The mother's application for leave to relocate to Perth on an interim basis was
dismissed on 8 December 2009, but the presiding Magistrate expedited the matter for
trial. The matter has been heard here in [the regional centre] over the last two days.
The mother's proposals for Tina
16 At the time of filing her trial affidavit, the mother was proposing to live at the home in which Mr I and two of the other three children were living.
[2010] FCWA 52
It seems, however, as a result of communications between the father and the property owner that the mother and her family were required to leave the home as the owner did not wish to be caught up in a custody dispute. The mother, Mr I and the children then relocated to the home in [the southern suburbs]. The home is large with five bedrooms. They have a one year lease.
17 The mother’s original intention was that Errol and Tina would attend the same
school, which would have been practicable had they continued to live in the previous house. Now that she has moved to this house, her proposal is for Tina to attend the [local] Primary School and for Errol to attend the [local] High School. Both schools are in very close proximity to the mother's new home. The rent on the property is $700 per week, which is a $250 per week increase on the rent they were paying at the previous house. This is in addition to the rent of $250 per week on the home that the mother has retained in the country.
18 The mother intends that if she is permitted to relocate, she and the father would
meet in [a nominated town] for the contact changeovers. Now that the new [road]has opened, the mother will have a trip which would take about one hour and 20 minutes one way and the father would have a trip from the town to the regional centre which would take about one hour each way.
The father's proposals for Tina
19 The father’s proposals would involve Tina continuing to live in his home in
town. On his proposal, Tina would continue to attend the local primary school where she has been attending since she started school. Given that the mother would not move to live full-time in the Perth area if she could not take Tina with her, the father's primary proposal would also involve Tina continuing spending each second week with the mother in her rental accommodation in town. In that event, Tina would frequently, probably as often as each alternate weekend, travel with her mother from the town to Perth area and return so that Tina could see Naomi, Janice and Errol, as well as Mr I, before returning to go back to school in the country town.
| The law | |
| 20 | These proceedings fall to be considered under the Family Law Act 1975. It is important to keep the relevant provisions of that legislation in mind. |
Best interests and the objects of the legislation
21 Section 60CA makes clear that I must treat the child’s best interests as the
paramount consideration. In doing so, I will be guided by the relevant objects of the legislation and the principles underlying them. The stated objects aim to ensure that the best interests of children are met by:
(a)
ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
[2010] FCWA 52
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
22 These objects are more comprehensive than the previously stated object of the relevant part of the legislation. Prior to the 2006 amendments, the stated object was:
…to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
23 The first of the four “new” objects is far from novel. It echoes two of the guiding principles which were previously to be found in the legislation, namely:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and (b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development…
24 The Full Court of the Family Court of Australia has previously considered the impact of statutory amendments dealing with the objects of the Family Law Act 1975. In B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at [9.2] the Full Court said this concerning the 1995 amendments to the Act:
It is clear that many of the aims of the Reform Act are long-term, educative and normative. That is, they are directed towards changing the ethos where parents separate in the ways in which they think and act in their role as parents, in their approaches to resolving disputes about their children, in the ways in which lawyers act for the parents (and the children), in the approach by the Court in the adjudication of disputes and, more broadly, in the attitudes of society generally.
25 Notwithstanding the changes of emphasis and terminology made by the 1995 amendments, the Full Court was in no doubt about the core task of judges entrusted with responsibility for making decisions about the welfare of children. The Full Court said at [9.51] to [9.60] (my emphasis added):
In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under
[2010] FCWA 52
Part VII of the type to which we have referred, starts from that essential premise and it remains the final determinant.
The legislature has also made it clear that in that process the Court is required to have regard to both the provisions contained in s 68F(2) and those contained in s 60B.
The wording of s 68F(2) makes that clear — the Court “must consider” the various matters set out in (a)-(l) of that sub-section. That sub-section sets out a list of matters which the Court is required to consider to the extent that they are relevant to the particular case. The weight which is attached to any one consideration will depend upon the circumstances of the individual case and is a discretionary exercise by the trial Judge. The list is similar to the list contained in previous legislation but with the additions previously referred to. The list is not intended to be exhaustive. That is made clear by par (1) “any other fact or circumstance that the court thinks is relevant”. This simply underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of the particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.
Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s 65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub-section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court's consideration of the matters in s 68F(2) and to the overall requirement of s 65E. The matters in s 68F(2) are to be considered in the context of the matters in s 60B which are relevant in that case. But s 65E defines the essential issue.
Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of the children in the particular case. Although the Attorney-General submitted that the inter-relationship between the three sections was as much about procedure as it was about substantive law, we think it would be a mistake for this essential exercise to be clouded by procedural or semantic issues.
The Court now, as previously, is required to determine what is in the best interests of the particular children (s 65E). It will direct attention to both of the other sections, but the weight to be attached to individual components of those sections may vary significantly from case to case.
[2010] FCWA 52
This approach, which emphasises the essential importance of the exercise of the discretion in each case, accords with the approach otherwise adopted by courts to the discretionary provisions in the Family Law Act see for example the decision of the High Court in Mallett v Mallet … (1984) 156 CLR 605, and ZP v PS … (1994) 181 CLR 630. For many years in child related cases the legislature and the courts have consistently emphasised that the welfare or best interests of the particular child in the particular circumstances of that case is the determinant, and have eschewed the application of fixed or general rules as the solution. That continues to be the case; the Reform Act should not be understood as suggesting otherwise.
As a matter of proper practice and to ensure that this essential task is performed, a judge in the adjudication of such a case would be expected in the judgment to clearly identify s 65E as the paramount consideration, and then identify and go through each of the paragraphs in s 68F(2) which appear to be relevant and discuss their significance and weight, and perform the same task in relation to the matters in s 60B which appear relevant or which may guide that exercise. The trial Judge will then evaluate all the relevant issues in order to reach a conclusion which is in that child's best interests.
In this approach no question of a presumption or onus arises… The Act contemplates individual justice. Any question of presumption or onus has the potential to impair the inquiry as to what is in the best interests of the particular children. It may render the case more technical and adversarial, and may divert the inquiry from the facts relating to the children's best interests to legal issues relating to burdens of proof. The task is not ‘to be undertaken with a mind-set that defaults in favour of a pre-ordained outcome absent persuasion to the contrary’…
In cases where there are no countervailing factors the s 60B principles may be decisive, not only because they are contained in s 60B but because they accord with what is in the best interests of the particular children. Where there are no countervailing factors, the Court may normally be expected to conclude that it is in the best interests of the children to have as much contact with each parent as is practicable. However, to attempt to impose that approach in cases where the best interests of the children may not indicate that conclusion as appropriate is contrary to the legislation and contrary to the long established views of this and other courts which deal daily with the welfare or best interests of children.
26 It will be noted that the Full Court made many references to s 65E, which was
the provision making the best interests of the child the paramount consideration. Section 65E has been repealed, but only for the purpose of advancing it to a position of earlier prominence in the Act. In my view, many of the remarks made by the Full Court in relation to the 1995 amendments hold true in relation to the
[2010] FCWA 52
2006 amendments. In particular, it remains the case that the paramountcy provision
defines the essential issue and the legislation still contemplates individual justice.
Parental responsibility and the outcomes the Court must consider
27 In enacting the 2006 amendments, Parliament has given legislative voice to what
was already a presumption that responsibility for making decisions about children should ideally be exercised jointly by their parents. The presumption in favour of equal shared parental responsibility does not apply if there are reasonable grounds to believe that either parent, or a person who lives with either parent, has engaged in child abuse or family violence (as defined by the Act). The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
28 In cases where the Court decides not to order equal shared parental responsibility, the legislation is silent about the outcomes the Court should contemplate in making the decision most likely to promote the best interests of the child. The High Court has said that in such matters the Court is “obliged to give careful consideration to the proposed arrangements of the parties”, but it is not bound by them: U v U (2002) 211 CLR 238 at [80]. In undertaking that “careful consideration”, the Court is directed by the statute to take into account a catalogue of potentially relevant matters, which will be discussed later in these reasons.
29 If, on the other hand, the Court does propose to order equal shared parental responsibility, the Act requires the Court not only to have regard to the catalogue of potentially relevant matters, but also directs the Court to consider two specific outcomes.
30 First, by operation of s 65DAA(1), the Court is required to consider whether or not the child spending equal time with each parent would be in the child’s best interests and reasonably practicable. If such an outcome is found to be in the child’s best interests and reasonably practicable, the Court is then required to consider making an order to provide for the child to spend equal time with each parent.
31 Second, by operation of s 65DAA(2), if the Court decides that an “equal time”
order would not be in the child’s best interests or would not be reasonably practicable, the Court must consider whether or not the child spending “substantial and significant time” with each parent would be in the child’s best interests and reasonably practicable. If such an outcome is found to be in the child’s best interests and reasonably practicable, the Court must then consider making an order for the child to spend “substantial and significant time” with each parent. (The expression “substantial and significant time” is defined by s 65DAA(3).)
32 The Full Court has said in Goode and Goode (2006) FLC 93-286 at [64] that the juxtaposition of the paragraphs in s 65DAA(1) “suggests a consideration tending to a result, or the need to consider positively the making of an order” for equal time or substantial and significant time – provided such outcomes would be in the child’s best interests and reasonably practicable. The Full Court also said in Goode at [72] that the 2006 amendments evince a “legislative intent” in favour of substantial involvement of both parents in their child’s life, both as to parental responsibility and as to time spent
[2010] FCWA 52
with the child. However, the legislative intent is subject to many important qualifications. Fundamentally, it is subject to the need to protect children from harm, abuse and family violence. It is also dependent upon the arrangement being in the child’s best interests and reasonably practicable.
33 There is some controversy in relation to the interpretation of s 65DAA. My
views on the resolution of that controversy have been stated recently in Konnecke and Oleshko [2009] FCWA 101. Given the decision I have reached in the present proceedings about allocation of parental responsibility, it is unnecessary for me to restate those views as they will assume only academic interest.
The primary and additional considerations
34 As will be apparent from the discussion above, my overriding objective must be
to make the orders most likely to promote the child’s best interests. The legislation itself specifies those matters that I must take into account in determining the orders to make. Section 60CC divides these into what are called “primary considerations” and “additional considerations”.
35 This dichotomy between “primary” and “additional” considerations was
introduced by the 2006 amendments. There has not been a great deal of judicial guidance concerning the way in which respect is to be paid to Parliament’s intention in specifying two factors as being the “primary” considerations. However, the Full Court (Warnick and Thackray JJ, with whom Le Poer Trench J agreed) said this in Marsden & Winch (No. 3) [2007] FamCA 1364 at [77]:
The present case is not an appropriate vehicle in which to undertake a detailed analysis of the implications of the legislation prescribing certain matters as “primary” considerations. It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.
36 See also Champness & Hanson (2009) FLC 93-407 (Thackray, O’Ryan and Benjamin JJ) at [101] to [103] and Mulvany & Lane (2009) FLC 93-404 (Finn, May and Thackray JJ) at [84].
37 It is within this legal framework that I will proceed to determine this case.
Parental Responsibility
38 I am required to apply a presumption that an order for equal shared parental responsibility would be in Tina's best interests. In this case, both parties agree that an
[2010] FCWA 52
order should be made for equal shared parental responsibility. I consider such an order should be made because each party has demonstrated not only great love for Tina, but also a commendable desire to work with the other parent to achieve the outcomes that are best for Tina.
39 Having decided to make an order for equal shared parental responsibility, the
Act then requires me to consider – and I stress that the word is “consider” – making an order for Tina to spend equal time with each of her parents. If I determine that such an order is in Tina's best interests and, importantly, if I consider it is reasonably practicable for such an order to be made, then I am required to consider – and I again stress “consider” – making an order for equal shared time. As I have said in the discussion of the law, the fact that an order is considered to be in a child's best interests and is also reasonably practicable does not mean the Court must make that order. This is because there may be also other arrangements which are in the child's best interests and which are reasonably practicable and which the Court may prefer as the best of a number of possible good outcomes.
40 If I decide not to order equal shared time, I am obliged to consider whether or
not an order for substantial and significant time is in the child's best interests. Again, the parties are probably familiar with what “significant and substantial time” involves, but essential it means times during the school week and on special occasions, as well as holidays and weekends. If I consider such an arrangement to be in Tina’s best interests and also reasonably practicable, then I am required to consider making such an order.
41 Finally, if I do not make either an equal shared time order or a substantial and
significant time order, I am then required to consider other outcomes, including those
that have been put to me by each of the parties in their minutes.
Time sharing
42 Given my intention to make an order for continued equal shared parental
responsibility, I am first obliged to consider the equal shared time outcome which the father proposes as his preferred position. This involves consideration of the primary and additional considerations to which I have referred.
43 Before I move on to discuss those many considerations, I should say that I was
greatly impressed by both of Tina's parents. The way in which each of them conducted themselves during the course of what was a very emotional and draining hearing was exemplary. It is always difficult when one party is self represented and the other has a lawyer, not only because it might seem that there is not an equal playing field, but also because one parent is required to cross-examine and be cross-examined by the other parent, which can be a very trying experience for both parties. Both the father and the mother handled this aspect of the hearing with great dignity. Each was polite and respectful to the other and each did their best to assist me to find the outcome that is most likely to promote Tina’s best interests.
44 I should also say something about my views on the credibility of the parties. I gained the impression that both parents were essentially honest people and that
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generally their evidence could be relied upon. In some instances, the apparent discrepancies in the evidence might be explained by misunderstandings and, in particular, by assumptions that Tina is always an accurate reporter of what has occurred in the home of the other. Such assumptions may not be justified – for example there is a possibility that Tina was not being entirely truthful when she reported to her mother that her father had said he was going to win the Court case and her mother was going to leave her behind in the town. It is at least as likely that this is a scenario that has been troubling Tina and she wanted to test out what her mother’s reaction would be when she put that scenario to her.
45 Ultimately, the only area where I considered credibility to be of particular
importance related to the father's conduct towards the mother and her children when they were living together. In that particular area I was inclined to accept the evidence of the mother and the daughter over that of the father who, I believe, had a sensible appreciation of how damaging those matters might be to his prospects of success in the current dispute.
46 The father was aware that he needed to cross-examine the mother and her
daughter Naomi about those aspects of their evidence which he challenged. He did not successfully challenge them on the part of their evidence touching on events during the time they were living together. I accept there is a possibility that their evidence may have been, to some extent, exaggerated, but I was satisfied by and large that they had painted an accurate picture of the very troubling situation in the home at that time. Their evidence was also, in my view, strongly corroborated by what the father had written in the document which became exhibit 5, which described his inner feelings at around the time of separation.
47 In coming to my decision on credibility, I have not overlooked the fact that the
father successfully demonstrated in cross-examination that the mother was mistaken about dates of certain events, since she gave different dates in different affidavits. Apart from the fact these were matters in the fairly distant past, they were not matters which were ever likely to have made any difference to the prospects of success of the mother's case.
Primary considerations
48 I turn first to the primary considerations. The first of these relates to the benefit
to Tina of having a meaningful relationship with both of her parents. I am quite satisfied that Tina already has a meaningful relationship with both parents and that there is great benefit to her associated with those relationships. Now that she has reached the stage of maturity that she has, I also consider that Tina will maintain these relationships, regardless of whether I make orders as proposed by the father or as proposed by the mother. The bond is now too strong to be broken.
49 It is true that if orders were made as proposed by the mother, Tina would have
far less time with her father than she has had in the past. However, she is now of an age where her father will continue to remain a significant person with whom she can continue to have a meaningful relationship, even if her face-to-face time with him is restricted to weekends and holidays.
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50 The other primary consideration to be taken into account concerns the need to
protect Tina from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Subject to one matter, there is no evidence to indicate that Tina would be subjected to any family violence, regardless of the orders that I make. I am also satisfied there is no evidence she would be subject to any abuse within the meaning of the Act. The mother did have some concerns about Tina being medicated with Phenergan, but this would not constitute abuse within the meaning of the legislation.
51 One matter that has troubled me is the content of exhibit 5, which the father
properly conceded today could be seen as a threat by him not only to his own life, but that of Tina. The mother described the document as a letter, whereas the father described it as poetry. It is common ground that the mother found it in or near the fireplace in the home in town soon after the parties separated. The father says that the document should be seen as him writing down his inner thoughts with a view to the document then being destroyed in a fire because he had been encouraged by professional people to do this sort of thing in order to expel his emotions.
52 The mother was clearly very disturbed by the content of the document when she
read it. Although she did not report her concerns to anybody immediately, she did bring the document to the attention of her solicitor and then a barrister soon after she arrived in Perth and sought their advice. The mother was led to believe that the document would not be of any great significance in any future Court proceedings and did not then rely upon the document until she was responding to the father’s affidavit, in which he had mentioned that at one stage the mother had sought to terminate his contact with Tina with apparently no good reason.
53 When I read the document in the context of the evidence which I have accepted
from the mother and Naomi about the father's suicidal ideation, I conclude that the mother had reason to be troubled about not only the prospect of the father taking his own life, but of doing some form of harm to his child. However, the father points out that this document was written a long time ago during what was a very difficult time for him and insists that he would never do any harm to himself or to Tina. He says he has moved on from then and has been accessing appropriate counselling and support and that he will continue to avail himself of that support in the future.
54 The father has had opportunity to do harm to both himself and Tina over an
extended period of time and he has not done so. The mother does not now seek any form of supervision of the father's time with Tina and I accept has brought forward the document only to explain why some years ago she sought to restrict the father's time with Tina.
The additional considerations
55 The first of the additional considerations are 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.
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56 I have no independent evidence of Tina's views about where she wishes to live.
Some consideration was given to whether Tina should be interviewed by one of the Court's family consultants. Two memoranda prepared by a family consultant, [Mr P], were received into evidence in which there was discussion about the merits or otherwise of Tina being interviewed. I consider that Mr P was wise to determine that Tina should not be brought into the matter by being asked her views. In my opinion, she would have been placed in a very difficult position if she was asked to express her views formally as she knows that one or other of her parents would potentially be greatly disappointed by what she had to say. In my view, any possible benefit likely to have been obtained from Tina being interviewed would be outweighed by the stress she would feel in expressing her views, knowing, as she does, that each of her parents have very strong views on what should be the appropriate outcome of these proceedings. Ultimately, the decision in this matter is going to be made by reference to matters that would be very difficult, if not impossible, for an eight year old child to comprehend, hence there would be limited benefit in having her speak to an independent person.
57 Although there is accordingly no independent evidence of Tina’s wishes, I do
have the evidence of her mother and her half-sister Naomi about her wishes. I accept their evidence that Tina has expressed a strong wish to them that she be able to live in Perth so that she can be close not only to her mother but to her half-sisters and half-brother. I also accept that Tina has expressed concern that her father will be left on his own if she was to move to live full-time with her mother. The fact that I accepted their evidence does not mean that Tina has necessarily revealed her true views; however, I consider it likely that her views are in accordance with what she has conveyed to her mother and half-sister. I say this knowing full well that children of this age, and indeed children of most ages, are prone to say what they think the person they are speaking to wants to hear.
58 I am quite confident that Tina sees Naomi, Janice and Errol as being her sisters
and brother and she regards them as very much part of her family. She has lived with them most of her life and the fact they do not share the same biological father would not, from Tina's point of view, I think be a matter of great significance. It would only be natural for her to want to live with or near her siblings. It would also be natural that Tina would feel enormous sympathy and concern for her father, whom she loves very much and whom she understandably sees as being without the same level of support as her mother, who has a much wider support network in the form of a husband and three other children. I also consider that it is likely that Tina can sense that, by nature, her mother is a somewhat more resilient person than her father, who has at times in the past behaved in a way suggesting he has a somewhat more fragile personality.
59 I consider it highly likely that Tina has become especially agitated since Janice
and Errol moved to Perth at around Christmas time 2009. She was used to having them around the home when she was spending time with her mother and she now understandably fears that her mother will follow them to Perth, leaving her in the country without the strong emotional support I am satisfied that she feels she receives from her mother.
60 Although it is not the mother's intention to leave Tina behind, she seems not to
have been successful in having Tina accept this might not occur. It would be perfectly
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understandable that no matter how much the mother might try to convey a different message, Tina will continue to have in the back of her mind that her mother will finally find it all too hard living away from her husband and her other children and make the move to Perth, which many others facing similar circumstances would be sorely tempted to do. At the same time she is experiencing all of this anxiety, Tina is worried about her father because she fears what will become of him if he is left behind in the country town without her regular company. Tina's worries about all of these matters may explain why she has been having such difficulty getting off to sleep at her mother's home lately and why she is anxious to have reassurance from her mother more than usual.
61 It is important, in my mind, for a decision to be made about Tina’s future now so
she can hopefully have some of these anxieties removed from her. This is one of the reasons I have decided to give my decision today rather than reserving my decision, which is what I might ordinarily have done in a matter as important and as difficult as this case.
(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)
62 I am satisfied that Tina has a close and loving relationship with each of her
parents. I am also quite satisfied that she has a close and loving relationship with each of her three half-siblings. There is no evidence to indicate that she has anything other than a very good relationship with her stepfather.
63 The extent to which Tina has a close relationship with her half-siblings was
recently demonstrated when Errol came to the town to spend a week with the mother as he, too, was experiencing some upset as a result of the turmoil in the life of the family and had taken a week off school. Tina became most distraught when she had to go to school in the morning knowing that her brother was at home. Tina, understandably, wanted to stay home and spend time with him, as she had been deprived of his company as a result of Errol having moved to Perth at Christmas. The mother's evidence also indicates that Tina was, understandably, very excited about the prospect of going to the same school as her brother if she was able to live in the home in [Perth] home. Regrettably, due to the family being required to leave their home, this no longer is possible, but Tina is now looking forward to the prospect that her brother will be able to walk her home from school, as they will be going to school near to each other and, it seems, Errol will be finishing somewhat earlier than she does.
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
64 I am satisfied both parents are willing and able to facilitate and encourage
a close and continuing relationship between Tina and the other parent. Whilst there
have been a number of disagreements between the parents over the years, they have
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also on many occasions been able to work together cooperatively to promote Tina’s best interests. One recent outstanding example of this was the occasion when Tina became very upset as a result of not being able to attend a sporting carnival. The willingness of the parents to draw on the other one for support to assist Tina through difficult times reflects very positively on both parents and must be wonderful for Tina.
(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
65 The obvious effect of changing Tina's living arrangements in the manner
proposed by the mother is that Tina will no longer live full-time in the country town where she has lived for most of her life. She will not only change her primary place of residence, but will also have to change schools. I am satisfied that neither of the change of home nor the change of school is likely to cause any difficulties of long term or medium term consequence for Tina as I am satisfied that her mother has the capacity to assist her to make the transition comfortably.
66 I accept that Tina will not be able to continue the relationships that she currently
has with friends at school. Although there is the prospect of her being able to keep in touch with at least some of them on weekend visits, I accept that her current friendships are likely to fall away. I consider it equally likely, however, that Tina will develop new friendships with other children in her new school and neighbourhood.
67 The more important issue associated with any move to the Perth area is that Tina
will not be able to spend as much time with her father as she has in the past, unless, of course, the father himself relocated to live in sufficient proximity to the mother to make it potentially viable for there to be an ongoing shared care arrangement.
68 The father is very pessimistic about being able to leave the country town. He
sees it as financially impossible, given the security he has in the form of the home he partly owns in town. If he was to sell the home, he might receive something in excess of $100,000 clear, but this would not be sufficient to allow him to obtain alternative accommodation of his own in Perth and there was no mention of any inquiry he had made about the possibility of entering into any shared equity arrangement in a new property in Perth.
69 There is the added difficulty mentioned by the father that the mother may herself
not stay in the area to which she has recently moved, and if she was to move house then he might have to move as well to ensure the shared care arrangement continued to work. This is something that might be resolved by injunctions about moving outside a particular school area, but at this stage, as I say, the father sees insurmountable difficulties in the way of him moving to Perth.
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70 It does, however, have to be kept in mind that the parties met when they were
living in Perth. Neither of them has any relatives in the country town. The father’s mother lives in Perth, as do all of his three siblings, and their children and grandchildren. The father does not have employment in the town. I, nevertheless, appreciate that given the father's difficult financial circumstances, there may well be obstacles associated with him moving to the [southern suburbans] or the metropolitan area where rents may well be more expensive than in the country town. He would, nevertheless, be able to afford rent for a significant period of time out of the proceeds of his house if he decided to sell up in the town. This would then, as he says, leave him without an asset and leave him without any inheritance for Tina.
71 This then leads to the question of how much time the father would be likely to
spend with Tina if the mother's application was successful and the father does not himself relocate. The father was insistent during the course of the hearing that he would not be able to afford to have time with Tina every alternate weekend as the mother was proposing and said that he would have to save up even to allow him to spend time with Tina during school holidays. Part of the father’s concern is that in the event that Tina is no longer living with him for half of the time, he will no longer be entitled to the family tax benefit and hence will be on a reduced level of income.
72 I accept that the father's income will be reduced in the event that Tina is not
living with him half the time. On the other hand, his expenses will be reduced as he will have Tina in his care for less of the time than at present. I recognise the father will be in a very difficult financial position, but I am not convinced that he would be unable to make the return journey from the town to the regional centre twice every four weeks, especially as he has been in the habit already of making the journey not infrequently.
73 Similarly, I am not persuaded that the father would be unable to afford to spend
time with Tina during school holidays. If financial difficulties were truly an insurmountable difficulty with the father, then he may need to explore other options that may be available to him, such as enlisting the support of his family to ensure that he is able to remain in contact with his daughter. This may involve some assistance from his mother, who lives in the western suuburbs and has allowed him to spend time with Tina in her home on at least one occasion. There is some indication from the father that his mother might be moving, but the evidence about this was somewhat vague.
74 If, however, it transpired that the father was, for example, only able to see Tina
once each month, I consider that whilst this would be distressing for the father and probably not in accordance with Tina's own wishes, it would be at least sufficient to allow the father to retain the relationship he currently has with his daughter.
(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
75 I have already touched on this issue to some extent. Fortunately, the difficulty
and expense of Tina spending time with each of her parents has been ameliorated, at least to some extent, by the mother electing to live in the Perth area, which reduces the
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amount of time Tina is required to spend in a vehicle in order to keep up contact with both her parents. It is important to note that regardless of the outcome of the proceedings, Tina is likely to have to undertake a fair amount of travel, since even if the father was successful in his application, Tina would continue to move back and forward between the country town and metropolitan area so that she can keep in touch with her half siblings and stepfather.
(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
76 The mother's case is that whilst the father might be capable of providing for
Tina’s needs on a shared care basis, he would not have the capacity to care for her full-time. The mother supports her position on this point by saying that the father has never had to care for Tina on a full-time basis and that his back injury is such that he would find it difficult to have to care for her on a full-time basis. In one respect, this is a non-issue, as the mother has made clear she would not move permanently from the country town if she was not successful in her application to relocate. On the other hand, it is an issue that requires at least some consideration because I have some reservations about the likelihood that the mother for the indefinite future would be able to manage a life in which she lives half the time in the country while her other children and husband live in the Perth region. I can envisage a variety of circumstances, financial and otherwise, in which the mother might find that arrangement to be untenable, in which case, if orders were made as proposed by the father, Tina would end up living with him on a full-time basis. While I share at least some of the mother's reservations about the father’s capacity to care for Tina on a full-time basis, I consider that he would be able to provide for her needs. I am also satisfied that both parents can provide well for Tina’s intellectual needs.
77 I am confident, too, that the mother is capable of providing for all of Tina’s
emotional needs. The mother presented as having a well developed understanding of her child's emotional needs. She has shown herself to be a fairly resilient individual in ensuring that she puts her daughter's needs before her own, notwithstanding the difficult circumstances she has experienced both during the marriage and over the last couple of years.
78 On the other hand, I do have some reservations about the father’s capacity to
provide for all of Tina’s emotional needs. The father has struggled with depression over a very long period of time. That depression at times seems to have been fairly serious. Although the father was inclined to deny it, I accepted the evidence of the mother and Naomi that during the time the family was living together, the father on a number of occasions threatened to commit suicide and that he did so in the presence of the mother's children. I was pleased today to hear the father's evidence about him having ceased taking antidepressant medication and managing successfully now for
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many months without that medication. I was also very pleased to hear him describe the good support network he has put in place in case of any relapse. There nevertheless remains in my mind at least some questions about the father's ability to cope in certain circumstances and I can see this potentially interfering with his ability to provide the same level of attention to Tina's emotional needs that I feel her mother can provide for her.
(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
79 There are no matters of significance to discuss under this heading, save to note
that Tina is now eight years of age and is, in my view, better able to cope with separation from one or other of her parents than she would have been at the time her mother wanted to relocate to Perth a few years ago.
80 Subparagraph (h) is not relevant.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
81 I consider that both parents have an extremely good attitude to Tina and to the
responsibilities of parenthood. My main reservations under this heading concern the father’s behaviour during the time that he and the mother were living together. His behaviour in threatening self-harm and in disappearing from the home from time to time must have placed great stress on the mother and the older children. I appreciate, however, that his conduct needs to be considered in the light of his chronic pain and his medical condition, which he has tried to address, and which it seems, on his evidence, has been under much better control in recent times than it was during the marriage, especially at the time the marriage was disintegrating.
(j) any family violence involving the child or a member of the child’s family; (k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or (ii) the making of the order was contested by a person
82 The next two factors consider issues of family violence and family violence
orders. There are no family violence orders and no issues relating to family violence
that are of significance to these proceedings.
(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
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83 It is usually preferable to make the order least likely to lead to the institution of
further proceedings, but it is sometimes difficult to assess what that order would be.
I do not consider this factor to be of any significance in the current proceedings.
Discussion
84 I have mentioned to the parties during the course of the hearing the fact that the High Court has very recently handed down a decision which is of considerable significance in what are called “relocation cases”.
85 The High Court in a case called MRR v GR [2010] HCA 4 has stressed that the Family Court lacks power to make an order for equal shared time unless the proposed order brings about an arrangement that is not only in the best interests of the child, but is also an arrangement that is reasonably practicable. Until the recent decision of the High Court, there was little guidance for trial Judges on what was meant by the expression “reasonably practicable”.
86 Sub-section 65DAA(5) provides as follows:
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and (b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and (d) the impact that an arrangement of that kind would have on the child; and (e) such other matters as the court considers relevant.
87 In one sense it can be argued that a shared care arrangement is always
“practicable” because it is generally possible for the parents to live, or move to live, in sufficient proximity to each other to allow such an arrangement to be implemented. The test, however, is not “practicability”, but “reasonable practicability”. The use of the word “reasonable” imports an element of proportionality or commonsense.
88 In the recent case in the High Court, it was arguably “practicable” for there to be
a shared care arrangement because the parents were both living in the same community and it was physically possible for the child's time to be divided equally between the parents. The High Court considered, however, that the arrangement that was actually contemplated in that case did not meet the test of being “reasonably
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practicable” because the mother was forced to live in a caravan, which the Court did not consider to be an ideal environment for the child. Alternative accommodation was scarce and waiting lists were long. The mother had limited opportunities for employment in the local area and had to live on social security payments and income from casual employment. The evidence of the family consultant in that case was that the mother was definitely despondent about living in a town where her living conditions were not good and where she was isolated from her family, who lived in Sydney.
89 In the present case, I do not consider that it is “reasonably practicable” for the
parents to continue the current shared care arrangement. The mother is forced to live apart from her husband for 50% of the time. For good reason, the mother has now determined that it is appropriate for the remaining two older children to move to the metropolitan area and if the current shared care arrangement is to continue, she will be deprived of the company of those children for part of the time and, importantly, Tina will also be deprived of their regular company.
90 The mother's present husband is engaged in full-time employment which
provides the income by which not only the mother is supported, but by which Tina is supported. Under the current arrangement, the mother's husband is left responsible for looking after Errol during the time the mother is living in the town. Errol has already been suffering some adverse consequences associated with this.
91 Apart from all the obvious difficulties associated with this unsatisfactory
arrangement, there are serious financial consequences. The mother and her husband lost their previous rental accommodation. They have now had to take alternative accommodation, costing $700 a week. Apart from the clear difficulty in meeting such a high level of rent, the mother is obliged to maintain separate rental accommodation in the town. Apart from having to pay two lots of rent, there are other expenses, including utilities, which have to be met twice, on top of which are all of the costs associated with travel backwards and forwards between the two homes.
92 I accept that it is not a viable option for the mother's present husband to return to
the country town to live, given the lack of work for his occupation in the town. I consider that the mother and her husband are to be commended for the fact that they have put up with such an inconvenient living arrangement for so long, and I do not consider it is reasonably practicable for that to continue in the future.
93 Similar comments could be made in relation to the reasonable practicability of
maintaining an arrangement for substantial and significant time. Given this is my finding and given the competing proposals of the parties, it is unnecessary for me to comment on whether I consider a shared care arrangement is in the best interests of Tina. There are arguments that could be put for and against the proposition. The choices that I consider reasonably available to me now are the mother's preferred position of having Tina full-time in Perth or the father's alternate position of having Tina full-time in the country town.s
94 For reasons which will be apparent from my discussion, particularly related to
the additional considerations, I am satisfied that on balance, the mother's position is to be preferred and that the contact regime she proposes is appropriate. This would allow
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the father the opportunity at least to see Tina every fortnight as well as for half of the school holidays and during any occasions when he is coming to the Perth metropolitan area. I am quite satisfied that the mother can be trusted to allow the father additional contact if he is in the Perth area, provided he has given some reasonable notice of his intention to visit.
95 It will be a matter for the father to determine whether in fact he can afford this
level of contact. If he is not able to do so, then the parties have shown the capacity to work out alternative arrangements. I have not overlooked the father's understandable concerns about the instability in the mother's accommodation arrangements since separation. I do not consider the position to be quite as bad as made out and I note that the mother's accommodation in the country town has been quite stable, given she does not have the benefit the father has of remaining in the home that was acquired in the town. No doubt, one of the mother's motivations in hoping to be able to remain in the Perth area and run the business with her husband is to ensure that they get some capital base behind them so they, too, can acquire a permanent home so that they will not have to move repeatedly in the future.
The transition
96 The question now becomes how the transition from the old arrangement to the
new arrangement is going to be managed. I accept that the father will be very upset by the decision that the Court has decided to make. However, he has contemplated this alternative and today he discussed the alternatives in a dignified and mature fashion. He is confident that he and the mother together will be able to explain to Tina what is going to happen over the coming days when the time is right. I do not see any need to change Tina's residence immediately and the mother herself indicated that she saw no need to change arrangements until Easter.
97 As I understand the position, the school holidays this year will commence on
Thursday, 1 April, and the new term will not commence until Monday, 19 April. I consider that the move to Perth should be made in the forthcoming school holidays. I propose to allow the parties the opportunity to discuss how the time between now and then will be shared. If they cannot come to an agreement, then I will make the decision for them. I will be returning to Perth today when the Court rises, but if agreement cannot be reached this afternoon about the detail of these matters, I will hear an argument about these issues over the telephone later this week.
98 I understand that the other orders sought are not contentious. I will make those
orders, save that I do not propose to make the order requiring the parents to tell each other about travel they undertake with Tina during the time she is with them. Both parents are quite good at sharing information and I would expect that they would probably tell the other one anyway, and I am not persuaded that there is any need for an order.
I certify that the preceding [98] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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